In its judgment of Nov. 25, 2014, the General Court of the European Union rejected arguments put forward by Orange disputing the proportionality and necessity of decisions by the European Commission requiring Orange to undergo inspections. Orange, the subject of a Commission inspection in July 2013, had argued that the Commission did not have the right to order the inspection since the French Competition Authority had already investigated identical allegations and found Orange's conduct to be in compliance with EU competition rules. The Court pointed out that the Commission is not bound by decisions taken by a national court or national authority pursuant to Articles 101 and 102 TFEU. The Commission may at any time make decisions relating to competition, even where such decisions conflict with national decisions. The Court also noted that Member State national authorities are not empowered to take negative decisions declaring that violations of the EU competition rules have not occurred. Moreover, it cannot be concluded from an absence of intervention that the Commission has accepted the validity of a decision by a national authority (national competition authorities are obliged to inform the Commission no later than 30 days before adopting certain types of decisions).
The Court also stated that while it was unfortunate that the Commission had opted for an inspection without first examining the Authority's case file, the inspection decisions were not illegal since the Authority's case had been determined without the benefit of an inspection, solely on the basis of information submitted voluntarily by Orange. The Court further confirmed that, in order to assess the arbitrariness of the inspection decisions, it was entitled to examine the evidence in the Commission's possession at the time it adopted the decisions. In the present case, however, the Commission's explanation of the alleged facts in the inspection decisions was sufficiently precise to satisfy the Court that a review of the evidence was not necessary.
In order to give effect to the special responsibility of the Commission to enforce the EU competition rules and define as well as implement EU competition policy, the case law of the EU Courts has consistently confirmed that the Commission is not bound by decisions given by national courts or competition authorities applying Articles 101 and 102. This is also reflected in Reg. 1/2003, pursuant to which national courts and competition authorities cannot take decisions contradicting those adopted or contemplated by the Commission. Reg. 1/2003 regulates the relationship between national competition law and the EU competition rules with respect to Articles 101 and 102. The case is T-402/13, Orange v. European Commission.
The General Court's judgment is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
