In her song So What, P!nk sings that her mistakes don’t matter because she’s still “a rockstar.” Similar things might have been heard in the corridors of DG COMP after the 2017 Intel judgment, in which the Court of Justice considered the Court’s breach of the right of access to the file did not vitiate its decision (although the case was sent back to the General Court). Not all such breaches lead to annulment of a decision (or part thereof): this blog explores why, focusing on evidence from interviews.
Access to the file is a direct translation of the principle of equality of arms. In antitrust proceedings, access to the file is granted to the parties that are the addressees of a statement of objection (Article 15(1), Regulation 1/2003).
In antitrust proceedings, the basic principle is that a Commission decision (or part thereof) can be annulled by the CJEU on the basis of a procedural breach only if the applicant(s) show(s) that, absent the procedural breach, the outcome would have been different (Court of First Instance, Hercules Chemicals v. Commission, para. 56). When it comes to incriminating evidence, the parties must therefore show that the Commission based itself on the document to reach its decision and that its decision would have been different had the document not been used by it (Court of Justice, Aalborg Portland and Others v Commission, para. 73). Reversely, when it comes to exculpatory evidence, the applicant has to show that it could have defended itself differently and that this could have had an impact on the Commission’s decision (Ibid., para. 74).
The key question — for both inculpatory and exculpatory evidence — is therefore the following: what does one need to prove to show that a breach of the right of access to the file would have impacted the course of proceedings and that this could have led to a different outcome in terms of the content of the Commission’s decision?
An assessment of the relevant case law reveals a standard that takes the shape of a double-edged knife for the Commission. On the one hand, it means that many procedural breaches of the right of access to the file will be void of practical consequences, for it is sometimes fairly difficult for an undertaking to meet this standard. In the Intel case, for example, the Commission organized a meeting with Dell but did not properly disclose it or granted Intel access to the minutes — a procedural breach, according to the Court of Justice (Court of Justice, Intel, para. 96). Intel claimed the meeting contained exculpatory evidence that could have had an impact on the Commission’s decision.
However, Intel failed to prove that, based on an internal DG COMP note that was provided to it, it could show the meeting contained the said-exculpatory evidence; additionally, Intel did not make use of the possibility to ask for the person the Commission interviewed to be summoned before the General Court; and it failed to prove it contacted that person to obtain the exculpatory evidence (Ibid., para 99-102). In light of the above, the Court refused to annul the decision because of the procedural breach. Similary, in Google Android, “Google was able to obtain information from the Commission about the substance of what was discussed during those interviews (…) [but] has not put forward any detailed argument that might explain how it might have been better able to ensure its defence” (General Court, Google Android, para 946-947).
These judgments show the Court’s focus on establishing whether the undertaking can genuinely prove that the outcome of the proceedings would have been different, in order to distinguish claims that are aimed purely at discrediting a decision of the Commission, from those where the undertaking genuinely opiates that it has been harmed. The formula is the following: if the undertaking has sufficient information about the evidence but fails to prove that its defense during the proceedings (and therefore, potentially their outcome) could have been different, then the Court is rather strict and reaching the annulment of a decision is difficult.
However, when information on the content of a Commission’s meeting is so sparse that it is not possible to eliminate the possibility that exculpatory evidence might have been produced and that it could have been used by the undertaking(s) to change the outcome of a case, the standard of proof is less difficult to meet for the undertaking(s) which ‘only’ need(s) to provide arguments that “tend to demonstrate in concrete terms” that the interview “could” have contained evidence allowing for a better defense and potentially changing the outcome of the Commission’s (General Court, Quallcomm v. Commission, para. 221)
In other words, when it comes to access to file, when the Commission does it job, especially when it comes to recording and providing a proper record of the evidence produced in the course of meetings, it is very difficult for a procedural breach of the right of access to file to lead to the annulment of a decision (or part thereof). However, when a proper record has not been given access to, and that the undertaking(s) show(s), in a genuine manner, that there exists a possibility that exculpatory evidence could have been produced and that it could have helped building a better defense, with a potential favorable impact on the outcome of a case, a decision (or part thereof) can easily be annulled. Hence the double-edged sword of this standard from the Commission’s perspective.
Co(E)mpetition Procedure 