Short Reads

Court of Justice allows use of evidence received from national tax authorities

Court of Justice allows use of evidence received from national tax au

Court of Justice allows use of evidence received from national tax authorities

01.05.2017 NL law

On 27 April 2017, the Court of Justice delivered its judgment on the appeal of the Pacific Fruit ruling that the European Commission could rely on evidence that it obtained from the Italian tax authority in a cartel case. Importantly, this judgment clarifies the legality of information exchanges between national authorities other than competition authorities and the Commission.

In 2011, the Commission imposed a fine on Pacific Fruit for colluding with Chiquita on banana prices in Southern Europe. In 2015, the General Court (GC) reduced the fine because the company's participation in the cartel had been interrupted [see our July 2015 Newsletter]. The GC, however, confirmed the admissibility of evidence obtained from the Italian tax authority. Pacific Fruit appealed the GC's ruling of 16 June 2015.

Pacific Fruit argued that the Commission was not allowed to rely on the personal notes of a Pacific Fruit employee which the Italian police had obtained during a search at that employee's home as part of a criminal tax investigation.

The Court, however, noted that the lawfulness of the transmission of information obtained in a criminal investigation to the Commission is governed by national law. Subsequently, the Court agreed with the GC's rejection of Pacific Fruit's argument that the Commission can use the documents received from a national authority as evidence only in respect of the matter subject to investigation. According to the Court, there is no general rule "preventing the Commission from using information transmitted by national authorities other than the Member States' competition authorities on the sole ground that that information was obtained for other purposes". The Court also ruled that the Commission was not obliged to inform Pacific Fruit that the Italian tax authority had transmitted the evidence to the Commission immediately.

Finally, the Court also rejected the argument on appeal that the GC had not sufficiently examined the legal and economic context of the relevant conduct for it to be qualified as a restriction "by object". Noting that the facts and evidence had led the GC to agree with the characterization of the behaviour as a price-fixing cartel, the Court held that the analysis of the economic and legal context of the practice may be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object. In the case of price fixing conduct such examination can be very succinct, according to the Court of Justice. As such, the judgment reconfirms the low threshold for finding object infringements when competitors exchange price related information.

This article was published in the Competition Law Newsletter of May 2017. Other articles in this newsletter:

  1. Court of Justice clarifies parental liability rules in the context of prescription
  2. European Commission publishes report on effectiveness of enforcement in online hotel booking sector
  3. Dusseldorf Court confirms that Asics' online sales restrictions violate competition law
  4. Hague Court of Appeal rules on interpretation of object infringements
  5. Commercial Court of Ghent grants compensation to parallel importers for competition law infringement by Honda

Team

Related news

11.09.2019 EU law
Legal trend: climate change litigation

Articles - Climate change cases can occur in many shapes and forms. One well-known example is the Urgenda case in which the The Hague Court condemned the Dutch government in 2015 for not taking adequate measures to combat the consequences of climate change. Three years later, the Court of Justice of The Hague  upheld this decision, and it is now pending before the Dutch Supreme Court. This case is expected to set a precedent for Belgium, i.a. Since both the Belgian climate case and the Urgenda case are in their final stages of proceedings, this blog provides you with an update on climate change litigation.

Read more

05.09.2019 NL law
No fine means no reason to appeal? Think again!

Short Reads - Whistleblowers who have had their fine reduced to zero may still have an interest in challenging an antitrust decision. The Dutch Authority for Consumers and Markets (ACM) held two de facto managers personally liable for a cartel infringement but, instead of imposing a EUR 170,000 fine, granted one of them immunity from fines in return for blowing the whistle. The Trade and Industry Appeals Tribunal found that, despite this fortuitous outcome, the whistleblower still had an interest in appealing the ACM's decision.

Read more

05.09.2019 NL law
ECJ answers preliminary questions on jurisdiction in cartel damage case 

Short Reads - On 29 July 2019, the ECJ handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in what is termed the trucks cartel. The court clarified that Article 7(2) Brussels I Regulation should be interpreted in such a way as to allow an indirect purchaser to sue an alleged infringer of Article 101 TFEU before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage. In practice, this often means that indirect purchasers will be able to sue for damages in their home jurisdictions.

Read more

05.09.2019 NL law
Wanted: fast solutions for fast-growing platforms

Short Reads - Dominant digital companies be warned: calls for additional tools to deal with powerful platforms in online markets are increasing. Even though the need for speed is a given in these fast-moving markets, the question of which tool is best-suited for the job remains. Different countries are focusing on different areas; the Dutch ACM wants to pre-emptively strike down potential anti-competitive conduct with ex ante measures, while the UK CMA aims for greater regulation of digital markets and a quick fix through interim orders.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring