Commission of the European Communities v SGL Carbon AG.
Date: 2006-06-29
40. As regards the Commission’s powers to make such requests, it is important to note that, in paragraph 27 of the judgment in Orkem  v Commission , the Court pointed out that Regulation No 17 does not give an undertaking which is being investigated under that regulation any right to evade the investigation and that, on the contrary, the undertaking in question is 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.
41. 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, the Court held, in paragraph 34 of that judgment 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, if necessary by adopting a decision, 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.
42. By contrast, the situation is completely different where the Commission seeks to obtain answers from an undertaking which is being investigated by which that undertaking would be led to admit an infringement which it is incumbent upon the Commission to prove (see Orkem  v Commission , paragraph 35).
43. It must be added that the Court of Justice, in paragraphs 274 to 276 of the judgment in Limburgse Vinyl Maatschappij and Others  v Commission , observed that since the judgment in Orkem  v Commission  there have been further developments in the case‑law of the European Court of Human Rights which the Community judicature must take into account when interpreting the fundamental rights. The Court of Justice stated however in that regard that those developments were not such as to put in question the statements of principle in Orkem  v Commission .
44. It does not follow from that case‑law that the Commission’s powers of investigation have been limited as regards the production of documents in the possession of an undertaking which is subject to investigation. The undertaking concerned must therefore, if the Commission requests it, provide the Commission with documents which relate to the subject‑matter of the investigation, even if those documents could be used by the Commission in order to establish the existence of an infringement.
48. 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.
68. In order to assess the soundness of that reasoning of the Court of First Instance, it must be pointed out that it is clear from the Court of Justice’s recent case‑law that a reduction under the Leniency Notice 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 (see Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraphs 388 to 403, particularly paragraph 395).