Facts
On 13 November 2018, the Secretariat of the Competition Commission (WEKO), in agreement with the President, opened an investigation under Art. 27 CartA against several companies, including A. AG and its affiliated group companies. The suspicion was of impermissible competition agreements to boycott mobile payment solutions of international providers such as Apple Pay and Samsung Pay (proceeding 22-0492).
By decision of 27 November 2018, WEKO summoned B., in his role as former CEO of C. AG, to appear as a witness on 5 December 2018 and deprived any possible appeal of suspensive effect. A. AG appealed to the Federal Administrative Court, which dismissed the appeal insofar as it was admissible. It held that, with regard to the nemo tenetur principle, the witness questioning was permissible only so long as it was limited to statements of a purely factual nature which could not have a directly incriminating effect on A. AG with regard to any possible sanction.
By public law appeal of 15 May 2020, the Federal Department of Economic Affairs, Education and Research (EAER) appealed to the Federal Supreme Court and requested the annulment of the lower court's judgment insofar as B.'s questioning was restricted for the period before 27 September 2016; in the alternative, it requested a finding that the judgment did not restrict the witness questioning in any binding way. A. AG requested non-entry of the appeal or, in the alternative, its dismissal. The Federal Administrative Court waived any substantive comment.
The issue in dispute was whether former bodies of a company subject to investigation are to be questioned in cartel sanction proceedings as witnesses or as parties, and whether they are entitled to a right to refuse testimony derived from the company under Art. 6 para. 1 ECHR. According to the binding findings of the lower court, B. had lost his corporate position since 17 September 2016; according to A. AG, he continued to work as a consultant.
Considerations
Within the scope of the subject matter in dispute, A. AG was able to raise all arguments that could lead to dismissal of the appeal, including the objection that former bodies must per se be questioned as representatives of a party or as informants. It had to be clarified whether former bodies are, in principle, to be questioned as witnesses in cartel sanction proceedings (E. 4.1).
Under Art. 42 para. 1 CartA (in conjunction with APA), the competition authorities may compel 'persons affected by an investigation' to give evidence, whereby, because of the nemo tenetur principle, only a simple examination of a party regularly takes place. Third parties, by contrast, are to be questioned as witnesses. According to the French and Italian versions ('parties à l'enquête', 'parti all'inchiesta'), the term 'persons affected by the investigation' covers only the procedural parties; this is consistent with Art. 64 FCPA. Whether a person is a party is determined under Art. 6 APA; third parties may also be parties where they stand in a particularly close relationship to the subject matter of the decision (E. 4.2-4.5).
Persons currently holding a corporate function act for the company and are therefore treated as a party, while they are not parties in their own right. Former bodies, by contrast, no longer have a direct interest in the outcome of the proceedings and are therefore to be questioned as witnesses. Questioning as an informant is excluded, since Art. 42 para. 1 CartA does not provide for this. The right to submit new evidence in appeal proceedings (Art. 12, Art. 32 para. 2 APA) does not change this, since it is irrelevant to the question (E. 4.6-4.7). Since B. had neither a formal nor a factual corporate position from 17 September 2016 onward, his summons as a witness was in principle permissible; his subsequent consulting activity does not change this (E. 4.8).
Cartel sanction proceedings are similar to criminal proceedings, which is why the nemo tenetur principle under Art. 6 para. 1 ECHR…