Transcript Title if one line of text

The privilege against self-incrimination
in competition investigations
Peter Willis
Partner
Competition, EU and Trade Group
27 January 2005
Overview

Context – powers of investigation

The Orkem principle

Funke

Saunders
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National courts

Graphite Electrodes
Commission and OFT powers of
investigation

To require the production of documents and information –
written power, generally exercised at a distance

To investigate on-site, take copies of documents and request
explanation of those documents and relevant facts
Article 6 ECHR
1. In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law…
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty.
Orkem (1989)

Orkem challenged Commission request for information
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Court noted no express right to remain silent

Article 6 ECHR could be relied upon by an undertaking under
investigation

No right under Article 6 not to give evidence

What rights under Community law?

Commission is entitled to compel an undertaking to provide all
information and documents, even if they may establish the existence of
anti-competitive conduct

Commission may not compel an undertaking to provide answers
involving admission of an infringement which it is incumbent on the
Commission to prove
Orkem questions
Q u e s tio n
P e rm itte d ( ) o r n o t ( )
D a te s a n d p la c e s o f m e e tin g s , n a m e s o f
p a rtic ip a n ts

C o p ie s o f
m e e tin g s
th e

S u b je c t-m a tte r
and
im p le m e n ta tio n
of
m e a su re s ta k e n in o rd e r to d e te rm in e a n d
m a in ta in a sa tis fa c to ry p rice le ve l

T h e p u rp o se o f th e a c tio n ta k e n a n d th e
o b je c tive s p u rs u e d

C la rific a tio n o f s te p s e n vis a g e d o r a d o p te d
to s u p p o rt p ric e in itia tive s

D e ta ils o f sys te m o r m e th o d
p o ss ib le to se t ta rg e ts o r q u o ta s
it

D e ta ils o f m e th o d s fa c ilita tin g m o n ito rin g o f
c o m p lia n c e

d o c u m e n ts
re la tin g
to
m a k in g
Funke (1993)

French customs officers found documents at F’s house

Requested him to produce further documents
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When sentenced to pay penalty for non-production, F argued that
Article 6 ECHR applied

ECtHR: “customs secured conviction in order to obtain
documents, although not certain of existence. Attempted to
compel F to provide evidence of the offence”

Difficult to reconcile this with the fact that customs had identified
the documents requested, and F had initially agreed to produce
them
Saunders (1997)

Secretary of State appointed inspectors into Guinness takeover of
Argyll

Powers to compel production of documents and information

S tried for theft and conspiracy
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Prosecution relied on transcripts of interviews with inspectors to
refute S’s evidence

S applied to ECtHR

ECtHR held that exercise of inspectors’ powers did not infringe
Article 6, because function was investigative rather than
adjudicative

ECtHR was concerned with use of statements at S’s trial
Saunders (1997) - continued

The right not to incriminate oneself requires the prosecution to
prove the case against the accused without resort to evidence
obtained through methods of coercion or oppression in defiance of
the will of the accused

The right does not extend to the use in criminal proceedings of
material which may be obtained from the accused through the use
of compulsory powers but which has an existence independent of
the will of the suspect such as, inter alia, documents acquired
pursuant to a warrant, breath, blood and urine samples and bodily
samples for the purpose of DNA testing

The right is not confined to statements of admission or
wrongdoing, but also to exculpatory remarks and statements of
fact
The story so far – what could
authorities request/ask?
1
Incriminating
questions
Factual
questions
Pre-existing
documents
Orkem



Funke

1

1

Saunders



Note: Funke concerned only the production of documents – so this is assumption.
Subsequent cases muddied the waters still
further

Servès (1999) – follows Saunders; the key issue is coercion
in defiance of the will of the accused

Heaney and McGuinness (2000) – compulsion to account for
movements destroyed the essence of the privilege even
where statement could not be used in evidence

JB v. Switzerland (2001) – another case involving a tax
authority request for financial records; repeated requests for
information were oppressive and violated JB’s right not to
incriminate himself
Testimonial self-incrimination

Compare the US position under the Fifth Amendment

Fisher v. US – privilege protects only against incrimination by
own compelled testimonial communication

US v. Doe - subpoena may have testimonial effect;
compliance tacitly concedes existence of the documents and
belief that they are the documents described

Scope for similar arguments under EU law?
Mannesmannröhren-Werke (2001 )




Clarification badly needed after Orkem, Funke, Saunders etc
Commission requested information about Mannesmann’s
participation in alleged stainless steel tubes cartel
Mannesmann declined to answer certain questions;
Commission imposed penalties; Mannesmann applied to CFI
for annulment
Commission argued:




ECtHR has never held that privilege applies in competition
proceedings
ECtHR has never held that privilege benefits legal persons
privilege has been upheld only in the context of “classic” criminal
cases
the Commission is not a tribunal to which Article 6 applies
Mannesmannröhren-Werke (2001) continued

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CFI somewhat disingenuously claimed that ECJ in Orkem had merely
considered the possibility of the application of Article 6 ECHR to
Commission proceedings
Regulation 17 contained no express right to silence
Necessary to consider whether certain limitations on the Commission’s
powers were necessary to preserve the rights of the defence
A right to silence would constitute an “unjustified hindrance” to the
Commission’s performance of its tasks
Useful clarification of Orkem - privilege applied to requests for:

a description of the subject of meetings and of decisions adopted

a description of the relationship between a series of agreements and the
decisions adopted at various meetings
Requests went further than the merely factual and required an analysis
of the nature of the agreements
Mannesmannröhren-Werke (2001) continued

CFI then turned to Mannesmann’s argument that Article 6
allowed it not to reply to factual questions (Saunders –
although not clear that M cited the case) and to refuse to
produce documents (Funke)

CFI held that M could not rely on Article 6 ECHR before the
CFI

ECHR rights mean what the CFI says they mean, not what
the ECtHR says they mean

CFI moved the goalposts?
What scope for national courts to
apply ECHR?

National courts applying national rules – relative freedom, although
Regulation 1 limits scope of exclusive application of national law

National courts exercising supervisory jurisdiction in EU investigations
are permitted to ensure respect for national procedural guarantees –
Hoechst

What does this mean?

Mischo AG in Roquette – merely the national rules designating the relevant
court

ECJ in Roquette – case law of the ECtHR, including Funke

Commission in Regulation 1 – purports to codify Hoechst, but omits reference
to national procedural safeguards
The UK approach –
R v Herts CC, ex parte Green (2000)

Herts CC requested information on clinical waste under s71(2)
EPA

Green argued that as s71(2) EPA implemented EU waste
directive, it should be interpreted in accordance with EU
principles, including principles derived from ECHR, particularly
Article 6

House of Lords considered that judge in a prosecution under EPA
would be required to consider whether to exclude compelled
evidence

Purpose of investigative powers was wider than merely securing
evidence for prosecution
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Rationale of Saunders is fairness of trial

Council’s request was not adjudicative, so Saunders did not apply
OFT v. X (2003)

Application for a warrant
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Self-incrimination not expressly considered

But Morison J expressed view that privilege did not
extend to purely factual information

Lower level of protection for businesses than
individuals
Graphite Electrodes – CFI (2004)
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SGL Carbon argued that it should be given credit for answering
questions that required it to incriminate itself – ie. that the Commission
had no power to compel it to answer
CFI noted that ECJ had not modified its position in Orkem following
Funke, Saunders and JB
Requirement to provide factual information and pre-existing documents
did not infringe Article 6
Requests for object and results of meetings did infringe Article 6
However, requests for protocols, working documents, notes, conclusions
planning and discussion documents and price increase implementation
projects did infringe Article 6
Not at all clear how CFI distinguished between the two types of
document
Graphite Electrodes –
AG’s Opinion (2006)

CFI failed to address distinction in case-law between documents
and answers to questions

CFI’s reasoning was inherently contradictory – Strasbourg cases
deal with classic criminal proceedings against individuals; rights
extended to undertakings are more limited

Request for documents is not inherently self-incriminating –
likelihood may still be rebutted by other evidence

A balancing exercise between rights and enforcement
Conclusion

Person under investigation entitled not to answer
incriminating questions (Orkem)

Not entitled to refuse to answer factual questions (SGL
Carbon, OFT v. X) but this is contrary to Saunders

Not entitled to refuse to produce documents (Saunders, SGL
Carbon) but conflicts with Funke and JB

In practice, best course of action is often to co-operate/seek
leniency, rather than insist on legal rights