In 2017, after receiving information concerning alleged exchanges of information between several French food retail chains, including Casino and Intermarché, the Commission carried out unannounced inspections at those companies’ premises. Subsequently, Casino and Intermarché brought actions before the General Court seeking annulment of the Commission’s decisions ordering the inspections, adopted pursuant to Article 20 of Regulation 1/2003.
In support of their actions, the applicant companies raised, in particular, a plea of illegality against Article 20 of Regulation 1/2003, relying on a disregard of the right to an effective remedy laid down in Article 47 of the Charter of Fundamental Rights of the European Union (the “Charter”) and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “ECHR”). They also invoked an infringement of the obligation to state reasons and an infringement of their right to inviolability of the home protected by Article 7 of the Charter and Article 8 of the ECHR.
In its judgments of 5 October 2020 (Casino, Guichard-Perrachon and Achats marchandises Casino SAS (AMC) v Commission, T-249/17; Intermarché Casino Achats v Commission, T-254/17; Les Mousquetaires and ITM Entreprises v Commission, T-255/17), the General Court rejected the plea of illegality. It considered that the system for monitoring the manner in which the inspection operations are carried out by the Commission satisfies the conditions required by the European Court of Human Rights to ensure the right to an effective remedy. In particular, the General Court recalled that the conditions under which an inspection took place can be contested in an action for annulment against the Commission’s final decision closing the procedure.
With regard to the obligation to state reasons, the General Court underlined that the inspection decisions must state the presumed facts which the Commission intends to investigate, that is to say describe the market thought to be affected, the nature of the suspected competition restrictions and the sectors covered by the alleged infringement. However, the Commission is not required to specify the evidence which justified the inspection. Such an obligation would indeed upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the rights of defence of the undertaking concerned. In the present cases, the General Court found that the Commission did not violate its obligation to state reasons in the inspection decisions.
With regard to the right to inviolability of the home, the General Court provided clarifications on the level of evidence to lawfully authorise an inspection. In particular, it underlined that the level of proof required to authorise an inspection must be placed lower than when allowing a finding of a concerted practice.
Having that distinction in mind, it found that the Commission had sufficient evidence to suspect a concerted practice as regards the exchanges of information on rebates obtained on the supply markets and prices on the market for the sale of services to suppliers of branded products. Among that evidence were unrecorded interviews with suppliers carried out before the investigation was opened. In this respect, the General Court considered that the rules on the requirement to record interviews only apply after an investigation is opened by the Commission. The evidence obtained when no investigation has yet been formally opened, that is to say when the Commission has not adopted any measure alleging that an infringement has been committed, is therefore not subject to the same formalities as the gathering of evidence of an infringement in the context of an open investigation.
In contrast, the General Court found that the inspections were not supported by sufficient evidence as regards the exchanges of information concerning the future commercial strategies of the companies under suspicion. It indeed noted that the Commission relied on the mere presence of a Casino representative at a meeting organised by Intermarché, during which the latter presented its commercial priorities. The general Court pointed out that the meeting had been held in public with journalists and that the information disclosed by Intermarché was very general and published after the meeting in the specialised press. That information could therefore not be considered as confidential but should be regarded as public information, the dissemination of which was not sufficient to raise suspicions of an anticompetitive exchange of information and order an inspection.
As a result, the General Court partially annulled the Commission’s decisions ordering the inspections in respect of the exchanges of information on future commercial strategy. All corresponding documents and information seized during the inspection must therefore be set aside and cannot be used by the Commission against the companies.
Please contact Pierre de Bandt or Jeroen Dewispelaere for further information regarding the above or competition law.