“Blotters” and phone interceptions in antitrust proceedings

Can the Italian Antitrust Authority (AGCM) use, for the purpose of making up its mind, the phone interceptions arranged within the scope of a criminal proceeding, and the relevant summary transcripts (the so-called “blotters”)?

The answer is “yes, it can”, according to the Regional Administrative Court of Lazio which, in recently deciding on the lawfulness of the sanctions imposed on an agreement restricting competition, by decisions n. 2670, 2671, 2672, 2673 and 2674 rendered on 26 February 2016, has endorsed the use by the Italian Antitrust Authority, for evidence-taking purposes, of the documents acquired within the context of a criminal proceeding.

According to the same Court, this can be done conditional on the fact that the documents are:

1) acquired in accordance with the formalities prescribed for criminal proceedings; and

2) coupled with the material that the same Antitrust Authority has autonomously gathered.

The case stems from a preliminary proceeding started by the Authority for the purpose of ascertaining the existence of an alleged cartel emerged during certain crime-related ascertainments conducted at the Public Prosecutor’s Office of Florence.

The green light received from the competent Deputy Public Prosecutor, allowed the Authority to get documents from the files of the criminal proceeding, including the blotters regarding the phone interceptions arranged by the Public Prosecutor’s Office. Upon completion of the evidence taking phase and on the basis of the relevant results, the Authority, having ascertained that the challenged wrongdoing had actually been committed, sanctioned 12 companies for having put in place an agreement which, due to the fact that it restricted competition, was in breach of art. 101 of TFUE.

The sanctioned companies appealed the decision before the Regional Administrative Court of Lazio challenging, inter alia, the use by the Authority of the phone interceptions and the relevant summary transcripts which had first been acquired in the criminal proceeding and then included in the antitrust preliminary proceeding, and the evidentiary value of the same.

The main arguments brought forward by the appellants are as follows:

1) the prohibition envisaged by art. 270 of the Italian Code of Criminal Procedure – pursuant to which the use of telephone interceptions is permitted only in the criminal proceedings for which they were arranged – would also be applicable within the scope of antitrust proceedings, being their nature essentially criminal;

2) the Authority was not authorized, according to the appellants, to use the blotters for the purpose of making up its mind, because they were not yet treated – while the Authority was still gathering its own evidences – as evidences in the criminal proceeding since said blotters had not yet been admitted in the debate, and, consequently, could not have an evidentiary value for the Authority to impose its sanctions.

Based on the considerations provided below, the Regional Administrative Court has breached the aforesaid prohibitions.

First: art. 270 of the Italian Code of Criminal Procedure does not apply to the case at issue because, on the one hand, such rule concerns in particular criminal proceedings where “the adoption of stricter restrictions on the acquisition of evidence, in derogation from the fundamental principle of search for material truth, is justified” and, on the other hand, the antitrust proceeding cannot be treated exactly the same as a criminal proceeding.

Second: within the scope of an antitrust proceeding the principle of “legal proof” is not applicable because the judgment of the Authority is grounded on several circumstantial evidence.

Third: as far as the aspect related to the evidentiary value of the summary transcripts is concerned, the fact that the “blotters” were to be treated as formal evidence first in the criminal proceeding is something irrelevant for the possibility of using them in the antitrust proceeding, given the autonomy of the two different judgments.

Fourth: in the criminal proceeding, the evidence was acquired in compliance with the formalities prescribed for such proceeding, given that “the telephone interceptions at issue were arranged with the authorization of the Judge for Preliminary Investigations“;  furthermore, they were then acquired in the antitrust proceeding “with the formal permission of the Public Prosecutor” and, finally, “the evidences accessed by the parties were exactly the same on which both Offices have grounded their charges, in full compliance with the principle of ‘equality of the arms’“.

In the light of the above considerations, the Regional Administrative Court of Lazio believes that the Antitrust Authority was entitled to consider the “blotters” as circumstantial evidence and to use them, as such, in combination with the other evidence that the same Authority had autonomously acquired, in order to make up its mind and decide that the alleged wrongdoing was actually  committed.

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