miércoles, 1 de diciembre de 2010

Multas y revisión judicial en Derecho europeo de la competencia

Damien Gerard ha publicado un breve trabajo sobre este tema. Recogemos los pasos más interesantes
At the end, what is at stake is nothing less than the legitimacy of the EU antitrust enforcement system, which is conditioned on effective judicial review. Moreover, the recent trends are all the more worrisome in a context of continuous increase in the amount of fines and in view of statistical indicia of a decline in the intensity of the judicial review process.
Indeed, “the [Court of Justice] has jurisdiction in two respects over actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules. First, under Article [263 TFEU], it has the task of reviewing the legality of those decisions. ... Secondly, [it] has power to assess, in the exercise of the unlimited jurisdiction accorded to it by Article [261 TFEU] and Article [31 of Regulation 1/2003], the appropriateness of the amounts of fines”.
Pursuant to Articles 261 TFEU and 31 of Regulation 1/2003, the Court of Justice is endowed with unlimited jurisdiction to assess the appropriateness of, and if necessary to vary,downward or upward, the amount of the fine imposed by the Commission. However, in view of the system of division of powers set out by the EU Treaties, “the [Union] judicature is not competent ... to replace the fine imposed by the Commission by a new, legally distinct fine” but only “to rule on fines set by decisions of the Commission”.
The scope of the unlimited jurisdiction with respect to fines is also constrained by the fact that it does not form an autonomous course of action, listed in Article 256 TFEU; rather, it is ancillary to the power to review the legality of Commission decisions pursuant to Article 263 TFEU. Accordingly, its “sole effect” is to “enlarge the extent of the powers the [Union] judicature has in the context of the action referred to in Article [263 TFEU]” so that it is not limited to annulment of a Commission decision but can also “vary the penalty imposed by that decision”.12 Likewise, it does not entitle applicants to seek the annulment of a Commission decision for grounds other than those listed in Article 263 TFEU. In the words of the GC: “an action in which the [Union] judicature is asked to exercise its unlimited jurisdiction with respect to a decision imposing a penalty necessarily comprises or includes a request for the annulment, in whole or in part, of that decision”.13 In “Vitamins”, the GC further emphasized that “the review which the Court is required to exercise in respect of a Commission decision finding an infringement of Article [101 TFEU] ... and imposing fines is confined to a review of the legality of that decision”. This implies that the Court of Justice may exercise its unlimited jurisdiction “only where it has made a finding of illegality affecting the decision, of which the undertaking concerned has complained in its action, and in order to remedy the consequences which that illegality has for determination of the amount of the fine imposed, by annulling or adjusting that fine if necessary”. In the same case, it reiterated that, where the Commission’s decision is vitiated by an illegality, “the Court must exercise its unlimited jurisdiction in order to confirm, set aside or adjust” the fine.
Consider first the “Electrical and Mechanical Carbon and Graphite Products” case and, specifically, the plea alleging the illegality of Article 15(2) of Regulation 17, as reproduced in Article 23(2) of Regulation 1/2003. One of the applicants submitted that the provision granted the Commission almost unlimited discretion as regards the setting of fines and was thus in breach of the principle of legality, as set out in Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).21 A classic claim, indeed, which led to interesting counterarguments on the part of the General Court, including the following assertion: “under Article [261 TFEU] and [Article 31 of Regulation 1/2003], [the GC and the ECJ] have unlimited jurisdiction in advance brought against decisions whereby the Commission has fixed fines and may thus not only annul the decisions taken by the Commission but also cancel, reduce or increase the fines imposed”, adding that “[t]hus, the Commission’s administrative practice is subject to unlimited review by the [Union] judicature”. The position of the GC in that case testifies of a particularly broad interpretation of the unlimited jurisdiction with respect to fines. In essence, it embodies a controversy as to whether the unlimited jurisdiction pertains to the “decisions imposing fines” or to the “amount of the fines” only.
In Danone, first, the ECJ implied that the GC was entitled to vary the fine on the basis of Article 261 TFEU, independently of a finding of error of law, i.e., that Art. 261 TFEU constitutes an independent ground of action. But the Prym judgment appears more problematic. While dismissing an argument to the effect that the GC had failed to properly assess the legal consequences to be drawn from the infringement by the Commission of its obligation to state reasons with respect to the actual impact of the infringement on the market, i.e., to annul the decision or reduce the amount of the fine, the ECJ held that “the unlimited jurisdiction conferred on the [General Court] by Article 31 of Regulation No 1/2003 in accordance with Article [261 TFEU] authorises that court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine” (emphasis added). Even if the language is softer, it is reminiscent of the GC’s stance in “Electrical and Mechanical Carbon and Graphite Products”: the whole “contested measure” can be varied pursuant to Article 31 of Regulation 1/2003 – even in the absence of any illegality? – and not exclusively the “amount of the fine”.
If one wishes to move towards a system where the decisions of the Commission imposing fines are subject to the unlimited review of the Court of Justice, it would require amending the EU Treaties, in particular Articles 264 and 266 TFEU

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