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Document 61991CJ0067

Summary of the Judgment

Judgment of the Court of 16 July 1992.
Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada and others.
Reference for a preliminary ruling: Tribunal de Defensa de la Competencia - Spain.
Competition law - Regulation Nº 17 - Use by the national authorities of information obtained by the Commission.
Case C-67/91.




1. Preliminary rulings ° Jurisdiction of the Court ° Limits ° Manifestly irrelevant question

(EEC Treaty, Art. 177)

2. Competition ° Community rules ° Application by the national authorities ° Inapplicability of Regulation No 17

(Council Regulation No 17)

3. Competition ° Administrative procedure ° Information obtained by the Commission under Regulation No 17 ° Use by the national authorities as evidence ° Not permissible ° Reasons ° Protection of undertakings' rights of defence ° Observance of professional secrecy ° Reliance on such information for initiation of a procedure under national law ° Permissible

(EEC Treaty, Art. 214; Council Regulation No 17, Arts 2, 4, 5, 11 and 20)


1. 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.

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.

2. Even in cases in which they apply the substantive provisions of Articles 85(1) or 86 of the Treaty, it is incumbent upon the national authorities to implement them in accordance with national rules. Regulation No 17 governs procedures conducted by the Commission for the application of Community competition rules.

3. Article 214 of the Treaty and the provisions of Regulation No 17 are to be interpreted as meaning that, in the exercise of their power to apply national and Community rules on competition, the Member States may not use as evidence unpublished information contained in replies to requests for information addressed to undertakings pursuant to Article 11 of Regulation No 17 or information contained in the applications and notifications provided for in Articles 2, 4 and 5 of that regulation.

The fact that, under Article 10(1) of that regulation, such information is transmitted to the competent national authorities does not mean that the latter may use it as they wish.

As regards information obtained under Article 11, Article 20 of the regulation, in order to protect undertakings' rights of defence, prohibits its use for purposes other than that for which it was requested, namely the exercise by the Commission of its own powers, and, in respect of such information, requires both the Commission and the competent authorities of the Member States and their officials and other servants to observe professional secrecy which 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.

As regards the information contained in the applications and notifications provided for in Articles 2, 4 and 5 of Regulation No 17, the fact that there is no provision analogous to Article 20 does not mean that the requirements relating to observance of the rights of the defence and professional secrecy do not apply. Moreover, the use of the information disclosed to the Commission by undertakings must always remain within the legal scope of the procedure in which the information was obtained and the purpose of the notification procedure is precisely to achieve a balance between voluntary disclosure of a restrictive agreement or concerted practice, giving rise to a certain risk for undertakings, and immunity for conduct occurring after the notification, as provided for in Article 15(5)(c) of the regulation, which affords an advantage to the undertakings, and that balance would be upset by the use of the information disclosed in order to impose penalties under a procedure governed by national law.

The fact that the information disclosed to the national authorities must remain internal to those authorities, which precludes its disclosure to other national authorities or to third parties, and that it cannot be relied on by them either in a preliminary investigation procedure or to justify a decision based on provisions of competition law, be it national law or Community law, does not prevent it from providing circumstantial evidence which may, in some cases, be used to decide whether or not it is appropriate to initiate a procedure under national law, in which the facts must be established by the forms of evidence available under national law and in observance of the guarantees provided for by national law.