The court considered the powers of the Commission to demand information in an investigation of possible offences against the Community competition laws. Article 11 of Regulation 17 of 1962 gave the Commission power, for the purposes of ensuring the application of the principles of Community competition law, to ‘obtain all necessary information’ from undertakings under investigation. The Commission sent Orkem a wide-ranging questionnaire, including requests for factual information about correspondence and meetings with other firms, but also some questions which in effect required Orkem to confess that it had acted unlawfully.
Held: The Commission was entitled to ask for factual information, even if it might be incriminating: ‘Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules. On the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation.’ It followed that: ‘the questions . . relating to meetings of producers, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the requirement of disclosure of documents in the applicant’s possession relating thereto, are not open to criticism.’ What was objectionable was questions such as the request for particulars of ‘every step or concerted measure which may have been envisaged or adopted to support such price initiatives’ which were an attempt to force Orkem to admit that it had taken part in price-fixing. These were calculated to undermine the right of the company to defend itself. This infringed the ‘need to safeguard the rights of the defence which the court has held to be a fundamental principle of the Community legal order.’ The court concluded: ‘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.’
Citations:
C-374/87, [1989] ECR 3283, [1989] EUECJ C-374/87
Links:
Jurisdiction:
European
Cited by:
Cited – Office of Fair Trading v Not Named (D) ComC 14-May-2003
The Office sought a warrant to enter the respondent’s premises.
Held: The powers which allowed entry by force into the premises by the Office were granted in pursuace of a legitimate aim. The Office had vital responsibility for the maintenance . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 23 May 2022; Ref: scu.134766