C-60/92

Mr President, 3. Any civil proceedings would concern the Members of the Court, question of the lawfulness of a charge of HFL 0.45 introduced by Postbank in July 1991 for the processing of each giro transfer slip. Otto, for which Postbank processes 1. In its judgment in the Orkem case the approximately one million giro transfer slips Court held that it followed from the princi- each year, considers that to be contrary to ple of respect for the rights of the defence both the Netherlands and Community com- that, in an investigation under Regulation 17, petition rules. Associations to which Otto the Commission could not compel an under- belongs have submitted complaints to the taking to answer questions where that might Commission against the introduction of the involve an admission on its part of the exist- charge, claiming in particular that it was ence of an infringement of Community com- introduced following an agreement between petition rules. 1 banks in the Netherlands. According to the information available, the Commission has not yet terminated its investigation of those complaints. At the same time a complaint In the present case, the Arrondissementsre- was submitted to the Netherlands Compe- chtbank, Amsterdam, has asked the Court to tition Authority which, we have been rule on the extent to which that restriction informed, rejected it. on an undertaking's obligation to reply to questions also applies to an examination of witnesses in a civil case before a national court. 4. In its application for a preliminary exam- ination of witnesses Otto set out the purpose of that examination in a series of points. Postbank objected to such an examination 2. That question is raised in the context of a relying on both Netherlands law and Com- case in which the mail order company, Otto munity law. BV (hereafter 'Otto'), has applied for a pre- liminary examination, as witnesses, of mana- gerial staff of the Netherlands bank Postbank 5. The Arrondissementsrechtbank has NV (hereafter 'Postbank') in order to pro- explained that the witnesses which the appli- vide Otto with the basis for assessing cation seeks to have examined must be whether it can institute civil proceedings regarded as parties called as a witness against Postbank. {partijgetuige), as that concept is laid down in the Netherlands law of civil procedure. Such witnesses may be examined on oath, and may hence be punished for perjury. Wit- * Original language: Danish. 1 — Case 374/87 Orkem v Commission [1989] ECR 3283. The nesses may be compelled to attend court by Court gave a corresponding judgment on the same day in the police and are obliged to give evidence. Case 27/88 Solvay v Commission [1989] ECR 3355 (summa- ry publication). However, that obligation cannot be enforced

by penal sanctions, although the court may 7. It is against that background that the fol- draw conclusions from the silence of the wit- lowing request for a preliminary ruling was ness. The court may require an explanation made: for the refusal of a witness to give evidence. A general rule exempts the witness from the obligation to give evidence where it would 'Is a national court, when assessing an appli- expose him or those close to him to criminal cation for an order for provisional examina- prosecution for breach of the law. tion of witnesses prior to the initiation of civil proceedings, bound by Article 5 of the EEC Treaty to apply the principle that an undertaking is not obliged to answer ques- tions if the answer thereto entails admission that the rules of competition have been infringed?' 6. The Arrondissementsrechtbank ruled on the purpose of the examination of witnesses as a matter of Netherlands law and rejected the application for an examination with The Orkem principle respect to three of the six points referred to in Otto's application. With respect to the other three points, Postbank claimed that the 8. It is appropriate to make some prelimi- examination of witnesses on those points nary remarks as to the basis and scope of would lead to their having to answer ques- that principle. tions which would oblige them to admit the existence of an infringement of Community competition rules, which would infringe the principle of Community law laid down by In the course of an inquiry concerning the Court of Justice in Orkem (hereafter 'the infringements of Article 85 of the Treaty in Orkcm principle'). the thermoplastics sector, the Commission sent to the French company Orkcm a decision adopted under Article 11(5) of Regulation No 17 requiring the company to provide it with information on specific points. The French company refused to give that information, contending in particular that the Commission's request breached the The Arrondissementsrechtbank shares Post- general principle of law that a person is enti- bank's view that Otto's request for an exam- tled to refuse to give evidence against him- ination of witnesses cannot be granted if the self. Orkcm principle applies in this case, but wonders whether that principle of Commu- nity law is so fundamental that it has a direct effect between the parties in civil proceed- The Court began by considering whether ings. It states that Otto's claims in any future Regulation No 17 gives undertakings under civil action would be based in particular on investigation by the Commission a right to Articles 85 and 86 of the EEC Treaty and it evade the investigation on the ground that therefore considers that a question arises as the results thereof might provide evidence of to the direct effect of Community law. an infringement by it of the competition

rules. It found that there was no such right provide the information referred to above. (paragraph 27). The Court held that certain of the Commis- sion's questions did actually undermine Orkem's right to refuse to reply, since the fact of replying would have compelled Orkem to admit an infringement of Article The Court then examined whether such a 85(1) of the Treaty (paragraph 41). The right could be inferred from the general Court found that the Commission could not principles of Community law, of which fun- be criticized for having sought information damental rights form an integral part. The concerning material facts, but it considered, Court found that this was not the case (para- on the other hand, that the Commission was graphs 28 to 31). not entitled to demand of the company that, in its reply to the questions, it should itself appraise, by reference to the relevant provi- sions of Community law, facts on which it was obliged to give information, if such an Finally, the Court considered 'whether cer- appraisal would involve admitting an tain limitations on the Commission's powers infringement (see in that regard, for example, of investigation are implied by the need to paragraph 38 where the Court declared that safeguard the rights of the defence which the the questions were not open to criticism in Court has held to be a fundamental principle so far as the Commission merely sought 'fac- of the Community legal order' (paragraph tual clarification', whereas questions con- 32) (emphasis added). The Court found, first, cerning 'the purpose of the action taken and that it was necessary to preserve 'the useful the objective pursued by those measures' effect of Article 11(2) and (5) of Regulation were open to criticism (paragraph 38). No 17', which is why 'the Commission is

It does not seem to me to be unreasonable to take the 9. That is the basis on which the Court ruled view that in the majority of legal systems it on the question of whether it was justifiable will be possible to observe that limited for the Commission to require Orkem to exception by applying the usual rules

2 — In the order for reference it is stated that the national court's question is to enable it to be established whether an exami- nation of witnesses can be carried out. 'in order to elicit proof in support of the following conten- 12. The question submitted for a prelimi- tions: nary ruling arose in the context of a civil (c) The charge of HFL 0.45 is not based on any (financial) procedure before a national court, in which calculation by Postbank of the costs of processing giro trans- fer slips; it will be necessary to rule whether the (d) The charge was imposed by Postbank under an inter-bank agreement to charge HFL 0.30 for the mutual processing of directly applicable prohibitions in Articles giro transfer slips; 85 and 86 of the Treaty are to be applied. Of (c) Postbank cither consulted with other banks with regard to the introduction of a charge for processing transfer giro slips, course, the starting point for the national or else there is a tacit agreement that the charge is to be fixed at HFL 0.30 plus a small profit margin'. court is that the case is to be heard in In the order for reference the Arrondissementsrechtbank accordance with the general procedural rules stated that if its question is answered in the affirmative, it considered that it would have to reject the application for applicable to that case under national law, examination of witnesses with regard to those three matters. Postbank, which disputes that it has infringed the compe- including the national rules on who is tition rules of the Treaty, shares that opinion. That an aflir obliged to give evidence and how an exami- mativc reply should have such consequences docs not appear to me to Dc beyond doubt. nation of witnesses is to take place.

16. It should first be considered whether a negative answer ought to be given quite sim- ply on the ground that the Orkem principle 13. In other words, the question is whether does not apply outside the field in which the a principle of Community law, whose exist- Court has expressly held it to apply. ence has been laid down in the context of an administrative procedure under the Commu- nity system itself and which limits the right of a Community institution to require cer- tain information from undertakings, must be applied in another type of procedure before It may properly be stated that in the Orkem a national court, on the ground that those judgment the Court stressed the special cir- two cases are procedures concerning the cumstances surrounding the conduct of an application of directly applicable provisions investigation by the Commission under of the Treaty. Regulation No 17 and that there are several differences between the facts of the Orkem case and those of a procedure in which the competition rules of the Treaty are invoked by an undertaking against another undertak- ing. 14. An affirmative reply would signify not only that, by virtue of its purpose and its tenor, the Orkem principle applies outside the field within which it has been expressly held to apply, but also that a principle of Community law of that kind has direct effect 17. It is true that, as stated by both the in the national legal systems, so that national Commission and the Italian Government, courts must apply it. the Court probably attached importance to the fact that Regulation No 17 grants the Commission very wide powers of investiga- tion and there may therefore be grounds for granting undertakings special protection in 15. Postbank and the French Government their relations with the Commission (in propose that the question be answered in the paragraph 35 the Court linked the burden of affirmative, whereas the Commission, the proof on the Commission with the limitation Italian Government and the United King- of the undertaking's obligation to reply to dom suggest a negative answer. The Com- the Commission's questions). That might mission and the Italian Government contend serve as an argument, as the Commission that the Orkem principle cannot be held, by claims, for saying that there is no need to

18. It is also correct — as particularly 20. In my opinion, it would be wrong to stressed by the Commission — that the find, merely on the basis of those differences, questions under Regulation No 17 are sub- that the Orkem principle ought not to be mitted in writing to the undertakings as such, applied. It would be unfortunate if the Court which means that the obligation to reply falls were indirectly to give the impression here on those persons who, under Article 11(4), that it considers that that principle ought not are to reply in the name of the undertaking, to apply in regard to examination of wit- whereas in a procedure such as that in the nesses in civil proceedings. It is not wholly present case the questions arc posed orally to inconceivable that in the course of proceed- employees of the undertaking, who, despite ings before the Community courts them- their elevated position, are not necessarily selves, for example, a case brought on the empowered to represent the undertaking. basis of an arbitration agreement under Arti- cle 181 of the Treaty, the question of the application of the Orkem principle might be raised and, in my opinion, it cannot be excluded a priori that the Community courts 19. Those differences are however not neces- might consider it to be contrary to the prin- sarily relevant in the sense that they preclude ciple of the rights of the defence to require the Orkem principle from being applicable defendants to reply to questions of a kind in a procedure such as that in the present corresponding to those which the Commis- case. I do not see why the consequence of sion is not entitled to ask in a procedure those differences should be that the Orkem under Regulation No 17. principle can apply only in connection with Commission investigations under Regulation No 17. There is also an Obligation to give evidence' outside the field covered by Regu- lation No 17 and the scope of that obligation 21. However, that does not mean that it fol- is not necessarily less extensive or less lows from Community law that the Orkem severely sanctioned. Nor does it seem obvi- principle must be applied by the national ous to me that the undertakings must enjoy courts. better protection when they reply to written questions than employees of undertakings when they reply to oral questions.

In particular, no general duty may be 23. That premiss, laid down in cases where inferred from the Court's case-law for an undertaking seeks within the framework national courts to apply procedural princi- of the national legal system to enforce the ples of Community law in connection with rights which Community law confers on it, the application of directly applicable Com- must apply at least to the same extent when a munity rules. general unwritten principle of Community law is invoked by an undertaking in order to obtain the protection of its right to 'fair' treatment in a procedure where an obligation arising from a Community rule is relied on against the undertaking. The usual premiss is that directly applicable, substantive Community rules are adminis- tered and enforced by national authorities and courts in accordance with the adminis- trative and procedural rules laid down in national law. In my opinion, it follows from the case-law of the Court that there is an 24. The Court's case-law shows that there obligation on national authorities and courts may be considerations of Community law to apply the special administrative-law and other than those referred to above which procedural principles which apply in Com- indicate that the premiss should not be munity law only where there are special applied. The most important of those is grounds for doing so. undoubtedly that, in order to ensure the effective application of Community law, it may be necessary to require compliance with general unwritten principles of Community law, when national administrations adminis- ter or otherwise apply Community law. One The Court has laid down on numerous occa- example, amongst many, is a requirement for sions that 'in the absence of Community a statement of reasons and the availability of rules on the subject, it is for the domestic review by the courts, as the Court laid down legal system of each Member State to deter- in the Heylens case. 4 mine the procedural conditions governing actions at law intended to ensure the protec- tion of the rights which individuals derive from the direct effect of Community law'. 3 That principle is supplemented by the gen- eral requirement laid down by Community 25. The decisive factor in answering the law as to the content of national procedural national court's question is therefore rules, that is to say that normally national whether considerations of Community law rules 'are not less favourable than those militate in favour of the Orkem principle relating to similar actions of a domestic being applied by national courts when they nature nor framed so as to render virtually are dealing with cases concerning the compe- impossible the exercise of rights conferred tition rules of the Treaty. by Community law'.

29. I would also point out that there seems a priori to be little sense in assuming that there 27. In my opinion, those two considerations is a need for special protection of parties cannot lead to an obligation for national called as witnesses in the national legal sys- courts to apply the Orkcm principle as part tems on the basis of general unwritten prin- of their procedural rules governing examina- ciples of Community law. In my opinion, in tion of witnesses. There arc several reasons that context particular importance should be for that. given to the fact that all the Member States have undertaken to observe the provisions of the European Convention on Human Rights, Article 6 of which enshrines a general and fundamental right to the fair administra- 28. It may be appropriate to state, at the tion of justice, which, of course, includes the outset, that the relevant national procedural obligation to observe the rights of the rules must be regarded as the result of a bal- defence. ance between the need to ensure thorough investigation of cases and the need to protect witnesses.

The Orkem judgment was the expression of 30. Those factors seem to me to be sufficient the Court's balancing of those two consider- to cast grave doubts on the view that the ations in the context of the system laid down concern to ensure uniform application of by Regulation No 17 with respect to the Articles 85 and 86 may lead to a requirement Commission's powers to demand infor- that national courts observe the Orkem prin- mation from undertakings. ciple in civil cases.

32. First, it should be borne in mind that acceptance of such an approach would have far-reaching consequences. It would make it necessary to investigate whether other rules 34. Thirdly, the obligation to observe the applicable to the Commission's measures of Orkem principle in all the Member States investigation should also be applied by the would still be far removed from the uniform national courts when dealing with cases con- procedural treatment in the Member States cerning infringement of Articles 85 and 86. of cases concerning the Community's com- petition rules. Differences would continue to exist with respect to all those points for which there are no general Community prin- ciples capable of being transposed. In addi- 33. Secondly, it follows from the case-law of tion, even in the field where the Orkem prin- the Court of Justice that Community law is ciple applies differences may be found, not based on the hypothesis that Article because it is difficult to conceive of anyone 85 and Article 86 must be applied and drawing from the application of that princi- enforced in the Member States according to ple in the national legal systems the conclu- the same rules of administrative procedure sion that the national courts are obliged to and civil procedure as apply to the handling apply that principle in the cases where exist- of cases by the Commission. ing national rules offer witnesses better pro- tection than that given by the Orkem princi- ple.

witness claimed that a reply to the question the fact that the Treaty has left the enforce- might entail admission of infringement of the ment of its competition rules in part to the Community competition rules. Commission, which acts on the basis of pro- cedural rules laid down by Community law, and in part to the national courts, which decide disputes on the basis of national pro- cedural rules. 36. Nor can an affirmative response to the national court's question be justified by the fact that the Orkem principle would prevent the Commission from being able, as a result of examination of witnesses in civil cases before national courts, 'to obtain infor- mation which is not directly available to it' 40. It is also possible — and at first sight it — as Postbank argues — namely admission seems to be me to be more likely — that by the undertaking that it has infringed the such a consequence may, and ought to be, Community competition rules. avoided by means other than requiring national courts to observe the Orkem princi- ple. The United Kingdom has rightly referred to the potential significance in this regard of the Court's judgment in the 'Span- 37. It is true that the national court's ques- ish Banks' case. In that case the Court held tion is based on the premiss that a witness that 'in the exercise of their power to apply examined by a national court may be obliged national and Community rules on compe- to reply to a question leading to an admis- tition, the Member States may not use as evi- sion of infringement of the Community's dence unpublished information contained in competition rules, and that the Commission replies to requests for information addressed may in that way learn something of which it to undertakings pursuant to Article 11 of would not have been aware on the basis of Regulation No 17 or information contained its own investigatory powers under Regu- in the applications and notifications provided lation No 17. for in Articles 2, 4 and 5 of Regulation No 17'. 7 At the hearing in this case the Com- mission's representative expressed a positive view of the possibility that it might apply a corresponding principle in a situation where 38. But quite apart from my surmise, set out 'information' had been obtained in proceed- above, that that premiss is probably more ings before the national courts contrary to theoretical than practical, I do not believe the Orkem principle. I can see good reasons that any decisive weight can be given to that for holding that the Commission will in fact factor. be prevented in a situation such as the present case from using 'information' obtained in national proceedings on the basis of questions which it was not entitled to ask in the course of its own investigations. 39. It is not impossible, in my view, that such a consequence of answering the ques- tion in the negative is an inevitable result of 7 — Cited in footnote 5.

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