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
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; 14th January 2011
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