Key facts of the case:
- Consequent upon an action for damages brought by the Commission representing the European Union against several elevator manufacturers, the Rechtbank van koophandel te Brussel (Brussels Commercial Court) has made a reference to the Court of Justice for a preliminary ruling on two questions relating, on the one hand, to the representation of the European Union in proceedings before the national courts and, on the other, to judicial independence and equality of arms between the parties to civil proceedings in which the European Union is taking part as a claimant in respect of non-contractual damage.
- Regarding the matter of procedural representation, the referring court wishes to know whether it is for the Commission to represent the European Union, in spite of the fact that the damage arises as a result of contracts signed by several institutions and bodies of the Union. The Court of Justice will therefore have to rule on the temporal scope and content of Article 282 of the Treaty establishing the European Community and Article 335 TFEU, with regard to proceedings initiated before national courts prior to the entry into force of the Treaty of Lisbon.
- More unusual and comparatively more complex is the question regarding judicial independence and equality of arms and, consequently, Article 47 of the Charter of Fundamental Rights of the European Union. The Court of Justice is called upon to decide whether the European Union is in some way limited when it files a claim for damages before national courts, when the loss or damage suffered stems from anti-competitive conduct established by one of the European Union institutions. The defendants in the main proceedings maintain that the Commission, as the author of a binding decision finding an infringement of Article 81(1) EC (now Article 101(1) TFEU), acts as a privileged claimant, which distorts the judicial power of the national court and the balance of power which must prevail between the parties to the proceedings.
Results (sanctions) and key consequences of the case:
In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling:
- Article 282 EC is applicable to national proceedings which were still ongoing on 1 December 2009 and it is not necessary subsequently to require the European Union to fulfil the conditions of representation laid down in Article 335 TFEU.
Article 282 EC is to be interpreted as not precluding the European Commission from bringing an action on behalf of the European Community for compensation in respect of damage suffered by the latter and initially sustained by various European Community institutions and bodies.
- Article 47 of the Charter, as regards the right of access to a tribunal, is to be interpreted as not precluding a national court from determining a claim in respect of damage suffered by the European Union, where the unlawful act which forms the basis of the damage has been established by a decision of the European Commission adopted pursuant to Article 81(1) EC (now Article 101(1) TFEU).
Article 47 of the Charter, as regards the right to equality of arms, is to be interpreted as not precluding the European Commission from bringing, on behalf of the European Union, a claim for damages before the national courts, even though it was the Commission itself which previously conducted an infringement procedure which culminated in the decision that has formed the basis for the claim.