Keywords
Summary

Keywords

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1.Measures adopted by the institutions - Individual decision - "Notification" - Meaning

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

( Council Regulation No 17, Arts 11 and 14 )

3.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.A decision is properly notified if it reaches the addressee and the latter is in a position to take cognizance of it .

Accordingly, a company notified of a decision requiring information to be provided pursuant to Article 11(5 ) of Regulation No 17 cannot challenge the legality of the decision on the ground that the prior request for information provided for in Article 11(1 ) was addressed to its subsidiary if it had full knowledge of that request, as evidenced by the fact that throughout the procedure conducted by the Commission both companies, each of which has its registered office at the same address, replied to requests addressed by the Commission to one or the other of them, without their at any time mentioning any problem resulting from the existence of two distinct legal persons .

2.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 .

3.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 .