On the basis of suspicions of anticompetitive behaviour by the Facebook group in its use of data and in the management of its social network platform, the European Commission, by decision of 4 May 2020, sent a request for information to Meta Platforms Ireland Ltd, formerly Facebook Ireland Ltd. That decision, adopted pursuant to Article 18(3) of Regulation No 1/2003, required Meta Platforms Ireland to provide the Commission with all documents prepared or received by three of its executives within the period concerned which contained one or more of the search terms defined in the annexes. That decision provided for a potential penalty payment of € 8 million per day in the event of failure to provide the information requested.
The decision of 4 May 2020 replaced an earlier similar decision, which laid down broader search criteria. That new decision, taken after exchanges between the Commission and Meta Platforms Ireland, reduced the number of documents requested by refining search terms and limiting the number of officials concerned.
On 15 July 2020, Meta Platforms Ireland brought, first, an action for annulment of the decision of 4 May 2020 and, second, an application for interim measures.
By interim order of 29 October 2020, the President of the General Court ordered that the operation of the decision of 4 May 2020 be suspended until a specific procedure had been put in place for the production of the requested documents which were not linked to Meta Platforms Ireland’s business activities and which also contained sensitive personal data. Subsequent to that order, the Commission adopted an amending decision 5 stating that those documents could be placed on the investigation file only after having been examined in a virtual data room in the manner specified in the interim order.
Meta Platforms Ireland modified its application for annulment to take account of that amending decision. The Fifth Chamber, Extended Composition, of the General Court dismisses the action in its entirety. In that context, the General Court examines, for the first time, the lawfulness under Regulation No 1/2003 of a request for information using search terms, as well as the lawfulness of a virtual data room procedure for the processing of documents containing sensitive personal data.
Findings of the Court
In support of its action for annulment, Meta Platforms Ireland argued, inter alia, that applying the search terms specified in the request for information would inevitably lead to the capture of a significant number of documents with no relevance to the investigation carried out by the Commission, which would be contrary to the principle of necessity set out in Article 18 of Regulation No 1/2003.
On that point, the Court recalled that, under Article 18(1) of Regulation No 1/2003, the Commission may, by simple request or by decision, require undertakings to provide ‘all necessary information’ in order to monitor compliance with the EU competition rules. It follows that the Commission is entitled to require the disclosure only of information which may enable it to investigate presumed infringements which justify the conduct of its investigation. Having regard to the broad powers of investigation conferred on the Commission by Regulation No 1/2003, that necessity requirement is satisfied if the Commission could reasonably suppose, at the time of the
request, that the information may help it to determine whether an infringement of the competition rules has taken place.
In support of its complaints challenging whether the principle of necessity had been complied with, Meta Platforms Ireland had disputed certain search terms in the request for information, while arguing that those specific criticisms ought to be understood as non-exhaustive examples intended to illustrate its more general line of argument. In its view, it would have been unreasonable, if not impossible, to focus on each search term separately.
However, the Court rejects that approach and considers that an overall assessment of compliance with the principle of necessity set out in Article 18 of Regulation No 1/2003 is not appropriate in the present case, even if it were possible. The fact that certain search terms may, as Meta Platforms Ireland submits, be too vague has no bearing on the fact that other search terms may be sufficiently precise or targeted to enable the finding – that they may help the Commission to determine whether an infringement of the competition rules has taken place – to be established.
Having regard to the presumption that acts of the EU institutions are valid, the Court accordingly concludes that only the search terms specifically challenged by Meta Platforms Ireland may be reviewed as to whether the principle of necessity has been observed. The other search terms must, by contrast, be regarded as having been defined in accordance with that principle.
In addition, after noting that the arguments concerning the search terms referred to for the first time at the stage of the reply are inadmissible, the Court examines only the search terms referred to in the application. Taking the view that Meta Platforms Ireland has not successfully established that those terms were contrary to the principle of necessity, the Court rejects the various arguments put forward in that regard as being unfounded.
Full Sentence: CURIA