On July 16, 2020, the Court of Justice affirmed the judgement of the General Court in the Nexans v Commission, which upheld the Commission’s decision in the Power Cables cartel case.[1] In its judgment, the Court of Justice clarified the scope of the Commission’s inspection powers in antitrust proceedings under Article 20 of Regulation No. 1/2003.
The case is stemming from an inspection that the Commission conducted in 2009 on Nexan’s premises as part of the Power Cables case, which ultimately lead to the Commission imposing fines totaling more than €300 million on 11 producers of underground and submarine high voltage power cables.[2] The aspect of the inspection that Nexan challenged was that the Commission created a copy of hard drives of Nexan’s employees and later examined them in its office in Brussels (instead of copying only the documents that are identified as relevant during the inspection on the companies’ premises).
The Court’s reasoning for upholding the Commission’s decision was two-fold. First, the Court stated that Article 20(2)(b) of Regulation No. 1/2003—which permits the Commission “to examine the books and other records related to the business, irrespective of the medium on which they are stored”—also allows the Commission to create copies of hard drives and email boxes without carrying out an examination of those documents beforehand.[3] According to the Court, the EU legislature intended to grant the Commission “a certain discretion regarding its specific examination procedures.”[4] Second, the Court found that Article 20(2)(b) of Regulation No. 1/2003 does not require that the examination of books and records to be always carried out on the premises of the inspected undertaking.[5] Although the inspection must begin on the premises “of undertakings and associations of undertakings,” it does not need to continue there.[6]
According to the Court, the Commission may find legitimate reasons to continue the examination of the data collected from the undertakings concerned at its premises in Brussels.[7] The Court noted that continuing the examination of the data at the premises of the Commission in Brussels may not necessarily encroach on the inspected undertaking’s rights, provided that:[8]
It is justified by: (i) the interest of the inspection’s effectiveness; or (ii) to avoid excessive interference with the operations of the undertaking concerned.[9] This may be the case when large volumes of data need to be collected and processed, which may in turn significantly and unnecessarily extend the inspectors’ presence at that undertaking’s premises.[10] In turn, that could “hamper the effectiveness of the inspection and needlessly increase the interference in that undertaking’s operations on account of the inspection.”
Furthermore, it does not give rise to any additional encroachment on the rights of the undertaking concerned, which goes further than that inherent in an inspection at their premises.[11] If this were the case, the undertakings concerned would have to identify such an encroachment. [12]
[1] Nexans France and Nexans v Commission (C-606/18 P) EU:C:2020:571.
[2] Power Cables (AT.39610) – Commission decision of April 2, 2014.
[3] Nexans judgment, para. 60.
[4] Nexans judgment, para. 61.
[5] Nexans judgment, para. 78.
[6] Nexans judgment, para. 77.
[7] Nexans judgment, para. 81.
[8] Nexans judgment, para. 80.
[9] Nexans judgment, para. 87.
[10] Nexans judgment, paras. 81 and 88.
[11] Nexans judgment, para. 90.
[12] Nexans judgment, para. 90.