The aim of the project is to provide for a widespread, easy to access and to apply tool for detection of cartels. The issue of the effective detection of the cartels is at the same time inevitably connected and transformed into the issue of proving their establishment in (i) administrative procedures and (ii) in a formal legal procedure based on the adversary principle (understood as a common for the Member States principle that the judgment is reached in the way of an argument (legal dispute) between opposing parties before a neutral tribunal, empowered to administer justice, where the parties are under the duty to substantiate and prove their case in the course of the dispute. As a mirror rule from the viewpoint of the court: it is not authorized to introduce facts or evidences in the dispute).
The application of the tool before all types of state bodies and bodies of the EU for the purpose of seizure of legal procedure might result in consequent legal action by the economical entities identified as forming a cartel.
In other words, the results provided by or the tool itself (if we consider the detection as a process performed by the platform) that facilitates the detection of cartels will principally be capable to be part of the basis of the administrative decision or of the grounds of the case.
We have no doubt that the tool might be applied by the courts and administrative tribunals or other administrative bodies of the Member States and EU. It will be extremely helpful when proving cartels. Consequently, the EU citizen will also have an efficient tool of detecting cartels from a legal point of view.
See the full report – TECoL Legal Framework.doc
The use of TECOL in Courts
The results of TECoL will help the judge to take the decision where there is no conclusive evidence, i.e. there are some witness evidence stating that there is an oral agreement but doubts about their correctness exist. This is due to the fact that in the civil and in the criminal law it is very hard to find clear and unambiguous direct evidences, especially where strong economical player that rely both on highly qualified legal advises and representation as long as on upon specialized practical and legal experience too, are involved. Therefore, the judges are usually confined to a line of corroborating circumstantial evidences, and a strong new one, applicable in every case, as the suggested is to be welcomed (see Imperial Chemical Industries Ltd v Commission (case 48/49), where the Court concluded that whilst parallel behaviour (three uniform price increases) does not in itself constitute a concerted practice it provides strong evidence of such a practice if it leads to conditions of competition which do not correspond to the normal conditions of the market; and Shell International Chemical Co. Ltd v Commission (case T-11/89) where the court held that the factors of a two-thirds share of the Community market of wood pulp and simultaneously quarterly announced identical price increases do not constitute concerted practice, since this was a result of the system of the price announcement, which represented a national response to the need to limit commercial risk in a long-term market. So, the court found that the similarity was the result of a high degree of market transparency, and the parallelism of the price increases could be satisfactorily explained by the oligopolistic tendencies of the market. On the other hand, the parties’ agreement, at meetings within their trade association, to fix recommended prices and to notify members in advance of any proposed deviation from these prices was held to restrict competition within the meaning of Art. 85, sec. 1 (now 101, sec. 1)).
It might be concluded from the above that the tool might be effectively used as an evidence in all types of cartels: by decision, an agreement or collusion, and will be extremely helpful in cases of collusion where it is hardly to be found a clear and decisive evidences such as the document of the agreement or the decisions or undisputable witness testimony.