COMPETITION • EUROPEAN LAW • PROCEDURE
The Commission is subject to an obligation of fairness in the search for evidence. It must inform the undertaking concerned of the subject-matter of the investigation, in particular by clearly indicating the presumed fact it intends to look into so that the persons questioned do not misunderstand the scope of the statements they might make and which could be used against them. The Commission must therefore specify in the inspection decision what it is looking for and the elements to be covered by the inspection. The European authority is not, however, required to disclose all the information it has on suspected infringements, nor to make a strict legal classification of those infringements. It may also, without violating the duty of fairness, use documents obtained in the context of a previous matter as evidence to initiate new proceedings, ask for them to be submitted again and use them as evidence in the new case. On the other hand, it may not, prior to an inspection, inform its officials of the existence of another complaint concerning a subsidiary of the undertaking under inspection and thus prompt them to seize documents unrelated to the search measure as set out in the decision. Furthermore, there are no provisions in EU law preventing the Commission from using information and evidence submitted by an undertaking in the context of an application for immunity, even when the lawyer acting for the undertaking has violated the prohibition of double representation or the duty of loyalty to former clients. Finally, unlike the French courts for example, the Union judicature allows the use of unlawfully obtained recordings as evidence, even where that evidence was obtained in breach of the requirements of Article 8 of the ECHR, provided that the applicant was not deprived of a fair trial or of his rights of the defense and that the evidence at issue was not the only proof relied on in support of the conviction.
