European Community Competition Procedure

By Luis Ortiz Blanco | Go to book overview

5

Investigation of Cases (II): Inspections1

(A)
General Considerations Concerning Inspections

The Commission's investigative powers under Article 11 of Regulation 17 (requests for information) are supplemented by the power to undertake inspections at the premises of undertakings. Under Article 14(1) of Regulation 17, 'in carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the Commission may undertake all necessary investigations2 into undertakings and associations of undertakings.' It should be noted that, logically, by contrast with the position regarding requests for information, governments and the competent authorities of the Member States cannot be the subject of an inspection. However, there is nothing to prevent the Commission from undertaking inspections of public undertakings or those owned by the State.

The Commission's 'investigative power' has been judicially examined in a number of cases in which undertakings contended that Article 14 of Regulation 17 might be contrary to the general principles of Community law and, in particular, infringed the rights of the defence and the fundamental right to inviolability of the home.3 As regards rights of the defence, the Court, upholding the Commission's view in proceedings against its decisions to undertake inspections, seems to have recognized that the Community procedure safeguards them

____________________
1
Regarding Commission inspections see Jansen, B., "Les pouvoirs d'investigation de la Commission des Communautés européennes en matière de concurrence", Revue du Marché Commun, No. 342, Dec 1990, pp. 696-701; Joshua, J. M., "The element of surprise: EEC competition investigations under article 14 (3) of Regulation 17", European Law Review, Vol. 8, No. 1, Feb 1983, pp. 3-23; Kamburoglou, P., and Pirrwitz, B. J., Reichweite und Vollstreckung von Nachpriifungsentscheidungen der EG-Kommission. Kartellrechtliches Ermittlungsverfahren nach dem "Hoescht"Urteil des EuGH, Recht der Intemationalen Wirtschaft, Vol. 36, No. 4,. Apr 1990, pp. 263-72; Kinsella, S. , "Gone Fishing", European Business Law Review, Vol. 2. No. 2, Feb 1991, pp. 31-3; Korah, V., "Inspections under the EC competition rules: danger of voluntary submission", Business Law Review, Vol. 4, pp. 23 et seq.; Rehmann, W. A., "Zur Vollstreckung einer Nachprüfungsentscheidung der Kommission der EG", Neue Juristische Wochenschrift, Vol. 40, No. 48, Nov 1987, pp. 3061-62; Rodriguez B. Galindo, "L'application des règles de concurrence: les pouvoirs d'enquête de la Commission", Revue A Marché Unique Européen, Vol. 1, No. 2, 1991, pp. 62-86; and Sauter, H., "Noch einmal: Zur Vollstreckung einer Nachprüfungsentscheidung der Kommission der EG", Neue Juristische Wochenschrift, Vol. 41, No. 23, June 1988, pp. 1429-1431.
2
The word 'inspection' will be used here, instead of 'Investigation', when referring to visits by Commission officials to the premises of undertakings.
3
Regarding the protection of fundamental rights in general see Dauses, M., "The protection of fundamental rights in the Community legal order", European Law Review, Vol. 10, No. 6, Dec 1985, pp. 398-419.

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