On 10 April 2018, the General Court of the European Union (the "GC") issued a judgment in the Alcogroup case. The GC dismissed as inadmissible an action to annul an inspection decision as well as a letter from the European Commission (the "Commission") concerning legally privileged documents and the implementation of a Commission inspection decision (Case T-274/15, Alcogroup and Alcodis v Commission).

The case concerned Alcogroup, a Belgian company active in the production, processing and marketing of ethanol, and its subsidiary Alcodis (collectively "Alcogroup"). The litigation originated in two separate inspections ordered in accordance with Article 20(4) of Regulation No. 1/2003. In particular, at the start of the second inspection, Alcogroup's lawyers requested that the Commission's inspectors exclude from their investigation defence documents which had been drafted following the first inspection on the grounds that they were covered by legal professional privilege ("LPP"). However, Alcogroup contended that during the second inspection Commission officials did, in fact, review such documents. By letter of 21 April 2015 to the Commission, the applicants submitted that the review of these documents constituted a violation of the right to a fair hearing and of the fundamental right to the inviolability of the home, as well as a violation to the principle of good administration. They therefore requested that the investigations in relation to Alcogroup should be suspended. In its reply of 8 May 2015, the Commission rejected this request.

Alcogroup sought the annulment before the GC of both the second inspection decision and the Commission's letter of 8 May 2015 on the grounds that:

  • The defects in the implementation of the second inspection decision invalidated the decision;
  • The second inspection decision should have provided for precautionary measures in order to prevent the Commission from becoming aware of documents prepared by Alcogroup concerning its defence following the first inspection;
  • The letter of 8 May 2015 was an actionable measure on the grounds that the Commission failed to comply with the agreement drawn up at the beginning of the second inspection concerning legally privileged documents and that the letter constituted a refusal to grant the protection afforded by European law to confidential correspondence covered by LPP.

The Commission disputed the admissibility of the action as a whole.

As regards the annulment of the second inspection decision, the GC recalled that it is settled case-law that acts subsequent to the adoption of a decision cannot affect the validity of the decision. Rather, the legality of the act must be assessed in the light of the elements of law and fact existing at the time that the decision was adopted. The GC added that an undertaking cannot rely on the unlawfulness of the conduct of inspection proceedings in support of an annulment against the act on the basis of which the Commission carried out that inspection. In this regard, the GC distinguished the situation at hand from the Deutsche Bahn case where the information illegally collected during the first inspection had been the basis for subsequent inspection decisions, and the GC therefore annulled the later, but not the first inspection decision (Case C-583/13 P, Deutsche Bahn and Others v Commission). The GC stated that it could not be inferred from the Deutsche Bahn judgment that the unlawful conduct of an inspection in and of itself has the potential to call into question the validity of the decision authorising the same inspection.

In relation to the provision for precautionary measures, the GC dismissed the claim, as Alcogroup did not identify any concrete rule establishing a legal obligation for the Commission to include specific precautionary measures in the inspection decision relating to the protection of documents covered by LPP.

Finally, as regards the annulment of the Commission's letter of 8 May 2015, the GC dismissed Alcogroup's request on the basis that the letter was only a preliminary act, suggesting that the investigation procedures would continue and a final act would be adopted, which would definitively determine the Commission's position. Therefore, such a letter was not a measure which can be the subject of an action for annulment. More precisely, the GC disagreed that the letter constituted a formal decision refusing to grant the protection afforded to documents protected by LPP. The GC found that, in the letter of 8 May 2015, the Commission did not rule on whether or not the documents were covered by LPP but, at most, confirmed to Alcogroup that the documents were not being read by the Commission. Moreover,  there was no tacit decision on the part of the Commission rejecting the claim for protection of the documents under LPP.

In conclusion, the GC dismissed the action for annulment finding it to be inadmissible.

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