In this article, we give a factual overview of a significant case development at EU level, and then provide a more detailed analysis of the developments addressed.
SUMMARY OF SIGNIFICANT CASE DEVELOPMENTS
Advocate General Wathelet recommends setting aside GC judgment in smart card cartel case
On 12 April 2018, Advocate General ("AG") Wathelet delivered an opinion in which he recommended that the Court of Justice of the European Union ("ECJ") set aside the General Court's ("GC") judgment which had dismissed the claims brought by Infineon in connection with its involvement in the smart card cartel case (see VBB on Competition Law, Volume 2016, No. 12, available at www.vbb.com).
In his opinion, AG Wathelet focused on two points of law. First, he opined that the case should be referred back to the GC because it had not carried out, in the exercise of its unlimited jurisdiction, an extensive review of the contacts challenged by Infineon. Such a review was necessary to determine whether the amount of the fine imposed by the Commission reflected the gravity of Infineon's involvement in the cartel. Second, AG Wathelet took the view that the GC had failed to comply with the requisite burden of proof when examining a piece of evidence, which was used by the Commission in its decision, and which was contested by Infineon. AG Wathelet, however, considered Infineon's plea as ineffective because the ECJ does not have jurisdiction to review the facts. Both points of law will be discussed below.
Analysis of Important Substantive and Procedural Developments
Smart card cartel case - effective judicial review and unlimited jurisdiction
Under EU case law, the fact that an undertaking did not take part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. Those factors, however, must be taken into consideration when the gravity of the infringement is assessed when it comes to determining the fine.
On appeal, Infineon argued that the GC had committed an error of law insofar as it merely examined five of the eleven bilateral contacts relied upon by the Commission to hold Infineon liable for participating in the single and continuous infringement, although Infineon had contested all eleven contacts.
AG Wathelet opined, in the first place, that the GC had not erred in law by examining only five of the eleven bilateral contacts in order to ascertain whether Infineon had, in fact, participated in the single and continuous infringement. AG Wathelet noted that the infringement had lasted three years and that the coordinated price policies were agreed between the cartelists, including Infineon, on a yearly basis. Hence, since the examination by the GC of only five contacts was enough to prove Infineon's participation in the single and continuous infringement, there was no need for the GC to examine all eleven contacts.
Notwithstanding this finding, AG Wathelet considered that, in the exercise of its unlimited jurisdiction, the GC should have carried out an exhaustive review of all the contacts challenged by Infineon in order to determine whether the amount of the fine reflected the gravity of Infineon's involvement in the cartel. Because the GC did not do so, AG Wathelet recommended that the ECJ set aside the GC's judgment and refer the case back to the GC so that it could examine all the contacts at issue for the purpose of determining the amount of the fine.
Smart card cartel case – the issue of the authenticity of the evidence
Under EU case law, if the court finds that there is any doubt as to the actual nature of a contested document and/or whether it was obtained by proper means, the document must be disregarded.
On appeal, Infineon argued that the GC had erred in law insofar as it had failed to set aside a piece of evidence whose probatory value was – according to Infineon – compromised. More specifically, Infineon argued that an email submitted by Samsung in the context of its leniency application, which had been relied upon by the Commission in its decision, was not authentic. This was despite the fact that, at the stage of the Commission's investigation, Infineon had provided the Commission with several expert reports which concluded that the authenticity of the document could not be confirmed.
In his opinion, AG Wathelet noted that the GC had placed the burden of proof on Infineon to demonstrate that the contested piece of evidence was not authentic. The GC had found that the expert reports provided by Infineon only concluded that it could not be confirmed that the document at stake was authentic and, as a result, the GC ruled that the Commission had correctly admitted the evidence.
In this regard, AG Wathelet reasoned that: (i) the only relevant criterion when assessing the probative value of evidence is its credibility; (ii) in order to assess whether a piece of evidence is credible, it must be authentic; and that (iii) if the court finds that there is any doubt as to the nature of a contested document, the document must be disregarded.
In the present case, AG Wathelet found that the Commission should have established the authenticity of the evidence by, at least, requesting an independent expert report in order to ascertain whether the piece of evidence was or was not authentic. As the Commission had not done so, the GC committed an error of law in its assessment of Infineon's claim, since the authenticity of that piece of evidence was clearly doubtful.
Notwithstanding this finding, AG Wathelet recalled that the ECJ does not have jurisdiction to review findings of fact or the value of the evidence accepted by the GC in support of the facts. Therefore, AG Wathelet recommended that the ECJ disregard Infineon's claim as ineffective.
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