- CL is addressed to “undertakings” – i.e., companies, pbs, associations etc
- Fundamental rights (FR).eg. HRL are addressed to individuals, legal or natural.
is now possible to rely on FR, in competition cases, since the eu *Charter became a binding element of EU constitutional law…thus, now the Court may be persuaded to annul a decision….but is best to also rely on CL
* The eu Charter is the lighthouse sending a guiding light on ec’s decisions
The Treaties give the eu courts the power to review [ Article 263 TFEU](ec/cmas decisions) in both the law and the facts: to assess the evidence, to annul the contested decision and to alter the amount of a fine[ unlimited jurisdiction on fines: Article 31 of Regulation No 1/2003]
Article 7 of the EU charter: Everyone has the right to respect for private and family life, home and communications…..this fr, applies to competition cases wrt “dawn raids” under Article 20 Regulation 1/2003
Article 8 Charter: on the protection of personal data [is a type of right to privacy]
Article 7 and 8 of Charter = Article 8 ECHR <> the exception clause in Article 52 Charter.
most relevant judgments on the right to privacy
Silec Cable
in its appeal to the ECJ, Silec Cable contended that the GC had infringed its fr to the protection of confidential information enshrined in Article 7 Charter and Article 8 ECHR, through the publication of a communication between Silec Cable and another undertaking in the judgment. ec had accepted Silec Cable’s claim for confidential treatment of that communication, and any reference to it had been redacted from the non-confidential (published) version
The ECJ rejected the argument presented by Silec Cable, unless silec could prove that the disclosure [of purportedly confidential information], had “ an effect on the outcome of the case” before the GC
České dráhy
České dráhy, the Czech state-owned railway operator, challenged ec’s decision ordering it to submit to a dawn raid on suspicion of predatory pricing, and also challenging an ec decision based on evidence obtained during the dawn raid.
České dráhy argued that ec breached their fr guaranteed by Article 7 Charter and Article 8 ECHR and failed to meet the conditions which would justify such interference – namely, to pursue a legitimate aim, considering the lack of reasonable grounds to suspect an infringement
The GC found that:
– since the inspection decision had been adopted on the basis of Article 20(4) Regulation 1/2003, the interference was “provided for by law”.
– because the Commission’s powers under Article 20 Regulation 1/2003 are for ensuring compliance with cl, the inspection decision met the objectives of general interest, specifically, under Regulation 1/2003
– Where an inspection decision is to enable ec to assess whether the Treaty has been infringed, such a decision is not contrary to the principle of proportionality [art.5.4 tfeu]
Nexans
Nexans is a company which, along with Deutsche Bahn, has vigorously contested the Commission’s approach to on-site investigations with some success. Nexans invoked Article 7 Charter in its appeal against ec’s inspection decision
Nexans argued that, “copying ‘en masse’ material not been examined by ec beforehand did not fall within the scope of the Commission’s powers under Regulation No 1/2003”, its removal during an inspection amounted to an “arbitrary and disproportionate” intervention in Nexans’ rights protected by Article 7 Charter.
the GC held that the Commission had not reached beyond the powers conferred by Regulation 1/2003.
Evonik Degussa
Evonik first appealed the decision to the GC, arguing that the ec decision infringed Article 8 ECHR and Article 7 Charter, and then appealed the GC findings to the ECJ.
the GC held:
-the information provided by applicants in a leniency statement lost its confidential status after five years and was therefore not protected by any right to privacy.
– a person cannot rely on Article 8 [ECHR] to complain of a loss of reputation which is the foreseeable consequence of his own actions
Evonik:
– such information still constituted “essential elements of its commercial position” since “its publication could cause it serious harm”
– ec had illegally used merger information, when such information is private
-because those statements were made under the leniency programme, their disclosure could not have been regarded as a foreseeable consequence of participating in the cartel, for which they should be protected under the right to privacy
The ECJ:
– information secret or confidential of at least five years old, has lost its secret or confidential nature, unless the applicant shows that that information “still constitutes essential elements of its commercial position.” …. here, evonik won.
-Evonik failed to show that the disclosure could not be considered “a foreseeable consequence of its participation in the cartel”. Evonik also failed to indicate the consequences of the disclosure for its right to private life.
Goldfish
Goldfish appealed ec decision, to gc, finding it liable for cartel conduct in North Sea shrimps.
Goldfish contended that the secret recordings of telephone conversations made by a competitor constituted an unlawful means of proof, and the Commission should not have relied on them as evidence, as being contrary to the Article 8 ECHR case law, the ECtHR’s and the ECJ’s case law, as well as the law of the Netherlands, where the recordings were made, and other Member States.
The GC : rejected the applicant’s argument. the EU Courts have, on occasion, agreed to admit documents not obtained by proper means.
Referring to the ECtHR in Popescu v. Romania, the GC found that the use of evidence obtained in breach of Article 8 ECHR does not in itself breaches the principle of fairness in Article 6(1) ECHR, provided the applicant was not deprived of his rights of defence and the evidence was not the only proof relied on for a conviction.
the GC considered that the evidence had been lawfully collected by the Commission (the recordings seem to have been made with a view to a leniency application by a competitor company, and were seized in a dawn raid of that company)…also, the recordings had an “immediate and direct link to the subject matter” of the investigation and were thus “particularly valuable items of evidence”.
Deutsche Bahn
Deutsche Bahn challenged an ec decision to carry out an on-site inspection. It argued that the lack of prior judicial authorisation for the inspection constituted an infringement of Article 7 Charter and Article 8 ECHR. The GC rejected this argument, and Deutsch Bahn appealed to the ECJ, claiming that the GC had disregarded the ECtHR’s judgment in Société Colas Est and Others v. France, by holding that the absence of a prior judicial authorisation is only one of the factors considered by the ECtHR when deciding on an infringement of Article 8 ECHR.
The ECJ partially allowed the appeal
Art. 48 eu charter [poi = presumpofinnocence] <>
Article 41 EU Charter – Right to good administration
Article 41.2:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
Recent Cases referring to Article 41 Charter
Icap
Icap is an example of the novel procedural issues that arise from hybrid cartel proceedings [where at least one of the parties decides not to settle]
Icap, a trader, was fined by ec for “facilitating” infringements in the “LIBOR” (YIRD) cartel. Icap decided not to settle….ec issued a settlement fine against other financial institutions. The Commission then took its decision against Icap. Icap appealed saying ec had breached its right to good administration and the presumption of innocence contrary to Article 41 Charter.
The GC: ec’s position on the illegality of Icap’s conduct and its liability, could be inferred from the ec decision. Accordingly, the Commission breached icap’s poi…Also, the ec breach [of icap’s poi] had a direct impact on the legality of the ec decision…thus, the ec decision is annuled because the ec’s breach [of icaps’ poi] was so significant, that the ec decision would have been different in the absence of such breach. icap won.
Pometon
Pometon also involved hybrid cartel settlement decisions, this time in the steel abrasives cartel. Pometon withdrew from the settlement discussions and became subject to a ec decision, whilst the other companies reached a settlement agreement with ec.
Pometon argued on the basis of Articles 41, 47 and 48 Charter that its rights of defence, the poi and the principle of impartiality were infringed due to the Commission’s preceding reference to it in the settlement decision against the other steel abrasives producers. It maintained that, due to the inherent time lag in hybrid cases, the Commission should have refrained from giving any unnecessary information regarding Pometon in assessing the guilt of the settling undertakings.
the GC concluded that the mention of Pometon in the settlement decision did not mean that the Commission had established guilt in relation to Pometon. Hence, the GC found that the Commission had not infringed the poi sufficient to justify annulment….Pometon is currently under appeal.
HSBC Holdings
another hybrid cartel case…..HSBC claimed that its right to good administration was infringed by the Commission having adopted the contested decision subsequent to a settlement decision where the Commission had already adopted a position on HSBC’s participation in the infringement at issue….Along with its rights of defence and right to the presumption of innocence (both Article 48 Charter), HSBC argued that the settlement decision prejudged its liability and impaired its right to have its case handled impartially.
GC : did any lack of objective ec impartiality from the alleged ec’s poi infringement, when the settlement decision was adopted, impacted the lawfulness of the ec decision?
no, because the ec’s breach [of hsbc’ poi] was not so significant, that the ec decision would have been different in the absence of such breach. thus, GC upheld only HSBC’s plea that ec failed to adequately state its reasoning for fine calculation. The case is currently on appeal.
general conclusion: in the future, ec must ensure that its decision’s references to a non-settling party, should not pre-judge the outcome for that party.
Saint- Gobain
Relying on Article 41(2)(c) Charter and Article 296 TFEU, Saint-Gobain claimed that the Commission had not stated the sales figures on the basis of which the fine was calculated. More specifically, the applicant accused the Commission of not having provided evidence to establish whether the sales figures used were a result of an accurate or a flawed calculation.
The GC rejected the plea. wrt Article 41(2)(c) Charter, it noted that Article 296 TFEU was now “supplemented” by this Article. The GC defined the obligation to state reasons to enable the EU Courts “to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested”.
The GC then, on the facts, held that ec’s decision was not vitiated by flawed or insufficient reasoning.
Article 48 EU Charter – POI and ROI (right of defence)
= Article 6 ECHR….. minimum rights:
-to be informed promptly, in a language which they understand and in detail, of the nature and cause of the accusation against them;
-to have adequate time and facilities for the preparation of their defence;
-to defend themselves in person or through legal assistance of their own choosing or, if they lack sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
-to examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
-to have the free assistance of an interpreter if they cannot understand or speak the language used in court.
–the privilege against self-incrimination; the right to be heard; the right to be assisted by legal counsel and granted LPP; and the right to good administration.
Post Treaty of Lisbon, 55 GC cases contained Article 48 arguments, and six were successful.
United Parcel Service – ups
In 2013, the ec blocked ups attempted takeover of TNT Express. UPS challenged this decision before the GC, claiming its rod were infringed, as the ec econometric analysis materially differed from all the other analysis used during the [administrative procedure = the cma/ec procedure leading to a decision]. The GC annulled the ec decision, and this was recently upheld by the ECJ….thus, the merger went ahead.
The GC: the right to a fair hearing, which forms part of the rod, is infringed if undertakings are not afforded the opportunity, during the administrative procedure, to make known their views….thus, ec should have communicated the final econometric analysis model to ups, before adopting the decision …Accordingly, UPS’ rods were infringed, and the contested decision was annulled
ecj: the rod (i.e., Article 48 Charter) are an emanation of the rga (right to good administration = Article 41 Charter)….thus, ec’s decision should be annulled (struck down) on the basis that UPS would have better defended itself, if it had received the analysis model [prior to the ec decision]
Article 49 Charter – Principles of legality and proportionality of criminal offences and penalties
- No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that shall be applicable.
- The severity of penalties must not be disproportionate to the criminal offence.
In all three cases below, Article 49 was invoked in relation to the principle of proportionality and without reference to the ECHR.
Infineon
Infineon argued that, by imposing on it a disproportionate fine, the Commission and the GC infringed Article 49 Charter. according to infineon [appellant], the GC made a manifest error of assessment in failing to take into account Infineon’s limited participation in the infringement, which then resulted in an incorrect calculation of the turnover for determining the amount of the fine.
The ECJ found that, since the GC did not “review the proportionality of the amount of the fine imposed in relation to the number of contacts found against the appellant” and did not state the reasons for it, the GC made an error of law. The ECJ set aside the judgment of the GC, and referred the case back to the GC.
Article 50 Charter– Ne bis in idem principle [nbiip]
Right not to be tried or punished twice [in criminal proceedings] for the same criminal offence….. resjudicata [rj] is the civil brother of nbiip
Only in the post-Lisbon judgments was Article 50 Charter invoked. none of the arguments was successful:
Marine Harvest
The appeal sought the annulment of a decision fining the applicant for “gun jumping” in breach of the EU Merger Regulation.
Marine acquired a 48.5 % share in another company, followed by a public offer for the remaining shares. After the end of the public offer, the applicant formally notified the concentration to ec, and it was cleared…. But ec then issued a decision fining the Applicant €10 million for failing to notify the acquisition of de facto control, in breach of Article 4(1) Merger Regulation, and a further €10 million for implementing the concentration in breach of the standstill obligation laid down in Article 7(1) Merger Regulation. The applicant argued that the nbiip, prevented ec from imposing separate fines
The ECJ: found, on the wording of the Merger Regulation , that the double fines were justified.