On 6 September 2013, the General Court of the European Union ("GC") handed down a judgment rejecting an action challenging the Commission's ability to inspect corporate premises. The case relates to a Commission investigation into alleged abusive pricing in the locomotive electricity sector. The Commission sought to investigate whether Deutsche Bahn granted to its subsidiaries favourable and discriminatory discounts on traction electricity, to the detriment of competitors on the market.
Unannounced inspections were carried out by the Commission at Deutsche Bahn's offices in Berlin, Frankfurt and Mainz on 29 March 2011. During these inspections the Commission came across documents which pointed to other potential, unrelated, competition law infringements. These findings led to further inspections on 30 March 2011 and 26 July 2011.
Deutsche Bahn subsequently challenged before the GC the validity of the Commission's dawn raid decisions. It argued that judicial approval should have been sought prior to the raids and that, during the first investigation, the Commission was simply fishing for documents beyond the scope of its investigation, which allowed it to launch further unrelated investigations.
In its judgment of 6 September 2013, the GC held that the Commission's inspections were not questionable. The GC made it clear that there was no requirement for a prior court order from a national judge; rather the Commission's own decision to raid is all that is required.
The GC also confirmed the Commission's ability to search any document "irrespective of its content or title". More particularly, the GC held that investigators had not gone beyond the limits of their search powers, rejecting Deutsche Bahn's claim that the Commission was searching for information unconnected with its original mandate. The GC reiterated the general principle that documents collected during an inspection should only be used in connection with the objectives outlined in the decision to launch the investigation. However, the GC held that if, by chance, the Commission discovers information pointing to other infringements of competition rules, it may simply commence another investigation in relation to the material which it discovered during the prior inspection.
The GC further rejected Deutsche Bahn's argument that the legal basis for the conduct of inspections, i.e. Article 20, paragraphs 4 to 8 of Regulation 1/2003, affects the right to a defence and the protection of the home, guaranteed by the European Convention on Human Rights and the EU Charter of Fundamental Rights. The GC held that the Commission decision to inspect Deutsche Bahn's premises sufficiently took account of the company's fundamental rights. In addition, the GC noted the existing guarantees in Regulation 1/2003, controlling the Commission's power of inspection, which includes the ability to later challenge the raids before a court. The ability given to the Commission to inspect corporate premises, as provided for in Regulation 1/2003, is therefore in conformity with the company's fundamental rights.
This judgment marks another turning point in a line of cases challenging the investigative powers of the Commission. It is, for now, unknown whether Deutsche Bahn intends to appeal the ruling. It is to be hoped in any event that the European Court of Justice will soon be given the opportunity to further clarify what investigators can and cannot do in case of suspected antitrust offences.
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