Evidence - Oral statements - Leniency programs - Cartonboard - Seamless steel tubes - Vitamins - Proof - Sanctions - Procedural safeguards

Oral statements in antitrust law procedure

For a long time, competition authorities required written evidence of the infraction. At times authorities recorded oral statements, but statements were essentially used to confirm written evidence. Nevertheless, an evolution occurred : the authorities have accepted more and more statements as written evidence have become less available and leniency programs have emerged. Indeed, such programs have encouraged firms to cooperate with the authorities and, as a result, statements have increased. In this respect, the Cartonboard case in 1994, the seamless steel tubes case in 1999 and the Vitamin case in 2001 were turning points. However, this evolution has raised some difficulties with respect to the evidentiary value of statements. Their credibility may notably be questioned when the company is among the defendants and it benefits from the leniency program. Moreover, the current proceedings are not really designed for this kind of proof. Consequently, the case-law on the value of statements as evidence of the infraction has laid down stringent conditions : first statements may be used only if they are credible. According to the CFI several criteria are useful to assess this credibility. Second, the statement of a company cannot be regarded as adequate proof if it is contested by several other companies and is not supported by other evidence. The degree of corroboration required varies : it is lesser when the statements are especially credible.

The author concludes that statements should be used as indications of the infraction but should not be used as evidence, except in exceptional circumstances, because of the stiff sentences imposed and the absence of procedural safeguards. She also considers that the use of statements will likely decrease in the future.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. Statements in competition law: can proof of infringements be satisfied with "probable certainties" ? [1] 1. In competition law, whether Community or French, the proof is above all written. For a long time, this proof was even essentially made up of contemporary evidence of the infringement, gathered during inspections of companies [2]. Of course, it was not uncommon for the competition authorities also to record statements, particularly during these inspections and in the course of the procedure, or to gather more economic evidence. However, these various elements were mainly used to shed light on the context of the infringement or to clarify certain

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Nathalie Jalabert-Doury, Oral statements in antitrust law procedure, May 2005, Concurrences N° 2-2005, Art. N° 13051, pp. 41-47

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