Pascal Cardonnel

European Court of Justice (Luxembourg)
Legal Secretary

Pascal Cardonnel is a legal secretary at the Court of Justice of the European Union. Prior to joining the court, he was in private practice in Brussels (1994-1998) and served as assistant to the legal attaché at the Embassy of France in the United States (1993-1994). Mr. Cardonnel holds law degrees from University Paris I Panthéon-Sorbonne and Georgetown, and is admitted to practice in New York.

Linked authors

Université Jean Moulin - Lyon III
University of Aix-Marseille
French Competition Authority (Paris)
Orrick, Herrington & Sutcliffe (Paris)
Simmons & Simmons (Paris)
University of Paris I Panthéon-Sorbonne
Institut d’économie Industrielle (IDEI)
Jones Day (Brussels)

Articles

116176 Review

Pascal Cardonnel Inquiries: The Court of Justice of the European Union dismisses appeals brought by the Czech national rail carrier against two judgments upholding the European Commission’s inspection decisions (České dráhy)

67

The Court dismisses the appeals brought against the judgments of the Court of First Instance of 20 June 2018 České dráhy (Case T-325/16, EU:T:2018:368, and T-621/16 EU:T:2018:367).), in accordance with firmly established principles. These cases had their common origin in Commission inspections at (...)

Pascal Cardonnel Private enforcement: The Court of Justice of the European Union rules that a public body which granted promotional loans to purchasers of products covered by a cartel may request compensation for loss caused by the cartel (Otis / Land Oberösterreich)

99

This case is the second contribution of the lift cartel to the development of EU law on liability for anti-competitive acts. In 2014, in the wake of the Commission’s 2007 decision on the lift cartel in Benelux and Germany, the Court had validated in principle the possibility of extending the (...)

Pascal Cardonnel, Julie Bousin Competition policy: The French Government amends the provisions of the preliminary draft law on audiovisual anticipating the transposition of measures of the ECN + Directive following an opinion of the French Administrative Supreme Court (Audiovisual communication and cultural sovereignty in the digital age)

206

In September 2018, the National Assembly had adopted an amendment introduced by the Government that inserted an article 71 bis in the draft law on the growth and transformation of enterprises ("PACTE law"). Brief history of this bill The purpose of Article 71a of the PACTE bill was to empower (...)

Pascal Cardonnel Investigations: The Court of Justice of the European Union rules that an action for annulment against a decision refusing to suspend an investigation following the violation of the legal privilege is inadmissible (Alcogroup, Alcodis)

176

This case completes the case law on judicial review of Commission inspections. Union law does not provide for a mechanism of prior judicial authorisation of inspections. This shortcoming is not incompatible with fundamental rights insofar as it is counterbalanced by procedural rules and ex-post (...)

Pascal Cardonnel Private enforcement: The European Commission launches a public consultation on a draft communication to assist national courts in dealing with requests to disclose confidential information in proceedings for the private enforcement of European competition law

145

As a follow-up to the Damages Directive 2014/104, the Commission launched a public consultation on a draft notice to assist national courts in dealing with requests for disclosure of confidential information, in particular in the context of follow-up actions. The Notice, which has no legally (...)

Pascal Cardonnel Fine: The General Court of the European Union dismisses an appeal brought by an undertaking seeking to obtain a greater reduction of fine by challenging the cooperation value of the first leniency applicant (Recylex)

91

Can an undertaking which came second in the race for cooperation with the Commission obtain the coefficient for reduction of a fine reserved for the first if it can show that the latter did not cooperate genuinely, fully, continuously and expeditiously throughout the administrative procedure? (...)

Pascal Cardonnel Admissibility: The General Court of the European Union dismisses the appeal brought by an undertaking seeking to rely on the annulment of a decision by the Court of Justice of the European Union adopted within the framework of an appeal procedure to which it was not a party (Lucchini)

78

Approximately 17 years after the expiry of the ECSC Treaty, the Court of First Instance rules on a case relating to a procedure under Article 65 CA prohibiting cartels. The initial Commission decision dates back to 2002 (Decision C(2002)5087 final): eight steel undertakings had been found (...)

Pascal Cardonnel Rights of defence: The General Court of the European Union dismisses an appeal against a decision of request for information coupling with a financial penalty (Qualcomm)

100

In 2010, the Commission investigated a complaint about Qualcomm’s practices that were alleged to be an abuse of dominance. Nearly five years later, after several requests for information, the Commission informed the company of its grievances, which were based on a violation of Article 102 TFEU. (...)

Pascal Cardonnel Transaction: The General Court of the European Union reduces the amount of a fine imposed to an undertaking who decided to withdraw from the settlement procedure (Pometon)

126

The Tribunal clarifies the conditions for compliance with procedural safeguards in cartel proceedings in which some companies are sued through the ordinary channels while others choose to settle. In such a hybrid procedure, when the Commission draws up the settlement decision, the principle of (...)

Pascal Cardonnel Reimbursement: The General Court of the European Union holds the European Commission liable for the payment of interests in addition to the reimbursement of a fine unduly imposed to an undertaking (Printeos)

114

When the Court of First Instance orders the annulment of a fine, the Commission is naturally required to repay the amount of the fine, together with interest to reflect the value of the money over time. What happens when, in an environment characterised by negative interest rates, the (...)

Pascal Cardonnel Decision rejecting a complaint: The General Court of the European Union confirms a decision of the European Commission rejecting a complaint regarding agreements notified with a view to obtaining negative clearance or, alternatively, an individual exemption pursuant to Regulation n° 17 (EAEP)

127

With few means and risks, it is possible to exploit differences in the price of a drug between national markets. This parallel trade is highly profitable and is vigorously defended by the companies that engage in it. Pharmaceutical companies, when they oppose it, have to be ingenious not to (...)

Pascal Cardonnel Investigations: The General Court of the European Union dismisses for lack of standing an action for annulment of two decisions relating to searches and seizures conducted on the premises of a firm subject to an investigation for alleged price fixing practices (Alcogroup, Alcodis)

160

In 2014, as part of an investigation into possible manipulations of the reference price for ethanol, the Commission inspected the Alcogroup’s premises. For the preparation of its defence, communications between Alcogroup and its lawyers were then systematically identified by the lawyers as (...)

Pascal Cardonnel Intervention of a third country: The General Court of the European Union rejects the application to intervene of a third country due to lack of direct interest in the result of the case (Apple)

143

The concept of amicus curiae is not very popular in the Union’s courts. While Article 15(3) of Regulation 1/2003 confers on the Commission this function of "friend of the court" before national courts (see judgment of the Court of Justice of 11 June 2009, X, case C-429/07, Case C-429/07, p. 1), (...)

Pascal Cardonnel Handling of the case by a NCA: The General Court of the European Union confirms its prior position on the dismissal of complaints by the European Commission on parallel handling of the matter by a national competition authorities (VIMC)

96

The story is always more or less the same: a company struggling to gain access to a foreign market complains to the local competition authority about abusive practices it considers itself a victim of by an operator in a dominant position. At the same time, it refers the matter to the (...)

Pascal Cardonnel Dismissal of a complaint: The General Court of the European Union confirms the dismissal by the European Commission of a complaint similar to a prior one already rejected by a National Competition Authority on statutory time limit grounds (Agria Polska)

149

This judgment is based on well-established case law on the rejection of complaints, but also contains some peripheral assessments of the relationship between public and private actions. The applicants engage in parallel trade in plant protection products in Poland and Austria. They lodged a (...)

Pascal Cardonnel Searches: The General Court of the European Union confirms the European Commission’s refusal to disclose documents seized to the firm subjected to a search (Deutsche Telekom)

119

The case law of the Court has accepted the use of general presumptions to refuse, on the basis of the rules on the right of public access to documents held by the institutions of the Union, to grant third parties access to documents in State aid, merger control and antitrust files. Admittedly, (...)

Pascal Cardonnel Reasonable time: The General Court of the European Union rules on damages stemming from the excessive duration of its own proceedings in cartel cases (Gascogne; Kendrion; Aalberts Industries; ASPLA)

174

The year 2017 begins with four judgments of the Court of First Instance on the compensation of individuals for breach of the obligation to try within a reasonable time. Those judgments follow the abandonment, at the end of 2013, of the Baustahlgewebe case-law (Case C-185/95), according to (...)

Pascal Cardonnel Insufficient motivation: The General Court of the European Union annuls a settlement decision vitiated by the Commission’s failure to adequately state its reasoning (Printeos)

140

This case has the particularity of concerning a decision taken under the so-called "settlement procedure" pursuant to Article 10a of Regulation 773/2004 and the Commission Notice on settlement procedures for decisions pursuant to Articles 7 and 23 of Regulation 1/2003. By this decision, the (...)

Pascal Cardonnel European Competition Network: The General Court of the European Union confirms the European Commission decision to dismiss a complaint previously rejected by a national competition authority (Trajektna luka Split)

140

Complaints alleging infringements of EU competition law can be rejected on two types of grounds. The first, general, is the interest of the Union. According to the Automec case-law (Case T-24/90), the Commission determines this interest by making a sovereign assessment of the degree of priority (...)

Pascal Cardonnel State aids: The General Court of the European Union holds inadmissible the action brought by a competitor of the beneficiary of a State aid decision amended in order to comply with a prior GC ruling in its favor (Whirlpool Europe)

133

In 2012, the Commission has approved the granting by the French authorities of €31 million in restructuring aid to the household appliances manufacturer FagorBrandt. Its competitor Whirlpool applied to the Court of First Instance for the annulment of that decision taken at the end of the formal (...)

Pascal Cardonnel Fines: The General Court of the European Union rules inadmissible an action for annulment directed at a request for interests payment on fine (Trioplast Industrier)

93

Trioplast Wittenheim (TW) is one of the companies involved in the industrial bags cartel. In 2005, the Commission imposed a fine of EUR 17.85 million on TW. In 2010, its parent company, Trioplast Industrier (TI), which had been held jointly and severally liable for TW’s conduct in an amount of (...)

Pascal Cardonnel Fines: The General Court of the European Union confirms the Commission decision to reduce the fine of Japanese companies for their participation in the gas insulated switchgear cartel (Toshiba, Mitsubishi Electric)

127

The Court of First Instance validated the method of calculating the fines which it had suggested to the Commission when it partially annulled the decision relating to the gas-insulated switchgear (GIS) cartel in favour of two Japanese undertakings. Mitsubishi and Toshiba were fined (...)

Pascal Cardonnel Statute of limitation: The General Court of the European Union rules that the 10-year statutory time limit for the imposition of a fine does not apply to subsequent adjustments to the amount of the fine made in order to comply with a Court ruling (Corporacion Empresarial de Materiales de Construccion)

120

In June 2008, the applicant was ordered jointly and severally with its subsidiary to pay a fine of EUR 9,9 million for its participation in the sodium chlorate cartel (Commission Decision C(2008) 2626 final, Case COMP/38.695). It paid this fine and, together with its subsidiary, contested the (...)

Pascal Cardonnel Rights of defence : The General Court of the European Union annuls on due process grounds a European Commission decision amending the infringement decision in the heat stabilizers cartel (GEA Group, Akzo Nobel)

157

The Commission had jointly and severally sanctioned several companies belonging to the undertakings in the heat stabilisers cartel (Case COMP/38589). For separate reasons, the Commission subsequently amended its original decision by adopting amending decisions in respect of Akzo and GEA Group. (...)

Pascal Cardonnel Confidentiality : The General Court of the European Union confirms the European Commission decision to publish a non-confidential version of the car glass cartel decision (Pilkington Group, AGC Glass)

135

After the judgments of January 2015 concerning the hydrogen peroxide cartel (Trib. EU, 28 Jan. 2015, Akzo Nobel v Commission, Case T-345/12 and Evonik Degussa v Commission, Case T-341/12), the Commission has decided to refer the case to the European Court of Justice.), the CFI confirms its (...)

Pascal Cardonnel Access to documents : The General Court of the European Union annuls the European Commission decision to deny access to references to leniency materials in case file index (Axa Versicherung)

179

This judgment of the Court of First Instance reinforces the position of victims of cartels seeking the communication of the index of documents in the Commission’s file in order to support their claims for damages at national level. More than three years after the adoption of the Commission (...)

Pascal Cardonnel Inspections : The General Court of the European Union rejects an application for suspension of a Commission decision refusing to suspend an ongoing investigation (Alcogroup, Alcodis)

140

During an inspection of one of the ethanol producers suspected of having entered into an agreement, Commission inspectors examined certain documents marked "legally privileged". The Commission inspectors found these documents to be relevant and selected them for seizure. The company concerned, (...)

Pascal Cardonnel Transparency : The General Court of the European Commission confirms the Commission refusal to disclose information transmitted by a national competition authority within the European competition network (Unión de Almacenistas de Hierros de España)

172

The applicant, a professional association, requested access to the documents sent by the Spanish Competition Authority to the Commission under Article 11(4) of Regulation No 1/2003. The documents requested relate to an investigation by the Spanish authority concerning an infringement of (...)

Pascal Cardonnel Fines - Interests : The General Court of the European Union annuls the request for interests filed by the Commission against the mother society for a fine imposed on its subsidiary (Total, Elf Aquitaine)

174

In 2006, Arkema was fined 219 million euros for its role in the methacrylates cartel. The joint and several liability of Total and Elf, in their capacity as parent companies of Arkema, was set at 181 and 141 million euros respectively. Arkema promptly paid the required amount. 113 million (...)

Pascal Cardonnel Confidentiality : The General Court of the European Union confirms the Commission’s decision to publish information relating to an infringement (Akzo Nobel, Evonik Degussa)

264

Trib. EU, 28 Jan. 2015, Akzo Nobel v. Commission, Case T-345/12 and Evonik Degussa v Commission, Case T-341/12 Two judgments delivered by the Court of First Instance in January 2015 have just closed, subject to a possible appeal, a dispute between the Commission and certain members of the (...)

Pascal Cardonnel Commission’s liability : The General Court of the European Union dismisses the action brought by a cartel member against the Commission for its failure to prevent other cartel members from perpetuating the infringement (Ziegler)

266

Trib. EU, 15 Jan. 2015, Ziegler v. Commission, T-539/12 and T-150/13 At a time when the Union has just adopted a new framework to encourage private actions for compensation for damage resulting from anti-competitive practices, the Court of First Instance has dismissed an action of this type, (...)

Pascal Cardonnel ECN : The General Court of the European Union confirms the Commission’s dismissal of complaints based on prior or concurrent handling of identical complaints by a national competition authority (Si.mobil, easyJet Airline)

226

Trib. EU, 17 Dec. 2014, Si.mobil v Commission, Case T-201/11, EU:T:2014:1096; 21 Jan. 2015, easyJet Airline v Commission, Case T-355/13, EU:T:2015:36 The Court of First Instance delivered two judgments concerning the Commission’s examination of complaints already submitted to an NCA. These (...)

Pascal Cardonnel Inspection : The General Court of the European Union confirms the fine against a company for failing to submit to investigation measures targeting its email servers (Energetický a průmyslový, EP Investment Advisors)

164

After the E.On case (this Chronicle, Concurrences n° 1-2011 and No. 1-2013), this case is the second concerning the imposition of a fine for refusal to submit to an inspection but the first concerning the seizure of electronic mail. During an inspection at the premises of the Czech company EPH, (...)

Pascal Cardonnel Inspection : The General Court of the European Union validates a Commission inspection decision adopted following the closing of national proceedings brought against the same company over similar alleged infringements (Orange)

242

In the summer of 2013, the Commission carried out an inspection visit to Orange’s premises in France. This visit covered 4 sites, 18 offices and lasted 4 days, during which 11 computers, 5 smartphones, heard a witness, copied several hard disks and analysed 34 e-mails. For a cartel, such an (...)

Pascal Cardonnel Access to documents : The General Court of the European Union annuls a Commission’s decision denying access to documents relating to an economic study on payment services (MasterCard)

122

In a judgment which almost coincides with that of the Court of Justice in MasterCard and Others v Commission (C 382/12 P, EU:C:2014:2201), the Court of First Instance annuls the decision by which the Commission refused to give MasterCard access to documents relating to a study on payment (...)

Pascal Cardonnel Commitments: The General Court of European Union confirms the Commission’s decision to dismiss a complaint alleging the infringement of a commitment decision (CEEES)

121

Consensual" forms of competition law enforcement (transactions and commitments) are booming. Justified by considerations of efficiency and procedural economy, they are naturally not subject to judicial review. As such, the case which gave rise to the CEES judgment therefore departs from this (...)

Pascal Cardonnel Mergers : The General Court of the European Union considers that the protection of the decision-making process of the Commission opposes the disclosure of an intern memorandum drafted in the framework of a control procedure (Beninca)

107

This new transparency case follows the Commission’s prohibition on 1 February 2012 of the merger between Deutsche Börse and NYSE Euronext (Decision C(2012) 440 in Case COMP/M.6166 - Merger of Deutsche Börse and NYSE Euronext).). A few days before the expiry of the deadline for appealing against (...)

Pascal Cardonnel Anticompetitive practices: The General Court holds that fundamental rights do not require the Commission to obtain a court warrant before ordering an inspection (Deutsche Bahn)

184

After the judgments of 14 November 2012 in cases Nexans v Commission and Prysmian v Commission (T-135/09 and T-140/09, see this Chronicle), the Tribunal has supplemented its jurisprudence on inspection operations in a case concerning rail transport. In 2011, the Commission investigated certain (...)

Pascal Cardonnel Community interest: The General Court confirms the decision rejecting the complaints of diamond traders while limiting the power of the European Commission to compell entities located outside of the European Union to provide information (BVGD - Spira)

107

Spira v Commission, T-108/07 and T-354/08 In these cases concerning diamond distribution, the Tribunal conducted a particularly thorough review of the conditions under which the Commission disposed of complaints against certain practices of the De Beers group with respect to its suppliers. The (...)

Pascal Cardonnel Cartels : The GCEU relaxes its formal requirements concerning the admissibility of an application but, on the merits, refuses to amend the contested decision (Fluorsid and Minmet financing ; ICF)

91

and ICFv Commission, Case T-406/08 The judgments relating to the aluminium fluoride cartel are reported here in only two respects: first, as regards the formal requirements to be met by an application lodged at the Registry of the Court of First Instance and, second, as regards the conditions (...)

Pascal Cardonnel State Aid: The General Court holds as partially admissible the action of an association against a decision rejecting a complaint without launching a formal investigation (AISCAT)

154

Trib. EU, 15 January 2013, AISCAT v. Commission, Case T-182/10 This case is emblematic of admissibility issues in aid cases. On the one hand, the Court of First Instance applies the recent case-law of the Court of Justice which tends to favour the admissibility of appeals against decisions (...)

Pascal Cardonnel Access to the files: The General Court rejects as inadmissible the action for annulment brought by an undertaking against the European Commission refusal to grant access to the file to a national competition authority (Henkel)

139

Trib. UE (ord .), 7 March 2013, Henkel v. Commission, Case T-64/12 Trib. UE (ord. prés.), 23 January 2012, Henkel v. Commission, aff. T-607/11 R Must an action brought against an act which, first, does not adversely affect the applicant and, second, has lapsed, be dismissed on the ground of (...)

Pascal Cardonnel State aids: The General Court holds inadmissible the actions for annulment brought by the beneficiaries and providers of environmental aids declared compatible (Provincie Groningen)

124

Trib. UE (ord.), 19 February 2013, Provincie Groningen and Stichting Het Groninger Landschap v. Commission, cases T-15/12 and T-16/12 The Netherlands notified to the Commission a draft environmental aid scheme. The scheme consisted of a grant scheme for the purchase of land for protection by (...)

Pascal Cardonnel Cartels: The President of the General Court enjoins the European Commission to refrain from publishing a non-confidential version of an Art. 101 TFEU infringement decision (Pilkington)

182

Trib. EU (Pres. Ord.) 11March 2013, Pilkington v Commission, Case T-462/12 R The order of 11 March 2013 by which the President of the Court of First Instance of the European Union in his capacity as Judge hearing applications for interim measures ordered the Commission to refrain from (...)

Pascal Cardonnel Liability: The Court of Justice confirms the judgment of the General Court reducing the fine imposed on the parent company on the basis of the judgment reducing the fine of its subsidiary (Tomkins)

206

CJEU, 22 January 2013, Commission v. Tomkins, Case C-286/11 P By that judgment, the Court held that, in the present case, the liability of the parent company, in this case Tomkins, was purely derivative and ancillary and thus depended on that of its subsidiary Pegler, those two companies (...)

Pascal Cardonnel EFTA: The EFTA Court holds as admissible the action for annulment lodged by a competitor, relying partially on the case law of the EU courts (Den norske Forleggerforening/ASA)

126

The present case concerns the public funding of NDLA, a cooperation body between local authorities responsible for the distribution of books and digital media for schools. The European Free Trade Association (EFTA) Surveillance Authority has found, without initiating the formal investigation (...)

Pascal Cardonnel Cartels - Access do file: The General Court orders the suspension of Commission decisions disclosing certain information from the case file (Akzo Nobel, Alstom)

217

Ord. President of the Trib. EU, 16 November 2012, Akzo Nobel and others. c/ Commission, T-345/12 R, and 29 November 2012, Alstom c/ Commission, T-164/12 R) The issue of access to the evidence contained in the Commission’s file and, in particular, the leniency applicants’ statements, has just (...)

Pascal Cardonnel Anticompetitive practices - Complaint dismissal: The General Court confirms the Commission’s decision to dismiss a complaint concerning an alleged abuse of dominant position on the whiskey market (Protégé)

118

Trib. EU, 13 September 2012, Protected c/ Commission, T-119/09 The Tribunal is applying its jurisprudence on the review of dismissals of complaints in a case involving the allegation of abuse of dominance. In 2006, Protégé International Ltd. complained to the Commission about the existence of (...)

Pascal Cardonnel State aids: The General Court rules inadmissible the actions for annulment brought by the beneficiaries of Dutch State aids and their competitors (Vesteda Groep ; IVBN ; Woonlinie ; Woonpunt)

136

Trib. EU Ord. of 12 June 2012, Vesteda Groep v. Commission, T-206/10 Trib. EU , IVBN/Commission, 13.07.12, T-201/10 Trib. UE , Woonlinie and Others v Commission, T 202/10 and Woonpunt and Others v Commission, T-203/10. The vocabulary of State aid law practitioners has been enriched with a (...)

Pascal Cardonnel Right to examine witnesses: The General Court rules that the right of the accused to examine witnesses does not apply in competition proceedings (Coats Holdings ; Berning & Söhne ; YKK e.a.)

173

Trib. EU, 27 June 2012, Coats Holdings v Commission, Case T-439/07, "Closures". Trib. EU, 27 June 2012, Berning & Söhne v Commission, Case T-445/07, "Closures". Trib. EU, 27 June 2012, YKK and Others v Commission, Case T-448/07, "Closures". Three judgments delivered by the Court of First (...)

Christophe Lemaire, Pascal Cardonnel Leniency – Private action: The European Competition Network adopts a “resolution” aiming to protect leniency materials in the context of damages actions “Protection of leniency material in the context of civil damages actions”

370

ECN, Resolution of the Meeting of Heads of the European Competition Authorities, "Protection of leniency material in the context of civil damages actions", 23 May 2012 As the debate on access to documents of competition authorities, in particular in the context of cartels detected through (...)

Pascal Cardonnel Access to file – Reg. 1049/2001: The General Court annuls the Commission decision denying access to the file to a victim of the Switchgear cartel (EnBW Energie Baden-Württemberg)

247

Trib. EU, 22 May 2012, EnBW Energie Baden-Württemberg v Commission, Case T-344/08 The EnBW ruling may have briefly delighted the proponents of transparency in competition matters before plunging them into nostalgia. The Court of First Instance annulled the refusal to disclose to a cartel victim (...)

Pascal Cardonnel Anticompetitive practices: The General Court confirms the Commission rejection of a complaint from cognac wine growers (Comité de défense de la viticulture charentaise)

122

(see also, supra, "Agreements" column, obs. Mr. Debroux) Trib. UE, 9 March 2012, Comité de défense de la viticulture charentaise v Commission, Case T-192/07 In 2003, the association of winegrowers in the Cognac region lodged a complaint with the commission. It denounced the introduction of a (...)

Pascal Cardonnel Cartel – Access to documents: The General Court annuls the Commission decision denying access to the index to the case file in “HydrogenPeroxide” (CDC HydrogenePeroxide/Commission)

360

Trib. EU, 15 December 2011, CDC HydrogenPeroxide v Commission, Case T-437/08 Can transparency and clemency go hand in hand? The Court of First Instance seems to think so; by its judgment of 15 December 2011, it annulled the decision by which the Commission refused to transmit to a third party (...)

Pascal Cardonnel Merger control – Interim relief: The President of the General Court denies suspension of the new decision validating the appointment of a new trustee in the Editions Odile Jacob case (Éditions Jacob/Commission)

251

(See also, supra, "Concentrations" column, obs. D. Berlin) Trib. UE (ord. prés.), 24 November 2011, Édition Jacob v. Commission, aff. T-471/11 R Lagardère’s acquisition of Vivendi Universal’s publishing assets has for almost eight years been the subject of a dispute between Editions Odile Jacob (...)

Pascal Cardonnel Anticompetitive practices: The General Court confirms the Commission’s decision to reject the complaints filed against the original manufacturers of inkcartridges (EFIM/Commission)

237

Trib. EU, 8 November 2011, Idromacchine and Others v Commission, Case T-88/09 The Tribunal conducts a particularly thorough review of the decision to dismiss a complaint in order to uphold it. The Commission had received several complaints alleging various practices contrary to Articles 101 (...)

Pascal Cardonnel State aids – Interim relief: The President of the General Court declares inadmissible an application for suspension of a Commission decision ordering the recovery of State aids (Rousse Industry/Commission)

195

GCEU (Pres. Ord.), 14 October 2011, Rousse Industry v. Commission, Case T-489/11 This case concerns a decision ordering the recovery of incompatible aid in the form of unpaid debts owed to the Bulgarian State by the company Rousse. Since the conditions for granting emergency measures are very (...)

Pascal Cardonnel Merger control – Standing: The General Court holds inadmissible an action lodged by a consumer association against a decision authorising a merger and refusing to refer it to a national competition authority (Association belge des consommateurs test-achats/Commission)

231

GCEU, 12 October 2011, Association belge des consommateurs test-achats v. Commission, case T-224/10 The Belgian consumer association Test-achats had learned in 2009 of EDF’s planned takeover of Segebel. The latter was the second operator on the electricity market in Belgium, behind Electrabel, (...)

Pascal Cardonnel State aids – Non contractual liability: The General Court orders the Commission to indemnify a company for having disclosed, in a decision relating to State aid, certain confidential information harmful to its reputation (Idromacchine/Commission)

220

GCEU, 8 November 2011, Idromacchine a.o. v. Commission, Case T-88/09 A delay in the construction of a chemical tanker had led Italy to request the extension of a shipbuilding aid programme. The Commission granted the request, pointing in its decision to the delay attributable to the supplier (...)

Pascal Cardonnel State aids – Admissibility: The General Court rejects as inadmissible an action for annulment against a decision to initiate a formal investigation against State measures already subject to a prior investigation (Deutsche Post/Commission)

228

GCEU, 8 December 2011, Deutsche Post v. Commission, Case T-296/09 Since it was launched in 1989, the reorganisation of the German Post Office has led to an arm wrestling between the private transport companies (UPS and TNT) and Deutsche Post over the existence of abusive practices and state (...)

Pascal Cardonnel State aids: The General Court declares the action of a competitor of State aid beneficiary inadmissible due to lack of evidence of adverse effect (Phoenix-Reisen and DRV)

176

Trib. UE (ord.), 11 January 2012, Phoenix-Reisen and DRV v. Commission, Case T-58/10 The city of Amsterdam is planning to invest 42 million euros in the expansion of its Sports Palace, a complex with a large capacity for concerts and other events. The Dutch authorities notified the project to (...)

Pascal Cardonnel State aids: The General Court declares inadmissible an action for annulment and for failure to act brought by the grantor of an alleged State aid against a Commission decision dismissing its complaint (Neubrandenburger Wohnungsgesellschaft)

171

Trib. UE (ord.), 9 January 2012, Neubrandenburger Wohnungsgesellschaft v Commission, Case T-407/09 The most fertile ground for questions of admissibility of State aid appeals is the standing of third parties to the procedure (beneficiary, competitors, associations, trade unions). Fewer cases (...)

Pascal Cardonnel Art. 6, § 1 CEDH: The ECHR rules on standard of judicial review on cartel decisions adopted by national competition authorities (Menarini Diagnostics/Italy)

1525

EDH Court, 27 September 2011, Menarini Diagnostics v. Italy, no. 43509/08 Menarini is an Italian company which was fined EUR 6 million in 2003 by the Autorità Garante della Concorrenza e del Mercato for participating in a cartel prohibited by national competition law. In an action against that (...)

Pascal Cardonnel State aids: The General Court rules that an applicant has no more legal interest in securing the annulment of a decision to take no further action on a complaint when the Commission decides to open the formal investigation procedure (Athinaïki Techniki)

309

Trib. EU (ord.), 22 September 2011, Athinaiki Techniki v Commission, Case T-94/05 RENV II The judicial odyssey that has seen the Greek company Athinaiki Techniki oppose the Commission since 2005 has just ended with the dismissal of the case. The company had denounced to the Commission the (...)

Pascal Cardonnel Action for annulment – Locus standi: The General Court applies the standing criteria under Art 263(4) TFEU in an action for annulment of a normative act (Inuit Tapiriit Kanatami)

654

Trib. EU (ord.), 6 September 2011, Inuit Tapiriit Kanatami and Others v. Parliament and Council, Case T-18/10 After the Etimine and Norilsk Nickel cases (orders of the Tribunal of 7 September 2010, T-532/08 and T-539/08, see this Chronicle, Concurrences n° 4-2010) in which the Court of First (...)

Pascal Cardonnel Interim relief: The President of General Court dismisses six requests for interim relief (DTS Distribuidora de Televisión Digital, Eurallumina, Emme, Fapricela, Cemex, Cementos Portland Valderrivas)

472

Trib. UE (ord. prés.), 9 June 2011, DTS Distribuidora de Televisión Digital v Commission, Case T-533/10 R Trib. EU (Pres. Ord.), 10 June 2011, Eurallumina v. Commission, Case T-207/07 R Trib. UE (ord. prés.), 12 July 2011, Emme v. Commission, aff. T-422/10 R Trib. UE (ord. prés.), 15 July 2011, (...)

Pascal Cardonnel Cartels – Participation to the infringement: The General Court specifies standard of proof and engages in thorough review of evidence adduced by the Commission (Viega, Legris Industries, Comap, IMI, Kaimer, FRA.BO, Tomkins, IBP, Aalberts Industries, Pegler)

777

Trib. EU, 24 March 2011, Viega v Commission, Case T-375/06, "Fittings". Trib. UE, 24 March 2011, Legris Industries v. Commission, Case T-376/06, "Fittings". Trib. EU, 24 March 2011, Comap v Commission, Case T-377/06, "Fittings". Trib. EU, 24 March 2011, IMI and Others v Commission, Case (...)

Pascal Cardonnel Cartel – Fines: The General Court spells out joint and several liability regime for cartel fines (Siemens, Areva, Alstom, VA Tech Transmission & Distribution and Nuova Magrini Galileo)

788

Trib. UE, 3 March 2011, Areva and Others v Commission, cases T-117/07 and T-121/07, "Gas Insulated Switchgear". Trib. UE, 3 March 2011, Siemens and VA Tech Transmission & Distribution v Commission, "Gas Insulated Switchgear", cases T-122/07 to T-124/07 (See also, supra, "Agreements" (...)

Pascal Cardonnel State aids – Interim relief: The president of the General Court withdraws prior order suspending the implementation of a Commission decision authorizing State aid to Spanish power plants using local coal (Endesa and Endesa Generación)

570

GCEU (ord. prés.), 17 February 2011, Endesa and Endesa Generación v. Commission, case T-490/10 R While competitors of the beneficiaries of aid schemes frequently see their appeals against decisions of non-objection being broken on the admissibility hurdle, two Spanish companies have managed to (...)

Pascal Cardonnel Internal market in natural gas: The General Court rules that a Commission request that a national energy regulator amends a derogation granted pursuant to Art. 22 of Directive 2003/55 cannot be subject to an action for annulment. (Concord Power Nordal ; RWE Transgas)

743

UECG (ordained), 24 November 2010, Concord Power Nordal v. Commission, Case T-317/09 GCEU (ord.), 24 November 2010, RWE Transgas v. Commission, Case T-381/09 Very briefly, two orders granting the objections of inadmissibility raised by the Commission in actions for annulment of letters (...)

Pascal Cardonnel Decision ordering an inspection : The GCEU dismisses the actions for annulment against Commission decisions ordering an inspection in the bio-medical analysis services sector (CNOP and CCG ; Biocaps)

588

GCEU, 26 October 2010, CNOP and CCG v. Commission, case T-23/09 GCEU (ord.), 16 June 2010, Biocaps v. Commission, Case T-24/09 Appeals against decisions on the opening and conduct of inspections are increasing. In addition to the seal-breaking case previously examined, we note the judgment of (...)

Pascal Cardonnel State Aid - Admissibility: The General Court holds that being the main competitor of the beneficiary of State aid measures is not sufficient to confer standing (TF1)

1088

Trib. UE, 13 September 2010, TF1 v Commission, Case T-193/06 The French support measures for audiovisual and film production have given rise to several Commission decisions under the State aid control rules. In the case which gave rise to the judgment of 13 September 2010, TF1 contested the (...)

Pascal Cardonnel Admissibility - Art. 263(4 )TFEU: The General Court rules that new admissibility criteria do not apply to actions lodged prior to the entry into force of the Lisbon Treaty (Norilsk Nickel Harjavalta and Umicore ; Etimine and Etiproducts)

2427

GCEU (ord.), 7 September 2010, Norilsk Nickel Harjavalta and Umicore v. Commission, Case T-532/08 GCEU (ord.), 7 September 2010, Etimine and Etiproducts v. Commission, Case T-539/08 The Treaty of Lisbon has amended certain conditions for the admissibility of actions for annulment by (...)

Pascal Cardonnel Merger control - Article 21 Reg. 139/2004: The General Court rules that following the withdrawal of a planned merger, the Commission lacks competence to rule on Member State’s public interest under Art. 21 procedure Reg. 139/2004 (Schemaventotto)

1234

Trib. UE (ord.), 2 September 2010, Schemaventotto v. Commission, Case T-58/09 Ruling by way of order on a plea of inadmissibility, the Court of First Instance dismissed as inadmissible the action brought by an Italian undertaking against a Commission decision concerning the application of (...)

Pascal Cardonnel Adoption of a new decision following an annulment: The General Court clarifies conditions under which the EU Commission may adopt a new decision following an annulment by the EU Courts (Imperial Chemical Industries)

1147

Trib. EU, 25 June 2010, Imperial Chemical Industries v. Commission, Case T-66/01 On 25 June 2010, the Tribunal delivered its judgment in the Soda Ash case. This judgment was awaited: the facts alleged against ICI for abuse of a dominant position dated back to the period between 1983 and 1990. (...)

Pascal Cardonnel Annulation - Refusal to get access to documents: The General Court annuls European Commission refusal to get access to documents relating to a concentration (Éditions Odile Jacob)

1221

Trib. UE, 9 June 2010, Éditions Odile Jacob v Commission, Case T-237/05 This case concerns two requests for access to several sets of documents relating to a merger between Lagardère and Vivendi Universal. This operation was declared compatible, subject to conditions, by the Commission on 7 (...)

Pascal Cardonnel Defect of interest to act: The General Court rejects as admissible the actions lodged by beneficiaries of Belgian tax scheme in favour of coordination centers (Carrefour ; Forum 187)

2017

Trib. UE, 18 March 2010, Centre de coordination Carrefour v Commission, Case T-94/08 Trib. EU, 18 March 2010, Forum 187 v Commission, Case T-189/08 It is on the ground of legal interest in bringing proceedings that the Court of First Instance dismissed as inadmissible the actions brought by (...)

Pascal Cardonnel Inadmissible action against a decision concerning existing aid: The EFTA Court rejects as inadmissible an action against a decision concerning existing aid (Magasin- og Ukepresseforeningen)

1597

EFTA Court, 30 March 2010, Magasin- og Ukepresseforeningen v EFTA Surveillance Authority, Case E-6/09 The EFTA Court agrees with the interpretation of Article 108(1) TFEU and Regulation 659/1999 that the rejection of a complaint concerning existing aid is not subject to appeal (Judgment of the (...)

Pascal Cardonnel Antitrust proceedings and setting out guidelines: The European Commission publishes three guidance papers explaining best practices for antitrust proceedings and setting out guidelines on the role of hearing officers

1813

Eur. Comm, 6 January 2010, Public consultations: Best practices in antitrust proceedings and submission of economic evidence; Hearing Officers’ guidance paper On 6 January 2010, the Commission published on its website three documents on improving the transparency and predictability of (...)

Pascal Cardonnel Bifurcated test: The CFI applies the bifurcated test to determine the standing of third parties challenging decisions not to launch an Art. 88§2 investigation (Scheucher-Fleisch ; Deltalinqs et SVZ)

2108

CFI, 18 November 2009, Scheucher-Fleisch and Others v Commission, Case T-375/04. Trib. EU (ord.), 9 December 2009, Deltalinqs and SVZ v Commission, Case T-481/07 These two decisions illustrate the pitfalls and difficulties of handling actions for annulment by third parties against Commission (...)

Pascal Cardonnel Undertaking/commitment - Appeal: The CFI holds that the EC Commission’s interpretation of the terms of an undertaking cannot be subject to an action for annulment (E.ON)

1766

IFC, 2 September 2009, E.ON v. Commission, Case T-57/07 The concentration regulation seeks to prevent rather than cure. In the action for annulment (Article 230(4) EC), the exact opposite is true. The inadmissibility order E.ON v Commission demonstrates this. The Commission has declared (...)

Pascal Cardonnel Maladministration of the survey: The European ombudsman holds that failure to include in the investigation file minutes from a meeting with a third party constitutes an instance of maladministration (Intel)

2219

European ombudsman, decision on complaint 1935/2008/FOR (confidential) against the European Commission, Intel case Although not covered by Community case law on procedural matters, the European Ombudsman’s decision on the conduct of the Article 82 proceedings against Intel is noteworthy. (...)

Pascal Cardonnel Right to be heard - Res judicata: The CFI annuls an European Commission decision for violation of the right to be heard without it constituting an acquittal (ThyssenKrupp Stainless)

2247

CFI, 1 July 2009, ThyssenKrupp Stainless v Commission, Case T 24/07. Participants in a cartel cannot escape fines for procedural reasons." This clear message from the Competition Commissioner, launched on 30 September 2009, when he announced the sanctions imposed on the members of the (...)

Pascal Cardonnel Locus standi: The CFI holds that an applicant in liquidation ceases to have an interest in an annulment proceeding against a merger control decision (Socrate - Qualcomm)

2022

CFI, 19 June 2009, Socratec v. Commission, Case T-269/03 IFC, 19 June 2009, Qualcomm v. Commission, Case T-48/04 Both judgments relate to the Commission’s 2003 decision approving the merger between DaimlerChrysler and Deutsche Telekom for the creation of a motorway toll collection system. Two (...)

Pascal Cardonnel Admissibility of an action: The CFI rules on the admissibility of an action brought by the beneficiaries of fiscal measures against a Commission decision declaring such measures incompatible and ordering that the aid be recovered (Confservizi - ACEA - AMGA - AEM - Acegas - ASM Brescia)

2209

CFI, 11 June 2009, Confservizi v Commission, Case T-292/02 CFI, 11 June 2009, ACEA v Commission, Case T-297/02 CFI, 11 June 2009, AMGA v Commission, Case T-300/02 CFI, 11 June 2009, AEM v Commission, Case T-301/02 CFI, 11 June 2009, Acegas v Commission, Case T-309/02 CFI, 11 June 2009, ASM (...)

Pascal Cardonnel Rejection of a complaint: The CFI rules that rejection by the Commission of a complaint concerning an existing State aid cannot be subject to an action for annulment (NDSHT)

1946

CFI, 9 June 2009, NDSHT v Commission, Case T-152/06 The background to this dispute was a number of measures granted by the City of Stockholm before Sweden’s accession in 1995. A competitor had lodged a complaint with the Commission alleging that these measures were illegal and incompatible with (...)

Pascal Cardonnel ECSC: The CFI annuls for the second time the European Commission’s decision in the Steel Beams case on account of the expiration of the statute of limitation (ArcelorMittal Luxembourg)

2464

Les opinions ici exprimées n’engagent que leur auteur et non l’institution à laquelle il appartient. CFI, 31 March 2009, ArcelorMittal Luxembourg and Others v Commission, Case T-405/06. This case mainly raises three procedural issues: (1.) the succession of the ECSC and EC Treaties, (2.) the (...)

Pascal Cardonnel Evidence - Admissibility: The CFI rejects as inadmissible an expert report adduced for the purpose of challenging the validity of a Commission decision relating to State aid (Componenta Oyj)

2773

CFI, 18 December 2008, Componenta Oyj v. Commission, Case T-455/05 It is a rule of litigation that the legality of a decision must be assessed on the basis of the information available to the Commission at the time it adopted it (see, for example, ECJ, 10 July 1986, Belgium v Commission, (...)

Pascal Cardonnel Locus standi - State aid: The CFI holds that companies competing against beneficiaries of State aid face restrictive locus standi and judicial review criteria (Kronoply Kronotex)

2788

CFI, 10 December 2008, Kronoply and Kronotex v Commission, Case T-388/02 In response to criticisms of the doctrine and invitations from several Advocates-General, the case law on the admissibility of appeals against Commission decisions on State aid seems, for some time now, to have been (...)

Pascal Cardonnel Locus standi - State aid: The CFI recognizes standing of beneficiaries of State aid scheme to bring an action against a Commission decision declaring aid incompatible and ordering its recovery (Hôtel Cipriani)

2784

CFI, 28 November 2008, Hotel Cipriani a.o. v. Commission, joined cases T-254/00, T-270/00 and T-277/00 The Commission frequently pleads against the admissibility of actions brought by individuals against its decisions with regard to general aid schemes, seeking to see firmly established, (...)

Pascal Cardonnel Standus loci - State aid: The CFI clarifies conditions under which private litigant has sufficient interest in bringing an action against a Commission decision declaring State aid partially incompatible (TV2/Danmark)

2932

CFI, 22 October 2008, TV2/Danmark v Commission, Case T-309/04. From a procedural point of view, the TV2 case will attract attention for the clarifications made with regard to admissibility and, more particularly, the notion of interest in bringing proceedings. For the general presentation of (...)

Pascal Cardonnel Statutory limitation - Reasonable time limit: The CFI clarifies relationship between statutory limitation and the Commission’s duty to conclude investigations within a reasonable time (Compagnie maritime belge)

4555

CFI, 18 June 2008, Hoechst v Commission, Case T-410/03, "Sorbates". CFI, 1 July 2008, Compagnie maritime belge (CMB) v Commission, Case T-276/04 Two judgments clarify the relationship between, on the one hand, the limitation rules arising from Regulation No 2988/74 and, on the other hand, the (...)

Pascal Cardonnel Merger - Interim measures: The CFI rules that the possibility for a shareholder to exercise its voting rights acquired in the course of a failed bid, in a manner detrimental to the interest of the target company, does not justify the granting of emergency relief (Aer Lingus)

3417

CFI (Pres. Order), 18 March 2008, Aer Lingus v. Commission, Case T-411/07 R Referral orders in merger control are rare. The one issued following the proposed Ryanair/Aer Lingus merger calls for several observations. After the failure of its takeover bid following the prohibition decision (...)

Pascal Cardonnel Interlocutory measures: The CFI rules that, even bankrupt, an applicant must establish more than mere financial harm in order to obtain the suspension of a State aid recovery order (Huta Buczek/Commission)

3645

CFI (Pres. Order), 14 March 2008, Buczek Automotive v Commission, Case T-1/08 R CFI (Pres. Order), 14 March 2008, Huta Buczek v. Commission, Case T-440/07 R It is settled case-law that only in very exceptional circumstances can financial damage justify the granting of provisional measures. The (...)

Pascal Cardonnel Presumption of innocence: The CFI rules that the presumption of innocence prevents the Commission from disclosing any information relating to an infringement allegedly committed by an undertaking, the responsibility of which has not been formally established by the Commission (Pergan - Peroxydes organic cartel)

3836

CFI, 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission, Case T-474/04. The various incentives for reparation actions by cartel victims deserve to be highlighted in the litigation relating to the disclosure of information gathered in the framework of infringement (...)

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