The European Commission should have analysed the body of concrete evidence of a breach of the rule of law in order to determine whether the Commission itself or the national competition authority was best placed to examine a dispute concerning a rail freight service, the General Court of the European Union ruled on Wednesday 9 February (case T-791/19).
The Polish company Sped-Pro is challenging the Commission’s rejection of its complaint in a dispute with the Polish state-owned company PKP Cargo, which it had used for freight transport services. The Commission considered that the Polish competition authority was best placed to examine this dispute.
For the first time, the General Court is considering the impact of systemic or generalised failures of the rule of law in a Member State on the determination of which competition authority is best placed to examine a complaint.
In the contested decision, the Commission applied, by analogy, the two-step analysis required in the context of European arrest warrants to determine whether the right to a fair trial is safeguarded, as set out in European case law (Case C-216/18) (see EUROPE 12070/1).
The General Court is of the opinion that the Commission was right to use this two-step analysis. Like the area of freedom, security and justice, cooperation between the Commission, Member States’ competition authorities and national courts is based on the principles of mutual recognition, mutual trust and sincere cooperation. The General Court also notes that the case law already requires the Commission, before rejecting a complaint for lack of Union interest, to ensure that the national authorities are satisfactorily safeguarding the rights of the complainant.
On the other hand, the General Court emphasises that the Commission’s consideration of the second stage of the analysis, which aims to examine whether the risk of a breach of the right to a fair trial is directly incurred by the person concerned, was not in conformity with Union law.
In this case, Sped-Pro had put forward a body of concrete evidence which, taken together, would be likely to show that there were serious and proven grounds for believing that there would be a real risk of its rights being infringed if its case were to be examined by the national competition authority.
These indications were drawn from: - the state control over PKP Cargo; - the dependence of the President of the Polish Competition Authority on the executive; - the fact that PKP Cargo’s parent company is a member of an association whose aim is to defend and promote the reform of the judicial system in Poland; - the policy of lenient treatment that PKP Cargo allegedly enjoyed from the Polish competition authority; - appeals filed by the Attorney General against decisions of the same authority concerning PKP Cargo; - the inability of the national competition courts to compensate for the failings of the Polish competition authority due to their own lack of independence.
However, in the contested decision, the Commission merely stated that these indications were not substantiated. Noting that the Commission did not examine the various indications put forward by the applicant, the General Court held that the Commission had failed to fulfil its obligations under the abovementioned judgment and its obligation to state reasons.
See the General Court’s judgment: https://aeur.eu/f/9o (Original version in French by Mathieu Bion)