France: European Court Of Human Rights Rejects Unfairness Claims In French Competition Case

In a decision published on 5 April 2012, the European Court of Human Rights ("ECHR"), dismissed Bouygues Telecom's claims that French competition proceedings infringed its fundamental rights.

This decision follows a series of national court appeals against a 2005 decision of the former French Competition Council finding that Bouygues Telecom, along with Orange France and SFR, had engaged in anti-competitive conduct by exchanging commercially sensitive information and coordinating prices. As a result, fines totalling € 534 million were imposed on these three undertakings, with Bouygues Telecom being fined for € 58 million.

The case subsequently made it before the ECHR, where Bouygues Telecom alleged that its rights under Article 6(1) (right to a fair trial) and Article 6(2) (presumption of innocence) of the European Convention on Human Rights had been breached due to (i) the absence of a public hearing before the French Competition Council, (ii) the "inequality of arms" arising from the intervention of three representatives of the prosecution (i.e., the Economics Affairs Ministry, the Competition Council and the public prosecutor) in proceedings before the Paris Court of Appeal, and (iii) the leakage to the press of a confidential investigation report before the French Competition Council could decide on the case.

The ECHR unanimously ruled that Bouygues Telecom's claims were inadmissible. With regards to the presumption of innocence under Article 6(2), the Court considered that it was unable to determine whether or not the French Competition Council had been responsible for the press leakage of the investigation report. Instead, the Court focused on the potential impact of the press leakage on the overall fairness of the procedure, finding on the facts that the French State has acted diligently to ensure that the applicant's right to the presumption of innocence had been respected. In particular, the press was deemed to have adopted a "moderate tone", at no time pronouncing itself on the actual liability or not of Bouygues Telecom in the cartel.

The ECHR also rejected Bouygues Telecom's arguments on equality of arms, which is part of the wider right to a fair trial, noting that the applicant was given a reasonable opportunity to defend itself and respond to the evidence presented to it by all three representatives of the prosecution.

Finally, the ECHR rejected claims that the administrative procedure conducted by the French Competition Council infringed Bouygues Telecom's right to a public hearing under Article 6(1) – which is also a component of the right to a fair trial – due to the fact that hearings before the French Competition Council are not public. According to the Court, the non-public nature of competition hearings is offset by the French Courts' full jurisdiction over these cases on appeal.

The Bouygues Telecom v France decision is the latest of a series of cases in which fundamental rights are being used to challenge before the ECHR or the EU Courts the legality of antitrust decisions adopted by administrative enforcement bodies. In the Menarini v. Italy judgment of September 2011 (see VBB on Competition Law, Volume 2011, No. 9, available at www.vbb.com), the ECHR recognised the criminal nature of competition law fines but accepted that such fines could be imposed by decisions adopted by administrative non-judicial competition authorities, provided that they were subject to a full judicial review on points of law and fact by independent courts having full jurisdiction.

In the subsequent KME v Commission and Chalkor v Commission judgments (see VBB on Competition Law, Volume 2011, No. 12, available at www.vbb.com), which appear to echo Menarini, the EU Court of Justice elaborated on the scope and extent of the judicial review which the General Court must perform when ruling on appeals against Commission decisions imposing pecuniary sanctions for competition law infringements. The above judgments confirm the EU Courts' full jurisdiction in these matters.

The question of the compatibility of competition proceedings with fundamental rights is expected to be given increased prominence in the years to come.

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