STANDARD OF PROOF IN CARTEL CASES

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1 STANDARD OF PROOF IN CARTEL CASES GIEDRĖ JARMALYTĖ Head of the Law and Competition Policy Division, Competition Council of the Republic of Lithuania Workshop on Detecting Cartels, Tirana, Albania March 2014

2 2 What is this presentation about? General remarks Burden of proof and standard of proof What is the standard of proof? How the requisite legal standard could be satisfied? Practical approach Evaluation of evidence Dangers and risks need to be avoided Final result of the infringement decision

3 GENERAL REMARKS 3

4 4 General Remarks Burden of proof and standard of proof What is the standard of proof? How the requisite legal standard could be satisfied? Burden of proof Obligation to prove certain circumstances It is the Authority, that primarily bears the burden of proof Standard of proof Level of certainty needed to prove a disputed assertion Interrelation Once the required standard of proof is reached by the Authority, its burden of proof is discharged The burden of proof then shifts from the Authority to the undertaking and then the undertaking has to demonstrate that the Authority s assertions are wrong Finally the level of certainty to prove that the Authority s primary assertions were correct becomes higher comparing to the primary level. However, it doesn t mean that the primary level was in general too low

5 5 General Remarks Burden of proof and standard of proof What is the standard of proof? How the requisite legal standard could be satisfied? Various standards of proof Balance of probabilities civil cases Substantial evidence administrative Beyond reasonable doubts criminal No pre-defined standard in EU cartel cases Standard assertion must be sufficiently proved in law To prove the infringement to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement Sufficiently precise and consistent evidence which support firm conviction that the alleged infringement took place, could satisfy the requisite legal standard

6 6 General Remarks Burden of proof and standard of proof What is the standard of proof? How the requisite legal standard could be satisfied? Why abstract standard is used? Tools evidence of facts and presumptions Categories of evidence Presumptions

7 7 Why abstract standard is used? Secret nature of the cartels it is impossible to determine what kind of and how much evidence will be available Different types of evidence and they don t have predefined probative value free evaluation of the evidence and assessment, what is persuasive, is necessary Pre-defined level of persuasion in order to discharge the burden of proof would limit chances to establish an infringement and increase chances to avoid liability for it

8 8 Categories of evidence Various classifications, for instance: Direct / indirect Written / oral Contemporaneous / produced for the purposes of the proceedings Inculpatory / exculpatory In general any type and form of information that could prove or disprove the existence of certain fact or other circumstance

9 9 Presumptions Fragmented pieces of factual evidence (especially in cartel cases) require use of deduction methods Presumptions allow to some extent prove certain elements of the infringement. Most famous : Attendance at the meeting (without public distancing) acceptance of the agreement Information was obtained at the meeting this information influences subsequent behaviour on the market Existence of prohibited form of agreement distortion of competition (by object or effect) In order to use them still factual background needs to be established

10 PRACTICAL APPROACH 10

11 11 Practical Approach Evaluation of evidence Dangers and risks need to be avoided Final result of the infringement decision Elements to be proved Probative value Role of economic analysis Quality and quantity

12 12 Elements to be proved Crucial exercise indicate elements and facts that need to be proven in order to establish the cartel infringement Helps to defined boundaries of the primary burden of proof Not necessary all issues, that defending parties may try to raise as manifestation of not sufficient standard of proof, are constituent elements of the infringement Constituent elements of the cartel infringement: Agreement / concerted practice concurrence of wills Object (or effect) of the restriction of competition agreement on price fixing, market sharing, production restriction, or of other prohibited type Duration from start to end (how long did it last or does it still last?) Participants of the agreement did each individual undertaking take part in the agreement? Additional elements important to the amount of fine Implementation, impact on the market, etc.

13 13 Value of evidence Available evidence needs to be evaluated for each element of the infringement Issues to consider: Author of the evidence Addressee of the evidence Where it was created, where it was found, who could access it? Circumstances in which it was created, came into being and became available to the Authority Some of possible probative factors Contemporaneous documents greater value Statements caution needed Undertaking s attitude if it admits certain fact, this fact is almost proven

14 14 Role of economic analysis Usually economic analyses (their conclusions) are not treated as facts However, they may be useful circumstantial evidence, that corroborates assertions about certain facts or other relevant circumstances In cartel cases economic analyses: Alone could hardly be treated as sufficient evidence of the infringement May be used by defending undertakings claiming that the cartel had no effect on the market (seek for lower fines) or that that the cartel didn t exist

15 15 Quality and quantity Quality the evidence must be sufficiently precise, logical, consistent, convincing, etc. Quantity no minimal or maximal limits Quality and quantity work together holistic approach Not necessary that every item of evidence satisfies the evidential requirements in relation to every element of the infringement Sufficient if the body of evidence, viewed as a whole, meets evidential requirements Even a single item of evidence can be sufficient to establish the infringement, if its probative value is such, that it alone is capable to demonstrate the existence of it Same sort of items of evidence in different cases may have different probative value and different influence to the overall assessment of the alleged infringement

16 16 Practical Approach Evaluation of evidence Dangers and risks need to be avoided Final result of the infringement decision Search the truth, not the infringement Exculpatory evidence Don t ignore it, it won t disappear sooner or later it will come out Mind the procedure Make sure that there is evidence that the Authority followed procedural requirements

17 17 Practical Approach Evaluation of evidence Dangers and risks need to be avoided Final result of the infringement decision Convincing story about cartel infringement, in which all episodes are covered by evidence that amounts to the requisite legal standard The more convincing story is the lesser chances will be, that rebuttal of few pieces of evidence will deny the whole of it

18 18 THANK YOU FOR ATTENTION! Any questions?

Indirect Evidence in Cartel Cases

Indirect Evidence in Cartel Cases ICN Cartel Workshop 2016, Madrid Monday, 2 October 2016, BOS 4 Jindrich Kloub Case handler DG Competition European Commission Overview 1) Burden and standard of proof