C-46/87

D — The role of the national courts and the powers that are or could be vested in the

Court of Justice 2899

II — The submission alleging a breach of essential procedural requirements 2902

III — The submission that the statement of reasons was defective 2903

IV — The submission that evidence was lacking or imprecise 2905

V — The submission alleging that information on the basis of which the investigation was

3. Before examining those submissions, I consider it essential to recall briefly the way in which the applicants reacted to the 7. The representatives of Dow Ibèrica (Case Commission's decisions ordering the investi­ 97/87), Alcudia (98/87) and EMP (99/87) gation. were 'troubled' by the first 'surprise inspection' carried out by the Commission in Spanish undertakings but 'following the Commission officials' explanations, orally and in writing, of their duties' under 4. Hoechst (Case 46/87) categorically Articles 14, 15 and 16 of Regulation No 17, refused to submit to the investigation, not merely tolerated the inspection without notwithstanding three attempts by the raising any formal objection but also Commission's officials to carry it out. On cooperated actively therein. each occasion, Hoechst insisted that its formal opposition to the carrying out of the investigation, which it regarded as a search, should be noted in writing. Ultimately, it was not until 2 April 1987 that it permitted 8. Having made those facts clear, I can now the investigation, since by then a search consider the legal submissions put forward warrant had bee issued in favour of the by the applicants, beginning with the Commission by the Amtsgericht (local submission common to all the cases and court), Frankfurt, on the application of the which is by far the most important. Bundeskartellamt (Federal Cartel Office). 2

I — The submission alleging an infringement 5. Moreover, the Commission, by decision of a fundamental right of 3 February 1987 adopted under Article 16(1)(d) of Regulation No 17, imposed on Hoechst a periodic penalty payment of ECU 1 000 per day in order to compel it to 9. The applicants make some or all of the submit to the investigation which had been following claims: ordered. Hoechst is also seeking the amendment of that decision and the decision of 26 May 1988, under Article 16(2) of Regulation No 17, in which the Commission fixed the definitive amount of (i) Article 14(3) of Regulation No 17 is the periodic penalty payment at void on the ground that it is incom­ ECU 55 000 (Case 227/88). patible with fundamental rights recognized in the Community legal 2 — See the Minute of 2 April 1987, annex 4 to the reply. order;

15. The use of the expressions 'produce the documents demanded' by the Commission's 12. After establishing on the basis of a study officials and 'furnish the explanations' of the national laws of the Member States, which are demanded shows that the the European Convention on Human Rights decision requires undertakings not merely to and the Court's case-law that undertakings tolerate the investigation but to cooperate have a fundamental right to the inviolability actively therein. With a few exceptions 4the of their premises, I shall consider whether legal writers also consider that Article 14(3) that right is infringed by investigations carried out on the basis of the abovemen- 3 — It is true that the German version of the decision addressed to Hoechst uses the words 'relating to the subject-matter of tioned provision. the inquiry' only with regard to the explanations that may be demanded by the Commission officials. However that is merely a textual error which could not be, and was not, of any significance. On the one hand, it is apparent from the preamble to the decision that the measures ordered therein concerned only agreements and concerted practices whose existence was suspected by the Commission. On the other, 13. I shall then look at what conclusions Hoechst was not misled regarding the fact that the investi- may be drawn in these cases from the prin­ gation could relate only to the matters so defined and its complaint was merely that the Commission did not suffi- ciples thus deduced. Finally, I shall make a ciently specify the subject-mailer. few remarks on the role of the national 4 — Blum: Die Auskunfts- und sonstigen Ennittlunglrechte der courts and the Court of Justice of the Kartellbebörden, Thesis, Heidelberg 1986, p 252; Deringer: Das Wettbewerbirecht der Europäischen Wirt- European Communities respectively in schaftsgemeinichaft, Kommentar, 1962 (updated 1963), paragraph 9 on Article 14 of Regulation No 17; Goldmann regard to the implementation of decisions and Lyon-Caen: Droit commercial européen. Fourth ordering an investigation. Edition, 1983, No 699, p 791

18. Thus, although it is obvious that they 16. The terms of the decisions ordering the could ask, for example, to see 'the corre­ investigations contain no precise details as spondence entered into by the firm during to the specific documents which the the last three years with other producers of Commission's officials were to examine. PVC or polyethylene' or 'the Minutes of the Reference is made solely to 'business board meetings held between 1983 and documents related to the subject of the 1987', may they also ask to see 'all inquiry'. Hoechst relies on that fact to argue documents dealing with the conditions that 'even voluntary submission of business under which PVC is marketed' or the documents in order to give effect to a 'documents to be found in the office of the decision ordering an investigation head of the Marketing Division' or even constitutes a search where the Commission 'the files contained in such and such a knows neither the precise nature nor the cupboard or such and such a drawer'? detailed contents of the documents submitted' (Minute of the investigation of 2 April 1987, cited at p. 7 of the reply in Case 46/87). I cannot accept that reasoning because, as the Court will see later, in all 19. All of those steps seem to me to be the national legal systems there are investi­ acceptable for the following reasons. gation procedures which presuppose the According to Article 14(1) of Regulation cooperation of undertakings, in the context No 17, the Commission may undertake 'all of which the competent administrative necessary investigations'. For that purpose, authority does not know in advance the said article provides that 'the officials whether it will find information which will authorized by the Commission are lead to the conclusion that the undertaking empowered : has committed an offence and, a fortiori, it is not aware of the nature of that infor­ mation. Such operations cannot on that ground be regarded as searches. (a) to examine the books and other business records;

20. That definition, and in particular the 23. Often, it is expense accounts for trips right of the Commission's officials to enter made by managers of the firm which, when any premises or even means of transport, compared with those of managers of other implies that those officials may look at all undertakings under investigation, enable the the objects in those places and demand to Commission to discover which undertakings be shown anything they designate because may have been party to the agreement, otherwise, what purpose would there be in when concertation took place, etc. The giving them a right of access? Let us interest of the Community requires that imagine, for example, that while looking out those responsible for ensuring the real­ of the window, the Commission's officials ization of the objective defined in Article suddenly notice that workers are in the 3(f) and compliance with the rules laid process of loading files on to a lorry. They down in Articles 85 and 86 of the Treaty must in such a case have the right to send have access to documents of that kind once one of their number to that place to demand there is a sufficiently serious suspicion of that the operation be stopped and that the unlawful conduct. That is why I consider documents in question be shown to him. that the Commission's officials were also entitled to look into the briefcases of the undertakings' managers and even into their diaries to see if they contain documents or indications relating to their business acti­ vities. 21. The duties of the Commission's officials are in no way comparable to those of officials of the national authorities carrying out an investigation in a tax or labour law matter. In regard to taxation, the inspectors consider very specific categories of 24. On the other hand, it is for the documents, namely accounting ledgers and Commission itself and for the Commission invoices for purchases or sales whereas, in alone to check and decide, subject only to regard to labour law, it is essentially review by the Court, whether the documents pay-slips and personal files which are which it has demanded are related to the relevant. subject-matter of its investigation.

"necessary" in order that it may bring to obtaining an order suspending the operation light an infringement of the Treaty rules on of the decision which has been taken, or competition, it is in principle for the any other interim measure (paragraph 32). Commission itself, and not the undertaking In its judgment of 24 June 1986 in Case concerned or a third party, whether an 53/85 AKZO Chemie v Commission [1986] expert or an arbitrator, to decide whether or ECR 1965, at p. 1992, the Court also not a document must be produced to it' accepted that it is for the Commission to (paragraph 17). assess whether or not a particular document contains business secrets the confidentiality of which is protected by a general principle which applies during the course of the administrative procedure (paragraphs 28 26. It is true that the Court accepted that and 29). the Commission's 'wide powers of investi- gation and of obtaining information' 6may be subject to certain limits, such as, in that case, respect for the confidential nature of written communications between lawyer and 28. If the Commission is therefore entitled client, in so far as those communications are to require submission of documents which in the framework and for the purpose of the the undertaking regards as protected by client's rights of the defence and that they virtue of general principles of law and to emanate from independent lawyers, that is assess, subject only to review by the Court, to say, lawyers not linked to the client by an whether that is in fact the case, the employment relationship. However, even Commission must also be entitled to check where the undertaking claims that the itself whether or not the documents it is documents which it is called upon to demanding are related to the subject of the disclose come within that category, the investigation. The Commission's officials Commission may order, pursuant to Article therefore necessarily have the right to have 14(3), production of the communications in shown to them files in regard to which it is question and, if necessary, impose fines or not immediately clear whether they contain periodic penalty payments on the under­ items likely to be relevant to the investi­ taking as a penalty for its refusal to comply gation and in particular, to demand access (paragraph 31). to all files or papers contained in a given cupboard or drawer.

33. Can it be considered that that method of proceeding on the part of the 'When a Commission official is in an office, Commission's officials is 'covered' by the he enquires as to the place in which the files Commission's standard-form decisions at issue are kept and asks to be given access which require undertakings to 'produce for to the desk drawers or filing cabinet in inspection and allow copies to be taken of order to determine the nature of the files business documents relating to the subject- which they contain. If the drawers are matter or of the investigation demanded by locked, he demands that they be opened. the ... officials'? Once that has been done it is of no importance whether it is the Commission's official or an employee of the abovementioned undertaking who removes the files from the 34. It is possible to interpret the term place in which they are kept. As a general 'produce' restrictively or widely. In its rule, the Commission official will none the restricted meaning, that term could mean less examine each of the files to check that the documents designated by the whether it contains documents relevant to Commission's officials must be given to the subject-matter of the investigation. them by the company's representatives. In Documents not connected with the investi­ the wider sense, it could be interpreted as gation procedure and private papers may meaning that the undertaking's obligation to thus be eliminated' (p. 20, paragraph (k)). cooperate implies a duty to conduct the Commission's officials to the places in which relevant documents might be kept or to the premises which those officials ask to 31. In its rejoinder in Case 85/87 (Dow visit, giving them free access to all storage Benelux), the Commission stated that 'the areas, so that they may remove the Commission's officials may themselves open documents contained therein and examine cupboards or desks which are not locked, them. withdraw files and documents therefrom, examine them and make copies of them' (p. 8, first paragraph). 35. However, I do not think that the latter interpretation can be accepted. The use of the expression 'produce ... and allow copies 32. Finally, in its reply to a question from to be taken of documents demanded', taken the Court on the instructions it gives to its together with the duty of the undertaking's officials, the Commission indicated, inter representative 'to furnish immediately any alia, that 'the official responsible for the explanation those officials may demand' investigation will personally examine, in the leads me to believe that the Commission's presence of a representative of the under­ officials must first give the company's taking, all files, cupboards and desks in managers an opportunity to cooperate which documents may be stored and he will actively in the investigation.

36. The Commission's officials must business records in incomplete form during certainly be given every facility to ensure investigations under Articles 13 or 14, or that no document of relevance escapes their refuse implementation of Article 14(3)'. scrutiny. In order to do so, they must have, as I have indicated above, the right to have the files and documents contained in any cabinet they designate submitted to them because otherwise how could they find any information as to the conduct of the under­ taking which the latter has an interest in 39. The fact that the first part of that hiding and which it will ensure does not provision refers to Article 14 in its entirety appear in its 'classic' files? If that principle is and does not therefore distinguish between accepted, in the last analysis, certainly, it Article 14(2) (an investigation carried out makes no difference whether it is the official on the basis of a mere authorization) and himself or an employee of the undertaking Article 14(3) (an investigation carried out who removes the files from a cabinet and an on the basis of a formal decision of the undertaking which is prepared fully to Commission) indicates to me that in both perform its duty to cooperate will no doubt cases it is for the representatives of the end up saying to the Commission's officials: undertaking to submit documents to the 'Go ahead, take the files yourselves'. Commission's officials. Furthermore, the same view is set out in a brochure published by the Commission in 1984 entitled The European Commission's powers of investi- gation in the enforcement of competition law. At page 36 of that document, it is stated that 'the firm's representatives must open 37. However, that situation is somewhat the filing cabinets and hand over the different from the one in which the documents in them to the inspectors, who Commission's officials proceed immediately are not allowed to remove them from the to carry out a thorough search, of filing filing cabinets themselves. Any refusal by the cabinets. I consider that such a power, firm's representatives to produce the which is undoubtedly a power of search, is documents is recorded and the inspectors included in Article 14 but only as a last may ask the national authorities to enforce resort and it may be exercised only under the decision ordering the investigation'. It is the conditions laid down in Article 14(6). true that it is stated on the title page of the brochure that 'the views expressed do not necessarily represent an authentic statement of the Commission's official position'. It is no less true that the view which I have just cited must, at the time, have been the prevailing view in the Commission's 38. In my view, that is the only interpre­ departments. tation which is compatible with the terms of Article 15(1)(c) of the regulation. That provision is manifestly based on the principle of the submission (Vorlage) of documents by the representatives of the undertaking because it permits the Commission to impose fines on under­ takings if they intentionally or negligently 40. The system set up by Article 14 is thus 'produce the required books or other the following.

41. (2) In the context of the procedure under Article 14(3), the undertaking is obliged to submit to the investigation and to produce all the documents called for without any exception whatsoever, and if it does not do so, a fine or a periodic penalty 42. (3) Finally, if the undertaking refuses to payment or both may be imposed on it. I produce one or more documents which the agree with those legal writers 7who consider Commission's officials wish to examine and, that that paragraph grants the Commission a fortiori, if it refuses to even open certain only powers of information and exa­ locked drawers or cupboards or to remove mination (Auskunfts- und Einsichtsrechte), objects contained in the briefcase of one of with undertakings having a corresponding its managers, the Commission's officials can duty of cooperation. I agree with only draw up a formal Minute of that Mestmäcker 8 in considering that 'under­ refusal. That Minute triggers the procedure takings are obliged to permit the leading to the fixing of a fine or a periodic Commission's officials to carry out their penalty payment and will lead to the mission in such a way that, without there Commission asking the Member State being any need to use actual force, the concerned to 'afford the necessary information required is correctly supplied' assistance to the officials authorized by the ('Die Unternehmen sind verpflichtet, den Commission to enable them to make their Bediensteten die Erfüllung ihrer Aufgabe so investigation', as is provided for in Article zu ermöglichen, daß ohne Anwendung von 14(6). In other words, the refusal to submit unmittelbarem Zwang die geforderten the contents of a cabinet to the Aufschlüsse sachlich richtig gegeben Commission's officials constitutes opposition werden.'). It is thus important that a very within the meaning of Article 14(6) which clear line should be drawn between the those officials cannot themselves overcome situation where an undertaking cooperates by seizing the files but requires the inter­ in the investigation and that where it does vention of representatives of the Member not cooperate. If the Commission's officials State in question. I consider that the same were entitled, in the context of the conclusion may be drawn by analogy from procedure provided for in Article 14(3), to the provision in Article 192 of the Treaty on themselves take documents, there would be enforcement or decisions of the Council and confusion between that procedure and the the Commission, which is referred to in Article 187 on the enforcement of 7 — W. Kreis Kreis:: 'Ermittlungsverfahren der EG-Kommission in judgments of the Court. I consider that Knncllsachen',, in Rctht der Internationalen Wirttehaft Knncllsachen' Wirttehaft,, Article 192 shows that the EEC Treaty Vol.. 5. May 1981 Vol 1981,, p. 281 281.. in particular at p. 291 291;; W. A. Rehmann:: 'Zur Vollstreckung einer Nachprüfungsent­ Rehmann intended to reserve to the Member States all scheidung der Kommission der EG' EG',, in Nene Jitńuncbe Wochmichriß 19871987,, Vol 48 48,, p. 3061 et seq seq.. forms of intervention which could be 8 — Mestmäcker,, op Mestmäcker op.. cit cit,, p. 607 607.. assimilated to direct enforcement.

47. I must now consider whether an investi­ 44. That sentence did not appear in the gation in the context of which Commission proposal for a regulation submitted by the officials merely ask to be handed files which Commission to the Parliament and the they designate without themselves searching Council. The possibility cannot be excluded the cabinets represents an infringement of that it was introduced by the Council as a the fundamental right to the protection of result of the observations made by the the home by reason of the fact that it takes Parliament's Internal Market Committee place under the threat of a fine of periodic (Report of 7 September 1961, document 57, penalty payment. It is clear that if an under­ known as the Deringer Report) according taking cooperates voluntarily and without to which the intervention of a court is to be any reserve with the inspectors, no problem provided for where a search is to be carried of a violation of the home can arise. out. In any event, it is no longer possible to determine whether the Council thereby intended to call upon the Member States to provide in their national legislation that a court order would not be necessary for acts 48. In order to decide that question it is carried out on the basis of Article 14(6) (for necessary to consider the situation existing example, by providing in a law that such in the national legal systems and the acts are to be regarded as cases in which guidance which may be drawn from the delay would be dangerous) or if it merely European Convention on Human Rights intended to leave each Member State a and the case-law of the Court of Justice. choice as to the means which it wished to employ, including, if necessary, the requirement to obtain a court order. B — The guidance which may be drawn from the national legal systems, the European Convention on Human Rights and the case-law of the Court of Justice

53. Neither Law No 102 of 31 March 1955 51. In competition matters the Law of 27 on competition nor Law No 505 of 29 May 1960 on protection against abuses of November 1972 implementing Article 14(6) economic power provides for a right of of Regulation No 17 provided for such search, without a prior court order. Moreover derogations. It must therefore be accepted the Law of 28 July 1987 implementing the that, in principle, no investigation may be regulation and directives adopted pursuant carried out without a court order first being to Article 87 of the EEC Treaty {Moniteur obtained. However, it is also accepted that belge, 24.9.1987, p. 138171) adopts a defi­ if the undertaking consents to the operation, nition of the powers of national officials the authority concerned may carry it out assisting Commission inspectors which without obtaining a court order. exactly reproduces the wording of Article 14(1) of Regulation No 17. Article 2(3) of that law provides for criminal sanctions against any persons wilfully preventing or hindering inspections or steps taken to assist 54. It should however be noted that in the 9 — Van Fraeycnhoven: 'Lc respect de la vie privée et le context of Law No 505, a Danish court, pouvoir d'investigation du fisc', Annalei de droit de Louvain, 1984, p. 85 et seq. when called upon to authorize the measures

OPINION OF MR MISCHO —JOINED CASES 46/87 AND 227/88

required by a Commission decision ordering Bundesverfassungsgericht (Federal Constitu­ an investigation, merely determines that the tional Court) in its judgment of 3 April decision exists and does not consider 1979 to define the concept of a search whether it is well founded. (BVerfG E 51, p. 97, 107). According to that definition, a search means

58. On the other hand, the power of inves­ tigation which includes a right to enter the 'searches may be ordered only by a court undertaking's premises, permits examination or, if delay would be dangerous, by other only of documents submitted to the auth­ bodies provided for by law; they may be orities by the managers of the undertaking. carried out only in the manner prescribed by Investigation presupposes therefore co­ law'. operation on the part of the representatives of the undertaking being investigated, whereas a search may be carried out without any activity on their part. Under Article 19(3) of the Basic Law, legal persons also enjoy fundamental rights and both the case-law and the legal writers are unanimous in considering that the term 59. It should be noted that that does not 'home' covers business premises. mean that such active cooperation cannot be 'forced' by periodic penalty payments or the threat of fines or other means of adminis­ trative coercion. The refutsal of the represen­ 57. Article 46 of the Gesetz gegen Wettbe­ tatives of the undertaking, who are under werbsbeschränkungen (law concerning an obligation to cooperate in the investi­ restrictions on competition) of 27 July 1957 gation, constitutes an administrative offence distinguishes between the power of investi- (Ordnungswidrigkeit). However, a per­ gation (Einsicbts- und Prüfungsrecht) and the sistent refusal notwithstanding those power to carry out searches (Durchsu­ measures of coercion can be overcome only chungsrecht). Although the distinction is by a search warrant which alone permits the sometimes difficult to draw, reference is use of force (unmittelbarer Zwang). Thus, it usually made to the criteria employed by the seems that in practice the competent auth-

'A person's home is a place of asylum. The private and family life of the individual is 64. In Spain, Article 18(2) of the inviolable. No search may be carried out in Constitution of 1978 provides that a person's home other than in the cases and in the forms provided for by law, and repre­ sentatives of the judicial authorities must always be present'. 'the home is inviolable' and that 'no one may enter a home or carry out a search there without the consent of the occupier or without a court order, except where an 62. Although it is accepted that that offence is actually being committed'. provision also applies to legal persons, it seems that legislative practice, in particular in the field of competition, is to interpret the concept of home in the strict sense, that 65. Since Judgment No 124/85 of the is to say, as not including business premises, Constitutional Court of 17 October 1985, it with the effect that a representative of the appears settled that the business premises of judicial authorities is required to be present legal persons are also covered by that only during searches of private dwellings. provision.

63. In any event, Article 26(1) of Law No 66. As in Denmark, the requirement of 703/77 on the control of monopolies and prior judicial authorization is therefore a

OPINION OF MR MISCHO — JOINED CASES 46/87 AND 227/88

69. In France the right to the inviolability of the home is deeply rooted in constitutional tradition. At the moment, it is regarded as 71. Since that very strict protection is based on a relatively recent decision of the Conseil 10 — Thus, the law on criminal procedure requires consent and a constitutionnel (Constitutional Court) of warrant for entry and search of a home or, where that 29 December 1983 under which searches consent is refused, a warrant issued by a court stating the reasons on which it is based. may be ordered only by the judicial auth-

HOECHST v COMMISSION

77. In Italy Article 14 of the Constitution declares that 'the home is inviolable'. It is 73. The case-law seems to indicate that the settled that the business premises of legal said constitutional protection is afforded persons are also covered. Article 14(2) and neither to legal persons nor to business (3) draw a distinction between, on the one premises. hand, 'ispezioni o perquisizioni o sequestri', which may be carried out only in the cases and in accordance with the methods provided for by law, in accordance with the 74. Thus, several Irish laws, in particular in guarantees laid down for the protection of regard to taxation, social affairs and personal liberty, and, on the other hand, customs matters, give the administration the 'accertamenti e ispezioni' carried out on right to enter and inspect, without prior grounds of public health and hygiene or for judicial authorization, any premises in economic and tax purposes, which are which commercial activities are carried on governed by special laws. and sometimes even allow business documents to be removed for a reasonable period. However, those laws do not give officials the unrestricted rights to enter by force and to carry out an unlimited search. 78. Prior authorization by a court is in If the person concerned refuses his consent, principle necessary only for searches he is liable to penalties under the criminal (perquisizioni). On the other hand, the laws law. adopted to regulate the exercise of verifi-

OPINION OF MR MISCHO — JOINED CASES 46/87 AND 227/88

'prohibits the entry into dwellings against the will of the occupier except in the cases 81. Outside the area of criminal procedure, provided for by law or a measure adopted the Luxembourg legislature has not under the law and such entry must be made

HOECHST v COMMISSION

by persons designated by law or by a activities set out in Article 14(1) except that measure adopted under the law'. of entering any premises forming part of a dwelling. In regard to all other premises, entry is therefore permitted without restriction.

84. The legislature may therefore leave to the executive the power to determine itself, in the abstract, within the framework of the law, cases in which dwellings may be 88. In Portugal ihe constitutional protection entered. Furthermore, that provision, which of the inviolability of the home is fairly contains no obligation of prior judicial strict. Article 34(2) of the Constitution of supervision, does not apply to legal persons or 1976 provides as follows: to places other than the dwellings of natural persons and presupposes that the occupier has not given his consent.

OPINION OF MR MISCHO —JOINED CASES 46/87 AND 227/88

91. It may also be mentioned that the draft does not permit forceable entry if the decree law to be adopted for the purpose of undertaking continues to object to the implementing Article 14(6) of Regulation inspection, but a second refusal may lead to No 17 appears to provide for the imposition the immediate imprisonment of the person of fines on undertakings which refuse to concerned. cooperate in investigations ordered by the Commission.

98. Moreover, that right finds specific 94. However, certain legislation, expression in the European Convention for particularly in regard to VAT and social the Protection of Human Rights, ratified by security permit the administration to enter all the Member States, Article 8(1) of which commercial premises and to inspect and provides that: 'Everyone has the right to demand production of business documents respect for his private and family life, his without obtaining prior judicial authori­ home and his correspondence'. zation. It is only where force is used to enter and search premises that a warrant issued by a judge must be obtained in advance. 99. The right to the inviolability of the home must therefore be regarded as one of the fundamental rights which all the institutions of the Community must respect. 95. Parliament did not adopt specific measures for the implementation of Article 14(16) of Regulation No 17. If need be, the consent of the undertaking may be ensured 100. However, the question arises whether by an order of the High Court, which may that principle also protects the business be obtained without delay. Such an order premises of legal persons and, in such a

HOECHST v COMMISSION

103. Above and beyond those differences, however, a general trend is discernible in the national legal systems towards the 107. In the economic, fiscal and social assimilation of business premises to a home. spheres, there are, in the various national In any event, in the great majority of legal systems, many measures providing for Member States, the inspection of business inspections of various kinds from a mere premises is made subject, by virtue of special request for information to a search for legislation, to more or less stringent formal documents with the help of the police. The or procedural conditions. I therefore terms used to describe such measures vary propose, as the Commission does, that it (inspection, check, inquiry, search ... ) and should be expressly accepted that there is at do not correspond in all the legal systems. Community level a fundamental right to the inviolability of business premises. 12 — Judgment of 26 June 1980 in Case 136/79 National Panasonic Comminion [1980] ECR 2033, at pp. 2056 and 2057. 11 — Frowein and Peukert: 'Europäische Menschenrechtskon- 13 — Sec, on that point, the Opinion of Mr Advocate General vention', EMRK-Kommentar, Anicie 8, No 27. Warner in National Panasonic[1980] ECR 2061, 2068.

OPINION OF MR MISCHO—JOINED CASES 46/87 AND 227/88

113. In its judgment in National Panasonic, the Court implicitly accepted that Article 14 of Regulation No 17 constitutes a legal 110. It should further be noted that, also in provision fulfilling those conditions because regard to competition law, in Spain and it decided that Greece, notwithstanding the constitutional requirements, no prior court order is required for inspections in business premises, even if they have to be carried out by force. ' ... as follows from the seventh and eighth recitals of the preamble to Regulation No 17, the aim of the powers given to the Commission by Article 14 of that regulation 111. Finally, in the Member States which, is to enable it to carry out its duty under the like Germany, Denmark and France, make EEC Treaty of ensuring that the rules on the use of force conditional on the issue of competition are applied in the common a prior court order, undertakings may be market. The function of these rules is, as ordered to submit to inspections and to follows from the fourth recital of the cooperate in investigations under pain of preamble to the Treaty, Article 3(f) and sanctions such as fines or periodic penalty Articles 85 and 86, to prevent competition payments without any prior judicial inter­ from being distorted to the detriment of the vention being necessary. public interest, individual undertakings and

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115. That conclusion is supported by the judgment of 23 September 1986 in Case 5/85 AKZO Chemie v Commission [1986] 118. The rights of the undertakings are ECR 2585, at pp. 2612 and 2613, in which sufficiently protected by the possibility the Court decided as follows: afforded to them of contesting before this Court the validity of decisions ordering investigations and applying for suspension of their operation. It should also be borne in mind that if a decision ordering an investi­ 'The applicants themselves admit that if the gation is declared void by the Court after conditions laid down in Article 14(3) of the investigation has taken place, the Regulation No 17 are fulfilled, a decision Commission is not entitled to use the ordering an undertaking to submit to an documents which it found. investigation is not contrary to the funda­ mental principles laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental 119. On the other hand, if an undertaking Freedoms. As can be seen from the exam­ refuses to permit the Commission's officials ination of the first two submissions, that is to enter its buildings or a particular room, so in this case. The third submission must or to open a locked cabinet or to hand to therefore also be rejected' (paragraph 27). the Commission officials certain documents

OPINION OF MR MISCHO — JOINED CASES 46/87 AND 227/88

122. 1. Hoechst AG is seeking a declaration that the decision of 15 January 1987 126. However, the Commission interprets its ordering an investigation is void 'in so far as powers more widely as meaning that its it contains the authorization to conduct a officials have the right actually to carry out search, and in particular the authorization a search themselves even without obtaining to inspect premises and storage facilities to a court order. The question arises whether a see whether they contain business decision may be declared unlawful not documents and if so what documents'. because of the terms in which it is drafted

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but because of the interpretation which the very general terms), it may be ordered to institution which drew it up gives to it and pay a periodic penalty payment. However, the approach it believes it may take in its refusal must be established in a manner practice on the basis of that interpretation. leaving no room for doubt. In this type of situation, that must be done by drawing up a formal Minute.

132. When the Commission's officials visited 129. 2. What consequences must be drawn the undertaking for the second time on 22 from the foregoing in regard to the validity January 1987, the legal adviser once again of the imposition of a period penalty stated that any action on the part of the payment? In that regard, I consider that Commission's officials on the basis of the from the time an undertaking refuses to decision of 15 January 1987 must be submit to the Commission's inspectors all regarded as unlawful and that the under­ documents designated by them, (even in taking's representatives, without actually

OPINION OF MR MISCHO —JOINED CASES 46/87 AND 227/88

resisting, would refuse to take any part in 'Having regard to the fact that a search the investigation (Annex 2b to the warrant has now been issued by a court, application). Hoechst AG submits to the investigation and the search' (emphasis added).

135. Hoechst therefore opposed any form of investigation on three occasions, including a form of investigation consisting merely in the production by the undertaking's own managers of files called for by the 138. What is to be made of that dispute? Commission's officials. The Commission First of all, it is impossible to establish at was therefore fully entitled to impose a this stage what really happened because no periodic penalty payment on the under­ independent witness was present during the taking. investigations. In the second place, it is plain that if the undertaking's managers agree to the Commission's officials themselves taking documents from cupboards and drawers, the 136. It should be borne in mind that the procedure cannot be regarded as defective investigation which was ultimately carried in that regard. Finally, as I mentioned out at Hoechst on 2 and 3 April 1987 could above, undertakings are expressly informed only proceed, as the Commission points out that they may oppose the investigation, and at p. 6 of its rejoinder, by reason of the therefore, the form in which the existence at that time of a search warrant, Commission's officials propose to carry it because the undertaking's legal adviser out, and have their opposition noted in a insisted on inserting the following in the formal Minute, which will lead to the with­ Minute of 2 April 1987: drawal of the Commission's officials.

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It is carried out, with the result that there can be true that in paragraph 19 of the same no question of declaring the implementation judgment, the Court indicated that of the decision unlawful in regard to them, even supposing that such were possible in principle. Nor are the subsequent procedural steps taken by the Commission 'the rule that national courts may not them in regard to them unlawful. selves declare Community acts invalid may have to be qualified in certain circumstances in the case of proceedings relating to an application for interim measures .

141. I have concluded that in cases in which State in the territory of which it is carried national law provides that an investigation out but the order for its enforcement is to carried out in the fact of the opposition for be appended to the decision, without other the undertaking constitutes a search formality than verification of the authen requiring a court order, it is for the ticity of the decision, by the national competent national authorities to obtain authority which the government of each such an order. In my view, the assessment to Member State designates for that purpose. be made by the national court cannot however extend to the lawfulness of the Commission decision ordering the investi gation.

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taking may in any event challenge that 146. However, it would be far preferable if decision by an action under Article 173. If a court order could be granted to the the decision ordering the investigation is Commission's officials themselves by the declared void, the Commission cannot use Court of Justice of the European the information obtained. However, it may Communities. be necessary in certain Member States for provisions to that effect to be enacted and incorporated in the national measures adopted in implementation of Article 14(6) of Regulation No 17.

145. If it wishes to avoid that situation, the Commission will logically have to ask the competent national authorities to obtain in 148. An additional argument in favour of each case, as a precaution, a search warrant such a 'European search warrant' is that, if or a court order which they can produce if the Commission considers that it must carry the undertaking is not prepared to submit to out simultaneous investigations in different the investigation, either in whole or in part. countries, the warrants required may not It should be noted that in its report of 15 always be obtained in time in all those May 1984, the House of Lords Select countries. H Committee on the European Communities already pointed out the need for such a course, at least in cases in which there was a danger of objection and the possibility of applying it in England and Wales (paragraph 45 of the report). 149. In the expert's report drawn up at the request of Hoechst (Annex 6 to the reply), 14 — Commission's Powers of Investigation and Inspection, House of Lords, Session 1983-84, 18th Report, HMSO. Professor Frowein expresses the opinion

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'the Commission shall apply to the President of the Court of Justice for an order to 153. The only solution which would not be ensure that the inspection be carried out open to criticism would obviously be to compulsorily. The President of the Court of supplement the EEC Treaty itself. The Justice shall give a decision within three opportunity could be taken to exclude days. expressly the possibility of suspending the operation of a decision ordering an investi­ gation on the basis of Article 185 because such a suspension might allow the destruction of all compromising documents. If there is danger in delay, the Commission The placing of seals on the undertakings' may itself issue a written order, in the form cabinets and archives, suggested by the of a decision, to proceed with the Commission, does not seem to offer a inspection. This order shall be submitted sufficient guarantee and it would also no without delay to the President of the Court doubt be difficult to carry out in practice. of Justice for subsequent approval'.

II — The submission alleging a breach of behalf of the Commission, which is fully essential procedural requirements responsible for the decision (paragraph 36 of the judgment). There can therefore be no objection to the decision being described as a decision of the Commission. 155. According to Hoechst, the decision ordering the investigation infringes the principle of collegiality because it was adopted by a single Member of the 159. Hoechst has suggested that the Court Commission and not by the entire should reconsider that decision in the light Commission even though it is actually of the principle nulla poena sine lege. In its described as a decision of the Commission. view, in so far as non-compliance with a decision ordering an investigation under Article 14(3) makes an undertaking liable to 156. The decision was indeed adopted by a fine under Article 15(1) of Regulation No one member of the Commission responsible 17, the Commission has amended, by a for competition matters who, under an mere internal administrative measure internal decision of 5 November 1980, has affecting Article 14, the conditions under power to adopt certain procedural measures which a fine may be imposed under provided for under Regulation No 17 on Article 15. behalf of the Commission and, in particular power to order an undertaking to submit to an investigation under Article 14(3). 160. That argument is not convincing. Article 15 adds nothing to the definition of the infringement which it is intended to 157. In its judgment of 23 September 1986 punish. The infringement consists of the in Case 5/85 AKZO v Commission [1986] failure on the part of an undertaking to ECR 2585, the Court considered in detail fulfil its obligation to submit to investi­ the lawfulness of such an authorization gations as defined in Article 14(1) and granted to a single Member of the specified in the decision adopted under Commission. It reached the conclusion that Article 14(3). Thus, both infringement and the penalty are defined by law and their substance is in no way affected by the dele­ gation of authority in question. 'the decision of 5 November 1980 autho­ rizing the Member of the Commission responsible for competition matters to adopt in the name of the Commission and subject to its control a decision under Article 14(3) 161. On the basis of the foregoing I may of Regulation No 17 ordering undertakings also reject the arguments put forward by the to submit to investigations does not breach Spanish companies alleging defects of form the principle of collegiate responsibility laid in the decisions. Since those decisions down in Article 17 of the Merger Treaty' remain Commission decisions even if they (paragraph 40). were adopted under the delegation of authority granted to one of its Members, the fact that they are presented as Commission decisions provides correct 158. That Member may therefore validly information as to the identity of the adopt such a decision but he does so on decision-making body.

162. Similarly, since the Court has already 165. Dow Benelux and the Spanish decided in AKZO, cited above, that the companies add that the Commission failed system of delegation of authority at issue to define the geographical limits of the here 'does not have the effect of divesting market at issue, to distinguish between the the Commission of powers conferring on PVC and polyethylene markets and, within the Member to whom authority is delegated the polyethylene market, between the powers to act in his own right' (paragraph markets for each of the three different types 36), they were in fact adopted under the of polyethylene, and to indicate whether the decision-making power granted to the alleged infringement is a horizontal Commission, regardless of the procedure agreement, a vertical agreement or both. followed and regardless of the fact that they were signed by a single Member of the Commission, in this case, the Member to whom authority had been delegated. 166. It should first be noted that Article 14(3) of Regulation No 17 itself defines the essential elements of the statement of reasons for a decision ordering an investi­ gation providing that the decision is to 163. Finally, the fact that the decisions 'specify the subject-matter and purpose of notified to the undertakings concerned end the investigation, appoint the date on which with the formula 'For the Commission, P. it is to begin and indicate the penalties Sutherland, Member of the Commission', provided for in Article 15(1)(c) and Article without actually bearing Mr Sutherland's 16(1)(d) and the right to have the decision signature cannot constitute a breach of an reviewed by the Court of Justice'. essential procedural requirement. The applicants could not in any circumstances fail to understand that they were decisions of the Commission, particularly since they 167. In National Panasonic, cited above, the were certified by the Commission's seal and Court considered that a decision similar to by the signature of its Secretary-General those at issue in this case contained a and were presented to the applicants by sufficient statement of the reasons on which Commission officials duly authorized to it was based because it fulfilled the implement the decisions. requirements of that provision ([1980] ECR 2033, 2059).

170. Generally, I consider that it is permissible to limit the requirements of a statement of reasons to those expressly 173. In this case, the contested decisions all provided for in Article 14(3), having regard indicate in their preamble the objective to the nature and purpose of the decisions which it is sought to achieve, namely 'to in question. permit the Commission to establish all the facts and to obtain complete information on the subject of agreements or practices' (fifth recital) which, if it is shown that they exist,

It is in particular because of that difference in nature that Article 19, concerning the hearing of the persons concerned and of third parties, does not 174. The business books and documents apply to decisions adopted under Article which the undertakings must produce and 1 14(3) and Article 11(5). 7 the oral explanations which they must provide are defined in terms of the subject- matter of the investigation thus described. The fact that they are not otherwise defined 172.

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179. All the applicants point out that the contested decisions do not indicate clearly the 'information' or 'evidence' on which the

178. The same is true in regard to EMP 19 — Judgment of 26 October 1983 in Case 107/82 AEG v which neither produces nor markets PVC or Commission [1983] ECR 3151, paragraph 49; sec also the judgment of 14 July 1972 in Case 48/69 ICI v Commission polyethylene, but is the majority shareholder [1972] ECR 619, paragraphs 132 and 133

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Commission based itself when ordering the Commission itself to assess whether the contested investigations. information before it justifies a measure of inquiry such as an investigation.

183. In its judgment in National Panasonic, cited above, the Court stated that the Commission's choice of one method of 186. That principle, as well as that of legal investigation rather than another depends certainty (end of point II.B.2.2 of the on the needs of the inquiry, having regard applications in Cases 97 to 99/87), is also to the special features of the case, and not not affected by the fact that the contested on the facts relied upon here by the decisions permitted the investigations to go applicant, such as the gravity of the beyond existing evidence or actual indi­ 20 cations; an investigation cannot be confined situation or extreme urgency. Applying the same reasoning, it is also for the to known evidence and indication but also serves to gather other information 20 — [1980] ECR 2033, paragraphs 28 to 30. concerning the presumed facts.

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187. If adequate information is not obtained the Court to permit the introduction into and the presume facts are not proved, the the pending proceedings of those facts, Commission must terminate the proceedings which it regarded as 'new' and as corro­ and if it does not do so, the Court may borating the submission alleging the absence declare void any decision finding, on the of any reasonable evidence or, in the alter­ basis of insufficient evidence, that an native, it asked the Court to accept new infringement has been committed. submissions, arising out of the said new facts, alleging an infringement of Articles 14 and 20 of Regulation No 17.

188. Dow Benelux raises a more funda­ mental objection when it argues that the evidence available to the Commission at the 192. Since, as a result of the Commission's time that it ordered the investigation had objections to the introduction of 'new' facts been unlawfully obtained and, therefore, or 'new' submissions, the Court decided on that that evidence was itself unlawful. 23 November 1988 to join the application to the substance of the case, it is first necessary to consider the admissibility of that application. V — The submission alleging that the infor­ mation on the basis of which the investi­ gation was ordered was obtained unlawfully

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resolve a 'preliminary' issue, thus being 197. Furthermore, Article 61 of the Rules of confined to objections or procedural issues. Procedure permits the Court to reopen the oral procedure. In an order of 3 December 1962,22it dismissed an application to reopen the oral procedure on the ground that the matters raised in support thereof were 195. With regard to Article 42(2), it should known before the date of the oral procedure be noted that the terms thereof do not to the party making the application for the permit account to be taken of matters of reopening of the said procedure 'which law or fact which came to light only after therefore had the time and opportunity to the end of the written procedure. Is it argue them at the hearing'. sufficient in such a case to permit the procedure to continue its normal course and accept that the applicant might apply later on the basis of Article 98 for revision of the 198. It follows from the foregoing that facts judgment terminating the proceedings? The likely to have a decisive influence on the reply to that question must be in the dispute at hand which could be raised negative because by virtue of Article 41 of during the written procedure may still be the Statute of the Court of Justice of the introduced at the oral procedure and in fact EEC, 'An application for revision of a they must be so introduced if an application judgment may be made to the Court only for new measures of inquiry or reopening of on discovery of a fact which is of such a the oral procedure is not to be inadmissible nature as to be a decisive factor, and which, or without foundation. when the judgment was given, was unknown to the Court and to the party claiming the revision'. Consequently, a decisive fact which came to light between 199. In order for such facts to be regarded the end of the written procedure and the as 'new', they do not necessarily have to delivery of the judgment cannot be relied have occurred after the end of the written upon, either before the delivery of the procedure, it is sufficient that the party judgment or after it. Such a lacuna is hardly relying upon them became aware of them compatible with the requirements of sound only at that time. 23

Commission never expressly denied that the 204. According to the applicant, by investigation of Dow Benelux was based, obtaining, in the context of an investigation inter alia, on information which it had into polypropylene, information which obtained during previous investigations of formed the basis of the decision ordering other undertakings relating to other the investigation in regard to PVC and products and other infringements, Dow polyethylene, the Commission went beyond Benelux became aware of that fact only in the subject-matter and purpose of the first July or August 1988, that is to say, after the investigation and thereby infringed Article end of the written procedure. 14(3) of Regulation No 17. By subsequently using that information for a purpose other than that for which the investigation in regard to polypropylene was ordered, namely, in the investgation concerning PVC 201. Dow Benelux was therefore entitled to and polyethylene, it also infringed Article put the new facts forward after the end of 20(1) of Regulation No 17, which provides: the written procedure and to draw legal 'Information acquired as a result of the consequences therefrom by alleging an application of Articles 11, 12, 13 and 14 infringement of Article 14(3) and Article shall be used only for the purpose of the 20(1) of Regulation No 17. relevant request or investigation'.

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placing such information in the files 209. However, Article 20(1) prohibits it submitted to the Commission's officials in from using evidence discovered by chance order to make it impossible to initiate during an investigation dealing with product proceedings in regard to those products. A concerning an agreement dealing with product B as a basis for directly addressing a statement of objections to all the under­ takings taking part in that agreement.

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212. (a) According to those companies, have participated in agreements or until the accession of Spain to the concerted practices or both which are Community, the Commission did not have subject to investigation. the power to carry out investigations into Spanish companies. After that date it could not therefore have such a power in regard to conduct and acts prior to accession. 216. I would add that the fact that they deal with facts arising prior to their adoption does not mean that decisions ordering inves­ tigations may be regarded as retroactive. By 213. The applicants do not contest the their very nature, they can deal only with Commission's power to punish conduct on facts which arose in the past, even if the their part prior to accession in so far as it conduct in question continues into the produced and is producing anti-competitive present. effects within the common market. In its judgment of 27 September 1988 in the 24 'wood pulp' cases, the Court confirmed that the competition rules in the Treaty apply to undertakings whose registered 217. There also is no infringement of Article offices are situated outside the Community 2(2) of the Treaty of Accession and Article 25 if they take part in concertation which has 2 of the Act of Accession, which provide the object and effect of restricting compe­ that the provisions of the original treaties tition within the common market (para­ and the acts adopted by the institutions of graphs 13 and 14). the Communities before accession are to apply from the date of accession, fixed at 1 January 1986.

220. In that regard, it should be noted that 222. (c) The Spanish applicants also allege the first two recitals in the preambles to the an infringement of the general principle of decisions ordering the investigations proportionality which requires that, in the addressed to three Spanish undertakings use exercise of its administrative powers, the the word 'evidence' twice where the Commission should not interfere with legal decisions addressed to Hoechst and Dow situations created for the purpose of Benelux speak of 'information'. In protection rights under national law save in particular, it is stated in Spanish that 'La so far as it is strictly necessary to do so. In Comision ha conseguido pruebas que this case, that general principle of indican la existencia de acuerdos ... ' ('The Community law should have caused the Commission has obtained evidence which Commission to interpret Article 14 of Regu­ indicated the existence of agreements ... ' ), lation No 17 in conformity with the Spanish whereas the decision addressed to Hoechst constitutional protection of fundamental refers to 'Informationen die den Verdacht rights. begründen, daß ... ' (information giving grounds to suspect that ... ' ). In the decision addressed to Dow Benelux, it is stated ' ... dat de Commissie informatie heeft ontvangen waaruit het bestaan kan worden 223. That submission must also be rejected. afgeleid van overeenkomsten ... ' ( ' ... that On the one hand, the validity of the Commission has received information Community measures may be assessed only on the basis of which it may be concluded in regard to Community law and not in that there are in existence agreements ... ' ). regard to any provision of national law, even a constitutional provision. Similarly, compliance with a general principle of Community law cannot be made to depend 221. Those differences in drafting are on concepts and rules drawn from national certainly to be regretted, but it can be seen law. very clearly from the following recitals in all the decisions that the Commission intended to refer only to the information which led it to suspect the existence of agreements or 224. On the other hand, it has been seen concerted practices and not to conclusive that the contested decisions are in evidence. Thus , the third recital in the conformity with Article 14(3) of Regulation preamble to the Spanish version of the No 17 and do not infringe the fundamental decision states: 'Si se prueba la existencia de right to the inviolability of the home. It tales acuerdos ... ello podría constituir una cannot therefore be considered that they go grave infracción ... ' ('If the existence of beyond what is necessary to achieve the such agreements can be proved ... it could legal objective they envisage. constitute a serious infringement ... ' ). The fourth recital refers to: 'Los acuerdos y prácticas concertadas de que se sospecha ... ' ('The suspected agreements and 225. (d) Finally, the Spanish applicants concerted practices ... ' ). The fifth recital allege an infringement of the principle of contains the same form of words and also non-discrimination by virtue of the fact that refers to ' ... las empresas sospechosas de other undertakings established in other

226. If that was indeed the case, the alleged discrimination would certainly not have been due to any act on the part of the Commission and could not therefore justify 231. The applications for the annulment of the annulment of a decision ordering an the Commission decisions ordering investi­ investigation adopted by the Commission. gation of 15 January 1987 brought by Hoechst AG, Dow Benelux NV , Dow Chemical Ibérica SA, Alcudia SA and 227. On the one hand, it has not been Empresa Nacional del Petróleo SA are shown that the Commission has itself ever therefore without foundation and must be sought a court order prior to an investi­ dismissed. gation in any other Member State. In regard to Hoechst, it expressly refused to do so and it was the Bundeskartellamt which applied to the national court. 232. The other claims made in Cases 85 and 97 to 99/87 to the effect, essentially, that the Court order the Commission to return 228. On the other hand, since there can be or destroy all the documents collected question of such an order only in cases during the investigations or certain of them where the undertaking concerned refuses to as well as the notes made on those submit to the investigation which has been occasions, or else prohibit the Commission ordered, any differences of treatment stem from using or revealing the information solely from differences in the situations obtained must be regarded as inadmissible created by the undertakings themselves. since the Court has no jurisdiction to make such an order in connection with a review of the legality of an act under Article 173 of 27 the Treaty. 229. Finally, if, in cases in which under­ takings object to investigations, they are none the less obliged to submit to them by virtue of the assistance afforded by the national authorities pursuant to Article 14(6) of Regulation No 17 and, in the absence of uniform procedures and rules, in accordance with national law, any ensuing disparities of treatment are merely a 233. All that remains is for me to state my reflection of the differences between the position on Hoecht's applications for the laws of the various Member States, and annulment of the decisions of 3 February such differences are not covered by Article 7 1987 and 26 May 1988 imposing a periodic of the Treaty and the principle of penalty payment under Article 16 of Regu­ non-discrimination. 26 lation No 17 and, in the alternative, for a reduction in the definitive amount so fixed. 26 — See, in particular, the judgment of 19 January 1988 in Case 233/86 Pesca Valentia v Minuter for Fisheries and Forestry, 27 — See, in particular, the judgment of 24 June 1986 in Case Ireland and the Attorney General [1988] ECR 83, 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 18. paragraph 23.

240. Article 16 deals with periodic penalty (c) without hearing the undertaking payments. Article 16(3) provides that concerned. 'Article 10(3) to (6) shall apply'. Those provisions deal with the procedure for consulting the Advisory Committee on Restrictive Practices and Dominant 237. In its reply to the question put to it by Positions, which is composed of represen­ the Court, Hoechst withdrew the objections tatives of the Member States. which it had made to the power of a single Member of the Commission to adopt decisions on periodic penalty payments. The delegation of authority granted by the internal decision of 5 November 1980 to the 241. Article 19(1) provides: 'Before taking Member of the Commission with responsi­ decisions provided for in Articles 2, 3, 6, 7, bility for competition does not extend to 8, 15 and 16, the Commission shall give the

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245. It may be wondered whether the Court 242. The applicant deduces from the fact did not actually intend to refer to Article that Article 16(3) and Article 19(1) of Regu­ 14(3) for Case 5/85 (AKZO) dealt with the lation No 17 do not distinguish between annulment of a decision adopted on the decisions imposing periodic penalty basis of that provision. In any event, the payments adopted on the basis of Article Court's finding is equally valid for Article 16(1) for the purpose of compelling under­ 14(3) since the Court has expressly decided takings, in particular, to submit to an inves­ that the Commission is not required to act tigation (subparagraph (d)) and those first under Article 14(2) before adopting a provided for in Article 16(2) fixing the decision on the basis of Article 14(3) definitive amount of the periodic penalty (judgment in National Panasonic [1980] payment once the undertakings have ECR 2055, paragraph 11). submitted to the investigation, that the Commission must consult the Advisory Committee and hear the persons concerned 246. However, a decision imposing a when it is adopting both of those decisions. periodic penalty payment under Article On the other hand, the Commission 16(1) is merely intended to compel an considers that it is required to follow those undertaking which objects to an investi­ procedures only in regard to one or other of gation to submit to it. It is associated, as it the decisions, but not both. were, with the decision ordering that inves­ tigation. Both the consultation of the Advisory Committee and the hearing of the persons concerned will, in the nature of things, relate not to the decision imposing 243. In my opinion, the Commission is not the periodic penalty payment but to the obliged to follow those procedures when it reasons which led the undertaking adopts the first of the said decisions for the concerned to refuse to submit to the investi­ following reasons. gation. To require that those procedures be 28 — Regulation on the hearings provided for in Article19(1) and (2) of Regulation No 17 of the Council (OJ, English 29 — Judgment of 23 September 1986 in Case 5/85 AKZO Special Edition 1963-64, p. 47). Chemie vCommission [1986] ECR 2585. paragraph 24

followed for the adoption of such a decision of the objections raised against them which would be to reintroduce by that means the Commission proposes to deal with in its something which Regulation No 17 does decisions'. However, a decision ordering an not prescribe for decisions ordering an investigation is a mere measure of investigation. preparatory inquiry. It is certainly a measure which produces legal effects and directly affects the legal position of the undertaking concerned by obliging it to submit to the 247. 2.

That is and the undertaking concerned had been precisely the point upon which the Court heard. If the undertaking was then obliged relied in its judgment in National Panasonic, to submit to an investigation, it would take cited above, to explain why the right to a place after a delay which would cause the hearing does not apply to the investigation Commission to lose the benefit of surprise procedure. It decided that that procedure and would probably deprive the investi 'does not aim at terminating an gation of all useful purpose, by reason of infringement or declaring that an the combined effect of the time-limits for agreement, decision or concerted practice is the consultation of the Advisory Committee, incompatible with Article 85; its sole which cannot meet earlier than 14 days after objective is to enable the Commission to dispatch of the notice convening it (Article gather the necessary information to check 10(5) of Regulation No 17) and the time- the actual existence and scope of a given limits for the communication of objections, factual and legal situation' ([1980] ECR under which the persons concerned are 2058, paragraph 21). allowed a minimum of two weeks to submit their written observations (Article 11(1) of Regulation No 99/63).

17. The third recital in the preamble to Regulation No 99/63 states expressly that, 30 — [1981] ECR 2639. In that judgment, the Court held: in accordance with that provision, as well as 'According to the consistent case-law of the Court, any measure the legal effects of which are binding on, and the rights of the defence, undertakings must capable of affecting the interests of, the applicant by have the right to submit their comments 'on bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under conclusion of the inquiry .

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255. Furthermore, measures adopted by the Community institutions are presumed to be VIII — The decision of 26 May 1988 fixing valid so long as the Court has not made a 31 the definitive amount of the periodic penalty finding that they are invalid. Thus, payment (Case 227/88) Hoechst cannot rely, as justification for its refusal to accept that the decisions ordering the investigation and imposing periodic 252. Since neither the decision ordering the 31 — See, in addition to the judgment of 13 February 1979 in investigation nor that imposing the periodic Case 101/78 Granaria v Hoofdproduktschap voor Akker- penalty payment is unlawful, Hoechst's bouwprodukten [1979] ECR 623, paragraph 4, cited by the Commission, the judgment of 1 April 1982 in Case 11/81 submissions alleging the nullity of those Dürbeck vCommission [1982] ECR 1251, paragraph 17

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penalty payments have full legal effect, on Order of 26 March 1987 that the two 'the superior interests of a preparatory decisions whose operation Hoechst was inquiry procedure in conformity with la-w­ seeking to have suspended, could not cause and the constitution', which it seeks to have it serious and irreparable damage and that respected and 'the difficult nature of the its main action afforded effective judicial legal questions raised, which have not yet protection of its interests. been resolved'. Hoechst has appointed itself judge rather than leaving to the Court the 256. The application for the reduction in the task of ensuring that the law is observed. It definitive amount of the periodic penalty persisted in that attitude even after the payment is therefore also without foun­ President of the Court had decided in his dation.