2019:232 Qualcomm and Qualcomm Europe v Commission

ECLI:EU:T:2019:232

(26) It should be recalled in that regard that, according to Article 85(1) to (3) of the Rules of Procedure, evidence is to be submitted in the first exchange of pleadings, the main parties exceptionally having the opportunity to produce further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified.

(27) In the present case, although the applicants have not put forward anything explaining the delay in the production of the documents concerned, it must nonetheless be stated that those documents post-date the lodging of the reply and that the applicants therefore could not produce them in the exchanges of pleadings between the parties (see, to that effect, judgment of 16 May 2018, Troszczynski v Parliament, T‑626/16, not published, under appeal, EU:T:2018:270, paragraph 40). In those circumstances, the evidence concerned must be held to be admissible.

(37) According to settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph16 and the case-law cited).

(38) As regards, in particular, the reasoning of a decision requesting information, it should be recalled that Article 18(3) of Regulation No 1/2003 specifies the essential elements thereof and provides that the Commission is to ‘state the legal basis and the purpose of the request, specify what information is required and fix the time limit within which it is to be provided’. It further states that the Commission ‘shall also indicate the penalties provided for in Article 23’, that it ‘shall indicate or impose the penalties provided for in Article 24’ and that it ‘shall further indicate the right to have the decision reviewed by the Court of Justice’.

(39) That obligation to state specific reasons is a fundamental requirement designed not merely to show that the request for information is justified, but also to enable the undertakings concerned to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence (see judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 19 and the case-law cited).

(40) As regards the obligation to state the ‘purpose of the request’, this relates to the Commission’s obligation to indicate the subject matter of its investigation in its request, and therefore to identify the alleged infringement of the competition rules (see judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 20 and the case-law cited).

(41) In that regard, the Commission is not obliged to communicate to the addressee of a decision requesting information all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, provided that it clearly indicates the suspicions which it intends to investigate (see judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 21 and the case-law cited).

(42) That obligation may be explained, inter alia, by the fact that, as is apparent from Article 18(1) of Regulation No 1/2003 and recital 23 thereof, in order to carry out the duties assigned to it by that regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide ‘all necessary information’ (judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 22).

(43) It follows that the Commission is entitled to require the disclosure only of information which may enable it to investigate the presumed infringements which justify the conduct of the investigation and are set out in the request for information (see, to that effect, judgments of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 23, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 333 and the case-law cited).

(44) Since the necessity of the information must be judged in relation to the purpose stated in the request for information, that purpose must be indicated with sufficient precision, otherwise it will be impossible to determine whether the information is necessary and the EU judicature will be prevented from exercising judicial review (see judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 24 and the case-law cited).

(45) Whether the contested decision is adequately reasoned will thus depend on whether the presumed infringements that the Commission intends to investigate are defined in sufficiently clear terms (see, to that effect, judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 25).

(46) When the extent of the obligation to state reasons in respect of a decision requesting information under Article 18(3) of Regulation No 1/2003 is assessed, account should also be taken of the stage of the investigation and of the fact that the Commission already has some information concerning the presumed infringements (see, to that effect, judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 39, and Opinion of Advocate General Wahl in HeidelbergCement v Commission, C‑247/14 P, EU:C:2015:694, point 50).

(47) In the present case, the contested decision clearly states that it is adopted on the basis of Article 18(3) of Regulation No 1/2003 and that the practices under investigation might infringe Article 102 TFEU and Article 54 of the EEA Agreement. Recitals 28 and 29 of the contested decision expressly refer to the penalties and to the right of review mentioned in paragraph 38 above.

(48) As regards the presumed infringement that the Commission intends to investigate, the contested decision expressly states, in recitals 2, 3 and 10, that the Commission is investigating predatory pricing by Qualcomm, from 3 February 2009 until 16 December 2011, for three of its UMTS-compliant baseband chipsets (MDM8200, MDM6200 and MDM8200A based chipsets) with regard to two of its key customers (Huawei and ZTE) with the aim of eliminating Icera.

(49) That statement of reasons discloses, clearly and unequivocally, the products and the customers to which the investigation relates and the suspicions of infringement justifying the adoption of that decision.

(50) Moreover, it is apparent from recital 7 of the contested decision that ‘at this stage of the investigation’ the Commission seeks to obtain the information necessary to assess the evidence in its possession in the light of the arguments put forward by the applicants following the issue of the statement of objections.

(51) It follows that the statement of reasons of the contested decision enables the applicants to ascertain whether the requested information is necessary for the purposes of the investigation and also enables the EU judicature to exercise its power of review. It must be concluded therefrom that the contested decision is sufficiently reasoned, even though it was adopted at a late stage in the procedure.

(52) That conclusion is not undermined by the applicants’ claims that the Commission does not explain how the information requested will enable it to respond to the arguments that they put forward in their observations on the statement of objections or to assess their relevance to its investigation. Nor, so they argue, does the Commission explain why, in the contested decision, it extended the temporal scope of the investigation to the periods adjacent to the period in respect of which it had raised objections in the statement of objections.

(53) Contrary to what is argued by the applicants, the Commission, in recitals 9 to 19 of the contested decision, clearly indicates –– outlining their essential content and referring to the specific paragraphs of the reply to the statement of objections or of the presentation made at the hearing on 10 November 2016 –– the arguments put forward by the applicants following the issue of the statement of objections, to which it intends to respond and explains how it proposes to evaluate, with the help of the information requested, their possible impact on its preliminary conclusions. Similarly, the Commission states, in recitals 20 to 22 of the contested decision, the reasons which have led it, in the light of the applicants’ arguments, to request certain information relating to the periods adjacent to the period in respect of which it raised objections in the statement of objections.

(54) That reasoning must be considered to be sufficient to enable the applicants to evaluate whether the information requested was necessary. Given that the purpose of the request is clearly specified in the contested decision, the Commission is not obliged, under Article 18(3) of Regulation No 1/2003 or by virtue of the case-law set out in paragraphs 39 to 46 above, to provide more detailed reasoning on how it intends to use the information requested for the purpose of examining, in the light of the purpose of the investigation, the arguments put forward by the applicants in response to the statement of objections. If the Commission were required to provide more detailed reasoning, even at an advanced stage of the investigation, after the issue of the statement of objections, that would amount, as the Commission submits, to requiring it to describe the way in which it intends to address the arguments brought against its preliminary conclusions, whilst the information requested is sought precisely to enable the Commission to evaluate the impact that those arguments might have on its preliminary conclusions.

(55) In so far as the applicants submit that questions 1, 4, 8, 9, 11, 12 and 23 to 25 are irrelevant for the purpose of achieving the stated objective –– that is, for examining the arguments they put forward in response to the statement of objections –– they are in fact disputing the necessity of that information and the merits of the reasons put forward in that regard in the contested decision. Those arguments, which dispute the necessity of the information requested, go to the substantive legality of the contested decision and cannot be taken into account in the examination of a plea alleging infringement of the obligation to state reasons (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 146 and the case-law cited). They will therefore be analysed when the Court examines the first plea. The same is true of the applicants’ argument that question 27 of the contested decision amounts to a reversal of the burden of proof, which will be examined when the Court considers the fourth plea.

(56) Having regard to all the foregoing, the third plea must be rejected.

The first plea, alleging infringement of the principle of necessity

(60) Next, it should be recalled that, according to recital 23 of Regulation No 1/2003, the Commission should be empowered throughout the European Union to require such information to be supplied as is necessary, inter alia, to detect any abuse of a dominant position prohibited by Article 102 TFEU. It also follows from Article 18(1) of Regulation No 1/2003 that, in order to carry out the duties assigned to it by that regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide ‘all necessary information’.

(61) According to settled case-law, the Commission is entitled to require the disclosure only of information which may enable it to investigate the presumed infringements which justify the conduct of the investigation and are set out in the request for information (see, by analogy, judgments of 12 December 1991, SEP v Commission, T‑39/90, EU:T:1991:71, paragraph 25, and of 8 March 1995, Société générale v Commission, T‑34/93, EU:T:1995:46, paragraph 40).

(62) Given the Commission’s broad powers of investigation and assessment, it falls to it to assess whether the information which it requests from the undertakings concerned is necessary. As regards the Court’s power of review over that assessment by the Commission, it should be noted that, according to the case-law, the concept of ‘necessary information’ must be interpreted by reference to the objectives for the achievement of which the powers of investigation in question have been conferred upon the Commission. Thus, the requirement that a correlation must exist between the request for information and the presumed infringement will be satisfied as long as, at that stage in the procedure, the request may legitimately be regarded as having a connection with the presumed infringement, in the sense that the Commission may reasonably suppose that the information will help it to determine whether the alleged infringement has taken place (see judgment of 14 March 2014, Holcim (Deutschland) and Holcim v Commission, T‑293/11, EU:T:2014:127, paragraph 110 and the case-law cited).

Alleged expansion of the scope of the investigation

(68) It is true that, according to settled case-law, the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two separate, successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up until the notification of the statement of objections, is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, by analogy, judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 113 and the case-law cited, and of 8 July 2008, AC-Treuhand v Commission, T‑99/04, EU:T:2008:256, paragraph 47).

(69) However, although the statement of objections is generally issued after a preliminary investigation by the Commission, it does not follow that after issuing that statement the Commission is prevented from continuing with its investigation, inter alia by sending requests for further information (see, to that effect, judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraphs 111 and 112).

(70) In that regard, the statement of objections is a procedural and purely preparatory document setting out the Commission’s provisional findings, which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of that statement that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission on the basis of the observations submitted to it by the parties and other findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 63; see also, to that effect, judgment of 10 May 2007, SGL Carbon v Commission, C‑328/05 P, EU:C:2007:277, paragraph 62).

(71) Far from being a measure recording the Commission’s final assessment of the lawfulness of the practices in question, the statement of objections is, on the contrary, a purely preparatory measure setting out the Commission’s provisional findings, which it may revisit in the final decision. The Commission is therefore perfectly entitled, in order in particular to take account of the arguments or other factors put forward by the undertakings concerned, to continue with its fact-finding after the adoption of the statement of objections with a view to withdrawing certain complaints or adding others as appropriate (judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 116).

(72) Moreover, under Article 18(2) and (3) of Regulation No 1/2003, the Commission may obtain, by requests for information, all necessary information from the undertakings and associations of undertakings, provided that it states the legal bases and the purpose of the request and also the penalties for supplying incorrect information. A request for information thus enables the Commission to obtain all necessary clarification of the arguments and the evidence put forward by the undertakings concerned in their response to the statement of objections (see, by analogy, judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 117).

(73) Subject to the rules on limitation, Article 18(2) and (3) of Regulation No 1/2003 does not impose any restriction on the Commission as to the timing of requests for information. In particular, provided that the information requested is necessary, that provision does not restrict the power of the Commission to send requests for information after the statement of objections has been issued (see, by analogy, judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 118).

(74) Thus, even if the Commission already has some indicia, or indeed proof, of the existence of an infringement, it may legitimately take the view that it is necessary to request further information to enable it, inter alia, better to define the scope of the infringement and to determine its duration (see judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 119 and the case-law cited).

(75) It follows from the foregoing that, contrary to the applicants’ submission, the mere fact that the Commission continues its investigation after the adoption of the statement of objections by issuing requests for additional information cannot render those requests unlawful or, in itself, call in question the necessity of the information requested.

(76) On the contrary, given the preparatory nature of the statement of objections, which reflects the adversarial nature of the administrative procedure applying the competition rules of the Treaty, the Commission must logically be able to send requests for additional information after issuing the statement of objections in order to be able, if necessary, to withdraw complaints or add new ones (judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 121).

(79) Accordingly, it is irrelevant to claim that the contested decision raises new questions as compared with those dealt with by the statement of objections, in particular concerning components of the chipsets covered by the investigation or periods adjacent to the period of the infringement. That fact might be capable of showing that, at the time when the statement of objections was adopted, the Commission had not terminated its administrative investigation into the practices in question. However, as has been stated in paragraphs 70 and 71 above, as the statement of objections is a preparatory document that may be amended by the Commission, in particular in order to take account of the response thereto, the Commission is not required to have definitively terminated its administrative investigation at the time of adoption of the statement of objections. Consequently, the Commission’s powers cannot be limited as to the questions it seeks to raise in the requests for information sent after the statement of objections, provided however that (i) in accordance with the applicable provisions, those questions enable it to obtain information necessary for the investigation and (ii) the Commission gives the undertakings concerned the opportunity to comment on fresh matters of fact or law arising from the responses of the undertakings concerned to those questions (judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 122).

Whether the information requested is necessary in view of the presumed infringements that the Commission intends to investigate

(99) As is clear from the case-law referred to in paragraph 62 above, in view of its broad powers of investigation and assessment, it is for the Commission to assess whether the information which it requests from the undertakings concerned is necessary. It can be seen from recitals 8 to 10 and 19 of the contested decision and from the ‘Introductory information for replying to Questions 1.1 and 1.2’ that is included in Annex I to the contested decision that, in the wake of the applicants’ observations on the statement of objections and the criticisms expressed at the hearing on 10 November 2016, the Commission took the view that the data on which it had relied in establishing the price-cost test in the statement of objections did not reflect the prices effectively paid by customers because of the revenue recognition principles applied by the applicants (see paragraph 90 above) and because the chipsets at issue had been sold in different configurations. As the Commission argues, taking the view that using exclusively the data in its possession would not reflect business reality, and so as to avoid any factual errors in calculation, it seeks by the contested decision to obtain information that will allow the price-cost test to be established on the basis of data accurately reflecting the situation during the relevant period, as this element will be decisive in ascertaining whether the infringement was committed.

(101) Given that it was solely in the light of the observations put forward by the applicants on the statement of objections and at the hearing on 10 November 2016 that the Commission could decide whether that information, requested in the contested decision, was necessary, it cannot properly be maintained that the information was not justified by the needs of the investigation merely because the contested decision was adopted at a late stage of the investigation. On the contrary, the Commission has thus complied with its duty to examine, carefully and impartially, all the relevant evidence, including the arguments put forward by the applicants (see, to that effect, judgments of 21 Novembers 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98, T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 404).

(103) Therefore, having regard to the case-law referred to in paragraphs 70 and 74 above, even if the Commission was seeking, on the basis of the information requested, to modify or adjust its methodology in view of the applicants’ observations and the matters that came to light following the issue of the statement of objections, that information must be regarded as being necessary, within the meaning of the case-law set out in paragraphs 61 and 62 above, for the examination of the presumed infringements which justify carrying out the investigation, in the sense that it may reasonably be supposed that the information will help the Commission to determine whether the alleged infringement has taken place.

The allegation that the information requested is disproportionate in view of the burden it entails for the applicants

(118) It should be recalled, as stated in paragraph 60 above, that, in order to carry out the duties assigned to it by Regulation No 1/2003, the Commission may require undertakings to provide ‘all necessary information’. According to the case-law referred to in paragraphs 61 and 62 above, even though it falls to the Commission to decide whether the information which it requests from the undertakings concerned is necessary, it is entitled to require the disclosure only of information which may enable it to investigate the presumed infringements which justify the conduct of the investigation.

(119) For its part, an undertaking which is being investigated is subject to an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject matter of the investigation (judgments of 18 October 1989, Orkem v Commission, 374/87, EU:C:1989:387, paragraph 27, and of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraph 44).

(120) The point should be made, however, that the Commission’s exercise of this power is subject to the observance of, inter alia, the principle of proportionality. Indeed, the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the investigation. In addition, according to the case-law, the need for protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of law of the European Union (see judgment of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraph 81 and the case-law cited).

(121) However, the mere fact that a request for information involves a significant workload for an undertaking is not sufficient per se to establish that it is disproportionate in relation to the needs of the investigation relating to, inter alia, the presumed infringements which the Commission intends to investigate and the circumstances of the procedure in question (see, to that effect, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission, T‑296/11, EU:T:2014:121, paragraphs 88 and 89).

(122) In the present case, it is not disputed that a large amount of information of considerable scope is requested under the contested decision. Responding to that request thus entails a significant workload for the applicants.

(123) However, it cannot be concluded that that workload is disproportionate having regard to the needs of the investigation relating to the presumed infringement which the Commission intends to investigate, particularly when account is taken of the applicants’ replies to the statement of objections.

(124) In that regard, it should be recalled that the contested decision is an integral part of a procedure whose purpose is to examine whether there may have been an abuse of a dominant position in the EEA as a result of predatory pricing practices between 3 February 2009 and 16 December 2011 on the market for UMTS-compliant baseband chipsets, more specifically MDM8200, MDM6200 and MDM8200A based chipsets. According to the preliminary conclusion reached in the statement of objections, the applicants are said to have supplied UMTS-compliant chipsets, below cost, to two of their key customers, Huawei and ZTE, with the intention of eliminating Icera from the market, their only competitor offering, at that point in time in the market segment, advanced data rate performance.

(125) The alleged predatory pricing under investigation requires, as the Commission argues, complex analyses of large amounts of data, most of which can be accessed only by the applicants, in order to re-construct the price-cost structure. Such an exercise can be particularly complex where the investigation concerns composite products.

(126) Indeed, the products under investigation are chipsets composed of individual components. The Commission asserts, without being contradicted on this point by the applicants, that those components are sold separately in different configurations, to different customers and at different prices, attracting different rebates, their sales also being accounted for at different times.

(127) In the statement of objections, the Commission based the price-cost criterion on accounting data that did not draw a distinction between the various components of a chipset. Having regard to the accounting principles described by the applicants in their observations on the statement of objections and mentioned in paragraph 85 above –– from which it can be seen that the information concerning gross prices and the various rebate schemes offered by the applicants to their customers is primarily available only at the level of the chips of which a chipset is composed, and in view of the fact that, since those chips are sold separately, sales are recorded at the level of the chip and not at the level of the chipset –– it was necessary for the Commission to have information concerning the components that make up the chipsets under investigation.

(128) Accordingly, the scope of the contested decision is such as to justify the provision of a significant amount of information, irrespective of the allegedly small proportion of products offered below-cost –– were it to be proven –– which the applicants invoke. As is apparent from the examination of the first plea, the information requested is necessary in the light of the purpose of the investigation, particularly having regard to the applicants’ observations on the statement of objections.

(131) As regards, second, the applicants’ argument that the Commission was not entitled to require them to respond in a specific format, the Court observes that, according to the case-law, since the provision of ‘information’ within the meaning of Article 18 of Regulation No 1/2003 should be understood as covering not only the production of documents, but also the obligation to answer questions relating to those documents, the Commission is not confined merely to requesting the production of existing information irrespective of any involvement of the undertaking concerned. It is therefore open to it to direct questions at an undertaking which entail the latter having to marshal the requested information (judgment of 14 March 2014, Holcim (Deutschland) and Holcim v Commission, T‑293/11, EU:T:2014:127, paragraph 71). Consequently, the fact that the Commission asked the applicants for information in a particular format or one facilitating the processing of that information does not, in itself, render the contested decision unlawful.

(136) As regards, fourth, the applicants’ argument that they encountered practical difficulties in obtaining some of the information requested in that, since they were under no legal requirement to maintain financial records beyond a period of three and a half years, they did not organise their records in a systematic way, it cannot be accepted in the circumstances of the present case. Admittedly, undertakings cannot, as a rule, be obliged to provide the Commission with documents which are no longer in their possession and which they are no longer under any legal requirement to maintain. However, account should also be taken of the general duty of care attaching to any undertaking or association of undertakings, by virtue of which they are required to ensure the proper maintenance, in their books or files, of information enabling details of their activities to be retrieved, in order, inter alia, to have the necessary evidence available in the event of legal or administrative proceedings. Thus, since the applicants had been in receipt of requests for information from the Commission under Article 18(2) and (3) of Regulation No 1/2003 since 7 June 2010, it was incumbent on them, at least from that date, to act with greater diligence and to take all appropriate measures in order to preserve such evidence as might reasonably be available to them (see, to that effect, judgment of 16 June 2011, Heineken Nederland and Heineken v Commission, T‑240/07, EU:T:2011:284, paragraph 301 and the case-law cited).

(138) As regards, fifth, the applicants’ arguments that they will be compelled to undertake a significant amount of work on the Commission’s behalf inasmuch as the contested decision obliges them to review documents already in the Commission’s possession, inter alia to determine what had not previously been provided or what might be relevant, it is true that it is not for the undertaking under investigation to perform the tasks of the Commission, that being the case irrespective of the size of the undertaking and the means at its disposal (Opinion of Advocate General Wahl in HeidelbergCement v Commission, C‑247/14 P, EU:C:2015:694, point 133).

(139) However, it does not appear from the contested decision that the Commission has asked for information other than information to which only the applicants have access. It is therefore in no way a question of work which the Commission could have undertaken itself.

(140) In addition, in the case of questions 5, 12.3.3, 14.2, 23 and 24, for which the Commission asks for information ‘to the extent not already provided’, the Commission indicates the relevant information which it considers it already has in its possession.

(141) In any event, the statement ‘to the extent [the information requested has] not already [been] provided’ does not show that the contested decision is disproportionate, inasmuch as the aim of that statement is to limit the burden on the applicants and to avoid them being obliged to provide afresh information produced in response that is already in the Commission’s possession. However, in order to comply with their obligation to be complete and correct in their response to the contested decision, the applicants must explain in what respect the document previously provided is to be regarded as being the reply, or as forming part of a reply, to the contested decision. Nothing prevents the applicants from producing complete information in response to the contested decision without referring to documents already produced, even if that would result in certain items being included twice in the Commission’s file. Consequently, the mere fact that the applicants might possibly have to review documents previously supplied to the Commission does not support the conclusion that the contested decision requires them to carry out an excessive amount of work in the Commission’s stead.

The allegation that the periodic penalty payment is disproportionate

(153) It must be recalled that, under the second sentence of Article 18(3) of Regulation No 1/2003, when the Commission requires information by decision, it is also to indicate or impose the penalties provided for in Article 24 of that regulation.

(154) According to the Court of Justice’s case-law concerning Article 16 of Regulation No 17 of the Council of 6 February 1962 (First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-62, p. 87), which is applicable to Article 24 of Regulation No 1/2003, the fixing of periodic penalty payments necessarily involves two stages. In its first decision, referred to in Article 24(1) of Regulation No 1/2003, the Commission imposes a periodic penalty payment not exceeding 5% of the average daily turnover in the preceding business year per day of delay and calculated from the date appointed by the decision. Since that decision does not determine the total amount of the periodic penalty payment, it cannot be enforced. That amount can be definitively fixed only in another decision (see, by analogy, judgment of 21 September 1989, Hoechst v Commission, 46/87 and 227/88, EU:C:1989:337, paragraph 55). Moreover, it should be observed that, under Article 24(2) of Regulation No 1/2003, the Commission may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision.

(155) Since it represents a preliminary step in the procedure for imposing a periodic penalty payment under Article 24 of Regulation No 1/2003 and since it thus does not produce binding legal effects, the decision referred to in Article 24(1) of that regulation, imposing a periodic penalty payment not exceeding 5% of the average daily turnover in the preceding business year per day of delay and calculated from a date fixed by it, does not constitute a challengeable measure (see, to that effect, order of 24 June 1998, Dalmine v Commission, T‑596/97, EU:T:1998:138, paragraph 31).

(156) Indeed, as the Commission submits, that decision constitutes only a stage in the procedure at the end of which it may possibly adopt a decision which definitively fixes the total amount of the periodic penalty payment and can thus be enforced. Before it adopts this second decision, the Commission must fulfil certain procedural obligations. In particular, it must serve a statement of objections on the undertaking concerned explaining that the latter has not provided the requested information within the period prescribed, or that the information provided was incomplete or incorrect, it must organise a hearing of the undertaking concerned and consult the Advisory Committee on restrictive practices and dominant positions, so that both the undertaking and the Advisory Committee are then in a position properly to express their views on all the matters on the basis of which the Commission has imposed the periodic penalty payment and fixed the definitive amount thereof (see, to that effect, order of 24 June 1998, Dalmine v Commission, T‑596/97, EU:T:1998:138, paragraph 32 and the case-law cited).

(157) In the present case, the Commission has imposed, by Article 2 of the contested decision, a periodic penalty payment of EUR 580 000 per day of delay, calculated from the date after expiry of one of the periods for the applicants to reply. The decision contained in Article 2 is thus a decision imposing a periodic penalty payment, under Article 24(1) of Regulation No 1/2003, not a decision definitively fixing the total amount of the periodic penalty payment.

(158) Article 2 of the contested decision does not therefore produce binding legal effects in so far as it imposes a periodic penalty payment (see, to that effect, order of 24 June 1998, Dalmine v Commission, T‑596/97, EU:T:1998:138, paragraph 34).

(159) The applicants’ head of claim relating to Article 2 of the contested decision does not therefore concern a challengeable decision. Consequently, it must be dismissed as inadmissible (see, to that effect, order of 24 June 1998, Dalmine v Commission, T‑596/97, EU:T:1998:138, paragraph 36).

The allegation that the time limits for responding are insufficient

(162) For the purpose of assessing the possible disproportionality of the burden entailed by the requirement to respond to the contested decision within six weeks and, as regards questions 1, 2, 6 and 8 to 10, eight weeks, account must be taken of the fact that the applicants, as addressees of a decision requesting information under Article 18(3) of Regulation No 1/2003, ran the risk not only of receiving a fine or periodic penalty payment if they supplied incomplete or belated information, or if they failed to provide information, pursuant to Article 23(1)(b) and Article 24(1)(d) of Regulation No 1/2003, respectively, but also of receiving a fine if they supplied information which the Commission considered to be incorrect or misleading, pursuant to Article 23(1)(b) of that regulation.

(163) Thus, the examination of the appropriateness of a time limit fixed in a decision requesting information is particularly important. That time limit must enable the addressee of the decision not only to provide its reply in practical terms, but also to ensure that the information supplied is complete, correct and not misleading (judgment of 14 March 2014, Holcim (Deutschland) and Holcim v Commission, T‑293/11, EU:T:2014:127, paragraph 64).

(164) It is the case, as has already been stated in paragraph 122 above, that the quantity of information requested represented a significant workload for the applicants.

(165) However, in view of the resources at their disposal associated with their economic weight, the applicants could reasonably be considered to be in a position to provide a reply within the periods stipulated, all the more so because (i) the questions in Annex I to the contested decision follow up on the arguments that they submitted in response to the statement of objections, (ii) those questions are for the most part similar to those in the request for information of 30 January 2017 and (iii) in any event, those periods were ultimately set at 10 and 12 weeks.

The fifth plea, alleging infringement of the right to avoid self-incrimination

(179) It is apparent from recital 23 of Regulation No 1/2003 that when complying with a decision of the Commission, undertakings cannot be forced to admit that they have committed an infringement, but they are in any event obliged to answer factual questions and to provide documents, even if this information may be used to establish against them or against another undertaking the existence of an infringement.

(180) Moreover, according to settled case-law, although the Commission is entitled, if necessary by adopting a decision, to compel an undertaking to provide all necessary information concerning such facts as may be known to it, the Commission may not compel the undertaking to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (judgment of 18 October 1989, Orkem v Commission, 374/87, EU:C:1989:387, paragraphs 34 and 35; see also judgment of 28 April 2010, Amann & Söhneand Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 325 and the case-law cited).

(181) Thus, an undertaking in receipt of a decision requesting information pursuant to Article 18(3) of Regulation No 1/2003 cannot be recognised as having an absolute right of silence. To acknowledge the existence of such a right would be to go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission’s performance of its duty to ensure that the rules on competition within the internal market are observed. A right of silence can be acknowledged only to the extent that the undertaking concerned would be compelled to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (see, by analogy, judgment of 28 April 2010, Amann & Söhneand Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 326 and the case-law cited).

(182) In order to ensure the effectiveness of Article 18 of Regulation No 1/2003, the Commission is therefore entitled to compel the undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the existence of anticompetitive conduct (see, by analogy, judgment of 28 April 2010, Amann & Söhneand Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 327 and the case-law cited).

(183) Thus, an undertaking may not evade a request for information on the ground that by complying with that request it would be required to give evidence against itself (see, to that effect, judgment of 29 June 2006, Commission v SGL Carbon, C‑301/04 P, EU:C:2006:432, paragraph 48).

(184) That means that, in the event of a dispute as to the scope of a question, it must be determined whether an answer from the undertaking to which the question is addressed is in fact equivalent to the admission of an infringement, such as to undermine the rights of the defence (judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 273).

(185) Answers that are purely factual cannot, as a rule, be regarded as capable of requiring the addressee of questions to admit the existence of an infringement of the rules on competition (see, to that effect, judgment of 8 March 1995, Société générale v Commission, T‑34/93, EU:T:1995:46, paragraph 75).

(188) Question 1 in fact concerns the production of internal figures that will allow the Commission to reconstruct the relevant facts and calculate the prices effectively paid by the customers in question, in order to take account of the criticisms made by the applicants in their observations on the statement of objections and at the hearing of 10 November 2016 with regard to the price-cost test applied by the Commission in the statement of objections. Even if that information could be used by the Commission as material relevant for the purpose of establishing that the applicants had engaged in predatory pricing in breach of Article 102 TFEU, the mere fact that responding to that question might involve the applicants giving evidence against themselves is not equivalent to an admission of the infringement, as is apparent from the case-law recalled in paragraph 183 above.

(191) In that context, it should also be borne in mind that it was held in the context of the second plea that, by the contested decision, the Commission was not requesting the applicants to carry out work that it could have done itself. On the contrary, the figures requested under question 1, the explanations of the factual discrepancies asked for in the context of question 16 or the internal documents covered by question 27 are data to which only the applicants have access. As follows from the case-law recalled in paragraphs 182 and 183 above, undertakings must provide the Commission with all necessary information concerning such facts as may be known to them or as are in their possession, even if the latter may be used to establish the existence of anticompetitive conduct; undertakings may not evade that obligation on the ground that by complying with it they would be required to give evidence against themselves.

ECLI:EU:T:2017:485

T-371/17 R

1. Dismisses the action;
2. Orders Qualcomm, Inc. and Qualcomm Europe, Inc. to pay the costs, including those of the interim proceedings.