27 October, 2011

"Solvay" - Violation of Rights of Defense in Competition Case


The Court of Justice (CJEU) has decided on Tuesday that the Commission's decision to fine Solvay for violations of Art. 101 TFEU is invalid, because Solvay's rights of defense were violated. This story dates back to 1990 when the first decision was adopted. This decision was later declared invalid by the CJEU because of procedural errors. In 2000 the Commission basically adopted the same decision again, which was again contested by Solvay. This time, they alleged that their rights of defense had been breached because the Commission had not provided access to all files that their decision was based on.

The slightly funny part of this story is that the Commission was apparently willing to give Solvay access to all files to prepare their defense - but could not because parts of the file had been lost. The Commission was not even able to produce a table of contents of the lost file.

The General Court decided that this was irrelevant because the decision in 2000 was essentially the same and that Solvay was able to secure their defense sufficiently. How that is supposed to work might be questionable though, as it violates the fundamental principle of equality of arms. And how would Solvay have to respond to refute the above assumption? Would they have to prove that the Commission would have adopted another decision if the file would have been accessible by the defense?

Obviously not, as decided by the CJEU now. The sheer possibility that the defense could have found documentation in the file that would have changed its defense was enough to find a violation of the rights of defense, or in the words of the CJEU:

63      Since Solvay had not had access to those documents and their content was neither certain nor capable of being ascertained, the General Court erred in law by requiring it, in paragraph 474 of the judgment under appeal, to state the arguments which it would have raised had those documents been available to it – something which was materially impossible for it to know.
64      It should be pointed out that the matter at issue in the present case is not that of a few missing documents, the content of which could have been reconstructed from other sources, but of whole sub-files which have been lost and which, if the suppositions of the Commission referred to in paragraph 62 above were correct, could have contained essential documents relating to the procedure before the Commission which may have been relevant to Solvay’s defence
Another lesson in: Companies have "human" rights, too. 



No comments:

Post a Comment