Opinion of the Advocate General — ECLI:EU:C:2006:53
Date: 2006-01-19
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Appeal - successful;Appeal against penalty - successful
Origin: Germany

Summary of the Judgment 1. Competition – Administrative procedure – Request for information – Powers of the Commission (Council Regulation No 17, Art. 11) 2. Competition – Fines – Amount – Determination – Criteria – Reduction of the amount of the fine in exchange for the cooperation of the undertaking involved with the Commission (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, Section D, para. 2) 1. Regulation No 17 does not give an undertaking which is being investigated under that regulation any right to evade the investigation. The undertaking in question is, on the contrary, subject to 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. So far as concerns the question whether that obligation also applies to requests for information which could be used to establish, against the undertaking which provides the information, an infringement of the competition rules, it is established that in order to ensure the effectiveness of Article 11(2) and (5) of Regulation No 17, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in that undertaking’s possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct. That obligation to cooperate means 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. Finally, while it is evident that the rights of the defence should be respected, the undertaking concerned is still able, either during the administrative procedure or in the proceedings before the Community Courts, to contend that the documents produced have a different meaning from that ascribed to them by the Commission. (see paras 40-41, 48-49) 2. A reduction under the Notice on the non-imposition or reduction of fines in cartel cases can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate a genuine spirit of cooperation on its part. The conduct of an undertaking which, although it was not obliged to answer a question asked by the Commission, did answer it, but in an incomplete and misleading way, cannot be considered to reflect such a spirit of cooperation. (see paras 68-69)