CJEC, November 10, 1993, No C-60/92

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

1. By order of 11 February 1992, received at the Court on 28 February 1992, the Arrondissementsrechtbank (District Court), Amsterdam, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 5 of that Treaty and the general principles of Community law governing procedures concerning the application of Articles 85 and 86 of that Treaty.

2. That question was raised in proceedings between Otto BV (hereafter "Otto") and Postbank NV (hereafter "Postbank") concerning certain practices claimed to be contrary to Articles 85 and 86 of the Treaty.

3. Otto is a mail-order company. Approximately half of payments made to it by its customers are effected from bank accounts held by those customers at Postbank to accounts held by Otto at that bank. Those transactions are carried out by means of pre-printed giro transfer slips ("acceptgiro"). Postbank deals with some one million of those giroslips each year.

4. Postbank informed Otto of its intention to charge Otto HFL 0.45 for each giro transfer slip processed after 1 July 1991, whereupon Otto applied to the President of the Arrondissementsrechtbank, Amsterdam, for an order prohibiting Postbank from making those charges. The interim order granted on 1 August 1991 in favour of Otto was, however, set aside by a judgment of the Gerechtshof (Regional Court of Appeal), Amsterdam, of 28 November 1991.

5. Otto then applied to the Arrondissementsrechtbank, Amsterdam, for the provisional examination of witnesses in order to have certain facts established prior to a possible action against Postbank for conduct incompatible with Articles 85 and 86 of the EEC Treaty. To that end, Otto cited members of the managerial staff of Postbank as witnesses.

6. The application for a provisional examination is based on Articles 190 and 214 (1) of the Wetboek van Burgerlijke Rechstvordering (Netherlands Code of Civil Procedure), in the version applicable with effect from 1 April 1988. According to the order making the reference, the Netherlands legislature has departed from the traditional rule that a party could not be examined as a witness in his own case. Since the 1988 reform, a party called as a witness is in principle obliged to give evidence, but is entitled to decline to do so in particular where, by giving evidence, he would expose himself or his close relatives to criminal prosecution for an offence. The position of a party called as a witness differs from that of normal witnesses only in so far as he cannot be imprisoned in order to compel him to give evidence. On the other hand, the court can draw adverse conclusions from his silence. The court can also request him to explain the reasons for his silence.

7. The examination requested by Otto seeks inter alia to establish the following facts: - The charge of HFL 0.45 is not based on any (financial) calculation by Postbank of the costs of its processing of pre-printed giro transfer slips; - The charge was introduced by Postbank under an interbank agreement to charge HFL 0.30 for the reciprocal processing of pre-printed giro transfer slips; - Postbank consulted with other banks with regard to the charge to be introduced for the processing of pre-printed transfer giro slips, or else there is a tacit agreement that the charge is to be fixed at HFL 0.30 plus a small profit margin.

8. Postbank contended in its defence that, in so far as the Netherlands procedural rules compelled it to produce the information requested by Otto, they were incompatible with a general principle of Community law, whereupon the national court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: "Is a national court, when assessing an application for an order for provisional examination 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 questions if the answer thereto entails admission that the rules of competition have been infringed?"

9. Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

10. First of all, it is appropriate to set out the case-law of the Court of Justice concerning the rule whose scope is the subject of the national court's question.

11. In Case 374-87 Orkem v Commission [1989] ECR 3283 the Court held that neither a comparative analysis of national laws, nor Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, nor Article 14 of the International Covenant on Civil and Political Rights of 19 December 1966 (United Nations Treaty Series, Volume 999, p. 171) enabled the conclusion to be reached that there was a general principle of Community law giving a legal person the right not to give evidence against itself in the case of infringements in the economic sphere, in particular in matters of competition law.

12. Nevertheless the Court pointed out in that judgment that respect for the rights of the defence, a fundamental principle of the Community legal order, precluded the Commission from compelling an undertaking, by means of a decision requesting information under Article 11 (5) of Regulation No 17 of the Council of 6 February 1962, first regulation implementing Articles 85 and 86 of the EEC Treaty (OJ, English Special Edition 1959-62, p. 87), to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.

13. The national court' s question is therefore concerned with whether the same limitation on an undertakings' s obligation to reply to questions must apply, by virtue of Community law, as part of the rights of the defence, in national civil proceedings relating to the application of Articles 85 and 86 of the Treaty.

14. The application of Articles 85 and 86 of the Treaty by the national authorities is, in principle, governed by national procedural rules. Subject to the observance of Community law, and in particular its fundamental principles, it is therefore a matter for national law to define the appropriate procedural rules in order to guarantee the rights of the defence of the persons concerned. Such guarantees may differ from those which apply in Community proceedings.

15. The guarantees necessary to ensure respect for the rights of the defence of an individual in the course of an administrative procedure such as that at issue in the Orkem case are different from those which are necessary to safeguard the rights of the defence of a party involved in civil proceedings.

16. Where, as in the main proceedings, a procedure is involved which concerns exclusively private relations between individuals and cannot lead directly or indirectly to the imposition of a penalty by a public authority, Community law does not require a party to be granted the right not to give answers which might entail admission of the existence of an infringement of the competition rules. That guarantee is essentially intended to protect an individual against measures of investigation ordered by public authorities to obtain his admission of the existence of conduct laying him open to administrative or criminal penalties

17. It follows that the limitation on the Commission' s power of investigation under Regulation No 17 with regard to an undertaking' s obligation to reply to questions, which the Court deduced from the principle of respect for the rights of the defence in the Orkem case, cannot be transposed to national civil proceedings involving the application of Articles 85 and 86 of the Treaty which exclusively concern private relations between individuals, since such proceedings cannot lead, directly or indirectly, to the imposition of a penalty by a public authority.

18. Postbank claims, however, that, if the limitation on the Commission' s power of investigation under Regulation No 17 is not applied in the national proceedings, that limitation would be deprived of any practical effect, since the Commission could obtain through the national proceedings the information which it cannot obtain directly under the procedure governed by Regulation No 17.

19. That argument must be rejected.

20. Information obtained in the course of such national proceedings may indeed be brought to the attention of the Commission, in particular by an interested party. However, it follows from the Orkem judgment that the Commission - or for that matter a national authority - cannot use that information to establish an infringement of the competition rules in proceedings which may result in the imposition of penalties, or as evidence justifying the initiation of an investigation prior to such proceedings.

21. Accordingly, it should be stated in reply to the national court' s question that Community law does not require a national court, when assessing an application for an order for provisional examination of witnesses prior to the initiation of civil proceedings, to apply the principle that an undertaking is not obliged to answer questions if the answer they call for entails admission that the competition rules have been infringed.

Costs

22. The costs incurred by the Italian and French Governments, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, In answer to the question referred to it by the Arrondissementsrechtbank, Amsterdam, by order of 11 February 1992, hereby rules: Community law does not require a national court, when assessing an application for an order for provisional examination of witnesses prior to the initiation of civil proceedings, to apply the principle that an undertaking is not obliged to answer questions if the answer they call for entails admission that the competition rules have been infringed.