International Antitrust Law & Policy: Fordham Corporate Law 2004 - Hardcover
International Antitrust Law & Policy: Fordham Corporate Law 2004 - PDF
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Chapter 25
THE USE OF COMPELLED EVIDENCE
IN EUROPEAN COMPETITION LAW CASES
Gerard Hogan†
I. PRELIMINARY
The enactment of Regulation 1/2003 heralds a new era of cooperation
between the Commission and the national competition
authorities of the Member States. A particular feature of this development
is the relative ease by which information obtained by the Commission and
the national authorities may be exchanged and circulated between them.
Recital 15 of the Regulation expressly envisages that the Commission and
the competition authorities of the Member States “should form together a
network of public authorities applying the Community competition rules
in close co-operation.” In this spirit, Article 12(1) empowers both the
Commission and the national competition authorities to provide “each
other with and use in evidence any matter of fact or law, including
information.” This principle is extended by Article 22 so far as inspections
and other fact-finding measures available under the domestic law of the
Member States, with the proviso that the information so exchanged is for
the purposes of applying Article 81 EC and Article 82 EC. Article 12(2),
however, provides that information so exchanged can be used where
“national competition law is applied in the same case and in parallel to
Community competition law and does not lead to a different outcome.”
These developments accordingly brings back into sharp focus
questions first identified in cases such as Orkem SA v. Commission1 relating
to the scope and extent of the privilege against self-incrimination in the
context of antitrust investigation.2 A particular aspect of this problem is the
extent to which (if at all) compelled evidence can be utilized in
competition enforcement proceedings, whether by national competition
authorities or by the Commission. Hovering above this very practical
question are wider issues of greater moment: does the privilege against
About the Editor:
Barry Hawk, Director, Fordham Corporate Law Institute; Professor of Law, Fordham University and Partner, Skadden Arps Slate Meagher & Flom (New York and Brussels)
