United States: General Court Confirms That The Commission May Rely On Lawfully Seized Recordings Even If Made Unlawfully By A Third Party

Last Updated: September 30 2016
Article by Mai Muto

On 8 September 2016 the General Court ("GC") dismissed Heiploeg's appeal against the European Commission's ("Commission") decision in Shrimps (AT.39633) and confirmed that the Commission may rely on recordings seized lawfully in a "dawn raid" even if the recordings were made illegally by a third party (T-54/14). This judgment reminds us of the delicate balance between the right to respect for private life and the Commission's need to obtain high probative evidence when investigating cartels.

Commission Decision

By decision of 27 November 2013, the Commission fined four North Sea shrimp traders, Heiploeg, Klaas Puul, Stührk, and Kok Seafood, a total of approximately €28 million for their involvement in a cartel, which consisted of price fixing, market sharing and exchanges of sensitive commercial information. The cartel lasted from June 2000 until January 2009 and extended to at least Belgium, France, Germany and the Netherlands. Heiploeg and Kaas Puul, the two largest traders of North Sea shrimps in the EU, engaged in frequent contacts to discuss, among other things, prices to be paid to their suppliers, prices to be charged to their customers, and the allocation of those customers. Heiploeg also concluded a long-term strategic alliance with Kok Seafood whereby Kok Seafood agreed to refrain from actively competing with Heiploeg and Kaas Puul in return for Heiploeg's purchases of North Sea shrimps from Kok Seafood at a cartelised price.

Over the course of the strategic alliance, Heiploeg and Kok Seafood developed a conflict and Kok Seafood made secret recordings of its telephone conversations with Heiploeg so as to be able to use them against Heiploeg and, possibly, even to use them as support for a leniency application (although this latter aspect was not proved, and no leniency application was made). The recordings of the telephone conversations were subsequently seized by the Commission during an on-the-spot inspection ("a dawn raid") and relied on by the Commission in its findings, alongside other evidence.

Heiploeg challenged the Commission's decision before the GC, contesting, among other things, the admissibility and credibility of the recordings and the transcripts made thereof.

GC Judgment

The first issue before the GC was to determine whether there was any legal obstacle to the use by the Commission of secret recordings and notes thereof when these were made illegally by a third party. If it was decided that there was no legal obstacle to their use, the second issue was whether the secret recordings and notes were credible enough to be relied upon by the Commission when discharging the burden of proof imposed on it by Article 2 of Regulation (EC) No 1/2003 when investigating cartels.

(1) Admissibility

The GC observed that the recordings and transcripts had been seized legally by the Commission during a dawn raid. Next, the GC observed that, according to the principle of the unfettered evaluation of evidence, the admissibility of evidence obtained lawfully cannot be contested before the GC, the only relevant criterion for the purpose of assessing its probative value being its credibility (see, to that effect, Joined Cases C‑239/11 P, C-489/11 P and C-498/11 P, Siemens v Commission, ECLI:EU:C:2013:866, paragraph 128).

In response to Heiploeg's claim that the recordings at issue were obtained by Kok Seafood's employee in violation of the right to respect for private life enshrined in Article 8 of the European Convention on Human Rights (ECHR), the GC went on to consider whether the Commission can use evidence that was obtained unlawfully by a third party but subsequently obtained by the Commission in a lawful dawn raid. The Court first recalled the case law of the European Court of Human Rights, according to which the use of unlawfully obtained evidence, particularly evidence obtained in violation of Article 8 ECHR, does not in itself breach the right to a fair trial guaranteed by Article 6 ECHR when the appellant has not been deprived of fair proceedings or of his rights of defense and when such evidence does not constitute the only evidence on which a finding of liability was based (ECHR, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140). There was no indication that Heiploeg had been deprived of fair proceedings or of its rights of defense; nor were the recordings at issue the only evidence relied upon by the Commission. Furthermore, the contents or authenticity of the recordings at issue had never been contested by Heiploeg. The Commission also verified that the recordings at issue were consistent with other elements of evidence in its file. Moreover, the recordings at issue were particularly valuable as evidence given their direct nature and were also disadvantageous to the party who made them, Kok Seafood. The GC therefore concluded that even if the recordings had been obtained by a third party unlawfully, the Commission was entitled to use them.

The GC also dismissed Heiploeg's argument that, because the use of secret recordings is illegal in certain Member States, the use of such recordings to establish a violation of Article 101 TFEU is also illegal. The GC relied on several points: first, that the European Union and the Member States all applied the ECHR, second, that the Commission and the GC were bound to apply European Union law, which did not prohibit the use of secret recordings in the circumstances of the present case, and third, although the GC could draw inspiration from a preponderance of legal thinking in the Member States, Heiploeg had not proved such a preponderance in support of its argument, and the GC could not be expected to apply the rules on evidence of a Member State that were the strictest.

Consequently, the GC concluded that the recordings at issue, and for the same reasons the transcripts thereof, were admissible as evidence in the Commission's investigation.

(2) Credibility

The GC dismissed all the arguments brought by Heiploeg to dispute the credibility of the transcripts of the recordings, in particular because the recordings were made by the third party, Kok Seafood, against its own interest and because also they were consistent with other elements of evidence in the Commission's file.

Concluding Remarks

There can be no doubt that if the Commission itself had made the recordings illegally, they would not have been admissible as evidence. The critical element in the Shrimps case is that the Commission obtained the evidence legally. The evidence was clearly not protected by professional legal privilege. So the only possible defence for Heiploeg was to invoke human rights. If this had been a criminal case decided in a Member State, the outcome might have been different, at least in some states, based on notions of fundamental rights. But EU competition law, like all the other areas of EU law cannot create penal sanctions, only administrative penalties, and so does not fall within the scope of criminal law for human rights purposes.

Arguably the fines at stake in EU competition investigations are so large that the cases are quasi-criminal. Indeed, some general principles of substantive criminal law as well as essential procedural safeguards specific to criminal cases, such as the principle of non-retroactivity and the principle of non bis in idem, have been applied to EU competition law cases. However, unlike the principle of non-retroactivity or the principle of non bis in idem, which are universally accepted, there is no consensus yet among Member States as to the prohibition of the use of evidence illegally obtained by private persons even in criminal procedures.

There are already many good reasons why operators should not become involved in cartel activity andthis case illustrates one of them. A cartel participant can never be sure that another cartel participant is not recording the discussions of its co-conspirators for some nefarious purpose, or even to make an immunity application. And if the Commission seizes the recording everyone is caught red-handed, with no defence.

General Court Confirms that the Commission May Rely on Lawfully Seized Recordings Even if Made Unlawfully by a Third Party

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.