Brussels, 07/11/2012 (Agence Europe) - The Charter of Fundamental Rights contains no opposition to the fact that the Commission is planning to take action, on behalf of the EU, for damages due to harm suffered by the EU as the result of a cartel or other practice contrary to EU law. This is the substance of the ruling issued by the Court of Justice of the EU on Tuesday 6 November, in response to a number of prejudicial questions of the Commercial Court of Brussels.
The European Commission, on behalf of the EU, brought an application for damages to this court against the lift manufacturers Otis, Kone, Schindler and Thyssenkrupp for the financial harm suffered by the EU in Belgium and Luxembourg due to the cartel these businesses took part in (see also EUROPE 10420, 9689 and 9371), and to which the EU had allocated public procurement contracts for the installation, maintenance and renovation of lifts and escalators in the buildings of the institutions. Due to the cartel, which was ruled against by the Commission in February 2007 (fines of €992 million, see EUROPE 9371), the businesses in question are believed to have practised prices higher than market prices.
In response to the question of the Belgian court as to whether the Commission is authorised to represent the EU before a national court in the context of this case, the Court replied that as the dispute had been brought before the Treaty on the functioning of the EU entered into force, the representation of the EU is governed by the EC Treaty. This means that the Commission is authorised to represent the Community before a national jurisdiction, without any requirement for a specific mandate for the purpose.
As to whether the Charter of Fundamental Rights of the EU opposes the Commission - as representative of the EU - bringing claims for damages suffered by the EU as a result of anti-competitive behaviour, the illegality of which was determined by the same Commission, the Court points out that anybody, including the EU, has the right to claim damages for harm suffered if there is a causal link between this harm and a cartel or other illegal practice. This right must be exercised in full respect of the right for effective legal protection guaranteed by the Charter, which includes: the right of access to a court and the opportunity to assess and challenge any documents submitted to the court (principle of equality of arms). On this first issue, the Court stresses that the EU system for the legal control of decisions made by the Commission offers all the guarantees required by the Charter and that in addition, even if the Commission was called upon to determine the precise effects of the infringement in its decision, it is the national courts which determine the damage caused on an individual basis. The Commission will therefore not be judge and jury in its own case. As regards the principle of equality of arms, the Commission has not provided the court with the information it gathered during the infringement proceedings, and in any case EU law prohibits it from using information collected as part of a competition investigation for any other purposes. It is on these bases that the Court came to the conclusions laid out earlier in its ruling. (FG/transl.fl)