Memorandum by the Competition Commission
OVERVIEW
The Competition Commission (CC) understands
some of the concerns expressed by the CBI in relation to the timeliness
of judicial review by the CFI of merger decisions by the European
Commission. It also respects and recognises the efforts already
made by the CFI to provide effective and timely decisions in such
cases. The CC's experience as a UK competition authority subject
to a process of judicial review by the Competition Appeal Tribunal
(CAT) is that, with merger control cases, speedy decisions are
both attainable and useful and that the CAT's procedures appear,
at least in the CC's experience, capable of delivering such decisions.
It may be that there are aspects of the CAT's practices which
would be of use to the CFI, although the CAT's procedures in themselves
are based in part on CFI procedures. We appreciate that one difficulty
for the CFI is in providing translation from the language of the
case into its current working language of French and vice versa.
Whether or not mechanisms could be devised to redress this burden
of translation, it should be noted that for as long as the working
language of the CFI itself and of the European Court of Justice
(ECJ) is French, any appeal process from a decision in a language
that is not French will involve further translation.
In summary, the CC does not consider it appropriate
to hold strong views as to the precise mechanism by which the
speed of delivery of the judicial review of merger control decisions
could be enhanced, but believes that such enhancement is a useful
objective and should be pursued. Detailed responses to the questions
raised by the Committee are provided below.
Competition Commission Response:
Inquiry into the Need for an EU Competition
Court
1. The Competition Commission (the CC) is
grateful for the opportunity to comment on matters raised by the
House of Lords Inquiry into the CBI's proposal for an EU Competition
Court.
2. We will focus our comments on the questions
raised in the Committee's call for evidence, but we believe it
may be helpful at the outset to provide some background on the
CC in order to set out our terms of reference for these comments.
BACKGROUND ON
THE CC
3. The CC conducts in-depth inquiries into
mergers, markets and the regulation of the major regulated industries.
The CC undertakes inquiries only in response to a reference made
to it by another authority (usually by the Office of Fair Trading
but, in certain circumstances, by a Minister or by the regulators
under sector specific regulation). The CC is therefore a "Phase
Two" authority for merger control and market investigation
purposes. Any person aggrieved by a decision of the CC on these
matters can apply to the Competition Appeal Tribunal (CAT) for
a review of the decision. In determining the application the CAT
must apply the same principles as would be applied by a court
on an application for judicial review. The CC also has jurisdiction
under section 173 of the Energy Act 2004 to conduct appeals in
respect of modifications to the codes covering the gas and electricity
markets.
4. The CC is not currently designated as
a national competition authority and is therefore not empowered
to apply Articles 81 and 82 EC other than to the extent that the
CC has an obligation not to act in any way inconsistently with
Articles 81 and 82 EC. Nor does the CC have jurisdiction to consider
State aid cases.
5. We will thus limit our comments here
to points on which we have relevant experience in the context
of our role as a UK competition and regulatory authority and an
appeal body under the energy codes, but with particular reference
to our role in merger control.
6. The CC's experience as a competition
authority subject to a process of judicial review by the CAT is
that, particularly with merger control cases, speedy decisions
are both attainable and useful. At the same time, we recognise
that enhancing the speediness of review is not without resource
implications in that shortening deadlines places burdens both
on the authorities and on the parties.
QUESTION 1. NEED
FOR ACTION
AT UNION
LEVEL
In your experience, is there a need for an EU
Competition Court distinct from the Court of First Instance (CFI)?
In what sort of cases would a Competition Court be useful?
7. The CC has no strong views on whether
there is a need for an EU Competition Court distinct from the
CFI. Nevertheless, it recognises that, particularly in the area
of merger control, many consider that the effectiveness of the
CFI's current system of judicial review is compromised by the
current speed of its review. Judicial review of competition authority
decisions is an essential part of the system of administrative
and judicial checks and balances and protects the "human
rights" of those subject to the decision-making process.
The efficacy of a merger control system, in particular, rests
to a significant degree on the effectiveness and timeliness of
judicial review. The introduction of the expedited (or "fast-track")
procedure in February 2001 has gone some way to providing a means
of speeding up the review process, in large part through the adoption
of measures that introduce procedural flexibility. But the relevant
questions are whether the review timetable under that procedure
can be shortened even further and how the timeliness of reviews
for non-expedited cases might be improved.
8. A specialist competition court, like
the UK's CAT with members who have competition law and other relevant
expertise, may assist in truncating the review process of cases
further, given the members' familiarity and experience in examining
the complex economic assessments undertaken in this area of law.
However, the CFI has shown itself effective in its ability to
scrutinise Commission competition law decisions, so it is not
clear that a specialist competition court, at least from the perspective
of relevant expertise, is needed. Indeed, one of the main reasons
for the establishment of the CFI was to have a first-instance
court separate from the European Court of Justice (ECJ) that could
rigorously review complex technical and economic assessments in
the area of competition law. [4]
9. The EC competition law enforcement system
contains due process features of two types: internal checks and
balances over the Commission's own administrative decision-making
process and external checks and balances in the form of judicial
review by the Community Courts. The President of the Court of
First Instance, Bo Vesterdorf, has noted that "[n]o amount
of such internal checks and balances can provide the same amount
of scrutiny as comprehensive review by an independent, external
body." Yet in evaluating the effectiveness of the Community
Courts, President Vesterdorf has critically observed: "the
main problem with our current system of judicial review is not
its effectiveness in terms of how closely the Courts scrutinize
the Commission's decision, but in terms of the speed of the review."
[5]The
European Commission, in its Green Paper on the review of the EC
Merger Control Regulation, identified a negative consequence of
this: "The length of EC court proceedings is deemed to discourage
litigation and therefore to eliminate the constraints imposed
upon administrative action by the threat of judicial control."
[6]
10. In merger control cases, the timescales
for CFI decisions can, in practice, render judicial review ineffective
since commercial realities may make it impossible to revive a
merger even if a prohibition decision by the Commission is annulled
by the Court and subsequently overturned by the Commission. It
may be argued that judicial review of Article 81 and 82 decisions
is not as time critical, particularly in cases that involve past
events or conduct which has come to an end. Where the case involves
ongoing commercial strategies and policies, the possibility of
interim measures suspending the Commission's remedial orders may
relieve some of the urgency. However, in general competition law
cases (such as Microsoft), the Commission and interested parties
may consider that a need for speedy adjudication remains. Nevertheless,
the priority seems to be on shortening the judicial review process
in relation to mergers. The UK system appears to recognise this
relative urgency in merger cases in part by requiring that an
appeal of a merger decision under the Enterprise Act 2002 be brought
no later than four weeks after notification of the disputed decision
as opposed to two months in other cases.
11. President Vesterdorf has observed that:
"It is true that certain cases, in particular merger cases,
require speedier adjudication because there is a real urgency
to have the matter conclusively brought to an end within a short
period of time. However, it should be kept in mind that the number
of such cases remains particularly small and that the CFI has
been able to adjudicate under the expedited procedure whenever
necessary." More than 70 per cent of expedited procedure
cases have been merger cases, according to estimates from President
Vesterdorf, so the CFI is already giving priority to such cases.
[7]
12. In terms of the timing of reviews, the
Community Courts Annual Report for 2005 shows that the average
duration of proceedings in 2005 was 25.6 months (compared with
22.6 months in 2004). The CFI disposed of three cases using the
expedited procedure in 2005, one involving the Commission's prohibition
of the proposed acquisition of Gas de Portugal by EDP-Energias
de Portugal and Eni Portugal Investment, [8]and
each of those cases was decided within seven months. Tetra Laval/Sidel
and Schneider/Legrand were two earlier cases reviewed under the
fast-track procedure. Despite raising complex and controversial
questions of law, each of these cases was decided by the CFI within
10 months. By contrast, the recent Impala case, [9]where
the CFI annulled the European Commission's clearance of Sony/Bertlesmann,
took 19 months to complete even under the fast-track procedure.
13. Even accepting that the length of the
Impala review may be exceptional, the expedited procedure in itself
does not represent a solution to problems of timeliness of CFI
reviews. From the applicant's perspective, the expedited procedure
may reduce the review period but it does so at the cost of limiting
the number of pleas possible; it also may not be a possible option
for other reasons in many cases. From the Court's perspective,
President Vesterdorf has commented that the record time in which
EDP was heard is not likely to be replicated often nor reduced
in future expedited cases. Furthermore, he and other CFI judges
have noted that expedited merger cases are highly resource intensive.
Judges and their support staff must be more or less dedicated
to that single case, rather than handling several cases at a time
as they would normally. Moreover, whereas cases are generally
heard in the order in which they are lodged, such expedited cases
are given priority and "jump the queue", thereby diverting
attention from previously lodged (and often far more complex)
cases that would otherwise take precedence. [10]
14. In the CC's view, increasing the speed
of review of competition cases, and in particular merger control
decisions is a desirable objective. The introduction of the fast-track
procedure and steps taken by the CFI to increase the flexibility
and effectiveness of this procedure have proved extremely helpful
in this regard. Nevertheless, further measures, as the CFI itself
recognises, could be taken if possible to increase the speed of
adjudication and thus the effectiveness of the CFI's judicial
review in non-expedited cases as well. Even if the CFI pursues
the formation of a separate EC Competition Court, it would still
be desirable to consider possible reforms to the current CFI rules
and procedures that may assist in speeding up its review process.
This is discussed further in response to Question 2.
QUESTION 2. REFORM
OF THE
CFI
Would reform of the rules and procedures of the
CFI be preferable to the establishment of a new court? If so,
what changes should be made?
15. The CC is confident that the CFI will
keep under review possible reforms of the CFI's rules and procedures.
Possible reforms are likely to be desirable regardless of whether
or not a new court is established.
16. In our comments here on procedural issues,
we draw on our experience in two cases[11]
before the UK's CAT. Whilst the CAT's Rules of Procedure are in
part based on those of the CFI, the CAT's practices may provide
some "best practice" guidance on procedural practices
to follow in order to increase the speed of the CFI's review.
Our experience with the CAT suggests that effective case management
practices coupled with strict timetable deadlines and a flexible
process can assist in reaching a judgment in a timely fashion.
CFI PROCEDURAL ISSUES
17. In its 2005 Annual Report, the CFI notes
that the establishment of the Civil Service Tribunal provided
an opportunity for the CFI to amend its Rules of Procedure and
"to clarify the scope or adapt" provisions of the Rules,
"in particular by increasing the flexibility of the expedited
procedure." [12]The
CFI regularly updates its Rules and we commend the CFI for continually
working to enhance the flexibility and efficiency of its procedures;
its December 2005 amendments were the tenth set of amendments
since the first publication of the CFI Rules of Procedure in May
1991. We understand that the Court or European Commission
draws up such proposed changes and these require the support of
a qualified majority of the Council of Ministers in order to be
approved. We assume that the CFI (and the European Commission)
will continue to make good use of this mechanism to introduce
further measures that can improve the flexibility and efficiency
(and hence timeliness) of the judicial review process. Specific
Rules of Procedure and Practice Directions that the CFI has introduced
in recent years that promise to assist in this regard include
the following:
— A reduction in the number of judges
required to hear a competition case from five to three, in an
effort to shorten the average time for judicial deliberations.
— In expedited cases, dispensing with
the second set of pleadings in favour of an extended oral hearing.
Replies, rejoinders, statements of intervention and replies to
the intervention may only be lodged if the CFI so requires them.
18. The CFI's Practice Directions helpfully
advise that "in the interests both of the parties themselves
and of the proper administration of justice, pleadings must concentrate
on essential matters and be as brief as possible. Excessively
lengthy pleadings complicate consideration of the case-file and
are a prime cause of delay in the disposal of cases." [13]The
Practice Directions provide guidance on the maximum number of
pages "in principle" for the application, defence, replies,
rejoinders, inadmissibility objections, and statements of intervention.
For expedited procedure cases, the Practice Directions recommend
that the pleadings of the requesting expedition should be confined
to a summary and annexes should be limited. The main application
should not "in principle" exceed 10-25 pages.
19. One option President Vesterdorf suggests
is that there could be a "more generalized application of
the expedited procedure to all merger prohibition cases where
parties can show urgency." [14]This
possibility seems worthy of further consideration. CFI reforms
directed at areas other than competition law, such as the removal
of civil services cases through the creation of the Civil Service
Tribunal, also may assist in alleviating the CFI's caseload and
enable the CFI to use the expedited procedure "more frequently
and effectively", particularly in merger cases. [15]
THE UK'S
COMPETITION APPEAL
TRIBUNAL
20. The CAT's Rules of Procedure are modelled
partly on the Civil Procedure Rules (CPR) and partly on the Rules
of Procedure of the CFI. The CAT notes that a central feature
of these two sets of Rules is case management by the court. The
CAT imposes tight case management practices and strict timetable
deadlines on its proceedings. In its "Guide to Proceedings",
the CAT states that "the overriding objective" of its
Rules of Procedure is "to deal with cases justly, in particular
by ensuring that parties are on an equal footing, that expense
is saved, and that appeals are dealt with expeditiously and fairly."
[16]
21. We understand the CAT's general approach
to be based on five main principles:
(i) Early disclosure in writing: "Each
party's case must be fully set out in writing as early
as possible, with supporting documents produced at the outset."
(italics added)
(ii) Active case management with its
objective "to identify and concentrate on the main issues
at as early a stage as possible, to avoid undue prolixity or delay,
and to ensure that evidence is presented in an efficient manner."
(iii) Strict timetables: The CAT will
indicate a target date for the main hearing as early as possible.
The main stages of a case and the CAT's internal planning for
it will be geared to meeting this timetable. In urgent cases,
and where appropriate, the CAT will pursue an expedited procedure.
(iv) Effective fact-finding procedures:
Where essential evidential issues cannot be satisfactorily resolved
without cross-examination, the CAT may permit oral examination
of witnesses. With expert evidence, the CAT "will expect
parties to make every effort to narrow the points at issue, and
to reach agreement where possible."
(v) Short and structured oral hearings:
Advance planning, in consultation with the parties, of the structure
of the main oral hearings "with a view to avoiding lengthy
oral argument." In accordance with established CFI practice,
this hearing normally will be conducted within short defined time
limits. [17]
22. Two CC merger control cases have been
the subject of review by the CAT: Somerfield PLC v Commission,
a case concerning the CC's final remedies (and, initially, the
CC's substantial lessening of competition (SLC) finding as well);
and Stericycle v Commission, [18]an
interim measures case. A brief chronology of the Somerfield
case, which took 4½ months to complete from the date of application
follows:
— 1 September 2005: Somerfield notified
of CC's "Report on the acquisition by Somerfield Plc of 115
stores and other assets from Wm Morrison Supermarkets plc",
which was subsequently published on 2 September 2005.
— 28 September 2005: Somerfield application
for judicial review lodged with the CAT on two grounds: the first
related to the CC's SLC finding; and the second related to the
CC's remedies. The application was lodged only just within the
statutory deadline.
— 19 October 2005: First case management
conference held. Somerfield announced that it would not pursue
the first ground of review relating to the SLC.
— 1 November 2005: Second case management
conference (prior to which Somerfield filed written submissions).
— 11 November 2005: CC filed its defence
and accompanying witness statements.
— 13 December 2005: Oral hearing.
— 13 February 2006: CAT's judgment
published.
23. Of course, unlike the CFI, the CAT does
not face translation delays as the language of the cases and of
the court is the same. The Somerfield case also was only
limited to a review of the CC's chosen remedies. Nevertheless,
the case demonstrates how the use of effective case management
conferences coupled with strict timetables and a flexible process
can assist in reaching a judgment in a timely fashion. The flexibility
of the CAT's procedures and similar case management techniques
also played an important role in Stericycle. In that case
the CC lodged a skeleton defence (accompanied by a witness statement
from the inquiry's Group chairman) on 4 September in response
to the applicants' notice of application of 31 August. The applicants
submitted a skeleton reply to the CC's defence on 5 September
in advance of a hearing on 7 September.
24. As noted in response to Question 1 above,
an appeal of a merger decision under the UK's Enterprise Act 2002
can be brought no later than four weeks after notification of
the disputed decision as opposed to two months in UK antitrust
cases. This shortened time period is particularly important in
the UK setting where many mergers are completed even prior to
an OFT or CC review. We understand that the time limit for lodging
a judicial review appeal of an European Commission decision is
two months, even in the case of mergers, and that this time limit
is set out in the EC Treaty and thereby not easily (if at all)
negotiable. Nevertheless, this possibility should not be overlooked.
LANGUAGE REGIME
OF THE
COURT
25. We fully understand the political sensitivities
associated with questions of language in the EU context. We also
realise that CFI judges are accustomed to the convention of having
French as the language of the Court and that staff resources are
geared accordingly. Nevertheless, it may be worth exploring the
extent to which there is potential scope for the Court to use
the language of the case, where practicable, rather than generally
following the convention of working in the language of the Court.
In Tetra Laval/Sidel, a case considered under the expedited
procedure, the CFI decided to work in the language of the case,
English. This, along with other measures taken to expedite the
review process, must have contributed to the speed with which
the CFI was able to reach its judgment.
26. Some have noted that one of the attractions
of a specialist Competition Court is that it will be easier to
use the language of the case in such a court rather than the language
of the Community Courts. While this may be true, it should be
noted that for as long as the working language of the CFI itself
and of the ECJ is French, any appeal process from a decision in
a language that is not French will involve further translation.
QUESTION 3. JURISDICTION
OF THE
COMPETITION COURT
The CBI has proposed that the Competition Court
be established as a "judicial panel" under Article 225a
of the EC Treaty. Do you support that proposal? If so, what "competition"
jurisdiction should it have?
Does the problem of delays only affect merger
cases? If so, should the jurisdiction be confined to merger cases?
27. The CC has no strong views on whether
a Competition Court should be established as a "judicial
panel" under Article 225a of the EC Treaty. Nevertheless,
a specialised court composed of judges with competition law expertise
would be well suited to review complex economic assessments undertaken
by the Commission in the competition law field overall in an as
efficient and expeditious manner as possible. However.
28. If it were so established, we believe
the priority should be to consider appeals from merger control
decisions. We appreciate the argument that mergers jurisdiction
alone might be insufficient to sustain a specialist panel. It
is possible, however, that this in part reflects the perceived
difficulty and delay in bringing such appeals under present arrangements.
Nevertheless, we see some sense in extending the jurisdiction
of competition cases generally.
29. Between 1989 and July 2005, the CFI
delivered only 25 merger judgments in total and there are not
more than five to six such judgments each year. By contrast, from
the time of the CFI's establishment in 1989 to July 2005, 1,168
competition cases (including State aid cases) were introduced
into the CFI. [19]At
the end of 2005, 134 (or 13 per cent) of the 1,033 cases pending
before the CFI were competition cases and 190 (or 18 per cent)
were state aid cases. [20]If
state aid cases are categorised as competition cases, then just
over 30 per cent of CFI cases are competition cases (although
the CC has no strong views on the possible inclusion of state
aid cases in the specialised court jurisdiction).
30. As noted in the response to Question
1 above, while speed of judicial review is often of the essence
with mergers, matters of commercial urgency can arise in the broader
competition law context as well. To address the need for speedy
adjudication in certain cases, an expedited procedure like that
available under Article 76a of the CFI Rules of Procedure could
be invoked. President Vesterdorf speculates that a specialised
competition tribunal also could be "endowed with greater
resources in order to deal more effectively and more expeditiously
with competition cases".[21]
Comments in Parliament made by Lord Simon of Highbury about the
formation of the CAT are relevant to this point: "There will
be a clear advantage in dealing with appeals... in a tribunal
of high status like [the CAT]—rather than a court. The procedural
rules by which the tribunal operates may be tailored to suit the
nature of the matters it will typically deal with..." [22]
QUESTION 4. COMPOSITION
OF THE
COMPETITION COURT
Article 225a TEC requires the members of judicial
panels to be chosen "from persons' whose independence is
beyond doubt and who possess the ability required for appointment
to judicial office." What qualifications should the judges
have?
31. In the UK, the CAT is headed by the
President, who is a senior legally qualified person of at least
10 years standing with "the appropriate experience and knowledge
of competition law and practice." The CAT also has a panel
of Chairmen in addition to its panel of ordinary members, who
are professionally qualified economists, accountants or have backgrounds
in business, public service or other relevant experience. The
Chairmen must be lawyers of at least seven years standing and
"appear to the Lord Chancellor to have appropriate experience
and knowledge (either of competition law and practice or any other
relevant law and practice)." [23]The
judges of the Chancery Division of the High Court are also denominated
as Chairmen. We would expect the judges in a Competition Court
to have a similar level of expertise to the President and Chairmen
of the CAT and for cases to be heard by a combination of members
with an optimum mix of appeal court and competition law expertise.
How should they be appointed? Is there a case
for national competition judges being seconded ad hoc to the Competition
Court?
32. Article 225a specifies that members
of the judicial panels shall be appointed by the Council, acting
unanimously. It may be sensible to have an appropriately qualified
advisory committee composed, say, of existing EEA competition
judges, who could make recommendations to the Council about particular
candidates.
33. There could be a case for national competition
judges to be seconded ad hoc to any Competition Court,
but we have no strong views on this. Such secondments could possibly
serve as a means of fostering uniformity and consistency in the
application of Community competition law across Member States
by stimulating exchange of ideas and experience between the Community
courts and individual Member State courts. A mixture of permanent
judges and ad hoc judges with experience in the competition
law field could be a way of ensuring an optimum mix of appeal
court and competition law expertise.
If Article 225a excludes the appointment of, for
example, economists and accountants, how could their assistance
be obtained? Is there a case for their appointment as "assistant
rapporteurs" as envisaged for scientists/technologists in
the proposed EU Patent Court?
34. We understand that the EU Patent Court
proposal envisages that judges will have access to specific technical
expertise provided by assistant rapporteurs, who will be
appointed by the Council on the recommendations of an advisory
committee.
35. The CAT makes use of such experts through
their appointment as ordinary members. In the absence of this
possibility in the EU context, such experts could provide valuable
assistance in reviewing the Commission's complex economic assessments.
This is particularly true in light of the ECJ's comments in Tetra
Laval that the Commission's margin of discretion "does
not mean that the Community Courts must refrain from reviewing
the Commission's interpretation of information of an economic
nature... Not only must the Community courts, inter alia,
establish whether the evidence relied on is factually accurate,
reliable and consistent but also whether the evidence contains
all the information which must be taken into account in order
to assess a complex situation and whether it is capable of substantiating
the conclusions drawn from it." [24]
36. Some may argue that given that the Community
Courts apply a manifest error standard, specialist expertise from,
say, economists and accountants, would not be necessary as a full
review on the merits is not undertaken. However, for similar reasons
as those that apply in relation to the qualifications of judges
for such a court, we would not be opposed to the appointment of
economists, accountants and other relevant non-legal competition
experts as assistant rapporteurs but believe that this
proposal would need further elaboration before we could take a
final view.
QUESTION 5. APPEALS
FROM THE
COMPETITION COURT
Article 225a TEC provides that decisions given
by judicial panels may be subject to a right of appeal on points
of law or, when provided for in the decision establishing the
panel, a right of appeal also on matters of fact, before the CFI.
Decisions of the CFI would "exceptionally" be subject
to review by the Court of Justice (Article 225(2)). What should
be the jurisdiction of the CFI to hear appeals from the Competition
Court? Should there be a specialised chamber of the CFI to hear
appeals?
37. We understand that one of the reasons
for establishing judicial panels under Article 225a is to move
towards a "more coherent"[25]
pyramid structure with three levels of jurisdiction: first-instance
tribunals, appeals to the CFI and exceptional appeals to the ECJ.
Given the objective of arriving at a speedy review, the CC considers
that within such a structure decisions of any Competition Court
should be subject to a right of appeal to the CFI on points of
law only (as in the UK with appeals from the CAT to the Court
of Appeal). This would prevent a full review of a case on appeal
to the CFI.
38. A specialised chamber of the CFI to
hear appeals would be useful, but that task could be managed within
the existing CFI structure and we do not have strong views either
way.
QUESTION 6. FUTURE
ROLE OF
THE CFI
Should the CFI, freed of the burden of hearing
competition cases at first instance, be given the jurisdiction
to hear preliminary references from national courts applying Community
competition law (Article 225(3) TEC)? Should cases like Courage
Ltd v Crehan go the CFI or the ECJ?
39. The CC does not regard itself as competent
to answer this question.
3 November 2006
4 On this topic, see the comments of Advocate General
Cosmas in Masterfoods (Case C-344/98, Masterfoods and
HB v Commission [2000] ECR I-11369 at paragraph 54.) Back
5
Bo Vesterdorf, "Judicial Review in EC Competition Law: Reflections
on the Role of Community Courts in the EC System of Competition
Law Enforcement," Competition Policy International, Vol
1, No 2, Autumn 2005, pp 8 and 22. Back
6
Com (2001) 745/6, 11 December 2001, paragraph 250. Back
7
Bo Vesterdorf, p 24 and footnote 52. Back
8
Case T-87/05, EDP v Commission, judgment of 21 September
2005. Back
9
Case T-464/04, Impala v Commission, judgment of 13 July
2006. Back
10
President Vesterdorf's comments as quoted in Stephanie Bodoni,
"EU judge calls for a new merger tribunal," International
Herald Tribune, 25 October 2006; and comments from CFI judges
during the XXth FIDE Conference in London in October 2002 as recalled
in Catherine Chibnall, "Expedited Treatment of Appeals Against
EC Commission Decisions Under the EC Merger Control Regulation,"
[2002] Comp Law, pp 327-334 at p 333 and footnotes 26 and
27. Back
11
Respectively, Somerfield PLC v Commission [2006] CAT 4,
decision of 13 February 2006; and Stericycle International
LLC, Stericycle International Limited, Stericycle Technologies
Group Limited v Commission [2006] CAT 21, decision of 19 September
2006. Back
12
"Proceedings of the Court of First Instance in 2005,"
Community Courts Annual Report 2005, p 84. Back
13
[2002] OJ L87/48, 4 April 2002 at V.1, p 50. Back
14
Vesterdorf, p 26. Back
15
Ibid. Back
16
CAT, "Guide to Proceedings," October 2005, paragraph.
3.1. Back
17
Ibid, paragraph. 3.4. Back
18
Respectively, Somerfield PLC v. Commission [2006] CAT 4,
decision of 13 February 2006; and Stericycle International
LLC, Stericycle International Limited, Stericycle Technologies
Group Limited v Commission [2006] CAT 21, decision of 19 September
2006. Back
19
Bo Vesterdorf, p 24 and footnote 52. From 2000 to 2004, the number
of merger cases each year was: one in 2000, one in 2001, six in
2003, and one in 2004. Back
20
Community Courts Annual Report 2005, Table 11, p 227. Back
21
Ibid, p 25. President Vesterdorf does not, however, define
what those "greater resources" might entail in his article. Back
22
As quoted in CAT, "Guide to Proceedings", paragraph
1.5. Back
23
CAT, "Guide to Proceedings", paras 1.8-1.9 and Schedule
2, Enterprise Act 2002. Back
24
Case C-12/03 P, Commission v Tetra Laval, judgment of 15
February 2005, paragraph 39. Back
25
Bo Vesterdorf, p 25. Back
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