The Freedom from Self-Incrimination—A Strasbourg-Proof Approach? Cases C-466/19 P Qualcomm and C-481/19 P DB v Consob

Abstract

Judgment of 28 January 2021, Qualcomm v Commission, C-466/19P, EU:C:2021:76, and Judgment of 2 February 2021, DB v Commissione Nazionale per le Società e la Borsa (Consob), C-481/19, E EU:C:2021:84 The Court of Justice of the European Union conformed and clarified in Qualcomm, the well-established scope and application of the freedom from self-incrimination; in DB v Consob, it ruled that this principle is applied in conformity with case law of the European Court of Human Rights and made a distinction between undertakings and natural persons. On 28 January 2021 and 2 February 2021, the Court of Justice (CoJ) of the European Union (EU) ruled in two cases on the freedom from self-incrimination. The first case, Qualcomm, was an appeal case brought before the CoJ by the undertaking at stake, whereas the second case, DB v Consob, concerns a preliminary reference procedure. The Qualcomm case also touches upon other aspects, such as the right of the Commission to request additional information after the statement of objections has been issued (see in particular paras 66–70). The focus of this contribution will be on the implications of the two cases on the freedom from self-incrimination in EU competition law proceedings. In 2010, the Commission started an investigation into an alleged predatory pricing practice of Qualcomm. The Commission issued an infringement decision in this case in 2019 (Qualcomm (Case AT.39711) Commission Decision of 18 July 2019). The case at hand relates to a decision taken on 31 March 2017 ordering Qualcomm to provide certain information, after Qualcomm refused to comply with a request for information on the basis of Article 18(2) Regulation 1/2003. Qualcomm challenged the decision of the Commission before the Union Courts. In DB v Consob, the CoJ had to rule on the scope of the freedom from self-incrimination in proceedings relating to insider dealing and market manipulation. The Italian Companies and Stock Exchange Commission, Consob, started an investigation against a natural person for insider trading and fined the person concerned €50.000 for delaying to come to a hearing and for failure to provide certain information when he was present at the hearing. Since the investigation is based on national law implementing a Directive, the national court decided to refer questions to the CoJ on the scope of the freedom from self-incrimination. Both the General Court and the CoJ dismissed the arguments of Qualcomm relating to the freedom from self-incrimination by referring to the ruling in the (perhaps infamous) Orkem case. In Orkem, the CoJ ruled that the Commission may ‘compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct’ (Case 374/87 Orkem v Commission, EU:C:1989:387, para 34). By contrast, the Commission cannot order an undertaking to provide answers that may involve an admission of guilt (Orkem, para 35). The information that Qualcomm had to provide was merely of a factual nature (para 145; and General Court in: Case T-371/17 Qualcomm v Commission, EU:T:2019:232, paras 187–189). Qualcomm also had to produce documents containing some of the information requested by the Commission. According to the undertaking at stake, this would infringe the freedom from self-incrimination, since the Commission can only compel an undertaking to provide pre-existing documents and thus, a contrario, cannot compel an undertaking to create new documents. Both Union Courts rejected this argument (CoJ, paras 146–147 and GC, paras 192–193). It may be necessary for an undertaking to put factual information into writing and to send that document to the Commission in order to comply with the obligation to cooperate. The freedom from self-incrimination will only be infringed in those circumstances when an undertaking has to produce documents containing an admission of guilt. Qualcomm confirms and clarifies established case law of the Union Courts and is in that regard nothing new under the sun. However, the established application of the freedom from self-incrimination in competition law does become interesting in light of the possible consequences following from the DB v Consob ruling. In DB v Consob, the CoJ had to rule for the first time on the scope of the freedom from self-incrimination for natural persons. The CoJ referred to ample case law of the European Court of Human Rights (ECtHR) in order to explain the scope and application of the freedom from self-incrimination. This is a logical approach due to the requirement in Article 52(3) of the Charter to provide at least the same level of protection as the ECHR rights when those rights correspond with Charter rights. Even though the freedom from self-incrimination is not explicitly referred to in Article 6 ECHR, the ECtHR has regarded this freedom to be part of the right to a fair trial (ECtHR, Funke v France, CE:ECHR:1993:0225JUD001082884, para 44). This also means that the freedom from self-incrimination is part of the right of a fair trial under the Charter (para 37). The CoJ ruled that, with reference to case law of the ECtHR, the ‘right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (para 40). This is a notable distinction with the approach taken in competition law proceedings initiated by the Commission. According to the CoJ, this statement does not necessarily conflict with that approach, since (1) the Commission cannot oblige an undertaking to provide an admission of guilt (para 47) and (2) the Orkem ruling is applicable to (associations of) undertakings and not natural persons (para 48). Both reasons are discussed below. It is not uncommon in EU law to make a distinction between natural and legal persons with regard to the scope and application of certain fundamental rights. In the 2003 Volkswagen case, AG Colomer made a distinction between safeguards in criminal law and in competition law by reference to the nature of the accused in both procedures. Applying the same safeguards for individuals in criminal law proceedings to ‘powerful corporations with significant resources’ in competition law proceedings would, amongst others, be a ‘mockery’ to individuals (Opinion of AG Colomer in Case C-338/00 P Volkswagen v Commission, EU:C:2002:591, para 66). Directive 2016/343 also makes a distinction between natural and legal persons when it comes to the scope and application of the freedom from self-incrimination (Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1). The Union legislator decided to limit this directive to natural persons, since there are ‘different needs and levels of protection of certain aspects of the presumption of innocence as regards natural and legal persons’ (Directive 2016/343, Preamble, Recital 13; the freedom from self-incrimination is regarded to be part of the presumption of innocence, see Preamble, Recital 25). Reference is also made to case law of the CoJ that ‘recognised that the rights flowing from the presumption of innocence do not accrue to legal persons in the same way as they do to natural persons’ (Directive 2016/343, Preamble, Recital 13). In legal literature, however, different views exist as to whether the scope and application of freedom from self-incrimination can differ depending on the nature of the accused (see, for a short overview, Marc Veenbrink, Criminal Law Principles and the Enforcement of EU and National Competition Law: A Silent Takeover? (Wolters Kluwer 2020), 22–23). In DB v Consob, the AG made a distinction between the natural person in the case at hand and legal persons in competition law proceedings (DB v Consob, AG Pikmäe, para 96), whereas the CoJ correctly points to the difference between natural persons on one hand and (associations of) undertakings on the other (DB v Consob, para 48). It is clear that an undertaking can be a natural person as well. The ruling in DB v Consob, therefore, leads to the question whether a natural person, acting as an undertaking, should be treated differently from a natural person acting in a different capacity. Should the Commission then apply ECtHR case law or Orkem when it orders a natural person, being the undertaking, to provide information in a competition law procedure? It is, furthermore, not clear as of yet whether the ECtHR would actually make a distinction between the scope and application of the freedom from self-incrimination in light of the nature of the accused. Although, the ECtHR did rule in Sa-Capital Oy that it is ‘mindful’ that in competition law proceedings, fines are generally imposed upon ‘corporate entities’ and not on natural persons and took this into account as a factor to determine whether the rights of defence were compatible with Article 6 ECHR (see ECtHR, Sa-Capital Oy v Finland, CE:ECHR:2019:0214JUD000555610, para 78). The practical solution of the CoJ in DB v Consob to distinguish between natural persons and undertakings is perhaps a bit short-sighted. Nevertheless, the CoJ also mentioned that Orkem, on its substance, does not necessarily conflict with ECtHR case law, since undertakings cannot be compelled to provide answers that might involve an admission of guilt (DB v Consob, para 47). This seems to be in contrast with the statement of the CoJ that the ‘right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (DB v Consob, para 40). In order to determine whether the freedom from self-incrimination is infringed, and thus, whether there is improper compulsion, the ECtHR will examine four criteria, namely ‘the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put’ and the public interest (ECtHR, O’Halloran and Francis v United Kingdom, CE:ECHR:2007:0629JUD001580902, para 55; for a discussion of these factors, see Veenbrink, cited above, p. 24–31). The nature of the evidence requested can be a factor that should be taken into account to determine the degree of compulsion that may be used against a person. There are some cases in which the ECtHR allowed authorities to obtain factual information from a person (see e.g. ECtHR, Weh v Austria, CE:ECHR:2004:0408JUD003854497, paras 52–56; and O’Halloran and Francis v United Kingdom, para 62). These are cases concerning traffic violations in which the owner of the car was obliged to inform the authorities who drove the car. The owner of the car could, obviously, also be the driver of that particular car. Answering the question could therefore lead to the driver’s conviction. The ECtHR used, amongst others, the nature of the evidence obtained and the general interest at stake as relevant factors to conclude that the obligation to state this simple fact did not infringe the freedom from self-incrimination. On the basis of these cases, it could be argued that a request for factual information in competition law proceedings does not necessarily infringe the freedom from self-incrimination. On the other hand, the obligation on undertakings to provide factual information goes further than merely stating a simple fact. Therefore, it cannot be ruled out that the ECtHR will find this obligation to be an infringement of the right to silence and thus an infringement of a core aspect of the freedom from self-incrimination. Still, the Strasbourg Court has shown that it takes into account the particularities of competition law proceedings when it determines whether there is an infringement of Article 6 ECHR (Sa-Capital Oy v Finland, cited above, paras 78 and 85). The ECtHR is probably more lenient when it comes to an obligation to provide documents that are already in existence, as long as the Commission does not engage in fishing expeditions and as long as the request is sufficiently specific for the undertaking to determine which documents it needs to hand over (see, respectively, ECtHR, J.B. v Switzerland, CE:ECHR:2001:0503JUD003182796, para 69 and Funke v France, cited above, para 44). It is clear from the Qualcomm case that the Orkem approach is still alive and kicking. This begs the question whether that approach is indeed, as the CoJ held in DB v Consbob, Strasbourg-proof. The answer to that question remains in a similar state as Schrödinger’s cat. Hopefully, the ECtHR will be presented a possibility in the near future to finally open this box.