Short Reads

Still standing: annulled Commission decision remains in force for non-appellant

Still standing: annulled Commission decision remains in force for non

Still standing: annulled Commission decision remains in force for non-appellant

06.06.2019 NL law

Steel producer Lucchini's claim for reimbursement of a EUR 14 million fine, on the basis that the decision was annulled on appeal from other parties, was recently rejected by the General Court.

By not appealing, the decision became final for Lucchini, even if the other parties managed to obtain annulment. Companies contemplating appeals, after either a European Commission decision or a General Court judgment, should think twice before deciding not to join other addressees in their appeal efforts.

The saga has lasted more than 15 years, but it may be the end of the road for Lucchini. In 2002 the Commission adopted a cartel decision against 11 Italian steel manufacturers. Annulled once, the decision was reissued and then appealed again. Faced with rejection from the General Court, some appellants went further to the Court of Justice, but Lucchini surrendered. However an unexpected twist followed – the Court of Justice annulled the decision based on a breach of the rights of defence. Lucchini tried to profit from the result of the Court of Justice judgment by asking for the reimbursement of its fine, a request which the Commission rejected. Unfortunately for Lucchini, the General Court agreed with the Commission.

The judges restated that, to ensure legal certainty is safeguarded, if an addressee does not appeal a decision, then that decision becomes final concerning that party, irrespective of what happens for other parties. The General Court rejected the argument that the decision was 'non-existent' after annulment. Such cases are entirely exceptional and only seen if the irregularity affecting the decision is so serious that it cannot be tolerated by the legal order of the European Union. This was not applicable to Lucchini's case.

Companies fined by the Commission should take heed of the fact that, especially when the decision is appealed by other parties, choosing not to appeal entails serious consequences. Companies pursuing this avenue should not expect to draw advantages from other appeals, as the exceptional cases in which this may be possible are extremely rare.

 

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

 

Team

Related news

02.12.2021 NL law
Google Shopping: self-preferencing is a form of abuse of dominance

Short Reads - On 10 November 2021, the General Court (GC) almost entirely dismissed Google’s action against the European Commission’s Google Shopping decision. According to the European Commission (the Commission), Google illegally favoured its own comparison shopping service by displaying it more prominently in its search results than other comparison shopping services (see our July 2017 Newsletter). The Commission found that Google was abusing its dominant position and imposed a EUR 2.42 billion.

Read more

02.12.2021 NL law
Gun jumping: beware, the Commission will take action

Short Reads - The Commission has imposed interim measures on Illumina and GRAIL. These measures include the obligation to run GRAIL by independent management. By adopting interim measures in addition to opening an investigation into whether Illumina and Grail breached the standstill obligation, the Commission has made clear it will not shy away from tough action against gun jumping during an ongoing merger review. 

Read more

02.12.2021 NL law
Back to the future – Commission publishes roadmap for green and digital challenges

Short Reads - The Commission’s Communication “A competition policy fit for new challenges” (link) (the “Communication”) identifies key areas in which competition law and policy can support European efforts in dealing with the challenges of the green and digital transitions. The document covers all areas of competition law (antitrust, merger control, and State aid) and identifies various ways in which new and existing tools can contribute to addressing these challenges.

Read more

02.12.2021 NL law
Dominant firm may refuse to supply retailer after initial delivery

Articles - The Brussels Court of Appeal has held that a dominant producer firm may have valid reasons to refuse further supplies to a retailer, despite its dominance and despite previous deliveries. The Court of Appeal stressed the freedom for any company, including dominant firms, to choose their trading partners, in particular when there are valid and objective non-discriminatory reasons to refuse further direct supplies and when the retailer has alternative sources of supply.

Read more

02.12.2021 EU law
ECJ: private enforcement in aviation sector also a national court's game

Short Reads - Recently, the ECJ ruled that national courts dealing with private enforcement cases are competent to apply EU competition law to historical behaviour in the aviation sector, regardless of public enforcement by the Commission and national competition authorities, and regardless of whether or not such authorities had authority to pursue public enforcement in the relevant period.

Read more