Joined Cases T-539/12 and T-150/13 Ziegler v Commission: Damages for a cartel decision

Here’s another twist in the saga of the removal services case. And rather a cheeky one too ! Two undertakings that the Commission found in its decision to have participated in an illicit cartel in breach of Article 101 TFEU sued the Commission in damages …. for adopting that decision ! In its judgment of 15 January 2015 in Joined Cases T-539/12 and T-150/13 Ziegler SA and Ziegler Relocation SA, EU:T:2015:15 the General Court dismissed the claim.

Here’s the story. 

On 11 March 2008 the Commission adopted a decision fining Ziegler 9 200 000 € for taking part in a cartel for removal services in Belgium. Ziegler challenged that decision in the General Court which dismissed the action in its judgment of 16 June 2011 Ziegler v Commission T-199/08, EU:T:2011:285. Then Ziegler appealed to the Court of Justice. Appeal dismissed on 11 July 2013 Ziegler v Commission C-439/11 P, EU:C:2013:513.

But then why sue the Commission in damages ? Because of what could be called “arranged quotations” (“devis de complaisance” in French). According to that practice, the Commission’s services would only accept to reimburse removal expenses for staff taking up or leaving a position in Brussels if quotations from several removal companies were produced and the cheapest one was the one chosen. What would actually happen was that one removal company would be contacted and that company would then supply quotations from other companies as well as its own quotation for the service. Thus, the removal companies would cooperate between themselves in what amounted to a bid rigging arrangement.

Ziegler claimed that the Commission itself was party to such an arrangement and continued the practice for several years after it had adopted its cartel decision of 2008. The Commission changed its system for reimbursing removal expenses in 2014. Thus Ziegler claimed damages from the Commission for two heads of damage:

  1. loss and damage suffered as a result of the decision of 2008 and the fine of 9 200 000 €
  2. loss and damage suffered as a consequence of the continuation of the practice until 2014.

The judgment of the General Court of 15 January 2015 is more interesting on the issue of the loss and damage suffered as a result of the fining decision of 2008 so we’ll concentrate on that.

Loss and damage as a result of the fining decision of 2008 and the imposition of a fine.

The General Court found that that part of the claim was inadmissible.

The Court held that in reality the action for damages was another way of seeking the withdrawal of the 2008 decision and of the fine and that was not possible as the Court of Justice had upheld that decision in its judgment of 11 July 2013 Ziegler v Commission C-439/11 P, EU:C:2013:513.

The General Court recalled the traditional caselaw according to which an action for damages is an autonomous, self standing action (judgment of 28 April 1971 Lütticke v Commission, 4/69, EU:C:1971:40, paragraph 6 and order of 21 June 1993 Van Parijs v Council and Commission C-257/93, EU:C:1993:249, paragraph 14). An action for annulment seeks to remedy the illegality of a measure whereas an action for damages seeks compensation caused by the illegal conduct of an EU institution or body (judgment of 23 March 2004 Ombudsman v Lamberts, C-234/02, EU:C:2004:174, paragraph 59 and judgment of 18 December 2009 Arizmendi and others v Council and Commission, T-440/03, T-121/04,  T-171/04, T-208/04, T-365/04 and T-484/04, EU:T:2009:530, paragraph 64 – Disclaimer: I was agent for the Commission in those cases).

The Court went on to point out that notwithstanding their autonomous nature, damages actions must be declared inadmissible if in reality all that they seek is the withdrawal of a measure which has become definitive and their effect, if successful, is to extinguish the legal effects of the measure in question (Judgments of 15 March 1995 Cobrecaf and others v Commission T-514/93, EU:T:1995:49 paragraph 59 and Fresh Marine v Commission, T-178/98, EU:T:2000:240 paragraph 50). Such is the case when the claim for compensation seeks an award which corresponds exactly to the amounts that the applicant paid or has been denied on the basis of an individual measure and consequently the damages action merely seeks the withdrawal of that measure (Judgments of 26 February 1986 Krohn Import-Export v Commission, 175/84, EU:C:1986:85, paragraph 33 and of 15 March 1995 Cobrecaf and others v Commission T-514/93, EU:T:1995:49 paragraph 60).

It held that it was obvious in this case that Ziegler’s first claim, if successful, would have the effect of extinguishing the legal effects of the decision of 2008 and the restitution of the fine of 9 200 000 € which had already been upheld by the EU courts.

The loss and damage suffered as a consequence of the continuation of the practice until 2014.

As for the second claim, suffice it to say that after a detailed analysis the Court held that the applicants had failed to establish a direct causal link between the alleged conduct and the loss and damage claimed. The Court also held that the applicants had failed to demonstrate that the practice of accepting “arranged quotations” (as opposed to giving them) was illegal conduct imputable to the Commission.

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