Evidence in Cartel Cases: Proof of documents on file

Antitrust Procedure Workshop organized by Concurrences in partnership with Clifford Chance.

Laurence Idot (Professor, University of Paris II Panthéon-Assas)

Competition law is not exempt from questions of proof. the competition council devoted a thematic study to it in its annual report for 2006, which it was obliged to limit to proof of agreements of intent constituting a cartel, so many questions are raised. the subject of this conference is even more specific since we will limit ourselves to the proof of cartels. This delimitation is justified. Apart from the fact that it is in this area that the problems are the most acute, the so-called negotiated procedures have revealed new difficulties. Although the data are stabilised in European Union law, the practice is less abundant in France where cases involving washing powder or flour are still pending before the Court of Appeal.

Jurisprudence emanates mainly from the Court of Justice. The questions encountered are not original. First of all, who bears the burden of proof? In this respect, the distinction between public and private enforcement must be taken into account. We shall deal only with public enforcement, excluding the possibility of a company being seized by a cartel, which presents almost insurmountable difficulties, even if the victims can always attract the attention of the authorities. On the administration of proof, the admissibility of the modes of proof and their probative force will be studied.

Photos © Léo-Paul Ridet.

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  • University Paris II Panthéon‑Assas
  • French Competition Authority (Paris)
  • DWF (Paris)