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Juan Ignacio Ruiz Peris (Director) Carmen Estevan de Quesada (Coordinadora)

JUAN IGNACIO RUIZ PERIS (Director)

CARMEN ESTEVAN DE QUESADA (Coordinadora)

DERECHO EUROPEO DE LA COMPETENCIA “Training of National Judges in EU Competition Law”

PROYECTO EUROPEO “Training of National Judges in EU Competition Law”

PROYECTO EUROPEO

DERECHO EUROPEO DE LA COMPETENCIA

Derecho Europeo de la Competencia es fruto del Seminario de formación de jueces europeos en Derecho de la Competencia Training of National Judges in EU Competition Law, desarrollado en los días 22, 23 y 24 de octubre de 2015 en la Universitat de València. En él se abordaron cuestiones esenciales que caracterizan al Derecho de la Competencia como rama del ordenamiento jurídico, y resultan, en ocasiones, extrañas, incluso esotéricas, para un jurista clásico, como la delimitación del mercado relevante o de referencia, los problemas vinculados al abuso de posición de dominio, o la figura del amicus curiae. Entre los autores encontramos magistrados del Tribunal Supremo, y del Tribunal de Justicia de la Unión Europea, de Audiencias territoriales, miembros de la Comisión Europea y de la Comisión Nacional del Mercado de la Competencia, así como a reputados especialistas académicos con dilatada experiencia práctica en el Derecho de la Competencia. La obra está especialmente indicada para aquellos juristas sin conocimientos en el Derecho de la Competencia que quieren introducirse en este ámbito, en particular para aquellos que desean incluir en su práctica acciones de indemnización por daños en materia de competencia, para los que constituye una excelente base.

ALTA CALIDAD EN INVESTIGACIÓN JURÍDICA

monografías

monografías

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EUROPEAN COMMISSION Directorate-General for Competition Policy and Strategy Directorate A


DERECHO EUROPEO DE LA COMPETENCIA “Training of National Judges in EU Competition Law”

Director

JUAN IGNACIO RUIZ PERIS Coordinadora

CARMEN ESTEVAN DE QUESADA

EUROPEAN COMMISSION Directorate-General for Competition Policy and Strategy Directorate A

Valencia, 2017


Copyright ® 2017 Todos los derechos reservados. Ni la totalidad ni parte de este libro puede reproducirse o transmitirse por ningún procedimiento electrónico o mecánico, incluyendo fotocopia, grabación magnética, o cualquier almacenamiento de información y sistema de recuperación sin permiso escrito de los autores y del editor. En caso de erratas y actualizaciones, la Editorial Tirant lo Blanch publicará la pertinente corrección en la página web www.tirant.com.

© Juan Ignacio Ruis Peris y otros

© TIRANT LO BLANCH EDITA: TIRANT LO BLANCH C/ Artes Gráficas, 14 - 46010 - Valencia TELFS.: 96/361 00 48 - 50 FAX: 96/369 41 51 Email:tlb@tirant.com www.tirant.com Librería virtual: www.tirant.es ISBN: 978-84-9119-837-6 MAQUETA: Tink Factoría de Color Si tiene alguna queja o sugerencia, envíenos un mail a: atencioncliente@tirant.com. En caso de no ser atendida su sugerencia, por favor, lea en www.tirant.net/index.php/empresa/politicas-de-empresa nuestro Procedimiento de quejas.


PRÓLOGO La obra que tiene en sus manos es fruto de la colaboración entre la Unión Europea, la Universitat de València y distintos órganos jurisdiccionales de instancia, apelación y casación españoles y extranjeros, en un esfuerzo conjunto para facilitar la aplicación del Derecho de la competencia de la Unión Europea, ante los Tribunales del orden jurisdiccional civil que deben aplicar éste en caso de interposición de acciones de indemnización de daños y perjuicios por infracción de los artículos 101 y 102 TFUE o de declaración de la nulidad total o parcial de un contrato como consecuencia de su contrariedad al primero de estos preceptos europeos. Los capítulos de este libro están constituidos por la versión escrita de las ponencias presentadas al Training of National Judges in EU Competition Law, que se celebró en Valencia los pasados 22, 23 y 24 de octubre de 2015 con participación de importantes especialistas nacionales y extranjeros pertenecientes a la academia, la jurisdicción y las autoridades de competencia y que tuve el honor de dirigir. La actividad estaba financiada por la Unión Europea y se incardinaba en sus programas de formación de jueces que son concedidos a las entidades solicitantes, en este caso la Universitat de València, por medio de una licitación competitiva. El proyecto que dirijo fue el único español financiado en esta convocatoria y el total de proyectos financiados en toda la Unión Europea no excedió la quincena. En el desarrollo del programa, en el que he contado siempre con la inestimable colaboración de Dña. Purificación Martorell, magistrada de la sección 9ª de la Audiencia Provincial de Valencia, hemos tratado de buscar temas que faltaran en la formación de un jurista clásico que debe resolver cuestiones relativas al Derecho europeo de la competencia, y por extensión, nacional, puesto que hemos aprovechado la ocasión para hacer también referencia a algunas cuestiones relevantes del Derecho nacional de la competencia. Abordamos así temas como los del mercado relevante o de referencia, la conducta colusoria, las restricciones accesorias, el abuso de posición de dominio, la actuación de las autoridades de competencia como amicus curiae, la Directiva europea de compensación


Juan Ignacio Ruiz Peris

de daños o el papel del juez mercantil en materia de Derecho de la competencia. Esta óptica hace el libro muy recomendable, no solo para los magistrados que deben resolver este tipo de litigios en el orden civil, magistrados jueces de lo mercantil, magistrados de las secciones especializadas de las Audiencias Provinciales o de la Sala Primera del Tribunal Supremo, sino para todos aquellos letrados que deban plantear este tipo de acciones indemnizatorias o de nulidad ante dichos órganos y no posean formación especializada en este campo. Se trata de ayudar a todos ellos a comprender las peculiaridades aplicativas del Derecho de la competencia que lo hacen tan distinto a las restantes ramas del ordenamiento jurídico, de modo tal que sea posible orientar una adecuada actuación en el foro en este tipo de asuntos. Con independencia de algún otro volumen ya en marcha sobre aspectos concretos de la regulación indemnizatoria en materia de defensa de la competencia, la lectura de este libro resulta muy conveniente con carácter previo para comenzar a comprender los instrumentos y resortes que pueden ser usados en este tipo de casos. No quiero concluir estas breves líneas sin agradecer a la Unión Europea y la Universitat de València su implicación en este proyecto, a la editorial Tirant lo Blanch, la publicación de este libro, y a las entidades YURIS COMPETENCIA e INTEGRAL LEGAL MANAGEMENT, su colaboración financiera para la realización de las jornadas. También agradezco la colaboración de Teresa Palomar Tejedor, Carmen Rodilla Martí y Jaime Martí Miravalls en este proyecto. Espero que la lectura de este libro le sea útil. En Valencia a 25 de abril de 2016 Juan Ignacio Ruiz Peris Catedrático de Derecho mercantil Universitat de València


Capítulo I

EUROPEAN COMPETITION RULES AND THE EUROPEAN COURT OF JUSTICE Vivien Terrien1 Secretario jurídico del Tribunal de Justicia de la Unión Europea

I. INTRODUCTION Since the Court of Justice recognized the principles of direct effect and of primacy and Regulation 1/2003 truly decentralized responsibilities in this field, national judges have become the main judges in applying EU competition rules. At national level, some judges are yet to improve their knowledge of the basics of EU competition law despite the fact that they are, and will be, frequently called upon to apply it. Others hold the key elements but may not be informed of the latest developments. The keynote given on 22 October 2015 in Valencia aimed at targeting both categories of participants and to address their varied needs and aspirations.

II. THE CJEU AS A SOURCE OF DECISIONS IN COMPETITION LAW To successfully navigate inside the plethora of competition law decisions, national judges should, first, understand the EU judicial architecture to be able to identify both the decisional hierarchy and the Référendaire in the cabinet of Mr. Jaeger, President of the General Court of the European Union. This paper is based on the presentation delivered on 22 October 2015 in the framework of the Training for National Judges in EU Competition Law held at the Facultad de Derecho of Valencia. It reflects the situation at that date. The author can be reached at vterrien@post.harvard.edu. All opinions expressed are strictly personal and do not represent the views of the Court of Justice of the European Union.

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importance of each type of litigation proceedings that may lead to the adoption of a relevant judgment in this field. (A) Then, it seems essential to get a better idea of the activity of EU Courts in competition law in terms of both quantity and trends affecting the production of judicial decisions. (B) Finally, a brief indication regarding transparency as to the publication of decisions dealing with competition law matters might be of interest for national judges seeking to obtain the most precise information from EU authorities involved in administrative or judicial resolution of competition law cases. (C)

A. The CJEU in the European legal architecture Before tackling the most recent development in the EU judicial architecture (i.e., the structural reform) (2) the current structure should be briefly described (1).

1. The Current Structure From 1952 to date, not only the Court of Justice has grown in terms of members but also in terms of jurisdictions. At the beginning, at the time of the existence of the Court of Justice of the European Coal and Steel Community, no requirement was imposed regarding judges nationality (composed of 7 judges and 2 Advocates General). Further on, since 1959, the number of judges at the Court of Justice of the European Union has been linked to the number of Member States, each of them having the right to have one judge of its nationality. Today, the “Court of Justice of the European Union” is the name of the institution composed of three jurisdictions: the “Court of Justice”, the “General Court” and the “Civil Service Tribunal”. The Civil Service Tribunal, composed of 7 judges, deals with EU staff cases and its decisions can be challenged on points of law before the General Court. In turn, these appeal judgments may exceptionally be subject to review by the Court of Justice where there is a serious risk of the unity or consistency of Union law being affected. (Article 256§2 TFEU) The General Court, composed of 28 judges (one per Member State), also delivers judgments at first instance. These decisions may be appealed before the Court of Justice, also composed of


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28 judges. In that regard, Art. 19 (2) TEU provides that “[t]he Court of Justice shall consist of one judge from each Member State” whereas it specifies that “[t]he General Court shall include at least one judge per Member State”. This difference is the key word that supports the CJEU structural reform adopted last December.

2. The Structural Reform To address the backlog issue and the increase of the workload at the General Court level, the EU legislators (Council and Parliament) found an agreement in December 2015 to double the number of judges, using the possibility to have more than one judge per Member State in this jurisdiction. (a) Competition law proceedings may benefit from this reform on at least two counts. (b)

a. Content In March 2015, the General Court will welcome 12 new judges from Czech Republic, Sweden, Spain, Hungary, Poland, Cyprus, Lithuania, Greece, Latvia, Luxembourg, Slovakia and Malta. In September 2016, the seven posts of judges at the Civil Service Tribunal will be transferred to the General Court. This jurisdiction will thus disappear and its competence transferred to the General Court, which consequently means that the Court of Justice will become again an appellate jurisdiction in this matter. The review procedure will therefore disappear as well. Finally, in 2019, another nine judges will join the General Court bench.

b. Two possible consequences of the reform on competition cases Duration of proceedings. One possible consequence of the structural reform that can be expected in the field of competition law may be the reduction of the length of judicial proceedings in this field. In 2014, the duration of proceedings for all types of cases amounted to 23.4 months (judgment and order combined) and 28.4 months (cases completed solely by judgments). However, figures are more worrying when competition law cases are singled out. The average


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duration of proceedings when all types of competition cases completed by judgments are considered rises to 44.6 months, and when only stricto sensu competition cases are examined it comes to 51.5 months. Not only is this length of proceedings unsatisfactory from an objective point of view but it also leads to risks of action for damages against the CJEU. Recently, the Court of Justice recognized in certain instances that the procedure in the General Court breached the second paragraph of Article 47 of the Charter in that it failed to comply with the requirement that it adjudicate within a reasonable time (see, for example, Cases C-50/12 P, Kendrion, C-58/12 P, Gascogne, C-40/12 P Gascogne Deutschland). Actions for damages are now submitted before the General Court, asking millions of euros to be paid in compensation for such infringement (see, for instance, Case T-673/15, Guardian Europe v European Union, lodged on November 19st 2015). The structural reform, bringing more capacity to the General Court, may allow this court to speed up its proceedings, benefiting especially to competition cases, which suffer the most. Specialization. Another possible consequence of the structural reform that can be expected in the field of competition law may be the internal reorganization the General Court may undertake to introduce specialization for certain cases, leading to the creation of chambers dealing with specific competition law cases. Cases at the General Court are not allocated based on any judges’ specific expertise. All judges deal with all types of cases that may be filed before this jurisdiction. Cases are allocated, in turn, to one of the nine chambers, each composed of three judges, according to one of the following three categories: (i) competition law and antidumping; (ii) intellectual property; and (iii) others. The allocation process does not take into account any linguistic capacity either. Therefore, the German judge can work on German cases, French cases, Romanian cases, etc‌ This way of working is made possible owing to the fact that the working language of the Court of Justice of the European Union is French. All documents are translated into this language before the judges start working on a case. Since an application can be introduced in one of the 24 official languages, the judgment will be translated into the procedural language once finalized before being delivered.


European competition rules and the European Court of Justice

In 2014, the General Court mainly adopted its decisions in 3-judge chamber (86% of the total completed cases), letting 5-judge chambers to be involved in a very small proportion of cases (2% of the total completed cases) and not using at all the possibility to rule on a single‑judge basis. On 1 July 2015, the new rules of procedure of the General Court entered into force. Article 25 (1) of the new rules of procedure provides that “(…) the General Court may make one or more Chambers responsible for hearing and determining cases in specific matters (…)”. This provision may lead to a certain degree of specialization in the future in the context of the increase of the number of judges. With more capacity, more flexibility will be allowed in organizational terms and it cannot be excluded that, also in order to avoid divergence between chambers, the Members of the General Court decide to reserve some subject-matters to specific chambers. However, one should note that the case allocation process at the General Court allows the President to take into account potential connexity between cases (and not only strict connexity, i.e., applications challenging the same act), i.e. applications raising the same type of legal or factual issues, to designate the competent chamber. As a result, a certain specialization is already in place. The question of specialization at the General Court level should conduct observers to raise the same question with regard to the Court of Justice, whose organization is not specialized. The 28 judges, assisted of 9 Advocates General since 7 October 2015, work in 5‑judge chambers and most of the cases are adopted in this type of formation (47% of total completed cases in 2014; 32% in chambers of 3 judges), making use however of the possibility to rule in Grand Chamber (13 judges) for the most important cases (7.5% of the total completed cases in 2014). If specialization comes to the first instance but not at the appeal level, one might wonder whether the effect of such modification will really impact in fine the EU case law. However, the case allocation process at the Court of Justice allows some kind of specialization since, unlike the General Court that allocates cases to chambers, this jurisdiction distributes cases to judges. Therefore, when some judges have developed some kind of expertise in a subject-matter, this fact can be taken into account for the allocation of similar cases in the future.


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B. The Production of decisions What types of EU judicial decisions can provide national judges with knowledge about the state of EU competition law? Two main sources of judicial decisions regarding competition law should be clearly identified: the preliminary ruling procedure and the action for annulment. Preliminary ruling. Through the first procedure, the Court of Justice delivers decisions to answer a question raised by a national court as to the validity or the interpretation of a EU legal instrument. The reference for preliminary rulings mechanism should be viewed as a collaboration procedure between the EU judges and the national judges. If currently the Court of Justice is the sole court in charge of this procedure, it should be noted that Article 256 (3) TFEU provides that “[t]he General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling in specific areas”. However, such specific areas have not yet been identified by the Court of Justice and, consequently, the competence to rule on references for preliminary rulings remains the exclusive competence of the Court of Justice. This type of decisions is particularly important for national judges involved in competition law matters. First, the interpretation given by the Court of Justice can go as far as concluding whether an agreement or provisions of a national legislation (see, for instance, Case C‑345/14, Maxima Latvija, 26 November 2015) under review infringe EU competition law (see, for instance, Joined Cases C‑184208/13, API, 4 September 2014). Second, it can specifically address practical issues such as the ones raised in the context of action for damages where the Court of Justice tried to assist national courts that had to decide on whether or not to order production of documents before the adoption of the Damage Claims Directive (see, Case C-360/09, Pfleiderer, 14 June 2011; and Case C-536/11, Donau Chemie e.a., 6 June 2013). Action for annulment. Through the second type of procedure, the EU judges mainly deal with Commission’s decisions, whose legality is first challenged before the General Court on points of facts and law and, sometimes, before the Court of Justice through the appeal procedure, limited to points of law. The judgment rendered on appeal by the Court of Justice provides all stakeholders (individuals,


European competition rules and the European Court of Justice

companies, judges, etc.) with a definite answer as to the problems raised in a specific case and also helps the Commission to provide a clearer assistance when intervening as amicus curiae in national proceedings. For instance, in its Decision of 24 January 2007 adopted in Case COMP/F/38.899 – Gas insulated switchgear, the Commission imposed fines totaling €750 712 500 on 20 companies for their participation in a cartel on the market for gas insulated switchgear. However, in its judgment of 3 March 2011 adopted in Joined Cases T-122/07 to T-124/07 Siemens Österreich and Others v Commission, the General Court reduced the fines of certain members of the gas insulated switchgear cartel. Eventually, the Court in part found the appeals well-founded (Joined Cases C-231/11 P, C-232/11 P, C-233/11 P, Commission v Siemens Österreich and Others). Therefore, in order to be informed on how EU competition law issues are dealt with, national judges are well-advised to rely on Commission’s decisions until they are confirmed by a judgment from the General Court and, as the case may be, by the Court of Justice on appeal. They also should not forget to look at decisions from the Court of Justice adopted pursuant to a reference for preliminary ruling.

C. The Publication of decisions Access to EU judicial decisions in competition law is rather facilitated by the EU Courts that publish most of their judgments on the Court’s website (http: //www.curia.europa.eu). The issue of transparency has recently been raised before the Court, in Cases T-341/12, Degussa and T-345/12, Akzo Nobel, of 28 January 2015 as to the Commission’s decisions, and more specifically, with regard to the willingness of this institution to publish more complete competition law decisions after a certain period of time than the ones that were published after the adoption of the final decision. The General Court decided in favor of a better access to information indicating that the Commission enjoys a broad margin of discretion in determining whether or not to publish information that was voluntarily submitted to it by undertakings in order to benefit from the leniency programme.


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III. THE IMPORTANCE OF COMPETITION LAW IN EU LITIGATION Competition law cases represent an important share (B) of the cases dealt with by the EU Courts (A) but recent data show that this trend may be changing (C).

A. Overview In 2014, the General Court achieved its best results ever in terms of completed cases (814). However, it had to face a historic figure regarding the number of new cases (912). Therefore, the number of pending cases increased (1423 in 2014 compared to 1325 in 2013). In contrast the Court received less new cases in 2014 (622) than in 2013 (699) and completed more cases in 2014 (719) than in 2013 (701). These two results led to a decrease of pending cases (787 in 2014 compared to 884 in 2013). Competition law cases represent roughly 15% of total completed cases at the General Court whereas they amount to less than 10% of total completed cases at the Court of Justice.

B. Focus on judgments re competition law Activity of the EU Courts in competition law strictly speaking (i.e., without State aid cases) is better evaluated when only “judgments” are taken into account (i.e., “orders” are disregarded). In volume, cartel cases were the most important both at the General Court and at the Court of Justice in 2014 (respectively, 37 cases and 17 cases). Only one or two cases a year concern abuse of dominance or mergers. However, volume should not be a key criterion here since these cases have been subject to huge media coverage (e.g., the Intel case or the Microsoft case). Finally, as previously stated, one should note that source of competition cases at the Court of Justice can be decisions adopted pursuant to reference for preliminary ruling (13 cases in 2014) and decisions rendered on appeal (22 cases in 2014).


European competition rules and the European Court of Justice

C. Evolution: new cases from 2010 to 2014 At the General Court, the number of new stricto sensu competition cases has steadily decreased since 2010 (from 79 to 41 in 2014 – only 23 in 2013) whereas the number of new State aid cases has greatly varied (from 42 in 2010 to 148 in 2014 – but 36 in 2012). Most observers explain these trends by indicating, first, a structural reason as to the decrease of competition cases and, second, a cyclical reason as to the variation of State aid cases. New stricto sensu competition cases are rare nowadays probably due to the settlement procedure the Commission put in place in order to secure from the sanctioned companies an abstention of judicial challenge having in return a 10% discount on the amount of the fine. New State aid cases depend on the crisis affecting certain sectors. For instance, the failure of the banking sector or the mutation of the energy sector has had a serious impact on the fantastic augmentation of cases in 2014.

IV. THE EXTENT OF CJEU’S JUDICIAL REVIEW IN COMPETITION LAW According to the treaty, competition law cases allow the judge at the General Court to apply two types of standard of review depending on the part of the decision submitted to the judicial control: s/he can exercise a legality review pursuant to Article 263 TFEU (A) and his/her unlimited jurisdiction pursuant to Article 261 TFEU (B).

A. Legality review in competition law Under the competence to review the legality of an EU act, the judge can only annul —partially or wholly— the decision if s/he finds any illegality with regard to EU law. The control is thus based on a decision previously adopted by an administrative body; the judicial action does not purport to a retrial of the case. The legality review can be divided into two standards of review: the comprehensive review (1) and the limited review (2).


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1. “Comprehensive review” When exercising his/her legality control, the EU judge has to review the contested decision fully and unrestrictedly as regards both facts and points of law. This control applies to the external (a) and internal legality (b) of the decision.

a. External legality Among the external legality grounds that can be raised, lack of competence is the most obvious. However, the most commonly argued remains infringement of essential procedural requirements, such as respect of the rights of the defense during administrative procedure or obligation to state reasons, ground that can be raised by the EU judge of his/her own motion. Illustrations of violation of the rights of the defense can be found in access to file cases where the judge often has to examine whether or not the principle of contradictory was respected. Requests for information sent by the Commission have recently been scrutinized to ensure enough time for companies to answer sometimes burdensome questions (see, for instance, Case T-306/11, Schwenk Zement, 14 March 2014). Inspection decisions also have been under the EU judge’s radar seeking fairness between the official purpose of the inspection and the instructions given to the officials on premises (see, for instance, Case C‑583/13 P, Deutsche Bahn, 18 June 2015).

b. Internal legality According to settled case law, where the Court is faced with an application for the annulment of a decision applying Article 101 (1) TFEU, it undertakes a comprehensive review generally of the question whether or not the conditions for the application of Article 101 (1) TFEU are met. In other words, the EU judge has to examine all aspects of the infringement, with no exception. Obviously, EU judges will seek errors in law covering wrongful application or interpretation of relevant rules but also inaccurate assessment of facts. For instance, this can happen when reviewing whether or not the Commission was right to qualify the alleged infringement


European competition rules and the European Court of Justice

as a concerted practice (e.g., see Case C-286/13 P, Dole Food, 19 March 2015), or as a continued infringement (e.g., see Case T-655/11, FSL, 16 June 2015), or when the aggravating circumstance of recidivism is sufficiently substantiated (e.g., see Case C-93/13 P, Commission/Versalis, 5 March 2015). Identifying errors in facts is also part of the EU judge’s tasks at the General Court, sole and unique EU jurisdiction reviewing facts and points of law in competition law cases. Accordingly s/he has the duty to review the facts and the assessments of the evidence, keeping in mind the in dubio pro reo principle applies in EU law. Examination of evidence brought to justify the duration of an infringement is regularly conducted at the General Court level (e.g., see Case T-58/01, Solvay, 17 December 2009) or of proofs to demonstrate an aggravating circumstance, such as the proof that one of the cartelists took the lead in perpetrating the infringement (e.g., see Case T-29/05 Deltafina, 8 September 2010).

2. “Marginal review” In its Joined Cases 56 and 58/64, Consten and Grundig [1966], the Court of Justice affirmed that “[a] judicial review of the Commission’s complex evaluations on economic matters must take into account their nature by confining itself to an examination of the relevance of facts and of the legal consequences with the Commission deduces therefrom”. The concept of “marginal review” was born. Paying respect to the Treaty, the judge recognized that, in such situations, s/he had to refrain from substituting his/her own assessment for the Commission’s when the latter exercises its margin of discretion that it enjoys by definition because of its role. Therefore, in such situations, the EU judge considered that s/he had to apply a restricted or limited review or, in other words, limits his/her control solely to the manifest error of appreciation. Taking its roots in agreement/cartel cases, it was rapidly extended to merger control and abuse of dominance cases. However, contrary to many comments, the recognition of the Commission’s margin of discretion and, consequently, the existence of a marginal review, does not mean the abandonment of judicial


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control in this type of situation. As the Court of Justice specified in its Tetra Laval case (C-12/03 P, 15 February 2005): “[w]hilst the Court recognises that 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”. When applying the marginal standard of review, the EU judge still must establish that the evidence used is factually accurate, reliable and consistent and determine that the evidence contains all the relevant data to be taken into account to assess complex situation and is capable of substantiating the conclusions drawn from it (see, for instance, Case T‑201/04, Microsoft I, 17 September 2007). Moreover, the judge cannot use Commission’s discretion as a basis for dispensing with the conduct of an in-depth review of the law and the facts (Case C‑272/09 P, KME, 8 December 2011). In fact, the application of marginal review did not lead to a marginalization of the judge in judicial control of Commission’s decisions relying on economic assessments. The most striking example, and probably the most known as well, is the three annulments of Commission’s decisions prohibiting three different operations in 2002 (Case T-342/99, Airtours, 6 June 2002, Case T-310/01, Schneider Electric, 22 October 2002, Case T-5/02, Tetra Laval, 25 October 2002). These judgments led to the modification of the internal structure of the Commission Directorate General for Competition, where a Merger Task Force was created, a Chief Competition Economist was appointed and the “More Economic Approach” was implemented. Case law in the merger field gives many more examples of the indepth review the EU judge exercises despite the application of marginal review. For instance, one can recall the Impala saga where the Commission authorized an operation in Case COMP/M.3333 – Sony/ BMG on 19 July 2004 that was later annulled by the General Court in its Case T-464/04, Impala/Commission on 13 July 2006. On 3 October 2007, the Commission adopted a new decision authorizing again the operation (Case COMP/M.3333 – Sony/BMG). Less than a year after, the Court of Justice adopted its judgment on appeal of the 2004 General Court’s judgment, annulled it and referred the case to the General Court (Case C‑413/06 P, Bertelsmann and Sony/Impala, 10


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June 2008). Moreover, at the end of the summer 2008, the Commission authorized a new operation (Case COMP/M.5272 – Sony/Sony BMG, 15 September 2008). On 30 September 2009, both actions – the one following the Court of Justice appeal judgment and a new action for annulment against the authorization of the new operation were dismissed (respectively, Case T-464/04, Impala/Commission, and Case T-229/08, Impala/Commission). More recently, the Ryanair Case (T-342/07, 6 July 2010), upholding the Commission’s decision in Case COMP/M.4439 that prohibited the merger between Ryanair and Aer lingus, or the Deutsche Börse Case (T-175/12, 9 March 2015), upholding the Commission’s decision in Case No COMP/M.6166 that prohibited the merger between Deutsche Börse/NYSE Euronext, could be mentioned as example of, for the former, in-depth review of econometrics studies, and, for the latter, in-depth review of relevant market definition, efficiency gains and commitments. By nature, EU judges are confronted with economic assessments in decisions regarding abuse of dominance. In these situations, despite the application of the marginal standard of review, judicial control remains strict. For instance, in Case T-427/08, CEAHR, of 15 December 2010, the General Court reviewed in-depth the relevant market definition conducted by the Commission and, eventually, annulled the contested decision. In this decision, the Commission rejected a complaint brought by watch repairers against manufacturers, who allegedly were refusing to supply spare parts to independent repairers, and thus, were abusing their dominant position. However, the Commission considered that, in this complaint, there was a lack of Community interest due to the fact that the market was of limited size and economic importance. Moreover, it considered that repair services and spare parts were not in the same market due to the existence of a market for luxury watches. In its judgment, the General Court recognized that market definition triggers limited standard of review because of complex economic assessments that have to be conducted. Nevertheless, the judges recalled that the Commission’s discretion in dealing with complaints is not unlimited and they have to examine in detail all reasons put forward by the Commission to justify its decision. It then concluded that the Commission committed a manifest


Vivien Terrien

error of assessment. This strict scrutiny led thus to the annulment of the Commission’s decision. Marginal review is not a standard of review limited to complex economic assessments but depends on the existence of some discretion in the assessments of the Commission. Therefore, the EU judge recognized that, when confronted with complex technical assessments, such standard of review is applicable. In Case T-201/04, Microsoft I, of 17 September 2007, s/he nevertheless reviewed in-depth the relevant market definition. This judgment, which essentially upheld the Commission’s decision of 23 March 2004 imposing a fine of more than €497 M for an abuse of dominant position consisting in tying Windows Media Player (“WMP”) with Windows PC operating system (“Windows”) and an obligation to sell Windows without WMP, was not appealed before the Court of Justice. However, the Court of Justice upheld this approach as to complex technical assessment in its Case C-457/10 P, AstraZeneca, of 6 December 2012, adopted on appeal of the General Court’s judgment in Case T-321/05, AstraZeneca, of 1 July 2010. If marginal review is thus far from being synonymous of putting judicial control aside, two observations must however be made. First, the Court of Justice, once in a while, reminds the General Court of the importance of applying such standard of review that should not fade out into a general comprehensive standard of review. In its appellate judgment of 29 June 2010 adopted in Case C-441/07 P, Commission/Alrosa, the Court of Justice annulled the General Court’s judgment that previously annulled the Commission’s decision in Case COMP/38.381 – De Beers (Case T-170/06, Alrosa/Commission, 11 July 2007) underlining that “the General Court put forward its own assessment of complex economic circumstances and thus substituted its own assessment for that of the Commission, thereby encroaching on the discretion enjoyed by the Commission instead of reviewing the lawfulness of its assessment”. Second, the on-going issue of the relevance of an effect-based approach in abuse of dominance cases may have an influence on the frequency of application of the marginal standard of review. For instance, the General Court dismissed in its entirety the microchip manufacturer Intel’s action against the Commission’s decision of 13 May 2009 imposing the highest fine ever on a single company (€1.06 billion) for an abuse of dominant position on


European competition rules and the European Court of Justice

the worldwide market for x86 central processing units (CPU) consisting, inter alia, of conducting a strategy aimed at foreclosing the only serious competitor, AMD (Case T-286/09, Intel Corp. v. Commission, 12 June 2014), and ordering immediate end to the infringement. In this judgment, the General Court considered that the violation constituted a by-object infringement and, thus, no effect-based approach was necessary. This decision is currently under appeal based, inter alia, on the ground that the General Court applied a wrong legal standard (Case C-413/14 P, pending). If an effect-based approach is favored, economic assessments will become more relevant to justify the Commission’s decision and, thus, the marginal standard of review will be even more applied. This specific standard of review is not absent from cartel cases either. In Case T‑452/05, Belgian Sewing Thread, of 28 April 2010, the General Court decided that “in assessing the cooperation given by members of a cartel, only a manifest error of assessment on the part of the Commission is open to censure, since the Commission enjoys a broad discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, especially in comparison with the contributions made by other undertakings”. Accordingly, one could presuppose that marginal review also applies to complex factual assessments. However, in Cases C‑272/09 P KME Germany, C‑386/10 P Chalkor, C‑389/10 P KME Germany, of 8 December 2011, the Court of Justice stressed that “[i]n carrying out [the review of legality], 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 Guidelines 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”. To sum up, it seems that marginal review is applicable when the EU judge is confronted with complex economic assessments, complex technical assessments and complex factual assessments. However, it should be kept in mind that the term “complex” does not mean “difficult” but rather reveals the existence of policy choices — belonging to the administration (i.e., the Commission)— for which the judge should careful in not substituting his/her own assessment.


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