European Commission may force national courts to enforce its decision while the legality of the decision is pending in Luxembourg, Europese Gemeenschap, C-199/11

This judgment dated 06/11/2012 is extremely interesting due to the legal strategy used by the European Commission. The Commission took a decision that certain manufacturers of elevators and escalators (Otis NV, Kone Belgium NV, Schindler NV, ThyssenKrup Liften Ascenseurs NV, General Technic-Otis Sàrl, Kone Luxembourg Sàrl, Schindler Sàrl, ThyssenKrup Ascenseurs Luxembourg Sàrl) who had worked with the EU buildings had a cartel agreement and infringed Article 101 TFEU (§ 2). The companies challenged the decision before the EU General Court, and then on appeal before the Court of Justice (§§ 21, 22, 57).

And then, instead of waiting for a judgment from the ECJ, the Commission acting as a representative of the EU brings a civil action against the companies before the Brussels Commercial Court, asking to order the payment of the provisional sum of € 7 061 688 (§ 23). The advantage of the Commission’s position before the Brussels Commercial Court is that, contrary to the EU General Court and the ECJ, it cannot depart from the line of the Commission (Article 16(1) of Regulation No 1/2003, §§ 26, 38).

The companies raised the fair trial principle under Article 47 of EU Charter of Fundamental Rights, Article 6(1) of the European Convention of Human Rights, and the principle nemo judex in sua causa (§§ 37, 39). The Grand Chamber of the ECJ gave 2 reasons for approving the role of the Commission. First, “any person can rely on a breach of Article 101 TFEU before a national court, including the European Commission (§§ 40, 44). Second, despite inability to declare the absence of the anticompetitive practice, the national court remains free to appreciate the existence of loss for the EU and a direct link between the loss and the anticompetitive agreement (§ 65).