With the adoption of Regulation 1/2003 and the ECN+ Directive the system of competition law enforcement was meant to become more efficient and fairer. But the question is how it plays out in practice.

Previously, in the field of leniency applications, companies were facing difficulties when submitting their leniency application resulting in the fact that whoever approaches the Commission first, would win. If in the meantime another undertaking was quicker in applying for leniency before a NCA, the undertaking could only hope that the Commission would pursue the case or that you had not given evidence that would not benefit you. This has gladly been resolved with the ECN+ Directive. Now the undertaking can file a summary application to secure its place in the line before the NCA but does not have to provide the evidence straight away.

Still, some inconsistencies remain in the decentralised system.

For example, NCAs are not allowed to issue negative decisions as the Court has held in Tele2Polska. If this would be the case, it is argued that the uniform application of EU law would be undermined. But what value does the decision of the NCA have, to conclude that there are no grounds for action under Article 5 of Regulation 1/2003? One could even question the effet utile of Article 5. So even after the NCA has found that the undertaking has done nothing wrong, the company will never be sure to be spared of any further investigations by the Commission as the decision does not cause any legitimate expectations for the undertaking (C-681/11 – Schenker and others, para. 42). 

If a NCA has deliberately decided not to further proceed with the investigation, why should this assessment be countered without any new evidence being brought forward? This interferes with the constitutional principle of legal certainty.

Furthermore, if the Commission finds that the case bears so much relevance, it is free to make use of its powers under Article 11 (6) of Regulation 1/2003 and take on the case itself.

To establish more legal certainty, the NCA should be obliged to contact the Commission before rendering its decision, just like under Article 11 (4) of Regulation 1/2003. In that case, no expectations would have been created for the undertaking causing less interference with the principle of legal certainty.

Another disadvantage for companies is the variation of the procedural safeguards in EU and national competition law. 

For example, the Commission is not obliged to wait for a lawyer when interviewing staff during an inspection. This is justified by the fact that there is no incrimination for individuals under EU competition law. But what happens if the Commission for some reason closes the case and the NCA takes up on it using the evidence the Commission has obtained during such an interview? In some Member States, such as Germany, incrimination of individuals is possible. Although Article 12 (3) of Regulation 1/2003 states that exchanged information can only be used as evidence if information has been collected in a way which respects the same level of protection of the rights of defence as under national law, the information nevertheless is out there. 

One could say, this is simply the risk of a decentralized system. But this issue could easily be remedied by the obliged assistance of a lawyer. In case a lawyer cannot actually be present, virtual assistance or assistance of a lawyer by phone would already be an improvement regarding the procedural rights. This should become an obligation for the Commission to respect as a procedural safeguard.

A further problem regarding legal certainty for businesses is displayed by the Amazon Buy Box case. The Commission investigated the conduct of Amazon but carved out the Italian market. The Italian NCA could therefore proceed with its own investigation. Having two decisions on the same behaviour but splitting the geographic market raises concerns regarding the circumvention of the ne bis in idem principle and legal certainty. This would have been prevented if the Commission had applied its very own Cooperation Notice. This again shows that the decentralised system can negatively affect enterprises.To put it in a nutshell, divergences can never be ruled out in a decentralised system. A decentralised system also has its advantages. But it should not go to the detriment of undertakings or individuals, and it should definitely not go to the detriment of the constitutional principles that lie at the heart of our legal system. Some divergences can be avoided by simply applying the existing legal framework. But some improvements for procedural safeguards are needed. The summary applications set a good example.

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.