The European Commission’s margin of discretion
What is the rationale behind it, should be expanded, limited or even abandoned?
This paper deals with the Commission’s margin of discretion. More precisely its margin of discretion carrying on its duty of ensuring the application of the Union law, especially regarding competition policy and anticompetitive practices.
To begin with, it is necessary to point out what is the Commission’s role within the whole European framework, then focusing on a general overview of the European Competition Law structure in which the Commission is called to move in.
Afterwards, the exercise of its powers will be described, focusing on when it comes to complex economic and technical appraisals.
Eventually, it will be tried to figure out the rationale behind its discretionality and if it should be expanded, limited or abandoned.
In order to do so, it has been used the Traditional Legal Dogmatic Method, reporting all the rules, doctrines, judgements and legal tools in general connected to this topic – maybe sometimes over-stretching them to promote the overall objective of the Competition law itself – according to the Teleological method, which seems necessary in order to find out an adequate solution to the problem envisaged.
Moreover, because of the competition’s economic implications, during the analysis some basical economic principles will be outlined. That may be necessary to a better comprehension of the matter.
Mario Michelangelo Paolini
The European Commission’s margin of discretion.
What is the rationale behind it, should be expanded, limited or even abandoned?
SUMMARY: 1. European Commission’s role – 2. Competition framework – 3. Enforcement by the Commission – 4. CJEU “light” review – 5. EC Margin of discretion – 6. Due Process, Human rights and unlimited jurisdiction – Conclusions
1. European Commission’s role
The European Commission (EC) has been described as “the only body paid to think European”.
Indeed, unlike the other European Institutions which are highly politicized (i.e. the Council, which represents governments, and the Parliament itself, that represents citizens), the Commission acts as an independent supranational authority, separate from governments which appointed it, representing and upholding the only interest of the European Union.
Precisely, article 17(1) TEU decrees: “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end”.
In order to carry its duties out, several powers have been granted to the Commission:
-The power to propose drafts of new European legislation to Parliament and Council, a “right of initiative” that allows only the Commission to draw up proposals for European law. The Commission will propose action at European level only if it considers that a problem cannot be solved more efficiently at a national, regional or local level, according to the fundamental Subsidiarity Principle, and that’s the reason why the Commission must seek the opinion of national parliaments and government (which may lead the Commission to amend its draft) and shall consult widely, with the Economic and Social Committee and the Committs of the Regions. The Commission must then justify its final decision regarding to the principles of subsidiarity and proportionality (according to which the European measure must be reasoned, acceptable and necessary for actually achieving the objective purposed, without going beyond what is necessary to attain it).
-The power, and responsibility, for implementing the decisions of Parliament and the Council and for managing the European budget. The European Commission is commonly known as the ‘executive arm’ of the European Union, taking care , along with the Court of Auditors and under the supervision of the Parliament, that European funds are correctly spent.
-The power, and the responsibility, to enforce the European law under the control of the Court of Justice of the European Union (hereafter “the Court”).
“[Commission] shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to the treaties. It shall oversee the application of Union law under the control of the Court of Justice of the European Union”. With these two sentences article 17(1) TEU elevates the Commission at the role of ‘Guardian of the Treaties’, making it responsible for ensuring that both European primary (more specifically The Treaties) and secondary law (those emanated by European institutions, such as Regulations and Directives) are correctly applied by Member states and complied with by European citizens and companies, under the threat to be brought before the Court of Justice, under a process called ”Infringement Procedure”, which could lead to substantial penalties for the lawbreakers.
But the threat to be brought before the Courts stands also by the side of the Commission which has to respect the rights of those under investigations, otherwise it must answer to it before the Court.
-The power to represent the European Union in trade negotiations with third parties, enabling the member states to speak “with one voice” in international forums.
2. Competition framework
Digging deeply through what is our concern, we have to take a brief look to the Competition ambit in which the Commission is supposed to move. It is, in fact, in particularly called to ensure the correct application of European competitions rules, prohibiting and when necessary blocking anticompetitive practices by undertakings that may have undistorting effects on the European internal market.
The Competition policy is fundamental to guarantee one of the main aim of European Union: to create and offer an area of freedom, security and justice without internal frontiers and to create and establish an internal market representing “a highly competitive social market economy, aiming at full employment and social progress”, including a system ensuring that competition in this Internal Market is not distorted.
And what is this internal market? Article 26 (2) TFEU gives the answer: “The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”.
But to make it works, it is needed kind of a regulation that could prevent those acting in the market to abuse of their position or anyway distort the system of the fair competition, instituted thanks to the European Union. That’s what Competition law is for: to keep markets “effectively or workably”competitive and opened up to the access of whoever wants to join the market game.
Article from 101 to 109 TFEU so regulate the internal market in order to ensure an ‘undistorted competition’ system, theorized by the italian Professor Campobasso such as a “[…] Simultaneous presence on the market of a plurality of operators competing with each other to answer the demand for goods and services from the community, resulting in fragmentation of supply among several companies none of which individually can affect the price of goods sold; full mobility of factors of production that assure the ready production to market demands; corresponding full mobility of demand from consumers, who are free to direct their decisions towards products more affordable for audibility and price; the absence of barriers to let new players entry in every area of production and distribution, as well as agreements between companies operating which distorts the freedom of economic competition.” (emphasis added)
In this Perfect Competition scheme firms are not “price-makers”, they have no power to set the prices of goods and services provided, but instead they are “price-taker”, insofar they literally take the prices resulted form the market itself: it’s the market, due to the consumers demand, that fixes the prices.
So, to break it down, the purpose of Competition Law is to guarantee a plurality of operators competing in the market (fragmentation), with possibility for everyone to enter in it (absence of barriers), creating a large choice for the consumers to direct their interest to the more convenient offer (full mobility of both factors of production and of demand).
Here we come to the essential role of the Commission in the appliance and enforcement of this competition rules that, if fully observed, would put undertakings under constant pressure to offer the best possible range of goods at the best possible prices (lower prices for improved quality), because otherwise, consumers have the choice to buy what they need elsewhere.
In a situation like that, in fact, Companies may try (and actually they do try) to affect the well functioning of the market with anti-competitive behavior, which Commission has to monitor and prevent, such as:
-Restrictive agreements, like cartels or other concerted practices with whom companies agree to avoid competing with each other and try to set their own rules (art.101 TFEU)
-Abuse of a dominant position, where a strong undertaking acts as in a monopoly system trying to squeeze other firms out of the market (art.102 TFEU)
-Mergers and other concentrations that may significantly impede effective
competition (Council Regulation No 139/2003)
-State aid, when they are about to discriminate one firm rather than another (art.107 TFEU)
So, what powers does the Commission have due to its supervisory role, and how much margin of discretion does it have exercising them?
3. Enforcement by the Commission
Fundamental in this matter is the Regulation 1/2003, which replaces the previous Regulation 17/62.
First of all, it confirms, at article 1, those which are the purposes of Competition law: “1. Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which do not satisfy the conditions of Article 81(3) of the Treaty shall be prohibited, no prior decision to that effect being required.
2. Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which satisfy the conditions of Article 81(3) of the Treaty shall not be prohibited, no prior decision to that effect being required. 3. The abuse of a dominant position referred to in Article 82 of the Treaty shall be prohibited, no prior decision to that effect being required.”
Thus, European Commission has the power to find infringements of the EU competition law and to impose fines on undertakings and associations of undertakings that have intentionally or negligently infringed these provisions.
In order to do so, first the Commission has the power to start investigation on its own initiative “[…]into a particular sector of the economy or into a particular type of agreements across various sectors” when “[…]the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market”. Secondly, inquire may also begin from complaints made by private parties or confessions made by undertakings that have itself infringed the rules.
Yet, in these last cases it has no obligation to reach a decision on every complaint or confession it receives, being able to assign different priorities to the examination of complaints submitted to it on the ground of whether there is a Union-wide interest or even reject a complaint on the basis that there is lack of Community interest in further investigation of the case (because there is not important violation, no significant effect on market integrations nor the case gives rise to novel points of law), given the power of national competition authorities to apply EU competition law in individual cases granted to them by article 5 of the Regulation.
However, the Commission’s discretion is not unlimited. It must, in fact, take into consideration all the relevant matters of law and of fact which the complainant brings to its attention in order to decide what to do with a certain complaint. Moreover, it is obliged to state reasons if it declines to continue with the examination of a complaint, and those reasons must be sufficiently precise and detailed to enable the Court effectively to review the Commission’s use of its discretion to define priorities.
Yet the Court’s review must not lead to substitute its assessment of the Community interest for that of the Commission, but just focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers.
Briefly, Once the Commission decides to prosecute the case, the enforcement procedure begins with an investigation in order to gather evidences to determine whether there has really been an infringement, requiring undertakings to pass on information and carrying out interviews or directly inspecting business premises or private homes to seize relevant documents.
After that, in a phase called adjudication, Commission issues the statement of objections, a document in which it is notified to the parties the infringement that Commission believes they have committed, in order to give parties the chance to properly defend themselves, seen that Commission shall base its decision only on objections set out in the statement and that parties have been able to comment. This is part of the undertakings’ under investigation fundamental rights of defense granted by the CFR (whose we will talk more about below), together with the right for them to access to the Commission’s file to assess the evidence upon which the statement is based and with the right to an oral hearing on the matter. Only then EC can issue a decision on whether or not there has been the infringement, fully reasoning it to identify which findings of fact and of law led EC to its conclusion and so granting the parties of the opportunity to challenge the Commission’s decision in the Courts.
If an infringement is established then EC has the power to bring it to an end and to remedy the anti-competitive effects of the anti-competitive practice, imposing fines and adopting structural remedies if necessary.
It’s important to underline that the administrative body which carries on the investigation also has the power to impose fines, combining both the roles of prosecutor and adjudicator. (we will dive deeper into this controversial issue in paragraph 5)
4. CJEU “light” review
Regulating judicial review, the Treaty on Functioning of the European Union (TFEU) makes a distinction between the Article 263’s control of legality (according to which the Court shall review the legality of the Commission’s decisions intended to produce legal effects towards this parties, namely on the ground of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers) and the so-called “unlimited jurisdiction” (Article 261 TFEU in accordance with art. 31 of Regulation 1/2003), which instead is properly regarded to penalties and allows the Court to not only annul the decision envisaged, but also to “reduce or increase the fine or periodic payment imposed”. But how are they intended?
Firstly, control of legality doesn’t mean “limited jurisdiction”; it is yet true that the Court is concerned on the legality of the decision rather than on the merits, but that doesn’t restrict the ground of the review, since the Court is however allowed to control the decision in all its aspects: ECJ in fact carries out a “comprehensive control of the legality of the Commission’ decisions, which extends to the law, the facts and their appraisals.”
In fact Court cannot be limited to a mere control of law, but it is necessary for it to fully control facts and their appraisals, because it is impossible to verify the legality of the decision without controlling whether the decision-maker has acted in the absence of the facts required to allow the exercise of its power, has provided enough evidence to prove the infringement and to support the conclusions drawn for it or has acted without taking into account relevant considerations (or has acted taking into account irrelevant ones).
In other words Court cannot substitute its assessment of the Community interest for that of the Commission, but must focus on whether the contested decision is based on materially incorrect facts, or incurred in an error of law (error in the assessment of an element required for the EU law to apply, i.e. considering a public body exercising public powers an undertaking developing an economic activity), or in a misuse of powers (when a measure is taken for the main or exclusive purpose of achieving an end other than that stated).
On the other hand instead, fines are subject to an unlimited jurisdiction by which Court can not only void, but also, amend the sanction in positive or negative way (Commission in entitled under Reg 1/2003 to impose fines up to 10% of the annual turnover of a company, depending on the gravity and duration of the infringement), although in practice this control on the merits is limited by the fact that Court is not supposed to conduct its own investigation, so can only substitute the administrative decision when it is evident that the behavior deserves another fine and evidences of this are resulting from the materials collected or are adduced by the applicants in support of their pleas.
The balancing between the enforcement and reviewal powers becomes cryptic when complex economic or technical assessments are involved. These are necessary when facts and evidences contain so many economic implications so much difficult to understand that they can’t be assessed by a law-minded point of view, but need to be faced with an econometric approach. Econometrics is the branch of economics that makes use of mathematics, computer science and statistical methods to analyze economic datas, aiming to give empirical content to economic relations. More precisely, it is “the quantitative analysis of actual economic phenomena based on the concurrent development of theory and observation, related by appropriate methods of inference,” such as the regression analysis used, for instance, in GE/Instrumentarium and Oracle/PeopleSoft cases, intending to explain with a relatively high degree of probability how prices change depending by a several number of factors such as the number of bidders, the identity of the bidder, the size of the customer, or the specific package offered to the customer.
Here Commission enjoys a wider margin of discretion, due to its composition of both lawyers and economists working together (so better placed in order to analyze economic matters that law-minded judges can only know vaguely), which constrains Court to a more limited judicial review regarding the appraisals of the facts, since it can only control if there has been a manifest error of assessment. The term ‘manifest’ presupposes that the inobservance of the legal provisions of the Treaties is so serious that it seems to descend from an obvious mistake in the evaluation of the situation in regard of which the decision was taken. From ECJ settled case-law follows that: “Examination by the Community judicature of the complex economic assessments made by the Commission must necessarily be confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or misuse of powers” (emphasis added).
The appraisal of complex economic facts cannot be controlled by legal principles or by alternative technical reports, because it would not lead to a more certainty in the analysis, but merely to another assessment. In other words, Court would not be reviewing but enforcing. In these cases, for instance Commission enjoys a certain degree of latitude regarding the choice of econometric tools and of the appropriate way to approach the study of the matter (different economic approaches could lead to different economic results); Courts can only ascertain whether there has been a manifest error of appraisal, specifically if the choice is not manifestly contrary to the accepted rules of economic and is not applied inconsistently or if the facts are really complex enough to justify this kind of intervention by the Commission.
In fact, as Yves Botteman correctly observed: “[…] Court may not have all the necessary expertise to “re-do” the analysis of the Commission in order to verify whether it is valid and solidly grounded on the facts of the case and conforms with mainstream economics.”
On the other hand, article 6 of ECHR provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”(emphasis added) and a scenario in which Court re-analyzed the Commission findings would have also the consequence to increase the length of the (already not short) proceeding, hindering the right to a fair trial of those under investigation.
Court would need the assistance of experts in elucidating all the econometrics models used, and why they are congruent with mainstream economics. Due to this complexity, it is quite normal that Courts might not be so keen to dig too much into the economic maze and rather prefer to carry out a relatively “light” review of econometric evidence, sacrificing a thorough judicial review, also for the sake of judicial economy.
However, ECJ rejected every criticisism in Tetra Laval case, stating that:”Whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that 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 that evidence contains all the information which must be taken into account in order to asses a complete situation and whether it is capable of substantiating the conclusions drawn from it.”.(Emphasis added). Otherwise the Court cannot sensibly assess whether the Commission had stayed within the limits of the margin of discretion allowed or had committed a manifest error of assessment.
5. EC Margin of discretion
In addiction to what aforementioned, a distinction has to be made between the institutional assessment, which as we have seen is not reviewable, and the grounds for the assessment itself, which is instead reviewable, and better still is the matter on which Court has to drive is attention.
In fact, the margin of discretion exists in so far the legal assumptions for its exercise are existing. But if there are not the required economic conditions for the discretion to be exercised, consequently the assessment is totally lacking of authority and Court can void it, because Commission’s decision was not based on economic sounds (facts have no complex economic ground justifying the exercise of discretionary powers), but cannot substitute its own statement to that of the Commission. The decision must be taken from the body institutionally entrusted by the Treaties of this task. This is expression of the principle of separation of power: control of legality under 263 TFEU enables the court to annul the Commission’s decision but not to substitute them.
Likewise, Commission’s decision must be also voided by Court when the economic matters are correctly regarded as complex, but Commission incurred in a manifest error in its assessment (which could be also about the way to approach to the study of the matter).
For instance, in the CEAHR case, Court annulled the Commission decision because of its manifest error of assessment in defining the relevant market (according to settled case-law, the definition of the relevant market involves a complex economic appraisal by the Commission); it failed to take into account the peculiarity of the two markets envisaged and “was not entitled to conclude that the market for watch repair and maintenance services did not constitute a separate relevant market but, on the contrary, had to be examined together with the market for luxury/prestige watches.” Court, however, didn’t defined the market on its own, because it is not for the Court to carry out such an analysis of the market, limiting itself to verify the correctness of the findings in the Commission’s decision. Once the decision is annulled Court does not rule on the substance of the infringement, but leaves the Commission, which has adopted the annulled measure, to re-open the entire procedure at the point at which the illegality was found to be occurred.
So, ultimately, the “margin of discretion” concept should be intended not as a limit of the Court’s judicial review, but as a barrier for the Court from carrying out its own assessment. Only the Commission is in charge of the anticompetitive scenario. “The Court’s role is merely to verify that the competitive scenario is reasonable and that the factual evidence that is used by the Commission is solid, consistent and adequately supports the points made. Econometrics should make no exception.”
6. Due Process, Human rights and unlimited jurisdiction
As we have seen, in order to carry on its duties as guardian of the treaty, EC combines both the role of prosecutor and decision-maker, a difficult situation to complain with the fundamental rights of defense of those under investigation. The danger of partiality is strongly felt. That’s why, possibly, although article 23(5) of the Regulation expressly provides that fines imposed by EC for infringement of EU competition rule are not to be considered of a criminal nature, the procedural guarantees of the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of European Union (CFR) with respect to criminal proceedings are respected in practice (i.e. presumption of innocence, right to a hearing, ne bis in idem, principle of proportionality of offense and penalty and so on).
Moreover, recital 37 of the preamble to Regulation No 1/2003 states that “[t]his Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the [EU] [and that …] [a]ccordingly, this Regulation should be interpreted and applied with respect to those rights and principles”.
Therefore Article 47 to 50 of the Charter are applicable to competition proceedings, so to ensure a due process for everyone involved.
The more problematic feature within this framework is linked in particular to article 47 of the Charter, which enshrines the right to an effective remedy and to a fair trail :”Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. […]”.
As Judge Lenaerts correctly observes, according to settled case-law Commission is not a tribunal within the meaning of the aforementioned article, but still may impose fine, although its administrative nature, “provided that the decision of that body is subject to subsequent review by a judicial body that has full jurisdiction and does in fact comply with those requirements.”
Yet, applicants in competition case have claimed that proceedings before the European Courts do not satisfy the due process requirements of Article 47 of the Charter, insofar Court cannot conduct a de-novo trial and cannot substitute its own judgement to that of the Commission without, moreover, even conducting a full review of the legality of the decision when it is regarded complex economic matters, due to the Commission margin of discretion accorded to it in these cases.
But, as ECJ itself stated in ‘Chalkor Vs Commission’ case:”[…] the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.”
Moreover, regarding to fines, the review of legality is supplemented by the unlimited jurisdiction which the Court is afforded by article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU, empowering the Court, in addition to carry out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine imposed.
The Court emphasises that it performs an exhaustive review of both the Commission’s substantive findings of facts and legal appraisal of those facts,also examining whether the Commission’s sanctions are proportional and well-founded, and analyzing its technical evaluations; even if the Commission has some discretion, that does not prejudge the Court from exercising its unlimited jurisdiction.
In conclusion ECJ rejects every criticism to the appeal structure, stressing that the review provided by the Treaties (article 263 TFEU, supplemented by the unlimited jurisdiction in regard of the amount of the fine of article 31 of the Regulation) thus involves review by the Court of both the law and the facts, and means that it has the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. And, therefore, is not contrary to the requirements of the principle of effective judicial protection of the article 47 of the Charter.
Summing up, we have seen that the European Commission enjoys a certain margin of discretion to assess complex economic and technical issues, and that, in such cases, judicial review by the European Court of Justice is confined to a mere control if the Commission committed a “manifest error” of assessment or respected the procedural rules.
The rationality behind it, as Professor Laguna de Paz observed, “should not be linked to the way of challenging the administrative performance (control of legality or unlimited jurisdiction), but […] to the principle of separation of powers,” specifically, judicial review power of the Court and the competition law enforcement power of the Commission.
And separation of power reflects a practical division of competence. It is duty of the Court to review the Commission statement, but not to carry out what is the Commission’s duty. Commission may be better placed to assess such issues due to its melted composition of lawyers and economist working together, while Court will simply control the legality of the Commission’s decision, checking that any measure is adequately sustained by the evidences provided, that these evidences are accurate, reliable and consistent, and that the procedural rules have been complied with.
After all, decisions are examined in all their law and facts aspects; maybe not so deep in their appraisals, but in a “comprehensive” way though.
And neither, once again, Commission’s margin of discretion means that the Court must refrain from reviewing the Commission’s interpretation of information of economic nature, checking if, and how, it fits with mainstream economics, and whether the ground of economics is really that complex to justify this degree of latitude by Commission.
Not to mention the aforecited Unlimited Jurisdiction regarding to fines, which allows Court to substitute the administrative decision, even though only when “it is quite evident that the conduct deserves another fine”, and the evidence results from the materials collected in the procedure or adduced by the applicant in support of his pleas, since Court is not supposed to develop its own investigations.
Thus, the right to an effective remedy and to a fair trial provided by article 47 CFR does not seem to be affected, in so far the undertakings under proceedings can rely to this complete review system.
And for these reasons, Court’s review might not be defined as limited, but rather as “light”.
Indeed, it appears to be more a barrier preventing Court to substitute its assessment for that of the administrative body entrusted by Treaties with this task, than anything else.
It is normal that, as everything in this world, the system is perfectible, but an extreme careful balancing would be required between, on one hand, the right to an effective remedy of those under investigation (translated in the right to have a judicial review that could cover an in-depth inspection of the Commission’s decision even in its most complex economic aspects), descending from article 47 CFR, and, on the other hand, the right, always of those under investigation, always descending by article 47 CFR, to come to an adjudication within a reasonable time.
The actual situation is extremely delicate and even a small variation could move the equilibrium.
Increasing the margin of discretion would mean concentrating an almost unlimited power on the hands of the Commission (which, useful to remind, combines the double role of prosecutor and decision-maker), leading to an unacceptable situation in which its decision would not be adequately faced by the Court, constrained more and more to a superficial approach by the resulting enhanced deference towards the administrative body, so sacrificing the right to an effective judicial remedy of the undertakings under proceeding for the sake of a judicial economy that, at this point, would only be a “Pirros’s victory”: the right to arise to an adjudication within a reasonable time is guaranteed, but the adjudication itself is disrespectful of the basic human rights.
On the reverse side of the coin, the abandoning of such a discretion by the Commission, pursuant a more accurate and detailed review of every single aspect of the decision would not only increase the time of the trials (Court is formed by judges, they will need elucidations by external experts), but also will let the number of trials itself significantly grow: the infringement of the right to have the case adjudicated within a reasonable time, in fact, could give rise to a claim for damages, a separate action to be brought before the General court, which therefore has to assess whether, and to what extent, the parties had suffered any harm due to the excessive length of the proceeding.
So, here the affection is double: for the undertakings to spend their lifetime in the courtrooms wondering if their cases will ever come to an end, and for the Court itself to front an incredible workload due to the hundreds of damage claims lodged before it. And there’s more, because this burden will keep judges busy reducing the time they could dedicate to the main proceedings, again increasing their already substantial length.
Hence, appears obvious how both the extremism give rise to complain about ineffectiveness of the right to an effective remedy and to a fair trial provided by article 47 CFR.
The right solution may be continuing on the same actual route taken, with Commission’s discretionality about econometric complexity and light but comprehensive review of the Court on every aspect of the decision, maybe with a little bit more of flexibility, when the situation requires it, emphasizing once the power of that institution and once that of the other, with the only very limit to not let substitute Court’s own appraisal for that of the Commission.
Also, some kind of cooperation in term of transparency would not harm: Court and Commission are not enemies fighting against each other to make their statement prevail, but, on the contrary, they are on the same side as servant of the Treaties, working together to guarantee the well functioning of the internal market.
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27. Case T-351/03 Schneider Electric v Commission  ECR II-2237
28. Case T-201/04, Microsoft  ECR II-1491
29. Case C-385/07 P, Der Grüne Punkt -Duales System Deutschland GmbH v Commission  ECR I-6155
30. Case T-111/08 MasterCard v Commission  ECR 0000
31. Case T-427/08, CEAHR v Commission  ECR II-5856
32. C-272/09 P, KME vs Commission  ECR I-12789
33. C-386/10 P Chalkor v Commission  ECR I-13085
34. Case COMP/M. 3216-Oracle/PeopleSoft
35. Case No COMP/M.3083 GE/Instrumentarium
36. ECtHR (judgment of September 27, 2011), Menarini Diagnostics v Italy, case n° 43509/08, § 59.