On January 28, 2021, the Court of Justice upheld the General Court’s ruling that the Commission’s request for information (“RFI”) issued during its predatory pricing investigation of Qualcomm was necessary and proportionate. The judgment further strengthens antitrust authorities’ broad discretion in deciding on the scope of RFIs.
In April 2010, Icera complained that Qualcomm engaged in predatory pricing intended to eliminate it from the chipset market. The Commission commenced proceedings in June 2010. In January 2017, having issued several RFIs and a Statement of Objections (“SO”), the Commission sent an extensive RFI to Qualcomm, allowing for four weeks to respond. Qualcomm refused to do so because it perceived the request as overly broad and burdensome.
In turn, the Commission adopted a legally binding decision (the “Decision”) under Article 18(3) of Regulation No. 1/2003, obliging Qualcomm to reply to the information requested within eight weeks, and threatening it with a periodic penalty payment of €580 000 for each day of delay. Before the deadline expired, and after having submitted responses to the Commission’s questions, on June 13, 2017, Qualcomm appealed to the General Court, challenging in particular the necessity and proportionality of the Decision. The General Court upheld the Commission’s Decision.
The Court of Justice dismissed Qualcomm’s appeal in its entirety, holding that nothing prevents the Commission from addressing a new RFI to a company after the SO, provided that the RFI is adequately reasoned for the purposes of the investigation, necessary, and proportionate.
Necessity. Qualcomm argued that the General Court wrongly concluded that the Commission was entitled to request information covering periods that fell outside of the scope of the investigation as set out in the SO and, more generally, that the information requested was necessary. The Court of Justice disagreed. It recalled that the Commission is not bound by the SO, as a “provisional” document that “is liable to be changed.” The Commission must be able to consider factors that arise during the investigation as they may allow it to refine its assessment. Accordingly, the Court of Justice agreed with the General Court’s finding that it was necessary for the Commission to request information related to periods of time that are adjacent to the period of the infringement set out in the SO.
Proportionality. As a principle, the Court of Justice held that the mere fact of the request creating a high workload for an undertaking could not sufficiently justify a finding that the request was disproportionate. In particular, the alleged predatory pricing practice justified requiring a large amount of information, which was necessary to achieve the investigatory aims.
This judgment affirms the Commission’s considerable discretion when sending RFIs, insofar as the Commission is able to decide which information is necessary to request for the purposes of its investigation. The Court of Justice now confirmed that the Commission is entitled to request: (i) information relating to periods falling outside of the infringement period as set out in the SO; and (ii) information resulting in a significant burden on the company’s resources, provided that it is necessary for the Commission’s investigation.
Challenging the Commission’s broad discretion in issuing and defining the scope of RFIs before the EU Courts is unusual. Companies wishing to appeal RFIs will need to show an egregious breach of the necessity or proportionality of an RFI.
 Qualcomm and Qualcomm Europe v. Commission (Case C-466/19 P) EU:C:2021:76.
 This RFI was a “simple” and non-legally binding request.
 Council Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1/18.
 Qualcomm and Qualcomm Europe v. Commission (Case T-371/17) EU:T:2019:232, as reported in our April 2019 EU Competition Law Newsletter.
 Qualcomm, paras. 66, 67 and 73.
 Ibid, para. 109.
 See, Orkem v. Commission (Case C-374/87) EU:C:1989:387, para. 15; see also, Roquette Frères (Case C-94/00) EU:C:2002:603, para. 78; see also AM & S v. Commission (Case C-155/79) EU:C:1982:157.
 A rare case of a successful challenge is HeidelbergCement v. Commission (Case C-247/14 P) EU:C:2016:149 (where the ECJ upheld the principle that the Commission may require the disclosure of information which allows it to investigate a presumed infringement, so long as the requested information is necessary in relation to the “purpose of the RFI,” as set out in a sufficiently precise manner (paras. 23–25); but ultimately annulled the RFI because the statement of reasons provided by the Commission was too vague and generic to allow the undertaking concerned to understand the reasons justifying such an investigation (paras. 27–40)).