Case C‑199/11

Europese Gemeenschap

v

Otis NV and Others

(Reference for a preliminary ruling from the rechtbank van koophandel te Brussel)

‛Representation of the European Union before national courts — Articles 282 EC and 335 TFEU — Claim for damages in respect of loss caused to the European Union by a cartel — Article 47 of the Charter of Fundamental Rights of the European Union — Right to fair hearing — Right of access to a tribunal — Equality of arms — Article 16 of Regulation No 1/2003’

Summary — Judgment of the Court (Grand Chamber), 6 November 2012

EU law — Principles — Right to effective judicial protection — Entrenchment by the Charter of Fundamental Rights of the European Union — Commission decision finding an anti-competitive practice — Action brought by the Commission before a national court for damages in respect of loss sustained by the European Union as a result of that anti-competitive practice — Obligation of the national courts not to take decisions that run counter to a Commission decision finding an anti-competitive practice — Jurisdiction of the national courts to determine whether there is loss and whether a causal link exists — Infringement — None

EU law — Principles — Right to effective judicial protection — Entrenchment by the Charter of Fundamental Rights of the European Union — Judicial review of competition decisions adopted by the Commission — Review of legality and unlimited jurisdiction as regards both the law and the facts — Infringement — None

Competition — Agreements, decisions and concerted practices — Prohibition — Right to rely on the invalidity of an agreement prohibited by Article 81 EC and to claim compensation for the loss sustained — Right also enjoyed by the European Union

European Union — Representation before national courts — Civil action for damages in respect of loss caused to the European Union by an anti-competitive practice liable to have affected public contracts awarded by institutions or bodies of the European Union — Commission’s authority to represent those institutions or bodies — Whether Commission obliged to have authorisation conferred upon it for that purpose by those institutions or bodies — No such obligation

EU law must be interpreted as meaning that the Commission is not precluded from representing the European Union before a national court hearing a civil action for damages in respect of loss caused to the European Union by an agreement or practice prohibited by Articles 81 EC and 101 TFEU which may have affected certain public contracts awarded by various institutions and bodies of the European Union, there being no need for the Commission to have authorisation for that purpose from those institutions and bodies. (see para. 36, operative part 2)

Any person may rely on a breach of Article 81 EC before a national court and therefore rely on the invalidity of an agreement or practice prohibited under that article. As regards, in particular, the possibility of seeking compensation for loss caused by a contract or conduct liable to restrict or distort competition, the full effectiveness of Article 81 EC and, in particular, the practical effect of the prohibition laid down in Article 81(1) EC would be put at risk if it were not open to any person to claim damages for loss caused to him by a contract or conduct liable to restrict or distort competition. Such a right in fact strengthens the working of the EU competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the European Union. It follows that any person may claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81 EC. The European Union, therefore, also enjoys that right. (see paras 40-44)

The principle of effective judicial protection is a general principle of EU law, to which expression is now given by Article 47 of the Charter of Fundamental Rights of the European Union. Article 47 secures in EU law the protection afforded by Article 6(1) of the European Convention on Human Rights. The principle of effective judicial protection laid down in Article 47 of the Charter comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented. With regard, in particular, to the right of access to a tribunal, for a tribunal to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, it must have power to consider all the questions of fact and law that are relevant to the case before it. The principle of equality of arms, which is a corollary of the very concept of a fair hearing, implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Thus, the aim of equality of arms is to ensure a balance between the parties to proceedings, guaranteeing that any document submitted to the court may be examined and challenged by any party to the proceedings. Conversely, the harm which a lack of balance will be likely to cause must, as a rule, be proved by the person who has suffered it. (see paras 46-49, 71, 72)

When national courts rule on agreements, decisions or practices under, inter alia, Article 101 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. That rule also applies when national courts are hearing an action for damages for loss sustained as a result of an agreement or practice which has been found by a decision of the Commission to infringe Article 101 TFEU. An application of the EU competition rules is thus based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the EU Courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty. Consequently, the rule that national courts may not take decisions running counter to a Commission decision relating to a proceeding under Article 101 TFEU is thus a specific expression of the division of powers, within the European Union, between, on the one hand, national courts and, on the other, the Commission and the EU Courts. (see paras 50-52, 54)

See the text of the decision. (see para. 53)

The rule that national courts may not take decisions running counter to a Commission decision relating to a proceeding under Article 101 TFEU does not mean that the parties before a national court are denied their right of access to a tribunal. Indeed, EU law provides for a system of judicial review of Commission decisions relating to proceedings under Article 101 TFEU which affords all the safeguards required by Article 47 of the Charter of Fundamental Rights of the European Union. Thus, the legality of a Commission decision may be reviewed by the EU Courts under Article 263 TFEU. Whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Those Courts must, among other things, not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. The EU Courts must also establish of their own motion that the Commission has stated reasons for its decision and, among other things, that it has explained the weighting and assessment of the factors taken into account. They must also carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria relating to the setting of a fine mentioned in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the law and of the facts. Finally, the review of legality is supplemented by the unlimited jurisdiction which the EU Courts were afforded by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. Accordingly, the review provided for by the Treaties involves review by the EU Courts of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for in Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for in Article 31 of Regulation No 1/2003, therefore meets the requirements of the principle of effective judicial protection in Article 47 of the Charter of Fundamental Rights of the European Union. (see paras 54-57, 59-63)