Relaxing whilst doing Competition Law is not an Oxymoron

The Groupe Gascogne Judgment (see both sides of the story)

with 5 comments

Last week I wrote a post about the Groupe Gascogne Judgment (and other stuff) which has elicited some interest. Somehow oddly, I will now present counter-arguments against all those who… actually agreed with me.

Given that I wrote about the Judgment within minutes of its publication I obviously hadn’t thought the issue through. My initial reaction was (and regarding these points it still is) that by endorsing the De Grüne Punkt solution (i.e. choosing actions for damages as the procedural path to compensate breaches to the right to be judged within a reasonable time) instead of the Baustahlgewebe one (under which the ECJ itself would reduce a fine on account of the said breach when ruling on an application brought before it), the Court of Justice was adopting the less practical solution, and one that could provoke strange situations. Some of you have developed this last point in several comments to that post.

Now, after some reflection (although not much, to be frank) I think I may see what the Court and one of the commentators to the post meant, even if the Judgment’s reasoning may perhaps not have been crystal clear (please note the understatement).

In my post I only gave one view, and I believe that it’s good that readers also get to see the contrarian arguments. Not that I’m second guessing myself, but I don’t like it when we criticize Judgments/decisions without trying to understand first the reasons underlying the choice of a given approach (believe it or not Judges, clerks and Commission officials are actually clever enough not to be producing absolute nonsense all the time, as some lawyers like to claim). In other words, in some cases they may choose the wrong solutions (particularly if they ever rule against me in one of my cases -not that this actually would ever happen-; please note the implicit advertising claim), but there are always reasons for every approach they chose, and it’s healthy for us to try to identify them and debate them on their merits.

Cutting to the chase: it could be argued that endorsing Baustahlgewebe would have implied creating a specific regime that could only address the problem (a) only in competition cases [given that it is the sole area where the Commission enjoys the power to impose sanctions; in all other cases (frozen assets, for instance) actions for damages would be the only practicable solution], and (b) only in cases where a given company were to lose a first instance appeal before the General Court.  Also, c) an assessment of damages by the ECJ would require it to rule on factual issues (namely harm quantification), when its jurisdicion is limited by the Treaty to points of law only. Furthermore, d) by providing that excessive delay in itself may open the door for an action for damages/a remedy, the ECJ could be effectively avoiding the possibility that “victims” might go to the ECHR (according to the ECHtR’s case law, there’s no “victim” in the sense of Art. 34 of the ECHR when the national legal system already envisages a remedy/compensation for the breach).

I can see how all these might have resonated within a Court like the ECJ. And it is probably true that Gascogne may be more “legally perfect”, albeit arguably at the cost of practicality and risking the odd situations pointed out in the previous post.

In spite of those perfectly valid arguments, I think I liked other solutions better, for instance:

a) one under which both Courts could assess the existence of excessive delays without it being necessary for parties to bring an additional action (the Commission, in fact, has done this in several past cases, and Courts could too). This is not legally unorthodox; it would not not be a matter of damages as such, but a reason to mitigate an initial sanction made more burdensome by the passing of time in the absence of judicial review. A solution of this sort is common to many national criminal law systems and is justified not on the actual damages suffered, but rather on the fact that there was an additional element (excessive time) subsequently added to the intended outcome of condemnation (i.e. the sanction). To counter-argue again against myself: admittedly, the quasi criminal nature of competition law may not be criminal enough for these purposes.


b) a compromise, middle-way and probably less legally controversial solution under which the ECJ would be competent to declare a violation of the right to a fair proceeding by account of excessive delays on the part of the GC (as it arguably did in this specific Judgment). Only quantification would then be left to the GC itself should the party wish to lodge an additional action for damages. For full disclosure: this is an alternative solution that we’re actually advocating before the ECJ in a pending case. But it’s reasonable, isn’t it?  😉

Written by Alfonso Lamadrid

4 December 2013 at 7:15 am

Posted in Uncategorized

5 Responses

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  1. alfonso, some of the points you make very much sense, in my view

    I believe that the GP case (as well as the Opinion of AG S. in GG) explains well why the B. case may have been a practical solution BUT, unfortunately, without any basis whatsoever in the Treaties

    one shld always keep in mind some obvious facts: (i) there are not only competition cases before the EU Courts, (ii) the remedies are ONLY those enshrined in the Treaties, (iii) the EU Courts cannot create new or additional remedies ones, just because it would make things easier

    there are some constitutional principles which shld be respected…. despite the fact that some antitrust lawyers believe that their beloved field of law shld get special treatment

    sorry, it does not

    the (procedural and constitutional) rules are the same irrespective of the field of law which is relevant, the complexity of the case, the monetary value of the case etc

    (I’m being provocative on purpose)


    4 December 2013 at 5:28 pm

  2. Nice reflection and very good points. By the way, they are strikingly similar to the ones the Commission made in its pleadings…


    5 December 2013 at 10:28 am

    • Thanks. I’d be surprised if they didn’t, but I’m sure they came up with more, or more refined, points. If, as it seems, you’ve seen those pleadings, I wouldn’t mind taking a look at them! (that, btw, would be a practical solution, not the orthodox procedural path of requesting access to docs.. 😉

      In any event, I don’t fully share the Commission’s approach (to the extent that we’ll be arguing over it at Court soon).

      Alfonso Lamadrid

      5 December 2013 at 10:46 am

      • 🙂 You would not find anything you did not know before…


        5 December 2013 at 5:02 pm

    • yes, indeed, i think i am smart 😀 but by no means the only one around

      the points I make are somewhat obvious for someone if one looks at the overall system and does not look at antitrust and state aid procedures in clinical islation from the rest

      haven’t read the COM pleadings but I did read judgment and opinion in grune punkt, and the opinion and judgment in groupe gascoigne: some of my points can be found there

      so, i am afraid i can’t really claim to be original on this 😀

      i understand the solution is not optimal but that’s the only one we have right now, unless the treaty is changed


      16 December 2013 at 8:25 pm

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