Société Bouygues Telecom v. France (dec.)

Information Note on the Court’s case-law No. 150

March 2012

Société Bouygues Telecom v. France (dec.) - 2324/08

Decision 13.3.2012 [Section V]

Article 6

Article 6-2

Presumption of innocence

Publication of investigative body’s report in press before independent administrative authority hearing the case had reached its decision: inadmissible

Facts – The applicant company was one of three mobile telephone operators present on the French market. The Competition Commission and a consumer association accused them of conspiring to stabilise their respective market shares on the basis of jointly agreed targets, thereby distorting competition. In the summer of 2003 the Directorate-General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF) began an investigation. A report was completed and communicated to the parties in June 2005 for comment. In August 2005 some newspapers published details of the DGCCRF report, which were relayed in the media. In November 2005 the Competition Commission imposed financial penalties on the three companies, including a fine of fifty-eight million euros on the applicant company, for anti-competitive practices on the mobile telephone market.

Law – Article 6 § 2: The Court was unable to determine whether or not the administrative authorities had been responsible for the disclosure of the DGCCRF report to the media. It sought instead to ascertain whether the leaks in question had undermined the fairness of the proceedings, by influencing public opinion and, by the same token, the members of the Competition Commission whose task it was to decide whether the companies concerned, including the applicant company, were guilty. That question was all the more pertinent in the instant case because the Competition Commission (the supervisory body responsible for competition since 13 January 2009) was not composed of a majority of professional judges. The press, by and large, had not claimed that the applicant company was definitely guilty but had adopted a moderate tone. Readers had been left to make up their own minds, in the knowledge that the case had not yet been judged. In any event, the only factors capable of influencing the Competition Commission’s decision would have been the extracts from the DGCCRF report itself, which had been in the Commission’s possession since May 2004. Furthermore, the applicant company could have made use of an urgent procedure which was available to anyone wishing to complain of an infringement of the right to be presumed innocent. The State had been under no obligation to set that procedure in motion automatically. All in all the State had acted with the requisite diligence in order to secure respect for the applicant company’s right to be presumed innocent. The Competition Commission had informed the public prosecutor of the disclosure of the DGCCRF’s report to the press and of the fact that it had published a statement on the eve of the judgment in reaction to the press articles announcing that it had found against the applicant company and giving the amount of the fines. Lastly, the Commission’s decision had been upheld by the Court of Appeal, which had been empowered to rule on both the facts and the law, and also, in substance, by the Court of Cassation in a judgment given some considerable time after the comments on the report had appeared in the press.

Conclusion: inadmissible (manifestly ill-founded).

The Court also declared the applicant company’s complaints under Article 6 § 1 of the Convention manifestly ill-founded.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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