Orkem v Commission of the European Communities.
Date: 1989-10-18
15 With regard to the necessity of the information requested, it must be borne in mind that Regulation No 17 confers on the Commission wide powers to make investigations and to obtain information by providing in the eighth recital in its preamble that the Commission must be empowered, throughout the common market, to require such information to be supplied and to undertake such investigations as are necessary to bring to light infringements of Articles 85 and 86 of the Treaty . As the Court held in its judgment of 18 May 1982 in Case 155/79 AM & S Europe Limited v Commission (( 1982 )) ECR 1575, it is for the Commission to decide, for the purposes of an investigation under Article 14, 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 .
21 The sole purpose of the preliminary investigation procedure is to enable the Commission to obtain the information and documentation necessary to check the actual existence and scope of a specific factual and legal situation ( National Panasonic, supra ).
27 On the other hand, 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 .
31 Article 14 of the International Covenant, which upholds, in addition to the presumption of innocence, the right ( in paragraph 3(g ) ) not to give evidence against oneself or to confess guilt, relates only to persons accused of a criminal offence in court proceedings and thus has no bearing on investigations in the field of competition law .
32 It is necessary, however, to consider whether certain limitations on the Commission' s powers of investigation are implied by the need to safeguard the rights of the defence which the Court has held to be a fundamental principle of the Community legal order ( judgment of 9 November 1983 in Case 322/82 Michelin v Commission (( 1983 )) ECR 3461, paragraph 7 ).
33 In that connection, the Court observed recently, in its judgment of 21 September 1989in Joined Cases 46/87 and 227/88 Hoechst v Commission (( 1989 )) ECR 2859, paragraph 15, that whilst it is true that the rights of the defence must be observed in administrative procedures which may lead to the imposition of penalties, it is necessary to prevent those rights from being irremediably impaired during preliminary inquiry procedures which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings and for which they may be liable . Consequently, although certain rights of the defence relate only to contentious proceedings which follow the delivery of the statement of objections, other rights must be respected even during the preliminary inquiry .
34 Accordingly, whilst the Commission is entitled, in order to preserve the useful effect of Article 11(2 ) and ( 5 ) 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 defence of the undertaking concerned .
35 Thus, 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 .