Case T‑54/14

Goldfish BV and Others

v

European Commission

(Competition — Agreements, decisions and concerted practices — Belgian, German, French and Dutch markets in North Sea shrimp — Decision finding an infringement of Article 101 TFEU — Price-fixing and allocation of sales volumes — Admissibility of evidence — Use of secret recordings of telephone conversations as evidence — Assessment of ability to pay — Unlimited jurisdiction)

Summary — Judgment of the General Court (Ninth Chamber), 8 September 2016

1.      Competition — Administrative procedure — Commission decision finding an infringement — Admissible evidence — Evidence lawfully gathered by the Commission having previously been obtained illegally by a third party — Lawfulness — Conditions — Compliance with the principles of a fair trial and rights of the defence

(Arts 101 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 47; Council Regulation No 1/2003, Arts 2 and 20)

2.      Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Degree of precision required of the evidence used by the Commission — Body of evidence — Evidential obligations of undertakings disputing the reality of the infringement

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 2; Commission Notice 2006/C 210/02)

3.      Competition — Administrative procedure — Commission decision finding an infringement — Principle of the free assessment of evidence — Limits — Compliance with fundamental rights and general principles of law — Action limited to rules and concepts of national law

(Art. 101 TFEU)

4.      Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary statements by the main participants in a cartel with a view to benefiting from application of the leniency notice

(Art. 101 TFEU; Commission Notice 2006/C 210/02)

5.      Competition — Fines — Amount — Determination — Criteria — No obligation to take account of the deficit situation of the undertaking concerned — Actual capacity of the undertaking to pay in a particular social and economic context — Whether to be taken into consideration — Conditions — Judicial review falling within unlimited jurisdiction

(Arts 101 TFEU and 261 TFEU; Council Regulation No 1/2003, Arts 23(2) and (3), and 31; Commission Notice 2006/C 210/02, point 35)

1.      Given that there is no legislation at EU level governing the concept of proof, any type of evidence admissible under the procedural law of the Member States in similar proceedings is in principle admissible.

Nevertheless, some evidence may be removed from the file, particularly where there exists a doubt both as to the actual nature of the contested document and as to whether the person relying on it obtained it by proper means.

It should also be noted that reviewing the lawfulness of contested evidence does not relieve the institutions of their obligation to respect the fundamental rights of the applicants. EU law cannot, in consequence, accept evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of interested persons. The use of that procedure must, therefore, be regarded as an essential procedural requirement within the meaning of Article 263(2) TFEU.

In that context, recordings of telephone conversations which were obtained by the Commission in the course of an inspection at the offices of one of the undertakings involved in a cartel contrary to EU competition rules, and which, therefore, were made not by the Commission or by any other public authority, but by a private party who participated in those conversations, and which, furthermore, were collected lawfully by the Commission constitute evidence properly obtained by the Commission and thus, in principle, admissible in the context of an investigation for breach of competition law.

Concerning the question as to whether the evidence collected lawfully by the Commission may be used by it even though it was originally obtained by a third party, possibly in an unlawful manner, for example in breach of the right to respect for the private life of the person who was the subject of the disputed recordings, the use of an illegal recording as evidence does not, in itself, conflict with the principles of fairness laid down in Article 6(1) of the European Convention of Human Rights (ECHR) and thus in Article 47 of the Charter of Fundamental Rights of the European Union, even where that evidence was obtained in breach of the requirements of Article 8 of the ECHR, equivalent to Article 7 of the Charter of Fundamental Rights, provided that, first, the applicant was not deprived of a fair trial or of his rights of the defence and, secondly, the evidence at issue was not the only proof relied on in support of the conviction.

(see paras 43-45, 47, 57-60, 62, 73, 76)

2.      See the text of the decision.

(see paras 71, 91-95, 112-114, 127)

3.      The Commission’s assessment of the evidence in competition disputes is governed by EU law. In that regard, even if the principle of the unfettered evaluation of evidence prevails, fundamental rights and the general principles of EU law must be taken into account.

In that context, it is indeed true that the EU judicature can also draw inspiration from the law of the Member States. However, that does not mean that it is bound to apply the law of the Member State with the strictest rules on the evaluation of evidence, particularly because both national legal systems and EU law are deemed to incorporate the safeguards enshrined in the ECHR.

Where no predominant trend on a legal question may be discerned in the legal systems of the Member States of the European Union, the uniform interpretation and application of the principle of the unfettered evaluation of evidence in the European Union are essential in order that inspections by the Commission in cartel proceedings may be carried out under conditions in which the undertakings concerned are treated equally. If that were not the case, the use of rules or legal concepts in national law and deriving from the legislation of a Member State would adversely affect the unity of EU law.

(see paras 77-79)

4.      See the text of the decision.

(see paras 96-100, 123, 125)

5.      See the text of the decision.

(see paras 134-148)