On February 14, 2019, the European Court of Human Rights (“ECtHR”) found in SA-Capital Oy v. Finland, that the Finnish Supreme Administrative Court had not violated SA-Capital’s right to a fair trial under Article 6 of the European Convention on Human Rights by partially relying on hearsay evidence in finding the existence and the scope of a cartel.[1] In particular, given the evidentiary complexity of cartel infringements, the ECtHR concluded that national competition authorities may use hearsay to the extent their findings do not solely depend on it.[2]

The ECtHR’s judgment does not indicate what specific findings were supported by hearsay. It stressed that the findings of the national court relied on several other types of evidence, which included documentary evidence, phone recordings, and witnesses’ testimony offering firsthand knowledge about the existence and implementation of the cartel.[3] The national court had not breached SA-Capital’s right to a fair trial because there was no “indication that the [national] court had in any significant degree relied on testimony consisting of hearsay.”[4]

This is another recent judgment dealing with companies’ rights of defense in competition cases, just less than a month after the EU Court of Justice ruled on the right to be heard in merger cases (see our January 2019 Newsletter).[5] Although the case law of the ECtHR is not legally binding for EU courts and the Commission,[6] under Article 52(3) of the Charter of Fundamental Rights of the European Union, the EU institutions have to take the ECtHR’s jurisprudence into account when ruling on infringements of EU competition law. It remains to be seen to what extent this ECtHR judgment will have any practical implications on EU case law. To date, as regards hearsay evidence, the EU Courts have typically either refused to characterize evidence as hearsay—to instead find it to constitute direct evidence—or validated the Commission’s partial reliance on indirect evidence.[7]

[1]      SA-Capital Oy v. Finland (application no. 5556/10), February 12, 2019.

[2]      Ibid., para. 96.

[3]      Ibid., para. 90 (The ECtHR dismissed the applicant’s allegation that the Finnish Supreme Administrative Court had breached its right to a fair trial by shifting the burden of proof, finding it to be manifestly ill-founded.)

[4]      SA-Capital Oy v. Finland, para. 90.

[5]      Commission v. United Parcel Service (Case C-265/17 P) EU:C:2019:23. (The ECJ found that, had the Commission given TNT and UPS the opportunity to submit their observations on the econometric analysis model the Commission used to prohibit their merger, they would have had some chance of better defending themselves. Therefore, the ECJ concluded that the Commission’s failure to disclose this model to TNT and UPS breached their rights of defense.)

[6]      Opinion 2/13, EU:C:2014:2454.

[7]      See Shell Petroleum NV, The Shell Transport and Trading Company Ltd, and Shell Nederland Verkoopmaatschappij BV v. European Commission (Case T-343/06) EU:T:2012:478, paras. 192-229, and Toshiba Corp. v European Commission (Case T-113/07) EU:T:2011:343, paras. 121-122.