The Cross-border Use of Public Documents in the EU
FEEDBACK:
Cross-border use of national competition authorities’ decisions
JLS/C4/2005/04
Introduction
Situations leading to a reversal of the burden of proof
Public documents and deeds
Decisions of courts
Countries with no general limitations on forms of evidence
Categories of forms
Hierarchy of forms of evidence
Evidential value of statement and/or decisions by a national competition authority, a national court, an authority from another EU Member State
Decisions as important/compelling evidence
Binding decisions
Obstacle: Less evidential value of foreign decisions
Making such decisions binding
Introduction
In all Member States decisions of national competition authorities (NCA) and courts can be submitted as evidence in damages proceedings and are often highly persuasive. However, only in a handful of Member States are NCA decisions considered binding. The fact that in most Member States decisions of the types mentioned above do not formally have binding effect on national courts constitutes an obstacle to the extent that plaintiffs will formally be required to prove certain elements of liability (in particular the existence of an infringement) that would otherwise be taken as proven by said decisions.
Although most national reporters consider that decisions of the Commission and those of their own competition authority would be highly persuasive, this appears generally not to be the case as regards decisions of competition authorities of other Member States.
The German 7th amendment, which entered into force on 1 July 2005, is particular in this regard in that it makes not only German NCA decisions binding on national courts but also decisions from the Commission and any other Member State NCA insofar as they find an infringement of competition law. It must, however, be noted that in the few successful damages cases there have been, any pre-existing NCA or Commission decisions finding infringement have been followed.
German courts are bound by final decisions of the FCO, the Commission and cartel authorities of other member states where a breach of German competition law or Article 81 or 82 of the EC Treaty has been established. As regards geographical reach, this binding effect is restricted to the territory of the relevant cartel authority making the determination. In other words, decisions made by foreign cartel authorities are not binding in respect of damage incurred in Germany. 7th Amendment of the GermanAct Against Restraints on Competition (Gesetzgegen Wettbewerbsbeschränkungen - GWB)
Situations leading to a reversal of the burden of proof
In different Member States there are a numberof types of evidence that lead to an automatic reversal of the burden of proof due to their form.
- Public documents and deeds
In a number of jurisdictions, facts contained in deeds (Belgium, Italy, Netherlands, Portugal,Slovakia (public deeds)) or public documents (Czech Republic (where decisions findinginfringements of law will relieve the plaintiff of the burden of proving an infringement), France,Germany (full evidence of acts carried out by issuing authority but not of correctness of adecision), Greece (full evidence of acts carried out by their author),Lithuania (facts contained in authentic state documents are rebuttablypresumed), Slovakia(rebuttable presumption), Slovenia (this rule extends also to foreign public documents),Spain (complete evidence of the facts, acts or situations to which they refer), UK (OFTdecisions are binding on courts and the CAT and European Commission decisions are binding onthe CAT)) are taken as proven which again can result in a reversal of the burden of proof. InGermany, the binding effect of decisions of cartel authorities is due to be introduced along with thedraft 7th amendment.
- Decisions of courts
Foreign or domestic judgments often havestrong evidential value and may result in a reversal of the burden of proof.In addition to those countries listed above in relation to public documents, severaljurisdictions provide that facts contained in judgments may be presumed. This is usually limited todomestic judgments (Estonia, Poland and UK). In Germany, the 7th amendment gives binding effect to final decisions of nationalcompetition authorities in any EU Member State, the EC Commission or a German court on theinfringement of competition law as far as these decisions state an infringement of competition law.Decisions issued by national courts of other Member States are binding as far as these courtshave the function to issue administrative decisions stating the infringement of competition law or ifthey decide on appeals against such administrative decisions.
(P53)
- Countries with no general limitations on forms of evidence
There are no relevant, general limitations on the forms of evidence that can be submitted in thefollowing 18 countries (although there may be some particular restrictions the most important of whichwill be listed below): Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, Hungary,Ireland, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovenia, Slovakia, Spain, Sweden andUK.
- Categories of forms
Conversely, in 7 jurisdictions, an exhaustive list of forms of admissible evidence exists (Estonia,
France, Germany, Greece, Italy, Latvia, Lithuania). The list of admissible forms of evidence ishowever generally very wide (particularly France, Germany and Latvia where even illegallyobtained evidence is admissible in proceedings). As a general remark, all states that exhaustivelylist forms of acceptable evidence include at least the following (although sometimes withlimitations):
Documents;
Parties' statements;
Expert opinions; and
Witnesses.
Hierarchy of forms of evidence
A number of states consider certain forms of evidence or categories of documents to have agreater evidential value than others:
Belgium and France: documentary evidence is accorded greater value; and
Belgium and Luxembourg: verbal testimonies are secondary to written evidence.
Evidential value of statement and/or decisions by a nationalcompetition authority, a national court, an authority from another EU MemberState
It should be recalled that, under Article 16 of Regulation 1/2003:
"When national courts rule on agreements, decisions or practices under Article 81 or Article 82 ofthe Treaty which are already subject of a Commission decision, they cannot take decisions runningcounter to the decision adopted by the Commission. They must also avoid giving decisions whichwould conflict with a decision contemplated by the Commission in proceedings it has initiated [.]When competition authorities of the Member States rule on agreements, decisions or practicesunder Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions which would run counter to the decision already adopted by theCommission".
The "minimum" value of Commission decisions in proceedings before national courtsistherefore already laid down in EC law.All Member States at least recognise that statements/decisions by a national competitionauthority, a national court or an authority from another EU Member State can be submitted asevidence in damages proceedings although most do not consider them as binding.
- Decisions as important/compelling evidence
In the following countries such decisions are in practice generally considered to be of particularimportance: Belgium (decisions are treated like other documents, although generally they areregarded as having more authority), Cyprus, Estonia, France (decisions of the national competitionauthority are considered crucial evidence), Ireland, Italy (given their high technical value,decisions by national competition authorities are considered difficult to rebutt), Lithuania (herepublic documents national or not have a higher evidential value in law), Malta (here publicdocuments national or not have a higher evidential value in law), Poland (although less so withregard to foreign decisions), Slovakia, Sweden. In Latvia, such decisions relieve the plaintiff ofhaving to prove the existence of a violation but this does not prevent the actual correctness of thedecision being called into question.
- Binding decisions
In a few Member States, decisions of the national competition authority are binding on the courts
(CzechRepublic, Greece (when they become final), Slovenia and Sweden (though only as regardsindividual exemption decisions), UK. In Poland, courtrulings finding a breach of competition law are binding on civil courts.In Austria, decisions of the Austrian Cartel Court or a judgment of an Austrian court is bindingupon the Court deciding on a damage claim. In Germany final decisions of competitionauthorities in any EU Member State (and the EC Commission) are binding on the parties to adamages action. This also applies to decisions issued by national courts of other Member Statesas far as these courts have the function to issue administrative decisions stating the infringementof competition law or if they decide on appeals against such administrative decisions.In France, references to decisions of other national competition authorities seem to have only beenfactual to date.In Estonia, judgments by thecommission in relation to a criminal or administrative offence arebinding on civil courts as to the question whether commission of an act occurred and whether itwas committed by a particular person.In Hungary, (final and binding) decision of the Competition Office on an issue falling within itscompetence is decisive.Finally, in Belgium, when the outcome of a case is dependant on a competition practice, the courtbefore which the case is pending (except for the Supreme Court ('Hof van Cassatie/Cour deCassation')), has the obligation to ask a preliminary question to the Appeal Court of Brussels,which will render a binding decision.
Obstacle: Less evidential value of foreign decisions
As stated above in the introduction the fact that, in most Member States, decisions of the types mentioned above do not formallyhave binding effect on national courts potentially constitutes an obstacle to private enforcement. However,in most Member States decisions of national competition authorities aregenerally viewed as having high evidential value, althoughthis appears generally not to be the case as regards decisions of competition authorities of other Member States.
- Making such decisions binding
One way of facilitating proof would be to make decisions by national and foreign competition authorities binding on national courts as regards the existence or not of aninfringement. This is already the approach in Austria with regard to decisions of the Austrian Cartel Court, and in Germany as far as aninfringement was established by national competition authorities in any EU Member State, the ECCommission or a German court or by national courts of other Member States as far as these courtshave the function to issue administrative decisions stating the infringement of competition law or ifthey decide on appeals against such administrative decisions.