Self-Incrimination in EC Antitrust Enforcement : A Legal and Economic Analysis

Competition authorities need to obtain intelligence and evidence of antitrust violations so as to be able to punish the antitrust violators and create deterrence. The best information will usually be in the hands of the antitrust violators themselves. The first part of this article gives an overview of the legal instruments which are available to the European Commission and the competition authorities of the Member States in order to collect intelligence and evidence of violations of Articles 81 or 82 EC from the undertakings that have committed these violations or from their staff. The limitations flowing from the privilege against self-incrimination are discussed in particular. The second part of the article contains an economic analysis of the use of direct force, compulsion and leniency as three methods to obtain intelligence and evidence from antitrust violators, including an economic interpretation of the privilege against self-incrimination. Comparing the strengths and weaknesses of the use of direct force, compulsion and leniency, it appears that a combination of these instruments is required for effective and efficient antitrust enforcement