Friday, 3 May 2013

Time and EU competition law

As it has been a relatively slow week for activities on the competition law front, although the Enterprise and Regulatory Reform Act has now hit the statute book, I thought it was worth reflecting on two pieces of information: the publication of the 2012 annual report of the Court of Justice of the European Union and the publication of the final version of the draft accession agreement of the European Union to the European Convention on Human Rights.

Taking the Court of Justice's annual report first, this reveals that in 2012 the General Court had 34 new competition cases and 36 new state aid ones (down from 67 in 2011). It completed 61 competition cases and 63 state aid cases. It took 48.4 months to complete competition cases and 31.5 months for a state aid case. The Court of Justice, for its part, dealt with 30 competition cases and 28 state aid cases in 2012. Appeals took 15.3 months to hear, while preliminary references took 15.7 months. The record of the General Court in competition cases is very poor and does not look to be improving.

When the European Union accedes to the ECHR, this will allow parties to bring allegations that the procedures by which EU competition law are enforced are not compatible with the ECHR to the European Court of Human Rights. It is clear from various commentaries that there is a substantial amount of dissatisfaction with the procedures used by the European Commission and the role of the EU courts in reviewing those decisions. So, once the Accession Treaty is signed, we can expect that there will be some cases taken to the Court of Human Rights in order to test out these arguments. Given the principle of exhaustion of remedies, these cases will have to be argued before the General Court and the Court of Justice so taking some five years to get to the Court of Human Rights. It will take the Court of Human Rights some time to hear such a case. Unlike the Court of Justice, the Court of Human Rights does not publish information on how long cases take, but we do know that there is a significant backlog. Menarini, for example, took just over three years, although the first equivalent case argued against the European Commission might be given a higher priority. So, let us say maybe seven years before the issue is addressed by the Court of Human Rights.

Although competition law cases are complicated, this does not seem to be an acceptable position, particularly if you add in the time it takes for the European Commission to reach a decision. The initial complaint in Intel, which may be an unusual case, was lodged back in 2000, the Commission's decision came in 2009 and the General Court's judgment on the appeal is still awaited. It is not surprising in these circumstances that the European Commission is showing an increasing preference for dealing with Article 102 TFEU cases via commitment decisions and that undertakings are prepared to cooperate with this approach. Although there are reforms which could improve the position, this does not seem high up anyone's agenda, so perhaps it is best just to leave the last word with T. S. Eliot:

Time for you and time for me,


And time yet for a hundred indecisions,


And for a hundred visions and revisions,


Before the taking of a toast and tea.