Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case :
Appeal – Competition – Concentrations between undertakings – Article 22 of Regulation (EC) No 139/2004 – Concentrations that do not have a Community dimension – Referral request from a competition authority not having jurisdiction under national law – Commission decision to examine the concentration – Competence of the Commission – Time limit for submitting the referral request – Obligation to act within a reasonable time – Principle of good administration – Right of defence – Legitimate expectations
Outcome of the case :
In the light of the foregoing, I suggest that the Court of Justice:
43. More fundamentally, such a rule would be at odds with the principles governing the production of evidence before the EU Courts. The Court of Justice has consistently held that ‘the principle of equality of arms, which is a corollary of the very concept of a fair hearing, guaranteed in particular by Article 47 of the Charter of Fundamental Rights of the European Union [(“Charter”)], requires that each party must be afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent’. (12) With regard to the production of evidence, the basic rule is that any evidence can be submitted before the EU Courts. However, those courts may take into account the existence of any (intra- or extra-judicial) interest which may, by way of exception, justify the refusal to accept the evidence and balance those interests against those that plead for its acceptance. (13) That may be the case, for example, where a document has been obtained illegally or contains confidential information which should not be publicly disclosed in order to protect certain public or private interests.
44. In the present case, the contested documents have been lawfully obtained by Grail following requests for access to documents lodged pursuant to Regulation (EC) No 1049/2001, (14)and criticise some specific passages of the judgment under appeal. Given that those passages concern one of the issues which is key to the present case (whether or not the General Court’s reading of Article 22 EUMR is supported by a historical interpretation thereof), I see no plausible reason as to why the appellants should not be allowed to rely on the contested documents. In fact, were those documents to be ruled inadmissible, the appellants would de facto be deprived of the opportunity to challenge the General Court’s findings in paragraphs 69 to 117 of the judgment under appeal. That would be against the right to an effective remedy and to a fair trial enshrined in Article 47 of the Charter.
