Document de travail IDP (EA 1384) n°2014-15 The Probatia Diabolica of Article 101 TFEU: A
Deconstruction of the Evidentiary Mechanism of Concerted Practices
Hicham Rassafi - Guibal
THEMOS – Théorie, Modèles, Système
The Probatia Diabolica of Article 101 TFEU: A Deconstruction of the Evidentiary Mechanism of Concerted
Practices
Hicham Rassafi - Guibal
Hicham Rassafi - Guibal Doctorant – ATER en droit public PRES Université Lille Nord de France, Université de Valenciennes et du Hainaut Cambrésis, IDP (EA 1384), Valenciennes, France [email protected] Remarque : cet article a été présenté au King’s College London, lors de l’édition 2014 de l’International Graduate Legal Research Conference.
THE PROBATIO DIABOLICA OF ARTICLE 101 TFEU A Deconstruction of the Evidentiary Mechanism of Concerted Practices
During the Middle Ages, and especially the Inquisitorial times, judges used to invoke surnatural pieces of evidence, the ordeals (ordalies in french). The ordeals were based on the idea according to which, an innocent defendant would be saved by God, by surnaturals ways. These pieces of evidence were called Probatio Diabolica, the Evil’s proof, because it was impossible for innocent to prove its innocence. This system is not used anymore, because of the raise of rationality. The trial is an affair of Humans, and, thus, the solution has to be discovered under the Human ways. However, some aspects of the evidentiary mechanism of concerted practices, within the meaning of article 101 TFEU, could let quite perplexed about the real use of rationality. Article 101 TFEU prohibits : « all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. »
These agreements are divided in three legal (but soft) categories : article 101 distinguishes between « agreements » « decisions by association of undertakings » and « concerted practices ». Article 101 aims to grasp all the economic situations which are able to damage trade between members states or the economic efficiency of the internal market. That is the reason why the Courts very early stated that : « In order to be prohibited as being incompatible with the Common Market under Article 85 (1) of the Treaty, an agreement between undertakings must fulfil certain conditions depending less on the legal nature of the agreement than on its effects on 'trade between Member States' and its effects on 'competition' »1 . By adopting this position, the Court had concluded that : « Thus as Article 85 (1) is based on an assessment of the effects of an agreement from two angles of economic evaluation, it cannot be interpreted as introducing any kind of advance judgment with regard to a category of agreements determined by their legal nature »2 However, the evidentiary mechanisms that lead to the qualification of one legal form of agreement differ between them. The problem raised by the concerted practices is that this agreement is not legally formal : « The concept of a 'concerted practice' refers to a form of coordination between undertakings, which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition, practical cooperation between them which leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the importance and number of the undertakings as well as the size and nature of the said market. »3
1 ECJ, 30 june 1966 , Société Technique Minière, case n°56/65, p.248 2 Id. 3 ECJ, 16 December 1975 , Suiker Unie v. Commission, joined cases n° 40 to 48, 50, 54 to 56, 111, 113 and 114/73, pt.26, p.1916
The legal criteria of a concerted practice is more economic than legal and this particular feature impacts the proof. The very substance of them cannot be but economics. So, except one element, the whole evidentiary mechanism is economic. Indeed, after having proved the concertation, the Commission bears a burden of proof constituted by a certain economic behaviour and a causal link between the two firsts elements. To prove the applicability of the European Law, the Commission has also to demonstrate that this concerted practice affects the trade between member states, which is another economic assessment4. At the opposite, when an undertaking has been found guilty of concerted practice, it could escape from imposed fines by demonstrating that the agreement is able to be exempted, under the provisions of article 101§35. During the last thirteen years, the Courts rejected the quasi-totality of proccedings against decisions of the Commission finding a concerted practice. On 214 cases, only 43 were annuled, and among them, only 2 were about the legal qualification of concerted practice. The others only annuled or reformed the fines6. A question clearly appears : how does the Commission for making the point at each time ? Is the Commission so perfect ? Why is there no more annulation of its decisions ? Does the evidentiary mechanism lighten the burden of proof supported by it ? Even more, how does the uncertainty of economic evidence comply with the feeling of certainty needed by the judge, when judging in quasi-criminal proceedings ? An old French (and before Roman) legal adage states : « no right without a proof ». If it seems clear, the question raises on the meaning of this relationship between the right and the proof. Does the right impact the way to prove ? Or, at the contrary, is the difficulty to access the proof able to determine the right itself ? To do his job, the judge enjoy a wide set of legal tools, as legal fictions and presumptions. We will discuss the way the European Courts use it to lighten the burden of proof supported by the Commission by presumptions (Part I) and legal fictions (Part II). As this action is a positive action on the structure of evidence, the judge also realises a negative one, limiting its control on certain kinds of economic evidence (Part III). Paradoxically, at the end, the control of the European Courts is deeply formalistic (Part IV).
4 See Commission Notice - Guidelines ont the effect on trade concept contained in article 81 and 82 of the Treaty, OJ, C/101, 27 April 2004, pp. 81 to 96 5 Then, the proof is still economic :see Communication from the Commission – Notice – Guidelines on the application of article 81(3) of the Treaty, OJ, C/101, 27 April 2004, pp. 97 to 118 6 This is result comes from a search on the search form of the Curia website : « subject matter = concerted practices », « procedure = actions for annulment » « results : application granted », from 1/1/2000 to 11/1/2013
PART I : The Presumptions: A Positive Action to Limit the Burden of Proof Borne by the Commission. Legal fictions and presumptions are ones of the legal mechanisms which allow to legally qualify some parts of the reality. The European Courts used to use Legal fictions and presumptions in differents ways, but always for lightening the burden of proof.
1. The Double aspects of the Presumptions The presumptions used by the Courts may be based on two mechanisms, endogenous probabilities and exogenous inference.
a) Presumptions based on exogenous inference: the need to introduce an external element.
According to the earliest case law, and especially the Imperial Chemical Industries case7, a concerted practice may be proved only by demonstrating that the relevant market is characterized by parallel conduct : « Parallel behaviour may not by itself identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market »8. As, only, a « strong evidence », the parallel conduct may not lead by itself to the conclusion of a concerted practice. To be absolutely perfect, the proof needs to be reinforced by another element which may be either « documents which directly establish the existence of concertation » 9 or if « concertation constitutes the only plausible explanation for such conduct »10. This difference of probative situation enjoyed by the Commission leads to a different treatment of the quality of the proof. In the first situation (parallel conduct + others documents directly related to the existence of a concertation), the defendants may not merely submit another explanation for the facts found by the Commission but challenge the existence of thoses facts established on the basis of the documents produced11. The process to prove a concerted practice with the perfect proof formed by a parallel conduct and a negative proof of a lack of no other plausible explanation, can not be understood but
7 ECJ, 14 July 1972, Imperial Chemical Industries Ltd v. Commission, case 48/69 8 para.66 9 ECJ, 31 March 1993, Ahlström Osakeyhtiö and o. v. Commission, Joined cases C-89, 104, 114, 116, 117 and 125 to 129/85, para. 70 10 Ibid. para. 71 11 From GC, 20 April 1999, LVM NV v. Commission, joined cases n°T 305 to 307, 313 to 316, 318, 325, 328, 329 and 335/94, case called « PVC II », para. 725 to 728 to GC, 12 April 2013, CISAC and o. v. Commission, case n°T-442/08, para. 99.
with an external element which is the economic rationality postulate. This postulate plays a fundamental role in the economic science. If the market structure isn’t able to explain the undertaking’s behavior, then the least conclusion is that a concerted practice does12. The very problem with this situation is that the rationality doesn’t enjoy a substantive and unique definition. By contrast, the rationality postulate is a « functionnal notion »13 which means that its definition doesn’t really matter. What matters is that the rationality may be used as a reference point to determine and qualify a behavior14. But, some scholars admitted that the market structure is never perfectly oligopolistic15.
b) Presumptions based on endogenous probabilities : the interpretation of bodies of evidence
Some presumptions allow to conclude a qualification only by themselves. That is the case when the Courts states that : « In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules»16 This kind of presumptions is based on a cross reading of a set of elements, a set of clues or indicia. The difficulty raised by this mechanism is that one may not know if it is used to discover a fact or to legally qualify. Indeed, sometimes it leads to the conclusion that a concertation occured17, that the trade between Members States could be affected18 or only to get the certainty of the existence of a fact or its features19. To be perfectly applied, the presumption need to appear with a « sufficent degree of probability »20 based on a « number of factors that individually may not be decisive »21. This method allows to rebuild a sens from a scattered set of facts.
12 See ECJ, Woodpulp case 13 See, LANNEAU (R.), Epistemology of Law and Economics, PhD, University of Paris X, 2009, esp.pp.43 and following 14 Sometimes, rationality is confused with an « bon sens économique », something admissible by everyone, something credible by a reasonnable man ; See, for ex. Opinion, TRSTENJAK (V.), Opinion under ECJ, 19 march 2009, Archer Daniels Midlands , case n° C510/06 pt.154 15 PERROT (A.) et VOGEL (L), Entente tacite, oligopole et parallélisme de comportements, JCP E, n°48, 2 décembre 1993, 299 16 ECJ, 7 january 2004, Aalborg Portland, case n° C-204/00. pt. 57 17 id ; 18 Commission, Guidelines on the effect on trade concept contained in articles 81 and 82 of the Treaty, OJ, 2004/C 101/07, pt.23 19 For example, the Commission’s Guidelines on the definition of the relevant market states that a wide set of facts has to be examined to assess the relevant market . This situation is allowed by the typical phenomenon of the competition law highlighted by SINOBY(A.-L.), Le raisonnement économique en droit de la concurrence, PhD, University of Paris, 20 ECJ, 15 décember 1994, Gøttrup-Klim Grovvareforening, case n°C-250/92, pt.54, see also, ECJ, 11 july 2013, Ziegler SA, case n° C-439/11, pt.92
Notwithstanding, the endogenous presomption may be sometimes multilevel, and play a role on differents steps. This multiple inference may be shocking. In a case in particular, the rebuilding process formed a contestable conclusion : « Even though the documents on which the Commission relies concern only a small number of the JMC's meetings held during the period covered by the Decision, all the available documentary evidence corroborates Stora's statement indicating that the main object of the JMC was to determine and plan the implementation of concerted price increases and to monitor their actual implementation. The almost total absence of minutes, whether official or internal, of the meetings of the JMC must be regarded as sufficient proof of the Commission's assertion that the undertakings which participated in the meetings attempted to hide the true nature of the discussions in that body (see, in particular, point 45 of the Decision). In those circumstances, the burden of proof has been reversed and it was for the addressees of the Decision who participated in the meetings of that body to prove that it had a lawful object. Since such proof was not adduced by those undertakings, the Commission was entitled to consider that the discussions by the undertakings in the meetings of that body had a primarily anti-competitive object »22. The global presumption only functions with a set of others under-presumptions :
- If the Commission found few documents which confirm the Stora’s story, then one may presum that the whole story is true.
- If the whole story is true, but, if in the same time the Commisson is unable to find more pieces of evidence to confirm it, the conclusion is that undertakings destroyed them.
- This confirms that the destroyed documents should have been compromising. - The evidence is made perfect on an almost total lack of documents.
One could notice the powerful role played by the inference of probability. The appelants were found guilty on the basis of an absence of pieces of evidence. The Stora’s testimony was sufficient to conclude. Using types of this cross presumption can make the result probable because logical. But the price to pay for is that the standards of proof become very low.
2. The double presumptions One of the most intersting presumption is that one which states : « In that regard, the Court has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union: (i) the parent company is able to exercise a decisive influence over the conduct of the subsidiary and (ii) there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence (‘the presumption of actual exercise of decisive influence’) »23. That allows the Commission to impute the infringment of the subsidiary to the parent company. 21 Commission, Guidelines on the effect on trade concept contained in articles 81 and 82 of the Treaty, OJ, 2004/C 101/07, pt.28 22 GC, 14 mai 1998, BPB /Commission, aff. T 311/94. Pt. 184 , GC, 14 mai 1998, Enso Espanola / Commission, aff. T 348/94, pt.187. 23 ECJ 29 september 2011, Elf Aquitaine, case n°. C521/09, pt.56
The solution laid down by this setteled case-law is actually a combination of two presumptions, logically connected : the first one of the potentiality of the control by the parent company and the second one, which ensues from it, of the real exercise of the control. This double step feature makes a big deal. In a case in particular, the defendant argued that the parent company (Elf Aquitaine) never interfered in the management of its subsidiary (Arkema) , because of its holding company nature24. The ECJ upheld the GC which ruled in a general way that as a holding company, the parent company necessarily exercised a decisive influence. In resume, to an argument presented on the basis of a concrete and actual situation, the Courts answred on the field of geneal and abstract reasonning. Only the double step presumption allow to switch the relevant argument needed. This presumption is reinforced by the fact that it is based on two legal concepts which are : economic unity and undertaking. Indeed, the Courts always explained the grounds of the presumption by the existence of a unique undertaking composed both and together by the subsidiary and the parent company. Economic unity results from the observation of links between different undertakings. Once, the Court, observing that two undertakings controled a joint subsidiary by a complex system of extra management board, concluded that the three entities were constituted the same undertaking25. Ironically, the Courts stated that two of the most important competitors on chemicals market constituted the same company. That case demonstrate how far the Courts can go in the assessment of economic unity. And how this element, at the basis of the presumption, allow to render its applying stronger. Playing with a double presumption also impacts on the notion of undertakings. Since the weel-known case Hofner26, the unique criteria to determine if an entity is a undertakings within the meaning of European competition law is the economic activity, because the competition only applies to undertakings. Recently, the ECJ dismissed a judgment of the GC in the case Portlieje27. A family fundation acquired 100% of the capital of an undertaking. The latest infringed article 101 TFEU and the Commission imputed it to the fundation. Before The GC stated that, as long as the fundation wasn’t an undertaking within the meaning of the competition law and the Commission didn’t adduce the evidence of an imixtion of management, it coulndn’t found it guilty28. The Court dismissed this argument stating that there is no need to first establish the fundation was an undertaking to apply the presumption of imputation29. That position deeply impacts the notion of undertaking because, in that case, the fundation, in the same time, is and is not an undertaking.
24 ECJ, 29 september 2011, Arkema SA, case n°C-520/09, pt.47 and GC, 30 september 2009, Arkema SA, case n°. T-168/05, pts 76 à 80 25 GC, 2 february 2012 , The Dow Chemical Industries, case n°T-77/08 and ECJ, 26 september 2013, The Dow Chemical Industries , case n° C-179/12, 26 ECJ, 23 april 1991, Klaus Höfner and Fritz Elser, case n°C-41/90 27 GC, 16 june 2011, Stichting Administratiekantoor Portielje , joined cases. T-208 et 209/08, ECJ, 11 july 2013, Commission / Stichting Administratiekantoor Portielje, case n° C-440/11 28 GC, Portileje. pt.58 29 ECJ, Portlieje, pt.39
It results from all above that this special use of double presumption can also extend the assessment of fundamental notions of the European and then allow to lighten again the burden of proof borne by the Commission. These are three ways the European Courts uses presumptions in competition law. They are really powerul tools to demonstrate the existence of a concerted practice. The most important conclusion is that the Courts established a real network system of presumption that allow to legally qualify a concerted practice with only one of its elements. Indeed, in an early case, the Court defined the concerted practices as follow : « It follows that, as is clear from the very terms of Article 85(1) of the Treaty, a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two. »30 As it results from all above, a concerted practice can be grasped only proving a concertation or the statement of a parallel conduct (plus a negative proof). The relationship of causality is never requiered to qualify a concerted practice. It looks like the concerted practice is reduced to only one of its elements. All this widely lighten the burden of proof borne by the Commission. In the same time, the Courts restrict their judicial review concerning article 101§3.
PART II : The Legal Fictions and the Extension of Fundamental Notions of the European Law One of the most known presumption used in European competition law is the presumption according to which when some undertakings participated to meetings, whose the object was anticompetitive, they are supposed to realise a prohibited concerted practice : « there must be a presumption that the undertakings participating in concerting arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market, particularly when they concert together on a regular basis over a long period » 31 . In those circumstances, « it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel »32. The only way to escape this is to prove having actively and publicly denounced the meeting. By ruling in that way, the Courts deprived the presumption to be rebbutable. There is no symetry between the infered conclusion and the object to prove to rebut. This displacement of the relevant object of the rebuttal is very strictly applied by the Courts.
30 ECJ, 8 july 1999, Anic Partecipazione SpA, case n° C-49/92, pt.118 31 ECJ, 8 july 1999, Anic Partecipazione SpA, case n° C-49/92, pt.121 32 ECJ, Aalborg, pt.81
Firstly, even if the undertaking didn’t act on the outcome of the meeting, it may be found guilty for « complicity » 33 because it « effectively encouraged the continuation of the infringement and compromises its discovery »34. Secondly, in the case Anic Particepazioni, the General Court ruled that it doesn’t matter the undertaking determined itself independently, without taking into account the results of the meeting, it has to be presumed having done it35. The presumption remains applied even if the reality is different. One should conclude that the presumption is, in fact, unrebbutable. But the Courts didn’t and keep stating that it is36. The analyse can go further. The main technic funding the presumption is not the inference but the assimilation between the concertation and the legal concept of concerted practice. The difference makes a big deal. Some scholars37 make a difference between presumptions and legal fictions in that sense. Although the presumptions are built on inferences, the legal fictions work by assimiling two objects. However, most of the scholars consider that unrebuttable presumptions and legal fictions are the same legal object. But, presumptions are rules of evidence, although legal fictions are substantives rules. Most of the time, this difference doesn’t clearly appear because, in a unique legal system no one can really line the border between them. But, in a situation in which 2 or more legal systems are involved, the difference plays a role. In the case T-Mobile the ECJ rules that « it must be held that the presumption of a causal connection stems from Article 81(1) EC, as interpreted by the Court, and it consequently forms an integral part of applicable Community law. »38. This statement is very interesting because it places the presumption on the category of substantive rule. If the causal link was a presumption, national judges couldn’t be required to apply it. Indeed, this case-law is in breach with the principle of procedural autonomy of the Member States, especially, the autonomy of proof39. The link moved from presumptions to legal fiction category. In that sense, the only way the Courts were able to defend the link from arguments based on grounds of violation of the presumption of innocence was to state that it was a rebuttable presumption, which is, de facto, not40. Once again, the Court allow the Commission to easily sanction an undertaking with a low requierment of evidence.
33 idem. Pt.84 34 id. 35 ECJ, 8 july 1999, Anic Partecipazione SpA, case n° C-49/92, pt.127, see also ECJ, 8 december 2011, KME Germany, case n°. C 389/10, pt. 94 35 ibid. pt.95 36 See, KOKOTT (J.), opinion under ECJ, 4 june 2009 , T-Mobile Netherlands BV, case n°C-8/08 37 See COSTA (D.), Les fictions en droit administratif, LGDJ, Paris, 2000 Bibliothèque de droit public, n°210, 38 Case T-Mobile, C-8/08 pt.52 39 Which is laid down by Regulation 1/2003, in the field of competition law. 40 The preliminary ruling was initiated by College van Beroep….The ironic conclusion of this case is that, after having received the answer of the Court, the national judge dissmissed the causal link and stated that it was in breach with the presuptiom of innocence.
PART III : A Negative Action : Limits of the Judicial Review and Asymetry of Evidence In the field of competition law, this topic has been deeply studied41. Nevertheless, it is still important to remind it. One may notice the very important asymetry on the evidence requirement between art. 101§1 and 101§3. Although the Commission enjoys a light burden of proof for article 101§1, the defendants are subjected to a strict requirement of evidence when claiming justifications within the meaning of article 101§3. In its Guidelines on application of article 101§3, the Commission reminds that undertakings wishing benefit from it have to proof a set of four cumulatives conditions42. The burden of proof is borne by the defendant43. This creates a evidentiary asymetry between on the one hand the Commission applying article 101§1 whose may enjoy to prove the whole concerted practice by proving only one of its criteria, and the defendants, on the other hand, required to prove all the elements of the exception rule. Furthermore, applying article 101§3, the Court early stated that : « the exercise of the Commission's powers necessarily implies complex evaluations on economic matters. A judicial review of these evaluations must take account of their nature by confining itself to an examination of the relevance of the facts and of the legal consequences which the Commission deduces therefrom ».44
The first mention of a limited review was at article 34 of the ESCS Treaty : « The Court may not however examine the evaluation of the situation resulting from economic facts or circumstances » except if it is alleged that the High Autority has misused its powers or has manifestly failed to observe of the Treaty or rule of law. This limited review applied to all economic complex appraisals45 but also to technical complex appraisals 46. In French admistrative law, from where come the limited review, the existence of a limited review by the administrative judge is conditioned by the existence of a discretionnary power enjoyed by the administration47. A discretionary power appears when the Adminsitration enjoy a political power. Pr. RITLENG notices that the Commission enjoys a discretionary power in three situations : when there are markets analysis, when it is necessary to make some economic projections and pronostics, and when the Commission has
41 See for ex. all the papers in EHLERMANN (C-D.) et MARQUIS (M.), European Competition Law Annual 2009, The Evaluation of Evidence and its Judicial Review in Competition Cases, Firenze et Oxford, EUI et Hart Publishing, 2011 42 Commission, Guidelines on the application of article 81(3) of the Treaty, OJ, 2004/C 101/08, pt.34 43 Commission, Regulation n° 1/2003, art. 2 44 ECJ, 13 july 1966, Consten and Grundig, joined cases n° 56 and 58/64, p.347 see also GC 18 september 2001, M6, case n° T-112/99, pt.156 45 GC ,28 april 2010, Amann & Söhne GmbH & Co. KG, case n° T-446/05, pt.131, ECJ, 6 october 2009, GlaxoSmithKline, case n°C-501/09, pt.85 and more generally ECJ, 15 february 2005, Commission/Tetra Laval, case n° C‑12/03, pt.39 46 GC, 17 september 2007, Microsoft Corp, case n° T-201/04, pt.88, recently applied by GC, 1er juillet 2010, AstraZeneca, case n° T-321/05, pt.32 (upheld by ECJ, 6 décember 2012, AstraZeneca, case n° C-457/10) 47 MORAND DEVILLER (J.), Cours de droit administratif, LGDJ, Collection Cours, 2013, Paris, 13ème éd., pages 276 and following.
a duty to make a balanced decision, taking into account many different economic or public order factors and circumstances or policy objectives48. These locations of areas of discretionary power could be accepted but it doesn’t justify the exercise of a limited review. He justified the limited review by the principle of separation of powers and inter-institutionnel balance49. So, the existence of a discretionary power could emerges from empowerment of political power, but it could also be based on the difficulty to access and discover the evidences. About the first justification, in many cases, the Courts ruled that the Commission may use article 101§3 as a tool of competition policy50. That justification of a discretionary power raises some questions. It is constant that the Commission has no choice to decide to grant an undertaking the exception rule laid down by article 101§3. Indeed, the satisfation of conditions of article 101§3 « is both necessary and sufficient »51. According to this statement, it appears that the Commission has no discretionary power to apply article 101§3, but a mandatory duty. The European legislator decided to make the exception automatic when the conditions have been satisfied. The existence of a mandatory duty should, normally, lead to a full review of all the conditions. By limiting its review, the Courts grants a great power to the Commission, a deep margin of discretion in contradiction with the Treaty. Yet, the Treaty doesn’t lay down such power. Indeed, the principle according to which the Courts have to limit their review with economic (or technic complex appraisals) doesn’t appear in the Treaty of Lisbon. After having been removed from the Treaties, the principle has been established by the judge itself. There are only two cases in which the Court refers to article 34 of the ESCS Treaty52. Yet, the former Chairman of the GC himself wrote that : « …The CFI will limit itself to control of legality which will, un principle, not exclude the possibility of exercising unlimited jurisdiction. However, as appears from the following, the exercise of the unlimited jurisdiction is, in practice, the very rare exception »53 About the second justification, the difficulty of the evidence, it could be remarked that the Commission and the defendants are in the same situation facing to the economic evidence. The difficulty of the evidence shouldn’t be lighten only for the Commission, as seen in parts I and II. That rule is not fair. When the Courts state that the appraisals is an economic or technical complex one, the defendant have the possibility to alledge, inter alia, that the Commission made a particular
48 RITLENG (D.), Le juge communautaire de la légalité et le pouvoir discrétionnaire des institutions communautaires, AJDA, 1999.645 49 idem. 50 ECJ, 25 october 1977, Metro , case n° 26/76, pt.21, ECJ, 22 october 1986, Metro, case n°75/84, pt.65 see also PRIETO (C.), Ententes : méthodologie générale de l’exemption, fasc. 1415, JCP Europe Traité, Paris, LexisNexis, pt.42 51 GC, 27 september 2006, GlaxoSmithKline, case n°T-168/01, pt.234 and earlier ECJ, 11 july 1985, Remia, case n° 42/84, pt.38 52 ECJ, Ord, 25 april 2002, DSG Dradenauer Stahlgesellschaft mbH, case n°C-323/00, pt.32 and ECJ, 2 october 2003, Krupp Hoesch Stahl AG , case n°C-195/99, pts 55 and 56 53 VESTERDORF (B.),The Court of Justice and Unlimited Jurisdiction : What Does it Mean in Practice ?, Competition Policy International, Antitrust Chronicle, Spring 2009, Volume 6 Number 2, https://www.competitionpolicyinternational.com/file/view/6016
mistake called manifest error of appraisal. General Advocate FENNELLY recognized that : « In order to establish that the Commission is guilty of a manifest error in the appraisal of the facts such as to justify the annulment of the impugned decision, the Belgian Government must satisfy the Court either that the decision was based on findings of fact which are objectively and evidently wrong, or drew from admitted facts secondary conclusions of fact which are objectively and evidently wrong. A weighty burden of proof is imposed upon the applicant by virtue of the Court's very proper reluctance to substitute its evaluation for that of the Commission of factual issues on which differing views can legitimately be held. It must be demonstrated to the Court, to a reasonable degree of certainty, that the Commission has committed errors of fact which undermine its ultimate conclusions »54 The advantage of the Commission is reinforced by the fact that it published many guidelines and orientations which deal with the relevance of economic arguments proposed by the defedant to benefit the exception rule. Theses documents establish many relations between economic factors as : « The larger the minimum efficient scale compared to the current size of either of the parties to the agreement, the more likely it is that the efficiencies will be deemed to be specific to the agreement »55, « Undertakings that are not subject to effective competitive constraints - such as for instance dominant firms - have less incentive to maintain or build on the efficiencies. The more substantial the impact of the agreement on competition, the more likely it is that consumers will suffer in the long run »56, « Collusive outcomes are more likely in transparent markets. Transparency can facilitate collusion by enabling companies to reach a common understanding on the terms of coordination, or/and by increasing internal and external stability of collusion »57or « a collusive outcome is more likely among companies that will continue to operate in the same market for a long time, as in such a scenario they will be more committed to coordinate. »58 The relationship is dynamic. The main interest of theses economic assumptions is to make the relevant arguments proposed by the defendants more clear. But, doing this, the Commission get a huge advantage on the evidentiary mechanism. Indeed, it appears that the proof is not free any more. Undertakings are not allowed any more to present their own arguments, but only those which have been decided relevant by the Commission. Moreover, the assessment is automatic, only based on the structure and features of the market. There is no place for the will of the undertakings, whereas it could be sometimes relevant. For example, the relation made between effective economic constraints and incentives to maintain or build efficiencies59 is free from the desire of the undertaking. One must notice that it could be more rational for undertaking in a dominant position to build efficiencies and then increase its benefits. Depriving the undertakings from the possibility to demonstrate this is a limitation of freedom of proof. And, because of the fact that this assessment is an economic complex appraisal, the Courts don’t check it.
54 Opinion under ECJ, 29 february 1996, Belgium v. Commission, case n°56/93, pt.29 55 Guidelines on application of article 81(3), cited above, pt.76 56 id. pt.92 57 Commission, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements Text with EEA relevance, OJ 2011/C 11/1, pt.78 58 id. pt.84 59 cited above not.56
All this offers to the Commission a real and deep advantage, compared to the evidentiary situation of the defendant. There is a real asymetry between the defendants and the Commission, for the benefit of the latest. Yet, the Courts are not totally passive. They displaced the control of the substance to the control of the form. PART IV : The Great Return of the Formalism In the field of the economic law, many authors criticized the legal formalism, starting with the Courts themselves. In the case Société Technique Minière60, the Court stated that : « In order to be prohibited as being incompatible with the Common Market under Article 85 (1) of the Treaty, an agreement between undertakings must fulfil certain conditions depending less on the legal nature of the agreement than on its effects on 'trade between Member States' and its effects on 'competition ». The legal formalism constitutes a very part of the legal reasonning. In 1951, Pr. ROUBIER already wrote that legal forms were essential to the legal reasonning, because they allow to grasp the reality through general categories in order to make the rules stable and foreseeable61. Pr. AZOULAI, noticed that the legal formalism is a consequence of the separation of powers and let the citizens enjoy legal security62. Yet, he remarks that the legal formalism hates the facts, whereas economic law is essentially based on facts. The new Commission’s doctrine of « more economic approach » entered into force since the Commission's revision of the block exemption on vertical restraints 63 . In his speech, Commissioner Mario Monti expressed the change in this way : « These objectives (of competition policy) would only be randomly achieved, at the expense of numerous errors, if we were to ignore economic thinking and market dynamics »64. Since, it is admitted that the competition law must take into account the economic reality. Yet, some scholars noticed that « The grounds establish a limited review of the lawfulness of how a decision has been taken rather than the mertis of the decision itself »65. Powerless to exercice a full review, the Courts moved to the control of the form of the reasonning.
60 ECJ, 30 june 1966, case n°56/65, p.248, see also, on the role of the economic analysis, rather than a reasonnig base on legal forms, ECJ, 14 July 1972, Imperial Chemical Industries Ltd v. Commission, case 48/69, pts.64 to 68 61 ROUBIER (P.), Théorie générale du droit, Histoire des doctrines juridiques et philosophiques des valeurs sociales, Paris, Dalloz, 2005, 2ème éd. p.16 62 AZOULAI (L.), Les garanties procédurales en droit communautaire, Thése, EUI ,p.30 63 FORWOOD (N.), The Commission's More Economic Approach Implications for the Role of the EU Courts, the Treatment of Economic Evidence and the Scope of Judicial Review, EUI, Robert Schuman Center for Advances Studies, 2009 Eu Competition Law and Policy Workshop, http://www.eui.eu/Documents/RSCAS/Research/Competition/2009/2009-COMPETITION-Forwood.pdf 64 Speech by Mario MONTI, "A reformed competition policy: achievements and challenges for the future", Centre for European Reform, Brussels, 28 October 2004, http://www.cer.org.uk/pdf/speech_monti_oct04.pdf. 65 FORRESTER (I.), A Challenge for Europe’s Judges : the Reveiw of fines in Competition cases, in . MEROLA (M.) et DERENNE (J.) (dir.) The role of the Court of Justice of the European Union in Competition Law Cases, GCLC Annual Conference Series, Brussels, Bruylant, 2012, pp. 148 and following.
The GC, for example, upheld a decision of the Commission ruling that : « It follows from all the foregoing that the approach adopted by the Commission in assessing the actual impact of the cartel on the sodium gluconate market was not incorrect. » 66 . General Advocate TIZZANO expressed that : « It need merely be pointed out that, according to established case-law, the obligation to give reasons for the method of calculating fines is satisfied where the Commission indicates the factors which enabled it to determine the gravity of the infringement and its duration »67. General Advocate COLOMBER noticed that : « The Court of Justice can intervene in that regard only if, in the production of evidence, a provision or a general principle of Community law has been infringed or if, when the evidence was assessed, there was an infringement of the rules governing the burden of proof and the appraisal of evidence owing to the latter being illogical or arbitrary and therefore such as to distort the evidence. »68. General Advocate MENGOZZI takes into account « the accuracy and probability of the steps in the deduction » 69 . Or either General Advocate TRESTENJAK having regards to « the rules of logic »70. The more the economic evidence is difficult to assess, the more the Court limits their control to the logical form of the decision. CONCLUSION The study has shown that the difficulties of the economic evidence is lighten at the benefit of the Commission but kept high for the defendant. All the evidentiary mechanism is done to facilitate the control and to sanction the undertakings, whereas it remains difficult to reach the exception rule. If everyone could accept that the Commission has the means to execute its mission, that doesn’t mean that rights of defence are ignored. The evidentiary mechanism sometimes looks like the probatio diabolica of the Inquisition, whereas progress and science were supposed having rejected the Middle Ages.
66 GC, 27 september 2006, Archer Midlands, case n° T-329/01, pt. 185 67 Opinion under ECJ, 28 june 2005, Dansk Rorindustri , joined cases n°C- 189, 202, 205, 208 et 213/02, pt.176 68 Opinion under ECJ, 7 janvier 2004, Buzzi Unicem / Commission, aff. C-217/00, pt.84 69 Opinion under ECJ, 29 september 2011, Elf Aquitaine, case n°C521/09, pt.58 70 Opinion under ECJ, 19 march 2009, Archer Daniels Midlands , case n° C510/06, pt.154
ITIS – Innovation, territoires et inclusion sociale MDD – Mobilités et développement durable RIO – Risque, information, organisation DOBIM – Droit des obligations et activités bancaires et immobilières THEMOS – Théorie, Modèles, Systèmes Documents de travail récents ü Jullien Geffard et Magali Bouteille-Brigant, « Les conditions contractuelles d’accès des
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Ludovic Vigneron, “Does banking relationships configuration influence SMEs’ risk taking ü
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Responsable de l’édition des documents de travail de l’IDP : Sylvain Petit ([email protected])
