France: The French Court of Cassation Declares Secret Recordings not Admissible as Evidence before the French Competition Authority.

On 7 January 2011, the French Court of Cassation (the "Court") quashed a judgment of the Paris Court of Appeal which had admitted secret recordings as valid evidence on the basis of which the French Competition Authority (formerly the French Competition Council, or the "Council") pursued Sony and Philips for breaches of antitrust law. In 2005, following a complaint by the discount retailer Avantage, the Council fined Sony and Philips for price fixing, using recordings of their telephonic conversations made without the parties' consent.

The Paris Court of Appeal validated this approach in 2007. In 2008, the Court declared that Sony and Philips' fundamental rights to a fair trial under Article 6§1 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated. The case was thus resent to a modified bench of the Court of Appeal which nevertheless confirmed its former decision.

The issue at stake was all the more important as, firstly, no specific rules govern the submission of evidence to the French Competition Authority and secondly, secret video or telephone recordings made by a plaintiff can be admitted in criminal proceedings.  Such recordings cannot be used in civil proceedings because they are considered unfair evidence.

The 2011 decision of the Court once again overruled the Court of Appeal's decision.  The decision indicates that even though proceedings before the French Competition Authority could lead to financial penalties that are comparable to criminal sanctions, these proceedings remain regulated by the principle of fair evidence and by the French Code of civil procedure unless otherwise specified.

The case has once again been resent to a modified bench of the Court of Appeal.  The Court of Appeal, hearing the case for the third time, will now have to abide by the decision of the Court of Cassation.

To view Community Week, Issue 504; 14^th January 2011 in full, Click here.

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