Judgment — ECLI:EU:T:2001:61
Date: 2001-02-20
Language of the case: German
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Rights of the defence and procedural guarantees;General;Requests for information
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Germany

summary publication, and Société Générale, paragraph 74). 66. To acknowledge the existence of an absolute right to silence, as claimed by the applicant, would go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission's performance of its duty under Article 89 of the EC Treaty (now, after amendment, Article 85 EC) to ensure that the rules on competition within the common market are observed. 67. It follows that an undertaking in receipt of a request for information pursuant to Article 11(5) of Regulation No 17 can be recognised as having a right to silence only 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 (Orkem, paragraph 35). 68. Those are the limits within which the arguments raised by the applicant must be assessed. 69. It is appropriate in this case to review first of all the legality of questions 1.6, 1.7 and 2.3, which are almost identical, and then that of question 1.8. 70. In their first three indents, questions 1.6, 1.7 and 2.3 contain requests for purely factual information and the production of documents already in existence. Comparable questions were not held to be unlawful by the Court of Justice in its judgment in Orkem. The applicant was therefore under an obligation to provide answers in response to those requests. 71. By contrast, the last indent of each of those three questions does not concern exclusively factual information. In the last indent, the Commission calls upon the applicant, in identical terms, to describe in particular the purpose of the meetings it attended and the decisions adopted during them, even though it is clear that the Commission suspected that their purpose was to arrive at agreements, in respect of selling prices, of a nature such as to prevent or restrict competition. It follows that requests of this kind are such that they may compel the applicant to admit its participation in an unlawful agreement contrary to the Community rules on competition. 72. On this point, it must be observed that the Commission expressly indicated in the last indent of the three questions at issue that the applicant was to provide it with the information in question only in the event that it was unable to find the relevant documents requested in the preceding indent. The applicant was therefore required to reply to the last indent of the questions only in so far as it was unable to produce the documents requested. Nevertheless, because of the order and content of the first three indents of the questions, it cannot be excluded that the applicant would have been obliged to reply to the last indent. 73. Consequently, it must be held that the last indent of each of questions 1.6, 1.7 and 2.3 infringes the applicant's rights of defence. 74. As far as question 1.8 is concerned, it should be observed that the Commission is requiring the applicant to comment, first, on the relationship between, on the one hand, the four OCTG and linepipe agreements concluded in 1962 and notified to the Bundeskartellamt and, on the other hand, the Europe-Japan Club and Special Circle, and, second, on the decisions adopted within the Europe-Japan Club and the Special Circle, that is to say, decisions which the Commission regards as possibly constituting infringements of the rules laid down by the Treaty. Answering this question would require the applicant to give its assessment of the nature of those decisions. It must be held that, in accordance with the judgment in Orkem, question 1.8 also constitutes an infringement of the applicant's rights of defence. 75. As regards the arguments to the effect that Article 6(1) and (2) of the Convention enables a person in receipt of a request for information to refrain from answering the questions asked, even if they are purely factual in nature, and to refuse to produce documents to the Commission, suffice it to repeat that the applicant cannot directly invoke the Convention before the Community courts. 76. As regards the potential impact of the Charter, to which the applicant refers (see paragraph 15 above), upon the assessment of this case, it must be borne in mind that that Charter was proclaimed by the European Parliament, the Council and the Commission on 7 December 2000. It can therefore be of no consequence for the purposes of review of the contested measure, which was adopted prior to that date. That being so, there is no reason to accede to the applicant's request for the oral procedure to be re-opened. 77. However, it must be emphasised that Community law does recognise as fundamental principles both the rights of defence and the right to fair legal process (see Baustahlgewebe v Commission, cited above, paragraph 21, and Case C-7/98 Krombach [2000] ECR I-1935, paragraph 26). It is in application of those principles, which offer, in the specific field of competition law, at issue in the present case, protection equivalent to that guaranteed by Article 6 of the Convention, that the Court of Justice and the Court of First Instance have consistently held that the recipient of requests sent by the Commission pursuant to Article 11(5) of Regulation No 17 is entitled to confine himself to answering questions of a purely factual nature and to producing only the pre-existing documents and materials sought and, moreover, is so entitled as from the very first stage of an investigation initiated by the Commission. 78. The mere fact of being obliged to answer purely factual questions put by the Commission and to comply with its requests for the production of documents already in existence cannot constitute a breach of the principle of respect for the rights of defence or impair the right to fair legal process. There is nothing to prevent the addressee of such questions or requests from showing, whether later during the administrative procedure or in proceedings before the Community courts, when exercising his rights of defence, that the facts set out in his replies or the documents produced by him have a different meaning from that ascribed to them by the Commission. 79. It follows that the contested decision must be annulled in so far as it obliges the applicant to answer the last indent of each of questions 1.6, 1.7 and 2.3 and all of question 1.8, which may involve the applicant in admitting that it was party to an agreement liable to prevent or restrict competition. The fourth plea, alleging disregard for the applicability of national procedural safeguards Arguments of the parties 80. The applicant argues that its right not to be required to incriminate itself by positive action is derived not only from Community law, but also from German law, which, it maintains, must not be disregarded in the present case. In German law, the principle that no natural or legal person may be required to incriminate himself or itself before an investigating authority is applicable. The applicant states that, in accordance with that principle, it is entitled to refuse to provide any information and cannot be required to produce any documentary evidence adverse to itself. According to the applicant, in criminal or administrative investigation proceedings anyone who is charged with an offence or is otherwise concerned by those proceedings may, pursuant to Paragraph 136(1) of the Strafprozeßordnung (the German code of criminal procedure), adopt a purely passive stance, because no-one may be forced to contribute actively to his own punishment. 81. According to the applicant, that safeguard afforded by German law is significant in the present case in that the imposition of a fine on it in the investigation procedure conducted under Community law may have consequences under national law. Other investigation procedures, in particular, might follow, because the imposition of a fine under Article 15 of Regulation No 17 does not preclude new or complementary procedures from being initiated under national law (Case 14/68 Walt Wilhelm and Others v Bundeskartellamt [1969] ECR 1, 15). In this connection, it is appropriate to bear in mind that, where it imposes a fine, the Commission closes the procedure by drawing up a reasoned decision which is subsequently published in the Official Journal of the European Communities, setting out all the factual circumstances relied upon in establishing the infringement. The applicant adds that the publication of such material may also lead the competent national authority to initiate, in respect of the same facts, other investigation procedures of a criminal or administrative nature. 82. The Commission argues that the requirements of German law are relevant to the legality of the contested decision only to the extent that there can be identified within the national laws of the Member States a common principle that one may refuse to incriminate oneself. That is precisely what the Court of Justice rejected in Orkem, at paragraph 29, where it observed that the laws of the majority of the Member States recognise the right not to give evidence against oneself only to natural persons charged with an offence in criminal proceedings. 83. Moreover, the Commission states that, according to the case-law of the Court of Justice, it alone is empowered to use information obtained in a procedure under Article 11 of Regulation No 17 (Case C-67/91 AEB and Others [1992] ECR I-4785, paragraph 38). Such information cannot be relied on by the authorities of the Member States either in a preliminary-investigation procedure or to justify a decision based on provisions of competition law, be it national law or Community law. It must remain internal to those authorities and may be used only to decide whether or not it is appropriate to initiate a national procedure (AEB and Others, paragraph 42). Findings of the Court 84. In the field of competition law, the national laws of the Member States do not, in general, recognise a right not to incriminate oneself. It is, therefore, immaterial to the result of the present case whether or not, as the applicant claims, there is such a principle in German law. 85. As regards the applicant's argument that there is a risk that information obtained by the Commission and communicated to the national authorities may be used by those authorities against it, it is sufficient to refer to the judgment in AEB and Others, where, at paragraph 42, the Court of Justice, after pointing out that information obtained by the Commission must be communicated to the national authorities, gave the following clear statement of the law in this respect: Such information cannot be relied on by the authorities of the Member States either in a preliminary investigation procedure or to justify a decision based on provisions of competition law, be it national law or Community law. Such information must remain internal to those authorities and may be used only to decide whether or not it is appropriate to initiate a national procedure. 86. It follows that the German authorities cannot rely on information obtained by the Commission by means of its request for information pursuant to Article 11 of Regulation No 17 in order to justify a decision taken against the applicant on the basis of the provisions of competition law. 87. Consequently, should the German authorities take the view that the information thus obtained by the Commission is relevant for the purpose of initiating a procedure in respect of the same facts, they must make their own request for information regarding those facts. 88. The fact that information obtained by the Commission may alert the German authorities to the possibility of an infringement of German law and that the German authorities might use that information for the purpose of determining whether or not it is appropriate to initiate national procedures, does not alter the conclusion that, as is clear from paragraph 42 of the judgment in AEB and Others, the plea now under consideration cannot be upheld. 89. That plea must therefore be rejected. 90. Having regard to all the foregoing considerations, the contested decision must be annulled in so far as it relates to the last indent of each of questions 1.6, 1.7 and 2.3 and to question 1.8 of the request for information sent to the applicant on 13 August 1997, and the remainder of the application must be dismissed. Costs 91. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. However, under the first subparagraph of Article 87(3), where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court of First Instance may order that the costs be shared or that each party bear its own costs. 92. In the present case, account should be taken, firstly, of the fact that both the applicant and the defendant have been partly unsuccessful. Secondly, it should be borne in mind that, by requiring it to reply to the requests made in the last indent of each of questions 1.6, 1.7 and 2.3 and in question 1.8, the Commission infringed the applicant's rights of defence, contrary to the judgment in Orkem, and constrained the applicant to bring the present action. That being so, the Court takes the view that the Commission must pay two thirds of the applicant's costs. On those grounds, THE COURT OF FIRST INSTANCE (First Chamber, Extended Composition) hereby: 1. Annuls Commission Decision C(98) 1204 of 15 May 1998 relating to a procedure under Article 11(5) of Council Regulation No 17, in so far as it relates to the last indent of each of questions 1.6, 1.7 and 2.3 and to question 1.8 of the request for information sent to the applicant on 13 August 1997; 2. Dismisses the remainder of the application; 3. Orders the defendant to bear its own costs and to pay two thirds of the costs of the applicant, which shall bear the remaining third. Vesterdorf Potocki Meij Vilaras Forwood Delivered in open court in Luxembourg on 20 February 2001. H. Jung B. Vesterdorf Registrar President 1: Language of the case: German.