C-374/87

ORKEM v COMMISSION

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 18 May 1989 *

Summary

I — The absence of a prior request for information from CdF Chimie SA 3302

II — Whether or not the contested decisions in fact constituted a 'Statement of objections'.... 3308

III — Unlawful use of the power to request information 3314

OPINION OF MR DARMON —CASE 374/87

ORKEM v COMMISSION

view that the Commission infringed the 9. Relying on that judgment, CdF Chimie EEC Treaty and Article 11 of Regulation SA considers the contested decision to be No 17 — in particular paragraph (5) of that improper, contending that the first phase article. was not carried out as far as it was concerned since, as mentioned, the prior request for information was addressed not to it but to CdF Chimie EP.

7. Under Anicie 11(1) of Regulation No 17, the Commission may, in performing the task entrusted to it by Article 89 of the EEC Treaty, namely ensuring 'the application of 10. In response to that submission, the the principles laid down in Articles 85 and Commission observed that CdF Chimie EP 86', 'obtain all necessary information from is a wholly owned subsidiary of CdF Chimie the governments and competent authorities SA, that those two undertakings, although of the Member States and from under­ two separate legal entities, are nevertheless takings and associations of undertakings.' part of the same group and that, according Article 11(2) to (4) of Regulation No 17 to previous decisions of the Court, in concern the formal requirements applicable particular its judgment of 14 July 1972 in to requests for information. Article 11(5) ICI v Commission, states that 'Where an undertaking or asso­ ciation of undertakings does not supply the information requested within the time-limit fixed by the Commission, or supplies 'the formal separation between these incomplete information, the Commission companies, resulting from their separate shall by decision require the information to legal personality, cannot outweigh the unity be supplied'. of their conduct on the market for the purpose of applying the rules on compe­ 8 tition'.

11. In response to those arguments, CdF gation under Article 14(3) of Regulation No Chimie SA contests the relevance of the 17, the addressee of which was 'CdF concept of unity of undertakings developed Chimie, Tour Aurore ... Paris La Défense'. by the Court concerning the extent to which It will be noted that at that stage the the conduct of a subsidiary can be attributed Commission's communication to the to the parent company, since the issue in the addressee undertaking concerned two present case is one of procedure and not of products, LDPE and PVC. That decision substance. It considers, in essence, that the was notified on 20 January 1987 to Mr legal identity of an undertaking cannot be Henwood in his capacity as secretary of decisive with regard to substantive issues but CdF Chimie EP. must be strictly respected from the procedural point of view, particularly where the contested measure is adopted at a stage of the procedure at which there can be absolutely no prejudging of the merits of 14. On 9 April 1987 the Commission sent a the case, that is to say the question whether request for information under Article 11(2) there was any unity of conduct on the part to (4) of Regulation No 17 relating only to of undertakings which are legally separate. LDPE, the addressee of which was 'CdF The applicant adds that the term 'within the Chimie SA, Tour Aurore ... Paris Défense'. control of the addressee' used by the Court On 6 May 1987 it was CdF Chimie EP, cannot be extended from the addressee of a whose postal address is 'Tour Aurore ... measure to all the companies belonging to Paris-Défense' which replied to that request. the same group without encroaching upon The letter begins thus: 'Please find enclosed the principle of the individuality and inde­ our replies to the request for information pendence of natural and legal persons which dated 9 April which arrived at our offices is upheld both in national laws and in inter­ on 15 April 1987'. national conventions.

17. That sequence of events shows that, '. . . The circumstance that this subsidiary even disregarding the Commission's first company has its own legal personality does approach of 15 January 1987 which not suffice to exclude the possibility that its formally concerned 'CdF Chimie' without conduct might be attributed to the parent , 9 indicating 'SA' or 'EP', a request for infor­ company' mation dated 9 April 1987 and then a decision requesting information dated 2 July 1987, both expressly addressed to 'CdF it stated elsewhere, in a case in which BMW Chimie SA', gave rise to two replies dated 6 Belgium, a wholly owned subsidiary of May and 28 July 1987 from CdF Chimie BMW Munich, contended that it could not EP. I think it important that those two pursue an aim different from that prescribed replies make no comment, and express no by the parent company, that reservation, regarding the distinction to be drawn between CdF Chimie SA and CdF Chimie EP. Furthermore, contrary to 'The bond of economic dependence ... whatever may have been said to the Court between the parent company and the at the hearing on this point, no comments subsidiary does not preclude a divergence in were made to the Commission before the conduct or even a divergence in interests adoption of the contested decision as to the 10 between the two companies'. need to distinguish between the two companies. In the correspondence between the Commission and the two companies, the first reservations were not expressed until This, it seems to me, clearly indicates that CdF Chimie SA's reply of 26 November the legal status of a wholly owned 1987 to the contested decision of 9 subsidiary does not of itself justify a November 1987. presumption of unity of conduct in a market or disregard of the legal identity of each undertaking from the procedural standpoint. In principle it is only when the Commission has established such unity of conduct that it can take account of it.

1987, CdF Chimie SA and CdF Chimie EP the previous judgments of the Court which, indisputably maintained the confusion, or at as far as the notification of decisions is least permitted it, since on two occasions, concerned, to some degree attach more without comment, CdF Chimie EP replied importance to actual knowledge of a to a measure addressed to CdF Chimie SA. decision than to strict compliance with In the absence of any observation what­ formalities in its notification. Thus, in ICI v soever from CdF Chimie EP, the Commission, supra, the Court noted that Commission — which in any event was since the applicant had full knowledge of aware that the latter company was a wholly the text of a decision and had exercised its owned subsidiary of CdF Chimie SA and right to institute proceedings within the that the two companies had the same prescribed period address — had grounds for considering that CdF Chimie EP normally had authority to speak on behalf of CdF Chimie SA on questions affecting the LDPE market and 'the question of possible irregularities that no distinction was to be drawn between concerning notification ceases to be 12 the two undertakings. It should also be relevant'. noted that the letter from CdF Chimie EP of 28 July 1987, replying to the Commission's decision addressed to CdF The fact that actual knowledge takes Chimie SA on 2 July 1987, indicates that it precedence over strict adherence to was in response to 'the decision ... of 2 July formalities is also apparent from Continental 1987, notified to CdF Chimie'. Such a Can, supra, in which the Court emphasized reference to 'CdF Chimie' could not fail, in that that context, to give credence to the view that in some way CdF Chimie SA and CdF Chimie EP formed a single whole. 'a decision is properly notified within the meaning of the Treaty if it reaches the addressee and the latter is in a position to 21. On the basis of the concept of 'within take cognizance of it ... ' the control of the addressee company' defined in the Court's judgment of 10 11 December 1957 in ALMA, I consider that the conduct of the two companies and pointed out that concerned whereby one, CdF Chimie SA, the addressee of documents to which the other, CdF Chimie EP, replied in an 'this was so in the present case, because the apparently normal, one might even say contested decision actually reached routine, way, provides due grounds for the Continental and the latter cannot make use view that the 'control' referred to is the of its own refusal to take cognizance of the same in both cases. Accordingly, it may be 13 decision'. stated that a document addressed to one arrives within the control of the other, and vice versa. 23. In my opinion the Court would remain faithful to its previous decisions if it took 22. This relaxation of procedural require­ the view that a subsidiary company which ments seems to me to be in harmony with appeared, in exchanges of correspondence

24. Moreover — and this argument is secondary to the matter of internal control — it seems to me that by virtue of 27. This leads on to consideration of the the common-law concept of estoppel no submissions which, in essence, are similar in person who has created confusion or the applications of Solvay and CdF Chimie allowed confusion to arise concerning a SA (hereinafter referred to as 'CdF factual situation may subsequently take Chimie'). Behind their superficial diversity advantage of any procedural irregularities lies the fact that those submissions are in which that confusion has engendered. fact inspired by the concern to ensure the rights of a party to defend itself at the stage of the Commission investigation in which it seeks to compile information as to the 25. Finally, it is not without importance for possible existence of agreements, decisions the Court to note, as the Commission has or concerted practices contrary to the done, that the confusion between CdF Treaty competition rules. Perhaps in fact the Chimie SA and CdF Chimie EP continued way in which that concern is expressed has even after the matter came before the Court sometimes appeared to the Court — as it since the reply to a question which the has appeared to me — to be uncertain, in Court put in writing to CdF Chimie SA, view of the contradictions which appear to which lodged the originating application, exist between the applicants' complaints or contains inter alia the statement 'Before to be inherent in the manner in which a replying to the question put to it by the particular complaint is described. Thus, the Court, Norsolor would point out ... '. claim that the information requested was However, Norsolor is the new name of CdF unnecessary since the Commission already Chimie EP, but the Court's question was had sufficient evidence against the 'ques­ addressed to CdF Chimie SA which has tioned' undertakings does not at first sight now become Orkem ... The Court will appear very consistent with the allegation doubtless find it difficult, as I do, to require that the Commission, by asking compre­ the Commission to have a clearer idea of hensive and very general questions, sought the distinction between CdF Chimie SA to reverse the onus of proof and cause the Orkem and CdF Chimie EP Norsolor than undertakings themselves, in their replies to those two companies themselves have. the wide-ranging questions, to provide the evidence against them which the Commission had been unable to gather. Similarly, the substance of a right to silence 26. That is why I invite the Court to or a right not to incriminate oneself which conclude that CdF Chimie SA had would disappear as soon as the Commission

obtained precise evidence might seem submission put forward by CdF Chimie in remote from what lawyers in general the alternative. The two companies claim perceive such a right to be. that the contested decisions are in fact statements of objections purporting to be decisions calling for information and that, consequently, the Commission infringed not 28. But behind those apparent contra­ only Council Regulation No 17 but also 14 dictions a logical aim is being pursued, its own Regulation No 99/63 and the which became quite apparent at the hearing, principle of the right to a fair hearing, in so far as the applicant undertakings claim described by Solvay as a 'general principle' that the party questioned should know how and by CdF Chimie as a 'fundamental much the questioner already knows. I do principle'. Briefly, the applicants argue that not think that it betrays anyone's thinking the contested decisions constitute a formal to say that the aim is therefore to allow the accusation against them of participation in undertakings to find out, for the purposes concertation contrary to Article 85, of of the Commission's investigation under the which the Commission claims, in the very competition rules, what they can still text of the decisions, to have evidence. Since conceal. And let me say straight away that the Commission thus complained of an there is nothing shocking about that. infringement of Article 85 it ought to have Exploitation to the full of any latitude complied with the conditions laid down in allowed by the legal rules and efforts to Regulation No 17 and Regulation No ensure that the broadest interpretation of 99/63 regarding the right to a fair hearing, that latitude is acknowledged to constitute a in other words it should have disclosed to positive right are the very essence of the undertakings concerned the information defence. The applicant undertakings are on which the objections were based and thus perfectly true to their role in arguing given them an opportunity to express their that their 'right to know' at the investigation views on it, and there can be no question of stage should be upheld. But it is the role of those companies now being under any obli­ the Court to define the scope of the legal gation to answer any question whatsoever. rules applicable to that stage and to decide But in fact, they say, the contested decisions finally whether in fact any such right exists. give no precise details of the information on which the objections are based and purport to compel the undertakings, under threat of a fine or periodic penalty payment, to respond to the requests for information. 29. The applicants' various submissions must therefore be examined with the general aim in mind of providing an answer to that question.

and precedes it, and that it was to comply adoption of a decision imposing fines on with the requirements of Article 11(3) of 'undertakings or associations of under­ Regulation No 17 concerning requests for takings' which 'either intentionally or negli­ 16 information that it referred to evidence of gently ... infringe Article 85(1)'. the infringement with which the investi­ gation was concerned. Reference to that evidence was not in any way characteristic of a statement of objections within the meaning of Article 19(1) of Regulation No 34. The first sentence of Article 2(1) of 17 and the undertakings concerned have no Regulation No 99/63 provides that 'the grounds for alleging any breach of the right Commission shall inform undertakings and to a fair hearing associated with such a associations of undertakings in writing of statement. the objections raised against them' and Article 3 provides that 'undertakings and associations of undertakings shall, within the appointed time-limit, make known in writing their views concerning the objections raised against them', being able 32. As is clear from the foregoing summary 'in their written comments [to] set out all of the parties' main arguments, the matters relevant to their defence' and submission that the contested decisions 'propose that the Commission hear persons constitute disguised statements of objections who may corroborate those facts'. Article is made because, under the legal conditions 7(1) of that regulation provides that 'the laid down by Regulations Nos 17 and Commission shall afford to persons who 99/63, there is much greater protection of have so requested in their written comments the right to a fair hearing in relation to the opportunity to put forward their statements of objections than in relation to arguments orally, if those persons show a the Commission's investigative measures in sufficient interest or if the Commission the strict sense. proposes to impose on them a fine or periodic penalty payment'. Finally, Article 4 of the same regulation provides that in its decisions 'the Commission shall ... deal only with those objections raised against undertakings and associations of under­ 33. According to Article 19(1) of Regu­ takings in respect of which they have been lation No 17, 'Before taking decisions as afforded the opportunity of making known provided for in Articles 2, 3, 6, 7, 8, 15 and their views'. 16, the Commission shall give the under­ taking or association of undertakings concerned the opportunity of being heard on the matters to which the Commission has taken objection'. With regard more particularly to action by the Commission to 35. The 'substance' of the statement of eliminate or penalize infringements of objections has been defined by the Court. In Article 85(1), it should be noted that Article its judgment of 13 February 1979 in 19(1) applies before the adoption of a Hoffmann-La Roche, it inferred both from decision requiring 'the undertakings or asso­ the abovementioned provisions of Regu­ ciations of undertakings to bring such lations Nos 17 and 99/63 and from the infringement to an end' and before the general principles of the right to a fair

37. This very clear difference between the 36. But, as is apparent from the terms of conditions applicable to the inquiries asso­ Article 19(1) of Regulation No 17, decisions ciated with the Commission's powers of adopted pursuant to Articles 11 or 14 investigation and those applicable to the thereof are not covered by the conditions statement of objections, 'the first stage of which I have just outlined. The Court's the administrative procedure' properly so judgment in National Panasonic, to which I called, as pointed out in the Court's 19 referred earlier, is very clear on this point. judgment in Hoffmann-La Roche, is In reply to the argument that an under­ without doubt applicable to the other means taking had been deprived of the right to a of investigation available to the Com­ fair hearing before an investigation decision mission, namely the request for information. had been adopted under Article 14(3), the In the same way as the investigation, the Court stated that request for information is not intended to bring an infringement to an end or to establish an infringement; it is intended solely to enable the Commission to gather the information necessary to check the 'such a right of defence is chiefly incor­ actual existence and scope of a given factual porated in legal or administrative and legal situation. Therefore, it likewise procedures for the termination of an does not render applicable the right to a fair infringement or for a declaration that an hearing which arises in the event of the agreement, decision or concerted practice is Commission's considering that the incompatible with Article 85, such as the conditions for initiating a procedure are procedures referred to by Regulation No satisfied. In this respect I wholly endorse the 99/63 ... On the other hand, the investi­ analysis made by the Commission and the gation procedure does not aim at termi­ French Republic. Moreover, this view is not nating an infringement or declaring that an contested by legal writers, not even those agreement, decision or concerted practice is referred to by the applicants in support of incompatible with Article 85; its sole some of their arguments. In fact, Asteris objective is to enable the Commission to Phakos, in his recent work entitled Les gather the necessary information to check droits de la défense et le droit communautaire the actual existence and scope of a given de la concurrence states that 'it is only on factual and legal situation'. 18 — Case 136/79, supra, paragraph 21. 17 — Case 85/76 [1979] ECR 461, paragraph 11. 19 — Case 85/76, supra, paragraph 10.

conclusion of the preliminary inquiries that provide most of such information. Essen­ undertakings are entitled to submit their tially, those reasons amount to a challenge observations on the objections which the of the Commission's right to ask for the Commission intends raising against them in information concerned. Then, referring to 20 its decisions'. Articles 11(5), 15(1)(b) and 16(1)(c) of Regulation No 17, concerning the Commission's power to impose fines or periodic penalty payments on undertakings which furnish incorrect information or refuse to supply complete and correct infor­ 38. I therefore consider that the submission mation, the Commission adopted the under examination here could only be well decision calling on the applicant to provide, founded if it emerged that the contested within a period of two weeks, the infor­ decisions were not intended to enable the mation set out in an annex. Commission to gather the information needed to check the actual existence and scope of a given factual and legal situation but rather showed that the evidence available to it was such as to justify, almost beyond doubt, the initiation of an adminis­ 40. The requested information is listed in trative procedure within the meaning of the annex under four headings. Under the Regulation No 99/63 and of the case-law first, 'The meeting of LDPE producers', the analysed earlier. What is the position? following is stated: 'The evidence in the possession of the Commission indicates that your undertaking was among those which took part in such meetings' and that the applicant 'even organized some of them'. Then there are a number of questions which 39. The decision of 9 November 1987 in I shall not consider in detail. They concern respect of CdF Chimie indicates that the the date, place and frequency of meetings, Commission was investigating the 'presumed details of those at which CdF Chimie was existence of agreements, decisions or represented, details of the other under­ concerted practices' 21 contrary to Article takings which took part, the regularity of 85(1) in the thermoplastics industry, which such participation, and the identity and/or includes LDPE, produced and distributed the capacity of the persons representing the by CdF Chimie, and that, as a result of various undertakings. The Commission investigations and requests for information asked for a copy of every document relating from the applicant and other undertakings it to such meetings, prepared before, during was in a position to 'presume that [CdF or after them. 22 Chimie] had taken part' in the fixing of target selling prices and the establishment of quotas or target volumes by producers supplying thermoplastics in the common market. The Commission then states that on 20 August 1987 it sent a request for infor­ 41. Under the heading 'Target price or mation to the applicant and gives the minimum price' the Commission states that, reasons stated by the latter for failing to according to the documents obtained by it, one of the main topics dealt with at the meetings concerned measures intended to 20 — Bruylant édileur, Brussels, 1987, p. 242. 21 — Decision of 9 November 1987, p. 1, paragraph 2. fix and maintain LDPE price levels satis­ 22 — Ibid-, paragraph 3. factory to all the participants. Then there

42. Under the heading 'Quotas, targets and 45. As regards the contested decision of 24 sharing among LDPC producers', the November 1987 concerning Solvay, it need Commission indicates that, according to the only be stated that, subject to certain documents obtained by it, at the meetings differences regarding dates and the fact that the producers finalized the determination of the product at issue is not LDPE but PVC , annual sales targets for each undertaking, the information required is along the same an estimate relating to the whole European lines as that sought from CdF Chimie. It is market being drawn up with subsequent to be noted, however, that less information apportionment between the producers. Then is required than in the case of CdF Chimie there are questions about the method of even though the prior requests addressed to allocation, monitoring of compliance with the two companies were almost identical. quotas and the information communicated This is perhaps due to the fact that, by by the applicant to other producers contrast with CdF Chimie, Solvay agreed to concerning its own LDPE production and supply some of the information previously sales. requested concerning meetings, prices, quotas and information furnished to Fides.

46. The first observation called for here, having regard to the wording of the two 43. Under the heading 'Statements contested decisions, is that they indicate that forwarded to, and statistics provided by, the two addressee companies are suspected, Fides', there are questions on exchanges of on the basis of the evidence obtained by information with Fides on LDPE, in investigation or requests for information, of particular the information supplied to Fides having been parties to agreements between by the applicant and received from Fides by producers prohibited by Article 85(1). That the applicant each month. finding does not however prompt me to

the Commission had given a statement of the reasons on which its decision was based 48. Admittedly, the use of the indicative in which complied with the requirements of the very wording used to identify the infor­ Regulation No 17. That dictum must be mation requested gives the impression that regarded as applicable to the purpose of the that information is not to constitute a means request for information. By mentioning the of determining whether or not the under­ suspected infringement, the Commission taking concerned actually committed an merely complied with Article 11(3) of Regu­ infringement but rather a means of defining lation No 17 concerning the purpose of the the scope of an infringement which appears request for information. Therefore, mention to have been established. In that respect, I of the suspected existence of agreements consider the drafting regrettable. However, between LDPE or PVC producers cannot the assessment of its consequences should be automatically be regarded as indicating that tempered somewhat. It seems to me, having the decisions at issue are not requests for regard to the previous decisions of the information. Court, that charges against an undertaking which go into some detail at an early stage 23 — Case 136/79, supra, paragraph 26. are not incompatible with a request for

OPINION OF MR DARMON — CASE 374/87

50. I do not need to remind the Court, after the summary that I have given, of the breadth of the requests for information 'the actual existence and scope of a given 24 contained in the contested decisions. factual and legal situation' Accordingly, I think that, whatever the charges expressly or implicitly formulated against the applicants in those decisions, the objective importance of the information whereas a proceeding is initiated only when requested of them precludes those decisions the Commission has formed a firm being regarded as statements of objections conviction and considers that the evidence disguised as requests for information. Thus, gathered justifies such a course. But the the submissions on this point in the decisions at issue here, although charging applications appear to me to be without the undertakings concerned with partici­ foundation. pation in an infringement, also indisputably ask them for a large amount of information. I think that by so doing the Commission is seeking information which will at least confirm the extent of the infringement of III — Unlawful use of the power to request which it suspects the existence. Since those information requests appear to be of some substance, rather than minor or artificial, the Commission cannot be regarded as having formed its definitive opinion. According to 51. I now propose to examine certain the Court, a statement of objections is arguments advanced by CdF Chimie. In issued only when the Commission considers making its first alternative submission, based that all the evidence gathered is sufficient to as a whole on an infringement of Regu­ justify initiation of the proceeding stricto lation No 17 and of the fundamental prin­ sensu. That means that at that stage it needs ciples of the right to a fair hearing, it no further information in order to form its contends that the Commission cannot seek information and the production of 24 — Case 136/79, supra, paragraph 21. documents which, by their nature and

52. I must confess that the legal significance of the grievances thus expressed did not immediately strike me with the full clarity 55. In the first place it is clear that the which is to be desired. On reflection, Commission may only require an under­ however, it seems that the arguments taking to produce information of which it is advanced may be taken to be challenging already in possession, even though, if the Commission's power under Article 11 to necessary, it may have to marshal the infor­ request: mation concerned. The request for infor­ mation may not be designed to make an undertaking seek information held by third parties. Thus, a request for information which the Commission knows is not or (1) information which the undertaking cannot be in the possession of the under­ concerned does not yet possess and taking concerned would certainly be would have to obtain from third parties; improper. But that impropriety must be evidenced by objective factors, not merely by statements by the undertaking. In the present case it is not apparent either from the wording of the contested decision or (2) documents — which should be sought from any other document before the Court under Article 14; that the Commission asked CdF Chimie for

OPINION OF MR DARMON — CASE 374/87

56. As regards the possibility — denied by the applicant — of obtaining documents by 57. Finally, I must confess that I have found means of a request for information, it nothing, either in Regulation No 17 or in should be noted that there is nothing in the decisions of the Court, to indicate that Regulation No 17 to suggest that an investi­ the Commission's prior exercise of its inves­ gation under Article 14 is the only way tigative powers under Article 14 limits, in documents can be obtained. This Court has, the same case, the scope of the power to as the Commission pointed out, stated the request information under Article 11. I have opposite view, since in its judgment of 18 26 re-read the judgments cited by counsel for May 1982 in AM & S, after pointing out CdF Chimie at the hearing but have not that Articles 11 and 14 of Regulation No 17 found the slightest support for the empower the Commission to obtain the contention that, after an investigation, a information and undertake the investi­ request for information may only seek clari­ gations necessary for proceedings in respect fication of the information already obtained. of infringements of the competition rules, it It seems that CdF Chimie has somewhat stated that written communications between misinterpreted the Court's judgment in lawyer and client, in so far as they have a National Panasonic. bearing on the 'client' undertaking's market activities, fall within the 'category of documents referred to in Articles 11 and 14'. Thus, indirectly, but expressly, the Court acknowledged that documents could be obtained on the basis of both Article 11 58. In that judgment the Court stated that officials authorized by the Commission, in 25 — Annex to the decision, heading I, question 5. 26 — Case 155/79 [1982] ECR 1575, paragraph 16. 27 — Case 136/79 National Panasonic, supra, at p. 2066.

'information on specific questions arising from the books and business records which 28 they examine', The Court then stated that the applicant in that case could not succeed in its claim that the information must be obtained and the check made which means that in the course of an inves­ tigation Commission officials have authority to ask for a limited range of information. This is justified by the fact, emphasized in the judgment, that a decision requiring 'in two distinct and successive stages information must without fail be preceded according to an order of priority which is 30 by a straightforward request for infor­ not laid down in the text'. mation, whereas an investigation decision may be adopted without the Commission's having first endeavoured to have an investi­ gation carried out by duly authorized officials. That is why the possibility of 60. Although the present case is concerned seeking information in the course of an not with Article 47 of the ECSC Treaty but investigation must be limited: so that the with Regulation No 17, I consider that, in Commission is not tempted to obtain infor­ the same way, there is nothing in the latter mation routinely by that means, thus measure or in the previous decisions of the dispensing with the prior request for infor­ Court to indicate that there is any 'order of mation. But I do not see how that could priority' or subordinacy as between the imply any limitation of the power to request request for information and the investi­ information following an investigation, in gation. On this point therefore I associate accordance with the two-stage procedure myself with the Commission's position, under Article 11. which is that the two types of investigation are independent of each other and that it may have recourse to either alone or to one after the other, according to the needs of the inquiries being conducted by it, and that 59. Like Mr Warner in the Opinion which I recourse to one cannot restrict the possi­ cited earlier, I think it is relevant to recall bility of later recourse to the other. the terms of a judgment of this Court concerning the first paragraph of Article 47 of the ECSC Treaty. According to that provision, 'The High Authority may obtain the information it requires to carry out its 61. Thus, none of CdF Chimie's arguments tasks. It may have any necessary checks as to the improper use of the power to made'. In its judgment of 14 April 1960 in request information appears well founded. Acciaieria di Brescia the Court pointed out that that provision establishes 29 — Case 31/59 Acciaieria di Brescia v High Authority [1960] ECR 71, atp.79. 28 — Case 136/79, supra, paragraph 15 30 — Ibid., at p. 80.

IV — The need for the information evidence such as to prove the applicants' requested guilt, it took care, in its requests for infor mation, to pursue its inquiries in such a manner as not to accuse the undertaking in question lightly and to determine precisely 62. It would now seem necessary to the responsibility of each of them. It examine an argument which is, in a manner therefore declares itself surprised by the of speaking, common to CdF Chimie and complaint directed against it, since any Solvay, namely that the information other approach in its proceedings in compe required in the contested decisions is not tition matters would lay it open to criticism necessary within the meaning of Article 11 by the Court for inadequate evidence. of Regulation No 17. To that argument, which is contained in the second limb of Solvay's alternative submission and the first limb of CdF Chimie's alternative 65. It is true that the use of the investigative submission, may be added the third powers granted to the Commission by argument set out in the latter submission, Article 11, and also Article 14, of Regu based on infringement of the principle of lation No 17 must, according to the terms proportionality. of those provisions, be justified by necessity. The Commission may obtain 'all necessary information from .

which is necessary. The applicants emphasize considers necessary to know'. 33 More that it is not sufficient that the information recently, in the AM & S judgment, the should simply be useful. In addition, CdF Court stated, with respect to Article 14(1), Chimie considers that the decision that since the Commission may demand the concerning it breaches the principle of documents proportionality by requiring it to supply documents and information bearing no relation to those which the Commission claims to possess already and by not giving any precise details to enable it to determine 'whose disclosure it considers "necessary" in whether or not the requested information is order that it may bring to light an necessary. infringement of the Treaty rules on compe tition, it is in principle for the Commission itself, and not the undertaking itself or a third party, whether an expert or an arbi trator, to decide whether or not a document

ORKEM v COMMISSION

66. Appraisal of the need for information or and that in that connection checks cannot however be left wholly to the Commission's discretion. Academic legal writers have drawn attention to certain 'it is only the objective in view which must requirements inherent in the concept of serve as the criterion'. 36

necessity. Thus, Messrs Thiesing, Schröter and Hochbaum state that 'The Commission may use its rights under Article 11 only if and to the extent to which such use is indis­ In a later case the Court stated, again with pensable to attainment of the aim in pursuit respect to investigative measures adopted by of which the information is requested'. They the High Authority in relation to the same add that 'the right to request information provision, that cannot therefore be used in order to obtain details which are already known to the Commission or are generally available' and 'The limit of the High Authority's powers that 'requests for information designed when applying Article 47 is determined by 3 solely to facilitate the administration's tasks the requirements of the checks', 7 are, moreover, inadmissible'. Finally, they emphasize that 'the way in which the infor­ mation is requested must be proportionate 35 and that it was for the Court to to the aim pursued'. However, it cannot be asserted that, according to its case-law, the Court's review must ensure compliance, to the letter, with the requirements laid 'determine whether the measures of investi­ down in those authoritative views. Indeed, gation taken by the High Authority were 38 having regard to the authority to appraise excessive'. the question of necessity recognized by the Court as vested in the Commission, it seems that the Court is concerned to ensure that In that regard, the Court considered that a the investigative measures adopted by the demand for the production of electricity Commission are not excessive or dispropor­ invoices tionate.

and that it did not therefore appear

ORKEM v COMMISSION

Therefore, addressed to Solvay). It therefore seems to questions on that organizational aspect me that the various questions asked, which cannot in my view be regarded as super relate to organizational details of price fluous. Nor does it seem, from the terms in initiatives, both in general terms and, in the which the Commission expressed them, that decision in respect of CdF Chimie, in they are excessively wide-ranging. relation to the latter's internal procedures, are undeniably relevant to the identification of another component of an infringement of Article 85(1), in so far as that provision relates to agreements which 'directly or indirectly fix .

OPINION OF MR DARMON — CASE 374/87

takings on the ground that it had evidence Commission's request for evidence is that they had participated in infringements unnecessary or excessive. For the most part, of Article 85(1). On the contrary, the better the 'need for evidence' can be assessed only view is, as expressed by Messrs Thiesing, in relative terms. Schröter and Hochbaum, that 'if the Commission undertakes investigations into breaches of the competition rules, there must be some indication that the law has been infringed' and that 'a request for infor­ 78. I think it is also important to remember mation made merely by way of precaution is that, according to previous decisions of the 41 not permissible'. Furthermore, the Court, the investigations conducted by the Commission stated at the hearing that it Commission under Articles 11 and 14 of undertook investigations only on the basis Regulation No 17 are intended to enable it of evidence, not as a means of 'probing'. to

41 — Op. cit., p. 493 —see footnote 35. 42 — Case 136/79 National Panasonic, supra, paragraph 21.

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81. In view of all the conditions to which I 83. Consequently, I am of the opinion that have referred, there is nothing surprising in consideration of the two contested decisions the fact that the Commission, although in has not shown that the information sought possession of certain evidence, is entitled to from the applicants in each of them was undertake proper investigations and then unnecessary for the purpose of establishing consider that, despite an apparent lack of an infringement of Article 85(1), so as to

OPINION OF MR DARMON — CASE 374/87

87. It seems to me that there is a point 84. I must now consider another argument which must be clarified before the weighty which, essentially, is relied on by both debate prompted by the opposing theses is applicants. This argument, which appears to embarked upon. It must first be decided be embodied in both the first and fourth whether Regulation No 17 itself grants limbs of Solvay's alternative submission and undertakings the right to refuse to reply to in the second alternative submission made requests for information where the replies by CdF Chimie, is essentially based on the would, as far as they are concerned, be allegation that the contested decisions are in 'self-incriminating', in so far as it would breach of the principle that no one can be involve the admission of an infringement of compelled to give evidence against himself. Article 85 and would expose them to the applicable penalties. There is no point in discussing the traditions common to the Member States or international instruments unless the right not to incriminate oneself is not already upheld by Regulation No 17. 85. According to CdF Chimie, the right not to give evidence against oneself is a general legal principle embodied in Community law, upheld by international conventions which are binding on the Member States and by 88. There is no doubt as to the answer. It is their legal traditions. In Solvay's view, it absolutely certain that the Council, as orig­ constitutes a fundamental human right inator of Regulation No 17, did not intend included amongst the general principles of to give undertakings to which a request for Community law of which the Court, information was addressed the right not to inspired by the constitutional traditions incriminate themselves. That conclusion common to the Member States and by inter­ seems to me to stem from the very national instruments, ensures observance. conditions governing requests for infor­ The applicants consider that the Council's mation, as laid down in Article 11 of Regu­ refusal to incorporate the right to silence in lation No 17. What explanation could be

91. On the basis of that report, the Internal Market Committee presented a draft resolution to the Parliament amending on 89. Mr Advocate General Warner's analysis numerous points the proposal for a regu­ in his Opinion in the National Panasonic lation which had been referred to it. With case appears to me once again to be correct. respect to the requests for information, He said provided for in Article 9, under the heading 'Right to information', the draft resolution proposed wording whereby 'any person required to supply the information may refuse to answer the questions where the reply is liable to expose them or to expose 'Article 11 enables the Commission to seek, any person who might refuse to give and if necessary to compel, the cooperation evidence under his national code of of the undertaking concerned in providing 43 procedure or the undertakings or associ­ information'. ations of undertakings which they represent, to criminal penalties'. The resolution adopted by the Parliament on 19 October 4 1961 incorporated that wording. 7But, as

90. The legislative history of Regulation No 44 — Doc .No 57 of 7 September 1961, European Parliament. 17 gives some relevant insights concerning 45 — Ibid, p. 30. 46 — Ibid. 43 — Case 136/79, supra, at p . 2066. 47 — Journal officiel, 15.11.1961, p. 1406.

OPINION OF MR DAEMON — CASE 374/87

we know, the Council did not incorporate not do so. For example, Asteris Phakos that wording in the final text. states, with respect to the right not to incriminate oneself, 'the Community compe­ tition rules do not provide for such a right' in favour of persons required to supply information and he refers in that regard to 92. Referring to that toing and froing, and the fact that the Council did not adopt the 50 after expressing his Parliament's proposal.

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95. So is it possible, leaving aside Regu­ 99. The right not to incriminate oneself is lation No 17, to identify a principle, very widely applied in Spain, where it is recognized in Community law, which expressly upheld by Article 24 of the upholds the right not to give evidence Constitution. It is considered that the against oneself when requested to supply general terms in which it is formulated information under Article 11 of that regu­ render that fundamental principle applicable lation? to both natural and legal persons. Since the Constitutional Court held in a 1981 judgment that the fundamental principles embodied in Article 24 also apply to admin­ istrative proceedings which may lead to the imposition of penalties, it must be agreed that the right not to give evidence against 96. The applicants rely in that connection oneself applies to domestic administrative on a general principle common to the laws proceedings which may result in penalties of the Member States and on international being applied for infringements of the instruments, in particular the European competition rules. Human Rights Convention and the Inter­ national Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations on 19 December 1966.

OPINION OF MR DARMON —CASE 374/87

the stage of preliminary inquiries. 103. In the Netherlands, the right not to Moreover, reference is readily made to give evidence against oneself is upheld in common-law tradition when speaking of the the criminal code. It applies generally in right not to give evidence against oneself. criminal matters and in administrative That right is also generally applicable in proceedings in which a fine may be civil proceedings. It benefits both natural imposed. Both natural and legal persons and legal persons. However, it seems that a may invoke that right. In competition law, number of laws derogate from the general infringements are criminal offences. The law principle in so far as they require questions on economic competition imposes the obli­ to be answered even though the reply might gation to supply information to the Compe­ lead to the persons concerned being tition Commission, a body not empowered incriminated. In those cases where the legis­ to impose penalties. It seems that the right lature does not at the same time prescribe not to give evidence against oneself cannot that the answers may not be used in be invoked when the request for infor­ evidence against the persons who gave them mation is addressed to persons who have in subsequent criminal proceedings, it seems not yet been charged and precedes the that the replies may be admissible as commencement of the prosecution, but may evidence. In competition law where, it must be invoked if a 'potential defendant' is be pointed out, the competent authorities called on to give information which might are vested with investigative powers but not be used in subsequent criminal proceedings. the power to impose fines, the legislation is not entirely consistent: the Competition Act 1980 and the Fair Trading Act 1973 provide for investigative powers which do not override the right not to give evidence against oneself, whereas the Restrictive Trade Practices Act 1976 does not provide that that right may be effectively invoked.

105. In Belgium the right not to give the Minister for the National Economy. A evidence against oneself is recognized in 'Committee on Restrictive Trade Practices' criminal matters in favour of the accused or set up within his Ministry is entitled to defendant, but in criminal proceedings there collect all information, depositions and is no prohibition of questioning him or any evidence and to secure disclosure of all requirement that he be informed of his right documents and information which it of silence. Until such time as a person considers necessary for the discharge of its becomes, from a procedural point of view, duties. At the request of the Committee, the an accused or defendant, he is deemed to be Minister may designate officials and others a witness under oath, which does not appear in order to carry out the necessary inquiries. to allow him to refuse to reply. In tax The latter are vested with the powers matters, the administration may require provided for in the legislation on prices and production of any documents or infor­ may thus question the persons concerned mation in order to verify a tax situation, and anyone else who may be able to supply and in default a fine may be imposed. In information. Refusal to provide information economic matters, a number of laws grant and failure to supply it within the period the administration far-reaching powers of prescribed or the provision of information investigation, but the powers are not widely known by the person concerned to be used in practice. Thus, although they incorrect attracts a fine or imprisonment. provide for a penalty for the refusal to These rules thus exclude any right of silence supply the information requested, it is for economic agents who are the subject of possible that, under the case-law accu­ an investigation. mulated to date, there may be a right to decline to give evidence against oneself.

OPINION OF MR DARMON —CASE 374/87

108. In Greece the Code of Criminal Procedure upholds the right not to give evidence against oneself for witnesses and the accused. On the other hand, that right is 110. Finally, in France the Code of not available in administrative inquiries Criminal Procedure grants to every person conducted by the Directorate for the liable to be charged the right of silence in Protection of Competition of the Ministry the pre-trial judicial investigation but not at of Commerce. Undertakings, associations of the stage of preliminary inquiries.

particular fines for refusing to provide may obtain all information and supporting information or delaying or rendering more documents considered necessary, either by difficult the provision of the information requiring the person concerned to produce requested. Criminal penalties are provided them personally or by conducting for impeding the provision of the infor on-the-spot investigations. In inquiries and mation called for. proceedings before the conseil de la concurrence, all the parties are given a hearing but they are called on to answer the questions put by the rapporteur and to supply him with all the documents needed

In outside the area of the criminal law, it conclusion, I would point out that on seems that the right not to give evidence completion of the investigations the conseil against oneself is not available. The de la concurrence may order that the anti Constitutional Court has stated, with competitive practice be brought to an end respect to fiscal law, that the protection of and it may, if need be, impose a pecuniary rights of defence does not extend to admin penally.

111. After this review of national legis national laws. The conclusions which it is lation — a very brief outline, I would hasten possible to draw from an analysis of to add — it seems that the success of the Portuguese law or Belgian competition law endeavour to identify a common principle are largely conjectural and are more a will depend on the subject-matter chosen. If matter of legal academic opinion than of one seeks evidence of a common principle specific solutions existing as part of positive prevailing in classic criminal law, the law. enterprise presents no major difficulty. Indeed, in that area there is no doubt that a common principle can be identified.

inquiries. In some cases protection is unable to determine for certain whether, in available both for witnesses and for persons Ireland, a charge before a criminal court who have been formally charged, and in may rely on information which the adminis others only the latter are protected. But in tration, that is to say the Examiner for no case is that right denied to a person who Restrictive Practices, may have called for. In has been formally charged in judicial the Netherlands it seems that the right not proceedings stricto sensu. to reply to requests for information from the Competition Committee depends on whether the weight of the charges against an undertaking is such that it is a potential

113. We find, in fact, that three Member an 'accused'. States, Greece, Luxembourg and France, exclude the right not to give evidence against oneself in administrative competition proceedings. The position in Italy might be regarded as comparable in so far as that 116. Neither will it escape notice that the right is not available in tax investigations, United Kingdom legislation is not but it is impossible to foresee precisely what consistent; the Restrictive Trade Practices the situation might be if competition law as Act 1976 appears not to grant the right to such existed in that Member State. refuse to provide information whereas the other laws on competition do not depart from that principle. It is interesting to note

OPINION OF MR DARMON — CASE 374/87

117. It is therefore only in Spain and the 'to achieve the best and most appropriate Federal Republic of Germany that both in solution in the light not only of consider­ investigations into anti-competitive conduct ations of the practices of the various and in proceedings concerning such conduct Member States, but the interests of the the right not to give evidence against Community and its institutions, Member oneself is available (subject to an exception States and individuals which are subject to 52 in Germany in administrative proceedings its laws'. against legal persons). It should also be noted that in Germany it would be difficult to identify, as far as undertakings are concerned, the expression of any funda­ 119. It was against that background that the mental right. One may more readily question arose whether, for the sake of perceive an extension, resulting from the balancing the various aspects of the public will of the legislature, of safeguards which interest, under the laws of the Member may perhaps be classifiable as fundamental States the protection of confidential only as far as individuals are concerned. relations between lawyer and client should yield to

'the powers needed to investigate alleged 5 infringement of competition law'. 3

120. The Court will already have realized Musique Diffusion the Court rejected a that the application of that method of submission that the fact that the analysis to the question of the right not to Commission combined 'functions of judge 56 give evidence against oneself cannot lead to and prosecutor' was illegal. Therefore it consistent results. Whilst it is conceivable seems to me that it would be inappropriate that, from an analysis of the laws of the to adopt that approach on the basis of the Member States, the right not to give laws of the Member States. evidence against oneself might be identified in the context of proceedings to penalize an offence, it is not possible to say that no Member State excludes such a right in 122. Accordingly, I consider that, although proceedings for infringements of compe­ a comparative analysis of the laws of the tition rules, or that at most doubts exist in Member States indicates that the right not certain cases. Three Member States (Greece, to give evidence against oneself exists as a France and Luxembourg) exclude the right general principle, the same analysis also entirely; the position in two others (Belgium shows that it is not a principle of such and Portugal) is somewhat doubtful and in 'force' that it cannot be excluded in an area three others (Denmark, Ireland and the such as competition law, in so far as the Netherlands) there is a system whereby that legislation of several Member States makes right is excluded, during the course of the a derogation specifically on that point. I investigation, at least for so long as the associate myself in that respect with the suspicions against the person questioned do view of Sir Gordon Slynn who, in his not go beyond a limit which it appears Opinion in AM & S, indicated that difficult to define.

Council could never legislate to override or 126. It having been impossible to identify in modify it'. 8 the laws of the Member States a common principle of sufficient authority for the decision at issue to be regarded as in breach of it, is such a principle to be found in the United Nations International Covenant to 123. In the present case, the exception to which I referred earlier? Article 14(3) of the principle was specifically laid down in that Convenant states that 'In the determi­ Regulation No 17, since it was the nation of any criminal charge against him, Council's intention, in the circumstances to everyone shall be entitled to the following which I referred earlier, not to allow under­ minimum guarantees, in full equality: takings the right not to give evidence against themselves in the course of the investigation. I think it is important to make it clear that in reviewing, under the circum­ stances to which I referred earlier, the need for the information requested, the Court has an opportunity to ensure that the Commission does not manifestly abuse its powers by artificially prolonging the investi­ gation phase. (g) not to be compelled to testify against himself or to confess guilt'.

ORKEM v COMMISSION

concept of criminal charge within the presumption of innocence, whereas CdF meaning of Anicie 14(3) (g) must — as I Chimie refers more particularly to Article think — be strictly interpreted by the Court 6(3) concerning the rights of a person or whether the situation of the person charged with a criminal offence. charged is not relevant, if at all, until the statement of objections has been issued.

OPINION OF MR DARMON —CASE 374/87

admissibility stage is not a binding before an 'independent and impartial precedent. tribunal'. However, it seems to me to be clear from the judgments of the Court of 29 61 October 1980 in Fedetab and Musique 62 Diffusion that the Court is of the opinion 133. In a decision of 6 October 1988, the that Article 6(1) does not apply to European Commission of Human Rights, proceedings conducted by the Commission ruling on the admissibility of a complaint in the sphere of Community competition lodged by a Mr Funke against France, law. Moreover, in his Opinion in the last- stated that it considered that the application mentioned case, Sir Gordon Slynn stated raised complex problems, particularly as that although the fundamental rights regards the question whether the obligation recognized by the Court imposed on the applicant by the customs administration 'to make available to the prosecuting authority documents which might incriminate him' was 'compatible with 'have been long recognized as forming an the right to a fair trial and the presumption integral part of the general principles of of innocence'. It added that the complexity Community law, which no doubt mutatis of those problems was such that it was not mutandis must be observed in competition possible to declare that part of the cases as well as in others', 60 application to be manifestly unfounded. The decision which the Human Rights Commission ultimately gives on the substance of the case will without doubt be of great interest regarding the problem it did not follow that involved in the present case. But, having regard to the decisions so far adopted by the judicial authorities operating under the Convention, the opinion that any of the 'the Commission's functions in investigating paragraphs of Article 6 upholds the right such allegations in competition cases ... are not to give evidence against oneself is subject to the provisions of Article 6(1) of confined to the sphere of academic legal the European Convention. The procedure literature. before the Commission in such cases is not 63 judicial but administrative'.

135. It is therefore with respect only to offence' within the meaning of the Article 6(2) and (3) that it is necessary to Convention should be taken to extend to consider whether the safeguards provided undertakings which are the subject of for must apply mutatis mutandis in cases administrative proceedings intended to such as those brought before this Court. determine whether or not they have committed an infringement of competition rules. In fact, that judgment was concerned with infringements which, in the Federal

In that decision, the European any further comparison of national compe Court of Human Rights noted that 'there tition laws in all the Member States parties generally come within the ambit of the to the European Convention on Human criminal law offences that make their perpe Rights, but it seemed to me at least doubtful trator liable to penalties intended, inter alia, whether one could state a priori that to be deterrent and usually consisting of competition-law infringements in those fines and of measures depriving the person States are in general covered by 'classic'

Therefore, it seems to me that there is no certainty that the Strasbourg Court would, in competition matters, follow the same reasoning as in the 137. However, it does not seem to me to be Öztürk case. blindingly clear that the Öztürk judgment should be seen as being so far-reaching that the concept of 'charged with a criminal

'international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories can supply guidelines which 141. I therefore consider that the scope that should be followed within the framework of the Court should attribute to Article 6(2) 69 and (3) of the Convention in the present Community law'. case should be focused much more on taking account of the positions which it has already taken concerning the application of fundamental rights in Community compe­ tition law than on extrapolating from the The most authoritative commentators on the position taken by the European Court of decisions of this Court also emphasize that Human Rights in the case of Öztürk. the Court's position regarding the European Convention on Human Rights consists in most cases 'in using it merely as a reference' even though it 'goes as far as possible in that direction' and that, by so doing, it develops 'directly or indirectly its own 70 142. The positions taken by this Court case-law interpreting the Convention'. appear to be very clear. In Hoffmann-La Roche, cited earlier, it stated that

140. This Court may therefore adopt, with respect to provisions of the Convention, an interpretation which does not coincide 'observance of the right to be heard is in all exactly with that given by the Strasbourg proceedings in which sanctions, in particular authorities, in particular the European fines or penalty payments, may be imposed Court of Human Rights. It is not bound, in a fundamental principle of Community law which must be respected even if the 67 — Case 4/73 [1974] ECR 21, paragraph 5. proceedings in question are administrative 68 — Case 44/79 [1979] ECR 3727. 71 proceedings'. 69 — Case 4/73, paragraph 13, and Case 44/79, paragraph 15. 70 — J. Boulouis and R.-M. Chevallier: Grands arrêts de la CJCE 4th edition, 1987, Vol. 1, pp. 105-6. 71 — Case 85/76, supra, paragraph 9.

143. The positions taken by this Court appear to support the conclusion that, according to its view of the balance between the rights of defence and the powers of the Commission, the fact that an undertaking may not refuse to give evidence against 145. The Court will have noted that I have itself until after the Commission has served not considered the question whether the on it a statement of objections concerning provisions relied on by the applicants are infringement of the competition rules does applicable to legal persons. I have taken the not constitute a violation of the presumption view that that issue is not really a problem of innocence or of the rights of the person here. In its judgment in the Agosi case of 24 charged, within the meaning of Article 6(2) October 1986, 75 the European Court of and (3) of the European Convention on 74 — Judgment cited above, p. 21, paragraph 55. 72 — Case 136/79, supra, paragraph 21. 75 — Publications of the European Court of Human Rights, 73 — Ibid. Series A, Vol. 108.

OPINION OF MR DARMON — CASE 374/87

146. The question of the right not to give evidence against oneself prompts a last observation, inspired by the arguments put forward at the hearing. It seems that, at that 148. Similarly, I do not see in what way the time, the representatives of the applicants Commission's request that an undertaking clarified their view of the right not to give provide information, without the evidence against oneself, indicating that it is Commission's disclosing the evidence which not unconditional. The right, we were told, it already holds, constitutes a breach of any may be relied on when the Commission asks principle of the Convention, since the for information without disclosing what undertaking has not yet been formally evidence it already holds. In other words, to 'charged'. compel undertakings to answer, the Commission must question them only on the basis of the evidence which it discloses to them. That approach to the problem, which 149. In conclusion, I do not consider that departs from that adopted in their written the contested decisions illegally excluded submissions, is very puzzling. The right not any right to decline to give evidence. to give evidence against oneself referred to in the applications is, when applied, uncon­ 76 — Article 6(3)(a) of the Convention.

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151. CdF Chimie is once again criticizing the fact that the Commission told it that it 154. At this stage it seems to me that the already had evidence of its participation in answers that I have suggested in response to an infringement, which undermines the certain arguments or submissions deprive presumption that it is innocent. It considers the last argument of any substance. I refer that, once the belief has been formed that to the alleged reversal of the onus of proof an undertaking has participated in an which is the third limb of Solvay's second infringement, the undertaking must enjoy submission or of its first alternative the rights available to defendants, which submission, and the second argument in means that it may refuse to be a party to an CdF Chimie's third submission, or second accusation against itself. I shall merely say alternative submission. Since the that the extent of the information requested Commission has in fact asked the two in the contested decision shows that, if the companies for information which is Commission harboured suspicions based on necessary in order to establish that they evidence, it had not yet formed a definite have committed infringements, and since it conviction as to CdF Chimie's guilt or the was able to do so without illegally precise scope of the acts for which it might encroaching on a claimed right not to give criticize CdF Chimie. Furthermore, that is evidence against oneself, it seems to me that what leads me to conclude that the infor­ the assertion that, by virtue of its decisions, mation was necessary. In those circum­ the Commission has reversed the onus of stances, the presumption of CdF Chimie's proof is necessarily devoid of any foun­ innocence does not therefore seem to have dation. To be more precise on this point, been undermined. with regard to CdF Chimie, which alleges

156. I propose that :

(i) the applications be dismissed;

(ii) the applicants be ordered to pay the costs.