Self-Incriminating Nature

Self-Incriminating Nature

How to react if a company claims that a question is of a self-incriminating nature

Where the addressee of a request for information pursuant to Article 18(2) of Regulation 1/2003 refuses to reply to a question in such a request invoking the privilege against self-incrimination, as defined by the case law of the Court of Justice of the European Union 1 , it may raise the matter with DG Competition before the expiry of the original time limit set 2 , otherwise it may simply not reply to this question and settle the discussion, if the questions infringe the privilege against self-incrimination, in the framework of an Article 18(3) decision.

More about Self-Incriminating Nature

If DG Competition is convinced that its questions were not of a self-incriminating nature, it should inform the addressee of the request for information of its position.

More about the Subject

If, after having been informed of DG Competition's position, the undertaking still maintains that the questions addressed to it are self-incriminating, it may refer the matter in due time to the Hearing Officer. In appropriate cases, and having regard to the need to avoid undue delay in proceedings, the Hearing Officer may make a reasoned recommendation to the Competition Commissioner as to whether the privilege against self-incrimination applies and inform the director responsible of the conclusions drawn. The addressee of the request receives a copy of the reasoned recommendation.

Other Considerations

If, following the undertaking's refusal to reply to the simple request for information, a decision pursuant to Article 18(3) is adopted, such decision should take into account the Hearing Officer's reasoned opinion. The addressee of the Article 18(3) decision will in any case be reminded of the privilege against self-incrimination as defined by case law of the Court of Justice of the European Union 3 .

Resources

See Also

References

  • Information about Self-Incriminating Nature in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
See for example Case C-301/04 P Commission v. SGL, [2006] ECR I-5915, which specifies that addressees of an Article 18(3) decision may be required to provide pre-existing documents, such as minutes of cartel meetings, even if those documents may incriminate the party providing them.
[Note 2]
2)(b) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 36.
[Note 3]
See for example Case C-301/04 P Commission v. SGL, [2006] ECR I-5915, which specifies that addressees of an Article 18(3) decision may be required to provide pre-existing documents, such as minutes of cartel meetings, even if those documents may incriminate the party providing them.

Further Reading

  • Information about Self-Incriminating Nature in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

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