The General Court’s judgment in Case T-30/10 Reagens SpA v Commission EU:T:2014:253 (alternative link here) doesn’t really break new ground. But it does remind applicants of a few basic truths. In some ways you can sense the impatience of the Court with applicants who forget them.
First, the Court reminds everyone that if you make a plea, you have to argue it and substantiate it. Mere assertions don’t work.
Second, don’t just complain about the duration of administrative proceedings: show how it affected your rights of the defence.
The case concerned a challenge to a decision of the Commission in competition proceedings. The Commission decided in 2009 by Decision C(2009) 8682 final (OJ 2010 C 307, p. 9) that a number of undertakings had participated in illicit anti-competitive agreements in the heat stabiliser sector (don’t ask what that is !). It imposed a fine on a number of those undertakings, including on the applicant in this case, Reagens SpA.
The applicant then challenged the decision in the General Court and made a certain number of assertions, including on the length of time the Commission took to reach its decision and on breaches of its rights of defence.
The General Court rejected all of the applicant’s claims and upheld the Commission decision.
A couple of times, the Court rejects a plea because it is no more than a vague, unsubstantiated assertion. It recalls that, under Article 44(1)(c) of the Rules of Procedure, an application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (Case T‑102/92 Viho v Commission EU:T:1995:3, paragraph 68, and Case T‑432/05 EMC Development v Commission EU:T:2010:189, paragraph 43).
Accordingly, even though the application mentions an infringement of the principles of sound administration and of legitimate expectations, no arguments are developed in support of that complaint, which must therefore be declared inadmissible for failure to satisfy the requirements of Article 44(1)(c) of the Rules of Procedure (see, to that effect, EMC Development vCommission, paragraph 47).
As to the length of the administrative procedure before the Commission, the Court recalled that according to settled case-law, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of law whose observance the EU Courts (Case C‑113/04 P Technische Unie v Commission EU:C:2006:593, paragraph 40 and the case-law cited). That principle has been enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.
The examination of any interference with the effective exercise of the rights of the defence must not be confined to the inter partes phase of the administrative procedure, but must extend to the entire procedure and be carried out by reference to its total duration (Technische Unie v Commission, paragraphs 54 and 55).
In this case, as regards the applicant, the administrative procedure lasted from 11 February 2003 to 11 November 2009 — more than six years. The Commission did, however, reduce the amount of the fine in order to take into account the length of the administrative procedure.
But, the Court continued, the case-law provides no legal basis for the annulment of a Commission decision, even if the proceedings are excessively long, where it has not been fully substantiated that the ability of the undertakings concerned to defend themselves has been adversely affected and there is therefore no indication that the excessive duration of the proceedings could have affected the content of the Commission’s decision (Case C-185/95 P Baustahlgewebe v Commission, EU:C:1998:608 paragraph 49, and Case T‑276/04 Compagnie maritime belge vCommission EU:T:2008:237, paragraph 45).
If that is not the case, the failure to comply with the principle that the Commission must act within a reasonable time has no effect on the validity of the administrative procedure and is not sufficient to render the contested decision unlawful.
In this case, again, the Court held that it is sufficient ground to reject that argument to point out that it is extremely generic and entirely unsupported by detailed evidence showing that the applicant’s rights of defence were infringed and that there are indications that the length of the administrative procedure could have affected the content of the contested decision.