On 22 March 2012, the General Court rendered a judgment confirming the European Commission's power to request documents pre-dating a member state's accession to the EU. Indeed, the Court found that the Commission had been entitled to order Slovak Telekom to disclose information predating Slovakia's accession to the EU in its investigation into possible abuse of dominance.
In 2009, the Commission initiated proceedings against Slovakia's largest telecom company, which is owned by Deutsche Telekom, to determine whether it had abused its dominant position in the Slovak telecommunications sector, particularly by denying competitors access to its broadband network and by squeezing their profit margins.
Through two decisions, the Commission ordered Slovak Telekom to provide it with information on its activities, not only during the period following the accession of Slovakia to the EU on 1 May 2004, but also during the period prior to accession. The Commission nonetheless specified that it did not intend to find an infringement of the EU competition rules for the period before 1 May 2004. Instead, it stated that the information was required to assess, in full knowledge of the facts and in their correct economic context, the compatibility of Slovak Telekom's conduct with EU competition rules after accession.
Slovak Telekom subsequently brought actions before the General Court seeking to annul the Commission's decisions. It challenged the regulator's powers to request information pre-dating accession to the EU, and argued that such information would in any case be irrelevant to the alleged infringement.
Unsurprisingly, the General Court rejected Slovak Telekom's claims. It recalled that EU competition law grants the Commission broad powers of investigation and review, and that the Commission may accordingly require undertakings to provide it with such information as is necessary to detect any abuse of a dominant position. In light of this, the Commission may have access to information which may legitimately be regarded as having a connection with the alleged infringement. Moreover, given its broad powers of investigation and assessment, it is for the Commission to decide whether the information which it requires is necessary. Hence, the Commission may request from an undertaking information relating to a period during which the competition rules of the EU did not apply to it, if such information is necessary for the detection of a possible infringement of those rules from the point at which they became applicable.
Furthermore, the General Court specified that the information requested from Slovak Telekom could enable the Commission to define the markets at issue, to determine whether the undertaking concerned holds a dominant position on those markets or to assess the gravity of the infringement.
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