Exotic Fruits (Bananas) cartel case - Commission may use evidence transmitted by national tax authority in antitrust proceedings

• 08/05/2017
• Articles

Under Article 12(1) of Regulation 1/2003, for the purpose of applying Articles 101 and 102 TFEU, the European Commission and the competition authorities of the Member States have the power to provide one another with and use evidence on any matter of fact or of law, including confidential information. Article 12(2) of Regulation No 1/2003 adds that the information exchanged for that purpose shall only be used as evidence in respect of the subject-matter for which it was collected by the transmitting authority.

In its appeal, Pacific Fruit argued before the Court of Justice of the European Union (“ECJ”) that the General Court (“GC”) had infringed essential procedural requirements and its rights of defence by endorsing the use of the evidence transmitted to the Commission by the Italian customs and finance police. Pacific Fruit claimed that the Commission should have been prevented from using the documents other than in relation to the subject matter for which they were collected by the national authority.

In the case at issue, the Commission had initiated antitrust proceedings against Pacific Fruit on the basis of notes that had been obtained by the Italian customs and finance police in the course of a criminal investigation and which the Italian authorities had, subsequently, transmitted to the Commission. On appeal, the GC ruled that the Commission could validly use this evidence in its investigation under the EU competition rules (See VBB on Competition Law, Volume 2015, No. 6).

In its judgment, the ECJ upheld the GC’s assessment and confirmed the admissibility of evidence transmitted to the Commission by the Italian customs and finance police. The ECJ held that, for the purposes of proving a cartel, the Commission can rely on and use as evidence documents that were legally transmitted by national authorities, other than competition authorities, as long as the transmission was not unlawful under national law.

The ECJ’s position is in line with Advocate General Kokott’s Opinion in the case (see VBB on Competition Law, Volume 2016, No. 11). In endorsing the Advocate General’s view, the ECJ recalled that Article 12 of Regulation 1/2003 pursues the specific objective of simplifying and encouraging cooperation between the authorities within the European Competition Network by facilitating the exchange of information. Therefore, Article 12(1) and (2) of that Regulation could not be interpreted, as Pacific Fruit contended, as preventing the Commission from using information transmitted by national authorities other than competition authorities on the sole ground that that information was obtained for other purposes. The ECJ considered that such a rule would excessively hamper the role of the Commission in its task of supervising the proper application of EU competition law.