European Commission’s role in antitrust enforcement does not rule out future action in damages – Cruz Villalón AG in Otis

Cruz Villalón  AG’s  Opinion in Case C-199/11, European Union v Otis et al, suggests that the EC’s role in antitrust enforcement does not rule out future action in damages by the same institution, also on behalf of others, provided safeguards are met.

The impact of the case should probably not be overestimated, as it is one of those ‘peculiar’ cases: the European Commission (‘EC’), representing the EU,  is suing Otis et al for damages in a Brussels Court (the seat of the EU), damages sustained following cartel behaviour in the elevator market, which the Commission itself had previously found to be illegal under EU antitrust rules. Defendants argued in Brussels (subsequently referred to the Court in Luxembourg) that the EC’s prior involvement meant that it could not be both judge and party in the ‘same’ case. Reference was made in particular to the ‘equality of arms’ principle and the principle of right to a fair trial, under the Charter of Fundamental Rights, and the European Convention on Human Rights – ECHR.

The AG’s view, perhaps not surprisingly, is that the Commission’s decision in the anti-trust case is of course subject to judicial review with the European Courts (and indeed it is being appealed), hence safeguarding the companies’ right to fair trial etc.: the Belgian court may be well advised (although not necessarily obliged) to halt proceedings until the Court of Justice has ruled on that appeal. He also suggest that no data obtained by the EC in their competition investigation, and which have not been openly communicated to the companies, are being relied upon in the damages action (consequently arguably also suggesting a bar on such use): both parties are hence equally armed.



Postscript: the ECJ in November 2012 confirmed the Opinion. See here.

Questions referred:

Questions referred
(a) The Treaty states in Article 282, now Article [335], that the European Union is to be represented by the Commission; – Article 335 of the Treaty on the Functioning of the European Union, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the European Union, with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings; – there is no doubt that receipt by contractors, etc., of payment … of inflated prices as a result of collusive practices comes within the concept of fraud; – in Belgian national law there is the principle of ‘Lex specialis generalibus derogat‘; – to the extent [to which] that principle of law also finds acceptance in European law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned?
(b) (Subsidiary question) Ought the Commission not at least to have been conferred with authorisation by the institutions to represent them for the purpose of safeguarding their legal rights?
(a) Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human [Rights] guarantee every person’s right to a fair trial as well as the related principle that no one can be the judge in his or her own case; – is it reconcilable with that principle if the Commission, in an initial phase, acts as the competition authority and penalises the conduct complained of – namely, the formation of a cartel – as a breach of Article 81, now Article 101, of the Treaty after it has itself conducted the investigation in that regard, and subsequently, in a second phase, prepares the proceedings for seeking compensation before the national court and takes the decision to bring those proceedings, while the same Member of the Commission is responsible for both matters, which are connected, a fortiori as the national court seised of the matter cannot depart from the decision imposing penalties?
(b) (Subsidiary question) If the answer to Question 2(a) is in the [negative], (there is irreconcilability), how then must the victim (the Commission and/or the institutions and/or the European Union) of an unlawful act (the formation of the cartel) assert its entitlement to compensation under European law, which is likewise a fundamental right …?

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