Chillin'Competition

You may have seen in the news today (Mlex also anticipated it a couple of weeks ago) that Facebook has appealed two European Commission requests for information (RFIs), and that it has now obtained an interim suspension from the President of the General Court (see here).

Neither myself nor my firm have any business interest in this case. I have no detailed information, and therefore no views, on whether Facebook’s appeals are well-founded or not, but I am most interested in the legal questions it raises:

As long-time readers of this blog may remember, some years ago we devoted a number of blog posts to the issue of the legal limits on RFIs. That was partly because I was the lawyer in one of the cases in the cement saga (where the RFI was ultimately annulled by the CJEU and the Commission’s investigation was subsequently closed). Whereas other cases in that saga focused on proportionality and insufficient reasoning, our case revolved around the notion of “‘necessity”. Together with then AG Wahl’s Opinions in Heidelberg and other parallel cases, that case still stands as the main precedent regarding the necessity criterion in Art. 18 of Regulation 1/2003.

In a nutshell, and as I have told Global Competition Review today, the Commission enjoys wide investigative powers and it is certainly entitled to use them in full to confirm any reasonable suspicions of an infringement. The Courts will not get in the way of the Commission gathering sufficient evidence to show a competition infringement, but they might well intervene if the information requested lacks a connection with the presumed infringement, or if the Commission does not have concrete indicia constituting reasonable grounds for suspicion.

In these particular cases, the General Court might have to verify (i) whether the information requested might reasonably help the Commission establish an infringement; (ii) whether there were sufficient safeguards in place to mitigate any privacy concerns linked to the use of broad search terms (the ones regularly used in inspections should generally also be sufficient here).

Facebook must surely know that winning on a “non-necessity” argument will not enable it to shield relevant evidence, so its move could well be motivated by concerns unrelated to the competition investigation.

For more details on the interpretation of the notion of “necessity” in RFIs you can check out our previous posts, available here, here and here. A few years ago I tried to summarize those and explain the legal issues at play in this presentation at the Brussels School of Competition:

Lamadrid_ The Cement Judgments and their impact on future RFIs

Whereas further clarity on the law will be nice to have, the timing of Facebook’s application is somewhat inconvenient; one of my summer plans is to finalize reviewing the proofs of the chapter on RFIs I have co-written for the upcoming edition of the procedural bible, and we will now have to fit this in…