Evidence, Proof and Judicial Review in EU Competition Law, Fernando CASTILLO DE LA TORRE et Eric GIPPINI FOURNIER

Fernando Castillo De La Torre, Eric Gippini Fournier

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to stephane.rodrigues-domingues@univ-paris1.fr for review in this section.

This new book edited by Fernando Castillo de la Torre and Eric Gippini Fournier, gives a very interesting and practical overview of the rules of evidence and proof in EU competition law applied by the EU Courts as well as the rules circumscribing the judicial review that they carry out. Evidence is defined as an available body of facts or information indicating whether a belief or proposition is true or valid and being more of a suggestive nature and proof will be defined as arguments establishing a fact or the truth of a statement and being more of a concrete and conclusive nature. This overview is carried out focusing on a systematic analysis of the case law of the EU Courts which have delivered a vast amount of judgements on that subject. While the authors present the case law in a historical perspective, they also explore in more detail the most recent case law and Commission decisions, as it reflects the current understanding of the law and practice.

The book is divided into six chapters including an introductory chapter. The general rules on the assessment of evidence and proof are examined first, including an analysis of the rule according to which although the burden of proof is primarily for the Commission, that does not imply that the accused undertaking remain passive or that the Commission needs to prove each and every fact mentioned in its decision. The undertaking, although benefiting from the presumption of innocence, has also the “burden” of defining the terms of the debate before the judge. Then some specific issues such as the rules of evidence and proof in areas such as single and continuous infringement, duration, defences and fines are also covered in the book. Another chapter is devoted to the assessment of the probative value of different types of evidentiary means which are traditionally met in competition cases, such as inculpatory evidence versus exculpatory evidence, specifically in relation to access to the investigation file, contemporaneous versus ex post facto evidence, direct and indirect evidence and written evidence versus oral evidence which appear to play a more significant role in the investigation of cartels compared with the past, given the measures taken by companies to prevent written, material from being created in the first place.

Finally, two chapters are devoted to judicial review. The first one is more focused on procedural questions, such as the timing of the submission of evidence, the adoption of measures of inquiry by the Court allowing access to leniency statements by lawyers for the parties at the Court Registry. The other and last chapter deals with the standard of judicial review with a particular focus on the unlimited nature of EU jurisdiction and the fact that such unlimited jurisdiction in the application of the rules on competition law relates to, and is limited to, the fine originally imposed by the Commission. In other words, the EU judicature has unlimited jurisdiction solely to rule on fines set by Commission decisions but does not have the power to impose a fine.

It should be noted at last that one of the main purpose of the book, as the authors - two long-serving members of the European Commission’s legal service - explain it in the first introductory chapter, is to address recurrent criticism from practitioners which tend to say that the Commission procedures to implement completion law are unfair, that judicial review by the EU Court is not thorough enough and that the system as a whole is not sufficiently guaranteeing fundamental rights.

To that effect, they address in particular the question regarding the legality of a system where decisions are adopted by the Commission first, putting this institution in a position where it combines the functions of prosecutor and judge. Their answer to that question is quite straightforward. First, the Commission does not need to respect the guarantees of independence that a court must have under case law relating to Article 6 of the European Court of Human Rights, because the case law of the EU Courts has reiterated that the Commission is not a court. Second, the Commission’s decisions are subject to subsequent review by a judicial body that has full jurisdiction to examine all questions of fact and law relevant to the dispute before it.

Although the authors point out that the Court of Justice has followed the same approach, one cannot undermine the fact that starting legal proceedings against a Commission decision, has no suspensive effect and is always a long term process. De facto, companies challenging a Commission decision are put in a less favourable position as they have first of all to pay the fine and then to enter into costly and time consuming legal proceedings, with never any certainty as to the results of such proceedings. Furthermore, although there is a subsequent review by a judicial body that has full jurisdiction, the real issue comes to how intense judicial review is. In cases for example raising complex economic matters, one can question the intensity in reality of the judicial review. It should also be noted that regarding the question of the judicial review of fines imposed by Commission decisions, although the EU Courts are not bound to use the same method as the Commission Fining Guidelines when exercising their unlimited jurisdiction, they have sometimes been explicit about being “inspired” by the Commission Guidelines and the practice shows that they tend to follow the approach of the Commission Fining Guidelines in recalculating the fines (see inter alia Case Keramag and Others v. Commission, T-379/10, EU:T:2013:457, para. 332). As a result, and for the reasons mentioned above, the on-going criticisms about the system as a whole raising concerns regarding the guarantee of fundamental rights may still be relevant.

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Nathalie Flandin, Evidence, Proof and Judicial Review in EU Competition Law, Fernando CASTILLO DE LA TORRE et Eric GIPPINI FOURNIER, September 2017, Concurrences N° 3-2017, Art. N° 84685, pp.205-206

Publisher Edward Elgar Publishing

Date 31 March 2017

Number of pages 416

ISBN 978 1 78254 889 8

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