On 18 June 2015, the Court of Justice of the European Union ("ECJ") delivered a judgment on an appeal brought by German railway company Deutsche Bahn AG against a General Court ("GC") judgment whereby Deutsche Bahn's action for the annulment of three Commission inspection decisions and of the measures taken under those inspections was dismissed in their entirety. The ECJ partially set aside the judgment of the GC (Case C-583/13 P, Deutsche Bahn and Others v Commission).
First, Deutsche Bahn argued that there had been a misinterpretation and misapplication of the fundamental right to the inviolability of the home provided for in Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention for the Protection of Human Rights ("ECHR"). The appellant argued that the GC disregarded the aforementioned fundamental right when it ruled that the lack of prior judicial authorisation did not affect the lawfulness of the contested inspection decisions.
The ECJ confirmed the ruling of the GC stating that interference by a public authority can go further for professional or commercial premises or activities than in other cases. Moreover, the lack of prior judicial authorisation is only one of the factors to be borne in mind when determining whether Article 8 ECHR has been infringed. Therefore, the GC did not err in law in holding that the lack of prior judicial authorisation was incapable, in itself, of rendering the inspection measure unlawful.
The ECJ further held that the GC's detailed examination satisfied the requirements of the European Court of Human Rights ("ECtHR") and that all the safeguards were guaranteed in the present case. In addition, the presence of a post-inspection judicial review is considered by the ECtHR as capable of offsetting the lack of prior judicial authorisation and thus capable of constituting a fundamental guarantee in order to ensure the compatibility of the inspection measure in question with Article 8 ECHR. This is the case under EU law as well as Article 20(8) of Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty ("Regulation 1/2003") which expressly states that a Commission inspection decision is subject to review by the ECJ. Consequently, there is no infringement of Article 8 ECHR or Article 7 of the Charter and the first ground of appeal was rejected.
Second, Deutsche Bahn argued that there had been a misinterpretation and misapplication of the right to effective judicial protection provided for in Article 47 of the Charter and Article 6(1) ECHR, as a pre-inspection judicial review should be available.
The ECJ stated that the GC had rightly held that the key issue is the intensity of the review and providing an appropriate remedy when needed, and not the point in time when the review is carried out. It is open to undertakings that have undergone an inspection to challenge the lawfulness of the inspection decision before the EU Courts. They need not wait until the Commission has adopted the final decision on the suspected infringement to bring an action for annulment. Furthermore, if the investigation decision is annulled or it is found that there has been an irregularity in the conduct of the investigation, the Commission will be prevented from using any documents or evidence which it might have obtained through its investigations. Hence, Article 6(1) ECHR and Article 47 of the Charter are not disregarded by there not being any prior judicial review (post-inspection judicial review is sufficient) and the second ground of appeal was also rejected.
Third, Deutsche Bahn argued that there had been an infringement of the right of defence due to irregularities vitiating the conduct of the first inspection carried out by the Commission in its premises.
The ECJ recalled that as per Article 20(4) of Regulation 1/2003, the Commission is required to state reasons for the decision ordering an inspection by specifying its subject matter and purpose. Under Article 28(1) of Regulation 1/2003, information obtained during investigations must not be used for purposes other than those indicated in the inspection warrant or decision. It follows that the Commission's agents may only search for documents coming within the scope of the subject-matter of the inspection.
In the present case, it had been established that, before the first inspection, the Commission had informed its agents of other potentially anti-competitive practices attributed to Deutsche Bahn which were not covered by the decision authorising the inspection. The ECJ therefore considered that the first inspection was vitiated by irregularity since the Commission's agents, being previously in possession of information unrelated to the subject-matter of the inspection, proceeded to seize documents falling outside the scope of that inspection. Additionally, the ECJ noted that: (i) the second inspection decision was adopted while the first one was still underway; and (ii) the third inspection was partially based on information gathered during the first two inspections. Hence, the Court concluded that the conditions under which information concerning another suspected infringement was gathered during the first inspection, are capable of affecting the legality of the second and third decisions given the importance of the information gathered during the first inspection in triggering the second and third inspections.
Consequently, the ECJ held that the GC had erred in law in holding that the Commission had valid reasons for its conduct, that is, providing the officials with general background information on the case, as the information concerned a separate potential infringement. Further, the Commission should have provided reasons when it was clear that the information fell outside the subject matter of the first inspection decision. It disregarded the safeguards forming the framework for its powers of inspection. Thus, the ECJ upheld the third ground of appeal.
Therefore, the ECJ set aside the judgment of the GC in so far as it dismissed the actions brought by Deutsche Bahn against the second and third inspection decisions and annulled the second and third inspection decisions. It dismissed the remainder of the appeal.
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