On 14 March 2014, the General Court ("GC") handed down several appeal judgments on the Commission decisions to request information in the cement cartel. Several companies appealed to the GC to suspend the Commission decisions. The GC accepted one ground of appeal in the case Schwenk Zement v Commission (T-306/11) but dismissed the other cases entirely. [Namely, Cemex and Others v Commission (T-292/11); Buzzi Unicem v Commission (T-297/11); Cementos Portland Valderrivas, SA v Commission (T-296/11); Holcim (Deutschland) and Holcim v Commission (T-293/11); HeidelbergCement v Commission (T-302/11); Italmobiliare v Commission (T-305/11)].
Highlights of these cases are discussed below.
The GC accepted Schwenk's submission that the Commission infringed the principle of proportionality because a period of two weeks to answer a specific set of questions was insufficient. In assessing proportionality, the GC took into account the risk of imposition of a fine if the undertaking provided incomplete, false or misleading information. The GC found that the two week response period amounted to a disproportionate burden for Schwenk and annulled the Commission decision in that respect.
Other arguments as to proportionality made by the other appellants failed. In each case, the GC held that though there was a heavy burden imposed, it was proportionate to the investigatory needs of the Commission.
Regarding Buzzi Unicem's claims that the Commission had violated its rights against self-incrimination, the GC held that only those questions that could not be qualified as "purely factual" would be open for assessment to ascertain whether the Commission was actually compelling Buzzi Unicem to incriminate itself. From the examples discussed in the judgment, it appears that questions on actual market behaviour previously conducted by the undertaking would be consider purely factual, whereas questions concerning how an undertaking would act in a hypothetical situation may not be considered purely factual.
In addition, the arguments raised by Cemex, Holcim, HeidelbergCement, Italmobiliare and Buzzi Unicem as to the Commission's breach of the duty to state reasons by not providing adequate information on the subject and purpose of the investigation, were also unsuccessful. The GC reiterated that at the investigation stage, the Commission need not provide all the elements that may establish the infringement and though it agreed that the decision to request information was very general, the Commission had fulfilled the minimum requirements under Article18(3). However, in Cementos Portland, the GC went further and on request, it examined the indicia upon which the Commission based its decision. According to the GC, the standard that the Commission must fulfill before issuing a decision to request information is "reasonable suspicion" that there has been an infringement. After examining the Commission's summary of the case and excerpts of the information available to it at the time that it issued the information request, the GC concluded that they were sufficient and thus also dismissed Cementos Portland's appeal.
