Contents
Judgment of the Court (First Chamber)9 March 2023note(Appeal — Competition — Agreements, decisions and concerted practices — Decision of the European Commission ordering an inspection — Remedies against the conduct of the inspection — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy — Regulation (EC) No 1/2003 — Article 19 — Regulation (EC) No 773/2004 — Article 3 — Recording of interviews conducted by the Commission during its investigations — Starting point of the Commission’s investigation)In Case C‑690/20 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 December 2020,Casino, Guichard-Perrachon SA, established in Saint-Étienne (France),Achats Marchandises Casino SAS (AMC), established in Vitry-sur-Seine (France),represented by G. Aubron, Y. Boubacir, O. de Juvigny, I. Simic and A. Sunderland, avocats,the other parties to the proceedings being:European Commission, represented by P. Berghe, A. Cleenewerck de Crayencour, A. Dawes and I.V. Rogalski, acting as Agents,Council of the European Union, represented by A.‑L. Meyer and O. Segnana, acting as Agents,THE COURT (First Chamber),composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen, Vice-President of the Court, acting as Judge of the First Chamber, P.G. Xuereb (Rapporteur), A. Kumin and I. Ziemele, Judges,Advocate General: G. Pitruzzella,Registrar: V. Giacobbo, Administrator,having regard to the written procedure and further to the hearing on 24 February 2022,after hearing the Opinion of the Advocate General at the sitting on 14 July 2022,gives the following
Judgment
1By their appeal, Casino, Guichard-Perrachon SA (‘Casino’) and Achats Marchandises Casino SAS (AMC) seek to have set aside in part the judgment of the General Court of the European Union of 5 October 2020, Casino, Guichard-Perrachon and AMC v Commission (T‑249/17, EU:T:2020:458; ‘the judgment under appeal’), by which that court dismissed in part their action under Article 263 TFEU seeking annulment of Commission Decision C(2017) 1054 final of 9 February 2017 ordering Casino and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1) (‘the decision at issue’).
Legal context
Regulation (EC) No 1/2003
2Recital 25 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) states:‘The detection of infringements of the competition rules is growing ever more difficult, and, in order to protect competition effectively, the [European] Commission’s powers of investigation need to be supplemented. The Commission should in particular be empowered to interview any persons who may be in possession of useful information and to record the statements made. In the course of an inspection, officials authorised by the Commission should be empowered to affix seals for the period of time necessary for the inspection. Seals should normally not be affixed for more than 72 hours. Officials authorised by the Commission should also be empowered to ask for any information relevant to the subject matter and purpose of the inspection.’
3Chapter V, entitled ‘Powers of investigation’, includes Article 17 of that regulation, itself entitled ‘Investigations into sectors of the economy and into types of agreements’, paragraph 1 of which states:‘Where the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market, the Commission may conduct its inquiry into a particular sector of the economy or into a particular type of agreements across various sectors. In the course of that inquiry, the Commission may request the undertakings or associations of undertakings concerned to supply the information necessary for giving effect to Articles [101] and [102 TFEU] and may carry out any inspections necessary for that purpose.’
4Article 19 of that regulation, entitled ‘Power to take statements’, provides:1. In order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation.2. Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Commission shall inform the competition authority of the Member State in whose territory the interview takes place. If so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.’
5Article 20 of that regulation, entitled ‘The Commission’s powers of inspection’, provides:1. In order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.2.The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:(a) to enter any premises, land and means of transport of undertakings and associations of undertakings;(b) to examine the books and other records related to the business, irrespective of the medium on which they are stored;(c) to take or obtain in any form copies of or extracts from such books or records;(d) to seal any business premises and books or records for the period and to the extent necessary for the inspection;(e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers.3. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the penalties provided for in Article 23 in case the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraph 2 of the present Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the competition authority of the Member State in whose territory it is to be conducted.4. Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice [of the European Union]. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.5. Officials of as well as those authorised or appointed by the competition authority of the Member State in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers specified in paragraph 2.6. Where the officials and other accompanying persons authorised by the Commission find that an undertaking opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting where appropriate the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.7. If the assistance provided for in paragraph 6 requires authorisation from a judicial authority according to national rules, such authorisation shall be applied for. Authorisation may also be applied for as a precautionary measure.8. Where authorisation as referred to in paragraph 7 is applied for, the national judicial authority shall control that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the Member State competition authority, for detailed explanations in particular on the grounds the Commission has for suspecting infringement of Articles [101] and [102 TFEU], as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity for the inspection nor demand that it be provided with the information in the Commission’s file. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.’
6Article 23 of Regulation No 1/2003, entitled ‘Fines’, provides in paragraph 1:‘The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where, intentionally or negligently:…(c) they produce the required books or other records related to the business in incomplete form during inspections under Article 20 or refuse to submit to inspections ordered by a decision adopted pursuant to Article 20(4);(d) in response to a question asked in accordance with Article 20(2)(e),– they give an incorrect or misleading answer,– they fail to rectify within a time limit set by the Commission an incorrect, incomplete or misleading answer given by a member of staff, or– they fail or refuse to provide a complete answer on facts relating to the subject matter and purpose of an inspection ordered by a decision adopted pursuant to Article 20(4);(e) seals affixed in accordance with Article 20(2)(d) by officials or other accompanying persons authorised by the Commission have been broken.’
Regulation (EC) No 773/2004
7Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), entitled ‘Initiation of proceedings’, provides in paragraph 3:‘The Commission may exercise its powers of investigation pursuant to Chapter V of Regulation … No 1/2003 before initiating proceedings.’
8Chapter III, entitled ‘Investigations by the Commission’, includes Article 3 of Regulation No 773/2004, itself entitled ‘Power to take statements’, which provides:1. Where the Commission interviews a person with his consent in accordance with Article 19 of Regulation … No 1/2003, it shall, at the beginning of the interview, state the legal basis and the purpose of the interview, and recall its voluntary nature. It shall also inform the person interviewed of its intention to make a record of the interview.2. The interview may be conducted by any means including by telephone or electronic means.3. The Commission may record the statements made by the persons interviewed in any form. A copy of any recording shall be made available to the person interviewed for approval. Where necessary, the Commission shall set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.’
Background to the dispute and the decision at issue
9The background to the dispute was summarised as follows in paragraphs 2 to 8 of the judgment under appeal:‘2. [Casino], the first applicant …, is the parent company of the Casino group, which is active, inter alia, in France, mainly in the food and non-food distribution sector. Its subsidiary, Achats Marchandises Casino SAS (AMC), formerly EMC Distribution, the second applicant, is a referencing centre which negotiates purchasing conditions with suppliers to the Casino group’s retail chains in France.3. Having received information about exchanges of information between the first applicant and other undertakings or associations of undertakings, in particular Intermarché, a company also active in the food and non-food distribution sector, the European Commission … adopted [the decision at issue].4. The operative part of the [decision at issue] reads as follows:“Article 1Casino …, and all companies directly or indirectly controlled by it, are required to submit to an inspection in relation to their possible participation in concerted practices contrary to Article 101 [TFEU] in the markets for the supply of fast-moving consumer goods, in the market for the sale of services to manufacturers of branded goods and in the markets for consumer sales of fast-moving consumer goods. Those concerted practices consist in:(a) exchanges of information, since 2015, between undertakings and/or associations of undertakings, in particular [International Casino Dia Corporation (ICDC)] …, and/or its members, in particular Casino and AgeCore and/or its members, in particular Intermarché, concerning discounts obtained by them in the markets for the supply of fast-moving consumer goods in the food products, hygiene products and cleaning products sectors and prices in the market for the sale of services to manufacturers of branded products in the food products, hygiene products and maintenance products sectors, in several Member States of the European Union, particularly in France, and(b) exchanges of information, since at least 2016, between Casino and Intermarché concerning their future business strategies, particularly in terms of product range, development of shops, e-commerce and advertising policy in the markets for the supply of fast-moving consumer goods and in the markets for consumer sales of fast-moving consumer goods, in France.The inspection may take place in any of the undertaking’s premises …Casino shall grant the officials and other persons authorised by the Commission to conduct an inspection and the officials and other persons authorised by the Competition Authority of the Member State concerned to assist them or appointed by that Member State for that purpose access to all of its premises and means of transport during normal office hours. It shall make available for inspection the books and any other business document, irrespective of the medium on which they are stored, if the officials and other authorised persons so request and shall allow them to examine those books and documents in situ and to take or obtain copies or extracts from those books or documents in any form whatsoever. It shall permit seals to be placed on all the business premises or books or documents throughout the inspection period in so far as that is necessary for the purposes of the inspection. It shall give oral explanations immediately and in situ on the subject matter and the aim of the inspection if those officials or persons so request and shall authorise any representative or member of the staff to provide such explanations. It shall permit those explanations to be recorded in any form whatsoever.Article 2The inspection may commence on 20 February 2017 or shortly thereafter.Article 3Casino and all companies directly or indirectly controlled by it are the addressees of the present decision.This decision shall be notified, just before the inspection, to the undertaking to which it is addressed, pursuant to Article 297(2) [TFEU].”5. Having been informed of that inspection by the Commission, the Autorité de la concurrence (Competition Authority, France) made application to the judges of liberty and detention of the tribunaux de grande instance (Regional Courts) of Créteil (France) and of Paris (France) for authorisation to carry out the visit and seizure operations at the applicants’ premises. By orders of 17 February 2017, those judges of liberty and detention authorised the visits and seizures requested as a precautionary measure. As none of the measures taken during the inspection required the use of “enforcement authorities” for the purposes of Article 20(6) to (8) of Regulation No 1/2003, those orders were not notified to the applicants.6. The inspection commenced on 20 February 2017, when the Commission’s inspectors, accompanied by representatives of the French Competition Authority, attended the Paris headquarters of the Casino group and the second applicant’s premises and notified the [decision at issue] to the applicants.7. In the course of the inspection, the Commission, inter alia, visited offices, collected material, in particular computer equipment (portable computers, mobile phones, tablets, storage devices), interviewed several individuals and copied the contents of the material collected.8. The applicants each wrote to the Commission on 24 February 2017, expressing reservations as to the [decision at issue] and the conduct of the inspection carried out on the basis thereof.’
The procedure before the General Court and the judgment under appeal
10By application lodged at the Registry of the General Court on 28 April 2017, the appellants brought an action under Article 263 TFEU for annulment of the decision at issue. The appellants relied, in essence, on three pleas in law in support of their action. The first plea alleged the illegality of Article 20 of Regulation No 1/2003; the second alleged breach of the obligation to state reasons; and the third alleged breach of the right to the inviolability of the home.
11By way of measures of organisation of procedure, the General Court requested the Commission to produce indicia of presumed infringements which it had in its possession on the date of the decision at issue.
12In response to that request, the Commission produced inter alia minutes of interviews held in 2016 and 2017 with 13 suppliers of the fast-moving consumer goods concerned which regularly entered into agreements with Casino and Intermarché (Annexes Q.1 to Q.13 to the Commission’s response of 10 January 2019) (‘the interviews with suppliers’).
13By the judgment under appeal, the General Court, having found that the Commission did not possess sufficiently serious indicia to suspect the existence of an infringement consisting of exchanges of information between Casino and Intermarché concerning their future business strategies, annulled Article 1(b) of the decision at issue and dismissed the action as to the remainder.
Forms of order sought
14By their appeal, the appellants claim that the Court should:– set aside point 2 of the operative part of the judgment under appeal;– grant the form of order sought by them at first instance and, accordingly, annul the decision at issue; and– order the Commission to pay the costs of the present appeal and those of the proceedings before the General Court.
15The Commission contends that the Court should:– dismiss the appeal; and– order the appellants to pay the costs.
16The Council of the European Union contends that the Court should:– dismiss the appeal inasmuch as the appellants complain that the General Court erred in law in holding that the fundamental right to an effective remedy did not require there to be an autonomous and immediate remedy against the conduct of the inspections; and– order the appellants to pay the costs of the appeal.
The appeal
17The appellants put forward four grounds of appeal in support of their appeal. The first ground of appeal alleges an error of law in that the General Court held that oral statements obtained by the Commission did not need to be recorded in order to serve as indicia justifying the decision at issue. The second and third grounds of appeal allege errors of law in that the General Court held that the fundamental right to the inviolability of the home did not require the decision at issue to place a temporal limit on the exercise of the Commission’s powers of inspection or to place limits on the persons and the premises that may be inspected. The fourth ground of appeal alleges an error of law in that the General Court held that the fundamental right to an effective remedy did not require there to be an autonomous and immediate remedy against the conduct of the inspections.
18Since the fourth ground of appeal seeks to challenge the legal basis of the decision at issue, the Court deems it appropriate to examine it in the first place.
The fourth ground of appeal, alleging error of law committed by the General Court in holding that the fundamental right to an effective remedy did not require there to be an autonomous and immediate remedy against the conduct of the inspections
Arguments of the parties
19The appellants dispute, in particular, paragraphs 51, 55 and 69 of the judgment under appeal.
20As a preliminary point, the appellants recall that, before the General Court, they argued that the provision on which the decision at issue was based – namely Article 20 of Regulation No 1/2003 – infringed Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in that it did not enable an effective remedy to be brought against the measures taken in the context of an inspection. They submit that, contrary to the requirements resulting, in particular, from the judgments of the European Court of Human Rights of 21 February 2008, Ravon and Others v. France (CE:ECHR:2008:0221JUD001849703, § 28); of 21 December 2010, Compagnie des gaz de pétrole Primagaz v. France (CE:ECHR:2010:1221JUD002961308, § 36 et seq.); and of 21 December 2010, Société Canal Plus and Others v. France (CE:ECHR:2010:1221JUD002940808, § 24 et seq.), no autonomous and immediate remedy against those measures is provided for in Regulation No 1/2003, which provides only, in Article 20(4) thereof, for an action against the inspection decision.
21By their first complaint, the appellants submit that, contrary to what the General Court held, in paragraphs 51 and 55 of the judgment under appeal, the case-law of the European Court of Human Rights does not provide that several remedies may be assessed as a whole for the purpose of satisfying the requirements of an effective remedy.
22By their second complaint, the appellants submit, in the alternative, that the General Court could not hold, without making an error of law, that all the legal remedies which it examined are, taken as a whole, equivalent to an effective remedy, since it does not identify any immediate remedy for challenging the seizure of documents falling outside the scope of the inspection. In order to be able to challenge the measures taken in the course of inspection operations, the undertaking subject to the inspection must wait for a final decision closing the procedure under Article 101 TFEU in order to do so. Such a remedy was, moreover, considered insufficient by the European Court of Human Rights in its judgments of 21 December 2010, Compagnie des gaz de pétrole Primagaz v. France (CE:ECHR:2010:1221JUD002961308, § 28), and of 21 December 2010, Société Canal Plus and Others v. France (CE:ECHR:2010:1221JUD002940808, § 40).
23The Commission and the Council dispute the appellants’ arguments.
Findings of the Court
24As a preliminary point, it should be noted that paragraphs 51, 55 and 69 of the judgment under appeal, which the appellants dispute in the context of the fourth ground of appeal, form part of the grounds on which the General Court rejected the plea of illegality of Article 20(4) of Regulation No 1/2003, alleging infringement of the right to an effective remedy on account of the lack of a remedy against the measures taken in the context of an inspection.
25More specifically, in paragraphs 46 to 50 of the judgment under appeal, the General Court first of all observed that the right to an effective remedy is enshrined in Article 47 of the Charter and in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). After observing that the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into the EU legal order, so that the review of legality must be carried out solely in the light of the fundamental rights guaranteed by the Charter, it pointed out that it follows both from Article 52 of the Charter and from the explanations relating to that article that the provisions of the ECHR and the case-law of the European Court of Human Rights relating to those provisions must be taken into account when interpreting and applying the provisions of the Charter in a given case.
26It held in that regard that, according to the case-law of the European Court of Human Rights, observance of the right to an effective remedy must be examined, in relation to inspections of private premises, in the light of the following four conditions: first, there must be effective judicial review, in fact and in law, of the lawfulness of the decision to carry out such inspections or of the measures taken in the context of those inspections; second, the remedy or remedies available must make it possible, in the event of an irregularity being found, either to prevent the operation from occurring or, in the event that an irregular operation has already taken place, to provide the person concerned with appropriate relief; third, the availability of the action concerned must be certain; and, fourth, judicial review must take place within a reasonable time.
27The General Court then observed, in paragraph 51 of the judgment under appeal, that it was also apparent from that case-law that the conduct of an inspection operation had to be amenable to effective judicial review and that the review had to be effective in the particular circumstances of the case in question, which involved taking into account all the legal remedies available to an undertaking under inspection and thus an overall analysis of those legal remedies. In paragraphs 54 and 55 of the judgment under appeal, the General Court held that, since verification of observance of the right to an effective remedy must be based on an overall analysis of the legal remedies capable of giving rise to a review of the measures taken in the context of an inspection, it was irrelevant that each of the legal remedies examined did not individually satisfy the conditions required for the existence of a right to an effective remedy to be accepted.
28In that context, the General Court further stated, in paragraphs 57 and 58 of the judgment under appeal, that, in addition to the possibility of making requests to the Commission’s hearing officer, there were six legal remedies enabling challenges relating to an inspection operation to be brought before the EU judicature, namely an action challenging the inspection decision; an action challenging the Commission’s decision penalising obstruction of the inspection on the basis of Article 23(1)(c) to (e) of Regulation No 1/2003; an action challenging any act satisfying the conditions laid down in the case-law to be a challengeable act adopted by the Commission following the inspection decision and in the course of the inspection operations, such as a decision rejecting a request for legal professional privilege; an action against the decision closing the procedure initiated under Article 101 TFEU; an action for interim measures; and an action for non-contractual damages.
29In paragraphs 58 to 66 of the judgment under appeal, the General Court explained how it considered that those legal remedies allowed challenges to the conduct of inspections to be brought before the EU judicature.
30Lastly, the General Court held, following an analysis carried out in paragraphs 67 to 80 of the judgment under appeal, that the system for reviewing the conduct of inspection operations comprising all the legal remedies listed in paragraph 28 of the present judgment could be regarded as satisfying the four conditions stemming from the case-law of the European Court of Human Rights.
31Thus, in paragraph 81 of the judgment under appeal, the General Court rejected the plea of illegality of Article 20(4) of Regulation No 1/2003, based on infringement of the right to an effective remedy.
32As regards the first complaint, alleging that the General Court was wrong to have carried out an overall examination of the various remedies in order to ascertain whether the right to an effective remedy against the measures taken in the context of an inspection is safeguarded, it must be borne in mind that the right to an effective remedy is enshrined in Article 47 of the Charter.
33It must also be borne in mind that Article 52(3) of the Charter provides that, in so far as the Charter contains rights which correspond to those guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 116).
34As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 117). According to the case-law of the European Court of Human Rights, Article 6(1) of the ECHR constitutes a lex specialis in relation to Article 13 of that convention, since the requirements of the latter are included in the stricter requirements of the former (European Court of Human Rights, 15 March 2022, Grzęda v. Poland, CE:ECHR:2022:0315JUD004357218, § 352 and the case-law cited).
35The Court has also held that it must ensure that its interpretation of the first paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 13 of the ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgment of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal), C‑175/17, EU:C:2018:776, paragraph 35).
36In that context, it should be noted that it is apparent from the case-law of the European Court of Human Rights that the protection afforded by Article 13 of the ECHR does not go so far as to require any particular form of remedy (European Court of Human Rights, 20 March 2008, Boudaïeva and Others v. Russia, CE:ECHR:2008:0320JUD001533902, § 190) and that, even if no remedy offered by domestic law by itself satisfies the requirements of Article 13 of the ECHR, the aggregate of remedies provided for under domestic law may do so (European Court of Human Rights, 10 July 2020, Mugemangango v. Belgium, CE:ECHR:2020:0710JUD000031015, § 131 and the case-law cited).
37Furthermore, in the event of an infringement of the right to respect for the home, enshrined in Article 8 of the ECHR, a remedy is effective, within the meaning of Article 13 of the ECHR, if the applicant has access to a procedure enabling them to contest the lawfulness of the searches and seizures and obtain appropriate redress if they were unlawfully ordered or executed (European Court of Human Rights, 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, § 84).
38In that regard, it is apparent from the case-law of the European Court of Human Rights relating to Article 6(1) or Article 8 of the ECHR that, in relation to inspections of private premises, the failure by a judge to grant prior authorisation for inspection, who could have circumscribed or reviewed the conduct of that inspection, may be counterbalanced by ex post facto judicial review of the legality and necessity of such a measure of inquiry, provided that that review is effective in the particular circumstances of the case in question. This means that the persons concerned must be able to obtain effective judicial review, both in fact and in law, of the measure at issue and its conduct; where an operation found to be irregular has already taken place, the remedy or remedies available must provide the person concerned with appropriate redress (European Court of Human Rights, 2 October 2014, Delta Pekárny a.s. v. The Czech Republic, CE:ECHR:2014:1002JUD000009711, § 86 and § 87 and the case-law cited).
39Thus, since ex post judicial review of the inspection may, under certain conditions, counterbalance the absence of prior judicial review and appropriate redress must be provided by ‘the remedy or remedies available’, it must be held that, in principle, account should be taken of all the remedies available in order to determine whether the requirements of Article 47 of the Charter are met.
40Furthermore, since the appellants alleged, by means of an objection, the illegality of Article 20 of Regulation No 1/2003, the General Court, as the Advocate General observed in point 51 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), was required, in order to rule on that objection, to carry out an overall assessment of the system of judicial review of the measures taken in the context of inspections, going beyond the particular circumstances of the case in question.
41In those circumstances, it must be held that the appellants are wrong to claim that the General Court erred in law by carrying out an overall analysis of all the legal remedies available to challenge the conduct of the inspections.
42The first complaint must accordingly be rejected.
43As regards the second complaint that the General Court erred in law in failing to identify any immediate remedy making it possible to challenge the seizure of documents falling outside the scope of the inspection, it must be stated that, as is apparent from paragraph 69 of the judgment under appeal, which is disputed by the appellants, that line of argument concerns a situation in which the inspection concerned, in the context of which documents falling outside the scope of the inspection could be seized, would result not in a decision finding an infringement and imposing a penalty, but in the opening of a new investigation and the adoption of a new inspection decision.
44It should be noted in that regard that, in paragraph 69 of that judgment, the General Court referred to the various legal remedies which it examined in paragraphs 57 to 66 of the judgment under appeal. It found, inter alia in paragraph 59 of that judgment, that the undertakings inspected could bring an action for annulment of a new inspection decision and therefore challenge the legality of the indicia on which that decision was based on the ground that they had been improperly obtained during the previous inspection.
45Furthermore, as regards the immediate remedies for challenging the measures taken pursuant to an inspection decision, it should be noted that the General Court was entirely correct to hold, in essence, in paragraphs 56 and 57 of the judgment under appeal, that those undertakings have the possibility of bringing an action challenging any act adopted by the Commission following an inspection decision, including in the course of the inspection operations, provided that that act is challengeable through such an action in view of the conditions laid down in the case-law.
46It must therefore be held that the second complaint is based on a misreading of the judgment under appeal, in particular paragraphs 55 to 69 of that judgment, and must therefore be rejected. Therefore, the fourth ground of appeal must be rejected in its entirety.
The first ground of appeal, alleging error of law by the General Court in holding that oral statements obtained by the Commission did not need to be recorded in order to serve as indicia justifying the decision at issue
Arguments of the parties
47By the first ground of appeal, alleging infringement of Article 7 of the Charter, as well as infringement of Article 19 of Regulation No 1/2003 and of Article 3 of Regulation No 773/2004, the appellants dispute, in particular, paragraphs 183 to 198 of the judgment under appeal.
48That ground of appeal is divided in two parts.
49By the first part, the appellants submit that the General Court infringed the fundamental right to the inviolability of the home, enshrined in Article 7 of the Charter, in holding that minutes of oral statements drawn up unilaterally by the Commission constituted valid proof of the existence of indicia justifying an inspection.
50They maintain that the Court’s case-law requires, in particular, that, ruling on an action against an inspection decision, the General Court ensures that that decision is not arbitrary and ascertains for that purpose that it has not been adopted in the absence of any circumstance of fact capable of justifying an inspection. The case-law of the European Court of Human Rights also requires that the justification of a visit to private premises be reviewed in a particularly efficient and specific manner where, as in the present case, the authority may decide by itself on such a measure. In this case, the General Court failed to carry out any effective judicial review of the risk of arbitrary intervention by the Commission by accepting that the Commission may itself provide proof of the indicia in its possession.
51In the appellants’ submission, only a recording, by whatever means, makes it possible to confirm the content of oral statements and the reliability of their transcription and, consequently, to present the characteristics of proof which is capable of being reviewed by the court, as is apparent from the case-law of the General Court.
52The appellants argue that the obligation to record oral statements cannot be called into question by the distinction made by the General Court between the indicia required at the stage of an inspection decision and the evidence of the infringement required for the adoption of a decision imposing a penalty. In the appellants’ submission, that distinction, which concerns the standard of proof required, has no bearing on the form that an element must take in order validly to be taken into account, whether it be indicia or evidence of an infringement.
53In holding that the inspection decision can be justified solely on the basis of minutes drawn up by the Commission the wording of which is corroborated neither by a third party nor by a recording, the General Court opened the possibility for the Commission itself to provide proof of its allegations. The General Court thus failed to carry out any effective review and deprived of its effectiveness the case-law that requires the Commission only to interfere in the sphere of an undertaking’s private activities after gathering sufficiently serious indicia.
54By the second part of the first ground of appeal, the appellants submit that the General Court infringed Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 in holding that the Commission was not required to record the suppliers’ oral statements.
55The appellants observe, as a preliminary point, that the Commission itself has never disputed that it is required, under Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, to record the oral statements in question. It even argued before the General Court that the minutes that it had produced before it were recordings complying with those provisions. Under the principle that no one can dispute what he or she has previously accepted, the Commission is not entitled to dispute the applicability of those provisions before the Court.
56That said, the appellants submit, in the first place, that the case-law referred to by the General Court in paragraph 187 of the judgment under appeal, which concerns the starting point to be taken into account for the purpose of assessing the reasonableness of the duration of the administrative procedure, does not provide any indication as to the starting point of an investigation for the purposes of Chapter V of Regulation No 1/2003.
57In the second place, the appellants submit, first, that the admissibility, as indicia justifying an inspection, of a written accusation by a person unable to demonstrate a legitimate interest required by Article 7(2) of Regulation No 1/2003, referred to by the General Court in paragraph 188 of the judgment under appeal, does not call their arguments into question. As long as such an accusation is in written form, its probative value as indicia cannot be disputed.
58Second, the 2006 Leniency Notice provides that the obligation to record, provided for in Article 19 of Regulation No 1/2003 and in Article 3 of Regulation No 773/2004, applies from the moment that the first oral statements are obtained by the Commission. In the present case, the suppliers’ statements were obtained by the Commission at the same stage of the procedure as statements by a leniency applicant. They are, in both cases, the first information collected by the Commission on the basis of which it may, inter alia, decide to order inspections. Consequently, the suppliers’ statements should have been recorded in the same way as the statements by a leniency applicant.
59Third, the Commission’s internal Manual of Procedures for the application of Articles 101 and 102 TFEU of 12 March 2012, on which the General Court relies in paragraph 194 of the judgment under appeal, has no legal value.
60Fourth, the Opinion of Advocate General Wahl in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788) does not support the analysis developed in the judgment under appeal.
61In the third place, the appellants submit that considerations set out in paragraphs 197 and 202 of the judgment under appeal concerning the effectiveness of the implementation of the Commission’s investigative powers are ineffective and cannot, in law, justify the analysis carried out by the General Court.
62In that regard, the appellants submit, inter alia, that the drawing up of minutes recording the statements collected by the Commission does not discourage the reporting of infringements any more than the unilateral drawing up of minutes by the Commission. It is true that third parties interviewed might wish to remain anonymous. Nevertheless, the protection of that anonymity is guaranteed by the drawing up of confidential versions. In addition, the Commission is free immediately to make an audio or audiovisual recording.
63In the fourth place, the appellants submit that the interviews with suppliers were clearly carried out in the course of an investigation.
64The ‘informal’ nature of that investigation is irrelevant. The Court has categorically denied the Commission the possibility of conducting ‘informal’ interviews enabling it to escape its procedural obligations imposed by Regulation No 1/2003 and by Regulation No 773/2004 (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 88).
65Lastly, the appellants maintain that, in the absence of a recording, the suppliers’ statements have no probative value.
66Therefore, the minutes of those statements cannot be characterised as sufficiently serious indicia.
67Consequently, the appellants submit that the General Court erred in law by holding that the interviews conducted by the Commission with suppliers were not subject to the combined provisions of Article 19(1) of Regulation No 1/2003 and of Article 3 of Regulation No 773/2004.
68Furthermore, the appellants maintain that, if, highly unusually, the Court were not certain that the lack, in law, of probative value of the internal minutes is sufficient to lead to the complete annulment of the decision at issue, it should refer the case back to the General Court in order that it re-examine the facts without having regard to the minutes, which have no probative value.
69The Commission disputes those arguments.
70As a preliminary point, the Commission states that the opening of the investigation differs from the opening of a file and from the initiation of proceedings within the meaning of Article 2 of Regulation No 773/2004. The opening of the investigation takes place from the time of the first use of its investigative powers and the adoption of measures involving an accusation of the commission of an infringement and having significant implications for the situation of the suspected entities. The opening of the file is an internal act taken by the Registry of the Commission’s Directorate-General for Competition when it assigns a case number, the sole scope of which is to store documents. The initiation of proceedings corresponds to the date on which the Commission adopts a decision under Article 2 of Regulation No 773/2004 with a view to taking a decision under Chapter III of Regulation No 1/2003.
71That said, the Commission submits, in the first place, that the appellants’ assertion that allowing the Commission unilaterally to draw up minutes of oral statements prevents the General Court from exercising its power of judicial review of the proportionality and regularity of an inspection is contradicted by the review of the indicia carried out in the present case by the General Court, which led to the partial annulment of the decision at issue. Furthermore, even where oral testimony has not been recorded, the General Court has the possibility of hearing witnesses, under Article 94 of its Rules of Procedure.
72Applying the procedural rules of Regulations No 1/2003 and No 773/2004 prior to the opening of the investigation would prejudice the Commission’s implementation of competition law, by preventing it from collecting and using indicia received orally. Moreover, that would amount to considering that the indicia could never be in oral form, which would compromise the effectiveness of the Commission’s investigations by delaying the date of the inspection.
73In addition, first, the case-law relied on by the appellants is irrelevant because it concerns the use of oral statements as evidence and not as indicia.
74Second, in the absence of a recording, the Court has held, in paragraphs 99 to 101 of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), that minutes prepared by the Commission could confirm the content of the discussions that allegedly should have been recorded and enabled the Court to exercise effective judicial review.
75Third, the indicia are subject to a lesser degree of formality than the evidence. The opening of an investigation is the starting point of the administrative procedure and corresponds to the date on which the Commission makes use, for the first time, of its powers of investigation. As confirmed by the travaux préparatoires for Regulation No 1/2003, Article 19(1) of that regulation constitutes a legal basis authorising the recording of oral statements ‘in the context of an investigation’ for the purpose of presenting them not as mere indicia, but as ‘evidence’.
76In the second place, the Commission maintains that it had not already opened an investigation before the adoption of the decision at issue. According to the Court’s case-law, the opening of an investigation is the starting point of the administrative procedure and corresponds to the date on which the Commission makes use, for the first time, of its powers of investigation.
77The Commission adds, first, that it is irrelevant that it maintained before the General Court that the minutes of the interviews with suppliers constituted recordings under Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, since the General Court did not rule on that argument. Second, the validity as indicia of an accusation made in a complaint which does not comply with the procedural rules of Article 7(2) of Regulation No 773/2004 supports the inapplicability in the present case of the obligation to record. That confirms that a substantive element may constitute indicia even if it does not comply with certain procedural rules.
78Third, it is irrelevant that, in its 2006 Leniency Notice, the Commission intended to record, pursuant to Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, oral leniency applications made before the first use of its investigative powers.
79Fourth, the distinction drawn by the General Court between the stage prior to the first use of the Commission’s powers of investigation and the stage subsequent to such use is not comparable to the distinction between formal and informal interviews rejected by the Court of Justice in the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632).
80In the third place, the Commission observes that the General Court concluded, albeit only for the sake of completeness, in paragraph 197 of the judgment under appeal, that the detection by the Commission of the unlawful practices and the exercise of its investigative powers would be seriously undermined if it had to be required to record every oral statement before an investigation was opened.
Findings of the Court
81By their first ground of appeal, the appellants complain, in essence, that the General Court erred in law, in paragraph 186 of the judgment under appeal, in finding that the Commission is not required to comply with the obligation to record interviews resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 before it has formally opened an investigation and made use of the powers of investigation conferred on it in particular by Articles 18 to 20 of Regulation No 1/2003.
82It should be borne in mind in that regard that, in accordance with settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording but also of its surrounding context and the objectives and purpose pursued by the act of which it forms part (judgment of 1 August 2022, HOLD Alapkezelő, C‑352/20, EU:C:2022:606, paragraph 42 and the case-law cited).
83In the first place, it is apparent from the very wording of Article 19(1) of Regulation No 1/2003 that that regulation is intended to apply to any interview involving the collection of information relating to the subject matter of an investigation (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 84).
84Article 3 of Regulation No 773/2004, which makes interviews based on Article 19(1) of Regulation No 1/2003 subject to compliance with certain procedural rules, does not specify the scope of the latter provision.
85It must be borne in mind that the Court of Justice has held that, under Article 19(1) of Regulation No 1/2003 and Article 3(3) of Regulation No 773/2004, the Commission is required to record, in a form of its choosing, any interview which it conducts, under Article 19 of Regulation No 1/2003, in order to collect information relating to the subject matter of an investigation (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 90 and 91).
86Accordingly, it is important to note that a distinction must be drawn on the basis of the subject matter of the interviews carried out by the Commission, and that only those seeking to collect information relating to the subject matter of a Commission investigation fall within the scope of Article 19(1) of Regulation No 1/2003 and, therefore, the obligation to record.
87That said, there is nothing in the wording of Article 19(1) of Regulation No 1/2003 or Article 3 of Regulation No 773/2004 to suggest that the application of that recording obligation is contingent on whether the interview conducted by the Commission took place before the formal opening of an investigation in order to collect indicia of an infringement, or afterwards, for the purpose of gathering evidence of an infringement.
88Those provisions do not in any way make the application of the obligation to record contingent on whether the information constituting its subject matter may be categorised as indicia or evidence. On the contrary, because of the generic nature of the term ‘information’ in Article 19(1) of Regulation No 1/2003, it must be held that that provision applies without distinction to each of those categories.
89It is true that the concepts of ‘indicia’ and ‘evidence’ must not be conflated since, by their very nature and unlike evidence, indicia cannot suffice to establish a given fact.
90The fact remains, however, that the classification of indicia or evidence depends not on a specific stage of the procedure, but on the probative value of the information concerned, since sufficiently serious and convergent indicia, gathered together as a ‘bundle’, can themselves prove an infringement and be used in the Commission’s final decision adopted on the basis of Article 101 TFEU (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47).
91Therefore, as the Advocate General observed in point 141 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), the obligation to record interviews cannot depend on the categorisation of the information collected as indicia or evidence, since the probative value of that information can be assessed by the Commission only at the end of those interviews, during the subsequent stages of the procedure.
92Furthermore, nor do Article 19(1) of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 provide that the application of the obligation to record depends on the stage of the procedure at which the interviews are conducted. It is true that Article 19(1) of Regulation No 1/2003 provides that interviews based on that provision are those conducted for the purpose of collecting information relating to the subject matter of an investigation, which presupposes that an investigation is ongoing. Yet it is not apparent from that provision that those interviews must take place after the formal opening of an investigation, held by the General Court in paragraph 186 of the judgment under appeal to be the moment when the Commission adopts a measure involving an accusation of the commission of an infringement.
93In the second place, as regards the context of Article 19(1) of Regulation No 1/2003, it should be noted, first, that that article appears in Chapter V of that regulation, concerning the Commission’s powers of investigation. However, the application of the provisions of that chapter is not necessarily subject to the adoption, by that institution, of a measure involving the accusation of the commission of an infringement.
94Thus, under Article 17 of that regulation, the Commission may conduct sectoral inquiries, which do not require prior adoption of such measures in respect of undertakings.
95It should also be noted that Article 2(3) of Regulation No 773/2004, under which ‘the Commission may exercise its powers of investigation pursuant to Chapter V of Regulation … No 1/2003 before initiating proceedings’ supports the interpretation that the provisions relating to the Commission’s powers of investigation listed in that chapter – including Article 19 – may apply before an investigation has been formally initiated, contrary to what is stated in paragraph 193 of the judgment under appeal.
96It is true that, in the cases which gave rise to the judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 182), and of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 38), cited in paragraph 187 of the judgment under appeal, the Court of Justice identified the starting point of the preliminary investigation conducted by the Commission in the field of competition as being the date on which that institution, exercising the powers conferred on it by the EU legislature, takes measures involving an accusation of the commission of an infringement and having significant implications for the situation of the undertakings suspected.
97However, the cases giving rise to those judgments concerned the determination of the starting point of the administrative procedure for the purpose of verifying whether the Commission complied with the principle that proceedings must be concluded within a reasonable time. That verification requires an examination of whether that institution acted diligently from the date on which it informed the undertaking suspected of having committed an infringement of EU competition law of the existence of an investigation.
98Nonetheless, that date cannot be taken into consideration in order to determine the starting point from which the Commission is required to comply with the obligation to record interviews resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004. As observed by the Advocate General in point 150 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), an undertaking may be the subject of statements made by third parties obtained during such interviews, without being aware of them. Therefore, to take that date into consideration would be tantamount to postponing the application of the recording obligation and the procedural guarantees attaching thereto, laid down in those provisions for the benefit of the third parties interviewed and the undertaking suspected, until the Commission adopts a measure informing that undertaking of the existence of suspicions concerning it. As a result of that postponement, interviews with third parties carried out prior to such a measure would be excluded from the scope of the obligation to record interviews and the procedural safeguards applicable to them.
99In the third and last place, as regards the purpose of Regulation No 1/2003, it is apparent from recital 25 of that regulation that the detection of infringements of the competition rules is becoming increasingly difficult, since Article 19(1) of Regulation No 1/2003 seeks to supplement the Commission’s powers of investigation by, inter alia, allowing it to interview any person who may be in possession of useful information and to record its statements (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 85). The expression ‘detection of infringements’ in that recital supports the interpretation that interviews conducted by the Commission, at a preliminary stage for the purpose of gathering indicia relating to the subject matter of an investigation also fall within the scope of Article 19(1) of Regulation No 1/2003.
100It should also be noted that, under Article 3(3) of Regulation No 773/2004, the Commission may record interviews in any form. The Commission cannot therefore validly maintain that imposing an obligation to record on it prevents it from gathering and using indicia where they can only be in oral form and would undermine the effectiveness of the investigations by delaying the date of the inspection. Similarly, nor can the Commission maintain that such an obligation has a deterrent effect since it is able to protect the identity of the persons interviewed.
101In those circumstances, it must be held that the General Court erred in law in holding, in paragraph 193 of the judgment under appeal, that it was necessary to exclude from the scope of Regulation No 1/2003 those interviews in the course of which indicia were collected that subsequently served as the basis for a decision ordering an inspection of an undertaking, on the ground that no investigation within the meaning of Chapter V of that regulation was then opened, since the Commission did not adopt a measure involving an accusation with regard to that undertaking of having committed an infringement. In order to determine whether those interviews fell within that scope, the General Court should have examined whether they were intended to collect information relating to the subject matter of an investigation, taking into account their content and context.
102In the present case, as is apparent from paragraph 198 of the judgment under appeal, the General Court held that the indicia obtained through interviews with suppliers could not be rejected as vitiated by a procedural irregularity on the ground of failure to comply with the obligation to record laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, in particular because those interviews took place before the opening of an investigation under Regulation No 1/2003 and they did not involve, with respect to the appellants and a fortiori in respect of the suppliers, any accusation whatsoever of the commission of an infringement.
103As observed by the Advocate General in point 155 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), suffice it to observe in that regard that, when the Commission conducts interviews, the subject matter of which is defined in advance and whose purpose is openly to obtain information on the functioning of a given market and the conduct of operators on that market with a view to detecting possible unlawful conduct or substantiating its suspicions as to the existence of such conduct, the Commission exercises its power to gather statements under Article 19 of Regulation No 1/2003.
104Consequently, the interviews with suppliers fell within the scope of Article 19(1) of Regulation No 1/2003 and the Commission was required to record those declarations in accordance with Article 3 of Regulation No 773/2004.
105It follows that the General Court erred in law in finding, in paragraph 198 of the judgment under appeal, that the obligation to record, provided for in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, did not apply to interviews with suppliers and that the indicia obtained through those interviews were not vitiated by a procedural irregularity.
106It follows from all the foregoing that the first ground of appeal is well founded and that, consequently, the appeal must be upheld and point 2 of the operative part of the judgment under appeal set aside, without its being necessary to rule on the other grounds of appeal. Consequently, point 3 of the operative part of the judgment under appeal, relating to costs, must also be set aside.
The action before the General Court
107In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court sets aside the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
108That is so in the present case.
109It is therefore necessary to examine the complaint, put forward by the appellants before the General Court in the context of their plea relating to the infringement of the right to the inviolability of the home, alleging, in essence, that the indicia obtained through interviews with suppliers must be rejected because of the Commission’s failure to comply with Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.
110In support of that complaint, the appellants submit that the minutes of the interviews with suppliers were not recordings complying with those provisions, since they had been drawn up unilaterally by the Commission and were not recordings of the entirety of those interviews.
111The Commission contends that it fulfilled its obligation to record by drawing up exhaustive minutes that faithfully reflected the content of the suppliers’ statements and placing them in the file under an official identification number. That type of minutes is one of the forms of recording which Article 3(3) of Regulation No 773/2004 allows the Commission to use, in the same way as it may use an audio or audiovisual recording or a verbatim retranscription.
112In that regard, it should be noted that the first sentence of Article 3(3) of Regulation No 773/2004, which states that the Commission ‘may record the statements made by the persons interviewed in any form’, implies that, if the Commission decides, with the consent of the person interviewed, to conduct an interview on the basis of Article 19(1) of Regulation No 1/2003, it must record the interview in full, without prejudice to the fact that the Commission is free to decide on the type of recording (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 90).
113In addition, it is apparent from the second and third sentences of Article 3(3) of Regulation No 773/2004 that the Commission must make a copy of the recording available to the person interviewed for approval and that, where necessary, it must set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.
114In the present case, the Commission has not alleged, still less proved, that it made the minutes which it had drawn up available to suppliers for approval.
115The Commission’s obligation to make a copy of the recording available to the person interviewed for approval, provided for in Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, is intended, in particular, to ensure the authenticity of the statements made by the person interviewed, by ensuring that those statements must actually be attributed to him or her and that their content faithfully and fully reflects those statements and not the Commission’s interpretation of them.
116Therefore, indicia obtained from a statement gathered by the Commission, without compliance with that requirement, imposed by Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, must be regarded as inadmissible and therefore be disregarded.
117Thus, those purely internal minutes cannot be regarded as satisfying the requirements of Article 3(3) of Regulation No 773/2004, which applies to interviews falling within the scope of Article 19 of Regulation No 1/2003.
118That finding cannot be invalidated by paragraphs 65 to 69 of the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773), on which the Commission relied at the hearing.
119It is true that the Court of Justice has held that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced lies in its credibility and that, consequently, the probative value of evidence must be assessed as a whole, so that raising mere unsubstantiated doubts as to the authenticity of evidence is not sufficient to undermine its credibility (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 65 to 69).
120However, in the case which gave rise to that judgment, the evidence whose authenticity was called into question was an internal email of an undertaking and not the recording of a statement collected by the Commission vitiated by an infringement of Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004.
121Thus, the principle of the unfettered assessment of evidence cannot be relied on in order to avoid the procedural rules applicable to the recording of statements obtained by the Commission under Article 19 of Regulation No 1/2003. In that regard, it should be noted that the finding of an irregularity in the collection of indicia, in the light of Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, lies in the fact that the Commission may not use those indicia in the subsequent stages of the procedure (see, by analogy, judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 45 and the case-law cited).
122In the present case, since, as observed by the Advocate General in point 208 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), the information obtained through the interviews with suppliers constituted the essential elements of the indicia on which the decision at issue is based and is vitiated by a procedural irregularity on the ground of failure to comply with the obligation to record provided for in Article 3 of Regulation No 773/2004, it must be held that, on the date of adoption of the decision at issue, the Commission did not have in its possession sufficiently serious indicia that it was entitled to use and that justified the presumptions set out in Article 1(a) of that decision. In the light of all the foregoing considerations, that decision must be annulled in its entirety.
Costs
123Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
124Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellants have applied for costs and the Commission has been unsuccessful, the Commission must be ordered to bear its own costs and to pay those incurred by the appellants in the present appeal. Furthermore, since the decision at issue is annulled, the Commission is ordered to pay all the costs incurred by the appellants in the proceedings at first instance.
125Under Article 184(4) of the Rules of Procedure of the Court of Justice, where the appeal has not been brought by an intervener at first instance, that intervener may not be ordered to pay costs in the appeal proceedings unless they participated in the written or oral part of the proceedings before the Court of Justice. Where that intervener takes part in the proceedings, the Court may decide that that party shall bear its own costs. Since the Council, intervener at first instance, participated in the written and oral part of the procedure before the Court, it must be ordered to bear its own costs relating both to the appeal proceedings and to the proceedings at first instance.
Operative part
On those grounds, the Court (First Chamber) hereby:
1.Sets aside point 2 of the operative part of the judgment of the General Court of the European Union of 5 October 2020, Casino, Guichard-Perrachon and AMC v Commission (T‑249/17, EU:T:2020:458);
2.Sets aside point 3 of the operative part of the judgment of the General Court of the European Union of 5 October 2020, Casino, Guichard-Perrachon and AMC v Commission (T‑249/17, EU:T:2020:458), in so far as it ruled on costs;
3.Annuls Commission Decision C(2017) 1054 final of 9 February 2017 ordering Casino and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1);
4.Orders the European Commission to bear its own costs and to pay those incurred by Casino, Guichard‑Perrachon SA and by Achats Marchandises Casino SAS (AMC), both at first instance and in the appeal proceedings;
5.Orders the Council of the European Union to bear its own costs, both at first instance and in the appeal proceedings.
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