Previous applicable law
DCCA's guidance paper
On 27 October 2021, the Danish Competition and Consumer Authority (DCCA) published a guidance paper on the privilege against self-incrimination in competition proceedings. The guidance paper comes in the wake of recent legislative amendments to the Danish Act on Competition as part of the implementation of EU Directive 2019/1/EU (ECN+ Directive).
The implementation of the ECN+ Directive has led to a number of significant procedural changes to Danish competition law. The recently amended Danish Act on Competition has strengthened the DCCA's power to investigate alleged competition infringements. Part of the strengthening comes from the fact that the previously applicable national rules on undertakings' privilege against self-incrimination have been abolished. For undertakings, the privilege against self-incrimination is now solely derived from the corresponding (but narrower in scope) EU law principle. For natural persons, national rules and criminal law principles on the privilege against self-incrimination are still applicable to competition proceedings. Accordingly, Danish competition law now applies two different privileges against self-incrimination, one for undertakings and another for natural persons.
The aim of both privileges is to ensure that undertakings and natural persons cannot be required to assist in proving an offence that they have committed or contributed to and which may result in a civil or criminal penalty, respectively. As both undertakings and natural persons may be required to participate in the investigation of competition cases, these rights are essential to ensure legal certainty.
Prior to the amendment of the Danish Act on Competition, the protection against self-incrimination for both undertakings and natural persons was based on the right embodied in section 10 of the Danish Act on Legal Protection in Relation to Coercive Measures (act 1121/2019). This right builds on the rights stemming from the European Convention on Human Rights, which is interpreted in line with the case law of the European Court of Human Rights.
Section 10 of act 1121/2019 provides that when the authorities have a specific suspicion that an undertaking or a natural person has committed or contributed to an infringement, the authorities may not force them to provide information if this information may be relevant to the assessment of the suspected infringement. Only if the authorities have no such suspicion can they oblige them to provide the information sought.
Under the new regime, the privilege against self-incrimination in section 10 of act 1121/2019 does not apply to undertakings in competition proceedings. Instead, as specified further below, the privilege against self-incrimination as interpreted in the case law of the Court of Justice of the European Union (ECJ) applies.
In the guidance paper, the DCCA describes when undertakings and natural persons are obliged to provide certain information and when they have the right to refuse by using the privilege against self-incrimination.
Undertakings are generally obliged to provide the DCCA with all information deemed necessary to investigate a case. However, according to section 17(b) of the Danish Act on Competition, the obligation to provide information only applies insofar as it is not contrary to the privilege against self-incrimination under EU law. Based on the ECJ's case law, the guidance paper explains that undertakings have an obligation to provide pre-existing documents and answer questions.
On the obligation to provide pre-existing documents, the authorities are entitled to request and investigate all documents and data available to the undertaking, including:
- minutes of board meetings;
- business descriptions;
- strategy plans; and
As stated in the guidance paper, this applies regardless of whether, for example, the minutes of a meeting contain evidence that the purpose of the meeting had actually been illegal coordination.
On the obligation to answer questions, the undertaking is obliged to answer all questions, unless the answer would compel the undertaking to admit to an infringement of competition law. As mentioned in the guidance paper, the DCCA can demand that the undertaking provides answers to questions about, for example, the undertaking's customers and trading conditions. However, the undertaking is not obliged to disclose, for example, the purpose of a meeting if this would force the undertaking to admit to an infringement of the competition rules.
In summary, the DCCA is always entitled to request and investigate all pre-existing documents and data from the undertaking, but it will depend on the specific circumstances whether an undertaking must answer questions.
As mentioned above, the statutory basis for natural persons' protection against self-incrimination is section 10 of act 1121/2019. According to this provision, natural persons specifically suspected of having assisted in an undertaking's competition infringement, do not have to provide information or answer questions if this information may be used in a subsequent criminal proceeding against them.
Likewise, employees of an undertaking are not obliged to provide information or answer questions if there is a specific suspicion of said employees' participation in the undertaking's competition infringement.
However, as dealt with in the DCCA's guidance paper, legal certainty concerns may arise where an employee specifically suspected of having assisted in an undertaking's infringement of the competition rules is obliged to provide information on behalf of that undertaking. More specifically, as employees (typically executives) are the ones who provide information on behalf of the undertaking, a suspected employee may, under their duty to cooperate as a representative of the undertaking, in fact be obliged to provide information that could be used in a subsequent criminal proceeding against them in a personal capacity.
To address this concern, the DCCA takes the position that it will advise when it has a specific suspicion against both an undertaking and an employee of that undertaking. According to the DCCA's guidance paper, this will enable the undertaking and the employee to assess whether another employee should provide answers on behalf of the undertaking.
A different concern is the situation where an employee, who at the time is not under suspicion, is obliged to provide answers on behalf of the undertaking, which leads to a subsequent specific suspicion against said employee. This situation, which in practice may be difficult to manage, remains unaddressed in the guidance paper.
If an undertaking or natural person does not provide the material that the DCCA has requested, or does not answer the agency's questions, the agency may impose coercive fines. This also applies if the undertaking or natural person submits incomplete or incorrect information.
The DCCA's guidance paper provides welcome guidance on its interpretation of the EU law principle of privilege against self-incrimination. In particular, the guidance paper provides useful examples on how the now two different privileges against self-incrimination intersect and differentiate.
In practice, the introduction of the EU law principle of privilege against self-incrimination for undertakings may lead to a reduction in legal certainty for natural persons. It is not clear what the legal position of a natural person, who is not (yet) under specific suspicion, is if they are employed in an undertaking under suspicion. This unintended consequence is not fully addressed in the guidance paper.
For further information on this topic please contact Martin André Dittmer or Rebecca Fink Joensen at Gorrissen Federspiel by telephone (+45 33 41 41 41) or email ([email protected] or [email protected]). The Gorrissen Federspiel website can be accessed at www.gorrissenfederspiel.com.