Keywords
Summary

Keywords

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1. Community law ° Principles ° Rights of the defence ° Observance of those rights in the course of national proceedings concerning application of the competition rules ° Scope ° Civil proceedings between individuals which cannot lead to the imposition of a penalty by a public authority ° Right to refuse to give an answer implying admission of an infringement of the competition rules ° None

(EEC Treaty, Arts 85 and 86)

2. Competition ° Administrative procedure ° Use by the Commission, or by a national authority, of information unobtainable through investigations under Regulation No 17 but obtained in the course of civil proceedings between individuals as proof in proceedings which may result in the imposition of penalties, or as evidence justifying the initiation of an investigation prior to such proceedings ° Not permissible

(EEC Treaty, Arts 85 and 86; Council Regulation No 17)

Summary

1. Community law does not require a national court, when assessing an application for an order for provisional examination of witnesses prior to the initiation of civil proceedings, to apply the principle that an undertaking is not obliged to answer questions if the answer they call for entails admission that the competition rules have been infringed.

The application of Articles 85 and 86 of the Treaty by the national authorities is, in principle, governed by national procedural rules. Subject to the observance of Community law, and in particular its fundamental principles, it is a matter for national law to define the appropriate procedural rules in order to guarantee the rights of the defence of the persons concerned, which may differ from those applied in Community proceedings. Although Community law requires that a party be granted the right not to give answers which might entail admission of the existence of an infringement of the competition rules in the course of a procedure initiated by the Commission under Regulation No 17, it is a guarantee essentially intended to protect an individual against measures of investigation ordered by a public authority in order to obtain his admission of the existence of conduct laying him open to penalties imposed by that authority, which cannot be transposed to national civil proceedings involving the application of Articles 85 and 86 of the Treaty that exclusively concern private relations between individuals and cannot lead, directly or indirectly, to the imposition of a penalty by a public authority.

2. Information which the Commission could not have obtained using its powers under Regulation No 17, but which has been brought to its attention after having been obtained in the course of national proceedings concerning the application of Articles 85 and 86 of the Treaty, cannot be used by it ° or for that matter by a national authority ° in order to establish an infringement of the competition rules in proceedings which may result in the imposition of penalties, or as evidence justifying the initiation of an investigation prior to such proceedings.