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Proof in Cartels: State of Play and Perspectives

Jacques Buhart, Romain Maulin, Concurrences N° 4-2011, pp. 51-64 (FR).
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Abstract

In order to deal with the increasing difficulties associated with gathering evidence, the European Commission has started to rely more and more on oral evidence to substantiate its cases, in particular with regard to the existence of cartels. This trend, combined with the current deficiencies of the European Commission’s enforcement procedure, may lead to a decrease in the quality of evidence relied upon in a case, thus affecting the parties’ rights of defence. In this context, certain changes in the European Commission’s enforcement procedure may be appropriate.

Introduction

The purpose of this article, the scope of which is limited to cartel proceedings, [1] is to offer suggestions that may enable competition authorities, and in particular the European Commission (the “Commission”), to improve the quality of evidence used to establish an offense under Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). By the Commission’s own admission, detecting infringements of competition law is an increasingly difficult task. [2] Faced with ever-increasing fines imposed by the Commission, companies defend themselves vigorously, and the Commission must use modern investigative methods, including searching hard drives, computer networks and e-mail – where sketchy evidence provides clues of illicit conduct. [3]

These clues may not be sufficient for the Commission, which bears the burden of proof in competition proceedings, [4] “to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement.” [5] In competition law, infringements of Articles L. 420-1 of the French Commercial Code or Article 101 TFEU, require a “meeting of the minds.” Article L. 420-1 of the French Commercial Code provides a non-exhaustive list of conduct that constitute a meeting of the minds, including: “concerted actions, agreements, express or tacit agreements or coalitions.” In the Community’s terminology, Article 101 TFEU prohibits “agreements between undertakings,” “decisions by associations of undertakings” and “concerted practices.” The characterisation of a cartel – and, more generally, anticompetitive agreements – requires the establishment of three elements: (i) subjective expression of companies’ joint intention, (ii) an anti-competitive object or effect and (iii) a causal link between the companies’ joint intention and the anti-competitive object or effect. [6]

The question of proving an infringement is even more important when there are doubts concerning the materiality of the infringement – that is, whether it has an anti-competitive object or effect. This is because, under the presumption of innocence and in pro dubio reo, the benefit of the doubt concerning the materiality of the infringement must go to the company under investigation. [7]

In order to establish competition law infringements, competition authorities have gradually adopted leniency programs, encouraging companies involved in a crime to provide evidence in exchange for full or partial exemption from fines. [8] As part of these programs, where there is no written evidence, business leaders are often called upon to provide the Commission with oral statements – without facing much risk of penalties for providing false statements. The probative value of these oral statements is determined by case law. In addition, following the adoption of Regulation No. 1/2003, the Commission may collect oral statements from any person who may have information relating to the alleged infringement, as long as the person consents.

In light of these developments, there are legitimate questions as to whether the burden of proof in Community law is converging with – or is at least informed by – the approach used in the United States, where the Department of Justice primarily relies on direct testimony and cross-examination to prosecute and punish cartels, while written evidence – once the almost exclusive source of proof – now occupies a secondary role.

These developments, combined with the sui generis character of proceedings before competition authorities – or at least the Commission and the French Competition Authority (the “Authority”) –, have enabled the latter to distance themselves to a certain extent from the requirements of criminal law, in particular those concerning the nature and the quality of evidence tending to demonstrate the existence of an infringement, and thus to justify the imposition of a fine. At the same time, companies sometimes have the impression that they are being confronted by competition authorities equipped with extensive investigatory tools and being found, sometimes based on evidence that is more than questionable, or at least questionable, to have violated the competition rules.

Almost a decade after the entry into force of Regulation No. 1/2003 and pending the outcome of the discussions initiated by Commissioner Almunia on adjustments to the administrative procedure of investigation and punishment of cartels, it seems important to show how the Commission’s decisions in cartel proceedings have, in recent years, reflected the increasingly important role of oral evidence (I) and to analyse the limitations of the current system, which will likely result in requiring a lower level of proof, as well as possible desirable developments (II).

I. The Evolution of the Practice of the Commission: From written evidence to oral evidence

If the enactment and more generally the rules and principles applicable to the evidence required in cartel proceedings (Article 101 TFEU and L. 420-1 of the Commercial Code) remain unchanged (1.), the Commission’s decisional practice will, due to the introduction of leniency programs, rely increasingly systematically on oral evidence (2.).

1. Permanent rules and principles applicable to evidence required in cartel proceedings

1.1. Terseness of Community and national texts

At the Community level, somewhat surprisingly, no text clearly provides the standard of proof, methods of admissible evidence, let alone, a fortiori, the hierarchy between types of evidence. [9]

If Regulation No. 1/2003 provides a specific rule for allocating the burden of proof, it provides no details on the standard of proof that the Commission requires to establish a violation of competition law. Rather, Regulation No. 1/2003 “affects neither national rules on the standard of proof nor obligations of competition authorities and courts of the Member States to ascertain the relevant facts of a case.” [10] This position seems consistent with the jurisprudence of the European Court of Human Rights, which provides that the burden of proof is, in principle, determined by national law. [11]

Similarly, French law has no text that specifies the evidence required before the Authority to establish an infringement. [12] It is very clear from the opinion of Advocate General Cécile Petit in the case Philips France and Sony France: “If the proceedings before the Board are governed in strict accordance with Articles R. 420-1 to R. 470-4 of the Commercial Code, you will find no text on the evidence before you, with the exception of Article L. 462-8 of the Code that provides ‘it can also reject the referral by a reasoned decision if it considers that the facts are not supported by sufficiently convincing evidence’”. [13]

1.2. Interpretation of existing case law principles

Faced with a lack of codified law, case law has provided filled in the gaps with general principles, requiring competition authorities to satisfy “a high level of requirements of proof” due to the criminal or quasi criminal nature of competition proceedings, which is now widely recognized. [14] Mr. Bo Vesterdorf, while acting as Advocate General, remarkably wrote in his Opinion in the case of Rhone-Poulenc, “the fact [is] that competition cases of this type [cartels] are in reality of a penal nature, which naturally suggests that a high standard of proof is required.” [15]

a) “Unfettered evaluation of evidence”

According to the European Court of Justice (the “ECJ”) “the principle that prevails … is that of the unfettered evaluation of evidence and that it is only the reliability of the evidence that is decisive when it comes to its evaluation.” [16] The system set forth in Community law therefore stands in contrast to the system of legal proof that confers on the legislature the task of assessing the relative value of evidence.

With regard to the probative value of evidence, the Community courts traditionally consider “the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed, and whether, on its face, the document appears sound and reliable.” [17] and that, “[i]n assessing the evidential value of a reporting document, regard should be had first and foremost to the credibility of the account it contains.” [18] One consequence of the Community courts’ pragmatic approach is that a document of anonymous origin may be produced in cartel proceedings and can potentially be used as evidence to justify a finding of infringement. [19] It is also possible that the Commission or the Authority may decide to open an investigation based solely on a document of anonymous origin, since both regulators can open investigations on their own initiative.

In the case of documents that are obtained dishonestly or unfairly, the Community courts, unlike the French courts, [20] have not yet had the opportunity to rule on their admissibility. The Commission has, however, adopted a rigorous position concerning unfairly obtained evidence that is, in our view, in accordance with the principles of a fair trial. Thus, in its decision in the case Dutch Association of Wholesale Electrical Equipment, the Commission acknowledged that the complainant (CEF) had provided the Commission with recordings and transcripts of telephone conversations between the complainant and some of the companies under investigation, which had been made without the latter’s knowledge. After acknowledging that “it should have returned the tape recordings and transcriptions immediately to CEF…[and this was] done some time later,” the Commission stated that "the tape recordings and transcriptions did not play any part in the proceedings and [did] not influence[] the content of the decision in any way”. [21]

b) The standard of proof

A standard of proof indicates the evidence needed to prove a disputed assertion. [22] One searches Community legislation in vain for guidance as to the standard of proof applicable in competition cases. [23] The concept of “standard of proof"” has also recently appeared in the judgments of the ECJ [24] and is sometimes mentioned in General Court decisions. [25]

The Community courts consider that evidence must satisfy “the requisite legal standard” [26] without specifying what is meant by this concept. [27] In cartel cases, the Community courts and the Commission generally use a “syllogism of proof” which can roughly be summarised as follows: i) you have attended a meeting, ii) as a result of it, your market behaviour was similar to that of other participants in the meeting, (iii) you have offered no other credible explanation for the parallel conduct, and (iv) we therefore conclude that you have infringed competition law. [28] The Commission, or the competent competition authority, may even dispense with establishing evidence of parallel conduct if it considers that the alleged conduct between competitors is, by its very object, anticompetitive. [29]

From a qualitative point of view, the Community courts have identified certain factors that are relevant in determining whether the standard of proof has been met. Thus, the evidence must be “sufficiently precise”, “logical” or “convincing”. [30] In another line of cases, the Community courts have ruled that it was necessary “for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place.” [31]

In cases where the Commission investigates and punishes a company without meeting the standard of proof, its decision may be annulled. [32] The Community courts have considered, for example in the case of Rolled Zinc that “sen[ding] a telex [...] concerning the reduction of prices on the German market does not, in itself, constitute evidence establishing the existence of a concerted practice”; [33] thus, the Commission decision was annulled. [34]

The existence of such a standard of proof, however, does not exclude that the existence of an infringement may be inferred from a number of “coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.” [35] From a quantitative point of view, Community law does not limit the Commission from finding an infringement, even where the infringement is based only on a single piece of evidence. In such a case, the evidence, sometimes called a “smoking gun” [36] to the extent that it demonstrates all or part of the anti-competitive agreement and its participants, will not be in doubt and it will have to alone clearly demonstrate the existence of the offense. [37] The corresponding probative value of the evidence depends, of course, on the facts of the case and the characteristics of the evidence.

Under these conditions, it is nevertheless very unlikely that a competition authority will prosecute and penalise a company solely on the basis of indirect evidence. [38]

c) The distinction between direct and indirect evidence

The Commission may rely on both direct and indirect evidence to prove a material infringement of the competition rules. In the absence of precise definition of these concepts, it is sometimes difficult to distinguish clearly between them. [39]

Direct evidence may be oral or written, and its main feature is that it allows the competition authority to demonstrate that companies reached an agreement that is anticompetitive in its objective or its effect. [40] This may include records of attendance at meetings, telex and bills but also written or oral statements made by individuals who participated in an infringement to support their respective corporate statements. [41]

However, direct evidence available to the competition authorities is increasingly rare due to the business community’s growing awareness of European competition law and the risk of fines. [42] Given these developments, so as not to pose a burden on the Commission deemed “impossible”, the Commission may prove, to some extent, its claims through the use of presumptions. [43] The Community courts have thus validated the use of circumstantial evidence [44] to corroborate the existence of a cartel based on deductions or economic analysis. This was especially the case in the Wood Pulp judgment, in which the ECJ appointed two expert economists responsible for determining whether the Commission’s analysis concerning alleged parallel conduct was correct. [45]

In France, the Authority routinely uses the technique of “indicia of strong, clear and consistent evidence” in cartel proceedings. [46] Thus, in its decision on the cartel of the manufacturers of plywood, for example, the Authority considered that the evidence provided by the leniency applicant and corroborated by the statements of officials of other companies in question constituted a “indicia of specific serious and corroborating evidence towards conclusion of the existence of collusion.” [47]

The Community courts also rely on hearsay evidence. This particular issue of hearsay evidence was debated in the recent case of Toshiba, [48] in which the applicant contended that evidence used by the Commission to demonstrate the existence of collusion should be dismissed because it originated from a person who had not personally attended the meeting at which the collusion allegedly occurred. The General Court, after noting that this person had confirmed during his testimony he was not present at the conclusion of the joint arrangement, [49] for its part observed that “a witness is able to furnish evidence of a long-standing phenomenon even if he was not present at its inception” [50] and that, therefore, this testimony was an indication of the existence of common understanding. [51] This approach may be problematic in terms of rights of defence.

Moreover, it should be noted that due to difficulties encountered by the Commission in gathering evidence sufficient to prove of the existence a cartel, the Community courts admit that the weight of evidence is based more on its overall consistency than on the value of each individual item of evidence. [52] The Community courts consider that “it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.” [53] By conducting a comprehensive analysis of the evidence, the competition authority is not obliged to interpret each piece of evidence, which can be sometimes unclear or even contradictory.

1.2 The growing importance of testimonial proof

The Commission has extensive powers to search for evidence of an infringement, allowing it to collect documentary evidence demonstrating violations of competition law. The renewal of the Commission’s powers under the Regulation No. 1/2003, and in particular the Commission’s power to take oral statements (a) and the success of its leniency program (b) seem to support the principle, established in case law, that testimony has only a marginal role in terms of providing evidence of cartels (c). On the contrary, these methods of investigation appear to be heavily loaded with testimonial evidence.

a) The marginal a priori role of testimony Evidence in competition proceedings is primarily written, [54] even though this is not required by law. The Community courts consider testimony, particularly following the introduction of Regulation No. 1/2003, of secondary importance and that documentary evidence is, by contrast, crucial. [55] It seems that this situation, which was justified before the entry into force of Regulation No. 1/2003, might have to change. The fact that the Commission has now the opportunity to question those involved in an investigation (subject to their consent) allows us to believe that the testimony might play an increasingly greater role in cartel proceedings. Advocate General Geelhoed, in his Salzgitter Opinion, stated that this would not be the case. He observed that “[t]he relative weakness of that power [based on Regulation No. 1/2003, Article 19(1)] shows that the Commission cannot summon persons to give evidence or examine them under oath, and cannot impose fines if the information given is incorrect or misleading.” He continued, writing that “oral evidence, which is so important in national criminal proceedings…, can play only a very minor role in the investigation of, and imposition of penalties for, anti-competitive practices.” [56] He concluded that, “[t]he main focus for the production of evidence in investigations under, and the enforcement of, Community competition law must therefore be on written documents, however difficult it may be in practice to secure them.” [57]

b) The Commission’s power to collect oral statements The objective for the adoption of Regulation No. 1/2003 was to improve the Commission’s investigative powers. Following its adoption, the Commission now has two new methods of investigation: (i) it may inspect premises other than those of the company in question (Article 21) and (ii) it may collect oral statements (Article 19). [58] Under Article 19, the Commission may collect statements from the representatives or employees of the company inspected, [59]or any person or entity through their representative. [60] The Commission may also collect oral statements from leniency applicants and from complainants. [61] To the extent that Article 19(2) states that, “Where an interview pursuant to paragraph 1 is made on the premises of an undertaking”, we believe that this interview may also take place outside the context of a “dawn raid” and instead take place at the Commission’s premises. This provision was harshly criticised by companies and practitioners during the public consultation concerning draft Regulation No. 1/2003, and the final Regulation was accordingly amended on this point. [62] While the draft Regulation would have given the Commission power to interview anyone with useful information, resembling the power available to the US antitrust authorities, the final Regulation is more limited, with Article 19(1) expressly providing that the Commission may only interview those persons “who consent[]”. Similarly, while the draft Regulation envisaged that interviews would take place in the Commission’s premises, the final Regulation is silent as to the location of the interview. Interviews conducted under Article 19 of Regulation No 1/2003 must be recorded “by any means.” [63] A copy of the recording must be returned to the person interviewed who will have the opportunity to make corrections within a period of at least two weeks. [64] Regulation No. 773/2004, on the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (“Regulation No. 773/2004”), Article 3(3) states that “[t]he Commission may record the statements made by the persons interviewed in any form.” Note, however, that although neither Regulation No. 1/2003 nor its implementing Regulation, Regulation No 773/2004, obliges the Commission to memorialise the statements of persons interviewed, in practice the Commission does so, and the person interviewed must sign the record. In contrast to what is provided for responses to requests for information, Regulation No. 1/2003 does not impose any penalty for providing false or misleading information in a voluntary oral statement. Some commentators have also stressed that the power to take statements should be distinguished from the Commission’s power to ask “for explanations on facts or documents relating to the subject-matter and purpose of the inspection” under Regulation No. 1/2003, Article 20(2)(e), which must be interpreted restrictively. Indeed, a broad interpretation of this provision would allow the Commission to ask any question related to the object and purpose of the inspection, and thus to circumvent the requirements and guarantees provided in connection with requests for information (Article 18) and hearings (Article 19). In order to respect the rights of the defence, it seems preferable that the Commission use a reasonable approach and seek clarification since the person questioned, who is not entitled to the protections afforded under Articles 18 and 19, will not benefit from a delay in developing his or her response and cannot refuse to be interviewed. [65] In a complaint filed by Intel, the European Ombudsman acknowledged that the Community courts have, to date, not commented on the regime of declarations made under section 19, [66] and that pursuant to the interpretation of this article, [67] the Commission had discretion to take statements. However, the Ombudsman also considered that when the Commission conducts interviews to gather information related to a pending case, these discussions must necessarily be listed as interviews under section 19 [68], so that the guarantees under that section are met. It is also envisaged that the Hearing Officer could be called upon to decide on the applications by Commission officials concerning the powers conveyed on them by Regulation No. 1/2003, in particular with regard to the power of taking statements.

c) Evidence provided in support of a leniency application

Because the vast majority of cartel cases are brought to the attention of competition authorities following a leniency application, the quality of the evidence offered in support of leniency applications is critically important. The Commission’s communication concerning leniency (“Leniency Notice”) provides some indication of the evidence that the Commission deems necessary or to be of added value compared with evidence already in its possession. [69] It shows in particular that “the concept of ‘added value’ refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the alleged cartel.” It states that “written evidence from the period of time to which the facts pertain [has] greater value than evidence subsequently established” and that “incriminating evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.” Since the Leniency Notice does not discuss the nature or admissibility of evidence, we can infer that these principles apply to both written and oral evidence. The Leniency Notice also states, under the heading of “Requirements to qualify for immunity from fines,” that the applicant company must “provid[e] the Commission promptly with all relevant information and evidence relating to the alleged cartel that comes into its position or is available to it” and “not destro[y], falsif[y] or concea[l] relevant information or evidence relating to the alleged cartel.” [70] According to the Commission, these provisions limit the risk that a leniency applicant provides incorrect or incomplete information, which constitutes grounds for rejecting a request for leniency. [71] Under this approach, the conditions for obtaining leniency are likely to ensure that applicants’ statements and documents submitted are authentic. [72] The benefits that a company may expect to derive from a leniency application may incentivise the company to maximise participation in the cartel or to fill certain roles (especially in taking a leadership role, or working to implement the agreement) in order to provide the competition authority with significant added value, enabling it to minimise its own fine and possibly also maximise the fines incurred by its competitors, resulting in some conflicts of interest. This risk materialized recently in France in the case of LPG conditioning in which the company Butagaz, provided in support of his application for leniency (first rank leniency) documents, including e-mails, which proved to be false. [73]

II. Limitations of the current system and desirable developments

One of the major shortcomings of the current procedures in cartel cases is that the parties are unable to interview the people who made statements, especially the employees of other companies, whose declarations influence the Commission’s infringement decisions. This seems to be inconsistent with Article 6(3) of the European Convention on Human Rights (“ECHR”) which states that every accused person has the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Therefore, the European Union’s future compliance with the ECHR may require a development on this particular point.

1. Inadequacies of the current administrative procedure: From the search for the truth ... to the search for the offense

Recognizing the shortcomings of the current situation, the Commission recently published a document entitled “Guidance on procedures of the Hearing Officers,” the objective of which is to facilitate resolution of disputes concerning. [74] The recent appointment of Wouter P.J. Wils to the position of Hearing Officer may, too, allow for some improvement in the situation and in particular to enable the oral hearing to take on greater importance in resolving disputes. [75] More broadly, Commissioner Almunia launched a major reform of antitrust procedures. [76] This initiative may include the question of proof in cartels.

1.1. The existence of institutional bias

An astute observer of the Commission’s operations has identified three psychological biases inherent in human nature and highly likely to influence the action of the prosecuting authorities. [77] First, the confirmation bias, is the human tendency to look primarily at evidence confirming his beliefs rather than at the evidence that challenges those beliefs, [78] Thus, the prosecuting authorities tend to consider only the evidence that tends to prove an infringement of competition law and to exclude those refuting their hypothesis that an infringement occurred. Second, using hindsight, there is the erroneous belief that the outcome of an event could have been predicted beforehand. This bias then leads to a “cognitive dissonance,” that is, to a situation of internal conflict between the false belief that the result was predictable from the beginning and the human tendency to trust their own judgments. Therefore, this bias leads to the belief that the resources used will have been wasted if they do not achieve the desired result, and this could very well have been avoided since the result was predictable. Applied to the prosecuting authorities, this bias would mean that, if they realise that the proceedings were ultimately unjustified, they will be are tempted to deny this or at least minimise the existence information contrary to their conclusions. This results in an even greater desire to reach the conclusion that a crime has been committed since the dropping of charges would amount to an implicit admission that valuable resources were poorly allocated. Finally, there is a continuing bias by the prosecution authorities to believe that the objective assigned to them is important, and that their work contributes to achieving this goal. Indeed, these authorities are entrusted with a task and they are anxious to demonstrate to the community that they make every effort to accomplish this task properly. Moreover, the authorities are prejudiced themselves, since officials are likely to be recognised and promoted on the basis of the number and importance of businesses prosecuted, not in consideration of the cases that they decided not to pursue or to abandon. Some commentators have suggested that the existence of these biases and the dangers they present to an objective examination of evidence should not be underestimated, especially with respect to the competition authorities that operate according to an inquisitorial model, such as the Commission or the Authority. In such a system, the prosecuting authority has extensive powers, and performs the functions of investigator, prosecutor and decision maker. It is only after a decision is reached that a case can possibly be reversed by an independent and impartial judge. Conversely, in an adversarial system like the American system, these three biases are lessened by the fact that all elements —investigation, prosecution and decision making – are subject put to question by the opposing party, so that the risks associated with these psychological biases can be corrected during the procedure leading to the adoption of decision. [79] Given the existence of these biases, companies may, in certain circumstances, feel that the search for truth becomes, in reality, a search for an offense. This is true both for the Commission, as well as at the level of the Authority - in spite of a more formal separation of the functions of investigation and trial for the LME law. [80]

1.2. The theoretical possibility of challenging the evidence on which the Commission relies

The respondents to a statement of objections may respond in writing, setting out all facts known to them, and which will be taken into account in their defence. [81] To escape punishment, the company is not necessarily required to disprove the Commission’s assertions contained in the statement of objections, but only to establish that such assertions are uncertain or inadequately supported. [82] This is understandable since in the reverse, the companies would be forced provide negative evidence proving their non-participation in the agreement, which would amount to a probatio diabolica. In some cases, the comments in response to a statement of objections led the Commission to close proceedings due to lack of sufficient evidence to prove an infringement. [83] In other cases, the Commission was able to reduce or remove certain objections on the basis of the information and arguments submitted by the respondent’s response to the statement of objections. [84] For the purpose of defending themselves, the parties have the right to ask the Commission to hear anyone who can corroborate the facts set out in their observations, [85] especially experts in the relevant sector or economists. However, the Commission has discretion to determine the potential value of persons heard, and the degree to which evidence may be relevant to the Commission’s investigation. [86] The ECJ held that the guarantee of the rights of the defence does not necessarily require the Commission to hear the witnesses proposed by the parties, particularly if it considers that the investigation of the case was sufficient. [87] In this regard, it should be noted that in the LPG conditioning case, a party to the proceedings before the Authority (Totalgaz) refuted in its comments, submitted in response to the Statement of Objections, the existence of material inconsistencies contained in certain material supplied by Shell and Butagaz in support of their request for leniency. [88] The expert in software and hardware designated by the General Rapporteur concluded that some e-mails produced in support of the request for leniency had been either “altered” or “made from scratch.” [89] The Authority considered that the expert’s conclusions eliminated all probative value of these materials, and also challenged all of the evidence provided by this former employee. [90] Lack of cross examination. There is no provision in EU law which allows a respondent company to cross-examine the Commission’s team handling the case (the “case team”) or those who made oral statements containing incriminating evidence and used by the case team to draft the statement of objections. On this point, it should also be mentioned that the regulation implementing Regulation No. 1/2003 provides that the Hearing Officer may allow the party responding to the statement of objections to ask questions during the hearing. [91] This possibility is, in practice, often used during the oral hearing. If this option can be used to detect weaknesses of the analysis of the Commission, it does not, however, allow the respondent to truly cross-examine the case team. [92] Risk of manipulation of the file by the Commission. The recipient of a statement of objections has access to all documents in the Commission file with the exception of internal documents, business secrets or other confidential information. [93] Thus, the Commission may deny access to certain documents or give access to certain documents that may have been heavily redacted to mask their confidential information. In practice we see that the Commission has significant latitude to determine the contents of the file, and in particular with regard to which elements it can include or exclude from the evidence. First, the record must contain all the incriminating evidence (“inculpatory evidence”). Thus, in the statement of objections, the Commission provides companies with the materials it considers useful to include in the file because it intends to use such materials in the final decision, after having redacted trade secrets and other confidential information. [94] In these circumstances, the Commission is the only one with knowledge of both the evidence of the infringement (on which it largely bases its analysis) and evidence to the contrary (it may be advantageous to neglect or even ignore) and any other evidence to which the companies involved will have access in their redacted versions. Moreover, the record does not necessarily contain exculpatory evidence (“exculpatory evidence”). If the Commission cannot rely on evidence not included in the record or that the company did not have access, it is not allowed to exclude evidence from the file without informing the company under investigation. There appears to be no express provision in Regulation No. 1/2003 or its implementing regulation prohibiting the Commission from returning certain materials that contain exculpatory evidence, and thus exclude them from the file. [95] This possibility has a limit, however: once the evidence in question is excluded from the file, the Commission cannot use it against the company receiving the statement of objections. [96]On this point, it is useful to recall that the Italian Flat Glass [97] decision was overturned by the Community courts [98] in that it involved PPG, because the Commission had intentionally removed the file elements unfavourable to its own theory. [99] Finally, the file does not necessarily contain the list of interviews and other statements. The Commission’s Notice on rules for access to the Commission file provides that “there is no obligation on the Commission departments to draft any minutes of meeting with any person or undertaking.” [100] This provision is in fact the codification of the principle enunciated by the General Court in the TACA case that “[t]here is by contrast no general duty on the part of the Commission to draw up minutes of discussions in meetings or telephone conversations with the complainants which take place in the course of the application of the Treaty’s competition rules.” [101] However, the General Court also ruled in 2005 in Danone that “if the Commission intends to use in its decision inculpatory evidence provided orally by another party it must make it available to the undertaking concerned so as to enable the latter to comment effectively on the conclusions reached by the Commission on the basis of that evidence. Where necessary, it must create a written document to be placed in the file.” Some commentators believe that a strict interpretation of these jurisprudential solutions and the Commission’s notice on access to the file could lead to an unsatisfactory situation to the extent that the Commission is a priori required to include in the record that incriminating evidence it intends to rely on. It would therefore be theoretically possible that the Commission hears the parties and disregards the evidence they supply, and thus determining does not warrant inclusion in the file. [102] Under these conditions, there is a risk the Commission might conclude that it is not required to fully record the proceedings of meetings it conducts, and may choose not to communicate to the parties concerned all of the incriminating evidence on which it intends to rely. In this case, the company in question will not necessarily be aware of all of the exculpatory evidence that the Commission possesses. [103]

1.3. Desirable developments towards the strengthening of a truly adversarial administrative proceeding

While the hearing provides the recipient of the statement of objections the opportunity to present his defence in a more spontaneous manner, the Commission does not have to respond to the defendant’s arguments and the defendant does not have the right to examine or cross-examine the Commission, or any third party from which the Commission obtained evidence. Thus, although the Hearing Officer can, at the end of the hearing, ask questions, he rarely does. Recent complaints to the European Ombudsman in competition cases, including in the Intel case, also suggest a growing concern of the parties about the development of adversarial administrative procedure leading to the adoption of a penalty, and in particular concerning the hearing. To strengthen the adversarial nature of proceedings, the Commission would need to reform the purpose and procedural rules of the hearing and, more broadly, the investigative phase of proceeding (including the content of the file). On this point, it seems essential that the companies under investigation have (i) the possibility to cross-examine the representative of the immunity applicant and the various individuals who made the statements (“corporate statements”) in support of the immunity application and (ii) access to the Commission’s file in as complete a form as is possible, to enable them to formulate a defence strategy.

2. The excessive emphasis on the statements of complainants and leniency applicants

The Community courts have found that company statements, especially statements submitted in support of a leniency application, are merely clues that, if challenged, should be corroborated by other evidence. [104] Faced with the difficulty of collecting evidence and resource austerity, the Commission may, however, be tempted to rely largely or almost exclusively on the statements of complainants, leniency applicants or other parties involved.

2.1. Risks and probative value that company declarations may present

In the Vitamins case, the Commission became aware of the risk contained in statements of the parties to the proceedings, noting that the latter must “be treated with some caution, particularly if they seek to put a gloss on the events related which is favourable to themselves, for example by diminishing their role in the violation.” [105] Conversely, in the Cartonboard case, the Commission considered that the fact that the statements of the company Stora went against its own interests which made them very credible. [106] The General Court considered, pragmatically, that “statements made in the context of the leniency policy play an important role. Those statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks.” [107] The judgment of JFE Engineering, provides an analytical framework for determining the probative value of statements, which depends on whether (i) the statements were made by a representative of a company or individual, (ii) the declarant was required to act in the interests of the company, (iii) the declarant was a direct witness to the anticompetitive facts, (iv) the statement was made deliberately and after careful consideration, (v) the declarant confirms his statements throughout the investigation process, and (vi) the statement is against the interests of the declarant or his company. The General Court also observed that “an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.” [108] Thus, in case T-384/06 (corporate IBP and International Building Products France against the decision of the Commission in Raccords), the General Court considered that in the absence of such additional evidence, evidence of the allegedly anticompetitive business contacts of IBP group and the association that managed the cartel’s communications were deemed insufficient. Proof of the content of telephone conversations could not be established and therefore this evidence could not prove an anticompetitive purpose. [109] The risk of false statements or approximations are, in our opinion, reinforced by the absence of any statutory provision designed to ensure the reliability of evidence. In particular, complainants are not subject to any penalty - other than the dismissal of their complaint - in respect of the evidence they voluntarily submit to the Commission. With regard to leniency applicants, the General Courts stated that a declarant who attempted to hide all or part of the offense would run a serious risk “of having helped the Commission to established that he committed an infringement, but without being granted any substantial reduction of his fine for having cooperated.” [110] In addition, although the company that is subject to a complaint can challenge the complainant’s statement in his own statements or in its response to the statement of objections, there is no means by which the targeted company can subject a complainant or a leniency applicant to cross-examination. [111] The possibility of orally challenging a complainant or statement of objections is actually limited to one hearing, which does not seem satisfactory since, at this stage of the proceedings, the statement of objections has already been formulated and notified to the implicated parties.

2.2. No penalties for false statements or perjury

In competition law, there is no possibility of a sworn affidavit, [112] with the formalism and the sanctions that accompany criminal law. [113] In addition, there is no penalty for false statements filed with the Commission or made during the oral hearing. Every party is free to draw its own conclusions, without control or analysis of the quality and probative value of the evidence presented. [114] Regulation No. 1/2003 provides for fines if false information is provided in connection with the Commission’s investigations and inquiries, [115] but the risk of fines does not apply to statements made outside of these contexts. [116] Moreover, even though the maximum amount of fine was recently increased to 1% of the company’s annual turnover, the individual declarant himself faces no exposure to sanctions. [117] The only sanction available to the Commission to penalise the provision of false statements or false evidence seems to be the denial of corporate leniency on the grounds that the applicant, after discovery of a false statement, has not fulfilled the conditions eligibility for leniency, and particularly condition that requires the company to “not destro[y], falsif[y], or concea[l] relevant information or evidence relating to the alleged cartel.” [118] In France, at the national level, it is important to mention, as it was cited in the LPG conditioning case, that the Authority held that the “transmission, by Shell and Butagaz, parts of which the authenticity was denied by the findings of the expert, and given findings that the materiality is not disputed by the two companies, has severely disrupted the investigation of the case (...)" [119] on one hand, and violated “obligations to cooperate fully and fairly faced by all applicants for leniency," [120] on the other. Confronted for the first time with a case where the authenticity of certain documents produced in support of the leniency application was challenged, the Authority wanted to stand firm by stating (i) that it would assign a General Reporter to assess the advisability of applying the provisions of Article L. 464-2 of the Commercial Code which empowers the Authority to impose a fine of up to 1% of the global sales of any company obstructing the investigation or trial, [121] and (ii) that the case be forwarded to the Chairman of the Authority "so that he could decide what action to take under criminal law." [122]

2.3. Desirable developments for the prevention of false statements: the introduction of criminal penalties for false statements

According to a member of the Legal Service of the Commission, the question concerning whether the fact that third parties to proceedings (not subject to inspection) do not risk of penalties for their statements may encourage them to provide inaccurate information, remains open. [123] In the event that the statements were obtained under Article 19 of Regulation No. 1/2003, it is permissible to consider the possibility that criminal sanctions be imposed by a national court in the event of giving a false testimony. Within the European Competition Network, when officials of a national competition authority assist Commission officials in connection with an inspection, they do so at the request of the competition authority of the Member State concerned. In these circumstances it is reasonable to think that the national law of the Member State, particularly concerning penalties for providing false testimony and statements, may apply. Regarding the possibility of the Commission directly imposing sanctions on leniency applicants, complainants or third parties for submitting false statements, the European Union’s lack of competence in criminal matters excludes a priori the possibility of penalising individuals who provide false statements. It seems quite possible that the companies on whose behalf such statements could be subject to a fine for providing incorrect or misleading information. However, such a possibility would require an amendment to Article 23 of Regulation No. 1/2003 because in its the current form, it only provides for penalties in cases where someone provides incorrect or misleading information in response to a request for information, or during an inspection.

3. Shortcomings of the judicial review of evidence and competition authorities’ analysis of evidence

3.1. A careful control theory

Article 31 of Regulation No. 1/2003 states that “the Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment.” The concept of unlimited jurisdiction refers to the power to annul in all respects, on matters of fact and law, the decision of the lower body, [124] which in this case is the Commission. The General Court thus has jurisdiction to consider all questions of fact and law brought before it. [125] In particular, it is required to carefully consider the probative value of the evidence put forward by the Commission to establish both the facts showing collusion, as well as the participation of the applicant. [126] Some commentators and practitioners, however, regret the apparent deference accorded by the Community courts to the Commission and its tendency to base its analysis, using evidentiary presumptions, on spurious evidence to find that the competition rules were infringed. [127] This deference seems even less justified because the fundamental difference between the enforcement proceedings of cartels and merger control is that a higher standard of proof is required for cartels. First, the prosecution procedures are quasi-criminal because of the severity of the fines that may be imposed. Second, while the Community courts have explicitly recognized that the Commission has some discretion with respect to the appraisal of the consequences of a merger, the intensive retrospective factual nature of the anti-competitive practices does not justify the recognition of such a margin of discretion. [128] The problem is different with the ECJ’s review of decisions of the General Court. Again, a review of case law shows that the ECJ is restrained in exercising control over the lower court’s gathering of evidence. This likely reflects the ECJ’s objective not to replace the lower court’s assessment of evidence with its own, as well as the ECJ’s desire to limit its scope to questions of law. The ECJ has no jurisdiction to review the facts and examine the evidence which the General Court used to support findings of fact. [129] 3.2. Control in practice limited

If the Community courts have powers of investigation and inquiry - including the important opportunity of holding hearings, we note with regret that it rarely utilises its investigative instruments. In doing so, the Community courts therefore generally rely on pleadings, which are mainly comprised of a motion to quash, responses and the Commission’s records. The Rules of Procedure provide, however, that "[i]n reply or rejoinder a party may offer further evidence” subject to providing reasons “for the delay in offering it.” [130] With more particular regard to the power to conduct evidentiary hearings or summon expert testimony, [131] the analysis of Community case law demonstrates that it is up to the judge to interpret the conditions under which that power may be exercised. Thus in the Baustahlgewebe case, [132] the General Court dismissed the applicant’s belated request for the examination of a witnesses, which was presented in its reply. The ECJ affirmed the General Court’s decision [133] and said that even when an application for hearing of witnesses is made in the application, indicting precisely the facts on which it is appropriate to hear the witness or witnesses and the natural reasons justifying their testimony, it is for the court to ultimately assess the relevance of such a request in relation to the subject matter and the need to proceed with hearing the witness testimony. [134] In Dansk Rørindustri, the ECJ once again endorsed the General Court’s refusal to conduct a hearing on the grounds that “the request that the six persons concerned be examined did not indicate precisely the facts in respect of which those persons should be heard as witnesses.” [135] Finally, in the Clearstream decision, the Court found that it could “rule on the basis of the pleas in law and the arguments presented in the course of both the written and oral procedure” without having to grant the request for a hearing of a witness presented by the applicants. [136] Cases in which the Community courts have taken the opportunity to hear witnesses are, to our knowledge, ultimately limited in number. [137] Besides the examination of witnesses, there have been instances where the Community courts ordered other types of investigations. Thus, in the series of decisions concerning the production of beams, the ECJ took instructive measures in relation to requests for document production and the transmission of written questions to the parties. [138] The Community courts may also use expert reports. This was indeed the case in Wood Pulp where the Court made use of two expert reports to determine whether the Commission’s analysis as to the explanation of parallel conduct (resulting, according to the Commission, in collusion among producers of wood pulp) was correct. [139] These expert reports allowed the Court to conclude that “the normal operation of the market [was] a more plausible explanation for the uniformity of prices than concertation” and thus annul the Commission’s decision. It appears that the Community courts very rarely agree to undertake such investigations.

3.2. Desirable changes towards strengthening of judicial review Strengthening the Community courts’ judicial review of the Commission’s analysis and the evidence on which it relies seems to be both necessary and possible in our view. This may be done via a more systematic use of investigative measures expressly provided for in the existing procedural rules (e.g., expert reports, witness statements).

Conclusion

The current situation is not entirely satisfactory, and the Commission could take advantage of its current reflections on procedures used in competition law cases to make certain amendments so as to strengthen the quality of evidence used in the procedures of cartels. In particular to ensure a more systematic use of testimonial evidence that is consistent with rights of defence of the companies under investigation. This would ensure a balance between the Commission’s mission and powers in respect of public enforcement and the rights of businesses prosecuted, to prevent “hunting cartels” from becoming more like “witch hunts.” [140] It seems in this context that the recommendations suggested in this article could help achieve this goal, or at least go some way towards attaining this objective.

Footnotes

[1] This article will not discuss the reversal of the burden of proof under Article 101(3) TFEU, by which certain practices can be justified by economic efficiencies, or the burden of proof in merger control proceedings.

[2] Council Regulation 1/2003 of 16 December 2002 on the implementation of rules on competition laid down in Articles 81 and 82 of the Treaty (EC) (hereafter “Regulation No. 1/2003”), Recital, para. 25. On this point, see also the conclusions presented on September 12, 2006 by Advocate General ML A. Geelhoed in Case C-411/04 Salzgitter Mannesmann GmbH v. Commission, para. 52: The production of evidence in competition cases is characterised by special problems, which were recently summarised again by the Court of Justice in the Aalborg-Portland judgment: • it is normal for activities connected with anti-competitive practices and agreements to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum; • even the few documents evidencing unlawful contact between traders will normally be only fragmentary and sparse; • in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

[3] Nathalie Jalabert-Doury, Oral statements in antitrust law procedure, CONCURRENCES No. 2-2005, §3, p. 41.

[4] Case C-185/95P Baustahlgewebe v. Commission, 1998, E.C.R. I-5417, para. 58; Case C-49/92P Commission v. Anic, 1999, E.C.R. I-4125, para. 86. See also Regulation No. 1/2003, Article 2: “In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringement of Article 81(1) or of Article 82 of the Treaty shall rest on the party or the authority alleging the infringement….” This principle is also stated in Recital 5 of Regulation No. 1/2003.

[5] Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para. 173 (citations omitted).

[6] Autorité, etude thématique du rapport annuel 2006 [Authority, Annual Report 2006, Thematic Study], La prevue des accords de volontés constitutifs d’entente, p.78.

[7] Case C-235/92 Montecatini v. Commission, 1999, E.C.R. I-4539, para. 176; Case T-279/02 Degussa v. Commission, 2006, E.C.R. II-897 para. 115; Case T-113/07 Toshiba v. Commission 2011, 5 C.M.L.R. 20, at para. 79. The principle of the presumption of innocence is also guaranteed by Article 48(1) of the Charter of Fundamental Rights of the European Union.

[8] According to the Commission, nearly 75% of cartel cases handled by it are the result of a leniency application. See Commission Report on Competition Policy 2009, para. 100.

[9] Jalabert-Doury, supra note 3, p. 43, para. 3.

[10] Regulation No. 1/2003, Recital 5. On this point see also Laurence Idot, Droit communautaire de la concurrence – Le nouveau système communautaire de mise en œurve des articles 81 et 82 EC, BRUYLANT, (2004) p. 20, para. 22, footnote on page 74.

[11] Rapport de M. Bargue, conseiller rapporteur, Cour de cassation [Cass.] [Report of M. Bargue, Rapporteur, in the supreme court for judicial matters], Philips France, Sony France, Références aux arrêt CEDH July 12,1988 Schenk c / Switzerland, Series A, No. 140, March 25, 1999, Pelissier and Sassi c / France.

[12] Avis de l’avocat général Cécile Petit sous l’arrêt Cour de cassation [Cass.] [Opinion of Advocate General Cécile Petit in the supreme court for judicial matters], 7 Jan. 2011 Philips France et Sony France, available at: https://listes.cru.fr/sympa/d_read/....

[13] Id., p. 20

[14] Jalabert-Doury, supra note 3, at p. 43, para. 16.

[15] Case T-1/89 Rhone-Poulenc v. Commission (Opinion of Advocate General Vesterdorf of 10 Jul.1991) (“Considerable importance must be attached to the fact that competition cases of this kind [cartels] are in reality of a penal nature, which naturally suggests that a high standard of proof is required”).

[16] Case C-411/04 Salzgitter Mannesmann GmbH v. Commission, 2007, 4 C.M.L.R. 682, para. 45.

[17] Case T-1/89 Rhone-Poulenc v. Commission (Opinion of Advocate General Vesterdorf of 10 July 1991); Case T-25/95 etc. Cimenteries CBR Cement SA v. Commission, 2000, E.C.R. II-491, para.1053; Case T-3/89, Atochem v. Commission, 1991, E.C.R. II-1177, paras. 31-38; Case T-157/94, Empresa Nacional Siderúrgica (Ensidesa), 1999, E.C.R. II-707, para. 312.

[18] Case C-407/04 P, Dalmine v. Commission, 2007, para. 63.

[19] Id., para. 47.

[20] Cour de cassation [supreme court for judicial matters] decision no. 587 of Jan. 7, 2011 pourvois n° 09-14.316 et 09-14.667, Philips France et Sony France c. Ministre de l’Économie.

[21] Case IV/33.384 Nederlandse Vereniging voor de Federatieve Groothandel op Elektrotechnische gebied und Technische Unie (26 October 1999), para. 32.

[22] Anne-Lise Sibony, Eric Barbier de La Serre, Charge de la preuve et théorie du contrôle en droit communautaire de la concurrence: pour un changement de perspective, RTDE, Apr.-Jun, 2007, para. 28, p. 226.

[23] Id., para. 29, p. 227.

[24] Case C-12/03P, Commission v. Tetra Laval, 2005, E.C.R. I-897, paras. 37, 41 & 61; Joined Cases C-403 & 405/04 P Sumitomo Metal Industries v. Commission, 2007, 4 C.M.L.R 650; Case C-413/06 P Bertelsmann AG and Sony v. Impala, 2008, E.C.R. I-4951; Case C-501/06 P etc. GlaxoSmithKline Services v. Commission, 2009.

[25] Eric Gippini-Fournier, The Elusive Standard of Proof in EU Competition Cases, (14th Annual EU Competition Law and Policy Workshop, June 19-20 2009) p.5, available at http://papers.ssrn.com/sol3/papers.....

[26] See especially Case C-49/92P Commission v. Anic, 1999, E.C.R. I-4125.

[27] Organisation of Economic Cooperation and Development [OECD], Policy Roundtable: Judicial Enforcement of Competition Law, at p. 105 (1996) (contribution of Sir Christopher Bellamy) available at www.oecd.org/dataoecd/34/41/....

[28] Id., at p. 106.

[29] Among a significant body of literature see especially the Authority’s Thematic Study, Objet, effet et intention anticoncurrentiels in its Rapport Annuel 2003 [Annual Report], at pp. 55-78. See also Laurence Idot Notion of Anticompetitive Object/Effect…, CONCURRENCES No.4-2009, pp. 1-2.

[30] James S. Venit, Human All Too Human: The Gathering and assessment of evidence and the Appropriate Standard of Proof and Judicial Review in Commission Proceedings Applying Articles 81 and 82, p. 61, available at http://www.eui.eu/Documents/RSCAS/R.... reprinted in EUROPEAN COMPETITION LAW ANNUAL 2009: EVALUATION OF EVIDENCE AND JUDICIAL REVIEW IN COMPETITION CASES (Claus-Dieter Ehlermann & Mel Marquis (eds.)) (2010).

[31] Case T-38/02 Groupe Danone v. Commission, 2005, E.C.R. II-4407, para. 217; Case T-62/98 Volkswagen AG v. Commission, 2000, E.C.R. II-2707, paras. 43 and 72.

[32] OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, at p.114 (contribution of the Commission), available at http://www.oecd.org/dataoecd/19/49/....

[33] Joined Cases 29 and 30/83 CRAM & Rheinzink GmbH v. Commission,1984, E.C.R.1679, para. 19.

[34] Id.at para. 21.

[35] Case T-53/03 BPB plc. v. Commission, 2008, E.C.R. II-1333, para. 63.

[36] OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at p. 114.

[37] Case T-25/95 etc. Cimenteries CBR Cement SA v. Commission, 2000, E.C.R. II-491, para. 1838.

[38] In this regard, it is worth reiterating that the only Commission decision finding an infringement based solely on circumstantial evidence (i.e., economic evidence) was annulled by the European Court of Justice. Case C-89/95 Ahlström Osakeyhtiö e.a v. Commission (Wood Pulp),1993, E.C.R I-1037. On this point, see also OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at p. 116 & p. 30 (footnote).

[39] OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at p. 114.

[40] Id.

[41] Marie-Chantal Boutard Labarde & Guy Canivet (et al) L’application en France du droit des pratiques anticoncurrentielles, LGDJ, 2008, p. 86 para. 82.

[42] OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at 119 (contribution of France); Case T-53/03 BPB plc. v. Commission, 2008, ECR II-1333, para. 63. (“It is normal, in the context of anti-competitive practices and agreements, for the activities to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be kept to a minimum.”). On this point, see also the recent remarks of Authority President Bruno Lasserre: On saisissait encore il y a quelques années des carnets de moleskine dans lesquels étaient notés les rendez-vous avec les concurrents (…). Je pense qu’on n’arriverait plus aujourd’hui à réunir ces preuves. Les entreprises vont jusqu’à commander des pseudo-audits pour simuler des descentes d’inspecteurs de la concurrence afin de faire disparaître les éléments de preuve, notamment dans les messageries électroniques. Nos outils de perquisitions informatiques ne nous permettent pas toujours de rivaliser avec leur inventivité. [“We also seized a few years ago a moleskine notebook in which meetings with competitors were recorded…. I think that would not happen today in the gathering of evidence. Companies will order pseudo-audits to simulate competition inspections and remove the evidence, particularly electronic mail. Our tools for computer searches do not always allow us to compete with their inventiveness. (Translation by the authors)]. The original text of this interview is available at: http://www.liberation.fr/economie/0....

[43] Valerie Fauré, ibid., § 579, p. 378.

[44] Case 48/69 ICI v. Commission, 1972, E.C.R. 619, paras. 64-68; Joined Cases 29 and 30/83 CRAM & Rheinzink GmbH v. Commission,1984, E.C.R.1679, paras. 16-20, Case C-89/95 Ahlström Osakeyhtiö e.a v. Commission (Wood Pulp),1993, ECR I-1037, para. ,71.

[45] Case C-89/95 Ahlström Osakeyhtiö e.a v. Commission (Wood Pulp),1993, ECR I-1037, para. ,31: By order of 25 November 1988 the Court decided to obtain an expert’ s report on parallelism of prices. The experts charged with drawing it up were appointed by order of 16 March 1989. They were asked whether the documents used by the Commission in drawing up Tables 6 and 7 annexed to the decision justified the conclusion as to parallelism of announced prices and transaction prices.

[46] OECD, Policy Roundtable: Prosecuting Cartels Without Direct Evidence, supra note 32, at 120 (contribution of France).

[47] Autorité, décision n° 08-D-12 du 21 mai 2008 relative à des pratiques mises en oeuvre dans le secteur de la production du contreplaqué, § 145.(Authority, Decision No. 08-D-12, 21 May 21 2008 relative to practices implemented in the production of plywood, para. 145.)

[48] Case T-113/07 Toshiba v. Commission, 2011, 5 C.M.L.R. 20.

[49] Id., para. 122.

[50] Id.

[51] Id. para. 127.

[52] Marie-Chantal Boutard Labarde & Guy Canivet, supra note 41 at 87, § 83.

[53] Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para.180.

[54] Jalabert-Doury, supra note 3, at §1 p. 41.

[55] Case C-411/04 Salzgitter Mannesmann GmbH v. Commission, 2007, 4 C.M.L.R. 682, at para. 42.

[56] Case C-411/04 Salzgitter Mannesmann GmbH v. Commission (Opinion of Advocate General Geelhoed, 12 Sept. 2006), para. 55.

[57] Id., para. 56.

[58] The rules applicable to the Commission’s power to take statements are set forth in Commission Regulation 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the Treaty (EC) (hereafter “Regulation No. 773/2004”).

[59] When the Commission receives explanations concerning facts or documents relating to the subject matter of an inspection, it does so on the basis of Article 20(2)(e) of Regulation No. 1/2003, which provides that the Commission staff may “ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers.”

[60] Regulation No. 1/2003, Article 19: Power to take statements 1. In order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of an investigation. 2. Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Commission shall inform the competition authority of the Member State in whose territory the interview takes place. If so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.

[61] Eric Gippini-Fournier, The Modernisation of European Competition Law: First Experiences with Regulation 1/2003, p.58 (Report to FIDE Congress 2008), available at http://papers.ssrn.com/sol3/papers....

[62] In its contribution, the International Chamber of Commerce noted that it would be desirable for the Commission to inform individuals sought to be interviewed of their rights, including the right not to respond. The lack of clarity and rules governing the Commission’s power to take statements was also mentioned in other contributions. Some respondents suggested that individuals the Commission seeks to interview should be assisted by a lawyer and should be informed of the legal basis and purpose of the interview. The Permanent Representation of France to the European Union, meanwhile, suggested that the copy of the statement recording the interview not only be made available to the person interviewed, but actively provided to him. On this point see also Idot, supra note 29, p. 99 para. 207.

[63] Regulation No 773/2004, Art. 3(3) (“The Commission may record the statements made by the persons interviewed in any form.”)

[64] Id., Art. 17(3) (“The time-limits referred to in Article 3(3)… shall be at least two weeks.”).

[65] MARIO SIRAGUSA & CESARE RIZZA, EU COMPETITION LAW: CARTELS AND HORIZONTAL AGREEMENTS AND PRACTICES BETWEEN COMPETITORS , p. 176, para. 2.161 (2007).

[66] Case 1935/2008/FOR (Intel), Decision of the European Ombudsman of 14 Jul. 2009, para. 90.

[67] Regulation No. 1/2003 Art. 19(1). (“In order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of an investigation.”)

[68] Case 1935/2008/FOR (Intel), Decision of the European Ombudsman of14 Jul. 2009, para. 90. On this point, see also the observations submitted by the law firm Van Bael & Bellis LLP titled DG Competition’s Best Practices on the conduct of proceedings concerning Articles 101 and 102 TFEU, p.5, para. 13, available at http://ec.europa.eu/competition/con....

[69] Commission Notice on Immunity from fines and reduction of fines in Cartel Cases, OJ 2006 C298/17 (hereafter “Leniency Notice”), para. 25.

[70] Id., para. 12(a)(1), (4).

[71] Id., para. 30(2).

[72] Eric Gippini-Fournier, The Modernisation of European Competition Law: First Experiences with Regulation 1/2003, supra note 61, at p.58

[73] Autorité, décision 10-D-36 du 17 décembre 2010 relative à des pratiques mises en oeuvre dans le secteur du gaz de pétrole liquéfié (GPL) conditionné, § 16. (Authority Decision 10-D-36, 17 Dec. 2010 relative to practices implemented in the field of liquefied petroleum gas (LPG) conditioning, para. 16.)

[74] Commission Guidance on Procedures of the Hearing Officers in Proceedings Relating to Articles 101 and 102 TFEU (ex- articles 81 and 82 EC), para. 38.

[75] Serge Durande & Karen Williams, The practical impact of the exercise of the right to be heard, COMPETITION POLICY NEWSLETTER No. 2 2005, p. 26; Donald Slater, Sébastien Thomas & Denis Waelbroeck, Competition law proceedings before the European Commission and the right to a fair trial: no need for reform?, GCLC working paper 04/08, p. 37-38, available at http://www.coleurope.eu/content/gcl....

[76] See especially Joaquín Almunia, Vice President of the European Commission Responsible for Competition Policy, address at Competition Day held in Budapest, Hungary: “Fair process in EU competition enforcement” (30 May 30 2011) given 30 May 2011 available at http://europa.eu/rapid/pressRelease....

[77] Wouter P .J. Wils, The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis, WORLD COMPETITION: LAW AND ECONOMICS REVIEW Vol. 27 No. 2 (2004), pp. 202-224 available at http://papers.ssrn.com/sol3/papers...., pp. 15-19 See also Venit, supra note 30, at pp. 11-13.

[78] Wils, supra note 77 at 216.

[79] Venit, supra note 30, p. 12 & 28 (footnote).

[80] Bruno Lasserre, The new Competition Authority, CONCURRENCES N ° 1-2009, p. 2.

[81] Regulation No. 773/2004, Article 10(3).

[82] Case 103/80 Musique French Diffusion v. Commission (Opinion of Advocate General Sir Gordon Slynn, 8 Feb. 1983), p.17.

[83] SIRAGUSA & RIZZA, supra note 65, p.221 para. 2.263.. See especially COMP/38.240 Industrial Copper Tubes 16 Dec. 2003, para. 74; COMP/37.857 Organic Peroxide, 10 Dec. 2003, para. 78 [2005] 5 C.M.L.R. 579; COMP/37.370 Sorbates, 2 Oct. 2003, para. 21[2005] 5 C.M.L.R. 2054; COMP/37.519 Methionine, 2 July 2002, para. 59, [2004] C.M.L.R.1062; COMP/38.281 Italian Raw Tobacco, 20 Oct. 2005, para. 25, [2006] 4 C.M.L.R. 1766.

[84] SIRAGUSA & RIZZA, supra note 65, p.222 para. 2.263.

[85] [[Regulation No. 773/2004, Art. 10(3) (“[The parties] may propose that the Commission hear persons who may corroborate the facts set out in their submission.”); and Regulation No. 1/2003, Art, 27(3) (“If the Commission considers it necessary, it may also hear other natural or legal persons. Applications to be heard on the part of such person shall, where they show a sufficient interest, be granted.”)

[86] Joined Cases 43 & 63/82, VBVB and VBBB v. Commission, 1984, E.C.R. 19, para. 18; Case T-9/99R HFB Holding v. Commission, 2002, E.C.R. II-1487 , para.383.

[87] Case 9/83 Eisen und Metall Aktiengesellschaft v. Commission, 1984, E.C.R. 2071, para. 32; Case T-9/99R HFB Holding v. Commission, 2002, E.C.R. II-1487 , para.383.

[88] Autorité, décision 10-D-36 du 17 décembre 2010 relative à des pratiques mises en oeuvre dans le secteur du gaz de pétrole liquéfié (GPL) conditionné, § 13. (Authority Decision 10-D-36, 17 Dec. 2010 relative to practices implemented in the field of liquefied petroleum gas (LPG) conditioning, para. 13.)

[89] Id., para. 17.

[90] Id.

[91] Regulation No. 773/2004, Art. 14(7).

[92] SIRAGUSA & RIZZA, supra note 65, p. 230, para. 2.285.

[93] Regulation No. 1/2003, Art. 27(2); Regulation No. 773/2004, Art. 15(2); Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (2005) (hereafter “Commission Notice on Access to the File”), para. 10.

[94] Jalabert-Doury, supra note 3, at p.45, para. 31.

[95] Venit, supra note 30, at p.24.

[96] Id., p. 23.

[97] COMP/31.906 Flat Glass , 7 Dec. 1988, p. 44, 1990, 4 C.M.L.R. 535.

[98] Case T-68/89 etc. Società Italiana Vetro SpA, Fabbrica Pisana SpA and PPG Vernante Pennitalia SpA v. Commission, 1992, E.C.R. II-1403.

[99] Id.

[100] Commission Notice on Access to the File, supra note 93, Recital 13.

[101] Case T-191/98 Atlantic Container Line v. Commission (TACA), 2003, E.C.R. II-3275, para. 351.

[102] Venit, supra note 30, p.26.

[103] Id., p.40.

[104] Case T-67/00 JFE Engineering v. Commission, 2004, para. 219, E.C.R. II-2501.

[105] COMP/37.512 Vitamins, 21 Nov. 2001, para. 538, 2003, 4 C.M.L.R. 1030.

[106] COMP/33.833 Cartonboard, 13 Jul. 1994, para. 111, 1994, 5 C.M.L.R. 547.

[107] Case T-384/06, IBP Ltd. and International Building Products France v. Commission, 2011, para. 69. For a review of that decision, see especially Pascal Cardonnel, Procedural rights: The European Commission adopts three texts to strengthen the procedural rights of the parties, CONCURRENCES, N° 4-2011, p. 185 at 186.

[108] Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para. 219. For a recent restatement of this principle, see especially Case T-384/06, IBP Ltd. and International Building Products France v. Commission, 2011, para. 69.

[109] Case T-384/06, IBP Ltd. and International Building Products France v. Commission, 2011, para. 69.

[110] Case T-67/00 JFE Engineering v. Commission, 2004, E.C.R. II-2501, para. 214.

[111] Venit, supra note 30, at p.26.; Jürgen Schwarze, Rainer Bechtold & Wolfgang Bosch, Deficiencies in European Community Competition Law – Critical Analysis of the current practice and proposals for change, p. 54, available at http://ec.europa.eu/competition/con....

[112] Case T-9/99R HFB Holding v. Commission, 2002, E.C.R. II-1487, para. 392. (“Although the Commission may hear natural or legal person where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement.”)

[113] Jalabert-Doury, supra note 3, p.44, para. 26.

[114] Venit, supra note 30, at p.39.

[115] Regulation No. 1/2003, Arts. 17, 18 & 20.

[116] Jalabert-Doury, supra note 3, at p. 44, para. 26.

[117] Id. at p. 44, para. 26.

[118] Leniency Notice para. 12(a)(4) & 30(2).

[119] Autorité, décision n° 10-D-36, § 22. (Authority Decision No. 10-D-36, para. 22.)

[120] Id.

[121] Id., para. 23.

[122] Id., para. 24.

[123] Eric Gippini-Fournier, The Modernisation of European Competition Law: First Experiences with Regulation 1/2003, supra note 61, at p.58.

[124] Case C-272/09 KME Germany v. Commission (Opinion of Advocate General Sharpston 10 Feb. 2011), para. 69.

[125] Id.

[126] Case C-291/98P Sarrió v. Commission (Opinion of Advocate General Mischo of 18 May 2000), para. 38.

[127] John Ratliff, Judicial review in EC Competition cases before the European courts: – avoiding double renvoi, (Fiesole 2009) available at: http://www.wilmerhale.com/files/Pub....

[128] Venit, supra note 30, at pp.63-64.

[129] Fauré, supra note 43, p. 383 para. 587.

[130] Rules of Procedure of the General Court (2 July 2010) Art. 48(1).

[131] Id. Arts. 68-76.

[132] Case T-145/89, Baustahlgewebe GmbH v. Commission, 1995, E.C.R. II-867.

[133] Id., para. 75.

[134] Case C-185/95 P Baustahlgewebe GmbH v. Commission, 1998, E.C.R. I-8417, para. 70.

[135] [[Case C-189/02 P Dansk Rørindustri ea v. Commission [2005], E.C.R. I-5425, para. 60.

[136] Case T-301/04 Clearstream Banking and Clearstream International SA v. Commission, 2009, [2009] C.M.L.R. 2677, para. 217.

[137] Joined Cases C-100 to 103/80, SA Musique Diffusion French ea v. Commission, 1983, E.C.R. 1825, para. 50; Case C-199/99 P, Corus UK Ltd v. Commission, 2003, para. 32.

[138] Case C-196/99 Aristrain v. Commission, 2003, E.C.R. I-1105, para. 174; Case C-196/9, Krupp Hoesch Stahl AG v. Commission, 2003, para. 129; Thyssen Stahl AG v. Commission, 2003, para. 162

[139] Case C-89/85, Ahlström Osakeyhtiö v. Commission (Wood Pulp) (1993), para 31 (“By order of 25 November 1988 the Court decided to obtain an expert’ s report on parallelism of prices. The experts charged with drawing it up were appointed by order of 16 March 1989. They were asked whether the documents used by the Commission in drawing up Tables 6 and 7 annexed to the decision justified the conclusion as to parallelism of announced prices and transaction prices.”)

[140] Fauré, supra note 43 at 426, para. 624.

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