1. 

In this case, the Spanish Tribunal de Defensa de la Competencia has asked the Court for a preliminary ruling under Article 177 of the EEC Treaty on the question whether, and if so to what extent, the competition authorities of a Member State may make use of information supplied to them by the Commission under Regulation No 17, which implements Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87). Article 86 is not relevant in the circumstances of this case, but Article 85(1) prohibits, and Article 85(2) declares void, ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market...’

2. 

In the national proceedings, a number of banking institutions are challenging the commencement under Spanish competition law of an investigation into their affairs by the Dirección General de Defensa de la Competencia (‘DGDC’). According to the institutions in question, the decision to commence the investigation was based on information supplied to the DGDC by the Commission in accordance with the provisions of Regulation No 17. The institutions maintain that the DGDC is not entitled to use that information against them for the purposes of establishing an infringement of Spanish competition law.

3.

The origin of the dispute between the parties to the national proceedings lies in a letter dated 3 March 1987 in which the Commission informed the chairmen of a number of Spanish banks that it suspected them of involvement in certain restrictive practices and asked them to supply it with information pursuant to Article 11(1) of Regulation No 17. That provision states:

‘In carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the Commission may obtain all necessary information from the Governments and competent authorities of the Member States and from undertakings and associations of undertakings.’

4.

Following further contacts between the Commission and the banks concerned, on 16 December 1987 the Commission wrote to the Asociación Española de Banca Privada (‘AEBP’), an association representing eight of the leading Spanish banks, informing it that it would be in its members' interests to seek from the Commission a decision of negative clearance or exemption in respect of certain aspects of their practices. Otherwise, the Commission warned the AEBP that a formal investigation into the activities of its members might be opened. Accordingly, on 30 March 1988, the AEBP, acting on behalf of its members, lodged with the Commission an application for negative clearance and notification with a view to obtaining an exemption on Form A/B, the use of which is prescribed by Article 4 of Regulation No 27 (OJ, English Special Edition 1959-62, p. 132), as amended by Regulation No 2526/85 (OJ 1985 L 240, p. 1).

5.

According to Article 2 of Regulation No 17, a decision of negative clearance consists of a certification by the Commission that, ‘on the basis of the facts in its possession, there are no grounds under Article 85(1) or Article 86 of the Treaty for action on its part in respect of an agreement, decision or practice.’ A decision to grant an exemption may be taken by the Commission following notification of the agreement, decision or practice concerned in accordance with Articles 4 and 5 of the regulation. Such a decision gives effect to Article 85(3) of the Treaty, according to which Article 85(1) may be declared inapplicable in the case of agreements, decisions or practices which satisfy certain conditions. By virtue of Article 9(1) of the regulation, the Commission has sole power to declare Article 85(1) inapplicable pursuant to Article 85(3).

6.

A copy of the Form A/B submitted by the AEBP was sent to the DGDC by the Commission pursuant to Article 10(1) of Regulation No 17. Article 10 is headed ‘Liaison with the authorities of the Member States’. The first three paragraphs provide as follows:

Under Article 10(4), the Advisory Committee consists of officials representing the Member States. The ‘applications and notifications’ referred to in Article 10(1) include applications for negative clearance under Article 2 of the regulation and notifications under. Articles 4 and 5 of the regulation with a view to obtaining exemption pursuant to Article 85(3) of the Treaty. The ‘procedure set out in paragraph 1’ and ‘a procedure under paragraph 1’, to which reference is made in Article 10(2) and (3) respectively, are the procedures to which paragraph 1 refers. This is clear from the French versions of Article 10(2) and (3), which speak of ‘les procédures visées au paragraphe 1’ and ‘une procédure visée au paragraphe 1’ respectively. It may at this point be noted that the Commission subsequently appears to have made further requests for information under Article 11(1).

7.

Under Spanish law, the DGDC is responsible for liaison with the Commission over the application in Spain of the Treaty competition rules as well as for investigating alleged infringements of the domestic competition rules. During the course of 1987, according to the national court, the DGDC carried out a preliminary investigation into the activities of 15 leading Spanish banks. That investigation is said by the national court to have led to the opening on 29 September 1988 of formal proceedings by the DGDC against a number of the banks concerned under the provisions of Law No 110/1963 of 20 July 1963 on anticompetitive practices. The national court states that the banks in question were those on whose behalf the AEBP had lodged the Form A/B with the Commission. Attempts by the AEBP to have the proceedings opened by the DGDC suspended until the Commission has reached a decision have so far been unsuccessful. The DGDC concluded that the banks concerned were guilty of three types of restrictive practice relating to their charges and commissions, but proposed that one of those practices be authorized. It made a proposal to that effect to the national court, which is responsible for taking the final decision in competition cases under Spanish law. It may be noted that the national court is also responsible for the application in Spain of Articles 85(1) and 86 of the Treaty.

8.

Both before the DGDC and before the national court, the AEBP and its members have argued that the proceedings instituted by the DGDC are based on information contained in the Form A/B lodged with the Commission. They draw attention to the fact that formal proceedings were only commenced against the banks on whose behalf that form was submitted, even though the preliminary investigation extended to a number of other banks. They maintain that the use of that information in proceedings which might, as here, result in the imposition of a penalty is incompatible with Regulation No 17.

9.

The national court has therefore asked the Court for a preliminary ruling on the following questions:

10.

Before examining the substance of the questions referred to the Court, it is necessary to consider briefly whether the national court constitutes a ‘court or tribunal of a Member State’ for the purposes of Article 177. This question arises because administratively the national court forms part of the Spanish Ministry of Trade.

11.

According to the Order for Reference, the functions of the national court are judicial rather than administrative in nature and it has exclusive jurisdiction in certain fields. Moreover, under Spanish law the national court exercises its functions in complete independence and its members cannot be removed. It deals with cases coming before it in accordance with an adversarial procedure and in application of the Spanish legislation on competition.

12.

In the light of these features, I have no doubt that the national court must be considered a court or tribunal for the purposes of Article 1 77 and that the reference is therefore admissible: see Case 61/65 Vaassen v Beamtenfonds Mijnbedrijf [1966] ECR 261. None of those submitting observations has challenged the jurisdiction of the national court to invoke Article 177.

13.

Written observations have been submitted by the Spanish Government, the Commission, the AEBP and the banks concerned, two of which merged at the end of 1988 and two of which merged at the end of 1991 after the close of the written procedure. It should be noted that the account of the facts given by the national court is contested by the AEBP and by nearly all the banks. It is claimed that it is misleading to suggest that the decision of the DGDC to open formal proceedings was preceded by a preliminary investigation, since this implies that the formal proceedings were based on the findings of that investigation. In fact, it is claimed, the decision to open formal proceedings was based on the information transmitted to the DGDC by the Commission in accordance with Article 10(1) of Regulation No 17. This is said to be demonstrated by the fact that the formal proceedings concern only the banks on whose behalf the Form A/B was submitted to the Commission, while the so-called preliminary investigation extended to a number of other banks.

14.

This controversy does not in my view have any bearing on the answers to be given to the questions which have been referred to the Court. The question whether the DGDC's decision to commence formal proceedings was based on the information supplied to it by the Commission or on the results of its own investigations is a purely factual one. The national court's questions have clearly been asked on the hypothesis that the actions of the DGDC were based to a material degree on the information supplied to it by the Commission and it is on that hypothesis that they must be dealt with by the Court. It will be for the national court to apply the answers given by the Court to the facts of the case.

15.

It appears from the Order for Reference that the national proceedings are concerned solely with the application of the Spanish competition rules. However, the national court's first two questions concern, at least in part, the application by national authorities of Articles 85(1) and 86 of the Treaty. A number of those who have submitted observations have therefore suggested that it is not necessary for the Court to answer all the national court's questions. In the rest of this Opinion, I shall concentrate on the national court's third and fourth questions, as these seem to correspond more closely to the facts of the case. In my view, however, it would be inappropriate not to deal with the national court's first two questions and I will therefore conclude with some brief remarks on the application by national authorities of Articles 85(1) and 86 of the Treaty.

16.

The Court has acknowledged ‘that one and the same agreement may, in principle, be the object of two sets of parallel proceedings, one before the Community authorities under Article 85 of the EEC Treaty, the other before the national authorities under national law’: see Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1, paragraph 3. The Court came to this conclusion because ‘Community and national law on cartels consider cartels from different points of view. Whereas Article 85 regards them in the light of the obstacles which may result for trade between Member States, each body of national legislation proceeds on the basis of the considerations peculiar to it and considers cartels only in that context’: ibid. The Court made it clear, however, that ‘conflicts between the rules of the Community and national rules in the matter of the law on cartels must be resolved by applying the principle that Community law takes precedence’: paragraph 6 of the judgment. Thus, as the Court emphasized in Joined Cases 253/78 and 1/79 to 3/79 Procureur de la République b Giry and Guerlain [1980] ECR 2327, at paragraph 16, ‘parallel application of national competition law can only be permitted in so far as it does not prejudice the uniform application, throughout the common market, of the Community rules on cartels or the full effects of the measures adopted in implementation of those rules’.

17.

The Order for Reference makes it clear that the national court is familiar with this case-law and that it is not seeking clarification of the extent to which parallel proceedings are permissible under Community law. Although one of the banks which has submitted observations, the Banco Español de Credito, has invited the Court to give further guidance on the matter, this is not in my view necessary.

18.

Against this background, I turn to the first two paragraphs of Article 20 of Regulation No 17, which deal respectively with the use and disclosure of information supplied to the Commission under other provisions of that regulation. Those paragraphs provide as follows:

In considering the effect of these paragraphs of Article 20, it is necessary to distinguish between information obtained pursuant to Articles 2, 4 and 5 of the regulation and information obtained pursuant to Article 11.

19.

It will be observed that, while Article 20(1) refers to information acquired under specific provisions of Regulation No 17, Article 20(2) covers information acquired as a result of the application of any provisions of that regulation. It might appear to follow that information acquired as a result of provisions of the regulation other than Articles 11 to 14, such as that supplied to the Commission on Form A/B, may be used for any purpose as long as the obligation of professional secrecy is respected.

20.

The Commission points out, however, that, by virtue of Article 15(5) of Regulation No 17, an application for exemption confers immunity from the imposition of fines by the Commission in respect of acts which take place between the date of notification and the Commission's decision in application of Article 85(3) and which fall within the limits of the activity described in the notification. To permit the national authorities to use information contained in a Form A/B as evidence that their domestic legislation on competition had been infringed would, according to the Commission, upset the balance established by the regulation between the various interests at stake, since an undertaking seeking an exemption might thereby incur the risk of being fined by the national authorities under their domestic competition rules.

21.

Article 20(1) cannot in my view be interpreted as extending to information acquired as a result of the application of provisions of the regulation other than those to which it expressly refers and as thereby restricting the use of that information as well. However, that provision should not be read as implying that the use of information supplied pursuant to provisions other than those mentioned, such as Articles 2, 4 and 5 of the regulation, is not subject to any restrictions provided the obligation of professional secrecy is respected.

22.

I consider that it would be a mistake to read too much into the difference in the wording of Article 20(1) and Article 20(2), for those paragraphs are distinct. Although Article 20 is entitled ‘Professional secrecy’, only the second paragraph is concerned with that subject. The effect of that paragraph is simply to extend to the competent authorities of the Member States Article 214 of the Treaty, which imposes on the Community and its servants a duty not to disclose information covered by the obligation of professional secrecy: compare Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 26. The second paragraph of Article 20 is therefore confined to the disclosure of information acquired as a result of the application of the regulation. By contrast, the first paragraph of Article 20 is concerned, not with the disclosure, but with the use of information acquired as a result of the application of Articles 11 to 14 of the regulation. Although it refers specifically to those articles, it cannot in my view be inferred that information acquired under other provisions of the regulation can be used for any purposes whatsoever.

23.

I consider that such information may only be used in a manner which is consistent with the purposes of the regulation. Those purposes include encouraging the notification of agreements, decisions and practices and generally facilitating approaches by undertakings to the Commission. This is evident from the sixth recital, which states: ‘Whereas it may be in the interest of undertakings to know whether any agreements, decisions or practices to which they are party, or propose to become party, may lead to action on the part of the Commission pursuant to Article 85(1) or Article 86.’

24.

To a substantial degree the system established by the regulation depends for its effectiveness on the willingness of undertakings to make voluntary notifications and applications to the Commission. It is for this reason that Article 15(5) of the regulation confers on those who notify a limited immunity from the imposition of fines. It is true that, by virtue of Article 15(6), such immunity does not extend to undertakings which have been informed by the Commission that, after preliminary examination, it considers that Article 85(1) of the Treaty applies and that the application of Article 85(3) is not justified. That provision, however, which has been used very rarely, is merely designed to prevent abuse and does not undermine the general policy underlying the regulation of encouraging undertakings to approach the Commission voluntarily. Although Article 15(5) does not refer expressly to the competent authorities of the Member States, it would in my view be inconsistent with the purpose of that provision to permit those authorities, in applying their domestic legislation on competition, to fine undertakings for acts in respect of which Article 15(5) confers immunity from fines imposed by the Commission.

25.

It is true that Article 15(5) does not protect undertakings which only apply for negative clearance, but the system established by the regulation would be undermined if such undertakings were discouraged from making applications to the Commission by the possibility that they might thereby expose themselves to penalties imposed by the national authorities. I would not therefore distinguish between the use to which the national authorities may put information contained in a notification with a view to obtaining an exemption and the use to which they may put information contained in an application for negative clearance.

26.

I accept that, in the absence of an express limitation on the use of such information by the national authorities, any implied limitation should be confined to what is strictly necessary. In my view, however, it would be inconsistent with the policy underlying Regulation No 17 in general, and Article 15(5) in particular, to permit the national authorities of the Member States to use information supplied voluntarily to the Commission as the basis for national proceedings which might result in the imposition of a penalty. Of course, that information may alert the national authorities to possible infringements of their national rules. In that event, the national authorities may in my opinion, as the AEBP appears to accept, pursue the matter and even in due course impose penalties on the undertakings concerned. It would not be practicable to enforce a requirement that, having received the information in question from the Commission, those authorities then put it out of their minds in considering whether to apply their national law. Indeed, to permit those authorities to use the information concerned in this way is no more likely to discourage undertakings from approaching the Commission than the Court's ruling in Case 85/87 Dow Benelux v Commission [1989] ECR 3137, where the Court said, at paragraph 19 of the judgment:

‘it cannot be concluded that the Commission is barred from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty’.

But the national authorities must carry out their own enquiries and gather their own evidence. They are not entitled simply to rely on the information communicated to them by the Commission and to use that information as evidence in national proceedings which may result in the imposition of a penalty on the undertakings in question.

27.

This solution seems to me to strike the right balance between the interests of undertakings which supply information to the Commission voluntarily and the interests of the authorities of the Member States in enforcing national law. Moreover, it is supported by the terms of Article 10, cited above, which suggest that the purpose of the requirement imposed on the Commission by the first paragraph of that provision is to enable the competent authorities of the Member States to express their views on the way in which the Commission should apply Articles 85 and 86 of the Treaty rather than to enable them to apply their domestic legislation on competition.

28.

The objections to this approach put forward by the Spanish Government do not carry conviction. The Government suggested at the hearing that, if the national authorities were not free to use as they saw fit information communicated to them by the Commission under Article 10(1), undertakings could obtain protection from the application of national competition rules simply by notifying an agreement to the Commission. As I have explained, however, such a notification does not prevent the national authorities from commencing their own enquiries into the agreement in question. Moreover, there is nothing to prevent Member States from following the example of Regulation No 17 by encouraging the notification of agreements to their national authorities. Thus, to restrict in the way I have suggested the use which the national authorities may make of the information transmitted cannot be said to hinder unduly the enforcement of national law.

29.

I therefore take the view that information contained in a Form A/B which is transmitted by the Commission to the competent authorities of the Member States may not be used by those authorities, in proceedings which might result in the imposition of a penalty, as evidence of infringements of their domestic competition rules. Those authorities are, however, free to commence their own investigations on the basis of that information.

30.

Since the view set out above follows from the scheme and objectives of the regulation itself, it is not strictly necessary to consider whether there is any general principle derived from the laws of the Member States which would preclude the use by the national authorities in these circumstances of information contained in a Form A/B, or whether such use would be inconsistent with the fundamental rights derived from the constitutional traditions common to the Member States and international treaties on which the Member States have collaborated or of which they are signatories, such as the European Convention on Human Rights (see e. g. Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859). Even if it were necessary to address that question, there do not appear to be any general principles in the laws of the Member States in comparable areas, for example governing the use by one government department of information obtained by another, although there are a number of rules of this nature applicable in particular contexts. In any event, it may be doubted whether it is possible to find in the laws of the Member States a situation which may properly be considered analogous to the circumstances of this case, involving as it does the parallel application by a supranational institution and a national authority of separate but related sets of rules. Moreover, there does not appear to be any provision of the European Convention on Human Rights or any case-law of the European Court of Human Rights which might support the view that the use by the competent authorities of the Member States for the purposes of their domestic law of information contained in a Form A/B would be inconsistent with the European Convention. Indeed, those who have submitted observations in this case have not suggested that such use would be inconsistent with the Convention.

31.

I turn next to the use by the national authorities of information acquired by the Commission in the exercise of its powers under Article 11 of the regulation to require information to be supplied to it. Article 10(1) does not expressly require such information to be transmitted to the competent authorities of the Member States, but it is clearly capable of falling within the phrase ‘the most important documents’ in that provision. The Commission has explained in the present case that, where it considers such information important enough, it will normally transmit it to the competent authorities of the Member States when it initiates a procedure within the meaning of Article 9(3) of Regulation No 17. The Commission emphasizes that this should not be confused with opening the file on a matter. We were told at the hearing that, although the Commission had not yet initiated a procedure in this case, it had in fact transmitted to the competent national authority the answers received to two requests for information made under Article 11. Although the Commission claims that the use which has been made of that information is not challenged by the applicants in the main action, it is clearly appropriate, given that the national court has specifically mentioned Article 11, for the Court to deal with the extent to which the national authorities may make use of information acquired under that provision.

32.

It will be recalled that Article 11 is one of the articles mentioned in Article 20(1) of the regulation, which says that the information mentioned ‘shall be used only for the purpose of the relevant request or investigation’. The Commission examined the scope of Article 20(1) in its document IV/382/90, which it prepared for the 37th meeting of the governmental experts from the Member States on restrictive practices held in Brussels on 25 to 28 September 1990, and which it produced in response to a request from the Court. In that document, the Commission suggests that Article 20(1) is in this respect open to three possible interpretations. The first is that the opening words of Article 11(1) (‘In carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the Commission may obtain...’) imply that the information acquired can only be used by the Commission in applying Articles 85 and 86. On this view, the national authorities are not entitled to use the information acquired for that purpose. The second view is that Article 20(1) permits the national authorities to use the information concerned in applying Articles 85(1) and 86. The third view, supported in the present case by the Spanish Government and, apparendy, by the national court, is that the purpose of a request for information under Article 11(1) is to help ensure that competition is not distorted. Given that this is also the purpose of national competition rules, information acquired under Article 11(1) may be used by the national authorities in the application of their domestic competition rules.

33.

In my view, the opening words of Article 11(1), quoted above, show that the purpose of that provision is to enable the Commission to apply Articles 85 and 86 of the Treaty. It would therefore be incompatible with Article 20(1) of the regulation to permit information acquired by the Commission under Article 11 to be used as evidence in proceedings instituted by the competent authorities of the Member States under their domestic legislation on competition. I do not, in any event, accept the view of the Spanish Government that domestic competition law and the Treaty competition rules necessarily pursue the same objectives; as the Court explained in the Wilhelm case, already cited, it is precisely because the two sets of rules approach competition issues from a different perspective that a single practice may be the subject of parallel sets of proceedings. It also seems to me from the terms of Article 11(1) that use of information acquired by the Commission under Article 11 is prohibited in any national proceedings, and not only in those which might result in the imposition of a penalty. The wider scope of the prohibition can be justified in view of the extensive powers conferred on the Commission by Article 11.

34.

Moreover, it will be observed that, where information acquired by the Commission under Article 11 is transmitted to the competent authorities of the Member States after the Commission has initiated a procedure within the meaning of Article 9(3), those authorities are precluded by that provision from applying Articles 85(1) and 86 themselves to the undertaking or undertakings concerned. The practice of the Commission in supplying such information to the national authorities is therefore consistent with the view, put forward above, that the purpose of the requirement imposed on the Commission by Article 10(1) is to inform the national authorities of, and enable them to comment on, the application by the Commission of Articles 85 and 86, and not to enable them to apply their domestic legislation on competition. That view provides further support for the conclusion I have reached on the proper interpretation of Article 20(1).

35.

Information acquired by the Commission pursuant to Article 11(1) of the regulation which is transmitted to the competent authorities of the Member States in accordance with Article 10(1) may not therefore be used by those authorities as evidence that their national law has been infringed. I do not, however, believe that there would be any point in seeking to prohibit the national authorities from commencing their own investigations on the basis of such information. As in the case of information contained in a Form A/B which is transmitted to them by the Commission (see paragraph 26 above), it would not be practicable to enforce a requirement that, having received the information, the national authorities then disregard it when considering whether to apply their domestic legislation on competition.

36.

According to Article 9(3) of the Regulation No 17, as interpreted by the Court in Case 127/73 BRT v SABAM [1974] ECR 51 and Joined Cases 209/84 to 213/84 Ministère Puhlic v Asjes [1986] ECR 1425, as long as the Commission has not initiated a procedure, the administrative authorities of the Member States entrusted with the task of applying domestic legislation on competition, or the courts to which that task has been especially entrusted, remain competent to apply Article 85(1) and Article 86 in accordance with Article 88 of the Treaty. In exercising the jurisdiction conferred on them by Article 88, those authorities and courts have no power under Community law to impose penalties on the undertakings concerned, but only to prohibit conduct which is incompatible with Articles 85(1) and 86. Where the powers of the national authorities are confined to those conferred on them by Community law, I therefore consider that they are free to use information contained in a Form A/B as evidence that Articles 85(1) and 86 have been infringed. Where the national authorities enjoy a power under national law to impose penalties on undertakings which act in breach of Articles 85(1) and 86, however — a hypothesis apparently postulated by the national court's first question — those authorities are not entitled to use such information for this purpose, for to allow them to do so might have the effect of discouraging voluntary approaches to the Commission. Moreover, the national authorities are not in any circumstances entitled to use information acquired by the Commission under Article 11 as evidence of an infringement of Articles 85(1) and 86, since this is in my view expressly prohibited by Article 20(1). Those authorities are not, however, precluded from instituting their own investigations in application of Articles 85(1) and 86 of the Treaty on the basis of information contained in a Form A/B or acquired under Article 11, even where they are not permitted to use such information as evidence that those provisions of the Treaty have been infringed.

37.

This solution has the advantage that the limits on the use which may be made by the national authorities of information supplied to them by the Commission are the same in cases involving the application of Articles 85(1) and 86 as in cases involving the application of domestic legislation on competition. The application of the Treaty competition rules pursuant to Article 9(3) must, however, be distinguished from the application of those rules by the ordinary national courts in accordance with the doctrine of direct effect. The powers of such courts in those circumstances raise separate issues which do not need to be addressed in the present proceedings.

38.

I am therefore of the opinion that the questions referred to the Court in these proceedings should be answered as follows: