Case Comment: Gascogne (C-40/12 and C-58/12) and Kendrion (C‑50/12)

40901_0159Pedro Caro de Sousa

The present note is concerned with what the appropriate remedy is when the European courts breach Article 47 of the Charter of Fundamental Rights (the “Charter”) and Article 6 of the European Convention of Human Rights (the “Convention”) by taking an excessive length of time before reaching a decision.

It looks at three recent judgments by the Court of Justice of the European Union (“CJEU”) (Case C-40/12 P Gascogne Sack Deutschland GmbH v European Commission; Case C‑50/12 P Kendrion NV v European Commission; Case C-58/12 P Group Gascogne v European Commission) on appeal from decisions by the General Court regarding the industrial bags cartel. The decisions were to the effect that:

–                whenever a European court breaches Article 47 of the Charter and/or Article 6 of the Convention by taking too long to take a decision, the appropriate remedy is an action for damages against the EU;

–                in the light of Treaty provisions, this action will need to be brought before the General Court, even if it was this court’s delay that provides the basis for the action for damages.

Beyond the relevance of these developments in themselves, these decisions also raise a number of interesting questions that the CJEU avoided for the moment but that seem destined to raise their head in the future – including:

–                does it infringe upon Article 6 of the Convention to have the General Court adjudicate on actions for damages that are based on that court’s own previous breach of Article 6 of the Convention – in particular, will this case law survive scrutiny before the European Court of Human Rights (the “Strasbourg Court”) when the EU finally accedes to the Convention?

–            what will be the consequences if this case law is found to infringe the Convention? In particular, what happens when two different sources of EU primary law (namely, Treaty provisions and the Charter) conflict? Continue reading

Ryanair v. Competition Commission and Aer Lingus in the Court of Appeal (Civil Division) [2012] CAT 29

Majority and Minority Shareholders Commuting between Dublin, Brussels and London

Pedro Caro de Sousa

Associate, Linklaters LLP; DPhil (Oxon)

Keeping with this blog’s recent focus on aviation related cases, this post will look into a decision by the Court of Appeal on whether the European Commission’s exclusive jurisdiction to review a concentration precludes the Competition Commission from simultaneously looking into a minority shareholding in the target company – and, in particular, whether the Competition Commission can investigate Ryanair’s minority stake in Aer Lingus when the European Commission is pursuing a merger review of a proposed acquisition of control by the former over the latter.

The Factual Background

For a proper understanding of this case an extensive review of the factual background is required. This description is quite long, as the disputes between Ryanair and Aer Lingus have been bouncing around regulators and courts for the better part of a decade. A short description follows; for a more detailed review of the factual background of this case, please see Annex I below.

In 2006 Ryanair acquired a minority stake in Aer Lingus with a view to acquire control over it. This proposed acquisition was prohibited by the European Commission (the “Prohibition Decision”). Ryanair appealed this Prohibition Decision, but in the meantime the OFT commenced an investigation into Ryanair’s minority stake in Aer Lingus. This investigation was subject to a decision by the Court of Appeal, who held in Ryanair Holdings plc v Office of Fair Trading (the “Ryanair C/A Decision”) that, inasmuch as the minority stake was held to be part of the concentration, and until Ryanair’s appeal of the Prohibition Decision had been decided without possibility of further appeal, it was evident that concurrent investigations in the UK and in Europe would be both oppressive and mutually destructive; and that the duty of sincere cooperation went beyond avoiding inconsistent decisions and extended to overlapping investigations, requiring the OFT to desist from making any reference to the Competition Commission during that period. Continue reading