Antitrust Alert: European Union General Court Establishes New Rules of Procedure
The European Union's General Court has adopted new Rules of Procedure and Practice Rules (previously known as "Practice Directions"), which each enter into force on July 1, 2015. The General Court is the second highest of the EU courts. Its jurisdiction includes the power to review the European Commission's decisions, in particular in competition law proceedings.
The new rules aim at speeding up procedures, clarifying parties' rights and bringing consistency and coherence with the rules applicable before the European Court of Justice, the highest EU court. This significant recast of the existing Rules of Procedure does not change most of the rules on the substance, but some changes will affect competition law cases. The most important amendments will limit interveners' rights, allowing the Court to request the parties to focus on certain issues in their briefs and at the hearing and in a possible suppression of the hearing.
General conduct of proceedings
1. Limitation of intervener rights. Interested third parties used to have the right to apply to intervene until the opening of the oral procedure, until a few weeks before the oral hearing. Those parties that intervened more than six weeks and ten days following the publication of notice of action in the Official Journal were not given access to the main parties' briefs. However, they could still play an important role in the proceedings, as they could make observations at the hearing.
The new rules eliminate the right to intervene after the expiry of this time limit. This change will significantly decrease the window opened to interested parties (e.g., parties to a merger approved by the Commission and challenged before the Court, or competitors of a sanctioned undertaking) to exercise their rights. Their margin of maneuver is further decreased by the fact that only the main parties to the procedure may now request the protection of confidential documents vis-à-vis interveners.
2. Expedited procedure of the Court's own motion. The expedited procedure, a quick way of adjudication, is often used in merger control cases, often at the request of the parties to a prohibited merger. In fact, the need for swift adjudication on the substance in merger cases was one of the reasons for the adoption of this procedure in 2001.
The new Rules now establish the power of the Court on its own to decide to use the expedited procedure. This change will be useful for instance when a decision authorizing a merger is challenged before the Court and neither the applicant (generally a competitor) nor the defendant (the European Commission) have requested the application of the expedited procedure. In this case, the Court will be able to apply the procedure of its own motion so as to preserve the rights of the parties to the merger.
1. Limitation of length of submissions. Practice Directions used to refer to the length of written submissions. While the maximum of permitted pages remains unchanged, the new Rules of Procedure have reinforced its importance. Upon authorization of the Court, longer pleadings may still be submitted for cases involving complex legal or factual issues, an exception likely to apply to many competition law cases.
2. New possibility for specific focus in replies/rejoinders. The Court may now specify matters on which the reply or rejoinder, if any, should focus.
3. New rules of confidentiality for documents produced pursuant to measures of inquiry. The previous rules did not always provide sufficient flexibility for the General Court to ensure a proper balance between effective judicial protection and the safeguard of confidential documents. If the Court requested a document to the parties on the basis of a "measure of organization," the document was automatically served on the other parties. This has led some parties to refuse complying with the Court's request, for instance to protect leniency documents.
The new rules now codify the possibility for the General Court to formally order the communication of a document through a "measure of inquiry" and, following a weighing of the confidentiality of the document against the requirements of effective judicial protection, to either disclose that document subject to specific commitments (e.g., apply a confidentiality ring) to the main parties, to provide a non-confidential version or summary of the document to the main parties, or to refrain from serving the document.
1. Removal of the report for the hearing. The report for the hearing before summarized the parties' arguments. This report, which in recent cases had already been shortened, no longer exists.
2. Discretion to hold a hearing. The Court is no longer required to hold a hearing if it believes it has sufficient information on the basis of the case file and the main parties have not requested a hearing within three weeks following the notification of the closure of the written procedure.
While this should not often apply in competition law proceedings, parties would be well advised to systematically request a hearing before the expiry of the time limit. The three-page request must be based on a real assessment of the benefit of the hearing and outline the elements that the party considers necessary to develop or refute more fully. This request should not be drafted in general terms (e.g., with a mere reference to the importance of the case).
3. New possibility to focus on specific issues. The Court may now invite parties to concentrate their pleadings on one or more specified issues.
Several aspects of the new rules are welcome. In particular, the clarification of confidentiality rules provides more legal certainty to the main parties to competition law proceedings on how the Court will keep certain documents confidential, especially in cartel cases where leniency statements may be relevant for the Court to rule on the main case. Considering the aim of adjudicating swiftly, it seems likely that, when large amounts of confidential documents are at stake, the Court will favor confidentiality rings over providing non-confidential versions of the documents, for reasons of efficiency.
The objectives of speeding up procedures and managing cases more efficiently surely are laudable. However, the application of some rules depends on the Court's discretion. Should these rules be interpreted rigidly, this could lead to an unwanted and excessive curtailment of the parties' rights. The wide powers wielded by the European Commission in competition law proceedings should be balanced with a strong and effective judicial review of its decisions, compliant with the requirements of the European Convention of Human Rights. Effective judicial review is all the more necessary to avoid parties investigated by the European Commission feeling compelled to enter into settlement or commitments proceedings. The General Court should therefore apply the new rules flexibly, so as to maintain judicial review as an attractive and effective option.
For more information, please contact your principal Jones Day representative or either of the lawyers listed below.
Eric Barbier de la Serre
Eric Morgan de Rivery
Paris / Brussels
Claire Lavin, an associate in the Paris Office, assisted in the preparation of this Alert.
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