C-94/00

The undertaking shall give the officials A — The Commission's decision authorised by the Commission to carry out the investigation, and the officials of the Member States assisting them, access to any premises, lands and means of transport 2. By decision of 10 September 1998, during normal office hours. The undertak- adopted pursuant to Article 14(3) of Regu- ing shall submit for inspection the books lation No 17/62 of the Council of 6 Feb- and other business records required by the ruary 1962, First Regulation implementing said officials; it shall allow them to inspect Articles 85 and 86 of the Treaty, 2 the its books and other business records at the Commission ordered Roquette to submit to places where these are to be found or to an investigation. take copies of or extracts from them. Furthermore, it shall immediately provide the said officials with any oral explanations 1 — Original language: French. they may request in connection with the 2 — OJ, English Special Edition, 1959-62, p. 87. subject-matter of the investigation.'

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4. The essential grounds of the decision, as ket, market prices and demand. They also they appear from its preamble, are as held talks on manufacturing capacity and follows: sales volumes. The contacts were aimed at controlling prices and, it appears, were such as to result in coordinating the partici- pants' behaviour on the market.

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5. The Commission made representations B — The applicable national law to the French Government, asking it to take the necessary steps to ensure that the assistance of the national authorities, as prescribed in Article 14(6) of Regulation No 17 in the event of the undertaking's 9. The Conseil Constitutionnel (Constitu- opposing an investigation, was provided. tional Council) (France) ruled, on 29 December 1983, that investigations on private premises could only be carried out in accordance with Article 66 of the French Constitution, which entrusts to the judici- ary the protection of individual liberty and, 6. Further to that request, the Direction in particular, of the inviolability of the Générale de la Concurrence, de la Con- home. It concluded on that basis that the sommation et de la Répression des Fraudes statutory provisions applicable in that con- (Directorate-General for Competition, nection must expressly entrust the compet- Consumer Affairs and the Punishment of ent court with the task of verifying Fraud, hereinafter 'the DGCCRF') whether, in the specific circumstances, the requested the competent decentralised application before it is justified. administrative departments to place them- selves at the disposal of the officials auth- orised by the Commission and also to submit an application to the President of the Tribunal de grande instance, Lille, for the authorisation required under French legislation to effect entry and seizure. 10. Subsequent to that decision, Order No 86-1243 of 1 December 1986 was adopted, relating to free pricing and free competition (hereinafter 'the Competition Order') which lays down the investigation procedures permitted in that field. 7. Such an application was lodged on 14 September 1998. The above-mentioned Commission decision and the text of the judgment in Hoechst v Commission,3 together with other documents, were attached to it. 11. Article 47 of the Competition Order provides:

13. The requirements of Articles 47 and 48 of the Competition Order have been made applicable to investigations decided on the basis of Article 14 of Regulation No 17. Article 56a of the Competition Order The judge must verify whether the request provides as follows: for authorisation before him is justified; the request must contain all such information as may justify the entry. 4He shall appoint one or more police officers ["officiers de police judicaire"] to assist in these oper- ations and to keep him informed of their '[F]or the implementation of Articles 85 to progress... 87 of the Treaty of Rome, the Minister of Finance and the officials appointed or empowered by him in accordance with 4 — Emphasis added. the provisions of this order, on the one

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hand, and the Competition Council, on the taking Roquette Frères SA, which it is not other hand, shall have the powers conferred for me to evaluate, such evaluation falling on them by Titles III, VI and VII of this within the jurisdiction of the Court of First order, in the case of the said Minister and Instance of the European Communities in officials, and by Title III, in the case of the Luxembourg; 5 Competition Council. The rules of pro- cedure laid down by the said provisions shall be applicable to them.'

Whereas the aforementioned Commission decision must accordingly be attached to 14. For the purpose of clarifying the inter- this order and form an integral part thereof; pretation given to the above-mentioned national provisions, Roquette, for its part, cites extracts from three judgments of the French Cour de cassation which confirm that the President of the Tribunal de grande instance must enable the Cour de cassation to review whether it has been verified that Whereas the information contained in the the application was justified. aforementioned Commission decision is such as to constitute the statement of reasons defined in Article 48 of the above- mentioned order [the Competition Order];...'

17. The order of the President of the Tribunal de grande instance, Lille, was served on 16 September 1998 and the investigation took place on 16 and 17 Sep- Whereas the manifestly confidential nature tember 1998. Roquette cooperated in the of the documents sought and the pressures investigation although it expressed reserva- which may be brought to bear on certain tions in respect of the taking of copies of a third parties are such as to justify the series of documents. exercise of the powers defined in Article 48 of the order of 1 December 1986;

vide him, whether there were reasonable Article 8 of the European Convention on grounds for suspecting the existence of Human Rights and Fundamental Freedoms anti-competitive practices such as to justify (hereinafter 'the Convention'). It observes, granting coercive powers. He could not in this connection, that, in its judgment of confine himself to taking his decision solely 16 December 1992 in Niemietz, the Euro- on the basis of the Commission's decision, pean Court of Human Rights nevertheless without satisfying himself that that decision subsequently held that that provision could was indeed taken on the basis of documents indeed apply to certain business activities submitted to the Commission's assessment. or premises. In a similar vein, the Cour de cassation lays particular stress on Article 6(2) EU which provides that the Union is to respect the fundamental rights as guaranteed by the European Court of 19. In the order for reference the Cour de Human Rights as general principles, and cassation, after referring to the abovemen- Article 46 EU which submits that provision tioned decision of the Cour Constitutio- to review by the Court of Justice. nelle of 29 December 1983, states that 'in the present case no information or evidence providing grounds for suspecting the exist- ence of anti-competitive practices was put before the President of the Tribunal de 21. The Cour de cassation goes on to point grande instance, Lille... so that it was out that in the judgment in Hoechst v impossible for him to verify whether, in Commission it is stated that the Commis- the specific circumstances, the application sion, when exercising its powers of inves- before him was justified' and that 'more- tigation, is required to respect the pro- over, the decision of the Commission... cedural rules laid down for that purpose by merely states that the Commission has national law. information to the effect that Roquette is engaging in anti-competitive practices on the market in sodium gluconate and glu- cono-delta-lactone, which it describes, without, however, referring, even briefly, in its analysis to the information which it 22. It was in those circumstances that, by claims to have and on which it bases its judgment of 7 March 2000, the Cour de assessment;...' cassation stayed proceedings and sought a preliminary ruling from the Court of Justice on the questions

legal order and to Article 8 of the II — Assessment European Convention for the Protec- tion of Human Rights, the judgment in Hoechst of 21 September 1989 must be interpreted as meaning that the national court, which has the power 23. It is important, first, to define the scope under national law, where a matter of the problem submitted to the Court by relating to competition is concerned, to the Cour de cassation of the French Repub- order entry upon premises and seizures lic. there by officers of the Administration, cannot refuse to grant the authori- sation requested where it considers that the information or evidence presented to it as providing grounds for suspect- ing the existence of anti-competitive practices on the part of the undertak- ings mentioned in the Commission's 24. In my view, it follows from the provi- decision ordering an investigation is sions of French law which I have just cited not sufficient to authorise such a meas- and from a reading of the order for ure or where, as in the present case, no reference that the two questions, taken information or evidence has been put together, raise the problem whether the before it; national court has the power to refuse to authorise an investigation (in practice equivalent to a search) when neither the text of the Commission decision nor the information or evidence put before it to supplement the decision is such as to establish, in the eyes of the court, the need for the investigation. The words 'to verify whether, in the specific circumstances, the 2. in the event that the Court of Justice application... is justified' in the second declines to accept that the Commission question leave no room for doubt in this is required to put before the competent respect. national court the evidence or infor- mation in its possession which gives rise to a suspicion of anti-competitive practices, the national court is, given the above-mentioned fundamental rights, none the less empowered to refuse to grant the application for entry 25. In paragraph 35 of the judgment in and seizure if it considers, as in the Hoechst v Commission, the Court stated present case, that the Commission that the competent body under national decision does not state sufficient rea- law, 'whether judicial or otherwise, can- sons and does not enable it to verify, in not... substitute its own assessment of the the specific circumstances, whether the need for the investigations ordered for that application before it is justified, of the Commission, the lawfulness of thereby making it impossible for it to whose assessments of fact and law is carry out the review required by its subject only to review by the Court of national constitutional law.' Justice.'

27. In this connection, the Cour de cas- sation puts forward two reasons. 30. Second, the Cour de cassation points out that, in paragraph 18 of its judgment in Hoechst v Commission, cited above, the Court of Justice held that Article 8 of the Convention was concerned with the deve- lopment of man's personal freedom and 28. While noting that fundamental rights could not therefore be extended to business have for a long time formed an integral part premises. Furthermore, the Court observed of the general principles of law, whose that there was still no case-law of the observance is ensured by the Court of European Court of Human Rights on that Justice, and that the Convention is, in that subject. respect, of particular significance, the Cour de cassation wonders whether the Conven- tion should be accorded even greater sig- nificance than in the past, following the adoption of Article 6(2) of the Treaty on European Union, which provides that the Union is to respect the fundamental rights as guaranteed by the Convention and as they result from the constitutional tradi- 31. Such case-law, however, the Cour de tions common to the Member States, as cassation points out, has now existed since general principles of Community law. the Niemietz judgment of 16 December Article 46(d) of that Treaty provides, fur- 1992 and other subsequent judgments. thermore, that the Court has jurisdiction to apply Article 6(2) with regard to action of the Community institutions. 6 — Case C-415/93 Bosman tind Others [1995] ECR I-4921.

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— whether such interference was in accordance with the law;

34. I would recall, first of all, that Article 8 of the Convention is worded as follows: — whether it had legitimate aims;

'1. Everyone has the right to respect for his private and family life, his home and his — whether it was necessary in a demo- correspondence. cratic society.

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1. The existence of an interference sional or business sphere does not necess- arily, or in every respect, deserve protection as extensive as that enjoyed by the private sphere. This could concern, in particular, 36. There can be no doubt that an inves- the requirements which must be met by the tigation carried out under Article 14(6) of act ordering the investigation, for example Regulation No 17 does indeed constitute an as regards the evidence which provides interference within the meaning of Article 8 grounds for suspecting the existence of an of the Convention. infringement of competition law.

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4. The interference must be necessary in a paragraph 55 of its judgment in Funke v democratic society France, 9expressed itself as follows:

41. In the case of agreements and concerted practices, the criteria to be adopted in that '[T]he Court has consistently held that the regard are clearly the 'economic well-being Contracting States have a certain margin of of the country' and the 'prevention of appreciation in assessing the need for an disorder'. interference, but it goes hand in hand with European supervision. The exceptions pro- vided for in paragraph 2 of Article 8 (art. 8-2) are to be interpreted narrowly (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, para. 42), and the need for them in a given 42. As the Court pointed out in its judg- case must be convincingly established.' ment in National Panasonic, 8 cited in paragraph 25 of Hoechst v Commission, the function of the relevant rules of Com- munity law is 'to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers.' 45. In that regard, it should be stressed that, within the Community, the necessity for an investigation — that is to say, whether or not the arguments put forward by the Commission to justify it are con- vincing — is, each time it is disputed, subject to the review by the Court of Justice 43. It may therefore be said that, in prin- (paragraph 35 of the judgment in Hoechst v ciple, investigations carried out under Commission). Regulation No 17 are 'necessary' within the meaning of Article 8 of the Convention.

49. That said, it still remains for me to examine in greater detail what is really at 47. Nevertheless, the fact that, at present, issue in the questions referred by the Cour the necessity for the search can only be de cassation, namely who is responsible for reviewed a posteriori does not seem to me carrying out the judicial review and, in to pose a problem from the point of view of particular, what must be the role of the the protection of fundamental rights, since national court in that process. the Court expressly acknowledges that results obtained on the basis of a warrant or decision which is subsequently declared unlawful cannot be used. I would observe, furthermore, that in France, too, a search may take place before the supreme judicial authority has ruled on its justification, since an appeal in cassation against an order B — The role of the national court in the authorising a search in the context of review process competition does not have suspensory effect.

50. According to Roquette,

48. In the light of all the foregoing con- 'applications emanating from the Commis- siderations, I come to the same conclusion sion for an order authorising entry and as the French and the United Kingdom seizure are not exempt from the French Governments, and also the Commission, national court's exercise of its power of which is that neither the amendments made review and assessment and... they must to the Treaty on European Union by the therefore comply with the requirements to Treaty of Amsterdam nor the judgments of produce specific documents or give a spe- the European Court of Human Rights cific explanation in order to be justified.

It also seems that this purely factual review carried out by the court does not affect either the exclusive jurisdiction of the 54. The principle that acts of the institu- Community courts or the effectiveness of tions can be annulled only by the Commu- the Commission's work. nity courts ( the Court of Justice or the Court of First Instance) is the sole principle that can ensure that those acts are judged in accordance with uniform criteria. That principle alone can prevent an act of the institutions from being declared unlawful Consequently, Roquette submits that the in one Member State but not in another. In court may refuse to make an order auth- that connection, it is sufficient to refer to orising entry and seizure where, as the the judgment in Foto-Frost,10 which has Cour de cassation pointed out was the been most opportunely cited by the United situation in the present case, "no infor- Kingdom Government and to which I had mation or evidence has been put before it"'. already referred in my Opinion in Hoechst v Commission.

51. What are we to make of this argument?

55. It is true that Roquette maintained at the hearing that it was not a question of annulling an act of the Commission but 52. Let me stress, at the outset, that I only of blocking its execution momentarily consider it essential, from the point of view pending the supply of further information of consistency in the implementation of by the Commission. The fact is, however, Community law, that the review of the that the Cour de cassation has very clearly necessity (or justification) for the investi- posed the problem in terms of an inad- gations remain within the jurisdiction of equate statement of reasons for the Com- the Court of Justice and that it should not be transferred to the courts or tribunals of the Member States. 10 — Case 314/85 Foto-Frost [1987] ECR 4199.

56. In any event, if one looks carefully at 58. For all those reasons, I therefore con- Roquette's observations, it seems undeni- clude that it is important to uphold resol- able that that undertaking is indeed utely the principle that the assessment of demanding that the national judge be the justification, that is to say, of the entitled to verify the need or the justifi- necessity, for the investigation cannot be a cation for the search. Merely by asking the matter for the national court. Commission for further information, he is making it clear, in fact, that the infor- mation initially contained in the decision or presented to him orally has not persuaded him that the search is necessary. When, some hours later or some weeks later (in the case of an amendment to the decision itself), further evidence is submitted to him and, on that basis he grants the auth- 59. That said, I have to say that I fully orisation, he is thereby indicating, at least understand the concerns of the Cour de implicitly, 'I am now convinced that the cassation, confronted with the national search is necessary'. But he could also state legislation cited above. That legislation that he is still not convinced. extends to the investigations carried out by the Commission the substantive and procedural provisions which are applicable when only French competition law is in point. It is perfectly normal that French law should provide that the judge who auth- orises a search must be convinced that it is justified and must have sufficient evidence before him for that purpose. The decision 57. Moreover, the mere fact of delaying the whether or not to authorise the search rests grant of the authorisation, if only for a few essentially with that judge, since the Cour hours, could have a devastating effect de cassation carries out a review on points where parallel searches have to take place of law only. The facts must therefore be in different undertakings in the same sector, properly ascertained by the President of the located in several Member States. In that Tribunal de grande instance and the Cour case, news of the searches taking place in de cassation must be in a position to judge the other Member States, on the date whether, in holding those facts to be initially specified, would quickly reach the sufficient, the President of the Tribunal de undertaking situated in the Member State grande instance erred in law.

65. The Commission concedes, however, that an absolute impossibility for the national court to review the statement of reasons for the decision ordering the inves- tigation seems hard to reconcile with the 61. Must it be concluded from all this that possibility, afforded to it by the judgment the sole task of the national court will be to in Hoechst v Commission, to assess the ascertain whether the decision before it possibly arbitrary or excessive nature of the does indeed emanate from the Commission measures envisaged. Such an assessment and whether the persons who wish to carry necessarily presupposes an analysis by the out the investigation have documents prov- national court of the subject-matter and ing that they have in fact been authorised purpose of the investigation, which, more- by the Commission to do so? over, the Commission points out, in fact comprise one of the essential constituents of the statement of reasons on which the Commission decision is based. 11

62. Like the French and United Kingdom Governments and the Commission, I con- 66. Nevertheless, the Commission submits sider that the role of the national court goes that the analysis of the statement of reasons a little beyond that, but that it does not go as far as Roquette and the other govern- ments which have submitted observations 11 — See Article 14(3) of Regulation No 17 and paragraph 40 of seem to think. the judgment in Hoechst v Commission.

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74. That statement of reasons could thus be broken down into three categories of 76. First, that government submits that it is information. First, information about the well established that the requirements of undertakings in question (name and national law — even national constitu- address of the undertaking, address of the tional law — cannot qualify or remove a

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duty arising under Community law and is an infringement of Article 85(1) of the must be disapplied to the extent that they Treaty. However, the Commission is not conflict with that duty. 13 obliged to produce documents, be they originals or copies, of an evidentiary nature or to disclose the identity of any inform- ants. However, the review by the national court must not become an empty shell for lack, for example, of any specific infor- mation regarding the basis for the Com- 77. Second, it also points out, as does the mission's suspicions. French Government, that Article 14(3) of Regulation No 17 itself lays down the essential constituents of the statement of the reasons upon which a decision ordering an investigation is based, amongst them the subject-matter and purpose of the investi- gation, and that the Commission is required, moreover, in the terms of paragraph 41 of the judgment in Hoechst 80. The Greek Government, for its part, v Commission, to indicate clearly the pre- states that if a decision ordering an inves- sumed facts which it intends to investigate. tigation does not mention the subject- matter and purpose and give sufficient indications to justify an investigation on the premises of an undertaking, and does not enable the national court to ascertain that all the safeguards provided by national law are respected, that court has the power 78. However, the review of the factual or to refuse to grant the requested authori- legal basis of a Commission decision sation. ordering an investigation is a matter for the Court of Justice.

82. The Norwegian Government which, expression 'prima facie justification' used like the German Government, confines by the Norwegian Government is judicious, itself to answering the first question but, unlike that government, I consider that referred for a preliminary ruling and which that justification must emerge from the therefore refers to all the information to be Commission's decision and from it alone. supplied by the Commission through its decision and as a supplement to it, con- tends that it is for the Commission to provide a prima facie justification, that is to say that the competent national court may require a minimum of information or 85. If it is desired to avoid sliding towards evidence to enable it to examine whether a situation in which the necessity for the the coercive measures envisaged are arbit- investigation is reviewed by the national rary or excessive in relation to the subject- court, that court must not be entitled to call matter of the investigation. for additional explanations. Its role must be limited, as the Commission states, 'exclus- ively to review for truly patent interferences with the rights of the undertakings con- cerned. What this amounts to is, in one form or another, review for "manifest error'". Elsewhere in it observations, the 83. That Government acknowledges, how- Commission states that the review con- ever, that unlawful anti-competitive prac- cerned is what in French law is called a tices are often engaged in by using methods 'minimum review'. which do not leave many traces. Requests to the Commission for information regard- ing the basis for the suspicions it harbours must not, therefore, be too exacting. The information available will normally only be indications of infringement of the compe- tition rules and that ought to be enough to 86. However, I should like to add the give rise to an investigation. It must be following further observation, which borne in mind that the very aim of the should meet, at least in part, the concerns investigations carried out on the premises of the German, Italian and Norwegian of undertakings is to gather evidence which Governments. I think, that, to the extent ordinarily will not be found. It would be to which the Commission is in a posi- illogical to require factual evidence to be tion — without disclosing its sources and submitted to the national reviewing auth- without causing harm to third parties — ority before an actual investigation has to provide indications concerning the evi- taken place. dence on which it relies, it must do so.

91. As the national court states in its second question that the Commission's decision 'does not state sufficient reasons... and does not enable [the national court] to verify whether, in the specific circum- 89. But it also contains an additional stances, the application before it is justi- element which did not have its counterpart fied...', we are entitled to assume that the in the decision at issue in the Hoechst Cour de cassation considers that the Com- judgment, 16 namely that 'the Commission mission should have inserted in its decision has information to the effect that the additional indications concerning the dates officers of the aforementioned undertaking or frequency of those meetings, and the held regular meetings with competitors, 17 reasons which led it to think that the during which shares of the... market were anti-competitive measures mentioned in allocated and minimum prices agreed...'. that decision were indeed discussed and probably adopted during those meetings.

93. On the other hand, if, as the Norwe- tions asked by the national court provided gian Government mentions, the Commis- that this could be done in absolute secrecy. sion had found the existence on the market However, as the Commission pointed out of virtually parallel price changes put into at the hearing, in France, at least, disclosure operation by all the manufacturers in the of the documents which were shown to the sector, or if the industries using the prod- judge cannot be refused to the parties ucts in question had, as was the case in during the proceedings in cassation. Fur- regard to the cartel in the cartonboard thermore, I think it can be inferred from the sector, lodged with the Commission a judgments of the Cour de cassation that, in complaint which they themselves pub- his order, the President of the Tribunal de licised in the press, there would obviously grande instance must summarise all the oral be no reason why the Commission should statements made before him which helped not take note of this in its decision. to justify, in his eyes, the grant of auth- However, that occurs only in exceptional orisation to carry out a search. cases.

97. Let us now turn to the second aspect of 94. I therefore firmly adhere to the view the role of the national court, namely, that, in the text of its decision, the Com- review of the investigation procedure itself. mission must, indeed, clearly indicate the presumed facts which it intends to investi- gate, but that it has to back them up them with evidence only to the extent to which the citation of that evidence does not reveal 98. In support of its argument, Roquette the Commission's sources of information lays great stress on two passages from or cause harm to third parties. paragraph 35 of the judgment in Hoechst v Commission, which are formulated as fol- lows:

straint envisaged are arbitrary or excessive decision. Those guarantees may also having regard to the subject-matter of the include specifying the precise addresses of investigation and to ensure that the rules of the various premises of the undertaking on national law are complied with in the which the investigation is to be carried out, application of those measures.' the date and time on which it will take place, the identity of the Commission's officials and the national officials who will carry it out and other practical details of that order which might be required under

. . procedural does not cause a delay which might be used guarantees laid down by national law.' for destroying evidence) and that the employees have the right not to make statements or give answers which may incriminate the undertaking. 100. By 'procedural guarantees' the Court was clearly referring to the national rules designating the competent court and the form in which that court must adopt its 102. To sum up, it is for the national court to ensure that physical coercive measures are not used when the attitude of the 20 — Translator's note: The passage in Hoechst v Commission, officers of the undertaking does not war- to which the Advocate General refers, and from which he cites in the French text, in inverted commas, the word rant it, and, generally, to ensure that the 'éléments', reads 'tous les éléments nécessaires pour' (literally, in English, in the context in question, 'all the investigation is carried out in accordance information that it needs to'). In the LCR this is contracted to 'all that it needs to', the French word 'éléments' not with the rules in force in the State in heing specifically rendered. question.

— may not refuse to grant the requested authorisation unless the subject-matter and purpose of the investigation are not indicated in the Commission's decision or are described in a manner which is manifestly too imprecise to enable the court to carry out the review of proportionality with which it is entrusted.

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