Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

The General Court’s annulment of the airfreight cartel decision

with 3 comments

 airplane

We never said a word about the annulment, back in December, of the Commission’s airfreight decision.

I worked on that case before the Commission (for an addressee of the SO later not included in the decision) and shortly before the Judgment went out I was asked by Nicholas Hirst (Politico) whether I thought the decision could be annulled. I confess I didn’t think it was possible, that it was a solid one, not the least because there were 14 leniency applicants. And then the General Court annulled it.

But the real surprise came not with the news, but when reading the Judgment(s). Some people tend to think that a Judgment that quashes a Commission decision must necessarily be a good thing, because after all strict judicial review is a good thing. If you ask me, and to put it mildly, the Judgments don’t make sense (and I bet that a few of the winning lawyers share this view).

The only reason why the decision is annulled is because the Court sees incongruence between the grounds and the dispositive parts. The grounds were –like it or not- clear, and the alleged problem was that when imposing fines –in the operative part- the Commission distinguished, the periods for which it had the power to impose those fines (in the air transport world the Commission’s powers changed over time).

To me, the content of the decision was perfectly clear. How that can be a problem liable of leading to the decision’s annulment is beyond me. In any event, this might not be of much, or any, practical significance, as the Commission can easily amend the supposed error in a new decision. The Commission does get it wrong sometimes (for an example of this, check out my next post on recent State aid cases), but the fact that it got the blow in a case where it might not have deserved it is a bit puzzling.

Other recent relevant cartel cases involve leniency issues (namely the ECJ’s Judgments in DHL and Galp), but we’ll leave that for a future post.

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Written by Alfonso Lamadrid

24 February 2016 at 12:21 pm

Posted in Uncategorized

3 Responses

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  1. great analysis…

    bismarck

    25 February 2016 at 9:17 am

  2. Great post. May I point you out to Consten and Grundig (1966)? It’s all already there, and used a ground of annulment.

    jaimz57

    26 February 2016 at 11:00 am

  3. The judgment was rendered just before the 5 year deadline that is normally considered as deserving a closer examination in the context of breach of the principle of “reasonable time”. If judges had dealt with all pleas (what happens when a case is fully dismissed), may be they had the feeling that they would deliver the judgments several years later. So lack of reasoning was (perhaps) a convenient escape. It looks great on judges (effective judicial review, so cherished by practitoners, they will have quote of cases won this year) and justice is delivered “just in time”. But we had to wait 5 years to learn that, finally, the decision was not unclear on one fundamental point. Well…

    joan

    29 February 2016 at 9:40 am


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