With respect to damage claims, the grand chamber of the European Court of Justice ("ECJ") issued a landmark judgment (Case C-199/11) on 6 November 2012. According to the judgment, the Commission is allowed to bring an action—on behalf of the EU—before a national court, claiming compensation for damage sustained by the EU as a result of an infringement of Article 101 TFEU, which the Commission founded itself in one of its decisions.

First of all the ECJ ruled that under Article 282 of the EC, the Commission was competent to represent the EU institutions in the national court case without need for specific authorisation for that purpose from those institutions and bodies.

On the second question dealing with the right to a fair hearing and the principle that nobody can be both a judge and party in its own case, the ECJ concluded that the EU, just as any other may rely on a breach of Article 101 TFEU in proceedings before a national court and claim compensation for the harm suffered when there is a causal relationship between that harm and the violation of Article 101 TFEU.

The principle of effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights of the European Union did not bar the EU (represented by the EC Commission) from introducing such proceedings and thereby from relying on the Commission’s cartel infringement decision itself. The ECJ considered in that respect, among other things, that the manufacturers had the opportunity to have the Commission’s decision reviewed by the EU courts, which they had done. The Commission’s decision establishing the infringement was thus binding upon the judge in the national courts.

However, regarding the causal link and the damage, the situation is entirely different. Indeed, the ECJ clarifies that “the existence of loss and of direct causal link between the loss and the agreement or practice in question remains, by contrast, a matter to be assessed by the national court”.

The ECJ reached its conclusion also on the basis of the fact that the Commission only relied on information available in the non-confidential version of the decision and it recalled (or was it an implicit warning?) that Article 28(1) of Regulation 1/2003 prohibited the use of information gathered in the course of the investigation for purposes other than those of the investigation.