Select Committee on European Union Minutes of Evidence

Supplementary letter from Judge Bo Vesterdorf, President of the Court of First Instance of the European Communities, to the Rt Hon the Lord Brown of Eaton-under-Heywood, Chairman of Sub-Committee E (Law and Institutions)

  I refer to my letter of 10 October 2006 and to the meeting before the House of Lords' Sub-Committee E of 17 January 2007, in connection with the current inquiry into the need for an EU Competition Court.

  In this letter, I will provide you with a brief update, up to 31 December 2006, of some of the statistics that I have already provided you with concerning the CFI's workload, with particular emphasis on competition and merger cases. I will also provide you with some additional figures in relation to the procedural languages chosen by applicants.

1.  THE CFI'S WORKLOAD IN GENERAL AND IN COMPETITION CASES IN PARTICULAR

  In 2006, the CFI closed 436 cases, received 432 new applications and ended the year with a backlog of 1,029 pending cases.

17 JANUARY 2007

  From its establishment in 1989 up to 31 December 2006, 743 competition cases (excluding State aid cases) have been introduced before the CFI, of which 559 have been closed.

  Those 559 cases may be broken down as follows:

—    428 cases concerning the application of Article 81 EC and 65 ECSC, which have given rise to 160 appeals before the ECJ;

—    68 cases concerning the application of Article 82 EC, which have given rise to 19 appeals before the ECJ;

—    58 cases concerning merger control, which have given rise to 3 appeals before the ECJ;

—    5 cases concerning the application of the competition rules together with Articles 86, 87, or 88 EC, which have given rise to 3 appeals before the ECJ. [3]

  The table below sets out the number of competition cases introduced before and closed by the CFI in the last five years, either by judgment or order:

17 JANUARY 2007

Year	2001	2002	2003	2004	2005	2006
Cases introduced	36	62	53	36	40	81
Cases closed	27	40	37	26	37	42

  The following table states the percentage of cases introduced before the CFI in each of the last five years which were competition cases:

Year	2001	2002	2003	2004	2005	2006
Competition cases	36	62	53	36	40	81
Other cases	309	349	413	500	429	351
Total	345	411	466	536	469	4322[4]
Proportion	10,4%	15%	11%	6,7%	8,5%	18,7%

  The following table states the percentage of cases closed by the CFI in each of the last five years which were competition cases :

Year	2001	2002	2003	2004	2005	2006
Competition cases	27	40	37	26	37	42
Other cases	313	291	302	335	573	394
Total	340	331	339	361	610	4363 [5]
Proportion	7,9%	12%	11%	7%	6%	9,6%

  In purely numerical terms, the total number of competition cases (excluding State aid) closed in 2006 constituted around 10 per cent of the total number of cases closed by the CFI during that year.

  However, in terms of real workload, measured in man hours, the weight of those cases is far greater, given their complexity and volume. My personal view is that competition cases in fact represent approximately 40 per cent of the CFI's real workload.

  On 31 December 2006, 183 competition cases were pending before the CFI, which break down as follows:

—    142 Article 81 cases;

—    28 Article 82 cases;

—    13 merger control cases.

  In numerical terms, therefore, competition cases make up about 18 per cent of our total pending cases, but the real workload they represent is correspondingly higher.

2.  EXPEDITED PROCEDURE

  Between 1 February 2001 (when the expedited procedure came into force) and 31 December 2006, the CFI has dealt with:

—    204 competition cases;

—    in those cases, 21 applications for an expedited procedure have been lodged, 17 of which have been granted. [6]

3.  FOCUS ON MERGER CASES IN THE PERIOD 2001-06

  Between 1 February 2001 and 31 December 2006, 42 merger cases were introduced. In 21 of those cases the applicant lodged a request for an expedited procedure, 17 of which were granted. There are still 13 cases pending, one of which is being dealt with under the expedited procedure.

  The number of merger cases completed (which excludes the cases removed from the register following withdrawal or settlement) each year is relatively small: two in 2000, none in 2001, seven in 2002, seven in 2003, one in 2004, four in 2005, and six in 2006.

  The average length of proceedings in cases dealt with by way of the ordinary procedure, that is without expedition, is about 35 months, whereas the average length of proceedings in cases dealt with by way of the expedited procedure is about nine months (the fastest was seven months).

4.  PRELIMINARY RULINGS

  Finally, in relation to the possibility for the CFI to hear and rule upon questions referred for a preliminary ruling in the area of competition law, as it is now envisaged by Article 225 EC, the table below sets the percentage of preliminary rulings before the ECJ dealing with questions related to competition law.

Year	Total number of preliminary references	Number of competition law related preliminary rulings	Percentage
2001	237	15	6,3%
2002	216	1	0,4%
2003	210	6	2,9%
2004	249	9	3,6%
2005	221	7	3,2%

5.  LANGUAGES

—    Of the 42 merger cases introduced since the entry into force of the expedited procedure (1 February 2001), the parties' choice as to the language of the case was as follows:

EN	FR	DE	NL	ES	IT	PL
21	8	3	2	6	1	1

  English accounted for about 50 per cent of cases.

—    As regards the 21 merger cases in which the applicant applied for the expedited procedure, the choice of procedural language was as follows:

EN	FR	ES	DE	NL
12	3	4	1	1

  English accounts for about 57 per cent of cases.

—    As regards the 183 pending cases dealing with either Articles 81 and 82 EC or merger control, the choice of the language of the case was as follows:

EN	FR	DE	IT	NL	ES	EL	SV	PL
69	35	28	19	18	10	1	2	1

  English accounts for about 37.7 per cent of cases.

—    As regards the 13 pending merger cases, the choice of the language of the case was as follows:

EN	FR	DE	NL	ES	PL
5	4	1	1	1	1

  English accounted for about 38.4 per cent of cases.

—    Finally, the tables in annexe I set out the number and percentage of competition and merger cases, split by language of the case, introduced before the CFI, since its establishment in 1989.

25 January 2007

Annexe I

COMPETITION CASES INTRODUCED BEFORE THE CFI SINCE 1989

	DA		DE		EN		EL		ES		FI		FR		IT		NL		PL		PT		SV		Total
	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N
Total	4	0,6	133	17,9	261	35,1	8	1,1	31	4,4	1	0,1	172	23,2	60	8,1	67	9,0	1	0,1	4	0,5	2	0,3	743

MERGER CASES INTRODUCED BEFORE THE CFI SINCE 1989

	DA		DE		EN		EL		ES		FI		FR		IT		NL		PL		PT		SV		Total
	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N	%	N
Total			7	9,9	35	49,3			7	9,9			16	22,5	3	4,2	2	2,8	1	1,4					71

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3   The difference with respect to the letter of 10 October 2006 is due to a minor error in the classification of five competition cases. Back

4   The apparent reduction in the number of cases introduced before the CFI is misleading. In 2006, no new staff cases were introduced before the CFI at first instance, following the establishment of the Civil Service Tribunal in October 2005. Excluding staff cases and special proceedings, the number of cases introduced before the CFI increased by 33 per cent, from 291 in 2005 to 387 in 2006. The number of IP cases increased by 46 per cent, from 98 in 2005 to 143 in 2006. Cases other than staff and IP cases increased by 26 per cent, from 193 in 2005 to 244 in 2006. Back

5   The reduction in cases closed is largely explained by the transfer of staff cases to the Civil Service Tribunal. If those transferred cases are excluded, the number of cases closed in 2005 is 493. Back

6   Overall, 28 applications for expedited procedure have been granted by the CFI, out of 84 applications. Back