Privilege against self-incrimination in EU Competition law – Undertaking's
right to remain silent
The University of Amsterdam
The Faculty of Law
European Competition Law and
Regulation
Master’s thesis
Lauri Putkonen
18.7.2016
I
Abstract
This thesis analyses the substantive and the personal scope of the privilege against selfincrimination in European Union competition law. This privilege in the field of competition
law is a judicial creation established by the European Court of Justice and the European
Court of First Instance. The examination of the subject is divided into two sections; first the
personal scope of the privilege according to the Regulation 1/2003 which gives the
Commission the power to investigate and second, the substantive scope according to the case
law regarding the privilege.
The original EU treaties did not contain any system of fundamental rights protection and it
was not until late 60s when the European courts started to pay attention to these rights.
Nowadays fundamental rights are part of the primary law in the European Union and their
importance is increasing. Also certain administrative proceedings, such as competition law
proceedings, could be considered criminal by its nature as meant in ECHR 6(1) if the Engel
criteria are fulfilled, which means that also the privilege against self-incrimination could be
invoked by the undertakings in competition law proceedings.
Even though not particularly mentioned in Article 6 of the ECHR, the article grants an
undertaking under investigation a right to avoid self-incrimination and/or the right to remain
silent when questioned. The substantive scope covers the clarification between permitted
questions, which the Commission is allowed to ask from the undertakings, such as purely
factual questions, and non-permitted, incriminating questions, which are relating more on
subjective notions such as the purpose or objectives of conduct. The personal scope in turn
encompasses the consideration that who can use the voice of the undertakings and therefore
enjoy the privilege. Based on the assessment of these two main issues, the thesis provides an
answer to how broad is the undertaking’s right to remain silent in EU competition procedures
when alleged to have infringed the competition rules covered in Articles 101 and 102 TFEU.
Keywords: article 6 ECHR; articles 101 and 102 TFEU; Commission; competition
enforcement; competition law; dawn raids; European Union; European Court of Human
Rights; European Court of Justice; fundamental rights; notion of undertaking; privilege
against self-incrimination; Regulation 1/2003; request for information; right to remain silent
II
Table of contents
LIST OF ABBREVIATIONS .............................................................................................. III
1. INTRODUCTION................................................................................................................ 1
1.1 Background .......................................................................................................................... 1
1.2 Defining the scope ............................................................................................................... 3
2. PRIVILEGE AGAINST SELF-INCRIMINATION IN EUROPEAN
COMPETITION LAW ............................................................................................................ 7
2.1 Fundamental rights in European Union law ........................................................................ 7
2.2 Privilege against self-incrimination ..................................................................................... 8
2.2.1 Criminal proceedings .................................................................................................... 8
2.2.2 Applying the privilege in EU competition law proceedings ....................................... 10
2.2.3 Who can enjoy the privilege against self-incrimination? ............................................ 12
2.3 The legal framework of the privilege against self-incrimination....................................... 14
3. THE COMMISSION’S POWERS OF INVESTIGATION VS. UNDERTAKINGS’
DUTY TO COOPERATE AND THE PERSONAL SCOPE OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION .................................................................................. 16
3.1 Regulation 1/2003 – Legal basis for the privilege ............................................................. 16
3.1.1 Commission’s investigatory powers ........................................................................... 16
3.1.2 Article 18 of Regulation 1/2003 – Requests for information ...................................... 17
3.1.3 Article 20 of Regulation 1/2003 – Powers of inspection ............................................ 19
3.1.4 Article 21 of Regulation 1/2003 – Inspection of other premises ................................ 20
3.1.5 Self-incrimination principle and dawn raids ............................................................... 20
3.1.6 Self-incrimination and leniency .................................................................................. 21
3.1.7 Obligation to cooperate actively vs. privilege against self-incrimination ................... 22
3.1.8 Exchange of information and differing national standards ......................................... 23
3.2 The current personal scope of the privilege – What the notion of undertaking covers? ... 24
4. SUBSTANTIVE SCOPE OF THE PRIVILEGE AGAINST SELFINCRIMINATION – DEVELOPMENT THROUGH CASE LAW ................................. 25
4.1 The Orkem rule – Setting up the scope of the privilege against self-incrimination .......... 25
4.2 Expanding the substantive scope – Challenge of the Orkem principle ............................. 29
4.3 Use of coercive powers ...................................................................................................... 30
4.4 Return to Orkem rule ......................................................................................................... 31
4.5 Answers obtained by under compulsion – Excluded from the privilege ........................... 32
4.6 Separation between purely factual and incriminating questions........................................ 33
4.7 The current substantive scope of the privilege .................................................................. 34
5. CONCLUSIONS ................................................................................................................ 35
SOURCES ............................................................................................................................... 40
II
LIST OF ABBREVIATIONS
CBb
College van Beroep voor het bedrijfsleven
CFI
The Court of First Instance
CHARTER
The Charter of Fundamental Rights of the European Union
CML Rev
Common Market Law Review
CMLR
Common Market Law Reports
CONVENTION
The European Convention for the Protection of Human Rights and
Fundamental Freedoms
EAGCP
Economy Advisory Group on Competition Policy
EC
The European Community
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
ECJ
The European Court of Justice
ECN
European Competition Network
ECLR
European Competition Law Review
ECR
European Court Report
EGC
The General Court of the European Union
EHRR
European Human Rights Reports
EU
European Union
IDEM
Previously cited source
DG COMP
Directorate General for Competition
OJ
Official journal of the European Union
NCA
National Competition Authority
TEU
Treaty on European Union
TFEU
Treaty on the Functioning of the European Union
III
1. INTRODUCTION
1.1 Background
This paper aims to assess the substantive (material) and the personal scope of the
undertakings right to remain silent when investigated by the Commission or national
competition authority. This particular topic was selected due to the fact that either the
relevant courts or the legal journals and literature had not discussed it properly so far.
Privilege against self-incrimination, as many other privileges in European Union (EU)
competition law level, is a judicial creation established by the European Court of Justice
(ECJ) and the European Court of First Instance (CFI).1 The real challenges appear when there
is an issue that the aforesaid courts have not handled yet. Even though we can find some
amount of case law about the interpretation of the substantive and personal scope of the
privilege, a lot of questions remain still undiscovered. I will give one example of the
challenges of both, the personal and the substantive scope of the privilege.
First the personal scope; could an ex-employee invoke a right to remain silent when
questioned by the national competition authority in connection with an investigation into his
former employer? The question sounds simple. It related to the bigger question about who
can use the voice of the undertaking and represent it. As this paper will show, the answer is
anything but a clear-cut.
There seems to be no straight answers for this question by the European Union courts, but
only one national ruling from the Netherlands. In that case, Dutch Trade and Industry
Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb) gave two judgments on
21 December 2012 (LJN: BY70312, LJN: BY70263), in which it overruled both of the Dutch
Competition Authority’s decisions to impose fines to ex-employees who had refused to
cooperate with the officials of the Dutch national competition authority (NCA). These
employees had failed to answer questions during the NCA’s investigation into the historical
behaviour of their former employer. Contrary to NCA’s opinion, CBb stated that also former
1
Case 155/79 AM&S (1982) ECR 1575, paras 18 – 28.
ECLI:NL:CBB:2012:BY7031.
3
ECLI:NL:CBB:2012:BY7026.
2
1
employees can enjoy the privilege against self-incrimination and have the right to remain
silent to the extent that the inquiries made by the NCA concerned a period in which the
person was still employed by the Undertaking alleged to have infringed the competition rules
and was under investigation. Dutch NCA’s reasoning was totally rejected and CBb
considered that it would be an unwarranted restriction of the right against self incrimination if
the former employees could not invoke the right to remain silent when they are questioned on
the behaviour of their former employer during a time they were still working for that
company.
CBb referred to the broad scope of the duty to cooperate4 under Dutch law and after all, it
seems pretty clear that former employees can invoke the undertaking’s right to remain silent
under Dutch competition law. In most of the EU competition law cases, a former employee is
interrogated without being suspected of “de facto directorship5” and therefore enjoys a right
to remain silent.
In European Union system the obligation to cooperate with investigations is limited to
undertakings and there is no obligation for individuals to cooperate with the Commission or
national competition authorities. It is somewhat surprising that the personal scope of the
privilege against self-incrimination is far from clear and the significant questions – who can
“act as an undertaking” or “use the voice of undertaking” during the investigation processes
are not ascertained.
Second example is about the substantive scope; what kind of documents the undertaking
alleged to have infringed the competition law is obliged to produce, when the Commission is
asking questions from it? The substantive scope of the privilege against self-incrimination is
built on the grounds of the case law from the ECJ and CFI. The challenge here occur because
of the fact that when these two European courts are developing EU law, they have to take
account the rulings from the European Court of Human Rights (ECtHR).6 However, these
have taken a different way of an approach when determining the substantive scope of the
4
As stated in Regulation 1/2003, in European Union system, the obligation to cooperate with investigations is
limited to undertakings and therefore individual are excluded from that obligation.
5
The CBb used the Dutch word ”feitelijk leidinggeven”, which means a person who performs the acts or duties
of a director (not a de jure director) or is judged to be a director in law.
6
Although the legal system of EU is not bound by the case law of the ECtHR, the ECHR can be seen as a
compilation of common constitutional traditions of the Member States, which the ECJ has to respect. The
relation between ECJ and ECtHR will be discussed in more detailed level in Chapter 2.
2
privilege.7 The ECJ has applied a bit narrower scope for the privilege stating that the requests
of information, which are factual by their nature (factual questions), should be allowed to be
made by the Commission. The ECtHR by contrast, has excluded the use of evidence of any
answers that are obtained from the alleged undertaking through compulsory questioning
during non-judicial investigations. That includes also answers given to purely factual
question.8 This contradiction between the courts together with the fact that the substantive
scope privilege is evolving all the time will leave many questions open. This thesis will try to
give answers for these questions.
1.2 Defining the scope
In this study, “Privilege against self-incrimination in EU Competition law – Undertakings
right to remain silent”, the research question consists of two main aspects, which are the
substantive and the personal scope of the privilege against self-incrimination in European
competition law. Answering the research question will help to clarify the scope of the
privilege for undertakings under investigation. Undertakings have certain rights when the
Commission is investigating them and these rights include the privilege against selfincrimination. This paper aims to find out, how broad is the right to remain silent when the
Commission (or NCA) has performed a dawn raid and is asking questions from alleged
undertaking and what it actually covers, meaning factual questions, pre-existing documents,
voluntary answers, exchange of information etc. (substantive) and who can use the voice of
the undertaking and therefore enjoy the privilege (personal scope).
Chapter 2 will set out the standards for applying fundamental rights in European competition
law focussing naturally on privilege against self-incrimination. The relation between
fundamental rights issues and the general European Union law is complicated; Cases against
the EU cannot be brought in ECtHR but the ECJ has ruled that the Member States cannot
escape their human rights obligations by stating that they were actually implementing EU
law.9
7
Chapter 4 will go more deep in analysing the differences between the ECtHR and European courts when
determining the substantive scope of the privilege against self-incrimination.
8
Wils (2003), p. 22.
9
Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454, paras 37 – 40.
3
We have already seen a lot, and are likely to see more and more fundamental rights
arguments in competition law proceedings in the future. One reason for this is the increasing
amount of competition law offences being criminalized in the last couple of decades. Since
the increasing impact of fundamental rights arguments, the privilege against selfincrimination will most probably be more and more significant tool for undertakings to
defend themselves against the accusations of violating the competition rules.
It is crucial to know the circumstances under which the undertakings can invoke the
privilege, which means that certain criterions have to be fulfilled in order to apply the
privilege. Only after that it makes sense to analyse the substantive and personal scope of the
privilege in more detailed level.
Chapter 3 is the starting point for the analysis of research question. The Commission’s
powers to investigate and undertakings rights to remain silent (which are limitations to the
Commission’s powers) could be seen as counterparts. This relation is important to clarify in
order to make clear the tension between these two. This chapter covers both the substantive
and personal scope of the issue but will concentrate more on the personal scope.
Because of the fact that Member States of European Union (Member States) have granted
large amount of investigative and procedural powers in the Regulation 1/2003 (former
Regulation 17/65) to the European Commission for the implementation of Articles 101 and
102 TFEU (former Articles 81 and 82 of the EC Treaty), the Commission has a major role in
the competition law investigations. Undertakings have an obligation to cooperate actively
with the Commission, when the latter is fulfilling its duties assigned by the Regulation
1/2003 (Regulation). According to the Article 18 of the Regulation, undertakings are obliged
to provide all necessary information, when the Commission has made a request or decision to
provide such information whereas the Article 19 gives the Commission the right to take
statements. That means that the Commission may interview any natural or legal persons who
consent to be interviewed for collecting information relating to the subject matter of an
investigation. The owners of the undertakings or other persons authorised to represent them
by law are obliged to supply the information on behalf of the undertaking concerned.
This thesis is focusing especially on undertakings and tries to uncover what are the rights of
the undertaking to remain silent and to what extent they should cooperate with the
Commission and national competition authorities during the investigation procedures.
4
Comparison between the obligation to cooperate and its relation to the right to remain silent
is really important in order to reveal the status of the undertaking alleged to have infringed
the competition rules – To what extent the undertakings have to produce documents and
answer questions? This interplay between the Commission’s powers to investigate and ask
questions and the undertakings duty to cooperate is core of the chapter 3. After this we have
the framework of the relation of these two counterparts and it is easier to move on to chapter
4 and reveal the substantive scope more precisely.
Chapter 4 continues the analysis by clarifying the substantive scope with the help of case law
from CFI, ECJ and ECtHR. In European competition law level, the privilege against selfincrimination was established and developed by the ECJ and CFI. These two in turn have to
take account the jurisdiction of the ECtHR. The substantive scope of the privilege is mainly
built up by means of the judgments of these courts. It has developed a lot since the first ruling
in Orkem.10 This chapter will continue from where the chapter 3 left and give a detailed
analysis of the substantive scope. It is very common for competition regulation that the
definitions in acts are left quite open and are also flexible, which intrinsically increases the
value of case law. Competition authorities and the European courts therefore have a great
influence on the future development of the competition law.11 Together with the wording of
the competition regulation in question, the interpretation of case law often helps to find the
outcome that contributes the development of competition law in the best possible way. After
analysing both substantive and personal scope of the privilege, it is time to make conclusions
in chapter 5.
When interpreting the EU competition law, it is extremely important to be aware of the
relevant case law and the treaties, which the whole legal system in Europe is based on. The
importance of primary sources is emphasized in the classical legal method. That is why this
thesis is written from the classical legal method (doctrinal/positivist) perspective, and
therefore will concentrate on answering the questions of law from internal perspective.
Classical legal method is built on the existing legal sources, such as laws, international
treaties (e.g. TEU and TFEU), relevant case law (case law of the CFI, ECJ, ECtHR), the
10
11
Case 347/87 Orkem v Commission (1989) ECR 3283.
Kuoppamäki, p. 10.
5
existing legal doctrine and legislative proposals.12 The wording of competition regulation is
usually enough to determine how competition law should be interpreted in concrete.
However, since the privilege against self-incrimination is not outright established in the
treaties or regulations, we also have to concentrate on the wording and development of the
case law in order to get the bigger picture.
This thesis encompasses only the competition regulation in European Union and does not go
deep in analysing the situation in any specific Member States. The used source material
contains legal publications, books, case law and other sources such as discussion papers from
the Commission, opinions of Advocate Generals and different guidance papers from the
Commission. With the help of the above-mentioned sources, this study will aim to clarify the
existing legal framework, which is affecting to the self-incrimination rule in the field of
competition law. Main focus is on the primary sources but secondary sources13 are also used
to explain and interpret the primary sources.
The privilege against self-incrimination provides to separate rights – a right to remain silent
and a right not to incriminate oneself. 14 Therefore the wording “privilege against selfincrimination” will be used in this paper to denote both of these elements. The wording
competition law infringements/enforcement in turn refers mainly to anti-competitive
behaviour prohibited under articles 101 and 102 TFEU.15
12
E.g. the Commission’s working papers and documents, which have been made for helping the interpretation
of certain competition regulations. We still have to take into account that the legislative proposals do not have
the same value than for example in Nordic legal system.
13
Privilege against self-incrimination is not comprehensively dealt with the secondary sources, and that was one
reason to put more effort on the primary sources.
14
Ovey – White, p. 174. The privilege underlies the fundamental legal principle, that a person is innocent until
proven guilty.
15
This means that State aid law and mergers are excluded from the scope of this thesis.
6
2. PRIVILEGE AGAINST SELF-INCRIMINATION IN EUROPEAN
COMPETITION LAW
”The Court recalls that, although not specifically mentioned in Article 6 of the Convention,
the right to silence and the right not to incriminate oneself are generally recognized
international standards which lie at the heart of the notion of a fair procedure under Article
6.”16
- Saunders v United Kingdom (1996)
2.1 Fundamental rights in European Union law
When the Lisbon Treaty came into force on December 1 in 2009, the Charter of Fundamental
Rights of the European Union (the Charter) became legally binding in accordance with
Article 6(1) of the TEU.17 Article 6(1) TEU states stat “The Union recognises the rights,
freedoms, and principles set out in the Charter of Fundamental Rights of the European
Union… which shall have the same legal values as the Treaties.” Article 6(2) TEU in turn
opened up the possibility for EU to accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms (the Convention). Article 6(3) TEU refers to
general principles of law as guaranteed by the ECHR and constitutional traditions common to
the Member States.
The original EU treaties18 did not contain a system of fundamental rights protection. The
emphasis at that time was more on the creation of the common market establishing the free
movement of persons, capital, services and goods.19 Member States thought that their own
national constitutions were the best guarantee of protection of these rights.20 In series of cases
in the 1950s and 1960s, the ECJ was unwilling to treat fundamental rights as a part of EU’s
legal order.21 After the signature of the Treaty of Rome in 1957, it took more than 10 years
from the ECJ to make any reference to the protection of fundamental rights.22 Since cases
16
Saunders v United Kingdom (17.12.1996), para 68.
See Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for
the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454.
18
Treaty establishing the European Coal and Steel Community, 18.4.1951, Paris and Treaty establishing the
European Economic Community, 25.3.1957, Rome.
19
Arestis, p. 2.
20
Craig – De Búrca (2011), p. 465 – 477.
21
Case 1/58 Stork v High Authority (1959) ECR 17, Case 40/59 Geitling v High Authority (1960) ECR 423 and
Case 40/64 Sgarlata v Commission (1965) ECR 215.
22
Chalmers – Monti, p. 251.
17
7
Van Eick23 in 1968 and Stauder24 in 1969, the case law started to change in a way that also
EU institutions were bound to take fundamental principles account while exercising their
powers.25 That basically meant that the ECJ would interpret EU measures in the light of
fundamental rights instruments, although these rights still had second-order status, without
having any written provision in the Treaties.26 After Stauder, the well-known Internationale
Handelsgesellschaft judgment was published. The German Federal Constitutional Court was
asked to revoke an EU measure concerning forfeiture of an export-licence deposit which was
claimed to violate German constitutional rights and principles. The ECJ held that there was
no violation of fundamental rights but stated that respect for fundamental rights forms an
integral part of the general principles of law, which the ECJ has to protect and the protection
of such rights (inspired by the constitutional traditions common to the Member States) must
be ensured within the framework of the structure and objectives of the Union.27 Forty years
from these rulings, Treaty of Lisbon attached fundamental rights to primary sources. The
Charter and the general principles of EU law are now ranked as primary law of EU law and
the number of case law dealing with the fundamental rights issues is growing rapidly.28
2.2 Privilege against self-incrimination
2.2.1 Criminal proceedings
The privilege against self-incrimination (nemo tenetur) means the act of incriminating
yourself, or saying something, which shows you are guilty.29 The right to remain silent
constitutes a small but significant part of the defendant’s rights as a whole. The right to
remain silent and the general right to a fair trial have a strong relation to each other’s. The
right to a fair trial is dealt in Article 6 of the European Convention of Human Rights (ECHR)
but that specific Article says nothing about the right to remain silent.
23
Case 35/67 Van Eick v Commission (1968) ECR 329.
Case 29/69 Stauder (1969), ECR 419, para 7, which stated the following: “Interpreted in this way the
provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the
general principles of Community law and protected by the Court.“
25
Idem. According to the Court, EU institution staff disciplinary procedures were ”bound in the exercise of its
powers to observe the fundamental principles of the law of procedure.”
26
Chalmers – Monti, p. 251.
27
Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel
(1970) ERC 1125.
28
Craig – De Búrca 2015, p. 380.
29
Collin, p. 272.
24
8
The right to remain silent is a legal right recognized in many of the world’s legal systems.
The cover of principle is usually known as the right of the accused or the defendant to refuse
to give any comments or provide answer when questioned prior to or during legal
proceedings in a court of law. This can mean either right to avoid self-incrimination or the
right to remain silent when questioned. In criminal investigations, the prosecution must prove
its case without forcing the accused to give evidence through coercion and oppression. The
accused cannot be compelled to say where documents are hidden or how other evidence
against him may be provided nor be compelled to give access to incriminating evidence or to
admit one’s part in the crime.30
Self-incrimination can occur directly or indirectly. Directly means that the suspect made a
statement, which was self-incriminating during the interrogation, while indirectly means that
the statement was made voluntarily without the pressure from another person. Therefore, the
privilege against self-incrimination equals the right not to be obliged to produce evidence
against oneself, which encompasses the right to remain silent and not to answer questions.31
Article 6 of the ECHR is a provision, which aims to protect the right to fair trial. Article 6(1)
protects mainly the public hearing in front of an independent and impartial tribunal, Article
6(2) the presumption of innocence and Article 6(3) other minimum rights for those charged
in a criminal case. Even though not particularly mentioned in the Article, undertakings
privilege against self-incrimination and right to remain silent have been implied into the
Article by the ECtHR in various judgments on the fairness of criminal trials, which constitute
the main framework for the principle.32 The European Court of Human Rights stated in
Saunders, that the reasoning of the privilege against self-incrimination ”lies, inter alia, in the
protection of the accused against improper compulsion by the authorities thereby
contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of
Article 6”.33
30
Steytler, p. 335 – 342.
Wils (2003), p. 9 – 10.
32
E.g. Case 374/87 Orkem (1989) ECR 3283, Case 27/88 Solvay & Cie v Commission (1989) ECR 3355, Engel
and others v Netherlands (1976) 1 EHRR 647, Funke v France (1993) 16 EHRR 297 and Saunders v United
Kingdom (1997) 23 EHRR 313, which all had a major impact on both the establishment and development of the
principle. See also Ashworth, p. 751 – 752.
33
Saunders v United Kingdom para 68.
31
9
Support for the privilege could also be found from the Chapter VI of the Charter of
Fundamental Rights of the European Union. Articles 47 (right to an effective remedy and to a
fair trial) and 48 (presumption of innocence and right of defence) prevent the Commission
from compelling undertakings to provide answers, which would involve an admission to their
participation in competition law infringements.34
2.2.2 Applying the privilege in EU competition law proceedings
Although the privilege against self-incrimination in most often applicable only to criminal
offences, there are some circumstances under which the scope of the principle could be
extended also to administrative decisions in which certain sanctions could be imposed. In
order to determine whether the proceedings involve the determination of criminal charge
under Article 6 ECtHR, the Court has to analyse the nature of the offence, the classification
of the offence under domestic law and the nature and severity of the penalty. These
requirements are called the Engel criteria according to the case Engel.35
By means of the Engels criteria courts can assess whether certain administrative proceeding
could be considered criminal by its nature as meant in ECHR 6(1).36 The first Engel criterion
is the categorisation of an alleged offence in the domestic law as criminal nature; the second
is the nature of the offence and third nature and degree of severity of the possible penalty.
Article 6 ECHR is applicable if any of these three elements is fulfilled, so the Engels criteria
are non-cumulative. The courts have to perform an overall consideration when deciding
whether certain act matches with one of these criterions. 37
In Jussila v Finland, the ECtHR separated the “hard core of criminal law” apart from other
types of criminal process, such as administrative and competition law sanctions. In
competition law proceedings it is not usually a matter of hard core of criminal law and
34
Cardonnel – Wahl, p. 427.
Engel and others v Netherlands (1976) 1 EHRR 647, para 82, in which the Court said the following: ”In this
connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according
to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. The very
nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or
omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in
principle employ against him disciplinary law rather than criminal law.” See also Slater – Waelbroeck, p. 6.
36
Jones – Sufrin, p. 936.
37
Vitkauskas – Dikov, p. 16 – 17.
35
10
interpreting analogically the Jussila distinction, the requirement to use Article 6 of the ECHR
are not that strict these types of infringements:38
“There are clearly ''criminal charges'' of differing weight. What is more, the
autonomous interpretation adopted by the Convention institutions of the notion
of a ''criminal charge'' by applying the Engel criteria have underpinned a
gradual broadening of the criminal head to cases not strictly belonging to the
traditional categories of the criminal law, for example --- competition law.”39
In Jussila, the ECHR broadened the area of criminality stating that competition law is an
example of a field of law that falls inside the boundaries of criminal law. After the
jurisprudence of the ECtHR in Jussila and Engel, it was cleat that Article 6 ECHR covered
also wide range of administrative proceedings. 40 In Menariri, the ECtHR reaffirmed its
stance that competition law proceedings fall under the full protection of Article 6 ECHR.41
The ECJ in turn accepted the criminal character of competition law fines in Hüls42 and in
Dansk Rørindustri43. In competition law procedures, the protection of ECHR starts when the
Commission informs the alleged undertakings in writing of the objection against them.
Therefore, the applicability of Article 6 ECHR requires that there is a trial.44
The problematic issue here is that what types of competition procedures could be considered
criminal under the ECHR. The ECtHR and academic literature have not so far dealt with the
issue whether the scope should be extended to all competition procedures such as fining,
commitment, leniency (immunity or reduction) and settlement procedures.45 Wouter Wils, the
Hearing officer of the Commission, took the view that a distinction should be made “between
the review which the General Court exercises as to the finding of the antitrust infringement,
and the review exercised by that court over the fine.” According to his opinion, the difference
38
Jussila v Finland (2007) 45 EHRR 39.
Idem, para 43.
40
Temple Lang, p. 464 – 480.
41
ECtHR judgment of 27 September 2011 in case Menarini Diagnostics S.R.L. v Italy App, paras 40 – 45.
42
C-199/92 P Hüls AG v Commission (1999) ECR I-4287, para 150.
43
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri v Commission (2005)
ECR I-5425, para 202.
44
Beumer, p. 15 – 16.
45
Idem.
39
11
has to be made between imposing fines for infringements of 101 and 102 TFEU and deciding
whether to accept commitments or not pursuant to Article 9 of Regulation 1/2003.46
In summary all types of competition law proceeding could in theory be considered criminal
by its nature and therefore Article 6 of the ECHR.47 This paper is focusing on infringements
of 101 and 102 TFEU, which most often include the fining aspect and therefore the starting
point is that alleged undertaking undertakings have the right to remain silent if the
substantive criteria is met. Next chapter clarifies what a notion “undertaking” means in
competition law, which is important for the reason that only undertakings can enjoy the
privilege in competition law proceedings.
2.2.3 Who can enjoy the privilege against self-incrimination?
The question about who actually can enjoy the privilege is quite challenging. Since the
competition rules are applicable only to agreements, decisions or concerted practices between
undertakings or associations of undertakings, it is the notion of undertaking that basically
determines who can enjoy the privilege.
The notion of undertakings is not defined in the Treaties but has been settled as a result of
case law. The Court of Justice has defined undertakings as entities engaged in an economic
activity, regardless of their legal status and the way in which they are financed.48 Contrary to
the internal market rules, where the applicability of the rules relies to the nature of the entity,
for competition rules, the nature is irrelevant.49
Vice versa, the nature of the entities’ activities is the most relevant factor when determining
whether it is an undertaking or not. The status of the entity under national law is not decisive
and the only relevant criterion is whether it carries out an economic activity.50 According to
the case law of the Court of Justice and the General Court, fulfilling the definition of an
undertaking does not depend on whether the entity is established for generating profits, and
46
Wils (2014), p. 5 – 7.
Jones – Sufrin, p. 936.
48
Joined Cases C-180/98 to C-184/98 Pavlov and Others (2000) ECR I-6451, para 74. See also Case C-41/90
Hofner and Elser v Macrotron GmBH, para 21 and the opinion of AG Roemer in Case 32/65 Italy v Council, in
which he stated that: "Apart from legal form or the purpose of gain, undertakings are natural or legal persons
which take part actively and independently in business and are not, therefore, engaged in a purely private
activity".
49
Hatzopoulos, p. 16.
50
Draft Commission Notice on the notion of State aid pursuant to Article 107(1) TFEU, para 8.
47
12
non-profit entities can also offer goods and services on a market.51 The classification of an
entity as an undertaking is relative to a specific activity and therefore in a case where an
entity carries out both economic and non-economic activities, it is to be viewed as an
undertaking only regard to the former.52 This situation is made clear in the ECJ’s theory of
severability:
”However, since the Treaty provisions on competition are applicable to the
activities of an entity which can be severed from those in which it engages as a
public authority, the various activities of an entity must be considered
individually and the treatment of some of them as powers of a public authority
does not mean that it must be concluded that the other activities are not
economic.”53
Usually in competition law cases in which the Commission is using its enforcement powers,
there is no question, whether the alleged undertaking(s) fulfil(s) the criterion to be treated as
an undertaking. It is still crucial to determine whether there is economic activity involved or
not, because competition law rules only apply when the criterion is met. In this thesis the
term undertaking denotes either undertaking or the association of undertaking54.
According to Article 20(2)(e), of any representative or member of staff of the undertaking is
obliged to give information relating to the subject matter and purpose of the inspection to the
Commission. That means that when the Commission or national competition authorities are
using their power of investigation, they have to collect the evidence usually from
undertakings and their staff or from other sources, such as complainant or third parties. Since
the former is usually the most knowledgeable party, the undertakings concerned are the
primary source of information for the Commission.55
Staff members could in theory be held liable for refusing to response to information requests,
but since the EU competition rules do not allow any penalties to be imposed to individuals
and the information given by the staff members could not be used by NCAs to impose stricter
51
Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck (1980) ECR 3125 paragraph 88 and Case C-49/07
MOTOE (2008) ECR I- 4863, paras 27 – 28.
52
Draft Commission Notice on the notion of State aid pursuant to Article 107(1) TFEU, para 8.
53
Case T-155/04 SELEX Sistemi Integrati SpA v Commission, para 54.
54
The competition rules (Articles 101 and 102 TFEU) apply to all agreements between undertakings, decisions
by associations of undertakings and concerted practices, which may affect trade between Member States and
have a harmful effect for competition.
55
Wils (2008), p. 1.
13
custodial sentences, the liability does not practically exists.56 The general opinion seems to be
that when an officer or staff member of a company is required to provide information about a
document, he will not incriminate himself because he is actually giving answers on behalf of
the undertaking.57 The ECtHR has also dealt with the issue in Peterson Sarpsborg AS v.
Norway, in which it considered ”whether or to what extent these companies can incriminate
themselves through statements made by their employees.” The ECtHR stated that the right to
remain silent is not distinctly guaranteed by Article 6 of the Convention but privilege still
plays an important role in safeguarding the accused from coercion during criminal
proceedings. The Court also said that whether a particular applicant has been compelled to
incriminate himself depends on an overall assessment, which the Court has to go through in
each individual case. In this case under examination, the Commission did not speak out the
issue in further because complaint itself was manifestly ill-founded.58
Practically undertakings can act only through its employees and agents and when the
Convention protects the undertaking with the privilege against self-incrimination, the
privilege should be extended to the statements made on its behalf.59 This important issue will
be addressed more precisely in next chapter 3 while going through the relation between the
Commission’s investigation powers and undertakings’ obligation to cooperate.
2.3 The legal framework of the privilege against self-incrimination
The Commission and national competition authorities of the Member States are subject to
certain limitations when using their powers of investigation.60 The entitlement for these
powers is set out in Regulation 1/2003 (Regulation), which is based on a system of
decentralised ex post enforcement. 61 Also the basis for the privilege against selfincrimination flows from the Regulation.
56
Wils (2003), p. 13 – 14.
Willis, p. 4.
58
Peterson Sarpsborg AS and others v Norway, No. 25944/94, dec. 27.11.96.
59
Willis, p. 4.
60
Wils (2003), p. 9 – 10.
61
Regulation 1/2003 forms guidelines for the enforcement of 101 and 101 TFEU. It replaced the Regulation 17
(1962) which was characterised by a centralised notification system for Article 101(3) TFEU. See also Wils
(2013).
57
14
Recital 23 of the Regulation states that undertakings cannot be forced to admit their
participation to an infringement but they are still obliged to answer factual questions and
provide documents even if it is used against them to establish an infringement.62 In other
words Regulation confirms the case law and states that although undertakings cannot be
forced to incriminate themselves, they do not have an express right to silence and they must
provide all the necessary information for the Commission.63 Chapter IV of the Regulation
determines the Commission’s powers of investigations and its relation to the undertakings’
duty to cooperate.64
Although now the foundation of the privilege could be found from the Regulation 1/2003 and
Article 6 ECHR, the self-incrimination principle has evolved into what it is today mostly
because the case law from the European Court of Human Rights, the General Court of the
European Union and the European Court of Justice. We should not forget the national courts
either, but their affect is no match for the judgments of European courts. The most important
cases for the privilege against self-incrimination are discussed in chapter 4. Not all the cases
in the that chapter are competition law related but all of them are still very important in order
to clarify the scope of the privilege against from the undertakings’ perspective. The reason
for that is that the first self-incrimination related judgments of ECtHR, such as Engel65,
Funke66, John Murray67 and Saunders68, created the substantive scope for the privilege,
which is highly relevant for competition law as well. In these cases the ECtHR has held that
the self-incrimination principle forms part of the fair procedure under Article 6 of the
European Convention of Human Rights69 and that is why they will help to understand the
outline of the privilege in general, its scope and rationale for competition law cases.
62
Recital 23 states the following: ”The Commission should be empowered throughout the Community to require
such information to be supplied as is necessary to detect any agreement, decision or concerted practice
prohibited by Article 81 of the Treaty or any abuse of a dominant position prohibited by Article 82 of the Treaty.
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.”
63
Case 347/87 Orkem v Commission (1989) ECR 3283, para 34, Joined Cases C-204/00 Aalborg Portland etc,
para 61, Case C-301/04 P SGL Carbon, paras 39 and 41, Case T-112/98 Mannesmannröhren-Werke, para 65,
Case T-34/93 Société Générale, para 74.
64
This issue is discussed in more detailed way in chapter 3.
65
Engel and others v Netherlands (1976) 1 EHRR 647.
66
Funke v. France (1993) 16 EHRR 297.
67
John Murray v United Kingdom (1996) 22 E.H.R.R. 29.
68
Saunders v United Kingdom (1997) 23 EHRR 313.
69
Wils (2005), p. 137.
15
The first major cases in which the applicability of the privilege and the scope of the
protection it generates have been clarified, were Orkem v Commission70 and Solvay & Cie v
Commission71. In these cases, the ECJ considered for the first time whether undertakings
could refuse to answer certain questions in a Commission request for information in a
situation when to do so would be self-incriminating.
Next chapter is the starting point for the analysis of both the substantive and personal scope
(with the emphasis on personal cope) of the privilege against self-incrimination. It starts with
going through the investigative and procedural powers given to the Commission by the
Regulation 1/2003 and draws the conclusion of the personal scope with the help of the
Regulation. The Commission’s powers to investigate and undertakings right to remain silent,
which is a limitation to the Commission’s powers, could be seen as counterparts and the
tension between them forms also the basis for the privilege against self-incrimination.
3. THE COMMISSION’S POWERS OF INVESTIGATION VS.
UNDERTAKINGS’ DUTY TO COOPERATE AND THE PERSONAL
SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION
“The fundamental principle of Community law that the rights of defence must be respected in
all proceedings in which sanctions may be imposed.”72
Judge Pernilla Lindh (2000)
3.1 Regulation 1/2003 – Legal basis for the privilege
3.1.1 Commission’s investigatory powers
The Commissions powers of investigations are subject to two different sets of limitations:
Legal professional privilege (LPP) and the privilege against self-incrimination. Due to the
LPP, the Commission cannot exercise its powers to take by force, or compel the production
of communications between lawyer and client, which are made for the purpose and in the
70
Case 347/87 Orkem v Commission (1989) ECR 3283.
Case 27/88 Solvay & Cie v Commission (1989) ERC 3355.
72
Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and others v
Commission (2000) ECR II-491, para 106.
71
16
interest of defense and that they emanate from a qualified lawyer.73 If undertakings refuse to
cooperate (or attempts to obstruct) with the Commission when it is carrying out its
investigation, it could lead to an increased fine for the competition law violations found
following the investigation.74
The Commission’s powers of investigation are set out in Chapter V of the Regulation 1/2003,
and more precisely in Article 18 (request for information) and Articles 20 and 21 (about
inspections). 75 Also under Article 19 of the Regulation, the Commission can interview
natural and legal person if they give their consents to be interviewed for the purpose of
collecting information relating the subject matter of the investigation, although there are no
penalties for providing misleading information. That is why Article 19 is excluded from area
of the powers of investigation.
Together with the competition authorities of the Member States, the Commission forms a
network of competition authorities, whose conduct is regulated in Regulation 1/2003.76
Together these competition authorities have the task of punishing and detecting violations of
Articles 101 and 102 TFEU. While implementing this task, the competition authorities have
to gather the necessary evidence and intelligence from various sources, e.g. complainants,
third parties or the undertakings (and their staff) alleged to have committed the competition
violation. The latter is usually the best source of information. Many times, the undertakings
and their staff are the only ones who actually have the information needed by the authorities.
This is typical for example in price cartels and other serious competition law infringements.77
3.1.2 Article 18 of Regulation 1/2003 – Requests for information
According to the Article 18 of Regulation 1/2003, the Commission is enabled, in order to
carry out its duties under the Regulation, to require all necessary information.78 Article 18(1)
of the Regulation enables the Commission to simply request information, or require it by
decision. Article 18(2) clarifies that when sending a simple request, the Commission must
”state the legal basis and the purpose of the request, specify what information is required and
73
Turno – Zawlocka-Turno, p. 196.
Wils (2005), p. 133 – 134.
75
Wils (2003), p. 3. Also according to Article 19 of the Regulation, the Commission can interview natural and
legal person if they give their consents to be interviewed.
76
Idem.
77
Wils (2008), p. 1.
78
Case 347/87 Orkem v Commission (1989) ECR 3283.
74
17
fix the time-limit within which the information is to be provided, and the penalties provided
for in Article 23 for supplying incorrect or misleading information.” The same rule applies
for Article 18(3) when the Commission requires undertakings to supply information by
decision. It also has to fix the time- limit for undertaking to provide the requested
information.
The Commission targets its request for undertakings, which usually are legal persons.
According to Article 18(4), it is owners or their representatives of the alleged undertaking
who shall supply the information on behalf of the undertaking concerned. If the company
concerned does not have a legal personality, the persons authorised to represent them by law
is responsible for supplying the requested information. In most cases it is the lawyers who
may supply (and are responsible for) the information on behalf of their client. The
Commission also has to inform the Member State in whose territory the seat of the company
is situated and send a copy of the request to the NCA in question (18(5)). The Member States
in turn have to provide at the request of the Commission, with all the necessary information,
which would be needed to carry duties mentioned in the Regulation.
When the Commission makes a request for information under Article 18 of the Regulation
and asks the undertaking to describe e.g. the object, results or amount of meetings in which
the undertaking has participated and it suspects the undertaking to have infringed or restricted
competition, the undertaking is not required to answer questions of that type. 79 If the
undertaking however supplies information on those points, it must be “regarded as
spontaneous cooperation on the undertaking's part capable of justifying a reduction in the
fine in application of the Leniency Notice”80 and they cannot claim that their right not to
incriminate themselves has been infringed when they have voluntarily given the answers.81 In
other words, the undertakings do not have an obligation to provide answers for questions that
might lead to admission of the infringement, but if they voluntarily reply for such request of
information, they cannot claim that their right not to incriminate themselves has been
infringed.
79
Case T-446/05 Amann & Söhne v Commission, (2010) ECR II-1255, para 329.
Case T‑48/02 Brouwerij Haacht v Commission (2005) ECR II‑5259, para 107.
81
T-50/00 Dalmine v Commission (2004) ECR II-2395, para 46.
80
18
3.1.3 Article 20 of Regulation 1/2003 – Powers of inspection
Article 20(2)(a–d) states that the Commission has the right to conduct inspections in any
premises, land and means of transport of undertakings and to examine the books and records
related to the business and to take or obtain any copies from such material and to seal any
business premises and books or records for the extent necessary for the inspection.
Article 20(2)(e)82 allows the Commission to ask questions also to staff members of the
undertaking in question. In theory this could mean that a staff member could be held liable
for refusing to answer, but that is not the case, because Regulation 1/2003 does not allow any
penalty to be imposed on staff members nor could this information obtained by the
Commission to be used in evidence by NCAs to impose any custodial sentences or other
sanctions which would make the stricter case law83 of ECtHR applicable.84
As with the request for information, Article 20(4) states that the decision ordering the
inspection has to show the subject matter and purpose of the inspection. In Ventouris, the
Court clarified this saying that the obligation to specify both the purpose and the subjectmatter of the investigation “is a fundamental requirement, designed not merely to show that
the proposed entry onto the premises of the undertakings concerned is justified but also to
enable the undertakings to assess the scope of their duty to cooperate whilst at the same time
safe-guarding their rights of defence.” 85
If the undertaking opposes the inspection, Member State concerned can use assistance of the
police or other enforcement authority, to conduct the inspection. If coercive measures from
article 20(6) of the Regulation are used, the national court from the Member State concerned
has the obligation to ensure, “that the coercive measure envisaged is not arbitrary or
disproportionate to the subject-matter of the investigation ordered”.86 The standard for using
coercive measures is quite high and the national court must verify that the measure is
82
20(2)(e) states the following: ”to ask any representative or member of staff of the undertaking or association
of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the
inspection and to record the answers.”
83
This stricter case law of ECtHR means that the use of evidence of any answers obtained from the accused
through compulsory questioning is always prohibited, including also answers to purely factual questions. See
Wils (2003), p. 12 – 13.
84
Wils (2003), p. 13 – 14.
85
Case T-59/99 Ventouris Group Enterprises SA v Commission of the European Communities, para 124. See
also Hoechst v Commission, para 29, and Roquette Frères, para 47.
86
Case C-94/00 Roquette Frères (2002) ECR I-9039, para 52.
19
appropriate in order to carry out the investigation.87
3.1.4 Article 21 of Regulation 1/2003 – Inspection of other premises
According to the Article 21(1) of the Regulation, there must exist a reasonable suspicion that
documents related to the business and subject-matter of the inspection would being kept in
other premises, such as homes of directors, managers and other member of staff of the
undertaking, in order for Commission to be able to order an inspection to be conducted there.
The standard for that is relatively high. There must be an assumption or strong suspicion that
books or other important material which would actually be relevant to prove serious violation
of 101 or 102 TFEU, are being kept in the investigated premises.88 A decision adopted under
Article 21(1) also has to be authorized from a national judicial authority of the Member State
concerned in order to be executed. The personnel authorised to carry out the inspection shall
have the same powers set out in Article 20.
The Commission’s obligation to state precisely what it is looking for is really important for
undertakings in order to built its defence and to be assured what type of information it is
obliged to provide. This applies for both Articles 20 and 21 of the Regulation 1/2003.
3.1.5 Self-incrimination principle and dawn raids
The Commission’s investigation procedure starts often with the dawn raid, and that procedure
requires certain procedural steps to be fulfilled. According to the case law, rights of defence
must be respected already at the preliminary stage.89 When the Commission is carrying out its
dawn raid, the undertakings under investigation are protected by certain guarantees, including
the right to legal representation.90 When the undertaking is exercising its right to legal
consultation, it must not delay or impede the investigation.91
Dawn raids may potentially infringe some procedural rights (such as right to remain silent,
right not to incriminate oneself, right to have a lawyer at the hearing etc.) of the inspected
undertakings according to the ECtHR.92 The dawn raid procedure is criminal for the purpose
87
Idem, para 71.
Wils (2011), p. 6.
89
Case 374/87 Orkem v Commission, (1989) ECR 3283, para 33.
90
Case C-94/00 Roquette Frères (2002) ECR I-9039, para 46.
91
Kerse, section 3.40.
92
Wils (2005), p. 133 – 134.
88
20
of Article 6 of the ECHR and therefore legal persons who are the target of the dawn raid
should have the same rights as persons charged with a criminal offence under Article 6(1),
which means that they should be able to avail themselves of the privilege.93
The Courts have extended the protection against self-incrimination only to the extend which
grants the protection to answers gotten from information requests made for the purpose of
investigation and which would lead to an admission of the existence of an infringement.94 If
the parties alleged to have infringed the competition rules feel that they should not be
compelled to answer to questions that could force them to admit the infringement, they can
direct the matter to the Hearing officer. He/she may adopt a reasoned recommendation as to
whether the privilege against self-incrimination applies or not.95 The information discovered
and collected during the dawn raids or supplied in response to an information request is
however free from the protection of self-incrimination principle.96
Under some circumstances, the ECtHR applies the privilege also to pre-existing documents,
e.g. when an individual would be compelled to provide evidence against itself.97 However,
that does not protect the undertaking, when it by itself must provide answers requested by the
authority or when the Commission or NCA is collecting evidence during a dawn raid.
3.1.6 Self-incrimination and leniency
Leniency means an opportunity for undertaking to cooperate with the Commission and get a
reduction or total immunity from fines in cartel cases.98 In theory, the privilege against selfincrimination could be contrary to the Commission’s fining procedure. Leniency notice sets a
framework in which the undertaking using the leniency could actually get immunity by the
Commission. In order to get the immunity or reduction of fines, the undertaking has to
incriminate itself by disclosing incrimination evidence. The principle of the presumption of
innocence could be damaged when the undertakings are giving too extensive information, in
93
Aslam – Ramsden, p. 72.
Calzado – De Stefano, p. 3.
95
Art 4(2)(b) of the Decision of the President of the European Commission of 13 October 2011 on the Function
and Terms of Reference of the Hearing Officer in Certain Competition Proceedings, (2011) OJ L/275/29.
96
Wils (2003), p. 11 – 13.
97
Idem.
98
Commission Notice on Immunity from fines and reduction of fines in cartel cases (2006/C 298/11) (Leniency
Notice), para 1.
94
21
which the Leniency Notice aims for. This in turn could lead to the burden of proof to be
reversed when the alleged undertaking must provide most of the evidence.99
However, the European Courts have so far rejected the argument that the use of leniency
program would be contrary to fundamental rights. In Metsä-Serla, the ECJ clarified that when
an undertaking limits its cooperation “to that which is required to provide under Regulation
No 17 will not, on that ground, have an increased fine imposed on it.” In a case where the
undertaking has ended the cooperation and the Commission considers that the undertaking is
responsible for the infringement, it will be fined it should be “fined in accordance with
criteria which may lawfully be taken into account –“.100
The alleged undertakings have the freedom to decide whether to take advantage of the
leniency program. The privilege of self-incrimination should not attach to the evidence
outside the mind of the evidence (e.g. pre-existing documents and recorded information). The
utilization of leniency regime and encouraging undertakings to voluntarily give incriminating
testimony does not therefore fall within the terms of compulsion.101
3.1.7 Obligation to cooperate actively vs. privilege against self-incrimination
Undertakings have an obligation to cooperate actively when the Commission is investigating
them. Commission is entitled to oblige undertakings to provide all the information that it
needs in order to use its powers provided in the Regulation.102 The obligation to cooperate
actively is unwrapped in Aalborg, in which the Commission stated that Regulation 1/2003
places the alleged undertaking ”under a duty of active cooperation”.103 Active cooperation
means that the undertaking must be prepared to produce the information relating to the object
of the inquiry.104 The Commission is entitled to make questions to undertaking(s) about the
conduct of all undertakings concerned.105
The obligation to cooperate requires that undertakings cannot refuse to provide documents,
even if it would be required to give evidence against itself.106 The Commission cannot force
99
Schwarze – Bosch, p. 31.
C-298/98 P Metsä-Serla Sales Oy (Finnboard) v Commission (2000) ECR I-10171, para 58.
101
MacCulloh, p. 237.
102
Case 347/87 Orkem v Commission (1989) ECR 3283, para 34.
103
Joined Cases C-204/00 Aalborg Portland etc., para 62.
104
Case 347/87 Orkem v Commission (1989) ECR 3283, para 27.
105
Ibid, para 207. See also Case C-301/04 P SGL Carbon, paras 40 and 47.
106
Case C-301/04 P SGL Carbon, para 48.
100
22
an alleged undertaking to provide it with answers, which actually contains an admission from
the undertaking on its participation to the infringement. It is an obligation of the Commission
to prove that the alleged undertaking is actually involved for certain competition
infringement.107
The balance between active cooperation and privilege against self-incrimination requires an
overall assessment of the facts in each individual case. From the competition law perspective,
it is extremely important to ensure that the Commission has enough tools to use the powers of
investigation that are given to it under Regulation 1/2003. On the other hand, the
Commission cannot act against the Fundamental rights (the Charter and the Convention)
which are legally binding and set out in Article 6(1) of the TEU. Balancing these two aims is
like fighting with a double-edged sword; you cannot favour one without damaging the other.
The Commission and national authorities must be careful when limiting the right to remain
silent but they still have to make certain that they are effectively performing their duties set
out in the Regulation.
3.1.8 Exchange of information and differing national standards
The powers of investigation of the national competition authorities of the Members States are
set out in their own national laws and regulations. In some Member States, these powers are
stronger compared to powers of the Commission.108 This basically means that the national
rules can be more protective or less protective for the undertakings.
If the national authorities want to rely on statements compelled by the Commission, they will
have to comply with the stricter standards.109 This situation can actualize where the Member
States afford either more protection against self-incrimination, or imposes wider disclosure
obligation (less protection). The alleged undertakings cannot rely on these national standards
against the Commission. An example of such “less protective” national standards could be
private enforcement proceedings.110
107
Idem. See also Joined Cases C-65/02 P and C-73/02 P ThyssenKrupp Stainless v Commission (2005) ECR I06773, para 49.
108
Wils (2005), p. 134.
109
Case T-112/98 Mannesmannröhren-Werke, paras 80 – 85.
110
Case C-60/92 Otto v Postbank, para 18, which stated the following: ”…if the limitation on the Commission's
power of investigation under Regulation No 17 is not applied in the national proceedings, that limitation would
be deprived of any practical effect, since the Commission could obtain through the national proceedings the
information which it cannot obtain directly under the procedure governed by Regulation No 17.”
23
3.2 The current personal scope of the privilege – What the notion of undertaking
covers?
Since the Article 20(2)(e) of Regulation No 1/2003 gives the Commission a permission to ask
questions from individual members,111 it should be undisputed that all these individuals using
the voice of the undertaking would also be able to invoke the privilege. The company’s staff
covers basically directors, managers, company officers and corporate bodies, which could in
theory be liable to punishment if they have assisted or consented an offence or in other ways
been neglect. When the Commission is asking questions from individuals, it can address them
only as regards explanation of documents or facts that is linked to the subject matter and
purpose of the investigation.
Because of the fact that these individuals acting behalf of the undertaking cannot face any
custodial sanctions, the stricter case law from ECtHR should not be applicable for their
situation. The stricter case law112 of the ECtHR is only applicable to the investigation by
national competition authorities in Member States whose national laws allows criminal
sanction on natural persons for violations of Articles 101 and 102 TFEU or other related
competition law offences.113 The stricter case law could also in theory be applicable for the
Commission, when it would be investigation an undertaking of an unincorporated business,
such as a single trader, unincorporated professional or natural persons operating a single
business.114
Some national laws of Member States enable stronger powers to their national competition
authorities for investigating violations of Articles 101 and 102 TFEU than Regulation 1/2003
gives to the Commission even if these Member States do not have stronger sanctions for
these violations. In some Member States, production of specified documents and information
could be required not only from undertakings, but also individual members or staff and
failure to cooperate with the investigation could lead to criminal charges.
111
The former Regulation No 17 only gave the Commission the power to seek explanations relating to the books
and records under examination. See Wish (2003), p. 5.
112
This stricter case law of ECtHR means that the use of evidence of any answers obtained from the accused
through compulsory questioning is always prohibited, including also answers to purely factual questions. See
Wils (2003), p. 12 – 13.
113
Wils (2005), p. 139.
114
Idem.
24
The aforesaid raises the question of how broad this liability could be extended. The notion of
“staff” is extremely broad, but it would be extraordinary to broaden that group beyond the
“decision-making bodies”. On the other hand it would also be strange if all of the staff
members could not invoke the principle.
Here we come back to the question mentioned in the introduction about former employees
and their right to remain silent. It is not confirmed by the Courts how far the privilege could
be extended when the Commission or NCA is making questions to individuals who represent
the undertaking in question. The personal scope of the privilege could not be extended too
broad, because otherwise the Commission’s mission set out in the Regulation would be
possible to fulfil. If the former employees could in all circumstances use the full privilege, the
undertakings could in theory artificially try to avoid giving certain information e.g. by ending
the employment of the management before they are heard in front of the Commission or
NCA. These are theoretical possibilities but in a situation when we don’t have any clear
rulings about the personal scope, we have to pay attention to the different possible outcomes.
In conclusion, the privilege should be extended to all natural persons who are de facto
legitimate to represent the company and therefore using the voice of the undertaking. The
next chapter will concentrate more on the substantive scope of the privilege.
4. SUBSTANTIVE SCOPE OF THE PRIVILEGE AGAINST SELFINCRIMINATION – DEVELOPMENT THROUGH CASE LAW
”The Commission may not compel an undertaking to provide it with answers which might
involve an admission on its part of the existence of an infringement which it is incumbent
upon the Commission to prove.”115
The Orkem rule (1989)
4.1 The Orkem rule – Setting up the scope of the privilege against selfincrimination
The Commission’s powers of investigation and its relation the undertaking’s right to remain
silent were under surveillance for the first time in case Orkem (1989). According to the
Commission’s decision, the laws of Member States grant the right not to give evidence
115
Case 347/87 Orkem v Commission (1989) ECR 3283, para 35.
25
against oneself. According to the arguments presented by Orkem, the Commission had
infringed the general principle of self-incrimination, while requesting information and
compelling Orkem to provide evidence, which was incriminating against itself.116
The ECJ responded, that Regulation No. 17 (replaced by Regulation 1/2003) contains no
express right to silence and the Commission is entitled to compel an undertaking to provide
all necessary information concerning such facts as may be known to it.117 It means that
undertakings have an obligation to cooperate actively.118 The obligation to cooperate entails
that “…the undertaking may not evade requests for production of documents on the ground
that by complying with them it would be required to give evidence against itself.” 119
However, the court continued saying that the Commission cannot compel undertaking to
provide it with answers which could involve an admission of an infringement of competition
rules on undertakings part. The existence of the infringement is always incumbent upon the
Commission to prove.120 The Court continued that an undertaking, which is subject to an
investigation relating to competition law, might rely upon the Article 6 of the ECHR. The
Court emphasized that the wording of Article 6 of the Convention or the case law of the
European Court of Human Rights does not point out the existence of a right not to give
evidence against oneself:
“As far as Article 6 of the European Convention is concerned, although it may
be relied upon by an undertaking subject to an investigation relating to
competition law, it must be observed that neither the wording of that article nor
the decisions of the European Court of Human Rights indicate that it upholds
the right not to give evidence against oneself.”121
The ECJ continued that even the Article of the International Covenant122, which upholds inter
alia the right not to give evidence against oneself or to confess guilty (paragraph 3(g)), relates
116
Vesterdorf, p. 1190. See also Case 347/87 Orkem v Commission (1989) ECR 3283, para 18.
Case 347/87 Orkem v Commission (1989) ECR 3283, para 34, Joined Cases C-204/00 Aalborg Portland etc,
para 61, SGL Carbon, Case C-301/04 P, paras 39 and 41, Case T-112/98 Mannesmannröhren-Werke, para 65,
Case T-34/93 Société Générale, para 74.
118
C-204/00 etc. Aalborg Portland, Joined Cases, paras 62, 207; SGL Carbon, Case 301/04 P, paras 40 and 47.
119
SGL Carbon, Case C-301/04 P, para 48.
120
Case 347/87 Orkem v Commission (1989) ECR 3283, para 35.
121
Case 347/87 Orkem v Commission (1989) ECR 3283, para 30.
122
International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.
It is a multilateral treaty, which commits its parties to respect the civil and political rights of individual, such as
right to life and freedom of religion and speech.
117
26
only to persons that are accused of a criminal offense in court proceedings and therefore does
not have any effect on investigations in the field of competition law. In spite of that, the
Court said that the Community law imposes limitations on the Commission’s powers of
investigation:
“It is necessary, however, to consider whether certain limitations on the
Commission's powers of investigation are implied by the need to safeguard the
rights of the defence which the Court has held to be a fundamental principle of
the Community legal order.”123
What the Court meant by that is the fact that the rights of the defence should be observed in
administrative procedures which may lead to the imposition of penalties. The Commission
should prevent those rights from being impaired during preliminary inquiry procedures.
These procedures could be decisive in providing “evidence of the unlawful nature of conduct
engaged in by undertakings and for which they may be liable.”124
One of the most important factors in formulating the self-incrimination principle in Orkem
was the establishment of the substantive scope of the privilege. The Court made a difference
between two categories of questions; questions that are permitted (factual questions) and
question that are not permitted (incriminating questions). Factual questions are questions
relating to the subject matter and implementation of measures taken in order to carry out the
alleged competition infringement.
The exception to the obligation to provide information did not extend to purely factual
questions. Therefore, even if the documents that are in the undertakings possession may be
used to establish the existence of anti-competitive conduct, it may not undermine the rights of
defence of the undertaking concerned. That means that undertaking cannot contest request of
information for the production of documents already in existence, even if that information is
used against it later on.125
That is why the questions from the Commission relating to meetings of producers and which
were intended to secure information on the background of the meetings (where the meetings
123
Idem, para 32. See also Case 322/81 Michelin v Commission (1983) ECR 3461, para 7.
Case 347/87 Orkem v Commission (1989) ECR 3283, para 33. See also Joined Cases 46/87 and 227/88
Hoechst v Commission (1989) ECR 2859, para 15.
125
Case 347/87 Orkem v Commission (1989) ECR 3283, para 34.
124
27
were held and how many participants attended to them) and the requirement to disclosure
these documents in the applicant’s possession were open to criticism according to the Court.
As far as the Commission asked questions in order to seek factual clarification as to the
subject matter implementation of certain measures, it acted within its powers and did not
infringe the self-incrimination principle. The obligation for active cooperation includes
production of all pre-existing documents.126
However, the situation is different as regard to questions, which relate to the purpose of the
action taken and objectives pursued by those measures. In that respect the Court said that
questions, which tries to verify “every step or concerted measure which may have been
envisaged or adopted to support such price initiatives” could be seen as to be compelling the
applicant to acknowledge its participation in the prohibited price fixing agreement which was
capable of restricting competition.127 Answering for that type of question would actually
force the undertaking to admit its role in the alleged competition infringement.
As we can see from above, Orkem was the first case in which the Commission considered the
relation of undertakings’ obligation to cooperate actively and its right to remain silent. It was
therefore fundamental judgment for the determination of rights of the defence in competition
law proceedings. The separation between purely factual questions (e.g. pre-existing
documents) and incriminating questions was made for the first time to counterbalance the
Commission’s right to require undertaking to provide all necessary information as set out
now in Article 18(1) in Regulation. The substantive scope of the principle was established;
the principles laid down in the judgment protected undertakings against self-incrimination to
the extent that answering to questions would results in an actual admission on their part of the
existence of an infringement.
Three years later on in Otto v Postbank, the ECJ clarified its stance on the fact that there is no
express right to remain silent nor give evidence under Article 6, but the Commission may not
compel the undertaking to provide answers involving admission of an infringement. The
court however ruled that the privilege could not be used in national civil procedures applying
articles 101 and 102 TFEU (former 81 and 82 EC), since civil proceedings cannot lead to the
126
127
Idem, paras 34 – 38.
Idem.
28
imposition of a penalty by a public authority.128 The initial principles the substantive scope
set out in Orkem were next challenged in Funke v France.
4.2 Expanding the substantive scope – Challenge of the Orkem principle
In the judgment of the European Court of Human Rights, Funke v. France, the Orkem
principle was called into question for the first time.129 The applicant in the case was a
German man Mr Funke living in France with his French wife. French customs officers
entered his house without a warrant as a result of a tip they received from the tax authorities
in Metz and searched his house for four hours. The officers found some documents and
requested Mr Funke to produce further specified documents. He refused to do so and was
therefore prosecuted and fined and in addition ordered to pay a periodic penalty for nonproduction. As a result of that, he filed a suit claiming that his rights were violated under
Article 6 and 8 of the European Convention on Human Rights, which should have granted the
defendant the opportunity to remain silent and not to say anything that may incriminate him.
The ECtHR agreed with Mr Funke, stating that there had been an infringement of Article 6 of
the ECHR:
”Being unable or unwilling to procure them by some other means, they
attempted to compel the applicant himself to provide the evidence of offences he
had allegedly committed. The special features of customs law cannot justify
such an infringement of the right of anyone "charged with a criminal offence",
within the autonomous meaning of this expression in Article 6, to remain silent
and not to contribute to incriminating himself.”130
The ECtHR’s decision in Funke cast doubt on the ECJ’s assertion in Orkem, that Article 6
ECHR does not cover the right not to give evidence against oneself.131 Vice versa, in Funke,
Article 6 ECHR seemed to grant an undertaking under investigation by competition
authorities not only to refuse to provide directly incriminating information, but also refuse to
produce documents and purely factual information. That expanded the substantive scope of
128
Case C-60/92 Otto v Postbank (1993) ECR I-5683, para 17. See also Lasok, p. 90 – 91.
Funke v. France (1993) 16 EHRR 297.
130
Idem, para 44.
131
Vesterdorf, p. 1192.
129
29
the privilege significantly. However, the subsequent judgment in Saunders v. United
Kingdom changed the interpretation again.
4.3 Use of coercive powers
In Saunders132 the accused was convicted on conspiracy, false accounting and theft relating
to share dealing that had been occurred in 1986. The prosecution relied mostly on the
transcripts of his evidence to the inspectors of Department of Trade Industry (DTI) to refute
the evidence he gave at trial. He was convicted and applied to the ECtHR claiming that there
had been an infringement of Article 6 ECHR when the DTI basically gave him just an option
of either incriminating himself or the court would otherwise have punished him as if he had
been guilty of contempt of the court. That is why Mr Saunders did answer for questions
during nine interviews and those answers were presented during his trial later on.133
The Majority of the ECtHR found that there was a breach of Article 6 and stated, that "the
public interest cannot be invoked to justify the use of answers compulsorily obtained in a
non-judicial investigation to incriminate the accused during the trial proceedings"134 and
highlighted also that “evidence obtained through methods of coercion or oppression in
defiance of the will of the accused cannot be used as evidence against the accused in a
criminal case”135 and Mr Saunders was awarded some damages.
However, the court excluded from the privilege the material which had been obtained from
the accused through the use of compulsory powers but “which has an existence independent
of the will of the suspected such as, inter alia documents acquired pursuant to a
warrant…”136 In addition the court stated that it was not making a judgment on whether the
self-incrimination principle is or whether some infringements of it could be justified in
certain circumstances. 137 The distinction that the court made provided an appropriate
approach to documentary evidence. It respects the rationale of the privilege but does not go
too far by placing unreasonable standards for detection and prosecution of unlawful
activity.138 So it could be said that according to the Saunders, authorities are allowed to take
132
Saunders v. UK (1997) 23 EHRR 313.
Idem, para 49.
134
Idem, para 74.
135
Idem, para 68.
136
Idem, para 69.
137
Idem, para 74.
138
Ehlermann – Atanasiu, p. 639 – 640.
133
30
away some material, such as the one acquired pursuant to warrant by force without any
participation by the defendant.139 The judgment therefore narrowed the substantive scope
from what it was after Funke regarding the material obtained through coercive powers.
4.4 Return to Orkem rule
On August 1997, following its inspections, the Commission requested information from
Mannesmannröhren, a producer of pipes that was under investigation for alleged anticompetitive behaviour. Mannesmannröhren refused to answer certain questions, which
concerned the so-called 1962 agreement and several meetings with other pipe producers
(Special Circle and Europa-Japan Club meetings). Following this refusal, the Commission
adopted a decision in which Mannesmannröhren was ordered to reply within 30 days.
Mannesmannröhren tried to annul this decision.140
In case Mannesmann-Röhrenwerke the General Court stated that there is no absolute right to
remain silent in competition proceedings.141 The General Court sharpened its opinion by
saying that an undertaking in receipt of a request for information “can be recognised as
having a right to silence to the extent that it 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.”142
Already before the Mannesmann-Röhrenwerke judgment, the Court of Justice had recognised
a right to remain silent in criminal cases involving natural persons.143 In MannesmannRöhrenwerke, the CFI basically ignored the case law of ECtHR (Saunders and Funke), which
had expanded the undertakings rights not to give inculpatory evidence during the
investigation and repeated the argument made by the Court in Orkem. After the Mannesmann
judgment, the CFI took a view that EU law won’t extend the privilege that far in relation to
cases under Articles 101 and 102 TFEU, which basically meant going back to Orkem rule,
stating that only answers involving admission on undertaking’s part of the existence of the
infringement should be within the substantive scope of principle.144 The CFI’s ruling was
139
Opinion of Mr. Advocate General Geelhoed delivered on 19 January 2006. Commission of the European
Communities v SGL Carbon AG, para 66.
140
Case T-112/98 Mannesmannröhren-Werke AG v Commission (2001) ECR II-729, paras 5 – 7.
141
Idem, para 66.
142
Idem, para 67. See also Case 374/87 Orkem (1989) ECR 3283, para 35.
143
Case Funke v France (1993) 16 EHRR 297 and Saunders v United Kingdom (1996) 23 EHRR 313.
144
Whish – Bailey (2015), p. 285.
31
controversial, because the general opinion at that time seemed to be that Orkem was no
longer good law in the light of the more recent case law from ECHR.145
4.5 Answers obtained by under compulsion – Excluded from the privilege
After the CFI’s ruling in Mannesmann-Röhrenwerke, the substantive scope was set back to
the level what it was in Orkem, which meant the ignorance of the ECtHR’s rulings in Funke,
which had expanded the substantive scope to cover all factual information.
In PVC II, the undertakings alleged to have infringed competition regulations argued that the
Union’s competition law policy should adjust to the case law of the ECtHR.146 Accordingly,
the ECJ held that even though the case law of the ECtHR had gone through some major
developments after Orkem, it did not reserve its previous case law in PVC II. The Court
stated that no use had been made of any answers obtained by under compulsion.147 In other
words, the Court recognised that it would have to consider the developments in the case of
ECtHR but because in PVC II no use had been made of any replies obtained under
compulsion and the ECJ did not make any statement in PVC II, whether Orkem principles
were still valid.148
The ECJ emphasised that in order for the ECtHR case law to be relevant, it requires that there
has been the exercise of coercion to get the information from the suspect and an actual
interference with the protected right, or other otherwise there were no violation of Article 6
of the ECHR.149 In summary, the Orkem rule, which states that undertakings have the right
not to be compelled by the Commission to admit their participation in an infringement was
still very much alive after PVC II, but only with the further addition of requirement of the use
of information obtained by under compulsion.
145
Wils (2005), p. 138.
Kaczorowska, p. 902.
147
Joined Cases 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
Limburgse Vinyl Maatschappij and Others v Commission (2002) ECR I-8375, para 287.
148
Ibid, para. 273. ”The protection of that right 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.”
149
Joined Cases 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
Limburgse Vinyl Maatschappij and Others v Commission (2002) ECR I-8375, para 275. See also Kaczorowska,
p. 902.
146
32
4.6 Separation between purely factual and incriminating questions
After the PVC II ruling in 2002, the current state of the privilege was that only the use of
answers obtained by under compulsion could create a protection for undertakings to invoke
the principle against self-incrimination. However in SGL Carbon (2006), the substantive
scope of the principle broadened to the extent what it is today.
In SGL Carbon, the ECJ held that undertakings must produce documents in their own
possession. That is the case even if the documents can be used to establish the existence of an
infringement. Undertakings privilege against self-incrimination therefore only applies when
the Commission requires answers to questions addressed to them.150
The ECJ made a difference between factual questions and requests calling on an undertaking
to describe what happened at meetings where it was suspected to have restricted competition.
The facts about what occurred at the meetings were therefore not considered to be as a factual
question. 151 AG Geelhoed reaffirmed in his opinion of SGL Carbon that the Saunders
approach is still applicable in EU law (former Community law) and that the privilege against
the self-incrimination is not absolute. In the opinion, AG Geelhoed said that ”the interplay
between the fundamental rights of legal persons and competition enforcement remains a
balancing exercise: at stake are the protection of fundamental rights versus effective
enforcement of Community competition law.152
What that basically meant was that when the fundamental rights of natural persons are
involved, the balance between the goals might be different compared to the situation, which
involves only legal persons.153 It should be noted that when talking about the judgments from
ECtHR, the questions in these cases concern natural persons which basically means that they
could lead the persons in question being convicted to imprisonment or other criminal
sanctions.154 Therefore it is possible that the ECHR would grand different level of protection
of the privilege against self-incrimination against to legal persons, such as undertakings,
under Regulation 1/2003.
155
As MacCulloh has pointed out, if the privilege is
150
Case C-301/04 P SGL Carbon (2006) ECR I-5915, paras 33 – 51.
Opinion of Advocate General, Geelhoed delivered on 19 January 2006, paras 69 and 82. See also Joined
Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG, para 540.
152
Idem, paras 65 – 67.
153
Ehlermann – Atanasiu, p. 642.
154
Wils (2011), p. 23.
155
Wils (2005), p. 139.
151
33
“dignity/privacy based” (meaning basically situation involving individuals), it is hard to
argue, that the privilege should be extended to legal persons, and if it is an instrumental
privilege (meaning competition law procedures), it is harder to justify the substantive scope
to be extended to cover pre-existing and incriminating factual statements.156 The whole aim
of Regulation 1/2003 is to safeguard the implementation of the rules on competition laid
down in Articles 101 and 102 TFEU, and in order to reach that goal, all factual (pre-existing)
material could not be included to the substantive scope of the privilege.
4.7 The current substantive scope of the privilege
In conclusion, the case law of both ECJ and ECtHR states that the privilege against selfincrimination applies and the undertakings have right to remain silent only when the
Commission requires information under compulsion, which means that it has used its powers
under 18(3) of the Regulation 1/2003. Requests under Article 18(2) do not have the same
effect, and undertakings cannot use the privilege to information provided in response to
requests made along 18(2).157
In order for the privilege to be applicable, it must also be addressed to an undertaking under
investigation and only in relation to the questions addressed by the Commission to the
alleged undertaking. The documents in undertakings possession must be forwarded to the
Commission even if they would incriminate the undertaking.158 The protection against selfincrimination seems to be extended only to replies to information requests made during
investigations and when answering such a questions would actually result in a direct
admission of participation of a competition law infringement.159
The difference in the application of the principle of self-incrimination between the European
Court of Human Rights and the European Court of Justice is notable. Whereas the former has
focused more on the nature of the coercive powers used to gather the evidence and that the
undertakings’ right to a fair trial is not precluded by improper forms of oppression on their
156
MacCulloh, p. 211 – 237.
Kaczorowska, p. 902.
158
Idem.
159
Cardonnel – Wahl, p. 427.
157
34
will160, the latter has limited the scope of the privilege to cover only evidence taken as a
result of direct coercion.161
As we can see from the above, the current state is unsatisfactory. The arguments behind
different types of approaches are not visible and the substantive scope of the privilege,
meaning the separation between permitted (factual) and non-permitted (incriminating)
questions is not sensible. The next chapter aims to draw conclusion of both the substantive
and the personal scope of the privilege.
5. CONCLUSIONS
“It is clear that a distinction should be drawn between ‘self-accusation’ and ‘selfincrimination’. The authorities should not be able to use compulsion in a situation where
there is no clear evidence to indicate that suspicion should fall on a particular
undertaking.”162
- Angus MacCulloch
No one has to incriminate himself in criminal proceedings – the right to remain silent is one
of the established principles in EU law. Although competition infringements are not
determined to be criminal charges by its very nature, the ECtHR has taken a broader view of
the issue and its case law states that Article 6 of the ECHR is also applicable to other types of
infringements (when fulfilling the Engel criteria163), such as antitrust proceedings,164 which
means that also companies under investigation have a right to refuse answering on the ground
that it might be incriminating. The privilege against self-incrimination is very important
factor in safeguarding the accused undertaking from oppression and coercion during the
competition proceedings. The privilege is also part of a fair trial principle and gives the
undertaking an opportunity to defend itself against the charges and possibility to refuse
answering for incriminating questions.
See examples of cases from e.g Saunders v United Kingdom (1996), para 68 and Jalloh v Germany (2006),
paras 114-115 and 117. See also Ward – Gardner.
161
E.g. Joined Cases 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 Limburgse Vinyl Maatschappij and Others v Commission (2002) ECR I-8375, paras 275 and 279 – 282.
See also Andreangeli p. 7 – 8.
162
MacCulloch, p. 236 – 237.
163
See more about Engel criteria from p. 10.
164
Slater – Waelbroeck, p. 6.
160
35
In competition law proceedings, the privilege against self-incrimination limits the
enforcement powers of the Commission. When the relevant competition authority is carrying
out its powers of investigation, undertakings have an obligation to cooperate actively. This, in
turn could lead to a situation in which the undertakings’ right to remain silent might be in
danger.165 In order to perform its duties, the Commission has to ask certain questions from
undertakings and these questions could be divided into two separate categories: permitted and
not permitted questions. The latter group basically means incriminating questions, which the
undertaking should not be obliged to reply. The permission could depend on either the
substantive or personal criteria.
When talking about the substantive scope of the principle, it is the nature of questions that
makes the difference when determining whether they are suitable to ask or not. The ECJ
stated in Orkem, that the obligation for active cooperation includes production of all
documents and privilege against self-incrimination includes only answering for questions that
would result in an actual admission of the infringement.166 By contrast, in Funke, the ECtHR
broadened the scope of the privilege to include production of purely factual information into
the protection of the principle. What makes this issue even more difficult to understand, the
ECtHR applies the privilege to cover pre-existing documents under only certain
circumstances. That privilege does not protect undertaking from answering for requests by
the competent competition authority and the undertaking under investigation also have to
give all the available information when the Commission or NCA is collecting evidence
during a dawn raid.167
The other subject of controversy, when speaking about the substantive scope of the privilege,
is the issue of factual questions. The ECJ allows the Commission to request information of
factual nature (when answering for those do not directly incriminate the undertaking), while
answering to questions relating more subjective notions such as the purpose or objectives of
conduct are covered by the privilege. This means that e.g. requests calling on an undertaking
to describe what happened at meetings, in which it was suspected to have restricted
competition, are not considered to be as factual questions and therefore not allowed.168
165
Veenbrink, p. 119.
Case 347/87 Orkem v Commission (1989) ECR 3283, paras 34 – 38.
167
Idem.
168
Opinion of Advocate General, Geelhoed delivered on 19 January 2006, paras 69 and 82. See also Joined
Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG, para 540. An example of an
166
36
Answers to factual questions are often considered to be more reliable since they are usually
addressed under Article 18 of the Regulation in writing to companies, which have more time
to reply for those with their lawyers. The case law of the ECtHR by contrast excludes the use
of evidence of any answers that are obtained from the alleged undertaking through
compulsory questioning169 during non-judicial investigations. That includes also answers
given to purely factual question.170
Sometimes it is hard to figure out whether certain questions are factual or not. The admission
of guilt could occasionally be found if the undertaking is “only” answering for purely factual
questions. If they cannot be forced to admit that they have committed an infringement, it is
somehow strange that they are still obliged to answer factual questions even if those can be
used as evidence against them to prove the existence of an infringement. On the other hand it
is crucial for the Commission to be able to ask factual information in order to carry its duties
and use its investigative powers given to it by Regulation 1/2003. Without that possibility,
the competition law enforcement would be ineffective and the most severe infringements
would be almost impossible to be prevented.
As we can see, the substantive scope of the privilege against self-incrimination is highly
challenging issue. But that is not our only concern. The question of to what extend the
privilege should be extended to cover the people using the privilege, meaning the personal
scope, is also multidimensional and there does not seem to be unequivocal answer for that.
Since the case law does not give us straightforward answers, we have to use analogy. With
the help of the interpretation of case law from both ECtHR and ECJ, it seems to be clear that
when the information or statements provided by the undertaking could be used as an evidence
to find a competition law infringement, the undertaking concerned should have the right not
to give incriminating answers.
The notion of staff is not made totally clear in Article 20(2)(e) of the Regulation, which only
talks about representatives and members of staff. According to the literature, the staff could
mean for example CEO, members of the board, managers, directors, company officers and
corporate bodies, which all could be liable for the competition infringement if they have
clear incriminating question would be a question relating to the purpose of the actions taken and the objectives
pursued.
169
The Commission and NCAs should not be able to use compulsion, when there is not enough evidence to
show that one of the undertakings has infringed the competition law. See e.g. MacCulloch, p. 237.
170
Wils (2003), p. 22.
37
assisted or consented an offence or in other ways been neglect.171 Therefore it is obvious, that
right to remain silent also includes the natural persons using the voice of the undertaking,
which is the situation when a staff member is acting on behalf of the company.172
The relevant question with the personal scope seems to be whether the natural person in
question is de facto legitimate to represent the undertaking. If the answer is negative, we
could assume that then he/she is not able to invoke the privilege to self-incrimination either.
If it the answer is positive and the natural person under examination is still working for the
company and is using the voice of the undertaking, it would be clear that he could invoke the
principle. However this opinion is not consolidated by the case law. Whether a particular
undertaking or staff member using the voice of undertaking has been subjected to compulsion
to incriminate himself depends on an overall assessment, which the Court has to make
considering all the relevant facts and individual circumstances of each case.
Considering all of the above said, the current state of both the substantive and the personal
scope is hard to define clearly. The application of the self-incrimination principle in
competition law proceedings is relatively new issue, and that could be one reason for the
current vagueness of the scope of the privilege. Since the case law of the ECJ and ECtHR is
in contradiction, the scope of the principle is hard to formulate.173 This contradiction is a
result from the different aims of both courts. The ECtHR tries to favor fundamental rights by
extending the scope of the privilege a bit further prohibiting the use of all the evidence
gathered through compulsory questioning, while ECJ tries to secure the effective
competition, which naturally means granting certain amount of investigative freedoms to the
Commission and NCAs. The obscurity of the application of the principle is detrimental for
both the players in the market and for the European competition law regime in general. Many
questions are left wide open.
With the facts on our hands at the moment, it could be said, that the privilege against selfincrimination seems to strengthen the equality of arms to some extent but still allows the
Commission and national competition authorities to perform their duties and ensure that EU
competition law could operate effectively. This means that both the substantive and personal
scope should neither be too extent nor too partial. Balancing the privilege against the
171
Wils (2005), p. 135.
Vesterdorf, p. 1213.
173
Ashworth, p. 755 – 758.
172
38
competition enforcement aims usually draws the distinction between the allowed and
incriminating questions. When the objects of the balancing exercise are fundamental rights
and competition enforcement, the scale is difficult to get perfectly balanced. If you put more
on one side, it causes the other side to change to match it. But should the results even be on
balance? The privilege against self-incrimination has not been competition law oriented
principle from the beginning and when the clear aim of competition enforcement is to
maintain an effective competition policy, we should perhaps allow a bit extra weight on the
competition enforcement side of the scale meaning that undertakings should always be
required to produce pre-existing documents, even if those could be potentially incrimination.
However, the lack of visible directions for using the principle prohibits exploiting the full
potential out of it. Since the legal certainty is all around the world recognised as one of the
main requirements for the rule of law, the EU competition law should also provide
straightforward guidelines for using this privilege. Only then the undertakings competing in
the common market would have the ability to regulate their conduct better, which would be
beneficial for both sides – for the investigative party and also for the party under
investigation.
39
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43
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45