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
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
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
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 BouyguesTelecom 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
In the subsequent KMEv Commission and
Chalkorv 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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