Tag Archives: AP

Appeals

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Appeals

Appeals (article 256 TFEU) (“pourvoi”)

Judgments of the General Court can in turn be appealed, in whole or in part, to the Court of Justice by the unsuccessful party, before the General Court. The Commission may therefore be the appellant if it has been unsuccessful before the General Court.

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Such appeals are limited to questions of law (the Court of Justice does not review the facts of the case unless it can be shown that the General Court clearly distorted the obvious meaning of the evidence before it). A significant number of General Court judgments in the competition field are appealed before the Court of Justice every year.

Resources

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References

  • Information about Appeals in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Appeals in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Appeals before the Court of Justice

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Appeals before the Court of Justice

Appeals before the Court of Justice against General Court judgments

If the Commission is unsuccessful before the General Court (for instance, the General Court annuls a decision, or considers that the Commission failed to act in a given case, or finds that the Commission is liable for the harm suffered by an undertaking), the Commission must decide whether to appeal or not that judgment.

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As explained above [see point (28)], the appeal will normally have to be lodged 2 _ to 3 months after the date of the judgment (the exact deadline for appeal can be checked with LS). A decision to appeal or not should therefore be taken as quickly as possible, in order to leave sufficient time for the drafting of the appeal itself.

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The decision to appeal is adopted by the College. It should not be confused with the appeal itself. The decision is the necessary preliminary step, by which the Commission accepts the principle of an appeal. The appeal itself is the written application sent by the LS (on behalf of the Commission) to the Court of Justice, which contains a full description of the Commission's arguments and grounds of appeal to the Court.

Resources

See Also

References

  • Information about Appeals before the Court of Justice in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Appeals before the Court of Justice in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Application Draft Decision

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Application Draft Decision

Draft Decision

Decision granting conditional immunity: The Commissioner has been empowered by the College to issue Decisions granting conditional immunity on behalf of the Commission. A Draft decision on conditional immunity is therefore attached to the note to the Commissioner. The Decision is addressed to the applicant undertaking (never to a particular person in the undertaking). It should never be addressed to the lawyer. The lawyer may receive a copy (or, if explicitly requested by the undertaking in writing, the original), but this should not be mentioned on the face of the Decision.

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Decision rejecting conditional immunity: The Commissioner has also been empowered to issue Decisions rejecting conditional immunity. The procedure for rejecting immunity is the same as for the granting of conditional immunity.

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Before asking the Commissioner for approval, the Legal Service should have given their agreement on the draft decision.

Other Considerations

The matter should be put on the agenda of the first possible weekly meeting with the Commissioner.

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The minutes of the weekly meeting are recommended to be kept in the file to prove, if necessary, that the Commissioner has approved the decision and the inspection, as the case may be.

Resources

See Also

References

  • Information about Application Draft Decision in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Application Draft Decision in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Approval of the Preliminary Assessment

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Approval of the Preliminary Assessment

Approval of the Preliminary Assessment

The approval of the Preliminary Assessment constitutes a Commission act adopted by empowerment by the Commissioner for competition.

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The Commissioner therefore needs to give his/her approval to adopt the Preliminary Assessment and to engage in formal commitment discussions with the parties.

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The note seeking approval of the Preliminary Assessment should not only describe the previous informal commitment discussions and the commitments offered (informally) by the parties, but also specify the main elements required to meet the competition problems identified and outline which issues are still in discussion with the parties.

Other Considerations

If proceedings have not been initiated before, the adoption of the Preliminary Assessment should be combined with the initiation of the proceedings.

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After receiving the Preliminary Assessment, the undertaking under investigation has – in contrast to an Article 7 decision – no right to request a hearing pursuant to Article 12. Neither Regulation 1/2003 nor Regulation 773/2004 expressly provide for access to file in the context of Article 9 proceedings.

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For complainants the issuing of a Preliminary Assessment does not trigger any special procedural rights either. The complainant has no right to a hearing or to receive a (non-confidential) copy of the Preliminary Assessment or to have access to information. The complainant is in a similar position to any other undertaking which is informed when the public market test takes place. The sole purpose of the Preliminary Assessment is to inform the undertaking under investigation formally of the competition concerns. It will not be published and not be made available to third parties.

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However, it may – in specific cases – be advisable to inform the complainant about the main content of the Preliminary Assessment. The case team could in particular make use of this possibility if it can be expected that the complainant is able to provide important input for the subsequent discussions on the exact scope of the commitments. This advantage needs to be balanced against the risk that the commitment discussions are undermined by providing this information; third parties should also not be discriminated by providing information on the content of the Preliminary Assessment beyond what is summarised in the market test.

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Prior to the issuing of the Preliminary Assessment, the parties will be offered an additional State of Play meeting.

Resources

See Also

References

  • Information about Approval of the Preliminary Assessment in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Approval of the Preliminary Assessment in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)