Conex Banninger Ltd v The European Commission

A national court retains a discretion whether to grant declaratory relief and whether to refer questions to the Court of Justice under Article 267 TFEU. In competition proceedings, that discretion should ordinarily be exercised with restraint while the Commission’s investigation is pending. The policy underlying the rule that preparatory Commission measures are not immediately reviewable includes avoiding pre-emption of the Commission’s decision, conflicting conclusions, confusion between administrative and judicial stages, and interference with the allocation of institutional powers. The principle of effective judicial protection does not require a new national remedy where the undertaking has an available route to challenge the Commission’s action before the EU courts. A reference should not be made where there is no realistic prospect that it will obtain the protection sought.

Conex sought declarations that it could not be liable, by succession or otherwise, for competition-law infringements attributed to companies whose assets it had acquired after their insolvency. It also sought a reference to the Court of Justice concerning the availability of a national declaratory remedy and successor liability under Articles 101 and 299 TFEU.

The Commission contended that the claim would improperly interfere with a pending investigation, that any challenge should await a final Commission decision and proceed by an action for annulment, and that the declarations would not bind it. The central issue was whether the court should exercise its discretion to make the proposed reference before the Commission had completed its investigation.

1. The application was dismissed. The court declined to refer either proposed question to the Court of Justice.
2. The judge reserved the wider question whether the English court had jurisdiction to grant the declarations sought. Both the declaratory remedy and an Article 267 reference involved judicial discretion, and the application could be resolved by exercising that discretion.
3. Ordinarily, the court would defer the substantive claim until the Commission had completed its investigation. That approach followed the principles in Masterfoods v HB, Article 16(1) of Council Regulation (EC) No 1/2003, and Iberian UK Ltd v BPB Industries. The purpose was to avoid conflicting conclusions on competition issues, including the scope of the EU-law concept of an agreement between undertakings.
4. The reasoning in IBM v Commission and Intel v European Commission was not confined to the admissibility rules for direct actions for annulment. It reflected a broader policy against pre-empting EU institutional decisions, anticipating the substantive case, confusing procedural stages and undermining the sound administration of justice. The possible exception for acts lacking even the appearance of legality was immaterial because successor liability was arguable on both sides.
5. Unibet (London) Ltd v Justitiekanslern did not require a national court to create a free-standing remedy against preparatory acts of EU institutions. It concerned effective remedies for challenging national law, and Conex was not required to breach any law or expose itself to penalties before seeking protection.
6. Effective judicial protection did not require an alternative national remedy because Conex could have challenged the Commission’s formal information request before the General Court by an action for annulment. Delay and the possible commercial impression of such proceedings were features of the EU remedial system, not grounds for enlarging domestic remedies.