Short Reads

Tick-tock: no reset of the appeal clock for amending Commission decision

Tick-tock: no reset of the appeal clock for amending commission decis

Tick-tock: no reset of the appeal clock for amending Commission decision

04.04.2019 NL law

The European Court of Justice recently upheld the General Court's order finding that metal production and recycling company Eco-Bat had submitted its appeal outside of the appeal term. Eco-Bat had relied on the term starting from the date of the European Commission's decision correcting figures for the fine calculation in the initial infringement decision.

The Court of Justice ruled, however, that such an amending decision does not reset the appeal period if the company could have understood the grounds and content from reading the initial decision. If uncertain, companies should therefore take the safer route and calculate the appeal term from the date of the first Commission decision.

On 10 February 2017, the Commission notified Eco-Bat of their infringement decision in the car battery recycling cartel. Almost two months later, an amended decision was issued. This amendment corrected the omission of Eco-Bat's value of purchases, which was used when determining the basic amount of the fine in the initial decision. Eco-Bat appealed the decision within the required two-month term, calculated from the notification of the amending decision.

The General Court found that the value of purchases, as used by the Commission to calculate Eco-Bat's fine, could have been understood by Eco-Bat from reading the initial decision. The clock had therefore started ticking upon notification of the first infringement decision, not upon notification of the amending decision. Eco-Bat's action was therefore dismissed for having been brought out of time.

The Court of Justice, in rejecting Eco-Bat's appeal, took as a starting point the General Court's finding that the correcting element could have been ascertained by Eco-Bat by reading the initial decision. The two-month term starts to run from the time the addressee becomes acquainted with the content and grounds of the decision. Even if the amending decision corrects more than a purely formal omission, the decision does not affect the appeal period if the undertaking could have understood its grounds and content.

This judgment clarifies that the category of re-issued Commission decisions that do not restart the clock for submitting an appeal with the General Court includes more than purely formal changes. Adding figures that could have been understood by the addressee is such a change. If uncertain, companies should take the safe route and calculate the appeal term from the date of the first Commission decision.

 

This article was published in the Competition Law Newsletter of April 2019. Other articles in this newsletter:

Team

Related news

11.09.2019 EU law
Legal trend: climate change litigation

Articles - Climate change cases can occur in many shapes and forms. One well-known example is the Urgenda case in which the The Hague Court condemned the Dutch government in 2015 for not taking adequate measures to combat the consequences of climate change. Three years later, the Court of Justice of The Hague  upheld this decision, and it is now pending before the Dutch Supreme Court. This case is expected to set a precedent for Belgium, i.a. Since both the Belgian climate case and the Urgenda case are in their final stages of proceedings, this blog provides you with an update on climate change litigation.

Read more

05.09.2019 NL law
No fine means no reason to appeal? Think again!

Short Reads - Whistleblowers who have had their fine reduced to zero may still have an interest in challenging an antitrust decision. The Dutch Authority for Consumers and Markets (ACM) held two de facto managers personally liable for a cartel infringement but, instead of imposing a EUR 170,000 fine, granted one of them immunity from fines in return for blowing the whistle. The Trade and Industry Appeals Tribunal found that, despite this fortuitous outcome, the whistleblower still had an interest in appealing the ACM's decision.

Read more

05.09.2019 NL law
ECJ answers preliminary questions on jurisdiction in cartel damage case 

Short Reads - On 29 July 2019, the ECJ handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in what is termed the trucks cartel. The court clarified that Article 7(2) Brussels I Regulation should be interpreted in such a way as to allow an indirect purchaser to sue an alleged infringer of Article 101 TFEU before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage. In practice, this often means that indirect purchasers will be able to sue for damages in their home jurisdictions.

Read more

05.09.2019 NL law
Wanted: fast solutions for fast-growing platforms

Short Reads - Dominant digital companies be warned: calls for additional tools to deal with powerful platforms in online markets are increasing. Even though the need for speed is a given in these fast-moving markets, the question of which tool is best-suited for the job remains. Different countries are focusing on different areas; the Dutch ACM wants to pre-emptively strike down potential anti-competitive conduct with ex ante measures, while the UK CMA aims for greater regulation of digital markets and a quick fix through interim orders.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring