Privilege against Self-Incrimination Basic Principle

The Basic Principle

The privilege against self-incrimination protects undertakings against the obligation to reply to self-incriminating questions, i.e. to admit the existence of an infringement of EU competition law (in which they participated).

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According to the case law as established in Orkem 1 an undertaking can only invoke the privilege against self-incrimination if two conditions are fulfilled: (1) the undertaking was asked to admit the existence of an infringement of EU competition law (in which it participated) and (2) it was compelled to answer the question. However, the Best Practice Guidelines and the Hearing Officer's Mandate foresee the possibility for undertakings to raise concerns with DG Competition and the Hearing Officer about self incrimination already when they are the addressees of request for information pursuant to Article 18(2), in order to settle discussions at the earliest stage.

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The privilege against self-incrimination does not apply when answering questions asked in the context of requests made under Article 18(2) (simple requests for information, interviews, simple inspections). This is due to the fact that the undertaking is not compelled to answer these questions. It replies on a voluntary basis. If an undertaking replies in a self-incriminating manner to questions that it is not compelled to reply to (ie a reply which goes beyond the Commission's investigatory powers) that reply may be considered as spontaneous cooperation on the undertaking's part capable of justifying a reduction in a possible fine outside the scope of the Leniency Notice.

Resources

See Also

References

• Information about Privilege against Self-Incrimination Basic Principle in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] Case 374/87, Orkem v. Commission [1989] ECR 3283

Further Reading

• Information about Privilege against Self-Incrimination Basic Principle in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)