Competition Authority – public regulatory, supervisory and sanctionary powers with regard to the legal regulation of the economy
Administrative offence proceedings
Obligation to provide information
Obligation to provide documents
Right not to incriminate oneself
RULING No. 461/11
11 of October of 2011
Infractions against the norms that regulate competition constitute administrative offences. Because this means that the state’s reaction to an infraction is potentially less severe than it might be in the case of a crime, it also means that it is legitimate for the status of the guarantees of the defence to be less demanding than that which characterises the criminal domain. It is thus justified for the maximum potential content of the right not to incriminate oneself to be significantly compressed. When the law charges the entities over which the Competition Authority exercises sanctionary and supervisory powers – powers that are also attributed to it by law – with duties to collaborate with the Authority, it is subjecting them to provision of compensation for the right to exercise economic activities that are subject to regulation. The duties to collaborate which the law lays down in order to afford effective protection to the constitutionally protected interests of competition and the balanced operation of the markets, compress the maximum potential content of the right not to incriminate oneself within the scope of the administrative offences in question. However, they do not affect that right’s essential useful content when it comes to the right not to make statements with regard to facts of which the person concerned is accused, given the self-incriminatory potential such statements possess.
The issue before the Court was the constitutionality of norms included in the legal act that defines the legal regime governing competition, particularly the norm which, on pain of a fine, requires accused persons to truthfully and completely disclose certain information and documents to the Competition Authority, and the norm which allows accused persons in administrative offence proceedings not to be notified of the Competition Authority’s counter-allegations and precludes them from responding thereto.
The Constitutional Court emphasised the Competition Authority’s importance to the legal regulation of the economy – a regulation that can be seen as a set of legal procedures for indirectly intervening in productive economic activities, procedures which, with the objective of ensuring the balanced operation of the economy, must entail scope for cooperation.
In order for the Competition Authority to be able to pursue the constitutional objective of ensuring that the markets function efficiently, and bearing in mind how important it is to defend competition, the legislator equipped the Authority with public regulatory, supervisory and sanctionary powers, which are functionally linked to its competences. The supervisory and sanctionary powers in question are designed to deal with actions that infringe on the applicable law or regulations, and to repress and sanction infractions, particularly by organising proceedings against unlawful acts that constitute administrative offences and informing the Public Prosecutors’ Office of conducts that can apparently be typified as crimes.
Because the sanctionary competence entrusted to the Competition Authority serves as a condition for the efficacy of the latter’s supervisory function, the legislator opted to establish a close link between the two areas of activity. While this confluence of powers leads to gains in efficiency, it does also bring with it fields of tension or conflict. This is what happened in the case that was the object of the present Ruling. As part of proceedings with regard to an administrative offence, the appellant in the present constitutional case was called on to truthfully and completely provide the Competition Authority with information – namely documentation – failing which it would be subject to a fine. It was possible that this information could be used as evidence to incriminate the present appellant and contribute to the chance of its conviction for an administrative offence.
The maximum potential content of the right not to incriminate oneself includes the right to silence and the right not to furnish evidence, namely documents. The immediate constitutional-law grounds for it lie in the procedural guarantees applicable to an accused person’s defence, which are themselves intended to ensure fair process and are related, in a mediate or reflexive way, with fundamental rights such as that to human dignity, the right to fair process and the presumption of innocence.
The primary playing field for this right not to incriminate oneself, and particularly the aspect of it that is the right to remain silent, is that of the criminal law, but it also extends to any public-law sanctionary proceedings.
However, its exact content varies depending on the area of punitive law in which it is to be applied. In the administrative offence field, the difference between the nature of an unlawful act that constitutes an administrative offence and its lesser ethical implications on the one hand and those of an unlawful act that constitutes a crime on the other, means that the weight of the regime governing guarantees in proceedings with regard to the former is less.
The obligation to provide information and hand over documents to the Competition Authority in its role as a regulatory entity – an obligation that is heightened by punishment for failure to do so in the form of a fine – is a condition that is required in order to ensure the efficacy of the effective safeguarding of the principle of competition in an area in which the collaboration of economic agents is fundamental to the ability to control, verify and sanction the existence of behaviours that constitute infractions.
In an initial phase, when a supervisory administrative procedure is still underway, there can be no doubt that items which the Competition Authority gathers within the scope of its supervisory powers can be used in subsequent administrative-offence proceedings.
From the moment at which those proceedings begin and the accused is confronted with the presumed infraction, the paradigm for the relationship changes. The right not to incriminate oneself makes its presence felt, as a reflection of the new status of accused person. However, in the administrative-offence field this right can only contain the aspect of the right to silence that entails the possibility of not making statements or answering questions about the facts of which the person is accused; it does not entitle an accused person in proceedings for an administrative offence constituted by anticompetitive practices to refuse to provide information and hand over documents that are in its possession and are asked for by the Competition Authority. Having said this, this does presuppose the objective dimension of the items in question – i.e. they cannot possess a conclusive content or definitive judgemental value in a self-incriminatory sense.
The compression of the right not to incriminate oneself that existed in the present case is balanced and proportional, and represents an appropriate weighing-up of the relative value of each of the opposing concrete constitutional-law assets that are in play.
On the argument that the legal regime is unconstitutional because it does not say that an accused person must be notified of allegations made against it by the Competition Authority, the Constitutional Court held that even in criminal proceedings, the express constitutional requirement that the adversarial principle must be fulfilled refers to the trial hearing, which is the phase in which this principle must be observed to the utmost. In the other procedural phases the legislator is recognised to possess a sufficient margin of freedom within which to shape the adversarial process. When we gauge whether the guarantees of the defence have been respected, we must look at the proceedings as a whole, and not in terms of each of their individual phases.
See Rulings nos. 695/95 (5-12-1995), 278/99 (5-05-1999), 339/2005 (22-06-2005), and 659/06 (28-11-2006).