DGCCRF: Is the evidence by questionnaire fair?
The Court of Cassation, in a judgment of 29 January 2025, took a position on the issue of the unfairness of employment by agents of the DGCCRF, standardized questionnaires limiting the freedom of response of interviewees.
The Court of Cassation, in a judgment of 29 January 2025, took a position on the issue of the unfairness of employment by agents of the DGCCRF, standardized questionnaires limiting the freedom of response of interviewees.
This judgment relates to an investigation conducted in 2016 by the Directorate General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF), on the conditions of the merger of the Casino and Intermarché groups for the purpose of creating a joint centre, the Inca company, whose mission is to negotiate, exclusively, for its parent companies the conditions of purchase of the products and the conclusion of the annual agreement with certain suppliers. Following this investigation, the Minister of the Economy criticized them for having, by this operation, violated the provisions of Article L. 442-6, I, 2°, of the Commercial Code, in its version then applicable.
The companies under review accused the DGCCRF of having obtained evidence unfairly.
They thus considered that the use of pre-filled tables sent by the investigators to the suppliers was “not likely to favour a spontaneous response from the latter”, which meant that the investigators had imposed on the suppliers a constrained framework of responses which, by asking them to confirm the pre-established analysis incriminating the companies concerned and not favouring spontaneous statements on their part, constituted an unfair process of obtaining evidence in violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 9 of the Code of Civil Procedure, as well as the principle of loyalty in the administration of evidence.
To this the Court of Cassation responds in these terms:
“10. On the requests for additional information of August 3, 2016, the judgment held that the standardized tables, addressed to the suppliers of the companies prosecuted, were not intended to confirm the provisional conclusions of the investigators as to the existence of restrictive practices of competition, but to supplement them. It notes that these tables have been variously filled in, some having been the subject of a brief confirmation by the recovery of the pre-filled elements by the administration, while others have given rise to many clarifications and corrections, and deduces that their recipients, who, by virtue of their belonging to large multinational groups, were particularly well informed and able to measure the stakes of the procedure, retained all their freedom of response. The judgment adds that the process thus described was transparent and that the elements collected were therefore not affected by any disloyalty.
11. On the December 2016 hearings, the judgment notes that while the investigation was very advanced, the agents of the DGCCRF once again submitted their analysis of the practices in question to the suppliers concerned. It considers that this process is not in itself reprehensible since the investigators’ assertions were based on a reading of objective elements, that the suppliers’ responses were clearly distinguished and that the latter had again demonstrated their ability to respond freely, contradicting, if necessary, their interlocutor or stressing their inability to comment on the indications thus submitted to their assessment. The judgment adds that the process was transparent and the answers were freely given. He deduces the absence of any disloyalty from this method of obtaining evidence.
12. In the state of these sovereign findings and assessments, the Court of Appeal was able to hold that the agents of the DGCCRF had not used an unfair process to obtain the documents produced by the Minister in charge of the economy.
It is interesting to note that the Court, in order to rule out disloyalty, notes the status of informed persons of the interviewees, due to the functions carried out in large distribution groups, by deducing their ability to detach themselves from the direction given by the DGCCRF in their questions. We can therefore very seriously question the admissibility of such evidence if this type of questionnaire was used for consumers for example.
It is also notable that the judgment highlights the contradiction brought to the conclusions of the DGCCRF, whose objectivity is noted, by some interviewees to characterize the absence of constraint. It would therefore be legitimate to question the admissibility of reports based on the line of argument drawn by the agents, which would also show a lack of objectivity and the personal interpretation of the latter.
In conclusion, while this judgment validates the technique used by the DGCCRF through the use of standardized question tables, it also sets out the acceptable limits, wary of respect for the rights of the defence and the fairness of the evidence.
Cass. com., 29 January 2025, No. 23-15.828
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