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Aitor Montesa Lloreda, Feb 05, 2008
The recent European Court of First Instance (CFI) judgment of July 11, 2007 in Case T-351/03, Schneider v. Commission, is the first EC judgment to grant a company damages for the losses it had suffered as a result of an illegal Commission decision prohibiting a merger. The judgment has been drafted as if it were just applying previous jurisprudence in liability matters. However, it is anything but conservative. It indeed represents a major step in European case law. Schneider III has made real a possibility which was only theoretical before: that the Commission can be held responsible for damages caused by its wrongful decisions in competition. Schneider III will most probably boost many further claims from companies affected by illegal Commission decisions in the antitrust and merger control fields. Schneider III may therefore be perceived by the Commission – wrongly or not – as a heavy burden, particularly in the framework of its merger control activity. This paper intends to review the conditions that must be met for a Commission decision to engage the Community liability in competition matters. These conditions have been analyzed especially in the two Holcim judgments and, then, in Schneider III. The paper focuses on the somehow difficult relation among these three cases. The paper will try to examine systematically their commonalities and, as necessary, their contradictions. Last, the paper will conclude that EC liability can be only engaged in pathological cases. This conclusion should represent an additional incentive for the Commission to embrace self-discipline and high professional and legal standards. However, it does not entail a serious risk to the Commission’s functionality in competition matters, which are indeed some of the Commission’s most fundamental and complex activities.
