European Court of Justice (Luxembourg)

Fabien Zivy

European Court of Justice (Luxembourg)

Fabien Zivy studied law and politics at the Institut d’études politiques de Paris (Sciences Po) and the Universities of Oxford (Keble College) and Paris (Panthéon-Assas), as well as at the College of Europe (Bruges) where he graduated magna cum laude in 2000. After joining the European competition practice of Linklaters in Brussels (2000), he became a Legal Secretary of Judge Hubert Legal, President of the 4th Chamber of the Court of First Instance (now General Court) of the European Union (2003). In 2007, he was appointed to the newly created position of Chief of Staff of the President of the French Competition Council, Bruno Lasserre. As such, he was in charge of EU and international affairs, as well as of preparing the 2008/2009 legislative reform of the French competition framework, which led to the creation of a unified Competition Authority in charge of antitrust enforcement, merger review and competition advocacy. He also played a key role in the modernization of the new agency’s antitrust policy and in the drafting of its guidelines on fines, settlements and compliance. In 2011, he took over the job of Director of the Legal Service, which involved supporting the agency’s Board in the drafting of fining decisions and defending them before the Paris Court of Appeals and Supreme Courts (Cour de cassation and Conseil d’Etat). In 2013, the French Minister for Economy and Finance, Pierre Moscovici, together with the President of the French Competition Authority, Bruno Lasserre, commissioned him the task of making a report on the future of merger control in Europe, which was submitted on 16 December. The report makes 10 recommendations intended to make the operation of merger control both more consistent and simpler throughout the EU’s various Member States. He has returned to his home jurisdiction, the European General Court in 2014 as Legal Secretary of Judge S. Papasavvas, President of the 3rd Chamber.


285212 Review

Fabien Zivy, Irène Luc Procedural fairness before the French Competition Authority


The roundtables organized earlier this year by the Competition Committee of the OECD have shown that competition authorities share the common goal of ensuring the fairness of their procedures, but also that the legal and practical means of achieving this procedural fairness may legitimately (...)

Fabien Zivy Proceedings before the French NCA: "Good practices" guidance


The French Conseil de la concurrence underwent a velvet revolution in 2006 / 2007, when it decided to launch a comprehensive dialogue on its rules of procedure with the competition bar. This initiative led to setting out a number of procedural good practices aimed at giving further practical (...)

Fabien Zivy Remedies: The Cour of First Instance holds that an independent trustee may assist the Commission, but not personally monitor the implementation of a remedy (Microsoft)


The immediate outcome of the Microsoft case is generally positive for the European Commission, subject to an appeal. However, two procedural points should be noted which, because of their longer-term implications, could have a significant impact on the implementation of the competition rules by (...)

Fabien Zivy Community interest: The CFI confirms its case law (Au Lys de France)


Four judgments of the Court of First Instance recall two key aspects of the case law concerning complaints about possible infringements of the EC competition rules and the conditions under which the European Commission is allowed to reject them. Firstly, the procedure provided for this purpose (...)

Fabien Zivy Leniency: The ECJ confirms that, when the Commission assesses the extent of the cooperation shown by a leniency applicant, it has a large margin of appreciation (SGL Carbon)


ECJ, 4th paragraph, 10 May 2007, SGL Carbon v Commission, Case C-328/05 P A previous issue of this column had led to commenting on certain interesting aspects, in terms of procedural and sanctions law, of the judgment delivered by the Court of First Instance of the European Communities in the (...)

Fabien Zivy Statement of objections: The CFI holds that the content of the SO may remain schematic, but the decision must, when it steps aside from standard practice, indicate the turnover taken into consideration to verify the respect of the 10% ceiling (Raiffeisen Zentralbank Österreich)


CFI, 13 December 2006, FNCBV v Commission, cases T-217/03 and T-245/03. CFI, 14 December 2006, Raiffeisen Zentralbank Österreich AG and Others v Commission, cases T-259/02 to T-264/02 and T-271/02. Especially interesting in terms of the substance of competition law, especially sanctions (see (...)

Fabien Zivy Summary of the plea-in-law: The CFI holds that it is acceptable to develop arguments-in-law in a legal opinion annexed to the application, if the gist of these arguments is included in the application itself (FNCBV)


CFI, 13 December 2006, FNCBV v Commission, cases T-217/03 and T-245/03. The provisions of the Rules of Procedure of the Court of First Instance of the European Communities relating to pleadings (essentially Articles 44, 46, 104, 115 and 116) provide that pleadings must contain, inter alia, ’a (...)

Fabien Zivy Reimbursement: The ECJ holds that national judges have a duty to circumvent the rules relating to the burden of proof in order to ensure the effectiveness of State Aid control(Laboratoires Boiron)


ECJ, September 7, 2006, Laboratoires Boiron, Case C-526/04 The competitive relations which may exist between pharmaceutical companies and wholesalers of pharmaceutical specialities are not only relevant to antitrust proceedings before the Community courts but also to State aid proceedings (...)

Fabien Zivy Admissibility - State aid: The CFI adopts a slippery case-law relating to the right to be heard of the applicant for annulment of a decision declaring that an aid is incompatible (Ter Lembeek)


CFI, 23 November 2006, Ter Lembeek International NV v Commission, Case T-217/02. The Ter Lembeek decision (see, on the merits, this review, State Aid column, note J.-Y. C.) illustrates the well-known tactic used by litigation specialists whereby a judge who decides to innovate sometimes does (...)

Fabien Zivy Right to intervene - State aids: The CFI distinguishes between actual and potential beneficiaries of an individual aid granted by virtue of an aid regime (Brandt industries)


CFI (order), 8 November 2006, Brandt industries v Commission, Case T-273/04. It is relatively infrequent for applications to intervene, which are the responsibility of the President and the Presidents of Chambers of the Court of First Instance of the European Communities, to be referred to the (...)

Fabien Zivy Lack of ex post facto regularisation: The ECJ holds that a decision of compatibility does not have the effect of regularising measures implementing an aid (Transalpine Ölleitung in Österreich)


ECJ, 5 October 2006, Transalpine Ölleitung in Österreich Gmbh (TAL) a. o. v. Finanzlandesdirektion für Tirol a. o., case C-368/04 The number of requests for preliminary rulings on State aid matters, and more specifically on State aid litigation, is increasing; indeed, this is one of the major (...)

Fabien Zivy Suspension-Effectiveness: The ECJ holds that the rule granting suspensive effect to the action challenging the order aimed at recuperating an aid renders State aid control ineffective and must be set aside (Commission v. France)


ECJ, 5 October 2006, Commission v. France, Case C-232/05. The action for failure to fulfil obligations brought by the Commission against France for failure to comply with the decision finding that that Member State had granted to the American company Scott Paper (’Scott’) aid incompatible with (...)

Fabien Zivy Rights of defense: The CFI holds that the European Commission cannot be criticised for not having tried to obtain a declaration made to a foreign competition authority if it has not been previously invited to do so (Avebe v. Commission)


CFI, 27 September 2006, Avebe v Commission, "Sodium gluconate", Case T-314/01. Although very much concerned with the litigation of fines, the Sodium Gluconate case (see this review, supra, chron. Cartels, note M.D.) also allowed the judge to address an interesting question of procedural law. (...)

Fabien Zivy State Aid litigation: The CFi illustrates standard case-law (Werkgroep)


CFI, 27 September 2006, Vereniging Werkgroep Commerciële Jachthavens Zuidelijke Randmeren a. o. v. Commission, Case T-117/04 We will limit ourselves here to a brief report on the ruling Vereniging Werkgroep (’VW’), which is involved in a dispute concerning an application for annulment brought by (...)

Fabien Zivy Action for annulment: The CFI delimits the elements of proof admissible before the judge in support of an action for annulment of a decision applying Article 81 EC (GlaxoSmithKline Services)


CFI, 27 September 2006, GlaxoSmithKline Services, Case T-168/01 One of the fundamental principles of Community annulment litigation is that the court may review the legality of the act referred to it only in the light of the factual elements "existing" at the date on which that act was adopted (...)

Fabien Zivy Action for annulment: The CFI holds that there is no need to differentiate the analysis of standing to act against a decision not to raise objections according to whether an aid scheme or an individual aid is challenged (British Aggregates)


CFI, 13 September 2006, British Aggregates Association v Commission, Case T-210/02 The judgment in British Aggregates (’BA’) deserves mention because of its dual interest from the point of view of procedural law on State aid, which, as is well known, is probably not the simplest or most logical (...)

Fabien Zivy Proof: The CFI dismisses actions for interim measures brought against European Commission decisions ordering the recuperation of an aid due to the absence of proven urgency (Olympiakes Aerogrammes v. Commission)


CFI (order), 26 June 2006, Olympiakes Aerogrammes v Commission, Case T-416/05 R CFI (Ord.), 2 August 2006, Aughinish Alumina v Commission, Case T-69/06 R The limited scope of the chronic presence does not allow the two orders mentioned, which dismiss applications for interim relief on the (...)

Fabien Zivy Third party rights: The CFI holds that the client of an undertaking subject to a proceeding may receive a non-confidential version of the SO (Österreichische Postsparkasse)


Another judgment of the Court of First Instance relating both to the Club Lombard case and to the question of access to information gathered by the Commission in the context of a procedure for the application of the competition rules, the Österreichische Postparkasse and Bank für Arbeit und (...)

Fabien Zivy Statement of objections: The CFI holds that decisions whereby the Hearing Officer establishes the non confidential version of a SO and the public version of a decision applying competition rules are challengeable acts (Bank Austria)


The two judgments commented on above, which have their origin in the investigation procedure initiated by the Commission against Austrian banks suspected of having participated in the Lombard Club, are also of interest from a substantive point of view. They broaden the range of acts which may (...)

Fabien Zivy Standus loci - State aid: Access to the Court is limited to the “super-competitor” of the undertaking that has benefited from State aid (Deutsche Post - DHL Express)


Appeal for annulment of the order of the Court of First Instance dismissing as inadmissible an action for annulment brought by German companies operating on the Italian market for express document and parcel services at national and international level against a Commission decision finding, at (...)

Fabien Zivy State aid Procedure: The CFI holds that an European Commission letter to the Member State to modify a State Aid project does not produce legal binding effect (Tramarin)


The action for annulment dismissed as inadmissible is still at issue in the order of the Fifth Chamber of the Court of First Instance in the Tramarin case. That order has an innocuous appearance which must not be misleading; the full publication in the ECR, to which the order is also promised, (...)

Fabien Zivy Fine: The ECJ rules on the request to increase the fine (Minoan Lines)


In the context of the debate on the relationship between administrative and judicial proceedings and, more generally, on the manner in which the power of full jurisdiction is exercised, already referred to in previous editions of this column, mention should be made very briefly of the order (...)

Fabien Zivy State Aid: The CFI holds that publication of a summary notice, combined with the fact of putting the full text of a decision on the Internet, triggers the time-limit for submitting an action for annulment (Fred Olsen - Air Bourbon)


Cancellation litigation is adapting to the Internet. This could be summarised in two recent decisions in which the CFI ruled, for the first time, that "the fact that the Commission gives third parties full access to the text of a decision placed on its website, combined with the publication of (...)

Fabien Zivy EC Liability: The CFI ventures on new ground (Holcim)


CFI, 21 April 2005, Holcim (Deutschland) v Commission, Case T-28/03. The Holcim judgment, which provides a remarkable illustration of the way in which the CFI deals with economic liability litigation, will undoubtedly be a landmark in the future. abundantly commented on. Fined for their (...)

Fabien Zivy Right to intervene: The CFI gives a few precisions concerning the right to intervene open to representative associations, on the one hand, and to individual firms, on the other hand (Microsoft)


CFI (ord.), pres. 4th ed, 9 March 2005, Microsoft v. Commission, Case T-201/04 By order of 9 March 2005, the CFI granted nine applications to intervene in the Microsoft case. The main point of that order is the manner in which the right to intervene conferred on representative associations and (...)

Fabien Zivy Right to intervene: The CFI holds that a third party intervener is barred from seeking a form of order other than the ones sought by the party he supports (Piau - Sniace)


CFI, 26 January 2005, Piau v. Commission, Case T-193/02 CFI, 14 April 2005, Sniace v. Commission, Case T-88/01 Two judgments of the CFI apply the rule that the object of the intervention is to support the conclusions of one of the main parties (Article 40(4) of the Statute of the ECJ), so that (...)

Fabien Zivy Taxation of costs: The CFI holds that firms that have won the day in Court may well be entitled to recovering substantial costs from the Commission (ICI, Schneider)


CFI (ord.), 2nd ch., 6 September 2004, Imperial Chemical Industries v. Commission, case T-36/91 DEP and T-37/91 DEP CFI (ord.), 4th ch., 29 October 2004, Schneider Electric v. Commission, case T-310/01 DEP CFI (ord.), 4th ch., 29 October 2004, Schneider Electric v. Commission, case T-77/02 DEP (...)

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