European Court of Justice Rules that the Commission Can Claim Compensation for Cartel Damages before National Courts

On 6 November 2012, the European Court of Justice (“ECJ”) handed down a preliminary ruling regarding the Commission’s right to claim compensation for cartel damages before a national court. The Commission had brought an action before the Brussels Commercial Court to recover damages from four groups of companies, namely Otis, Kone, Schindler and ThyssenKrupp. The Commission had previously found that these companies had operated cartels in the market for the sale, installation, maintenance and renewal of lifts, and had imposed a fine of almost EUR 990 million to the companies.

The Brussels Commercial Court referred several questions to the ECJ, asking, inter alia, whether the Commission is entitled to represent the EU in the matter and whether the EU Charter of Fundamental Rights (“Charter”) prevented the Commission from bringing an action before a national court for damages in respect of loss suffered by the Union.

The ECJ held that any person, including the EU, can claim compensation for the harm suffered where there is a causal link between that harm and a prohibited agreement or practice. However, the fundamental rights of the parties, such as the right of access to a tribunal and the principle of equality of arms, safeguarded by the Charter, must be observed when that right is exercised.

With regard to the right of access to a tribunal, the ECJ found that although national courts – Brussels Commercial Court in this case – are bound by the Commission’s decision regarding companies’ anti-competitive conduct, it does not mean that the parties do not have a right of access to trial. It will be for the national court alone to determine individually the loss caused to each person having brought an action for damages.

With regard to the principle of equality of arms, which aims to guarantee each party to the proceedings a possibility to present his case under such conditions that do not place him at a substantial disadvantage vis-à-vis his opponent, the defendants’ were concerned that the Commission was in a privileged position compared to them. This was due to the fact that the Commission had conducted the competition investigation and thus possessed information that was not available to the defendants. The ECJ observed, however, that the Commission had not provided information gathered during the competition investigation procedure in the proceedings before the national court. In any event, EU law prohibits the Commission from using information collected in the course of a competition investigation for purposes other than those of the investigation.

Consequently, the ECJ concluded that the Charter does not prevent the Commission from bringing an action before a national court for damages in respect of loss suffered by the EU as a result of an agreement or practice contrary to EU law.

Your contact in EU & competition matters: Christian Wik, christian.wik@roschier.com

Roschier, Attorneys Ltd. - Sweden