EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
Self-Incrimination With regard to other privileges, such as protec - tion against self-incrimination, EU competition law only provides an undertaking with a very limited right to refuse to answer questions from the European Commission. Essentially, a nar - row privilege exists, which allows a company to refuse to answer a question which might lead to it directly admitting to having infringed the EU competition rules. However, companies must provide the Commission with the documents or information that the Commission requests even if that information can then be used to establish the undertaking’s participation in an infringe - ment of EU competition rules. 2.7 Non-Cooperation In a small number of cases, undertakings have successfully resisted overly broad requests for information from the European Commission. According to case law, such requests for infor - mation must not be “excessively succinct, vague or generic” . The Commission is empowered to fine a com - pany subject to a request for information up to 1% of its worldwide turnover where it supplies incorrect or misleading information. Daily penal - ty payments of up to 5% of a company’s average daily turnover in the preceding business year may be imposed on a company that has failed to supply complete and correct information. 2.8 Protection of Confidential/Proprietary Information Confidential or proprietary information is not subject to protection from disclosure to the European Commission in the course of an inves - tigation. However, where a target of enforcement action can demonstrate to the Commission that such
information constitutes “business secrets” or “other confidential information” within the mean- ing of the Commission’s guidance in its Notice on Access to the File (OJ 2005 C 325/7 (as amended)), that information may be protected from further disclosure to third parties. Accord - ing to the Notice on Access to the File, informa - tion about a firm’s business activity, the disclo - sure of which could result in serious harm to the firm, may constitute “business secret” this may include, for example: • technical and/or financial information relating
to an undertaking’s know-how; • methods of assessing costs; • production secrets and processes; • supply sources; • quantities produced and sold; • market share; • customer and distributor lists; • marketing plans; • cost and price structure; and
• sales strategy. “Other confidential informa - tion” refers to types of information which, if disclosed, would significantly harm a person or firm, which may include information pro - vided by third parties. Similarly, personal data is not subject to protec - tion from disclosure to the Commission in the course of an investigation. However, the Com - mission must process any personal data col - lected in compliance with applicable EU data protection law. 2.9 Arguments Against Enforcement Actions Formally, the first opportunity the target of a car - tel investigation has to raise legal and factual arguments to persuade the European Commis - sion to forgo taking action, or modify its pro - spective action, occurs when the Commission
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