Europese Gemeenschap v Otis NV and Others.
Date: 2012-11-06
40. The Court has already had occasion to state that any person can 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 (see Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 59).
41. As regards, in particular, the possibility of seeking compensation for loss caused by a contract or conduct liable to restrict or distort competition, it should be recalled that 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 (see Case C‑453/99 Courage and Crehan  [2001] ECR I‑6297, paragraph 26, and Manfredi and Others , paragraph 60).
42. 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 national courts can make a significant contribution to the maintenance of effective competition in the EU ( Courage and Crehan , paragraph 27).
43. It follows that any person can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81(1) EC (see Manfredi and Others , paragraph 61).
46. It must be borne in mind in that regard that 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 (see Case C‑279/09 DEB [2010] ECR I‑13849, paragraphs 30 and 31; order in Case C‑457/09 Chartry [2011] ECR I‑819, paragraph 25; and Case C‑69/10 Samba Diouf [2011] ECR I‑7151, paragraph 49).
47. Article 47 of the Charter secures in EU law the protection afforded by Article 6(1) of the ECHR. It is necessary, therefore, to refer only to Article 47 (Case C‑386/10 P Chalkor  v Commission  [2011] ECR I‑13085, paragraph 51).
48. 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.
49. With regard, in particular, to the right of access to a tribunal, it must be made clear that, 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, it must have power to consider all the questions of fact and law that are relevant to the case before it.
50. It is true in that respect that, according to the Court’s case‑law (Case C‑344/98 Masterfoods and HB  [2000] ECR I‑11369, paragraph 52), which is now given legislative expression in Article 16 of Regulation No 1/2003, 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.
51. 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.
52. 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 ( Masterfoods and HB , paragraph 56).
53. It must be borne in mind in that regard that it is the EU Courts – not the courts of the Member States – which have exclusive jurisdiction to review the legality of the acts of the EU institutions. National courts do not have power to declare such acts invalid (see, to that effect, Case 314/85 Foto-Frost [1987] ECR 4199, paragraphs 12 to 20).
56. 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.
59. The Court of Justice has stated in this connection that, 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 (see Chalkor  v Commission , paragraph 54 and case‑law cited).
60. 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 (see, to that effect, Chalkor  v Commission , paragraph 61).
61. The EU Courts 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 mentioned in the Commission notice entitled ‘Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003’ (OJ 2006 C 210, p. 2) 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 ( Chalkor  v Commission , paragraph 62).
62. Finally, the review of legality is supplemented by the unlimited jurisdiction which the EU Courts were afforded by Article 17 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959 to 1962, p. 87) 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 ( Chalkor  v Commission , paragraph 63 and case‑law cited).
63. The review provided for by the Treaties thus 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 (see, to that effect, Chalkor  v Commission , paragraph 67).
64. As to the objection raised by the defendants in the main proceedings that the power of review is conferred on the Court of Justice, whose independence they claim is undermined on the ground that the Court is itself an EU institution, suffice it to state that it is wholly unfounded in the light of all the safeguards laid down in the Treaties, which ensure the independence and impartiality of the Court of Justice, and the fact that all judicial bodies necessarily form part of the State or supranational organisation to which they belong, a fact which on its own is not capable of entailing an infringement of Article 47 of the Charter or Article 6 of the ECHR.
71. The principle of equality of arms, which is a corollary of the very concept of a fair hearing (Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others  v API and Commission  [2010] ECR I‑8533, paragraph 88), 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.
72. As the Advocate General has observed in point 58 of his Opinion, 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.