Competition Litigation

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The General Court has discretion to hear witnesses
10 November 2020
10 November 2020

On 22 October 2020, the Court of Justice of the European Union ("CJEU") confirmed in Silver Plastics that the General Court ("GC") is not bound to accept a request to hear a witness when it has been proven that an undertaking participated in a cartel. It also reiterated the general principles on calculating fines. In this update, we will focus on the issue of the right to call a witness.

Background

In 2015, the European Commission (the "Commission") fined eight manufacturers and two distributors of retail food packaging trays a total of EUR 115,865,000 for participating in at least one of five separate cartels in several EU Member States. The cartel participants had fixed their prices and allocated their customers.

On 11 July 2019, the GC issued its judgment which in essence dismissed all the pleas put forward by the applicants and confirmed the Commission's decision. In the GC's view, the Commission had properly established that these undertakings participated in anti-competitive practices and had proven that these practices constituted a single and continuous infringement.

Silver Plastics appealed this judgment to the CJEU, relying on several pleas relating to the obligation of the GC to hear a witness.

The CJEU judgment

The GC's discretion to summon a witness
Silver Plastics alleged that the GC infringed the principle of a fair trial and, in particular, the principle of immediately taking evidence (as enshrined in Article 6 of the European Convention on Human Rights ("ECHR") and Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union) by not summoning Mr. W. – an ex-employee of Linpac, the whistleblower which had applied for leniency – to hear him in person as a witness.

On that point, the CJEU reiterated that the GC has an unfettered discretion to assess the need to hear witnesses in order to make a decision on the case outcome. The GC is in this sense the sole judge to examine whether the information available to it needs to be supplemented and may therefore decide whether to hear witnesses. This does not infringe the ECHR. In this case, the GC established to the requisite legal standard that Silver Plastics participated (i) in anti-competitive practices (ii) in a single and continuous infringement. It decided this based on evidence that Silver Plastics had the opportunity to rebut. As a result, the GC could assess that it was not necessary to ask Mr W. to testify without erring in law.

In addition, the CJEU confirmed that the GC can assess the credibility of Mr W.'s statements without summoning him as a witness. As the CJEU stated, the GC may rely on other evidence which corroborates or contradicts the witness's statements. It can, therefore, be concluded that there is no absolute right to have witnesses heard by the European courts.

The right to cross-examine witnesses
Silver Plastics also argued that the GC was required to accept their request to cross-examine Mr W. on the ground that he was the ‘main incriminating witness’.

Taking into account that the GC did not hear Mr W. as a witness, the CJEU found that Mr W. cannot logically be described as an ‘incriminating witness’ before the GC. The fact that Mr W. was one of the key sources of the leniency applications was not sufficient to qualify him as an 'incriminating witness'. In this sense, the CJEU also noted that Mr W.'s statements fall under the responsibility of the undertaking (Linpac), which knows the potential negative consequences of providing inaccurate information.

Last but not least, the CJEU observed that the applicants were in a position to contact and question Mr W. themselves. They had done so and obtained written statements from him which the GC took into consideration.

On that basis, the CJEU concluded that the GC could validly refuse to hear Mr W. as a witness.

The principle of equality of arms
Silver Plastics also argued that the principle of equality of arms required the GC to hear Mr W. as a witness. However, on that point, the CJEU merely pointed out that as the GC did not hear witnesses proposed by the Commission, it could not be criticised for deciding not to hear the witnesses proposed by Silver Plastics. In other words, neither party had an advantage compared to the other and the GC did not breach the principle of equality of arms by refusing to hear Mr W as a witness.

The obligation to state reasons
As regards the breach of the duty to state reasons, the CJEU found that the GC set out all the exhaustive evidence which showed that Silver Plastics was in a cartel. As for the statements made by Mr W. which were cited by the applicants before the GC, the GC rightly considered that only certain claims made by Mr W. were of little or no credibility, as they contradicted other evidence referred to the GC.

Comments

With this judgment, the CJEU reiterates that the scope of the right to have a witness heard by the European courts depends on the circumstances of the case. This approach is in accordance with the view of the European Court of Human Rights as previously clarified in other cases, including Produkcija Plus v Slovenia. More precisely, it is clear that, in so far as the GC believes that the hearing of a witness is not relevant for the outcome of the case, the right to a fair trial and the principle of equality of arms is not infringed.
Written by:
Weyer VerLoren van Themaat

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Advocaat | Partner
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Murat Duman

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Advocaat | Senior Associate
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