ECJ confirms the duty of product description in decisions of the European Commission

As part of the investigation of the high-voltage cable cartel, the Court ordered in Case T-135/09, Nexans France and Nexans v. European Commission that Nexans SA (“Nexans”), including explicitly its subsidiary Nexans France SAS (“Nexans France”), had to tolerate inspections of the European Commission (“Commission”). According to Nexans the decision of the Commission lacked a precise description of the product- and geographical market. Moreover it stated that the Commission did not provide sufficient evidence to justify an inspection.

Regarding the geographical scope, the Court decided that the Commission described the scope of the inspection sufficiently as it stated that the global market might be affected. Although the Commission has no powers outside of its jurisdiction, it can investigate competition law infringements in order to establish if the European market is affected. However, the Court did find that the product had not been described precisely enough by the Commission and would have to be limited to see- and underwater high-voltage cables only.

The ECJ confirmed the Courts decision on 25 June 2014 in its case C-37/13 P, Nexans SA and Nexans France SAS v. European Commission and stated furthermore that according to Art. 20 para. 4 Council Regulation No. 1/2003 the Commission has to specify the object and purpose of the inspection. However, the Commission cannot be required to disclose all the information related to the infringement. It is therefore sufficient if the Commission states what violations are suspected. Moreover, the Commission is also not required to specify a precise market definition, legal assessment or period of infringement.

Hence, the ECJ dismissed Nexan’s appeal.

Authors:

Dr. Christina Hummer
Ori Kahn