Background
After a slaughterhouse operator filed a complaint, the French Competition Authority investigated practices in the purchasing and sale of pork cuts and processed-meat products. Two corporate groups received leniency treatment. Relying in part on a notebook prepared by an Aoste sales director and submitted with Campofrio’s leniency application, the Authority found three agreements contrary to Article L. 420-1 of the French Commercial Code and Article 101(1) TFEU. Its July 16, 2020 decision imposed financial penalties on numerous meat-processing companies, while granting certain exemptions to the leniency applicants.
During the investigation, the Authority appointed a handwriting expert to examine whether the notebook was manifestly fabricated in its physical form. The Paris Court of Appeal rejected the companies’ requests to annul the Authority’s decision but modified certain findings concerning infringement duration and reduced some fines. Five groups of companies filed appeals in cassation, which the Court joined; the appellants partially discontinued their appeals against several parties.
The Court’s Holding
The Court of Cassation rejected all five appeals. It held that, although adversarial procedure applies after notification of objections and governs the conduct of expert operations, the Competition Authority’s rapporteur-general need not obtain the parties’ agreement before commissioning an expert examination or involve them in selecting the expert or defining the assignment. The companies had been able to submit observations, challenge both the draft and final expert reports, present contrary expert analysis on appeal, and address every item considered by the Authority and the Paris Court of Appeal. They therefore had a reasonable opportunity to present their cases without being placed at a substantial disadvantage to the prosecuting authority.
The Court also held that contacting several prospective experts to assess their ability to perform the assignment did not breach procedural loyalty. The record did not show that the Authority used those contacts to identify an expert whose conclusions would favor the prosecution. Challenges to the notebook’s authenticity and reliability merely sought reconsideration of the appellate court’s sovereign assessment of the evidence; that court had compared the notebook with other evidence and treated it as part of a body of serious, precise, and consistent indicia satisfying the standard for proving a cartel.
Finally, the Court ruled inadmissible the argument that interest on refunded portions of reduced fines should run from the dates of provisional payment rather than notification of the appellate judgment. The complaint alleged an omission to rule, which had to be pursued through the corrective procedure under Article 463 of the French Code of Civil Procedure rather than by an appeal in cassation.
Key Takeaways
- The Competition Authority may decide to obtain expert evidence and may select the expert and define the assignment without first conducting an adversarial consultation with the investigated parties.
- Procedural fairness is preserved when parties can participate in the expert process, challenge the resulting reports, submit contrary analysis, and address all evidence before the decision-makers.
- The Court of Cassation will not revisit an appellate court’s sovereign assessment of evidentiary weight when the challenged material was evaluated alongside a serious, precise, and consistent body of corroborating evidence.
Why It Matters
The judgment clarifies the boundary between the Competition Authority’s investigative autonomy and the defense rights of companies facing cartel allegations. Although parties must receive an effective opportunity to contest expert evidence, they have no right to participate in the Authority’s preliminary decisions about whether to commission an examination, how to frame it, or whom to appoint.
The decision also confirms that evidence supplied by a leniency applicant—including records whose preparation or chronology has been questioned—need not be discarded categorically. Its reliability may instead be assessed cautiously against corroborating material, with the resulting evaluation largely insulated from cassation review.