Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada and others.
Date: 1992-07-16
11 Restrictive practices are viewed differently by Community law and national law. Whilst Articles 85 and 86 of the Treaty view them in the light of the obstacles which may result for trade between the Member States, each body of national legislation proceeds on the basis of considerations peculiar to it and considers restrictive practices solely in that context. It follows that the national authorities may also take action regarding situations that are capable of forming the subject-matter of a decision by the Commission (see, to that effect, the judgments in Case 14/68 Wilhelm v Bundeskartellamt [1968] ECR 1 and Joined Cases 253/78 and 1 to 3/79 Procureur de la République v Giry and Guerlain [1980] ECR 2327, paragraphs 15 and 16).
17 Regulation No 17 also conferred on the Commission a far-reaching power of investigation and verification, stating, in the eighth recital, 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 any infringements of Articles 85 and 86 of the Treaty (Case 347/87 Orkem v Commission [1989] ECR 3283, paragraph 15).
18 In that way, a preliminary investigation procedure was set up, which is clearly separate from the procedure involving exchange of submissions provided for by Article 19 of the regulation and includes in particular requests for information (Article 11 of the regulation) and investigations by Commission officials (Article 14 of the regulation). The 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 and factual legal situation (judgment in Case 374/87 Orkem v Commission, cited above, paragraph 21).
21 Finally, Article 20(1) of the regulation provides:
"Information acquired as a result of the application of Articles 11, 12, 13 and 14 shall be used only for the purpose of the relevant request or investigation."
By virtue of Article 20(2), which gives effect to Article 214 of the Treaty concerning professional secrecy (see, to that effect, the judgment in Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 26), the competent authorities of the Member States, their officials and other servants must not disclose information acquired by them as a result of the application of the regulation and information of the kind covered by the obligation of professional secrecy.
The subject-matter and the admissibility of the questions referred to the Court for a preliminary ruling
25 It must be borne in mind that the Court has consistently held that Article 177 of the Treaty lays down the framework for close cooperation between the national courts and the Court of Justice, based on a division of functions between them. Accordingly, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to decide, having regard to the particular features of each case, as to both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court of Justice.
26 A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or to the subject-matter of the main action (see, among others, the judgment in Case C-186/90 Durighello [1991] ECR I-5773, paragraph 9). However, that is not the position in this case.
The use by the authorities of the Member States of information contained in the answers to the requests for information sent to undertakings under Article 11 of Regulation No 17
30 In order to interpret those provisions, it is necessary to take account of the general scheme of Regulation No 17, the purpose of the provisions laying down the procedure for requests for information and the requirements inherent in observance of the general principles of Community law, in particular fundamental rights (to that effect, see the judgment in Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 12).
35 By prohibiting the use of the information obtained under Article 11 of Regulation No 17 for purposes other than that for which it was requested and by requiring both the Commission and the competent authorities of the Member States and their officials and other servants to observe professional secrecy, Article 20 of the regulation is designed to protect the rights of undertakings (see, to that effect, the judgment in Case 85/87 Dow Benelux v Commission [1989] ECR 3137, paragraphs 17 and 18).
37 Professional secrecy entails not only establishing rules prohibiting disclosure of confidential information but also making it impossible for the authorities legally in possession of such information to use it, in the absence of an express provision allowing them to do so, for a reason other than that for which it was obtained.
39 Such an interpretation does not in any way run counter to the requirements of the principle of cooperation between the Community institutions and the Member States. The Member States are not required to ignore the information disclosed to them and thereby undergo ° to echo the expression used by the Commission and the national court ° "acute amnesia". That information provides circumstantial evidence which may, if necessary, be taken into account to justify initiation of a national procedure (see, to that effect, the judgment in Case 85/87 Dow Benelux v Commission, cited above, paragraphs 18 and 19).
42 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.
52 It must be borne in mind, in that connection, that the notification concerned is not a formality imposed on undertakings but is an essential precondition for the obtaining of certain advantages. Under Article 15(5)(a) of Regulation No 17, no fine may be imposed for actions subsequent to the notification, provided that they remain within the limits of the activity described in the notification. That benefit for undertakings which have notified an agreement or a concerted practice constitutes the quid pro quo for the risk run by the undertaking in taking the initiative to give notice of the agreement or concerted practice. The undertaking risks not only a finding that the agreement of practice is in breach of Article 85(1), refusal of the application of Article 85(3) and the obligation to bring to an end the agreement or practice notified (see, to that effect, the judgment in Joined Cases 261, 262, 268 and 269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, paragraph 76) but also the imposition of a fine for its actions prior to the notification (see, to that effect, the judgment in Joined Cases 100 to 103/80 Musique Diffusion Française v Commission [1983] ECR 1825, paragraph 93). Moreover, as the Court held in its judgment in Stichting Sigarettenindustrie, those provisions, by encouraging undertakings to make notifications, reduce the investigation workload of the Commission.