COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
The Competition Authority holds itself to be free to produce evidence of collusion based on any objective factor of a probative value coming to light in its assessment. According to the usual wording, proof of an agreement can be deduced through “a serious, precise and consistent body of evidence”. The proof is established through the concordance of evidence, irrespective of the value of each piece of evidence taken separately.
Generally, proof of the agreement is provided either by documents that are sufficient in themselves, or by hearings of the managers and executives of the undertakings concerned, or by evidence, or by a combination of these three elements. The Authority may rely on any document even if it was not taken at the premises of the undertaking in question; it is sufficient that it constitutes evidence of a cartel. The document seized is not only enforceable against the undertaking which produced it, but also against the recipients of it and those mentioned in it, unless it contains data which are subsequently contradicted by the facts or are devoid of any indication of origin. A single document, which is not supported by any extrinsic element other than the explanations of its creator, is not sufficient to provide evidence of an agreement. An e-mail that is not corroborated by any other material document or statement is not sufficient to demonstrate the undertaking’s adherence to or knowledge of an overall anticompetitive plan. Evidence may also directly come from witness statements or admissions. Thus, the detailed and corroborating statements made during the administrative investigation by top executives of the companies in question who are direct witnesses of the facts which go against the interests of the entities they represent, have a high degree of credibility. Where statements are made by members of a cartel in the context of their respective requests for leniency, and where they support each other, the Competition Authority recognizes that they are particularly reliable because of the cooperation obligation on leniency applicants. On the other hand, the settlement concluded by the Minister of the Economy with certain members of the cartel pursuant to Article L. 464-9 of the Commercial Code does not establish the active acknowledgment, by operators who have not accepted that procedure, of the unlawfulness of the practices. To challenge the standing of documentary evidence, the undertaking must provide a convincing alternative explanation. Similarly, in the absence of material evidence of collusion, the complainant undertaking must demonstrate the coherence of the alleged collusive scenario.
In the absence of direct evidence of collusion, the Competition Authority resorts to presumptive evidence. The system of indirect evidence is by far the most common one used to demonstrate the existence of a concerted practice.