On 27 April 2017, the Court of Justice of the European Union (CJEU) ruled that evidence transferred by national authorities other than the Member States’ competition authorities can be used by the European Commission (EC) in competition proceedings, as long as the transmission has not been declared unlawful under national law. The CJEU also held that the General Court (GC) was right to consider that the EC was fully entitled to state that the infringement could be characterised as a restriction by object, without assessing the effects.

Background to the dispute

The appellants – FSL Holdings NV, Firma Léon Van Parys NV and Pacific Fruit Company Italy SpA – import, market and sell bananas in Europe. On 12 October 2011, the EC adopted a decision whereby it found that appellants had infringed the cartel prohibition by participating in a price-fixing cartel. The appellants were ordered to pay, jointly and severally, a fine of EUR 8,919,000. In the judgment under appeal, the GC reduced the fine to EUR 6,689,000 due to the fact that the cartel was interrupted between 12 August 2004 and 19 January 2005.

Ruling Court of Justice

The appellants were, amongst others, of the opinion that the use of evidence by the EC – which it had received from the Italian Customs and finance police – was unlawful. The CJEU, nevertheless, confirmed the admissibility of documents transmitted by national authorities other than the Member State’s competition authorities, as long as the transmission has not been declared unlawful under national law. The CJEU also confirmed that the rules for information exchanges in competition matters – as included in Regulation 1/2003 – do not prevent the EC from using information transmitted by national authorities other than the Member States’ competition authorities on the sole ground that the information was obtained for other purposes. As regards the appellants’ argument that the use of the documents for purposes other than those for which they were obtained could compromise the rights of the defence, the CJEU recalled that the prevailing principle in EU law is that evidence may be freely adduced and that the only relevant criterion for the purpose of assessing the evidence adduced is its credibility.

The appellants also argued that the GC infringed the concept of an agreement having an anticompetitive object by failing to take into account the economic and legal context of which the agreement at issue formed part. The CJEU held that the GC was right to consider that the EC was fully entitled to state that the infringement could be characterised as a restriction by object, without assessing the effects. In this respect, the CJEU recalled that the EC found that appellants had taken part in a price-fixing cartel and that the assessment of facts and evidence was not called into question by the GC. In respect of such agreement, which represents a serious restriction of competition, the analysis of the economic and legal context of which the practice forms part may, thus, be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object.

Since none of the grounds relied on by the appellants in support of their appeal could be upheld, the appeal was dismissed by the CJEU.