OPINION OF ADVOCATE GENERAL
CRUZ VILLALÓN
delivered on 26 June 2012 (1)
Case C‑199/11
European Union, represented by the European Commission
v
Otis NV,
General Technic-Otis Sàrl (GTO),
Kone Belgium NV,
Kone Luxembourg Sàrl,
Schindler NV,
Schindler Sàrl,
ThyssenKrupp Liften Ascenseurs NV,
ThyssenKrupp Ascenseurs Luxembourg Sàrl
(Request for a preliminary ruling from the Rechtbank van koophandel te Brussel (Belgium))
(Representation of the European Union before national courts – Powers conferred on the Commission – Article 282 EC – Anti-competitive conduct formally declared by the Commission – Action for damages on the basis of non-contractual liability, brought by the Commission on behalf of the European Union – Powers of the Commission to impose penalties in the sphere of competition – Article 47 of the Charter – Judicial independence – Scope of judicial review of the Courts of the European Union and the national courts – Equality of arms)
1. Consequent upon an action for damages brought by the Commission representing the European Union against several elevator manufacturers, the Rechtbank van koophandel te Brussel (Brussels Commercial Court) has made a reference to the Court of Justice for a preliminary ruling on two questions relating, on the one hand, to the representation of the European Union in proceedings before the national courts and, on the other, to judicial independence and equality of arms between the parties to civil proceedings in which the European Union is taking part as a claimant in respect of non-contractual damage.
2. Regarding the matter of procedural representation, the referring court wishes to know whether it is for the Commission to represent the European Union, in spite of the fact that the damage arises as a result of contracts signed by several institutions and bodies of the Union. The Court of Justice will therefore have to rule on the temporal scope and content of Article 282 of the Treaty establishing the European Community and Article 335 TFEU, with regard to proceedings initiated before national courts prior to the entry into force of the Treaty of Lisbon.
3. More unusual and comparatively more complex is the question regarding judicial independence and equality of arms and, consequently, Article 47 of the Charter of Fundamental Rights of the European Union. The Court of Justice is called upon to decide whether the European Union is in some way limited when it files a claim for damages before national courts, when the loss or damage suffered stems from anti-competitive conduct established by one of the European Union institutions. The defendants in the main proceedings maintain that the Commission, as the author of a binding decision finding an infringement of Article 81(1) EC (now Article 101(1) TFEU), acts as a privileged claimant, which distorts the judicial power of the national court and the balance of power which must prevail between the parties to the proceedings.
I – Legal framework
4. Article 282 of the Treaty establishing the European Communities provided:
‘In each of the Member States, the Community shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Community shall be represented by the Commission.’
5. Since 1 December 2009, as a consequence of the entry into force of the Lisbon Treaty, Article 282 EC has been replaced by the current Article 335 TFEU, according to which:
‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.’
6. Article 47(1) of the Charter of Fundamental Rights of the European Union, under the title ‘Right to an effective remedy and to a fair trial’, states as follows:
‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’
7. Article 16 of Regulation No 1/2003 on the implementation of the rules on competition (2) provides, under the heading ‘Uniform application of Community competition law’:
‘1. When national courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article 234 of the Treaty.
2. When competition authorities of the Member States rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions which would run counter to the decision adopted by the Commission.’
II – Facts and background to the dispute
8. After receiving several complaints, the Commission, in 2004, initiated an investigation into anti-competitive practices on the part of the four main European manufacturers of elevators and escalators, Kone, Otis, Schindler and ThyssenKrupp. The investigation culminated in the decision of 21 February 2007, by which those four undertakings were fined for four very serious infringements of what was then Article 81(1) EC (now Article 101(1) TFEU). (3)
9. The companies concerned brought actions for annulment before the General Court, which were decided by judgments of 13 July 2011 dismissing the actions. (4) The General Court rejected all the grounds of annulment relied on by the applicants, except that put forward by ThyssenKrupp relating to the amount of the fine, which was upheld in part and resulted in a reduction of the fine. (5)
10. On 20 June 2008, the Commission, representing what was then the European Community, brought an action before the Belgian courts claiming the sum of EUR 7 061 688 from the aforementioned companies. The Commission maintained that the European Community, as it then was, had suffered financial harm in Belgium and Luxembourg, as a result of the anti-competitive practices unlawfully agreed by the defendant companies. The European Community had in fact concluded several contracts for the installation, maintenance and renewal of elevators and escalators in various buildings of the European institutions with offices in both countries, the price of which was allegedly higher than the market price as a consequence of the agreement declared unlawful by the Commission.
11. The defendant companies contested the action by disputing the Commission’s capacity to act on behalf of the European Community. The defendants also invoked the lack of impartiality of the Belgian court and the infringement of the principle of equality of arms, owing to the special role played by the Commission in proceedings relating to infringements of Article 81(1) EC (now Article 101(1) TFEU).
12. In the light of the opposing arguments raised by the defendants, the Rechtbank van koophandel te Brussel decided to refer a question to the Court of Justice for a preliminary ruling.
III – The question referred for a preliminary ruling and the procedure before the Court of Justice
13. The reference for a preliminary ruling from the Rechtbank van koophandel te Brussel was received at the Court Registry on 28 April 2011. The following questions are raised:
‘1(a) The Treaty states in Article 282, now Article [3]35, that the European Union is to be represented by the Commission. Article 335 TFEU, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the European Union, with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings. There is no doubt that receipt by contractors, etc., of payment … of inflated prices as a result of collusive practices comes within the concept of fraud. In Belgian national law there is the principle of ‘Lex specialis generalibus derogat’. To the extent [to which] that principle of law also finds acceptance in European law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned?
(b) (Subsidiary question) Ought the Commission not at least to have been conferred with authorisation by the institutions to represent them for the purpose of safeguarding their interests before the courts?
(2)(a) Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human [Rights] and Fundamental Freedoms guarantee every person’s right to a fair trial as well as the related principle that no one can be the judge in his or her own cause. Is it reconcilable with that principle if the Commission, in an initial phase, acts as the competition authority and penalises the conduct complained of – namely, the formation of a cartel – as a breach of Article 81, now Article 101, of the Treaty after it has itself conducted the investigation in that regard, and subsequently, in a second phase, prepares the proceedings for seeking compensation before the national court and takes the decision to bring those proceedings, while the same Member of the Commission is responsible for both matters, which are connected, a fortiori as the national court seised of the matter cannot depart from the decision imposing penalties?
(b) (Subsidiary question) If the answer to Question 2(a) is in the [negative], (there is irreconcilability), how then must the victim (the Commission and/or the institutions and/or the European Union) of an unlawful act (the formation of the cartel) assert its entitlement to compensation under European Union law, which is likewise a fundamental right …?’
14. Written observations have been submitted by the defendants in the main proceedings (Schindler NV, Otis NV, ThyssenKrupp Liften Ascenseurs NV and Kone Belgium NV), and by the Commission.
15. The hearing was held on 14 March 2012 and all the parties to the main proceedings, and the Council, presented oral argument.
IV – The first question
16. The first question raised refers to the interpretation of Article 282 EC (repealed) and its relationship to the equivalent provision at the present time, Article 335 TFEU.
17. The question formulated by the Rechtbank has, in fact, two aspects: one, relating to the temporal application of Article 282 EC, specifically to national proceedings initiated before 1 December 2009, the date on which the new Article 335 TFEU came into force; the other, relating to the interpretation of Article 282 EC. I shall address the two questions separately.
A – Temporal application of Article 282 EC
18. The first aspect on which it is necessary to give a ruling refers to the application ratione temporis of Article 282 EC, because the Commission brought the action before the Rechtbank on 20 June 2008, a year and a half, therefore, before Article 335 TFEU came into force.
19. As is well-known, Article 335 TFEU, by raising to primary law a pre‑existing practice in which the European Union was represented by the various duly authorised institutions, with nuances which are not relevant here, has inverted the rule contained in Article 282 EC. Although under the EC Treaty it fell to the Commission to represent the Community, it now falls to each of the European Union’s institutions. There are therefore two European Union provisions which, a priori, make different arrangements for how the European Union is to be represented before the courts of the Member States. (6) It is therefore necessary to clarify whether in the present proceedings, which were initiated before the Treaty of Lisbon came into force, Article 282 EC or Article 335 TFEU is applicable.
20. First of all, it should be pointed out that neither Article 282 EC nor Article 335 TFEU is a procedural rule, but a substantive rule of internal organisation of the European Union. By means of these provisions the Union determines which institution represents it ad extra, including in proceedings before the national courts. Similarly, the Treaty of Lisbon contains no provision determining the temporal effects of Article 335 TFEU. In the absence of such a provision, that article produces effects only pro futuro. Therefore, any possible retroactive effect must be ruled out, and legal relations previously constituted, including relations governed by procedural law, cannot be affected.
21. Consequently, at the time the proceedings were brought before the Rechtbank, the European Union provision by means of which the authority which represents the European Union ad extra is determined was Article 282 EC. Once the procedural-law relationship was correctly constituted, the entry into force of the new Article 335 TFEU, the effects of which were produced only in respect of legal relations constituted after 1 December 2009, in no way altered the procedural status of the claimant in the main proceedings.
22. A different question is whether, in the light of the particular circumstances of the case and having regard to Article 282 EC, it falls to the Commission to act on behalf of the Community.
B – Scope of Article 282 EC
23. As has already been explained, the national court expresses doubts as to whether the Commission is authorised to represent the European Union in the proceedings brought before it. Article 282 EC, which, as has just been stated, is the rule applicable to the present case, provided that the Commission alone is to represent the European Union before the courts of the Member States.
24. The defendants in the main proceedings argue in great detail that this rule is only a general rule, to which there is an exception in the present case under Articles 274 and 279 EC, which contain special provisions relating to the protection of the Community’s financial interests, provisions which are expanded by Regulation No 1605/2002. (7) The defendants take the view that Articles 59 and 60 of that regulation authorise each Community institution to implement its own budgetary items. In the event of errors, irregularities or fraud attributable to a contractor, the aforementioned provisions establish that each institution may recover the amounts already paid.
25. In short, and still in the view of the defendants, the general rule in Article 282 EC, which authorises the Commission to represent the Community in proceedings, is derogated by a lex specialis laid down in the financial legislation, under which each institution may represent the Community in order to protect its financial interests.
26. In my view, application of the maxim lex specialis derogat legi generali to the relationship between the aforementioned rules is not at all conclusive. That rule becomes relevant where two provisions pursue the same objective and have contradictory contents. (8) However, as I shall show below, the provisions relied on by the defendants pursue different aims and, furthermore, their contents are by no means irreconcilable.
27. Articles 274 EC and 279 EC, and also the provisions of Regulation No 1605/2002, establish each institution’s powers to implement its budget, among which are those relating to the taking of ‘whatever measures are necessary, including cancellation of the procedure’. On the other hand, Article 282 EC refers only to the legal capacity of the Community, and to the Commission’s power to represent it. There is no contradiction between the two provisions, nor do they pursue similar aims: one provides that each institution is competent to decide on measures to protect the financial resources which correspond to it, the other defines the role, conferred on the Commission, of representing the Community, including before national courts. They are two separable and independent aspects which allow for a harmonious interpretation, since the decision on measures of budgetary implementation adopted by a Community institution is not at all the same thing as the conferral of the power to represent the Community should a decision be taken to bring proceedings before national courts.
28. This interpretation of the Treaty has been implicitly confirmed by the Court of Justice in Región de Bruxelles-Capitale, (9) which endorsed the view that the delegation of the Commission’s powers of representation to other Community institutions was lawful. According to the Court of Justice, acknowledging a widespread practice before the courts, ‘it was also in the interests of sound administration that the Communities were in practice represented, in ... proceedings before the national courts, by the institution concerned by the act or the proceedings in question’. (10) This greater effectiveness was obtained through the appropriate delegation by the Commission to the institution concerned. (11)
29. The reasoning of the judgment confirms that the Commission has a power of representation which is exclusive but which may be delegated to other institutions. On the other hand, under no circumstances was application of Regulation No 1605/2002 given precedence, because that would have deprived the Commission of the powers conferred on it by Article 282 EC. In any event, in situations in which an institution other than the Commission had represented the European Union before the courts of the Member State, that role was exercised through the relevant delegation by the Commission, and not as a consequence of the nature of lex specialis of Articles 274 EC and 279 EC and of Regulation No 1605/2002, as claimed by the defendants in the main proceedings.
30. In short, if the argument of the lex specialis were correct, the amendment made to Article 282 EC by the current Article 335 TFEU would be superfluous. As is well-known, the new rule gives each European Union institution power to represent the Union, thereby depriving the Commission of its traditional exclusivity in the matter. As I had the opportunity to state in my Opinion in Región Bruxelles-Capitale, the current Article 335 TFEU is the legal expression of an established practice effected by means of mandates. (12) A practice which, as the Court of Justice confirmed in that case, was perfectly lawful but which could be improved from the point of view of its effectiveness.
31. The Commission is therefore right – and the Council also takes this view – to argue that its conduct complies with Article 282 EC. The party in the case brought before the Rechtbank was not the Commission, but the European Community. The Commission, as the Community’s representative pursuant to Article 282 EC, was fully entitled to decide not to delegate the duties of representation to other institutions and, accordingly, to act for the whole Community. From the perspective of Article 282 EC, no objection can be taken to that decision.
C – Summary
32. To sum up, I consider that Article 282 EC is applicable to national proceedings which were still ongoing on 1 December 2009 and that it is not necessary subsequently to require the European Union to fulfil the conditions for representation laid down in Article 335 TFEU.
33. I also consider that Article 282 is to be interpreted as not precluding the Commission from bringing an action on behalf of the Community for compensation in respect of damage suffered by the Community and initially sustained by various Community institutions and bodies.
V – The second question
34. By the second question it has referred for a preliminary ruling, the Rechtbank expresses to the Court of Justice its doubts as to whether Article 47 of the Charter of Fundamental Rights of the European Union permits the Commission to bring, on behalf of the European Union, an action for damages in respect of an infringement of Article 81(1) EC (now Article 101(1) TFEU), when the Commission itself has previously adopted the decision finding the infringement, which binds the competent court. Since the Commission’s decision is binding, the referring court has some doubts as to whether it is in a position to determine the case independently. Similarly, the referring court wonders whether that situation is consistent with the principle of equality of arms in civil proceedings.
35. The defendants in the main proceedings consider that the fact that the referring court is bound by the Commission’s decision infringes the principle of judicial independence, which is an integral part of Article 47 of the Charter, and is expressly contained in Article 6 of the European Convention on Human Rights and Fundamental Freedoms. Likewise, the defendants submit that there has been an infringement of the principle of equality of arms, which is also safeguarded by the two aforementioned provisions. The defendants believe that the Commission, in its role and position as competition authority, has privileged information concerning the undertakings concerned, to which not all the defendants have access. In addition to these arguments, the defendants put forward other arguments unconnected with the questions raised by the referring court, so that it is not necessary to address them in this Opinion. (13)
36. The Commission, supported by the Council, contends that its conduct is lawful and submits that there is no incompatibility between its position as claimant in the main proceedings, its previous action as competition authority and the requirements of Article 47 of the Charter and Article 6 of the European Convention on Human Rights and Fundamental Freedoms. It claims that the legal staff responsible for putting the European Union’s case in the main proceedings have had no contact at all with the members of the legal service responsible for competition matters. The Commission also maintains that no confidential information has been used in the application or in any other document submitted in the civil case. Furthermore, it contends that the case-law of the European Court of Human Rights (ECHR) does not preclude the fact that its decision, although adopted by one of the parties, is binding on the court, provided that the decision concerned may be subject to a full judicial review, something which could, and did in fact, take place in the present case.
37. In order to reply to the questions raised by the Rechtbank, I shall address, in the first place, the question concerning the independence of the competent national court, an issue which, as I shall now seek to show, refers to the scope of jurisdiction rather than to judicial impartiality. I shall then focus on the principle of equality of arms in national civil proceedings.
A – Limitation of the scope of the referring court’s jurisdiction to hear the action for non-contractual liability for damages
38. The referring court shares with the Court of Justice a doubt that may be summarised as follows: by adopting a decision finding there to be an agreement which infringes Article 81 EC (now Article 101 TFEU), the Commission binds all public authorities, including national ones. If the Commission subsequently brings before a national court an action to establish liability for damage suffered by the European Union as a result of the aforementioned anti-competitive conduct, there could reasonably be a doubt as to whether the proceedings in question comply with the right of every person to be judged by an impartial tribunal. Since the competent national court – in this case the Rechtbank van koophandel te Brussel – must declare the existence of damage on the basis of an unlawful act the finding of which is in practice imposed upon it by one of the parties, the subsequent reduction in the court’s discretion would seem to amount to an unjustified restriction on its independence.
39. That argument, as it has just been stated, is, in my view, unfounded despite its apparent persuasiveness.
40. First of all, it must be emphasised that it is not the Commission which is bringing the action for liability before the Belgian court, but the Community and, at the present time, the European Union. This is not a situation in which the Commission adopts an act and subsequently brings a case itself against an individual person in respect of damage suffered. Quite the contrary, the Commission is not taking part in the national proceedings as a party, but as the representative of the European Union, which is the possible victim, to some degree or other, of damage which may be individually determined and was initially sustained by several of its institutions and bodies.
41. This clarification begins to weaken the argument of the defendants in the main proceedings, since the duplicity of roles of which they complain is merely the consequence of the normal distribution of powers within a complex political-administrative organisation, whose tasks include the design and implementation of public policies, but also the defence of its legitimate rights and interests before any court. This is the case of the European Union: in its internal distribution of powers, significant responsibilities have been entrusted to the Commission. The fact that the Commission exercises the powers conferred upon it in respect of competition and, at the same time, represents the European Union in proceedings does not reflect a distorting and arbitrary structuring of the separation of powers, as the defendant companies suggest. On the contrary, all political organisations, including the Member States, have procedures for asserting their rights and interests before the courts. (14) Furthermore, the right of access of public authorities to the ordinary courts is a significant advance in the consolidation of the State governed by the rule of law, under which public authorities gradually lose their powers of self-protection and entrust the defence of their rights to the courts of justice. This is the case of the European Union in this instance; it does not have its own independent mechanisms for claiming coercively for the damage suffered, but has to resort to law, in this case national law, in order to be compensated for the damage which has unlawfully been caused to it. The power to represent the European Union in these cases is assigned, under Article 282 EC, irrespective of the matter concerned, to the Commission.
42. In keeping with the above, it should be pointed out that the European Union (not the Commission) is taking part in the main proceedings not as an institution holding public powers and responsible for ensuring competition in the internal market, but in its capacity as a customer, and consumer, of undertakings which are allegedly responsible for unlawful harm. The European Union does indeed implement its competition policy by means of decisions issued on the basis of the Treaty, whereas this case concerns the conduct of civil proceedings which are not part of that policy, but rather a procedure seeking financial compensation with the aim of restoring a legal situation on a private level. In the proceedings before the Rechtbank – as has been pointed out by both the Commission and the Council at the hearing – the European Union is acting as a private person, which has sustained financial loss. Therefore, contrary to what the defendants argue, there is no overlapping of roles, but two actions that are clearly separate not only in time but, above all, in methods and objectives. (15)
43. Now that this first observation has been made, it is necessary to consider whether a decision adopted by a European Union institution, in this case the Commission, the content of which binds all State public authorities, including the courts, unjustifiably deprives those courts of their independence when they are called upon to determine a claim for damages based on that decision. To my mind, this approach to the situation, which focuses on the independence of the court and which is adopted both by the national court and by the parties to the main proceedings, is not the right one. None of the parties in these proceedings doubts the impartiality of the referring court; nor is there any question of extra-legal and unlawful interference in the development of the main proceedings. Rather, the doubts refer, in the circumstances of the case, to the scope of the referring court’s jurisdiction, which is supposedly limited as a consequence of the Commission’s decision, which binds it and establishes one of the prerequisites of the case: a finding of an unlawful act made by the entity with competence to do so. This is also the interpretation of the ECHR when hearing cases in which a court sees its discretion limited. In these cases, the ECHR considers that it is not so much the independence of the court which is in issue, but its very status as a ‘tribunal’. (16)
44. In these circumstances, I consider that the objection raised by the Rechtbank does not refer so much to its ‘independence’ as a court but to its capacity to rule with unlimited jurisdiction on a civil case brought before it.
45. In order to settle this doubt, I propose to address, first, the nature of the Commission’s decision at issue and its legal effects before national courts. I shall then point out how that decision is subject to a comprehensive legal review before the courts of the European Union (‘the Courts of the Union’), while the national courts are, where appropriate, those called upon, in civil proceedings for damages, to determine the damage and the causal link. In short, I believe that the Rechtbank does not find its jurisdiction limited, but that it exercises it within the framework of an ordinary division of roles between the national and European Union courts.
46. In Masterfoods, (17) the Court of Justice had the opportunity to define the scope of Commission decisions taken pursuant to Article 81(1) EC (Article 101(1) TFEU). The content of that judgment was subsequently included in Article 16 of Regulation No 1/2003 on the implementation of the rules on competition. To put it very briefly, the aforementioned judgment and rule establish the obligation of all national authorities, including courts, not to give rulings incompatible with a Commission decision adopted pursuant to Article 81 EC (now Article 101 TFEU). (18) In other words, Commission decisions based on those rules are binding on national courts. (19)
47. It is true that the judgment in Masterfoods left undecided important questions which would help considerably to delimit the scope of the binding nature of Commission decisions on competition. Accordingly, it is not at all clear whether these effects extend to the operative part of the decision or to all of its content, including assessments of fact. At the hearing, the Commission, in answer to questions from the Court of Justice, expressed the view that its decisions are not binding on public authorities in all their aspects, but refrained from stating in which aspects they are binding. In any event, and insofar as is relevant in the present case, it seems unquestionable that the finding of unlawful conduct contained in the decision does in any case bind national courts. That finding constitutes the basis of any action for non-contractual liability in the national legal orders, one of the prerequisites for which is the existence of unlawful damage.
48. That being so, the referring court might have good reason to be suspicious, a priori, of an action brought by a national authority which had itself previously established – with the consequences that follow from that – the unlawful act on which its action is based. However, as the Commission correctly points out in its observations, that fact ceases to be problematical the moment there is an effective remedy before the Courts of the Union against the decision declaring the unlawful act. The judicial power of a national court could be unjustifiably limited if it lost the capacity to declare, or to question the declaration of, the existence of an unlawful act within the framework of an action for damages. Nevertheless, this is not the situation in the present case for the reasons I shall now give.
49. In the first place, the national court does not have the power to disapply or decide upon the validity of the Commission’s decision, not only because the judgment in Masterfoods has said as much, but also because settled case-law, beginning with the judgment in Foto-Frost, (20) prohibits national public authorities from deciding upon the validity of European Union acts. The monopoly on decisions as to validity, which lies exclusively with the Courts of the Union, would be undermined if a national court could question, during an action for damages, the finding of an unlawful act previously established by a Commission decision. In this case, the European Union legal order empowers the national court to refer a question on validity to the Court of Justice for a preliminary ruling, thus safeguarding the independence of the national court and, at the same time, the unity and coherence of the European Union’s system of sources of law. (21)
50. Moreover, the parties concerned by the decision, which in the present case are acting as defendants in the main proceedings, have always had the right to bring an action for annulment before the General Court and, in the last resort, before the Court of Justice. As is well known, the action for annulment is a procedure for judicial review which allows there to be a comprehensive review of the contested act. The grounds set out in the second paragraph of Article 230(2) EC (now the second paragraph of Article 263(2) TFEU) are sufficiently broad to enable a judicial review of all the elements which make up the act. (22) The fact that the case-law of the Court of Justice and of the General Court recognises that the Commission has a technical discretion does not mean that judicial review is a minimum control, as the defendant companies have argued in their written observations. Recognition of this discretion in the taking of decisions has its equivalent in the administrative justice of the various legal systems represented in the European Union, whose control over the administration is particularly evident in matters of law and which subjects the technical aspects to an analysis based on manifest error. (23) Furthermore, the extent and intensity of this kind of judicial review in the Member States is compatible with the requirements of the ECHR. (24) Therefore, the review carried out by the Courts of the Union of Commission decisions adopted pursuant to Article 81(1) EC (now Article 101(1) TFEU), constitutes, from a general point of view, a comprehensive judicial review which, if the decision is unfounded, guarantees the individual effective judicial protection.
51. The foregoing observations having been made, it can be seen that the national courts have various options when faced with a Commission decision in the context of a civil action for damages.
52. First of all, and as has been stated in point 49 of this Opinion, the national court, if it had doubts regarding the legality of the decision, would be able to refer a question for a preliminary ruling on the validity of the Commission decision. Secondly, if the decision had an individual addressee, it is essential for that person to have challenged its validity before the General Court. (25) In such a case, and as has occurred in the present case, the national court would have the power to stay the proceedings pending a final judgment from the European Union judicature. This is suggested by Article 16(1) of Regulation No 1/2003, when it states that it is for the national court to ‘assess whether it is necessary to stay its proceedings’ whenever it may give ‘decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated’. Therefore, if the Rechtbank had doubts regarding the validity of the decision and, furthermore, noted that the decision is sub iudice before the Courts of the Union, staying the national proceedings would avoid any risk of conflict between the decisions given by the Courts of the Union and the Belgian court.
53. That conclusion is required not only by virtue of legal certainty, but also by virtue of the obligation of sincere cooperation. In Masterfoods, the Court of Justice stated that ‘[w]hen the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted’. (26) According to the Court of Justice, ‘application of the Community competition rules is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Community Courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty. (27)
54. In short, although the Rechtbank is bound by the finding of the unlawful act established in the Commission decision, that by no means implies that judicial review has been restricted and that the parties do not have access to a ‘tribunal’. On the contrary, it is for the Rechtbank to declare and quantify the damage suffered in this case by the European Union, after establishing the causal link, a task which involves a detailed and complex judicial analysis. And if the Rechtbank had doubts regarding the validity of the Commission decision – although it cannot question its content owing to the monopoly of control which is enjoyed by the Courts of the Union – it will always be able, in circumstances such as those of the present case, to stay proceedings until the General Court or the Court of Justice confirms the validity of the decision. Therefore, it may be concluded that the powers of the Rechtbank have not been restricted, nor have the defendants been deprived of their right of access to a court of unlimited jurisdiction. On the contrary, and as a consequence of the existence of two legal orders which interact and submit respectively to their own ‘chains of validity’, the process reflects the division of tasks between two jurisdictions – the European Union judicature and the national courts – which are each responsible for giving rulings in the exercise of their spheres of competence.
55. Finally, and in the light of the arguments set out, I consider that Article 47 of the Charter, as regards the right of access to a tribunal, is to be interpreted as not precluding a national court from determining a claim in respect of damage suffered by the European Union, where the unlawful act which forms the basis of the damage has been established by a Commission decision adopted pursuant to Article 81(1) EC (now Article 101(1) TFEU).
B – Equality of arms between the parties to civil proceedings
56. The national court asks, finally, whether the fact that the Commission has information gathered during the investigation into the cartel – information which, moreover, is not in the possession of all the defendants because it may be information subject to professional secrecy – infringes the principle of equality of arms as derived from Article 47 of the Charter and Article 6 ECHR.
57. The principle of equality of arms, as an integral part of the fundamental right to effective judicial protection guaranteed by Article 47 of the Charter, has formed part of the European Union legal order since very early times. The principle is not asserted only before the Courts of the Union, (28) but also in procedures that may result in the imposition of a penalty which are initiated by the Commission, (29) and in national proceedings which implement European Union law. (30) It is on this last aspect that we must focus now, an area in which the Court of Justice draws much inspiration from the case-law of the ECHR.
58. According to the ECHR, the aim of equality of arms is to ensure a balance between the parties to proceedings, thus guaranteeing that any document submitted to the court may be examined and challenged by any party to the proceedings. The harm which may well be caused where this balance is lacking must, in principle, be proved by the person who has suffered it. (31) Similarly, the so-called ‘doctrine of appearances’, applied to the principle of equality of arms since the judgment in Kress v France, (32) has led the ECHR to declare that an objective and abstract imbalance may be sufficient for a finding of infringement of the principle of equality of arms. (33) This precedent has been applied mainly to national criminal proceedings, but also, although less frequently, to civil, social and administrative proceedings. (34)
59. The Court of Justice has embraced this case-law and has on many occasions applied the abovementioned safeguards established by the ECHR. (35) Although the case-law of the Court of Justice does not appear to have adopted the so-called ‘doctrine of appearances’ too enthusiastically and in most cases requires evidence of actual harm as a consequence of imbalance between the parties, the fact is that the level of protection is essentially the same as that of the ECHR. (36)
60. Applying the abovementioned case-law to the present case, the question now raised focuses on very specific aspects. First, there is the matter of the access of the Commission, as the European Union’s representative before the Belgian courts, to the information contained in the file which formed the basis of the decision finding an infringement of Article 81(1) EC (now Article 101(1) TFEU). The defendants in the main proceedings maintain that the Commission could direct the wording of the decision with the aim of ensuring the success of a subsequent civil action for damages. Secondly, the defendants maintain that the Commission is in a privileged position because it is the author of the decision which establishes the unlawful act in the national proceedings. Finally, the defendants point out that the information in the file, including the information subject to professional secrecy, is not available to all the defendants, thus placing the Commission, as regards information, in an advantageous position which undermines the balance which should prevail between the parties to the proceedings.
61. In order to reply to the first of the objections stemming from the principle of equality of arms, it should be pointed out, first of all, that the information in the Commission’s possession to which the defendants refer has not been submitted to the national court. This is clear from the application and from the documents and oral argument presented before the Court of Justice. Therefore, the information at issue forms part of a file available to the Commission, the content of which has not been presented to the national court behind the backs of the defendants.
62. This fact fundamentally affects the analysis of the case when it is compared with the case-law of the ECHR, since it must be recalled that, under that case-law, the finding of imbalance must be reflected in some way in the action of the court. Or, in other words, inequality is observed in the fact that the court or tribunal has information, actual or objective, which favours one party to the detriment of the other, without the latter having any effective means of challenging it.
63. In the circumstances of the present case, it has not been shown that, apart from the public decision, information which the Commission has in its possession as a result of previous procedures was submitted in the main proceedings. I shall focus below on the specific use of the confidential information in the main proceedings, but here it is enough to add that, if this point is confirmed, the success of the Commission’s defence strategy will depend on the skill of the arguments contained in its application and on the relevance of the facts that it presents during the forthcoming civil proceedings. If the information which so concerns the defendants is contained in the application, or is presented as documentary evidence, there is always the possibility of examining it and challenging it (subject always to any objections which the Commission might have to this course of action from the point of view of the duty of confidentiality, of which I shall speak later). If, on the other hand, that information is not present in the civil proceedings, it will be difficult for the court to tip the balance in favour of one of the parties to the detriment of the other. I therefore consider that, simply by having gathered certain information in the course of a previous investigation, the Commission is not automatically in an advantageous position which infringes the principle of equality of arms.
64. With their second objection stemming from the principle of equality of arms, the defendants consider that the Commission’s power to issue binding decisions which establish the unlawful act in the main proceedings constitutes an imbalance in the proceedings contrary to Article 6 ECHR. In particular, the parties in the main proceedings have pointed out the importance of the judgment in Yvon v France, (37) in which the ECHR declared that the involvement of the French Government Commissioner in a judicial review of an expropriation evaluation was incompatible with Article 6 ECHR. In that case, the ECHR took particular account of the fact that the position taken by the Government Commissioner affected the court’s assessment. Although the amount proposed by the Government Commissioner did not bind the court, the ECHR pointed out that French law required the court, both at first instance and on appeal, to state ‘specifically’ the reasons for departing from the Commissioner’s proposal. (38)
65. As well as that fact, the ECHR took into consideration the fact that the citizen seeking justice, in this case, the expropriated party, was faced not only by the expropriating authority but also by the Government Commissioner. With regard to the latter, the ECHR pointed out that he has valuable information which is not available to the expropriated party. (39)
66. The combination of those three circumstances (the influence on the court, the dual defence of the government and the access to information), but not each taken separately, constituted, in the view of the ECHR, an infringement of Article 6 ECHR.
67. It is only necessary to recall the circumstances of the case Yvon v France in order to reach the conclusion that that judgment does not call the role of the Commission in the main proceedings into question. Furthermore, as has just been explained, the fact that the court’s capacity to rule was influenced by the involvement of the Government Commissioner was not the only element taken into account by the ECHR in finding an infringement of Article 6 ECHR. On the contrary it was a combination of circumstances which gave rise to an infringement of the law but not each one of them separately. Also, as has been stated in points 52 and 54 of this Opinion, the fact that the national court is bound by the Commission’s decision is a result of the normal division of functions between the Courts of the Union and those of the Member States, and the limitations which that entails for the national court are resolved by a review of the decision in accordance with the remedies provided for in the Treaties.
68. Thirdly and lastly, as regards the fact that the Commission bodies competent to conduct the proceedings culminating in a penalty are the same as those responsible for bringing an action for damages, I believe that this is a criticism which is easily refuted. The defendant companies argue that the Commission will always have privileged access to the infringement file, including information subject to professional secrecy, with a view to bringing an action for damages, because, in short, it is a collegiate body which takes majority decisions in which all its members participate. Therefore, and still in the view of the defendants, the person ultimately responsible for adopting the decision finding an infringement will also be the person responsible for bringing the action for damages on behalf of the European Union. In their submission, it follows that the action for liability will always be brought from an unquestionable position of advantage to the detriment of the defendants.
69. This argument likewise is not convincing, because it requires of the Commission a probatio diabolica, which is difficult to overcome. In its observations, the Commission has explained that the legal services responsible for preparing the action for damages have worked apart from the services which at the time handled the infringement case. It confirmed this at the hearing; it is, as its agents stated, a usual practice, which does not only affect situations in which the Commission participates in national proceedings, but more generally all kinds of proceedings in which confidential information may be used for purposes other than those for which it was presented. (40) This practice has been reflected at legislative level in Article 28 of Regulation No 1/2003, which states that information obtained during investigations ‘shall be used only for the purpose for which it was acquired’. (41)
70. If the Commission were obliged to show, in each case, what measures it has adopted to ensure an appropriate use of information obtained in the course of an investigation, that would amount to a requirement for proof of conduct which, as has just been pointed out, is required by the current legislation. In those circumstances, it would be reasonable for the burden of proof to fall on the defendants in the main proceedings, who would have to adduce actual evidence of the Commission having unlawfully used confidential information in order to prepare its case in civil proceedings such as the present case. As happens in the domestic legal systems of the Member States, the burden of proving an infringement of the law falls, as a general rule, on the party who alleges it. In this case, that burden must fall on the defendants in the main proceedings, who have not produced any evidence that the Commission made unlawful use of the information presented in the cartel investigations, which were initiated before the claim before the Rechtbank was lodged.
71. In short, and in the light of the foregoing reasoning, I consider that Article 47 of the Charter, as regards the right to equality of arms, is to be interpreted as not precluding the Commission from bringing a claim for damages before the national courts, even though it has previously conducted an investigation into a possible infringement, the decision in which has formed the basis for the claim.
VI – Conclusion
72. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling:
(1) Article 282 EC is applicable to national proceedings which were still ongoing on 1 December 2009 and it is not necessary subsequently to require the European Union to fulfil the conditions of representation laid down in Article 335 TFEU.
Article 282 EC is to be interpreted as not precluding the European Commission from bringing an action on behalf of the European Community for compensation in respect of damage suffered by the latter and initially sustained by various European Community institutions and bodies.
(2) Article 47 of the Charter, as regards the right of access to a tribunal, is to be interpreted as not precluding a national court from determining a claim in respect of damage suffered by the European Union, where the unlawful act which forms the basis of the damage has been established by a decision of the European Commission adopted pursuant to Article 81(1) EC (now Article 101(1) TFEU).
Article 47 of the Charter, as regards the right to equality of arms, is to be interpreted as not precluding the European Commission from bringing, on behalf of the European Union, a claim for damages before the national courts, even though it was the Commission itself which previously conducted an infringement procedure which culminated in the decision that has formed the basis for the claim.