Interview with Eugene Buttigieg (General Court of the European Union): Global Merger Control Conference

THE GLOBAL MERGER CONTROL CONFERENCE
Agencies and general counsel: what's on their radar?

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Interview with Eugene Buttigieg1

Judge - General Court of the European Union, Luxembourg

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Eugene Buttigieg (General Court of the European Union) has been interviewed by Laurence Bary (Dechert) in anticipation of the roundtable "Merger judicial review: Is it really worth it?" organised at the occasion of the 7th Global Merger Control Conference in Paris on Friday 6 December 2019.

The roundtable is also composed of Hanna Anttilainen (DG COMP), Stéphane Hoynck (Conseil d'Etat), Greg McCurdy (Uber), Colin Raftery (CMA), Anneleen Straetemans (ZX Ventures) and Hans-Jürgen Meyer-Lindemann (Dechert).

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How many appeals against merger control decisions does the General Court review each year? How has the trend evolved in the past ten years? And how do you explain that evolution, if any?

The General Court receives an average of five applications a year challenging Commission merger decisions. In the past ten years, there were years when the Court received from one to three applications annually and other years when it received up to seven or eight applications annually but no particular trend can be perceived as the numbers have been fluctuating.

Likewise, every year as an average, the General Court delivers judgment in five merger cases though there were years when up to seven or eight cases were completed and other years when only one case or none were completed.

Again, no particular trend can be identified as the length of proceedings varies according to the complexity of the case. Over the past ten years, the General Court has had an average of nine to ten merger cases pending before it every year.

Given the increasing level of complexity of merger analysis today, do you feel that courts are well equipped to handle the judicial review of these decisions? Should judges be able to rely on independent experts – be they specialists of a sector or economists, for instance – to support them in their decision-making process, in particular in highly technical areas?

In the exercise of its judicial review, the General Court considers carefully all the arguments submitted by the parties, be they of a legal, economic or technical nature.

Parties may in support of their arguments produce as evidence the opinions or reports of specialists or economists and the Court may, during the hearing, examine these experts (Statute, Article 32). This is helpful to enable the judges to understand better the facts of the case and the technical and economic context.

But, where necessary, the Court may itself appoint an independent expert. The Statute in Article 25 empowers the Court of Justice to ‘at any time entrust any individual, body, authority, committee or other organisation it chooses with the task of giving an expert opinion’ and likewise the General Court’s Rules of Procedure (Articles 91 and 96) enable the Court to commission an expert’s report. This would then be served on the parties, and their representatives and the judges may put questions to the expert.

So the facility already exists and the Court has at times had recourse to it but I would say that as cases become more technically and economically complex there may be scope for more frequent recourse to the aid of such independent expertise.

As regards complex economic assessments, is the current standard sufficient or do you feel that the General Court should be able to exert more control over the Commission’s findings – including for example on the nature and scope of the commitments accepted by the Commission?

The current standard is the one set in Case C-12/03P Tetra Laval at para 39 where the Court of Justice held that Article 2 of Regulation 139/2004 confers on the Commission a certain degree of discretion, especially with respect to assessments of an economic nature, and that the courts must take account of that margin of discretion when reviewing the Commission’s assessments.

However, the Court specified that this margin of discretion with regard to economic matters does not mean that the Union Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature.

According to the Tetra Laval formula, their task is threefold: they must check whether the evidence relied on is factually accurate, reliable and consistent, whether all relevant facts have been collected and whether this evidence is sufficiently robust to substantiate the legal conclusions which the administration draws from it. This was recently reiterated in another merger case, Case T-370/17 KPN BV (para 60).

So this so-called ‘manifest error test’ does not imply that the Union Courts should limit the intensity of their review; it simply implies that these Courts cannot substitute their own views to those of the administration.

Recent judgments show that in applying this standard the General Court has subjected the Commission’s findings, even those involving complex economic assessments, to rigorous scrutiny. It has to be admitted, though, that in comparison with the review of cartel and abuse of dominance decisions penalising past conduct, in merger cases, where the assessment is prospective and not retrospective and sanction-based, the burden and standard of proof facing the Commission may be lower.

1 The views expressed in this presentation are those of the author and do not necessarily represent those of the institutions to which he is affiliated.