Introduction
Facts
Decision
Comment

Introduction

A recently published Supreme Administrative Court decision found that a telephone conversation between two individuals (the manager of a producer and a representative of its distributor) was legitimate evidence in administrative proceedings. The decision confirmed the Brno Regional Court ruling, which upheld the original decision of the Office for the Protection of Competition (CCA).

Facts

In its May 11 2009 judgment,(1) the CCA imposed a fine of Kr2,316,000 (€85,800) on a producer of outdoor equipment for resale price maintenance. On appeal, the CCA's chair confirmed the decision. The appeal decision was subsequently upheld by the Brno Regional Court.(2) The producer then challenged the regional court's decision and submitted the cassation to the Supreme Administrative Court.

The producer held that the evidence collected (ie, a recorded telephone conversation between its manager and one of its distributors) was illegally obtained, without authorisation from the producer, the CCA or any other respective state authority.

Decision

The Supreme Administrative Court first highlighted that while the principles for administrative proceedings are drawn from the rules for criminal proceedings. However, these cannot apply without limitation. The rules for criminal proceedings can be applied by anology only in cases where:

  • the respective rules are missing from the administrative law;
  • such interpretation does not negatively affect the parties to the proceedings; and
  • there is no negative impact on public interest.

Business conversations lack private character
In line with other case law, the court stated that a conversation between two individuals as a part of commercial or public activity does not fall within the scope of personal acts. In this case, the dialogue:

  • happened within the context of a producer-distributor relationship; and
  • focused on the sale and consumption of the goods in question.

Therefore, this dialogue lacked any private character, and its recording did not breach the producer's fundamental right to personal data protection.

Recordings made by individuals and public authorities
The court also pointed out that recordings provided by private individuals and those recorded by authorities must be strictly distinguished. Further, audiovisual evidence collected secretly by authorities is largely inadmissible.(3) On the contrary, video evidence taken by individuals (eg, journalists) to support the credibility of published media (articles, television and reports) is largely admissible.(4)

In the case at hand, the representative of the distributor made the recording of his own volition. There was no evidence that the CCA authorised or encouraged him to do so. Thus, the court concluded that the recording had not been made by the CCA (ie, a public authority) during its investigation of the producer, but rather by a private individual. Therefore, the CCA was allowed to submit the recording as evidence.

The court also highlighted that the recorded conversation could still be submitted as evidence, despite the fact that it was made before the administrative proceedings had begun. This is because the rules of criminal procedure are not always applied in the case of individual-to-individual recordings. Thus, the provider of such recordings is not obliged to follow strict criminal procedure rules when submitting the recordings as evidence.

Permission of recorded person
The court stated that in administrative proceedings, audio recordings made by individuals without the permission of all participants in the conversation cannot be entirely excluded.

The decision to allow the recordings as evidence will always depend on the individual character of the recordings and possible breaches of fundamental human rights against individual integrity and privacy. However, recording a routine commercial activity is not a breach of fundamental rights.

Secondary evidence
Finally, the court added that the main evidence of the resale price maintenance was the email communications between the producer and its customers. The recording in question served only as supporting evidence. Moreover, the court confirmed that while obtaining the recording:

  • the distributor did not engage in anti-competitive behaviour;
  • the information obtained was used for no other purpose but the protection of competition; and
  • the recording was not made public and therefore could not harm the producer.

Comment

It is hoped that this judgment will help companies abused by competitors to persuade the CCA that anti-competitive behaviour has taken place. However, every recording will be subject to different rules about how it can be used as evidence in administrative proceedings; this will always depend on the conditions of the particular case and the nature of the specific administrative proceedings.

For further information on this topic please contact Jitka Linhartová at Schoenherr by telephone (+420 225 996 500), fax (+420 225 996 555) or email (j.linhartova@schoenherr.eu). The Schoenherr website can be accessed at www.schoenherr.eu.

Endnotes

(1) ÚOHS-S076/2008/KD-5304/2009/820.

(2) See decision 62 Af 24/2011-159.

(3) See decision 1 Afs 60/2009-19.

(4) See decision 7 as 7/2007-63.