The limits of the European Commission's investigative powers in competition cases are being challenged in a wave of appeals by Deutsche Bahn ("DB") and several cement sector companies. Details recently published in the Official Journal reveal that in the beginning of June 2011 these companies filed nine appeals against Commission decisions taken pursuant to Articles 18 and 20 of Regulation 1/2003.
DB and a number of its subsidiaries are appealing two Commission decisions taken in accordance with Article 20(4) of Regulation 1/2003 that authorised dawn raids carried out in March 2011 in connection with the investigation of possible abuses of a dominant position. In both cases, DB argues that the Commission decisions infringe the right to the inviolability of premises, to an effective legal remedy and to defence, as well as the principle of proportionality. The appeals notably point to a lack of prior judicial authorisation, a lack of possibility of prior judicial review of the inspection decision, and the disproportionately wide and non-specific subject-matter of the first inspection, which render it a "fishing expedition". Furthermore, the company argues that the information sought could have been obtained through less invasive methods. Based on these arguments, DB is requesting the General Court to annul the Commission's inspection decisions, to annul all measures taken on the basis of those inspections and in particular to order the Commission to return all copies of documents made during the inspections.
On another front, Buzzi Unicem, Italmobiliare, Cemex, Holcim, Cementos Portland Valderrivas, HeidelbergCement and Schwenk Zement are challenging Commission requests for information addressed pursuant to Article 18 of Regulation 1/2003 in connection with the investigation of suspected cartel behaviour in the cement industry. The applicants argue that the Commission over-stepped its powers and that its decision to request information should therefore be annulled. The extensive accusations range from discrimination to the disregard of the EU's language regime, but primarily state that the Commission failed in its duty to give reasons, required information which was unrelated to the investigation, and infringed the principles of proportionality, legal certainty and precision. Schwenk Zement, for instance, argues that the contested decision does not set out the allegations made against it, while Holcim states that the decision requires data that could only have been produced at an "exorbitant" cost. HeidelbergCement argues that it was "objectively impossible" to respect the given time limits, which the Commission refused to extend, adding that the Commission misused its powers to go on a "fishing expedition". At the end of July 2011, the General Court rejected interim measure applications by Cemex, Holcim, Cementos Portland Valderrivas and HeidelbergCement requesting the suspension of the Commission decisions pending the outcome of the appeals on the basis of a lack of urgency.
These challenges to the extensive powers of the Commission in carrying out competition law investigations are not the first of their kind, but are nevertheless not frequent and of significant interest. Their outcomes are eagerly anticipated.
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