Cartels of construction companies, unfair competition and evidentiary process. The principle of a fair trial in the whole process

JUDGMENT

SA-Capital Oy v. Finland 14.02.2019 (no. 5556/10)

see here

SUMMARY 

The case concerned the applicant company’s complaint that Finland’s Supreme Administrative Court
had relied on hearsay evidence about its role in an asphalt cartel and had increased a fine on it.

The Court found that the Supreme Administrative Court, which had been dealing with the case on
appeal from a first-instance judgment, had had plentiful evidence of the company’s involvement in
the cartel and that the indirect, hearsay evidence had not been conclusive.

Given the complex nature of competition cases, the way in which the domestic court had gathered
evidence from witnesses had been appropriate and the applicant company had been able to test
those submissions.

PROVISIONS

Article 6 §1

Article 6 §§ 1 and 2

PRINCIPAL FACTS 

The applicant, SA-Capital Oy, is a Finnish company with its head office in Rovaniemi (Finland).

After proceedings begun by the Competition Authority in 2004, the Market Court found in December
2007 that the company had been part of an asphalt cartel for contracts offered by the central
government. It was found to have taken part in the territorial allocation of markets, some price
fixing and in restricting the supply of asphalt mass. It was fined 75,000 euros (EUR).

The defendant companies, including the applicant company, and the Competition Authority all
appealed to the Supreme Administrative Court, which in September 2009 overturned the
first-instance decision. It found that a single nationwide cartel had existed between 1994 and 2002,
affecting central and local government and the private sector.

The Supreme Administrative Court found that the applicant company had taken part in the cartel, at
both central government and municipal level, in particular in Lapland and North Karelia, from May
1995 to February 2000. It increased the company’s fine to EUR 500,000, which was determined
according to the company’s relatively small market share and the nature of its infringements in
comparison with the cartel’s main participants.

The Supreme Administrative Court based its decision on evidence that it had heard directly in court
and on testimony that was heard in the Market Court, which included evidence which witnesses had
either experienced themselves or had heard or inferred from others.

THE DECISION OF THE COURT 

Article 6 § 1

The Court first decided that the company’s complaint that the Supreme Administrative Court had
relied on hearsay evidence should be examined under Article 6 § 1 alone.

The Court noted that it had to examine the fairness of the proceedings as a whole, adding that cases
involving competition law were often complex. Indeed, in the appeal involving the applicant
company, the Supreme Administrative Court had had to carry out an assessment of several
elements, involving a wide range of financial, factual and legal considerations.

The Court observed that the applicant company had been able to influence what evidence was
adduced before the Supreme Administrative Court as it had been able to attend a preparatory
meeting to discuss that issue. The applicant company had not requested other witnesses beyond the
six who had been called to appear in the appeal court. The Court found overall that the way the
Supreme Administrative Court had handled evidence from witnesses had been justified.

It also noted that the central issue which the Supreme Administrative Court had had to determine
was the scale of the applicant company’s involvement in the cartel – whether it had concerned
central government contracts or those awarded by local government and the private sector.

To that end, the Supreme Administrative Court had taken account of the testimony in the
first-instance court and had heard its own witnesses, some of which had directly implicated the
applicant company in the cartel. Although some of the witness evidence might have been hearsay,
the Court was not convinced that the Supreme Administrative Court had relied on such evidence to a
decisive extent.

The Court found that the proceedings as a whole had been fair: the Supreme Administrative Court
had explained the relevant domestic and European Union law, and had taken account of Article 6 of
the European Convention. The evidence had been open to challenge by the applicant company, which had had the possibility to submit its own evidence to rebut that of the prosecution. The
applicant company had thus been able to exercise its right of defence.
In conclusion, the Court held that in the circumstances of the case the extent to which the Supreme
Administrative Court had relied on untested, indirect evidence had been justified.

Article 6 §§ 1 and 2

The Court observed that the Supreme Administrative Court’s judgment had discussed the burden of
proof and the applicable standards for it. The court had concluded that the Competition Authority
had provided extensive evidence of a cartel while the defendants had not been able to refute the
credibility of the evidence or the Competition Authority’s conclusions.

The Court detected no sign that the principles set out by the Supreme Administrative Court and the
way it had applied them were in conflict with Article 6 § 2 or that the court had been inclined
beforehand to find the applicant company liable.

It could therefore not be said that the Supreme Administrative Court had shifted the burden of proof
on to the applicant company or that the standard of proof had been arbitrary in any way. These
complaints therefore had to be rejected as manifestly ill-founded and inadmissible.

Separate opinions

Judge Wojtyczek and Judge Koskelo expressed concurring opinions which are annexed to the
judgment(echrcaselaw.com editing).


ECHRCaseLaw

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