Power to take Statements Interview

Power to take Statements. Purpose and use of the interview

According to Article 19 of Regulation 1/2003, the Commission may carry out interviews for the purpose of collecting information relating to the subject matter of an investigation. Accordingly interviews are not an instrument merely to gather general information about the market without there being any link to an investigation. While Article 19 confirms previous Commission practice in leniency cases, it provides for the first time a possibility to conduct interviews and record statements in all other cases. This new instrument can be used in a proactive manner, by inviting natural/legal persons for an interview. Given the voluntary nature of the interview, however, no negative conclusions can normally be drawn from a refusal to be interviewed or to answer certain questions (except in the context of immunity applications, where this could amount to a failure to cooperate fully).

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As concerns certainty about the subject matter of the investigation, at the time of the interview at least one case should be registered with a specific case number. The launching of further cases can be the result of the interview, but the interviewee should be asked to confirm that the information provided in the interview can also be used for such newly opened cases.

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The Commission makes regular use of this instrument in leniency cases, in which companies provide on voluntary basis information that can be used in cartel investigations. However the instrument is not limited to leniency cases and can also be used to interview persons that are not themselves subject to an investigation.

Other Considerations

It should be noted that information provided by an undertaking on a voluntary basis during an interview might justify a reduction in the fine, irrespective of a specific leniency request, particularly where it relates to self-incriminating information which assists the Commission in establishing the infringement. Particular attention needs to be paid to self-incriminating questions which – apart from the fact that they need not be answered – could lead to problems of discrimination between applicants in the context of leniency cases.

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Whilst it is not excluded that the interviewee supports his/her statements with further evidence (e.g. documents), it is recommended to limit the interview to oral statements. Other evidence should be transmitted either in the framework of a leniency application or following an information request (Article 18 of Council Regulation 1/2003) because in particular the latter provides the Commission with more guarantees as to the correctness and completeness of the information provided.

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The procedure for taking statements pursuant to Article 19 of Regulation 1/2003 and Article 3 of the Implementing Regulation applies only when it is expressly agreed between the interviewee and DG Competition that the conversation will be recorded as a formal interview under Article 19. It is within the discretion of the Commission to decide when to propose interviews. A party may however also make a request to DG Competition to have its statement recorded as an interview. Such a request will in principle be accepted, subject to the needs and requirements of the proper conduct of the investigation.

Resources

See Also

References

• Information about Power to take Statements Interview in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

• Information about Power to take Statements Interview in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)