RFIs and the principle against self-incrimination

The principle against self-incrimination is one of the elements of the right to a fair trial under Article 6 ECHR and is also stipulated in recital 23 of Regulation 1/2003 (ECtHR, John Murray v UK, No. 1837/91). The principle entails, generally, that no person can be obliged to produce evidence against oneself, including the right to stay silent and not to answer questions. Consequently, it is questionable how this aligns with the obligation to reply to compulsory requests for information (RFI), including to hand out documents and to provide statements. 

The case law of the CJEU tried to strike a balance between the effet utile of Article 101 and 102 TFEU and the principle against self-incrimination. The Court established a different treatment between factual questions and documents that might incriminate the undertaking and answers that might entail the admission of the existence of the infringement (C-374/87– Orkem, paras. 34-35). In the case of the latter, the undertaking is entitled to remain silent. The Commission therefore tries to ask for factual information. But the distinction remains blurry as the difference between those two categories remains difficult to establish in practice. This was also implied by AG Wahl in HeidelbergCement (C‑247/14 P) when suggesting that providing factual evidence could be tantamount to admitting guilt. For example, asking if representatives of an undertaking took part in a cartel meeting could be seen as a factual question but at the same time, if the undertaking replies in the affirmative, it entails the admission of an infringement – at least indirectly. However, the Court did not see this the same way in Orkem when it held that it is unproblematic to disclose the circumstances of the meetings and the capacities of the attendees (para. 37).

As criminal law and antitrust law are not identical, the CJEU decided in Mannesmannröhren (C-411/04 P, para. 42) that the right against self-incrimination is not applicable to the same extent as it is in criminal law. However, the finding of an infringement may have severe consequences for the undertaking involved, which should be kept in mind when striking the balance. Several problems arise in this context:

First, the undertaking of course has the possibility to call the Hearing Officer and hope that he/she will side in favour of the principle against self-incrimination. But the recommendation is not binding so the definite evaluation rests in the hands of the Commission.

Second, if the undertaking still refuses to answer the question, it risks a fine. Of course, it can challenge the fine, but this should not be a counterargument in a Union based on the rule of law. The respect of the principle against self-incrimination shall not merely depend on invoking this right in judicial proceedings. Rather the Commission should ensure that the rights of the undertaking are sufficiently respected when issuing the RFI.

Third, although under EU competition law a natural person cannot be held liable, this is different in some national legal systems. So if the Commission decides to close the case for any reason after having received self-incriminating information, and then the national competition authority takes up the case, the answer of the undertaking or its representatives appears in a totally different light. Especially regarding the fact that due to the individual liability under national law, the individual could have benefitted from the right not to self-incriminate oneself.

Fourth, regarding the increased influence of right-wing parties and the backsliding of democracy and the rule of law in several Member States, clear safeguards need to be provided. Even if we trust the actions of the Commission today, we never know who might hold power tomorrow. That is why basic fundamental principles must be laid out more clearly.

This is why I agree with AG Wahl that not simply factual questions should be allowed to be posed but rather it has to be assessed whether the given answer might imply an admission of guilt. Thinking this further step – which results in a case-by-case assessment – is the least we can do in a European Union based on the rule of law as the given answers might have long-lasting and severe effects on undertakings and individuals.