Case Notes
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1177/1023263X1302000106 |
| Subject Matter | Case Notes |
20 MJ 1 (2013) 113
CASE NOTES
Right of the European Union to claim compensation before a national court against
the member of a cartel: Ca se C-199/11Europe se Gem eensc hap v. OTIS N V and O thers,
Judgment of 6November 2012, not yet reported
Damiano Canapa and Patricia Hager*
§1. INTRODUCTION
On 6November 2012, the Court of Justice of the European Union (CJEU) decided in
Case C-199/11 that the European Commission (herea er ‘Commission’) is allowed to
bring an action before a national court for compensation for loss against the members
of a cartel on behalf of t he European Union (herea er ‘EU’). Indeed, the main nding of
this judgment is that t he EU has the ability to claim compensation for the har m su ered
where there is a causal relationship bet ween that harm and an agreement or practice t hat
is prohibited under Article101 TFEU.1
Due to the particularity of the party to the procedure – id est, the Commission is
one of the parties to the damage procedure, while the damage procedure is based on a
decision of the Commission that was prev iously taken in an administrat ive procedure –
it is essential that t he fundamental rights th at govern any proceedings are respected. is
concerns in part icular Article47 of the Char ter of Fundamental Rights of the Europea n
Union, on the right to an e ective remedy and to a fair trial.In this regard, the CJEU
held, in an exhaustive manner, (1) whether the Commission can be seen as judge and
party and (2) if the principle of equality of arms between the parties is violated. As to
the rst point, the CJEU states that it is fundamental that a Court that has full power
of jurisdiction can review the administrative decision of the Commission, prohibiting
the agreement or practice under Article101 TFEU. As to the second point, the Court
states that the principle of equality of arms has not been violated due to the numerous
safeguards provided by European law in order to ensure that this principle is observed.
ese sa feguards will be ana lysed later.
* Damiano Ca napa, LL.M. (Bruges), Resea rch Assistant (University of Zur ich), Lawyer; Patricia Hager,
MLaw, Research Ass istant (University of Zurich). e authors kindly t hank Anna Eckert-C entowska
and Adam Czewoja S heikh for their li nguistic revie w.
1 Formerly Artic le81 EC.
To continue reading
Request your trial