On 14 March 2014, the General Court of the European Union ("GC") delivered its judgment on appeals lodged by seven cement companies, challenging a European Commission decision seeking information in the context of an on-going investigation into a suspected cement products cartel.

The Commission relied on Article 18 of Regulation 1/2003, which enables it, by simple request, to require undertakings to provide all information deemed necessary for investigating alleged competition infringements.

It was argued before the GC that the Commission exceeded its powers to request information, that the information requested was not related to the investigation and that the request was disproportionate, imprecise and unclear.

The General Court rejected these arguments, finding that, the Commission's requests for information were justified. The GC did, however, partially uphold the appeal by one company, finding that the Commission had imposed a disproportionate, two-week deadline for the provision of certain information.

The GC confirmed that it is for the Commission to determine what information it considers necessary to request from companies when investigating potentially anti-competitive practices. The only requirement is that the Commission must reasonably expect that the information will help in its determination of whether the alleged infringement took place. The Commission is therefore only entitled to require the disclosure of information which may enable it to investigate putative infringements which justify the conduct of the inquiry and are set out in the request for information. The Commission may request that the information be submitted in a specific format.

The GC acknowledged that the Commission is not obliged to have information establishing the existence of an infringement before sending a request for information. It suffices that the Commission has reasonable suspicions of a breach of competition rules. Furthermore, the Commission is not obliged, at the investigative stage of its inquiry, to inform the undertakings of the evidence already in its possession, in order not to compromise the effectiveness of its investigation.

It had been argued that the information requested by the Commission was not necessary for it to conduct its investigation. The GC noted that the necessity of the information requests could be appreciated from the putative infringements described. It was not necessary, contrary to what was argued by the applicants, for the Commission to set out precisely the period relevant to its investigation, nor, was it necessary, for the Commission to set out the reason why it has decided to opt for a decision under Article 18 of Regulation 1/2003.

According to the GC, the concept of necessary information must be interpreted according to the objectives for which the powers of investigation were conferred upon the Commission to achieve. The requirement that there be a correlation between the request for information and the putative infringement was satisfied in the present case.

It was further argued that the Commission breached the principle of proportionality as the request to produce and process the information imposed an excessive and disproportionate burden on the cement companies. Despite the undisputed size and workload caused by the volume of information and the very high degree of precision in the response format imposed by the Commission, the GC concluded that the workload was not disproportionate in the light of the necessities of the investigation and the extent of the presumed infringements. The GC nevertheless took the view that the time-limit of two weeks granted to one of the companies to respond was insufficient. According to the GC, the time-limit granted must allow the addressee of the request to give a substantive response, but also to ensure the complete, accurate and non-distorted nature of the information provided. The Commission's request for information was thus annulled in that respect.

This decision marks another development in the case law defining the limits of the Commission's investigative powers.

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