In a case of unlawful agreement on the banana market, the Court of Justice of European Union (“CJEU”) had the opportunity to rule on the admissibility of certain types of evidence and the characterization of an agreement restricting competition by object.

In this case, the parties involved agreed on their price strategy, and the European Commission sanctioned this unlawful agreement, relying on tax documents provided by the Guardia Di Finanza, the Italian customs and financial police.

The parties first claimed before the CJEU that using evidence provided by the Italian tax administration violated the rights of the defense and the substantial forms laid down in Article 12, paragraph 2, of Regulation 1/2003, according to which admissible evidence must be provided by national competition authorities to establish the alleged infringement.

The CJEU confirmed admissibility of documents transmitted by national authorities other than the competition authorities when they are considered lawful evidence under national law. The CJEU also confirmed that nothing prevents the Commission from using documents which have been obtained by national authorities other than competition authorities for other purposes, as was the case here since the documents had been collected during a tax investigation. To rule otherwise, according to the CJEU, would amount to hindering excessively the Commission’s role in its proper application of competition law.

In other words, for the CJEU, “the principle which prevails in Union law is that of the free production of evidence and the only criteria to appreciate the evidence produced resides in its credibility” (§38). This confers broad means of evidence to the Commission in the context of its competition investigations insofar as it is not limited to documents only provided by the national authorities to establish the alleged infringement but can use all the elements collected by any type of national authority, during their own investigations.

Moreover, the parties had argued before the CJEU that it had not been demonstrated validly that the infringement had for purpose or effect of restricting competition. In particular, the parties claimed that the General Court of the European Union should have justified why the infringement included a sufficient degree of harm and not merely referred to similar restrictions in previous case law decisions.

The CJEU ruled this argument unfounded and recalled the characterization criteria of an unlawful agreement restricting competition by object. Certain forms of coordination are sufficiently anticompetitive by their object without it being necessary to analyze their effects. Attention should be focused on the content of the provisions of the agreement, the purposes pursued and the economic and legal context. The Court considers that for price fixing agreements, which constitute particularly serious violations, the analysis can be limited to what is strictly necessary in order to conclude to the existence of a restriction to competition by object.

In other words, the burden of proof which lies on the Commission is reduced for cartels on prices insofar as these practices are by nature sufficiently serious to constitute a restriction to competition by object.