EU representation before a national court
Commission may claim compensation for loss caused by cartel
By Sophie Mosca | Tuesday 26 June 2012
Even though it has itself issued a ruling on participation in a cartel, the European Commission may claim compensation before a national court for loss sustained by the EU in its capacity as a user in connection with the cartel. For Advocate-General Pedro Cruz Villalón, who handed in his opinion on 26 June, this is how the EU Court of Justice should answer the questions submitted to it by the Brussels (Belgium) Trade Court, to which the EU executive has submitted a claim for damages against Otis, Kone, Schindler and ThyssenKrupp in the amount of €7.061 million. The case is the first of its kind
In February 2007, the Commission imposed fines totalling more than €992 million against these four undertakings for their participation in cartels on the market for the sale, installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands. The companies appealed the decision before the EU General Court, which dismissed their case in July 2011, and then appealed to the Court of Justice, which is now hearing the case.
In parallel, in June 2008, for the first time ever, the European Commission - representing the EU - brought proceedings seeking compensation for financial losses sustained in Belgium and Luxembourg as a result of this cartel. The Union, a customer of the four incriminated companies for the installation, maintenance and renovation of lifts and escalators in different buildings of the EU institutions, argued that the price of these services was higher than the market rate as a consequence of the cartel.
The Belgian court wishes to know whether it can rule on this action when the anti-competitive behaviour that caused the loss was determined by a Commission decision that binds the national court. It also asks about respect for Article 47 of the Charter of Fundamental Rights, which lays down the principle of equality of arms between the parties to proceedings, since the companies concerned argue that the Commission would be placed at a distinct advantage as it holds information not available to them.
The advocate-general states in his opinion that the fact that the national court may not assess the validity of the Commission’s decision does not imply that judicial review of this decision has been restricted and that the companies do not have effective access to a court. Such access is guaranteed through the action for annulment before the EU court.
Cruz Villalón also considers that there is no infringement of the principle on equality of arms. This guarantees that any document submitted to the court may be examined and contested by any party to the proceedings. It has not been infringed because the Commission has not made available to the court information obtained during the infringement procedure.
There is consequently nothing to keep the Commission from claiming compensation before a national court for loss sustained by the EU.(1) Case C-199/11