Media Briefing Note: ECJ upholds judicial procedures for EU cartel fines as compatible with fundamental rights – and clarifies the role of the judiciary

LONDON, 08 DECEMBER 2011 - Today the Court of Justice of the European Union (ECJ) confirmed that the current system of review by the EU courts of European Commission cartel fines can continue.  It resisted challenges to that system based on the assertion that cartel fines are "criminal" for fundamental rights purposes.

In its judgments in KME Germany and Others v European Commission, the ECJ had been asked to strike down what was claimed to be excessive deference to the European Commission when the EU courts review its cartel decisions.  This argument was based on the assertion that cartel fines are "criminal" in character under the Charter of Fundamental Rights of the EU and the European Convention on Human Rights. Christopher Thomas, a partner at Hogan Lovells, assisted the European Commission's Agents, and pleaded the case for the Commission at the ECJ hearings.

The ECJ insisted that the EU courts carry out a review of both the law and the facts, and they have the power to assess the evidence, to annul the Commission's decision and to alter the amount of a fine.  The ECJ pointed out that the courts need not refrain from reviewing the Commission's interpretation of information of an economic nature, and that they cannot use the Commission's margin of discretion as a basis for dispensing with the conduct of an in-depth review of the law and the facts.

Christopher Thomas, lead partner on the case, based in Hogan Lovells' Brussels office, said: "There will be some who will be disappointed that the Court did not find EU cartel fines to be criminal for human rights purposes.  As a result of this judgment, we are not going to have a revolution in the way that Europe enforces the law against cartels – the Commission's role is assured."

"The Court's clarification that the judiciary will carry out an 'in-depth' review of the law and the facts, which will be 'full and unrestricted' is nonetheless significant.  It will reassure those involved in competition law enforcement procedures that the courts will always have the last word."

Background to the case

The judgments involve two cases.  This first case was regarding the Commission's fines in the "industrial tubes" cartel case.  KME had requested a reduction of the fine imposed by the Commission.  The Advocate General questioned the nature of EU antitrust decisions in the context of Article 6 of the European Convention on Human Rights (ECHR) on the right to a fair trial.

The second case, which started in the courts a year later, but which has now caught up, relates to the Commission's fines in the "copper plumbing tubes" cartel case.

In each case the Commission made a decision imposing fines on KME and other companies.  This led to actions in the EU General Court (previously called the Court of First Instance) challenging the fines.  The judgments of the General Court were then appealed to the ECJ (and involved an Advocate General's opinion in the first case).  These appeals, and a third appeal concerning another company involved in the copper plumbing tubes case, were decided by the ECJ today.

This press release does not in any way represent the views of the European Commission.

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