Select Committee on European Union Fifteenth Report

CHAPTER 7: Summary of Conclusions and Recommendations

Need for a Competition Court

190.  The duration of any challenge in a merger case is of great importance. Whether six months (the CBI's target) is sufficient to save the merger will of course depend on the particular circumstances. We are concerned that in many cases it may not suffice, but it seems clear that anything longer than six months will almost certainly prevent the merger (para 144).

191.  We do not believe that a new Court would have advantages since the number and complexity of issues in the cases it handles will be as great as those currently faced by the CFI. The CFI already has within the existing rules the capability for flexible procedures and innovation. It is clear that if the parties are prepared to restrict their pleadings to a few questions of law their case can, with the cooperation of the Commission (which appears to be generally forthcoming), be decided more quickly (para 68).

192.  We have doubts whether the creation of a new Competition Court would resolve the problem of language because of the political and practical considerations that would be involved in any change of working language. Indeed we are not convinced that in the large majority of competition cases language issues are a significant cause of delay (para 64).

193.  Creating a further level of appeal would not be desirable and might well lead to further delays (para 72).

194.  We acknowledge the important role competition policy has to play in the maintenance of an effective internal market within the Union and note the concerns raised in relation to the institutional balance and the standing of competition policy. However, we do not believe that the establishment of a new Competition Court would prejudice the balance between the Commission and the Community Courts though there would be implications for the relative competencies of the Court of First Instance, the new Court, and the Court of Justice (para 78).

195.  It is highly unlikely that the Commission, which has to date been so instrumental in the application of the competition rules and the development of competition policy, would allow any devaluation of competition policy to happen. Nor do we believe the Member States, and especially the UK, would stand idly by. But there is a risk that referring mergers and other competition cases to a lower court may give rise to a perception of a devaluation of aspects of competition policy (para 79).

A Competition Court—composition and functions

196.  We agree that there are potential problems regarding the quality and appointment of judges to a new court. The recent establishment of the Civil Service Tribunal provided a useful and encouraging precedent. We are, however, very conscious that competition policy is a far more politically sensitive subject than EU staff cases. It may be that agreeing fewer judges for a Competition Court would prove to be a significant problem (para 95).

197.  It is not clear that the Treaty restricts appointment to lawyers or those legally qualified. We do not suggest that widening the range of those appointable as judges (for example, to include economists) would necessarily improve the expedition of these cases. Nor is the ability to have economists as members of a new Competition Court likely to be one of the major driving forces for such a court. But they could well contribute, hopefully without further delay, to the quality of the analysis of the evidence, review of the economic conclusions and judgments in competition and other commercial cases and their acceptance by industry (para 103).

198.  We see the obvious benefits in appointing candidates with wide linguistic abilities but are concerned that this criterion might have the effect of excluding many otherwise meritorious candidates. There may also be a danger that certain Member States would be less likely to provide a judge if too great weight is placed on knowledge of three or more core/working languages (para 105).

199.  Appeals from the Competition Court to the CFI should be limited to points of law. Any review by the ECJ of cases falling within the jurisdiction of the new court should be restricted in so far as the Treaty permits. Only cases raising issues of fundamental importance to the interpretation and application of the Community's competition rules should be capable of appeal. We are also attracted to the need for the ECJ to give leave before any appeal can be brought (paras 106, 109).

Other ways forward

200.  We do not believe it necessary to start work now on a new Competition Court. The information and suggestions put forward in our inquiry offer other, far more quickly and easily achievable, ways forward and we invite the Court and the Commission to consider those suggestions and the recommendations set out in this Report (para 84).

Specialist chambers

201.  The creation of a specialist chamber or chambers within the CFI is not an attractive option. Without more judges, it would not bring any advantage over the present arrangements and indeed could lead to a reduction in flexibility in the allocation of cases to chambers which could have unwelcome effects including possible delay. Further, in the absence of extra judges, the creation of specialist chambers would imply removing Member States' nominated judges from the general work of the Court. Even if extra judges were appointed, the majority of Member States would no longer have judges sitting on competition cases. This is unlikely to be acceptable to Member States (para 122).

More judges for the CFI

202.  Appointing more judges to sit in the CFI and increasing the number of chambers generally seems a simple and straightforward way of addressing the issue but history does not provide a helpful precedent. Indeed it demonstrates a serious political difficulty with any such proposal (para 140).

Changing CFI rules and practice

203.  Consideration should be given to allowing both courts, the ECJ and the CFI, some measure of autonomy to set their own Rules. We acknowledge that there is a political issue here and any change to the rules relating to language arrangements would still require unanimity. We find it difficult to believe that there is not a middle way, differentiating between rules whose amendment would require political endorsement and those which could be left to the Court (para 127).

204.  It is generally recognised that any change in the Court's working language (for example, from French to English) would be politically sensitive and controversial. It is a route very few witnesses chose to travel. Nor would we (para 132).

205.  Recent experience shows that there are opportunities available in the current Rules of procedure which might be better exploited. Firmer case management by judges could lead to significant time savings (paras 138, 148).

206.  The CCBE has suggested that a party should be able to launch an appeal on the basis of a summary application which would be supplemented with detailed pleadings and evidence shortly thereafter. This merits further consideration provided that there would be safeguards to avoid wasting the Court's time with speculative or unmeritorious appeals. There are clear advantages if the judge-rapporteur can take control of the procedure at the earliest opportunity (para 141).

207.  We see no reason why in an age of virtually instantaneous communication (the Court accepts service by fax or email) there remains a need for the additional ten days delai de route when lodging an appeal against a Commission decision (para 143).

208.  It has been suggested that where a third party challenges a Commission merger decision the merging parties, as interveners, should have the right to request an accelerated procedure so that the case can be decided quickly. This suggestion merits further consideration (para 149).

209.  Judgments might include shorter summaries of the arguments of the parties. This could reduce CFI's workload: there would be less to translate. This is something which we hope the Court will consider (para 151).

210.  The Court should be given the discretion, in merger cases, to take the final decision itself where, for example, there has been no substantial alteration in the circumstances nor other factor apparently requiring a fresh investigation (para 161).

Taking decision-making away from the Commission

211.  It is significant that the main thrust of the CBI proposal is not for any change in the basic system under the EC Merger Regulation. We detected no general swell of opinion in that direction, and certainly no support from the Commission or the Court. The idea of taking decision-making, even if only prohibition decisions, away from the Commission, it seems to us, is only of academic interest at the present time (para 155).

Plea-bargaining in cartel cases

212.  This is a constructive proposal on the part of the Commission and we will watch its development with interest, not least because of the concern that the rights of the parties concerned should be fully respected. But if the practical effect is to remove time-consuming cases from the Court's list then that can only be welcomed (para 164).

Transferring trade mark cases

213.  The transfer of trade mark cases could lead to a marked decrease in the CFI's workload and we encourage the Commission to give urgent consideration to this suggestion (para 173).

Preliminary reference jurisdiction

214.  We see no urgent need for the Community Courts to consider the question of conferring preliminary reference jurisdiction on the CFI in competition cases (para 188).

215.  Whether the ECJ would be more receptive to the CFI having preliminary reference jurisdiction in trade mark cases than appears to be the case in relation to competition matters needs to be explored (para 189).

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