CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 février 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sEB822B3C { width:128.83pt; display:inline-block } .sCF8D6E06 { width:175.22pt; display:inline-block } .sE27D9C81 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FIRST SECTION             CASE OF SA-CAPITAL OY v. FINLAND   (Application no. 5556/10)             JUDGMENT         STRASBOURG   14 February 2019     FINAL   14/05/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of SA-Capital Oy v. Finland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Ksenija Turković,   Krzysztof Wojtyczek,   Armen Harutyunyan,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 15 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 5556/10) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish limited liability company SA-Capital Oy (“the applicant”), on 25 January 2010. 2.     The applicant was represented by Mr Ari Huhtamäki, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agents, first Mr Arto Kosonen and then Ms   Krista   Oinonen, both from the Ministry for Foreign Affairs. 3.     The applicant alleged, in particular, under Article 6 §§ 1 and 3 (d) of the Convention that it had not had a fair trial as it had been ordered to pay penalty payments in competition law proceedings on the basis of hearsay evidence but without being able to examine or have examined the persons at the origin of this evidence, and as the shifting of the burden of proof to it had violated its presumption of innocence under Article 6 § 2 of the Convention. 4.     On 26 September 2011 the application was communicated to the Government. On 4 February 2014, at the applicant’s request, the examination of the case was adjourned pending the outcome of the connected domestic compensation proceedings. INTRODUCTION 5.     The case arises from proceedings concerning restrictions of competition, conducted against several companies operating in the asphalt sector in Finland and accused of having operated a nationwide cartel involving price-fixing by means of territorial allocation of markets, bid rigging and other restrictive practices in public and private sector contracts for asphalt works and supplies. In the proceedings, lodged by the Competition Authority before the Market Court in the first instance and concluded before the Supreme Administrative Court, on appeals brought by both the Competition Authority and the respondent companies, the existence of a cartel was found established and financial penalties were imposed on the companies involved, including the applicant company. In terms of the scope and effects of the cartel, however, the assessment of the Supreme Administrative Court was more severe than that of the Market Court and, as a result, the Supreme Administrative Court, endorsing the motions put forward by the Competition Authority, increased the amount of the financial penalties imposed on the respondent companies, including the applicant company. 6.     The applicant complains under Article 6 of the Convention, alleging that in the proceedings before the Supreme Administrative Court, the latter had relied on hearsay evidence which the applicant was not able to have cross-examined. The applicant also alleges that the standard of proof applied by the Supreme Administrative Court was contrary to Article 6 § 1 and that the burden of proof had been shifted to it in violation of Article   6   §   2 of the Convention. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant company has its seat in Rovaniemi. 8.     The applicant company is a limited liability company which was carrying out business in the asphalt sector until February 2000. In 2002 the Finnish Competition Authority ( kilpailuvirasto, konkurrensverket ) started to investigate whether the applicant company, among others, had been involved in nationwide or regional cartels in this sector. 9.     On 31 March 2004 the Competition Authority lodged an application before the Market Court ( markkinaoikeus, marknadsdomstolen ), requesting that the court impose a penalty payment on the applicant company, among others, on the grounds that it had participated in a cartel from 1995 to 2000. A.     Competition law proceedings 1.     The Market Court 10.     Between 14 November and 18 December 2006 the Market Court held an oral hearing in the course of which forty-eight witnesses were heard. Documentary evidence, including telephone recordings were also presented to the court. 11.     On 19 December 2007 the Market Court found, inter alia , that the applicant company had taken part in a cartel in respect of asphalt contracts commissioned by the central government authorities, by participating in territorial allocation of markets, by participating to a minor degree in price-fixing activities and by participating in restrictions on the supply of asphalt mass. A penalty payment ( seuraamusmaksu, påföljdsavgift ) of 75,000 euros (EUR) was imposed on the applicant company. With regard to the allegation of territorial allocation and price-fixing in the markets for local government and private sector asphalt contracts, the Market Court found that the applicant company had not participated in a cartel. 12.     The Market Court found that the territorial allocation of the markets and the bid-rigging between the companies involved in the cartel had amounted to a single continuous infringement of competition law rules, and that they were not to be regarded as individual unconnected infringements. According to the court, the infringements of competition law rules had lasted for more than seven years. Although some companies had participated in the infringements for a longer time than others, all the companies had infringed the competition law rules for three years at least. In addition, geographically, the infringements covered the entire country in respect of central government asphalt contracts, and several regions of the country in respect of local government and private sector contracts. 13.     The Market Court found it established that between 1996 and 2000 the applicant company had agreed with three other asphalt companies about the allocation of central government asphalt contracts, and had done the same with three more asphalt companies between 1999 and 2000. Moreover, from 1996 until the end of 2000, the applicant company had agreed with another cartel company in advance the prices to be offered in competitive bidding, and had tendered accordingly. Between 1996 and 2000, as far as central government asphalt contracts were concerned, it had also agreed with the other cartel companies that none of them would supply asphalt mass to companies outside the cartel. The court held that the applicant company had infringed the prohibition on the division of markets by its above-mentioned conduct regarding central government asphalt contracts. 14.     When considering the amount of the penalty payment the Market Court took into account, for each company, its turnover from the asphalt business in Finland during the last year of its participation in the infringement of competition law rules. In addition, considering the relatively low turnover of the applicant company, its market position, and the regionally limited scope of the related restriction of competition, the Market Court held that it was not justifiable to penalise the applicant company with a penalty payment exceeding the normal scale. 15.     Concerning the evidence, the Market Court noted that evidence in competition law cases could be either direct or indirect, such as economic evidence. As direct evidence was not always available, an assessment was to be made of whether indirect evidence was sufficient to prove the existence of a cartel. The court found that, in the present case, the economic evidence alone was not sufficient to prove the existence of a cartel. The court also found that the existence of a cartel could not be proved on the basis of hearsay evidence. In the present case, the Market Court reached its conclusion in respect of the central government asphalt contracts by relying, inter alia , on the testimonies of eight witnesses. However, to the extent that those testimonies contained hearsay evidence, such evidence was not taken into account. As far as local government and private sector contracts were concerned, the Market Court analysed the evidence for restrictions of competition region by region and found it sufficient in respect of certain regions while insufficient in respect of others. As regards the regions where the applicant company was doing business (Northern Finland and North Karelia), the Market Court found that the evidence in support of a cartel was not sufficient. In this context, the Market Court stated, inter alia , that the testimonies of two witnesses who had been heard on this matter had been based solely on what the witnesses had heard from other people, whereas other witnesses had not given evidence that was capable of substantiating the existence of a cartel for local government and private sector contracts in this particular region. 2.     The Supreme Administrative Court 16.     In January 2008, the Competition Authority and the defendant companies, including the applicant company, lodged appeals at the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltnings ­ domstolen ). In its appeal, the Competition Authority contested the interpretation adopted by the Market Court as regards the scope of the cartel, arguing that there was nothing to suggest that the territorial allocation of markets did not encompass contracts in all the above mentioned categories of works and pointing out that the exclusion of supplies of asphalt mass outside the cartel companies affected competition in the entire sector. The Competition Authority maintained that there had been a single, nationwide cartel encompassing the entire market for state, local authority and private sector asphalt contracts. In so far as evidence was concerned, the Competition Authority argued, inter alia , that even hearsay evidence should have been taken into account by the Market Court. The company which had been found to play a leading role in the cartel lodged a partial appeal. In its appeal, the applicant company claimed that the Market Court had drawn the wrong conclusions from the evidence, as the Competition Authority had not been able to show that the company had participated in a cartel. In its response to the appeal brought by the Competition Authority, the applicant company reiterated its submissions already made before the Market Court and argued, inter alia , that reliance on any elements of hearsay in the evidence should remain excluded. 17.     On 25 February 2009 the Supreme Administrative Court held a preparatory meeting with the parties for the oral hearing of the case. The oral hearing itself was held between 20 and 23 April 2009, at which the court again heard six key witnesses. Four of them had been called by the Competition Authority, and two by one of the asphalt companies. The parties, including the applicant company, did not ask the court to hear any other persons. 18.     On 29 September 2009 the Supreme Administrative Court overturned the Market Court’s decision. In its judgment, the Supreme Administrative Court held that the Competition Authority’s application was well-founded in respect of all but one of the defendants. Inter alia , the Supreme Administrative Court concluded that the applicant company had participated in a nationwide cartel between May 1995 and 15   February   2000, and the applicant company was ordered to pay a penalty payment of EUR 500,000. 19.     In regard to matters of procedure, the Supreme Administrative Court noted that the concept of “criminal charge” had an autonomous meaning in the established case-law of the European Court of Human Rights on Article   6 § 1 of the Convention, and that therefore certain sanctions imposed in administrative-law proceedings fell within the scope of Article 6. The court stated that in the light of that case-law, the procedure for imposing a penalty payment under the Restriction of Competition Act had to be considered to fall within the scope of Article 6 (see Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006 ‑ XIV). The court further noted that the Court of Justice of the European Communities, when applying Article 6 as a part of the general principles of Community law, had held that the proceedings under Community competition law had to comply with the requirements of Article   6. The Supreme Administrative Court, citing the case of Jussila, considered that while Article 6 of the Convention under its criminal limb thus applied to proceedings imposing a penalty payment, in such cases the Article 6 requirements were not necessarily identical to the requirements which were applicable in the core areas of criminal procedure. 20.     In its judgment, the Supreme Administrative Court made a number of general statements about the assessment of evidence in competition proceedings. It emphasised at the outset that the domestic legislation in this regard was based on the principle of free assessment of evidence. This meant, inter alia , that the court was to take into account all evidence adduced before the Market Court, in addition to the evidence adduced in its own proceedings, while also bearing in mind the finality of the Market Court’s findings to the extent that it had not been challenged by a party on appeal. 21.     The court also referred to the particular difficulties in obtaining evidence of practices aimed at restricting competition. In this context, it cited the relevant case-law of the Court of Justice of the European Union. The court thus recalled that as the prohibition of anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities relating to restrictive practices and agreements to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. Evidence of unlawful contact between economic operators will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. 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 and in the absence of another plausible explanation, may constitute evidence of an infringement of the competition rules (see Aalborg Portland and Others v. the Commission , Joined cases   C ‑ 204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and   C ‑ 219/00   P, ECLI:EU:C:2004:6, §§ 55-57). Accordingly, the competent court was not precluded from taking into account circumstantial evidence, or from drawing inferences from various elements of proof, including testimony containing references to what the witness has heard from others. Various factual elements attesting to similar events or patterns occurring in a given market, alongside other kinds of circumstantial evidence may, in the absence of any other reasonable explanation, demonstrate the existence of restrictive practices. Furthermore, the court cited case-law of the General Court of the EU emphasising that while the competition authority must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement of competition rules took place, it is not necessary for every item of evidence produced to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on, viewed as a whole, meets that requirement (see JFE Engineering Corp. and Others v.   the Commission, Joined cases T-67/00, T-68/00, T-71/00 and T-78/00, ECLI:EU:T:2004:221, §§ 179-180). 22.     The court stated that the evidence provided in a competition law case could not be subject to the same requirements as evidence in criminal cases, inter alia, because Finnish competition law was a part of EU competition law. In this regard, the court also cited case-law of the General Court of European Union (see BPB plc v. the Commission , Case T-53/03, ECLI:EU:T:2008:254, § 64), according to which a standard of proof beyond reasonable doubt cannot be required in competition cases. It further cited case-law of the Court of Justice of the European Union according to which it is incumbent on the Commission as competition authority to prove the infringements of competition rules and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement, and where such evidence had been presented the court was entitled to consider that it was for the defendant to provide another explanation for the incriminating circumstances. This did not unduly reverse the burden of proof or set aside the presumption of innocence (see Montecatini Spa v. the Commission , Case   C-235/92 P, ECLI:EU:C:1999:362, §§ 179-181). 23.     According to the Supreme Administrative Court, circumstantial evidence as well as inferences could also be relied on for establishing prohibited cooperation in the absence of any alternative reasonable explanation. When drawing such inferences, the court was not precluded from taking into account hearsay evidence alongside other scattered evidence. It was essential to take a holistic approach to the evidence presented. When it came to the duration of the infringement of competition law rules, it was sufficient that the presented evidence related to facts sufficiently close in terms of time, in order that it could be established with reasonable certainty that the suspected infringement had continued without interruption between the dates when the alleged cartel had started and ended. 24.     In this case, the Supreme Administrative Court had at its disposal all written evidence, including economic and financial evidence, as well as the records of statements made by all of the witnesses heard by the Market Court. The court also heard six witnesses in person. The gist of testimonies relied on is cited in the judgment. The court’s findings indicate, inter alia , that independently of each other, a number of witnesses mentioned examples from different geographical regions in different parts of Finland where the companies had agreed about the allocation of markets either by geographical regions or by the volumes of contracts. The witnesses expressed a common understanding that a cartel had dominated the Finnish asphalt markets throughout the country in respect of both local government and private sector contracts and central government contracts. Several witnesses also reported consistently on the practices by which the cartel companies had agreed the price to be offered by each of them in competitive bidding. The witnesses reported that the practices followed in competitive bidding had been intended to ensure that the markets were divided as agreed. The reported tendering practices were confirmed by the recordings of telephone calls presented as evidence, and by the written evidence relating to certain competitive biddings. Furthermore, the witnesses reported consistently on how the cartel had supervised the geographical division of the markets. In addition, three witnesses testified before the court about their experience regarding the alleged division of the markets, the related false invoices and the supply of cost-free asphalt mass, as well as some consistent hearsay. They testified that if the contracted works had not corresponded to the amounts agreed in advance, the company which had been awarded too many contracts would pay compensation to those which had received too few contracts, for example by means of false invoices. These witnesses also testified about the pressure exerted by cartel members on smaller companies to join the cartel and about measures taken to conceal the infringements. 25.     On the basis of the evidence before it, the Supreme Administrative Court found that a single nationwide cartel had existed between 1994 and 2002 in respect of central and local government as well as private sector asphalt contracts. It found that the Competition Authority had presented extensive evidence of the existence of the cartel, by means of witness statements, documents, telephone recordings and other evidence. Although the evidence provided by the Competition Authority had not covered all incidents in the asphalt markets during the period covered by its application, either geographically or in terms of time, it had nevertheless permitted the court to get an overall picture of the functioning of the asphalt markets during the period in question. The evidence had excluded the possibility that the established facts were a matter of similar practices which had coincided accidentally. Taking into account what is generally known about the functioning of cartels on the basis of earlier experience and research, the most credible explanation for the similarity between the events which had occurred in different regions and the observations made by the witnesses was that the asphalt companies had agreed about the territorial allocation of the asphalt markets in the whole of Finland, as well as about the measures for implementing the agreed allocation in practice. In its final conclusion, the court stated that the Competition Authority had adduced extensive evidence of the existence of a cartel, while the defendants had not been able to refute the credibility or reliability of that evidence, nor the conclusions which the Competition Authority had drawn from it. 26.     As to the applicant company’s participation in the cartel, the Supreme Administrative Court held that: “(1274)     [o]n the basis of [the three witness] statements adduced before the Market Court and the Supreme Administrative Court and the written evidence consisting of the [chart on the geographical division of the markets], it has been shown that [the applicant company] took part in the cartel, in particular in Lapland and the North Karelia region. It had been agreed that the area of Northern Finland was allocated to [the applicant company], and in general the other cartel companies had no right to do business there. (1275)     In addition, it has been shown that there were restrictions in respect of works on central government contracts as well as the supply of asphalt mass. When taking into account that works commissioned by the State were executed throughout the country, the restrictions relating to such contracts necessarily affected the whole State territory. (1276)     On the above-mentioned grounds, [the applicant company] has participated in the nationwide cartel the existence of which the Supreme Administrative Court has found established in Part 9 of the present judgment.” 27.     It further held that the applicant company had taken part in this cartel for almost five years. It had been established that the applicant company through its representatives had been an active operator in the cartel, taken initiatives for agreements regarding bidding for contracts, hampered the business of new and smaller companies in the market and exerted pressure on other companies to join the cartel. 28.     The Supreme Administrative Court based its above mentioned findings concerning the applicant company on one witness statement given directly before it, which was corroborated by several witness statements given before the Market Court. The court noted that witnesses heard before it and the Market Court had given evidence about matters based on what they had experienced, heard or inferred concerning the applicant company’s conduct. Those statements could not be excluded when assessing the nature and extent of the restrictions of competition in which the applicant company had been involved. The court specifically stated that the economic evidence of the applicant company’s unusual financial performance was not taken into account as evidence of the existence of the cartel. Moreover, the court found that the applicant company had not been able to present any credible alternative explanations for its behaviour on the markets, or to refute the Competition Authority’s conclusions. 29.     The applicant company had thus participated in a very serious and extensive cartel, which had aimed to eliminate all functioning competition in the Finnish asphalt markets and which had been particularly harmful for this sector. However, in determining the penalty payment, account was taken of the relatively small market share of the applicant company and the regional and temporal dimensions of the applicant company’s infringements, which were smaller than those of the prime participants in the cartel. B.     Compensation proceedings 30.     After the Supreme Administrative Court’s decision of 29   September 2009, and on the basis of that decision, the Finnish State and several municipalities brought compensation claims in the civil courts against the participants in the cartel, including the applicant company. Those claims amounted to several million euros in total. 31.     On 28 November 2013 the Helsinki District Court ( käräjäoikeus, tingsrätten ) rejected the Finnish State’s claims against all asphalt companies, including the applicant company. The Finnish State was ordered to pay the asphalt companies’ litigation costs, some EUR 2.6 million. On the other hand, most of the municipalities won their cases against the asphalt companies. The applicant company lost two out of the four cases brought against it, but it was not ordered to pay any compensation to either of those two municipalities, since another asphalt company had already been ordered to do so. 32.     The Finnish State appealed against the District Court judgment. Also, in three of the four cases which the municipalities had brought against the applicant company appeals were lodged with the Court of Appeal ( hovioikeus, hovrätten ). 33.     On 20 October 2016 the Helsinki Court of Appeal accepted the claims of the Finnish State against the asphalt companies in four cases out of seven. The applicant company was among those asphalt companies which lost their case against the State, and it was ordered to pay some EUR   1.7   million in compensation to the State. Moreover, the Court of Appeal rejected the appeals of most of the municipalities. The applicant company thus won all of its three cases against the municipalities before the Court of Appeal. 34.     The applicant company appealed against the judgment of the Court of Appeal in respect of the claim by the Finnish State which it had lost. Two of the three cases brought by the municipalities against the applicant company were also appealed against to the Supreme Court ( korkein oikeus, högsta domstolen ). 35.     On 6 September 2017 the Supreme Court refused the applicant’s request for leave to appeal. The judgment of 20 October 2016 by the Court of Appeal thus became final in respect of the applicant company. C.     Extraordinary proceedings 36.     On 25 September 2014 the applicant company requested the Supreme Administrative Court to annul its decision of 29 September 2009. 37.     On 3 January 2017 the Supreme Administrative Court decided to suspend the proceedings until the Strasbourg Court renders a decision in the present case. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Restriction of Competition Act 38.     At the material time, the Restriction of Competition Act ( laki kilpailunrajoituksista, lagen om konkurrensbegränsningar , Act no.   480/1992, as in force at the relevant time) was applicable to the case. This Act was subsequently repealed by the Competition Act ( kilpailulaki, konkurrenslagen , Act no. 948/2011) that entered into force on 1   November 2011. 39.     In accordance with sections 5 § 1 and 6 of the Restriction of Competition Act: Section 5 § 1 “In carrying out an economic activity, it shall be prohibited to implement an agreement or any other concerted practice under which competitive bidding for the sale or purchase of good or for the rendering of a service requires (1) that a person refrain from making a tender; (2) that a person submit a tender which is higher or lower than [that of] another person, or; (3) that the price tendered or an advance or credit term applied shall otherwise be based on collusion among the tenderers.” Section 6 “Undertakings or associations of undertakings operating at the same level of production or distribution shall not, whether by virtue of an agreement, a decision or any similar procedure (1) fix or recommend prices or rentals to be charged or paid in relation to an economic activity; (2) restrict production, divide markets, or divide sources of supply, unless it is indispensable to do so with regard to arrangements which contribute to the efficiency of production or distribution or make for technical or economic development and which mainly benefit customers or consumers.” 40.     Section 8 §§ 1-2 of the Restriction of Competition Act provided as follows: Section 8 §§ 1-2 “A penalty payment [penalty for the infringement of competition] shall be imposed on an undertaking or an association of undertakings which infringes the provisions of any [parts] of sections 4 to 7, unless the infringement must be deemed to be insignificant, or unless the imposition of a penalty must otherwise be deemed unjustifiable from the point of view of safeguarding competition. In determining the amount of the penalty, account shall be taken of the nature and scope of the restraint on competition, as well as its duration. The amount of the penalty shall be between FIM 5,000 [EUR 840.94] and FIM 4,000,000 [EUR   672,751.70]. Where the restraint on competition and the circumstances of the case so warrant, the above maximum may be exceeded. The maximum penalty shall not, however, exceed 10% of the previous year’s total turnover of each of the undertakings or associations of undertakings that have participated in the restrictive practice.” 41.     A penalty payment is imposed by the Market Court on the basis of an application by the Competition Authority. It is payable to the State. 42.     According to the preparatory works of the Restriction of Competition Act (HE 162/1991 vp), a penalty payment is a punitive type of payment which is imposed in administrative-law proceedings. The amount of a penalty payment should exceed the amount of profit obtained as a result of the anti-competitive measures. 43.     According to a preparatory working group report (KTM mietintö 1991:15), a penalty payment should be severe enough for an economic operator not to be able to draw any economic benefits from an intentional breach of competition law rules. As the sanction is to be imposed in administrative-law proceedings, legal guarantees need to be adequate. Legal principles applied within the field of criminal law are to be applied. In this regard, particular attention should be paid to the principles of substantive criminal law relating to the exclusion of liability in certain circumstances. Furthermore, the proceedings in the administrative courts have to satisfy the criterion of foreseeability, and the reasoning in their decisions must be clear and sufficient. B.     The Administrative Judicial Procedure Act 44.     In accordance with section 15a of the Restraint of Competition Act, the provisions of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslagen , Act no. 586/1996) are applicable to competition law cases. 45.     Section 33 of the Act provides the following: Section 33 – Scope of review “The appellate authority is responsible for reviewing the matter. Where necessary, it shall inform the party or the administrative authority that made the decision of the additional evidence that needs to be presented. The appellate authority shall, on its own initiative, obtain evidence as far as the impartiality and fairness of the procedure and the nature of the case so require.” 46.     It is stated in the reasoning for the Government Bill concerning the Administrative Judicial Procedure Act (HE 217/1995 vp) that the review under section 33 refers to an investigation of facts which is possible within the limits of the powers of investigation, the special features of the legal remedy in question, and other circumstances of a similar type. According to the reasoning, the provision mainly describes how the procedure must be conducted in order to enable the court to find out the substantive truth. 47.     According to the reasoning for the Government Bill, the Administrative Judicial Procedure Act is founded on the principle that the parties must present the facts supporting their claims or counterclaims. If the court considers that a normal exchange of pleadings does not clarify the facts sufficiently, it must continue to examine the case. The primary way to proceed is to inform the parties about the additional evidence to be presented. 48.     Section 34 of the Act provides the following: Section 34 – Hearing the parties “Before the resolution of the matter, the parties shall be reserved an opportunity to comment on the demands of other parties, and on evidence that may affect the resolution of the matter. The matter may be resolved without hearing a party if his claim is dismissed without being considered on its merits or is immediately rejected, or if the hearing is for another reason manifestly unnecessary. Separate provisions shall apply to the restraints on a party’s access to official documents that are not public.” 49.     In accordance with section 51 of the Act: Section 51 – Resolution “The appellate authority shall resolve all the demands made in the matter in its decision. It shall review all evidence available and determine on which grounds the resolution can be based.” C.     Ruling by the Supreme Administrative Court 50.     In the judgment rendered in this case, the Supreme Administrative Court has stated that in the interpretation and application of the above mentioned procedural rules account must be taken of the fact that in proceedings such as the present ones the court is called upon to examine an application lodged by the Competition Authority, instead of an appeal lodged against a decision taken by an administrative authority. D.     Precedent of the Supreme Court in criminal proceedings 51.     In precedent case KKO:2008:68, the Supreme Court took a stand on hearsay evidence in criminal proceedings. According to the court, hearsay evidence refers to a situation where a witness reports on something communicated to him or her by another person and where it is the veracity of the latter person’s observations or declarations that is to be established. Finnish legislation does not prohibit hearsay evidence, but such evidence is also assessed in accordance with the principle of free assessment of evidence. 52.     The Supreme Court considered that hearsay evidence was problematic to any court, because the assessment of the existence of such a fact would be based on an assessment of the reliability and credibility of a person not attending the hearing. The court would thus be deprived of a possibility to observe that person directly and to assess his or her credibility and reliability when delivering the statement. 53.     The Supreme Court pointed out that hearsay evidence was also problematic with regard to the defendant against whom such hearsay evidence was used. The Supreme Court explicitly stated that, in accordance with Article 14, paragraph 3 (e) of the United Nations International Covenant on Civil and Political Rights and Article 6, paragraph 3 (d) of the European Convention on Human Rights, everyone accused of a crime must have the right to question witnesses who were testifying against him or her. The Supreme Court referred to the extensive case-law of the Court, and held that the right to a fair trial was violated if a conviction was based mainly on witness statements which the defendant had not had the chance to question in order to clarify the reliability and credibility of such witnesses. The Supreme Court referred in particular to cases Unterpertinger v. Austria , 24   November 1986, Series A no. 110; Delta v. France , 19 December 1990, Series A no. 191-A; and Rachdad v. France , no. 71846/01, 13   November 2003. The Supreme Court concluded that these Conventions and this case-law needed to be taken into account when assessing the role of hearsay evidence in an individual criminal case. 54.     In the precedent case in question, the Supreme Court held that, in the circumstances of the case, a conviction could not be based decisively on hearsay evidence. As the rest of the evidence admitted in that case supported the charges only weakly, the Supreme Court held that the charges had not been proven beyond reasonable doubt. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 55.     The applicant company complained under Article 6 §§ 1 and 3 (d) of the Convention that the Supreme Administrative Court had relied on hearsay evidence from unidentified sources which the applicant company had not been able to examine or have examined. 56.     The Court, being the master of the characterisation to be given in law to the facts of the case (see Söderman v. Sweden [GC], no. 5786/08, §   57, ECHR 2013, and Moretti and Benedetti v. Italy , no. 16318/07, § 27, 27   April 2010), considers that the applicant company’s complaints should be examined solely under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 57.     The Government contested that argument. A.     Admissibility 58.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant company 59.     The applicant company maintained that, by accepting hearsay evidence, the Supreme Administrative Court had failed to fulfil the requirements of the Convention. Although the Supreme Administrative Court had acknowledged in its decision that it needed to take the Convention into account, it had still failed to do so in practice. The applicant company had been able to actively use its right to cross-examine the witnesses, but since all of them had only offered hearsay evidence, it had naturally been impossible to have the initial sources examined, some of whom had even remained unidentified. 60.     The applicant company further argued that none of the provisions in Finnish legislation gave any right to assume that hearsay evidence was admissible. On the contrary, the Supreme Court had come to a different conclusion in precedent case KKO:2008:68, which, according to the Supreme Administrative Court, was also applicable to civil and administrative-law proceedings. The Supreme Administrative Court had relied on a “holistic approach” and had based the conviction on hearsay evidence “alongside other scattered evidence”. There was no justification for that in EU law or in EU competition law in particular. 61.     In the applicant company’s case, this other evidence had consisted of an ambiguous document, the origin of which was not clear, and of financial evidence which in fact had shown that, in the applicant company’s case, the financial evidence did not support any findings regarding the existence of a cartel. None of the telephone recordings related to the applicant company. The outcome of the case dealt with by the Market Court had been different because the court had not accepted any hearsay evidence. The Court’s findings in the case of Delta v. France , cited above, supported this latter approach. (b)     The Government 62.     The Government observed that, when examining the applicant company’s case, the Supreme Administrative Court had considered that the matter was comparable in principle to criminal charges to which Article 6 of the Convention applied. Both the Market Court and the Supreme Administrative Court had held an oral hearing in the matter to hear witnesses, and the applicant company had actively used its right to cross-examine those witnesses. The applicant company had not asked the Supreme Administrative Court to hear any witnesses other than those it had heard. 63.     The Government stressed that, in accordance with domestic legislation, there was free assessment of evidence, which meant that each court considered what evidentiary value was to be given to each piece of evidence. Hearsay evidence was not expressly forbidden, but, like any other evidence, was to be assessed freely. Hearsay evidence was also not ruled out by the Court’s case-law. In the present case, the Supreme Administrative Court had held that it was essential to take a holistic approach to the evidence presented, and also that inferences could be drawn in order to substantiate prohibited cooperation in a competition law case. In competition issues, careful account had to be taken not only of the relevant domestic legislation, but also of EU competition law and the case-law of the EU courts in particular. The Supreme Administrative Court had done so by linking the principles governing the assessment of evidence seamlessly with the case-law of the Court of Justice of the European Union on competition law. In the Government’s view, the judgment of the Supreme Administrative Court thus complied with the requirements for the processing of competition law cases which the Court of Justice of the European Union had laid down in its case-law. 64.     The Government submitted that the Supreme Administrative Court had not exclusively or decisively based its decision on hearsay evidence. It had relied on documentary evidence, oral testimonies which had been based on the experience of the witnesses heard by the court, and financial analysis. The hearsay evidence had thus not been the sole and decisive evidence in the case (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos.   26766/05 and 22228/06, §§ 128 and 147, ECHR 2011). Nor was the court’s decision based on witness statements which the applicant company could not have examined during the proceedings. 2.     The Court’s assessment (a)     The applicability of the criminal limb of Article 6 65.     The Court notes first of all that the Government did not dispute the applicability of the criminal limb of Article 6 to the present case. In fact, the Government submitted that when examining the applicant company’s case, the Supreme Administrative Court, referring to the Court’s judgment in Jussila (cited above) , had considered that the matter was in principle comparable to criminal charges to which Article 6 of the Convention applied. It is therefore not disputed that the matter at hand falls within the criminal limb of Article 6 of the Convention. (b)     General principles 66.     The Court has emphasised that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article   6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, inter alia , Regner v. the Czech Republic [GC], no.   35289/11, § 146, 19 September 2017, and Salov v. Ukraine , no.   65518/01, § 87, ECHR 2005 ‑ VIII). 67.     The rights deriving from these principles are not absolute. While the Contracting States enjoy a certain margin of appreciation in this area, it is for the Court to determine in the last instance whether the requirements of the Convention have been complied with. Even in criminal cases the Court has held that there may be competing interests which must be weighed against the rights of the party to the proceedings. However, only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible under Article 6 § 1. For that to be the case, any difficulties caused to the applicant party by a limitation of his or her rights must be sufficiently counterbalanced in the procedures followed by the judicial authorities (see Fitt v. the United Kingdom [GC], no. 29777/96, §§ 45-46, ECHR 2000 ‑ II). 68.     In the Court’s case-law, the autonomous interpretation adopted by the Convention institutions of the notion of a “criminal charge” under the so-called Engel criteria has led to a gradual broadening of the scope of the criminal limb of Article 6 to cases not strictly belonging to the traditional categories of criminal law (see, inter alia , Jussila , cited above, § 43). Cases relating to the enforcement of competition and similar domains of law have often been examined under the criminal head of Article 6 (see Deweer v.   Belgium , 27 February 1980, §§ 46-47, Series A no. 35; Société Stenuit v.   France , no. 11598/85, §§ 59-67, Commission’s report of 30 May 1991; Lilly France S.A. v. France (dec.), no. 53892/00, 3 December 2002; A.   Menarini Diagnostics S.R.L. v. Italy , no. 43509/08, 27 September 2011; Dubus S.A. v. France , no. 5242/04, §§ 37-38, 11 June 2009; and Grande   Stevens and Others v