Judgment of the Court of 18 October 1989. - Solvay & Cie v Commission of the European Communities. - Competition - Investigative powers of the Commission - Rights of the defence. - Case 27/88.



European Court reports 1989 Page 03355

Pub.RJ Page Pub somm



Summary

Parties

Operative part



Keywords

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1 . Competition - Administrative procedure - Request for information - Powers of the Commission

( Council Regulation No 17, Arts 11 and 14 )

2 . Community law - Principles - Rights of the defence - Observance in administrative procedures - Competition - Decision requesting information addressed to an undertaking - Right to refuse to provide an answer implying recognition of the existence of an infringement

( Council Regulation No 17, Art . 11 )

Summary

1 . Articles 11 and 14 of Regulation No 17 establish two entirely independent procedures . The fact that an investigation under Article 14 has already taken place cannot in any way diminish the powers of investigation available to the Commission under Article 11 . No consideration of a procedural nature inherent in Regulation No 17 thus prevents the Commission from requiring, for the purposes of a request for information, the disclosure of documents of which it was unable to take a copy or extract when carrying out a previous investigation .

It is for the Commission to decide whether particular information is necessary to enable it to bring to light an infringement of the competition rules . Even if it already has evidence, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to request further information to enable it better to define the scope of the infringement, to determine its duration or to identify the circle of undertakings involved .

2 . The rights of the defence, as a fundamental principle, must be observed, not only in administrative procedures which may lead to the imposition of penalties, but also during preliminary inquiry procedures, such as requests for information under Article 11 of Regulation No 17, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings and for which they may be liable .

Accordingly, whilst the Commission is entitled, in the course of a request for information under Article 11 of Regulation No 17, 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 its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, it may not, by means of a decision calling for information, undermine the rights of the defence .

It follows that, although in the case of infringements in the economic sphere, in particular of competition law, an undertaking cannot be said to have the right not to give evidence against itself by virtue of a principle common to the laws of the Member States or by virtue of the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms or by the International Covenant on Civil and Political Rights, 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 .

( The grounds of this judgment do not differ from those of the judgment, also delivered on 18 October 1989, in Case 374/87 Orkem v Commission (( 1989 )) ECR 3283 .)

Parties

In Case 27/88

Solvay & Cie, a limited liability company, whose registered office is in Brussels, represented by Lucien Simont, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 8 rue Zithe,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Anthony Mc Clellan, acting as Agent, assisted by Nicole Coutrelis, of the Paris Bar, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre,

defendant,

APPLICATION for a declaration that the Commission Decision IV/31.865 of 24 November 1987 relating to a proceeding under Article 11(5 ) of Regulation No 17 of the Council is void,

THE COURT

composed of : O . Due, President, Sir Gordon Slynn, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), T . Koopmans, G . F . Mancini, R . Joliet, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, F . Grévisse and M . Díez de Velasco, Judges,

( the grounds of the judgment are not reproduced )

hereby :

Operative part

( 1)Annuls Questions II(1)(c ) and III(1 ) and ( 2 ) of Commission Decision IV/31.865 of 24 November 1987 relating to a proceeding under Article 11(5 ) of Regulation No 17 of the Council of 6 November 1962, the first regulation implementing Articles 85 and 86 of the EEC Treaty;

( 2)Dismisses the remainder of the application;

( 3)Orders the parties to bear their own costs .