Use of phone call recordings in cartel cases

The EU’s General Court has refused to dismiss a EUR 29 million cartel fine imposed on Heiploeg in its 8 September 2016 decision. The shrimp-trading company had argued that secretly recorded phone calls were inadmissible evidence and could not be used.

Heiploeg paid EUR 28 million fine handed down by the European Commission in 2013 after the enforcer found that it had been part of a cartel to fix the prices and sales volumes of North Sea shrimp across Belgium, France, Germany and the Netherlands. The other main participant, Klaas Puul, received full immunity.

Alongside information gathered through dawn raids, information requests to the members of the cartel and evidence provided by Klaas Puul, DG Comp used phone calls recorded by an individual (“M.K.”)  as evidence to prove the existence of the cartel. The European Commission also found notes from phone calls during a dawn raid of Kok Seafood, which received a EUR 502,000 fine for its involvement in the scheme.

Heiploeg argued that secretly recording phone calls is illegal in several EU member states. Furthermore, the use of such calls would violate its privacy rights. It claimed that the case against the company would have collapsed if the evidence could not have been used.

Following an appeal by Heiploeg, the General Court ruled yesterday to deny that the use of the recorded calls and notes infringed the company’s procedural rights.

The court noted that DG Comp had not made the recordings itself. Instead, the recordings were seized during the raid of Kok Seafood. The recordings were made by one of the parties to the conversations The court held that DG Comp had obtained the recordings legally in the dawn raids, which it has the power to conduct under EU law.

The General Court held that DG Comp gave copies of the full recordings, as well as the separate notes, to every company involved in its investigation. Heiploeg did not dispute that it was able to examine all the evidence. In addition, the recordings were not the only evidence the enforcer used in its decision to impose fines or make findings on culpability.

The court also noted that no EU law bans the use of illegally obtained evidence in judicial or investigative proceedings.

The court also dismissed arguments that the notes of phone conversations should be inadmissible. Heiploeg had argued that these were subjective interpretations. Furthermore, it was unclear when these conversations had taken place and who had taken part in them. DG Comp had ignored its burden of proof and that the enforcer should have checked the contents of the conversations by making information requests.

The General Court disagreed, saying that the companies investigated by the DG Comp were given the chance to verify the enforcer’s interpretation of the notes and to suggest alternatives.

As with the recordings, the court said the notes constituted only a portion of the evidence gathered. In any event, the commission is entitled to take decisions on infringements based on the basis of the totality of the information it gathered, rather than examining parts of the evidence isolated from each other.