No comment
It’s quite frequent in our line of business to hear accusations against the Commission for acting as investigator, prosecutor, judge and executor at the same time.
Well, in a case decided the day before yesterday by a Brussels Commercial Court, the Commission acted as all those, and also as a complainant…. and lost.
You read well
As some of you may remember, after fining the companies involved in the elevator cartel with 992 million back in 2007, the Commission tried to show the world that it is feasible to go before a national Court and ask for damages, so it went to a Belgian Court to ask for compensation for the damages allegedly suffered by the Institution (estimated at 6 million), given that it had to pay a cartelized price for the elevators installed in its buildings.
[Btw, I remember hearing Richard Whish saying once that if the Commission really wanted to pick the case that had caused the greatest harm to its officials, then it should have targeted the beer cartel (I confess I’ve used this joke a couple of times…)].
The Belgian Court has ruled that “on sait pas faire ça” and that “ici c’est pas l’ Europe, c’ est la Belgique” rejected the Commission’s contention that there is a legal presumption that every cartel causes damage, and held that the Institution had failed to prove the overcharging and the causality link.
No comment.
Actually, I have one: unlike their EU counterparts, national Courts lately seem to be getting increasingly less deferential to the Commission, and to EU Law for that matter (a topic interesting enough to deserve an ad hoc post)
P.S. A due acknowledgement: I became aware of this development thanks to a Lewis Crofts’ piece for MLEX, not the greatest Lewis in the UK, but close (like in the case of Prof. Whish above, I’m also copying this joke from another big guy in the competition world).
P.S. 2: The pics above are actually of the engraving that decorates my living room, A Caucus Tale and a Long Race, by Salvador Dali, inspired by the work of another famous brit named Lewis. The back of the painting reads as follows: “Fury said to a mouse, That he met in the house, “Let us both go to law: I will prosecute you. –Come, I’ll take no denial; We must have a trial: For really this morning I’ve nothing to do.” Said the mouse to the cur, “Such a trial, dear Sir, With no jury or judge, would be wasting our breath.” “I’ll be judge, I’ll be jury,” Said cunning old Fury: “I’ll try the whole cause, and condemn you to death.”‘
Chillin'Competition 
“National Courts lately seem to be getting increasingly less deferential to the Commission”.
Yet, if I am not mistaken, a Spanish Court recently granted interim relief measures based on the opening of the (State aid) formal investigation procedure by the Commission in the Santiago Bernabeu reclassification of land case.
Probably this is just the exception that proves the rule, but yet it might be worth mentioning, even if only because of its media impact.
Juan Hernangómez
26 November 2014 at 2:20 am
excellent news (and fun as well), thank you. already thinking how this finding of the Belgian court could be used…
germin
26 November 2014 at 9:53 am
I don’t think it’s an exception, Juan. In fact, the general rule is that national courts follow the Commission and EU Law, if only because they are obliged to as a matter of supremacy of EU Law. My point is that there are increasing exceptions to that general rule, and that some national judges seem to be starting to challenge ideas that in the past were out of question (see e.g. the Judgments of German and Spanish Courts interpreting the cap of 10% of total turnover for fines as contrary to general principles under national law). EU law and competition law have traditionally been seen as special animals and judges tended to buy whatever was told to them, even if it didn´t fit well with national legal traditions; in recent times I have the feeling I increasingly see them more reluctant to do that.
Alfonso Lamadrid
26 November 2014 at 11:18 am