Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Case C-58/12 P Groupe Gascogne v Commission + some other stuff

with 8 comments

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- Fresh off the Court. This morning the ECJ handed down a Judgment in which it has ruled that the Court itself is not supposed to reduce the fine imposed on a company whenever judicial review by the General Court exceeds a reasonable time. This Judgment effectively and explicitly overrules the Baustahlgewebe Judgment, in which the ECJ had followed the opposite (and in my view much more reasonable approach). Today’s Judgment is premised on the idea that an application for damages brought against the EU would in all circumstances constitute an effective remedy to compensate for any damages caused by the GC’s failure to adjudicate within a reasonable time.

For those of you with less background on general EU law, actions for damages against the EU shall be brought before the General Court. In other words, parties who believe that the duration of proceedings before the General Court was excessively lenghtly should, by means of a different application, ask the General Court itself to ascertain whether its own behavior was appropriate in the light of the circumstances specific to the case and whether the parties suffered any harm. Good luck with that…

- Save the date!  On February 7th and 8th AIJA [Association Internationale de Jeunes Avocats) (a generous institution according to which lawyers below 45 qualify as young] will be holding a two-day conference in Bruges under the title “Competition Law 2.0- Competition Law and Technology“. A not-to-be-missed excuse to spend part of the weekend in Bruges and pay a visit to the greatest beer bar ever discuss hot topics in current antitrust. Both Prof. Petit and myself will be speaking there.

- Speaking of current antitrust debates: the last number of the Journal of European Competition Law and Practice (a great journal that has rightly earned a prominent place in a saturated? market) features various very good articles, including one by our guest blogger Pablo Ibañez on State aid litigation.  At another level, it also features a brief piece of mine  [the hyperlink only leads to the abstract] about Google’s commitments (you already know my views). Ironically, my comment was written in relation to the first version of the commitments but features in the “current intelligence” section of the journal. Fortunately I did explicitly envisage “likely further tweaks over specific details” and all comments are applicable to the new (leaked) proposal.

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Written by Alfonso Lamadrid

26 November 2013 at 12:15 pm

8 Responses

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  1. Baustahlgewebe might have been a practical solution, but was manifestly wrong.

    luca

    26 November 2013 at 7:36 pm

    • Can we know why?

      Nicolas Petit

      3 December 2013 at 5:09 pm

      • Maybe simply because of the lack of specific legal basis in the Treaty? I do not know, but maybe Luca goes this way, right?

        Miguel Troncoso Ferrer

        3 December 2013 at 8:40 pm

    • Nicolas,
      i just posted a brief comment on alfonso’s latest post
      i know it is somewhat unfair to make a comment and do not elaborate on the reasons why, but i thought that they were self-evident!

      Just a quick game for you:
      Find me the key differences btwn the following hypotheses:

      – Company A challenges a COM 101 decision imposing a sanction; GC dimisses the action (and takes too long to deliver its decision); Company A appeals GC ruling before the ECJ
      – Company B challenges COM 101 decision imposing a sanction; Company B wins before the GC (despite GC taking too long to deliver its decision); no appeal before the ECJ
      – Company C challenges a COM decision ordering recovery of incompatible State aid; Company C wins before the GC (despite GC taking too long to deliver its decision); no appeal before the ECJ
      – Company D challenges a COM decision ordering recovery of incompatible State aid; GC dismisses the action (and takes too long to deliver its decision); Company D appeals before the ECJ
      I could continue…..
      – Individual X introduces an action for failure to act because Commission did not adopt a decision on his complaint on possible illegally-granted state aid, despite having been requested to do so, and the 2+2 months have elapsed; the GC whatever its decision, takes too long to deliver it
      – Company Y complains of a breach of confidentiality in a decision which concerns EU funds, or EU agriculture or…; the GC takes too long to deliver its judgment
      – Company Z challenges the COM decision refusing the inclusion of a certain chemical product in the “safe list”, thereby making it impossible for it to carry on with its usual business; the GC takes too long to deliver its judgment

      luca

      4 December 2013 at 6:02 pm

      • A game! So what, the world of legal remedies should be flat, to avoid inequalities amongst applicants? Is this the conclusion to draw?

        Look again: under Baustahlgewebe there is no inequality between A and B. Both need to lodge new proceedings to obtain redress for excessive duration of proceedings. What changes is just the forum: A before the CJEU; B before the GC. And for society, the cost is just that of two proceedings: A(CJEU) + B(GC). Yet, under Group Gascogne, forcing A to start proceedings before CJEU on annulment + start proceedings before GC for compensation is inefficient at society level. Because in this case, you have 3 procedures A(CJEU) + A(GC)+ B(GC), in lieu of 2. And you multiply possible decisional conflicts. And there might be a further appeal on compensation by B (ie B(CJEU).

        Nicolas Petit

        6 December 2013 at 12:06 pm

  2. Thanks, Luca. I haven’t thought this through and have a very open mind about it, but I’m curious: why do you think so?

    (Hope all is very well, by the way!)

    Alfonso Lamadrid

    26 November 2013 at 7:42 pm

  3. So if I understand correctly, once the European Court of Justice — in a given case — has found the “length” of proceedings “excessive” within the meaning of the Charter of Fundamental Rights, the judicial remedy for such length now adds at least two to three more years of litigation before the GC. Do I correctly understand? . . .

    Marc Abenhaïm

    27 November 2013 at 7:07 pm

  4. I guess yes, Marc… And (as Alfonso points out) the action for remedies is to be brought before the same Judicial Body who is responsible for the infringement of the right to a fair trial. The General Court would be deciding about the consequences of its own infringement. And I imagine that the Commission would represent the interests of General Court before the General Court. Kafkaesque.

    Miguel Troncoso Ferrer

    27 November 2013 at 7:54 pm


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