CJEU - C 441/07 P / Opinion

Key facts of the case:

The case related to a commitment offered to the Commission by De Beers in 2006 to avoid the accusation of abuse of a dominant position (under Article 82 EC). As the worldwide market leader in the diamond trade, De Beers undertook in future not to purchase any more rough diamonds from Alrosa, the second largest producer, bringing to an end a long-standing trading relationship between the two. By a decision under Article 9 of Regulation No 1/2003, the Commission made that commitment by De Beers binding. Alrosa considered that decision to be disproportionate and took the view that its right to be heard was infringed. The Court of First Instance annulled the decision and the Commission appealed against that judgment.

Results (sanctions) and key consequences of the case:

The AG proposed that the Court should “set aside the judgment of the Court of First Instance (T-170/06) and dismiss the action by which Alrosa applied to the Court of First Instance for the annulment of Commission Decision 2006/520/EC of 22 February 2006."

Interpretation of article(s) and implications for the resolution of the case:

The AG stated that “Contractual freedom is one of the general principles of Community law. It stems from the freedom to act for persons. It is also inseparably linked to the freedom to conduct a business. In a Community which must observe the principle of an open market economy with free competition, contractual freedom must be guaranteed. The case-law of the Court of Justice also recognises that economic operators must enjoy contractual freedom.” (para 225) “In adopting competition decisions the Commission is required to take account of the principle of contractual freedom and the freedom to conduct a business.” (para 226)

The AG argued that “the simple announcement of antitrust proceedings or their continuation by the Commission, even up to a prohibition decision and a possible fine, is not unfair, but a completely lawful means by which the Commission pursues the legitimate aim of effectively protecting competition against distortion. It is true that this has meant that Alrosa has lost its desired contractual partner for the future. However, this is one of the risks which must be borne by Alrosa, like any other economic operator in an open market economy. This does not impair the contractual freedom enjoyed by Alrosa.” (paras 229 and 230)

Under Article 41(2) of the Charter of Fundamental Rights of the European Union, (104) every person has the right to be heard, before any individual measure which would affect him or her adversely is taken. That fundamental right is to be respected in the interpretation and application of Regulation No 1/2003. (para 167)

In accordance with the principle of good administration, the Commission is required to examine without delay any substantiated indication of a material change in the facts and to take a decision on the reopening of proceedings. (para 220)

The AG also stated the relevant principles of a right to a fair hearing: “The principle of respect for the rights of the defence is a fundamental principle of Community law. That principle is infringed where a judicial decision is based on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment.”
Paragraphs referring to EU Charter

225, 226, 229, 230, 167, 220