Background of the Cases
In the context of a Commission’s investigation in the cement sector, the producers received a request for information decision1.In June 2011, several companies brought an action before the General Court against this decision. They request the Court to annul the decision since it infringes several principles of EU Law2. The Commission may also have exceeded its powers granted under Article 18 ‘requests for information’ of Regulation 1/20033. In the meantime, Cemex, Holcim, Cementos Portland Velderrivas, and HeildeBerg introduced separate proceedings for interim relief.
By letter of 6 December 2010, the Commission informed the different companies that it had decided to open proceedings for an alleged breach of Article 101 TFEU. Then, on 30 March 2011, the Commission adopted a decision based on Article 18 of Regulation 1/2003. The decision includes an Annex with a 67-pages questionnaire to which the companies must respond within the given deadline. They asked the Commission to extend the deadline. This request was rejected. Consequently, the cement producers seek interim relief to avoid the delivery of information while the main challenge for annulment of the Commission’s decision is pending. They maintained that the Commission’s request for information may cause serious and irreparable harm because of the exclusive allocation of staff to the specific tasks of compiling information and answering questions. According to them, such a tremendous job is not only very costly but also leads to the paralysis of their industrial activities and could endanger their very existence.
On 29 July 2011, the President of the General Court dismissed the petition for interim measures to suspend the request for information decision. He found that the applicants had not demonstrated that the requested interim measures were urgently needed to prevent serious and irreparable harm. The President of the General Court considered that neither of the following reasons were sufficient to fulfil the condition of urgency: (i) the financial cost engaged to execute requests for information decision, (ii) the risk of submitting erroneous answers; or (iii) the risk that the Commission uses information obtained illegally to establish an infringement.
The Companies claimed that such a questionnaire is time consuming. It involves the assignment of many employees to the collection of data which is very costly and counterproductive. They considered that the money spent to answer the questionnaire could be dedicated to more important projects necessary for the economic survival of the companies.
Cemex states that it has already spent more than EUR 900 000 for two requests for information notified in September 2009 and the global cost incurred to answer the contested decision would be up to EUR 759 920. Cementos forecasts expenditure amounting to EUR419 531 for 8 744 working hours, without including the costs related to external legal advices.
The President of the General Court recalls that “damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable, or even as being reparable only with difficulty, since it can, as a general rule, ultimately be the subject of financial compensation”. However, an interim measure is justified if it appears that, without that measure, the applicant would be in a position that could imperil its existence before final judgment in the main action. Such proof was not adduced during the proceedings.
Risk of submitting erroneous answers
Some of the applicants claimed that because of the time pressure, they would fail to provide full and accurate information. Also, they are afraid that the Commission’s refusal to notify the questionnaire in the languages of the subsidiaries (located in different countries) may prevent the employees from fully understanding the meaning of the questions and, as a result, may lead the employees to answering incorrectly. There could be a risk that the Commission will impose fines because of errors in the answers. The President of the General Court observes that even if it cannot be excluded that the answers contain some mistakes, it is nevertheless not certain that the Commission will impose sanctions. The Commission can decide not to sanction in case of late answers on condition that the companies have presented the main information before the deadline and complete the answers within a reasonable time.
The risk that the Commission will make use of information obtained illegally to adopt an infringement decision
If the annulment proceedings against the decision requesting information are successful, the information will be obtained illegally by the Commission.
The applicants claim that there could be a risk that the Commission will treat the illegally obtained information and will use that throughout simulations and tests via their database that was created for the purpose of discovering any evidence that there is infringement. The applicants assert that even if the information provided would be removed from the file, the Commission would not be able to ignore the conclusions reached on the basis of the simulations. Therefore, the Commission should not examine the information that was already communicated until the main proceeding is reviewed by the General Court.
The President of the General Court recalls that even if a breach of a Treaty provision may affect the validity of the contested decision, “it cannot in principle be sufficient on its own to establish that any damage caused is serious and irreparable”. It does not suffice to allege a manifest infringement of the rules of law to fulfill the condition of urgency; the applicants are required to prove the facts forming the basis of their claim that serious and irreparable damage is likely.
Those orders and the main pending proceedings once again consider the question whether the Commission can exercise its power to request information while respecting the principle of proportionality. It is settled case law that “an obligation imposed on an undertaking to supply an item of information should not constitute a burden on that undertaking which is disproportionate to the requirements of the inquiry”4.
In order to reduce the burden of compliance with data requests, the Commission advises the Companies to set up early consultation with DG Competition. This early stage will help the Commission to determine what data is available and the accessibility of the data. The Commission notably recommends the parties to explain their information management systems and to provide a diagram that shows how relevant data is distributed throughout the organisation5.