"Interviewees highlight the strength of the team at associate level: 'All cases at the Commission are very large, so having a smart partner is not enough; you need to have a top team supporting the partner, which is something that Baker Botts does have.'"
Chambers Europe 2020
Many EU competition investigations result in litigation before the Court of Justice or the General Court of the EU in Luxembourg. Either the investigated company decides to challenge a Commission prohibition decision, the remedy or the fine imposed, or a competitor considers that the Commission was wrong to close the investigation or that it should have imposed stricter remedies.
Appealing competition decisions by the EU Commission to the EU courts is a distinct process that differs from the administrative investigation and litigation before national Courts. Any party involved in these proceedings should bear this in mind when designing and executing their litigation strategy. The following aspects of proceedings before the EU Courts are particularly important but often ignored, with the consequence that the chances of success are significantly diminished.
The Courts operate within a rigid procedural framework and they enjoy much less flexibility to conduct the proceedings than most national courts. Examples are the restrictions on adding arguments and evidence in the course of proceedings, the manner in which legal arguments and factual evidence must be presented in the proceedings, and the taking of evidence. An experienced litigator knows how the Courts apply this framework and how to use it to the advantage of his or her client.
The Courts do not conduct the investigation afresh but exercise a judicial review of the Commission’s decision. In particular, the review of the facts and the application of the law to the facts is limited, and the Courts tend to grant considerable discretion to the Commission. There are many examples where parties failed to take these limitations into consideration and lost cases because they treated the litigation as a mere continuation of the proceedings before the Commission.
Baker Botts lawyers have represented clients in almost 200 cases before the Court of Justice and the General Court of the EU over the past 20 years. In several instances, clients have turned to our lawyers specifically for the EU Court work and instructed our lawyers to represent them in appeals against complex cartel or merger cases even when we were not involved in the administrative proceedings before the Commission.
Our EU Court experience covers the full spectrum of procedures and a broad range of subject matters. This broad experience mirrors the work of the judges at the EU Courts, who are not competition law specialists but deal with a wide range of issues. It permits us to view a case from the perspective of an EU judge, to identify the evidence and arguments likely to persuade the judge to step in and overturn a decision and to present those arguments as effectively as possible.
Procedures in which our EU litigators have been involved in a lead role include:
- Annulment actions challenging decisions or other measures by the Commission and other EU institutions and agencies
- Actions for damages
- References from national courts to the Court of Justice
- Applications for interim measures
- Interventions by interested parties supporting either the applicant or the Commission
- Appeals to the Court of Justice against judgments of the General Court
The cases handled by our litigators cover a very broad range of subjects including cartels, merger control, abuse of dominant positions, State aid, anti-dumping and anti-subsidy, copyrights, economic sanctions, customs law, internal market, consumer and health protection, environment, agriculture and air passenger rights.
We are also familiar with the issues that arise in follow-on civil damages claims. The risk of potential damages claims must be considered by any company subject to a competition investigation by the EU Commission or a national competition investigation. Any step during the investigation, from the decision to make a leniency application, what information to submit to investigators during an investigation, to deciding whether to challenge an adverse decision, must also be assessed from a civil litigation strategy perspective.