Aspects juridiques des demandes d’information
Annemarie ter Heegde
Requests for information are one of most important investigative measures that the Commission may take under Regulation 1/2003. Also available are : sector inquiries, powers to take statements (formally or informally, during inspections or in the course of a normal investigation), inspections (as they are intrusive for undertakings, the Commission needs reasonable grounds to justify them), powers to ask information to NCAs or to ask them to perform investigative measures (this may occur more often in the future).
There are two types of requests of information. First, simple requests for information (article 18(2) of Regulation 1/2003) : these may be directed to any undertaking (or trade association) which might hold relevant information, irrespective of its involvement in the suspected infringement. The requests have to be necessary for the enforcement of articles 101/102 : unlike with sector inquiries, they need to be useful to a specific investigation, even if they are not directly related to the infringement. While companies have a general duty of cooperation, they may refuse to answer. However, it is often in their best interest to reply to a simple request as the Commission may follow up with a request for information by decision. If they do reply, they have a duty to give a truthful answer : penalties may be imposed for incorrect or misleading answers (which happened several times under the Regulation 17). Second, article 18(3) of Regulation 1/2003 allows for requests for information by decision. These have the same characteristics as simple requests, but companies have a duty to reply and may be fined if they do not reply, reply incompletely or provide incorrect or misleading answers. Companies may appeal the Commission’s decision, but there is no suspensive effect. Such effect may however be obtained by requesting the European courts for interim measures. The Commission has discretion to send requests by decision and sometimes may do so at the start of the investigation, without sending a simple request first. Periodic payments may be imposed to force companies to answer on time.