Advocate General Nils Wahl at the European Court of Justice (ECJ) suggests in conclusions published on Wednesday 25 July in combined cases C-138/17 P, C-146/17 P, C-150/17 P and C-174/17 P to cancel the European General Court rulings that condemned the EU to repair material damages suffered by a number of companies due to the long time it takes to have a case ruled upon at the European General Court.
Several companies appealed for annulment in 2006 of European Commission decisions of 2005 in a price-fixing case concerning industrial bags (see EUROPE 9079). In 2011, the General Court reject the appeals and the ECJ confirmed the background of these rulings in 2013 (see EUROPE 10971). The ECB does, however feel that the long procedure is not justified.
In 2014 and 2015, the companies each brought actions before the General Court against the EU for compensation for the damage allegedly suffered as a result of the length of the proceedings before the General Court.
In 2017 the General Court gave its judgments in those cases and ordered the EU to pay compensation for the financial damages occasioned by bank guarantees. The EU, represented by the ECJ brought appeals against the judgments of the General Court. It argued, amongst other things, that the General Court erred in its interpretation of the notions of ‘causal link’ and ‘damage’. In parallel, the companies also appealed to the ECJ, accusing the General Court of failing to properly calculate the size of the fines. One of the companies said the case did not come under the power of the EU in that it is represented by the ECJ and the case is being examined the by the same ECJ.
Admissibility
On the latter issue, firstly Wahl says that the appeal brought by the EU is admissible. He notes that the CJEU has exclusive jurisdiction regarding actions against the EU for noncontractual liability, including for its own acts or omissions. The Treaties provide that the Court of Justice may not decline jurisdiction when the conditions for bringing an action are fulfilled, as is the case here.
Moroever, the advocate general points out that in the case of liability claims against the EU over the General Court’s failure to respect procedural rules, the EU must, in principle, be represented by the ECJ. While he nevertheless examines the compatibility of the principle with the need to be able to take a case to an independent court, Wahl says that a distinction must be made between administrative and jurisdictional functions at the ECJ, which allows him to conclude respect for the condition of impartiality here.
Foundations. In terms of the foundations, the advocate general says the General Court did not properly interpret or apply the notion of ‘causal link’ as there is no sufficiently direct causal link between the breach by the General Court and the payment of the bank guarantee charges. Wahl is even of the opinion that the determining factor was the companies’ decisions to continue to benefit from an exception to the obligation to pay the fine levied by the European Commission and instead use a bank guarantee, as allowed under EU law.
The advocate general moreover rejects the appeal to obtain damages higher than those decided by the General Court, notably since the latter properly set out the criteria used for the calculations in its ruling. (Original version in French by Lucas Tripoteau)