A recent ruling by the European Court of Justice clarifies that companies should put more thought into answering requests for information by the European Commission. Indeed, they should determine whether their answer to each question posed is necessary for the purpose of the European Commission’s request. To do that, the Commission should send out targeted information requests specifying the alleged cartel infringements and the products to which the investigation relates. That way, companies will be able to assess the scope of their duty to cooperate while at the same time safeguarding their rights of defence.
Following dawn raids in 2008 and 2009, in 2010 the European Commission initiated a procedure for alleged cartel infringements against a number of cement companies. In 2011, the Commission sent out an information request of 94 pages and 11 sets of questions relating to a considerable number of transactions, both domestic and international, in relation to twelve Member States over a period of ten years. Several of the cement companies unsuccessfully complained to the General Court about the extensive request for information and the lack of sufficient substantiation of the alleged infringements in the information request.
On appeal, the European Court of Justice referred to Article 18(3) of Regulation 1/2003 pursuant to which the Commission should state the legal basis and the purpose of the information request, specify what information is required and fix the time-limit within which it is to be provided. According to the ECJ, this means that the Commission needs to specify the suspicions it intends to investigate with sufficient precision so that companies can determine whether the information is necessary for the purpose stated in the information request. Without a sufficiently precise specification it will also be impossible for EU courts to exercise judicial review.
Given that the questions posed in the information request were extremely numerous, covered starkly different types of information and were sent to the cement companies more than two years after the first dawn raids, the ECJ considered that the Commission should have been able to be more precise in describing its suspicions of infringement by the companies involved. The ECJ therefore set aside the judgments of the General Court and the Commission’s information request decision.