The European Court of Justice (ECJ) in Schenker AG v Commission C-602/11 P confirmed on 20 June 2012 a judgment by the General Court rejecting an application by Schenker (a subsidiary of Deutsche Bahn) for intervention in the raft of appeals brought by airlines against cartel fines imposed on them by the EU Commission.  If the intervention had been permitted, Schenker could have been in a position to gain access to crucial documentation in support of a damages claim against the airlines.

The Commission’s Fuel Surcharge Decision

On 9 November 2010, the EU Commission fined 11 air cargo carriers a total of € 800 million for operating a worldwide cartel affecting cargo services within the European Economic Area.  The illegal contacts pertained to price discussions on fuel surcharges, the introduction of a security surcharge and the refusal to pay a commission on surcharges to the airlines’ clients (freight forwarders).  It is assumed that Schenker seeks to gain access to documents for eventual damages claims, as well as to prevent the reoccurrence of the cartel by participating in the appeal.  

The ECJ’s Ruling

In rejecting Schenker’s move to intervene in the appeals, the ECJ underlined that it is not the fundamental purpose of proceedings relating to an action for annulment of a Commission decision punishing anti-competitive behaviour to render possible, or facilitate, the pursuit of civil damages actions in national courts.

The ECJ ruled that the fact that a company is a customer of the airlines participating in the cartel is not sufficient, in itself, to establish a right to intervene.  The mere fact that an undertaking might possibly be affected by higher prices caused by the alleged cartel (and may bring civil damages actions) does not distinguish it sufficiently from the other economic operators in the relevant sector that are also affected by the anti-competitive practices of the members of the cartel.

According to the Court, Schenker’s argument that it has an interest in obtaining the final termination of the cartel and the prevention of its reoccurrence cannot be considered to be a direct and existing interest in the result of the case.  The Court held that the obligation on the participants of a cartel to bring to an end their anti-competitive practices is meaningful only if they have not already done so.  The appeals in question are not related to the operative part of the contested decision ordering the termination of the cartel in question.  Furthermore, the Commission itself states that there are no indications that an end has not been put to that cartel.  For these reasons, therefore, Schenker has no right to intervene on the basis of ensuring the end of the cartel.  

The ECJ clarified that companies will be given leave to intervene in EU competition cases if they are

• Legal entities forming part of the same economic unit as that to which the applicant belongs and have themselves been held jointly and severally liable.
• Competitors of an undertaking accused of abusing a dominant position within the meaning of Article 102 of the Treaty on the Functioning of the European Union.
• Associations composed of competitors or customers that opposed the alleged anti-competitive agreements containing restrictive clauses. 
• Parties that actively participated in the administrative procedure before the Commission and/or filed the complaint that led to the Commission’s investigation and to the adoption of the contested decision. 
• Associations representing a large number of operators active in the sector concerned, whose object is to, inter alia, protect the interests of its members.

Significance

The case is of two-fold importance.  First, the ruling offers clear guidance on the circumstances in which leave to appeal will be given to intervene in antitrust proceedings before the EU Courts.  Second, it constitutes another piece in the puzzle that is the wider picture of the evolving field of private damages actions and the various attempts to gain access to sensitive cartel documents for the purposes of private damages actions. 

*Katharina Dietz, stagiaire, also contributed to this article.