Memorandum by MEDEF (Mouvement des Entreprises
de France)
The MEDEF welcomes this opportunity to express
its views on the need for an EU competition court.
As it is stressed in the CBI's paper, the excessive
length of the merger decisions appeal procedures is an important
flaw in the EU mergers control.
But the MEDEF expressed some doubts about the
adequacy of the proposed reform to solve that problem for the
following reasons.
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 sorts of cases would a Competition Court be useful?
Anyone proposing a change to the judicial system
needs to identify what the problem is and why the proposal would
make things better. The CBI is not criticising the CFI's specialist
expertise, and indeed the CFI is one of the most sophisticated
Competition Courts around. The only problem that the CBI identifies
is the length of time taken to review merger decisions. It's not
clear to us that having a separate Competition Court would solve
this issue.
Indeed, the CFI already uses very flexible procedures
in merger cases, and has shown its willingness to innovate in
this area. If a merger case involves only a few questions of law,
it can be decided very quickly. But the reality is that most merger
cases involve a number of heavy factual issues, and those issues
inevitably take time to process. This same reality would face
any new specialist court, and any procedural innovations it might
think of to alleviate the matter could equally well be adopted
by the CFI.
The real drivers of the duration of proceedings
are the number of factual issues under review and the intensity
of that review. We can have quicker judicial review in merger
cases today, if we are prepared to accept a more hands-off approach
from the judge. That applies whether the judge is sitting in the
CFI or in a specialist court.
Setting up a specialist Competition Court might
enable us to earmark resources and make sure they are spent only
on reducing delays in competition cases. But competition law involves
a wide spectrum of cases, many of which are as heavy-duty as merger
cases. Since it doesn't make sense to have a Court dealing only
with mergers—because the issues are inseparably linked with
the rules on restrictive agreements and abuse of dominance—even
a specialist court would be faced with the issues of internal
allocation of resources that currently affect the CFI.
Besides that, it would add on additional layer
of appeal and so would contribute to increase the delays (see
response to question 5 below).
Additionally, it should be noted that mergers
have already received very special treatment with the creation
of the expedited procedure, and this has been working quite quickly.
For instance, in the case of the EDP v The European Commission
(2005), the CFI reached a decision in seven months.
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?
It might be possible to accommodate the CBI's
concerns by altering the rules of procedure, for instance, a single
judge hearing a merger appeal. Furthermore, written procedure
could be further compressed and oral procedure lengthened. The
objective should be to have decisions given within four months
to six months at the maximum.
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?
See response to question 1 above.
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?
How should they be appointed? Is there a case for national competition
judges being seconded ad hoc to the Competition Court?
It might be worth considering a "pool"
of judges to be detached ad hoc from national competition courts.
This would allow flexibility over judicial resources. This assumes,
however, that Member States have a Court from which to offer suitable
judges, and that are a suitable number of judges with the requisite
language skills.
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?
Since the Court's role is to uphold or to annul
rather than to re-make a decision, is it necessary to provide
the Court with the same range of expertise as a decision making
body?
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?
A right of appeal on facts would be likely to
impede the utility of a Competition Court. Even appeals limited
to points of law would be an obstacle to the speedy resolution
of issues.
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 form national courts applying Community
competition law (Article 225 (3) TEC)? Should cases like Courage
Ltd v Crehan go to the CFI or the ECJ?
For consistency, it may be better for references
to be heard by the same specialist Competition Court. The Court
of First Instance could have jurisdiction to hear and determine
questions referred for a preliminary ruling under Article 234
of the EC Treaty.
However, for cases like Courage Ltd v Crehan
which require a decision of principle likely to affect the
unity or consistency of Community law, the CFI may refer the case
to the Court of Justice for a ruling. This provision is specifically
indicated in article 225 of the EC Treaty.
Finally, it is likely that the setting up of
a special Competition Court will take at least several years.
An even more ambitious reform would consist
in setting up an independent European Competition Authority which
would take the decisions at the first level. Those decisisons
would be subject to a right of appeal before the CFI.
But such a reform would take much more time
to achieve.
That is why it seems wiser, at this stage, to
privilege an improvement of the CFI's procedure.
November 2006
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