The European Court of Justice has adopted an important judgment on 22 October 2002, in Case C-94/00, Roquette Frères SA, concerning the evidence which the European Commission must produce to a national court where it seeks a warrant in order to be able to compel entry to premises for search and seizure of documents using reasonable force if necessary. The European Court stated the general principle that the national court is required to verify that the coercive measures sought pursuant to the Commission’s request are not arbitrary or disproportionate to the subject matter of the investigation. For this purpose, the national court must ensure that it is provided with the essential information on the suspected infringement and the purpose of the investigation. It would therefore be contrary to EC law for the national court simply to "rubber stamp" the Commission’s decision to inspect the premises concerned, when deciding whether to issue such a warrant.

In principle, an indication must be supplied by the Commission to the national court concerning the following:

  • the essential features of the suspected infringement, including an indication of the affected market and the nature of the suspected restrictions of competition;
  • the manner in which the undertaking concerned is thought to have been involved in the infringement;
  • solid factual information possessed by the Commission and evidence providing grounds for suspecting the infringement by the undertaking;
  • the evidence sought; and
  • if the assistance of national authorities is requested by the Commission as a precautionary measure, the reasons why, if the warrant were not granted, it would be impossible or very difficult to establish the facts amounting to the infringement.

On the other hand, the national court may not demand that it be provided with the evidence in the Commission’s file on which the Commission’s suspicions are based. Where the national court considers that the information put forward by the Commission does not fulfil the above requirements, it is required to inform the Commission, or the national authority making the application on behalf of the Commission, and to request further clarification to enable the national court to verify that the measures sought are not arbitrary or disproportionate to the subject matter of the investigation. The national court may refuse to grant the warrant or permission sought if the Commission fails to take any practical steps in response to such a request.

Applications for warrants from national courts are usually made by or on behalf of the Commission where the undertaking concerned is refusing to co-operate, and are usually made ex parte, i.e. in the absence of any representatives of the undertaking. One can therefore envisage that in strongly contested cases involving a non-co-operative undertaking, the undertaking may consider refusing entry to the Commission representatives even after a warrant has been issued, and consider applying to the court that issued the warrant to have the warrant set aside on the basis that the national court could not have been in possession of sufficient information to enable it to carry out the necessary review as to whether or not the measures authorised are arbitrary and proportionate. This could be a robust response by an undertaking seeking to refuse entry until such time as the court upheld the validity of the warrant on an inter partes basis. However, it is possible that such an action would not be successful if the Commission had been able to provide reasonable prima facie evidence or information on the above points specified by the European Court. Moreover, if the undertaking were unsuccessful, it would be likely to be exposed to periodic penalty payments in respect of the period between the date entry was refused and the date it was subsequently granted.