Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Tidbits from Luxembourg

with 14 comments

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With a group of LL.M. students from Liège, we attended last Wednesday the hearing at the General Court in Chimei InnoLux Corp v Commission (T-91/11).

This case is better known as the LCD panels cartel case. In a nutshell, Chimei InnoLux challenges a Commission infringement decision inflicting a €300,000,000 fine. Chimei seeks primarily to obtain a reduction of this fine. Its key argument is that the Commission could not include in the value of the sales used to calculate the fines, the so-called “Direct EEA sales  through transformed products“, namely sales of cartelised LCD panels incorporated into finished products (screens) by downstream Chimei subsidiaries located outside the EEA. According to Chimei, those internal sales were outside the juridictional reach of  EU competition law (the parties rely on Woodpulp).

On this occasion, we also had several most informative meetings with several people working at the GC and the CJ. Here’s a grab bag of impressions following this trip at the Court:

  • It’s all about the facts => once again, I was amazed by the granularity of the arguments raised in proceedings before the General Court;
  • G. Berardis, the juge rapporteur was just impressive. He was very picky, seemed to know the file inside out, and asked a gazillion questions to the parties. On several occasions, the parties had a tough time responding to his inquiries. External observers, like myself, often pass judgment on the intensity of judicial scrutiny just by reading judgments. I guess my views have slightly changed since last Wednesday. Judicial review is also about what happens in the Court’s room, and about how judges discharge their duties. Whilst I have, a few weeks ago, voiced concerns about the appointment of a former Commission official as judge at the GC, I also recognize that such appointments probably come with increased expertise, and in turn contribute to strenghtening the intensity of judicial review. The trade-off between impartial and efficient judicial review is clearly a complex one;
  • Read Wouter Wils! We’ve praised Wouter’s papers on many occasions. But we did not know that his prose was that influential. In response to a question on the compatibility of administrative proceedings with Article 6 ECHR, someone working at the General Court said something close too: “we know there is a big debate over this issue in scholarship. I read Wouter Wils’ papers. Wils considers that there are no such problems. So my conclusion is that there are no problems“;
  • Internal drafting guidelines: judges and référendaires are apparently requested not to quote any piece of scholarship, or at least to limit such quotes;
  • And to conclude: rumour has it that the draft Intel judgment is approx. 700 pages long (double spaced)…

Overall, this was a great day in Court.

Written by Nicolas Petit

30 April 2013 at 10:33 am

Posted in Uncategorized

14 Responses

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  1. I still do not really understand why appointing a former Commission official would pose problems of conflict of interests and/or more generally of independence. Isn’t the same with former national officials, former lawyers in private practice etc.? Are you arguing that only academics (or possibly, national judges) should be appointed as members of the Court? I believe that the strength of the Court is also due to the mix of different experiences and backgrounds that its member have. Whoever appointed, whatever his/her former experience and professional life, it is essential that he/she fulfills the 2 criteria laid down in the Treaty: independence and competence. That is enough. Moreover, the 255 committee has been created to ensure that that is the case for every candidate. And I believe that the 255 committee is, generally, doing a very good job in carrying out this task.

    luca

    2 May 2013 at 11:54 am

  2. Luca, you are 100% right to say that it is the same at the national level. And as I argue in the post, movements from the Commission to the Court are also a very good thing in terms of expertise. My qualms are more narrow. They relate to conflicts of interests, be they objective (e.g. a judge works on a case on which he had been working as a lawyer before) or subjective (e.g. a judge entertains close personal ties with a lawyer pleading before him). In those cases, as in national law, rules on destitution shall be applicable. But there are no such destitution rules as far as I know (I asked, and I was told that). And the issue of conflicts of interests seems even less regulated when it comes to referendaires (we dont even know who they are). Make no mistake: (1) am not saying there are no rules at all: strong rules apply on judges in terms of ex ante disclosure and ex post incompatibilities (not to talk of the 255 Comité Sauvé, that you rightly mention); (2) am not saying that such conflicts are widespread. They probably are very exceptional. But you just want to ensure that there is simply NEVER (or almost NEVER) a conflict of interest (justice must be exemplary). And in the current state of EU law, this is something you just cannot exclude. My contention, a modest one I reckon, is that some inspiration may be drawn from the national judiciary, where such issues are very consistently regulated.

    PS: as any monopoly, a monopoly for academics at the court would be a terribly bad idea. As it is to reserve the function of judge to lawyers only (it should be opened to economists and other professionals who can prove a strong command of EU law).

    Nicolas Petit

    2 May 2013 at 12:46 pm

  3. Nicolas, I am still not convinced.
    In the first place, it is not correct to say that there are no rules on conflict of interest. There are indeed rules which apply at the CJ, either as in all other institutions and, on top of those, some more specific to the Court: among others, the statute of the EU personnel + code(s) de conduite. There are rules for members of the Court and rules for referendaires.
    In the second place, you say that you do not know who the référendaires are.
    Why does that matter? The responsibility of the judgments/opinions belongs to the members of the Court which sign them. Refs merely assist these persons. Mutatis mutandis, the same is true with regard to, e.g., national civil servants who work for a Minister, the staff of DG COMP/SJ who drafts the COM decisions, the assistants of the judges sitting at the Member States’ highest courts, etc
    I frankly do not see the difference.
    What you could question, perhaps, if the fact that there is no open competition for those posts. Yet, once again, this is not unlike what happens for, e.g. the members of cabinets of ministers, commissioners etc.
    I am not saying that the rules could not be improved. And I’m not saying that the current rules ensure that no conflict of interest whatsoever may ever happen (but, after all, what set of rules could do that!?).

    luca

    2 May 2013 at 2:59 pm

  4. Sorry, I hit “post comment” before my comment was ready. Below what I wanted to say:

    Nicolas, I am still not convinced.
    In the first place, it is not correct to say that there are no rules on conflict of interest. There are indeed rules which apply at the Court: those applying to all EU institutions, plus some more specific to the Court. Among others, the statute of the EU personnel + code(s) de conduite. Thus, there are rules applying to members of the Court and to référendaires (‘refs’) as well.
    In the second place, you say that you do not know who the refs are.
    Why does that matter? The responsibility of the judgments/opinions belongs to the members of the Court which sign them. Refs merely assist these persons. Mutatis mutandis, the same is true with regard to, e.g., national civil servants who work for a Minister, the staff of DG COMP/SJ who drafts the COM decisions, the assistants of the judges sitting at the Member States’ highest courts, etc.
    I frankly do not see the difference.
    What you could question, perhaps, if the fact that there is no open competition for the post of refs. Yet, once again, this is not unlike what happens for, e.g. the members of cabinets of ministers, commissioners etc.
    Just to be clear: I am not saying that the rules could not be improved (all rules can be improved). And I’m not saying that the current rules ensure that no conflict of interest whatsoever may ever happen (but, after all, what set of rules could do that!?). And, sure enough, a debate on how things could be further improved may always be useful. Yet, honestly, I do not think this is a major problem for the Court.

    luca

    2 May 2013 at 3:06 pm

  5. For the record, the names of the refs are actually public: http://europa.eu/whoiswho/public/index.cfm?fuseaction=idea.hierarchy&nodeid=13.

    Keep up the interesting debate!

    CM

    2 May 2013 at 3:47 pm

  6. Luca, I have expressed more fully my concerns elsewhere, and I am currently writing a comprehensive paper on this to assess if and where problems are located.

    Again, let me clarify my thoughts: I dont mean to say that the system is entirely corrupt. I am just saying that some best practices are needed, like those that apply before national courts or those that Western international organisations impose on third world countries. The rules you mention surely exist. Some are very sophisticated, others are very terse (especially those that govern the recruitment and responsibilities of refs).

    Now, is there empirically a problem, or am I just making this up? I am a pragmatist. We have two possibilities. The absence of a major debate on this to date may either be due to the fact that (i) the rules are optimal and eradicate all problems; (ii) conflicts of interests involve hidden behavior which goes undetected because the enforcement system is imperfect (+ most observers who could report them have a stake in this business and fear retaliation). Since I am a skeptical, I cannot take hypothesis (i) for granted. Hence my research interest for hypothesis (ii).

    Now, let me take a (not so) hypothetical example, yet unrelated to competition law. Imagine that a proceedings are started in Court about the legal basis of a directive prohibiting bonuses for traders in the financial sector. Wouldn’t you be a little puzzled if one of the refs. of a judge dealing with this case (i) had had a past professional experience as a lobbyist for the financial industry; (ii) held stocks in this industry; or (iii) had a relative directly concerned by the directive?

    A final remark: the fact that perfection is not a realistic outcome – it never is – in no way dispenses from aiming at perfection.

    I hope I’ll have convinced you that I am not a witch hunter or a Quijotte…

    Nicolas Petit

    2 May 2013 at 4:23 pm

  7. Nicolas, I am not implying that you are behaving as a witch hunter, and am fully convinced that a honest and open discussion on this subject can he helpful. Sure the rules can be improved, as I said before. So, I’ll read with interest your paper once ready.

    A few additional comments: in the case you make, the ref responsible for the case should declare him/her-self conflicted out and do not do any work on the case. I know it does happen regularly that refs do it. Bear in mind that this is a small world. It would be difficult for someone to keep his/her interests covered. It is not unlikely that someone will find it out and the CJ could be informed. Generally it is not a mystery who the ref(s) in charge is (are), since he/she (they) will be sitting at the hearing just beside the parties.

    If he/she doesnt give up the case, than he/she breaches Article 11a of the Staff Regulations and could be subject to the disciplinary measures provided for in Articles 86 ss of the Staff Regulations.
    These rules, obviously, apply to ALL EU officials (whatever their position and their institution).

    Plus, refs at the CJ sign a code de conduite when they start at the CJ. I have no idea whether this is a public document or not. But it exists. And refs also take an oath before the President of the CJ shortly after they start.

    luca

    2 May 2013 at 6:09 pm

    • Luca, you are right, this is not a regulatory desert: there are rules on refs, and a code of conduct of a few pages (not disclosed). And their identity is disclosed on the WhoisWho (thanks Christos).

      But my point is: can we just be confident that those rules are effective? You tend to believe that this is a small world, and that this will of itself render such problems moot. I am slightly more pessimistic: even in the small world of politics,people manage to get through the net for years (think of Cahuzac). And this despite a considerable scrutiny from the press. I could add loads of examples. Yet again, I am not saying that this problem is systemic.

      Now on the content of the rules themselves: the Cahuzac scandal (and others) shows that ex ante disclosure rules are inefficient, as long as their is no external scrutiny over the veracity of the disclosure. Moreover, when ex ante disclosure (or peer pressure) has not screened out conflicted officials in the first place, you need to entice third parties with an ex post mechanism of destitution which currently does not exist. And for this ex post system to work, a mere list of names (as in the WhoisWho) is insufficient. You need not only to know the personal identity of the refs, but their functional identity (judges and chambers in which they work, cases allocated to them, previous positions in the public and private sector, etc.). This is not only logical, but this is the kind of system that applies in most courts in the world.

      Nicolas Petit

      3 May 2013 at 3:42 pm

  8. Uhm… Preliminary comment: there are issues relating to privacy there (e.g. previous positions held). You cannot keep privacy out of the picture.

    Most important comment: I reckon that the Court’s website (and publications: e.g. annual report) is (are) not an example of transparency and so user friendly …. Yet, most of the info you would like to be public they are already so!

    1. The who’s who clearly says who the refs of each member of the Court are. They do not work for different members. So, on this there is full transparency. One judge = those 3 refs. One AG= those 4 refs. Basta.

    2. Chambers in which they work? That’s public. You can find the complete and precise composition of chambers on the web-site of the Court. Each judge is attributed to one or more chambers. The AGs obviously do not work in chambers.

    3. Cases allocated to the refs. When there is a hearing you see in the face the ref(s) responsible for the case in the cabinet of the Judge rapporteur [and of the AG], since he/she/they is/are sitting beside the parties. When there is no hearing, admittedly there is no way you can get to know this piece of info easily. But keep in mind that the refs only do the work that their member of the Court gives them. Eventually, it is the member of the Court who is responsible for the decision adopted.

    In conclusion: I think you are doing a wrong equation, when you write: “This is not only logical, but this is the kind of system that applies in most courts in the world”

    Sorry, but as far as i know that is not the case! You are actually mixing up referendaires and judges. That is not the same.

    In “most of the Courts in the world” the parties know the names of the judges sitting in the chamber (as in fact happens before the ECJ/GC) but they do not know whether those judges have one or more assistants, what specific tasks these assistants eventually get to do, who those assistants are.
    And certainly you do not know what those people were doing before going there. (I suspect you do not get that info for judges either!)

    As far as I see, in some international courts it is the same. During the hearings before the WTO adjudicatory bodies you get to see the staff of the WTO relevant divisions or of the Appellate Body secretariat who will deal with your case (i.e. the staff doing the job done in LUX by refs). But nowhere their names (and let alone past experiences!!) are published.

    A last note: this is not unusual in the public administration. Where have you seen the past experiences of Belgian fonctionnaires being published? You don’t even get a full and complete CV of the members of the highest national courts or of the members of the parliaments…

    Nicolas, I am afraid that this time you are at times losing the big picture, asking the referendaires to meet a standard of openness and transparency which is not imposed upon people which have much more power, responsibilities and importance. 😀

    luca

    3 May 2013 at 6:35 pm

    • Luca, what I mean by destitution is the ability of a party to demand that a judge who is conflicted be revoked. Your quote from the statute does not invalidate my point, it just talks about something different.

      On the refs. identity, sure if you like to play detective you eventually may know which ref work on the chamber that hears your case. But more seriously, if I follow you, all concerns should disappear because at the hearing, you can face the guy who works on your case? I fail to see any merit to this argument => refs are under no duty to attend hearings + seeing a ref in the Court’s room tells you nothing of his/her background (and thus of possible conflicts of interests). Not to talk of the fact that the hearing comes very late, so that conflict of interests would be discovered at very late stages.

      The same applies to your contention that judges are the ones with full authority over judgments. Again, this is really formal. In practice, dont you just downplay the importance of refs? I have seen so many refs bragging in private about their influence on rulings and joking about judges who just had no clue…

      A few other points:

      When I talk about courts in the world, I talk about a formal ex post “recusation” mechanism. I made some research. I have been told that there is no such thing before the Court for judges and refs alike. Apologies for the confusion.

      Lastly: in my view, the standard of openess in the supreme court of the EU should be at least equal to that applied in ordinary jurisdictions, and this should apply to all those individuals who share responsibility in the drafting of the content of rulings. Period.

      Thanks for your remarks anyway. I’ll take them on board in the paper.

      Nicolas Petit

      3 May 2013 at 7:01 pm

  9. By the way, you write “an ex post mechanism of destitution which currently does not exist”

    That’s actually not correct. It does exist.
    Article 9 of Annex IX of the Staff Regulations provides

    ‘1. The Appointing Authority may impose one of the following penalties:
    (a) a written warning;
    (b) a reprimand;
    (c) deferment of advancement to a higher step for a period of between one and 23 months;
    (d) relegation in step;
    (e) temporary downgrading for a period of between 15 days and one year;
    (f) downgrading in the same function group;
    (g) classification in a lower function group, with or without downgrading;
    (h) removal from post and, where appropriate, reduction pro tempore of a pension or withholding, for a
    fixed period, of an amount from an invalidity allowance; the effects of this measure shall not extend to the
    official’s dependants. In case of such reduction however, the former official’s income may not be less than the minimum subsistence figure laid down in Article 6 of Annex VIII, with the addition of any family allowances payable.

    2. Where the official is in receipt of a retirement pension or an invalidity allowance, the Appointing Authority
    may decide to withhold an amount from the pension or the invalidity allowance for a given period; the effects of this measure shall not extend to the official’s dependants. The official’s income may not, however, be less than the minimum subsistence figure laid down in Article 6 of Annex VIII, with the addition of any family allowances payable.

    3. A single case of misconduct shall not give rise to more than one disciplinary penalty’

    luca

    3 May 2013 at 6:38 pm

  10. quick last comments (just to annoy you a bit more before the w-e 😀 in any event, I’m not on line during w-es)

    on the process of destitution/recusation: i had misunderstood you. indeed, i don’t think that any formal procedure for judges and AGs exist at the ECJ level to ask one of those to step down. perhaps there should indeed be one for judges and AGs

    as for the rest: i cannot but repeat my warnings: don’t mix up referendaires and judges- i don’t think that in any other jurisdiction you can ask to have an assistant of the judge removed from a case. I am not saying this would not be a good rule, and I would have nothing against it, but i just do not see where else in the world you can do that. So, again: are we not applying a double standard?

    PS you described the good impression judge berardis made on you at the hearing… so, would you think that his role in drafting judgments could be described as …. “really formal” ?! I would frankly exclude that.

    luca

    3 May 2013 at 8:12 pm

  11. Luca, here’s the system that I have in mind: create a recusation procedure for judges (not referendaires) as this exists in most legal orders in the world. And bring within the causes of recusation the fact that a judge’s clerk may be conflicted. I suppose this meets your remark that referendaires shall not be removed from cases, whilst meeting my concerns. Have a nice WE.

    Nicolas Petit

    10 May 2013 at 3:38 pm

  12. It was great to see you in Luxembourg at the hearing! I found it very interesting. Our hearing was also very interesting too.

    Sungjin Kang

    15 May 2013 at 6:18 am


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