The General Court of the European Union admits the validity of illegally obtained phone records in antitrust investigations

Written on 4 Oct 2016

What was decided?

On 8 September 2016, the General Court of the European Union ruled, in the case Goldfish BV and others vs. the European Commission, that telephone recordings illegally obtained by a company and seized by the European Commission in the normal course of its investigations could be used as evidence against the defendants to an antitrust litigation.

Background

During the investigations following a leniency application, the European Commission conducted dawn raids at the premises of a convicted company and found secret telephone conversation recordings and notes referring to them.

Based on these elements of proof, among others, the European Commission issued a decision sentencing the convicted companies for price fixing. The parties then initiated an action before the General Court, whereby they challenged the legality of the recordings as evidence to establish the anti-competitive conduct.

In its decision, the General Court states that a key principle of European law is the free assessment of evidence and the only relevant criterion for assessing the weight of evidence lies with its credibility.

First, the General Court rules that the records were legally and regularly collected by the European Commission during dawn raids in the premises of a company subject to a competition investigation.

Second, the General Court considers that the use of unlawful recordings as a means of evidence does not conflict with the principles of fairness as set forth under Article 6, paragraph 1, of the European Convention on Human Rights, when (1) the applicant has not been deprived of a fair trial or of his rights of defence and when (2) that item is not the only means of evidence establishing the conviction.

Why?

The General Court seems to justify its decision by the fact that the parties were able, during the administrative procedure before the Commission, to have access and to discuss all audio recordings and related written notes, which were not, moreover, the only means of evidence used by the Commission.

The General Court is aware that in France (Cour de Cassation, 7 January 2011, n°09-14316), the providing of secret telephone conversation recordings is considered to be an illegal means of evidence. However, the General Court considers that it is not bound by the precedents of the jurisdictions of Member States which is a strong indication of the autonomy of European law, even in the case of more protective national rulings.

What’s next?

An appeal against this General Court’s judgment might be filed before the Court of Justice. Its decision will be expected in order to assess the final European ruling on this situation. It is however uncertain if those rulings would result in a change in the national rulings. At least, the national courts could consider that the local precedents deal with different situations for which a more protective regime is justified anyway. Defendants could still have some aces in their hands.