Chillin'Competition

The European Court of Justice rendered this morning its Judgments in the cement case, concerning the Commission’s decisions requesting information to companies with a view to finding enough evidence to establish an infringement. See Cases C-247/14 P HeidelbergCement/Comission, C-248/14 P Schwenk Zement/Comission, C-267/14 P Buzzi Unicem/Comission and C-268/14 P Italmobiliare/Commission.

The Judgments have annulled the General Court’s previous rulings as well as the Commission decisions. In that sense, they are a blow to the Commission, but not one as far reaching as the Commission feared one would have thought.

When the Commisison won in first instance, it issued this press release noting that “these judgments are important because they confirm the scope of the Commission’s powers to investigate suspected antitrust infringements” and that “the Court confirmed that it is for the Commission to decide what information it considers necessary to request from companies when investigating potential anticompetitive practices”.

Today, after having lost, the Commission’s spokesman has stated that “the implications of the judgments are likely to be confined to the present  case, as the ECJ pronounced itself only on the issue of reasoning”. In my view, this is only partly true.

Let me explain why:

As you might remember, I did represent one of the companies affected, and it is public that we were the only party that had access to the Commission’s file at the Court’s premises under a duty of confidentiality , so there are limits to what I can comment on. We were not a party to today’s Judgments because a number of companies decided not to appeal and others withdrew their appeals once it was known that the Commission would drop the case (which was made official on 31 July 2015; see here)

Most of my  (reportable) views on the case were already developed in two earlier posts, in which I commented on both the General Court’s Judgments (see here) and Advocate General Wahl’s Opinion (see here). I suggest you read those -particulaly the first one- again to become aware of the issues, and legal theories, at stake.

In those previous posts I wrote that the General Court had been excessively deferential and that Wahl’s Opinion was not as strict as it seemed, but rather quite reasonable, so I can’t say I’m surprised at what happened today.

Possibly with a view to minimizing the impact of the Judgment on future enforcement, the ECJ has chosen to focus only on the General Court’s failure to call foul on the insufficient statement of reasons vitiating the decisions (AG Wahl’s Opinion, e.g., raised this but also other issues). As you may remember, the General Court itself admitted that “the presumed infringements [were] set out in very general terms which might well have been more precise” but that were considered to have the minimum degree of clarity required.

The ECJ’s reasoning on this point is very sound and welcome (except perhaps for one aspect that is not entirely clear and that I will comment on in a second):

The Court’s reasoning is essentially that since the Commission did not clearly indicate the “subject of its investigation“/”alleged infringements“/”suspicions that it intends to investigate“, the parties and the Commission were not in a position to determine whether that information was “necessary” in the sense of Art 18 of Regulation 1/2003. In this sense, the crux of the case concerns the question of “what the information was necessary for”. Indeed, the ECJ states in para. 24 of the Heidelberg Judgment that “the necessity of the information must be judged in relation to the purpose stated in the request for information“.

But is that how necessity is to be assessed? The view that we posited to the General Court  is that the relevant question is slightly different and should look at “why the information is relevant“, and that this can only be assessed in the light of the evidence at the Commission’s disposal. 

The GC in fact did accept that idea in our Judgment (T-296/11, paras.38-40), and AG Wahl’s Opinion also endorsed it explicitly: “the criterion of “necessity” of information is to be assessed in the light of the indicia at the Commission’s disposal, and that “failing any concrete indicia constituting reasonable grounds for suspicion, the adoption of an [RFI] may be considered to be an arbitrary measure of investigation” (para. 73 of the Opinion) even if he observed that this had not been argued by the applicants in the cases before the ECJ.

In a way this is all implicit also in the ECJ’s Judgments from today (e.g. in para 27 of Heidelberg it states that the decisions should have “disclose[d], clearly and unequivocally, the suspicions of infringement which justify the adoption of that decision“). But admittedly its position on this particular point is not crystal clear.

Certainly the Cement request for information was a very extreme one [I suggested you to verify this by reading para. 56 of the Opinion, the Judgments also refer to it for that purpose], and certainly the Judgments are not relevant to that case anymore because it has already been closed. But are we sure that the implications of the Judgment are confined to this case?  In my view, that would not be the right interpretation.

Even if the ECJ has been deferential enough not to consider other possible grounds of appeal (like AG Wahl did regarding e.g. necessity, formats, time-limits, vagueness of questions, self-incrimination, etc) in order not to inflict further damage on the Commission, but the message is there. And just like the Commission interpreted the General Court’s Judgments as confirming that “is for the Commission to decide what information it considers necessary to request from companies”, it should now acknowledge that this statement may now have to be, at the very least, quite nuanced.

P.S. I’m going to Bruges in a couple of hours to present my firm to the students at the College of Europe. If anyone there reads this post til the bottom and comments on it before 19.30 they’ll get a well-deserved beer invite 😉