CEDH · CASELAW;CLIN;ENG — 14 février 2019

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Finland - 5556/10 Judgment 14.2.2019 [Section I] Article 6 Criminal proceedings Article 6-1 Fair hearing Adequate safeguards in respect of hearsay evidence in competition law proceedings: no violation Facts – The applicant company complained 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 that evidence. Law – Article 6 § 1: Cases concerning restrictions of competition typically involved complex and often wide-ranging economic matters and related factual issues, which meant that the relevant elements of evidence were also multifaceted. There was a strong public interest involved in the effective enforcement of competition law. Moreover, as a rule, the financial penalties applicable in that field were not imposed on natural persons but on corporate entities, quantified on the basis of the harmful effects of the anti-competitive conduct and taking into account the business turnover of the entities found to be in breach of competition rules. The question was whether the proceedings before the domestic courts had been fair from the point of view of the rights of defence, given the applicant company’s complaint about the Supreme Administrative Court having relied on evidence which could not be tested before it. (a)     The reasons behind the extent to which evidence by witnesses was examined – At the first instance level, a large amount of evidence had been adduced by the Competition Authority and the defendants and had been examined before the Market Court in adversarial proceedings. The Market Court had concluded that the defendant companies, including the applicant company, had participated in the operation of a nationwide cartel in the market for central government contracts in the asphalt sector. By contrast, as regards the market for local government and private sector asphalt works and supplies, the Market Court had conducted a separate analysis of the evidence and had found that there was insufficient evidence of a cartel in the areas where the applicant company had been doing business. Consequently, while the Market Court had found the applicant company in breach of competition rules for participating in the nationwide cartel for central government contracts, it had not made a similar finding in respect of the alleged cartel for local government and private sector contracts. The central issue before the Supreme Administrative Court on appeal concerned the question whether the Market Court had been right in its analysis of the scope of the restrictive practices, in particular in separating from each other the different segments of the market depending on whether the business concerned central government contracts or local government or private sector contracts. That issue was not solely one of facts or evidence alone but one which had required an intricate analysis of market-related economic factors as well as relevant legal considerations. (b)     Importance of the untested indirect evidence – The Supreme Administrative Court had heard, as witnesses for the Competition Authority, three persons who at the relevant time had held positions in the management or as employees of some of the defendant companies having their main business in different parts of the country. One of those witnesses, a former owner of one of the companies concerned, had directly implicated the applicant company as a participant in the cartel. In addition, the Supreme Administrative Court had relied on transcripts of testimonies by further witnesses given before the Market Court, whose testimonies had corroborated the evidence inculpating the applicant company. In its analysis, the Supreme Administrative Court had arrived at a conclusion different from that of the Market Court, concluding that the asphalt sector was to be regarded as a whole in terms of the restrictive practices, and finding that there had been a single cartel encompassing all the segments of the asphalt contracts. The finding that the applicant company had participated in the cartel had been reached on the basis of documentary evidence and the testimony of witnesses who had either been heard before the court itself or before the Market Court and who, as insiders in the companies concerned, had told the courts about their own experiences in relation to the impugned restrictive practices. The relevant witnesses had been named and the gist of their testimonies quoted, without there being any indication that the court had in any significant degree relied on testimony consisting of hearsay. To the extent that the testimonies might also have included references to second-hand information received from others, the account provided in the Supreme Administrative Court’s judgment of all the evidence on the basis of which its conclusions were reached did not support the allegation that the court’s findings depended on such elements in the testimonies. Although the incriminating witnesses, who were cartel insiders, might also have related information based on hearsay, the Court was not persuaded that such elements played a decisive role in the Supreme Administrative Court’s judgment. The indirect evidence was not decisive for the outcome of the impugned proceedings. (c)     The fairness of the proceedings as a whole – The judgment of the Supreme Administrative Court had been principally based on conclusions drawn from documentary evidence and witness testimony of a kind which had been open for challenge by the applicant company, including cross-examination, in the course of the proceedings. The applicant company’s right to submit evidence in order to rebut the evidence presented by the Competition Authority and to explain extensively its own assessment of the evidence accepted by the domestic court had been fully respected. In the written and oral proceedings before the Supreme Administrative Court, the applicant company had had the opportunity to exercise rights of defence providing adequate safeguards also in respect of the evidence on the basis of which the domestic court reached its judgment in the case. In the circumstances of the case, the extent to which the Supreme Administrative Court had relied on the untested indirect evidence had not been unjustified. Conclusion : no violation (unanimously). (See also Jussila v. Finland [GC], 73053/01, 23   November 2006, Information Note 91 ; and Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al., 13   September 2016, Information Note   199 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes