Tick-tock: no reset of the appeal clock for amending Commission decision
The European Court of Justice recently upheld the General Court's order finding that metal production and recycling company Eco-Bat had submitted its appeal outside of the appeal term. Eco-Bat had relied on the term starting from the date of the European Commission's decision correcting figures for the fine calculation in the initial infringement decision.
The Court of Justice ruled, however, that such an amending decision does not reset the appeal period if the company could have understood the grounds and content from reading the initial decision. If uncertain, companies should therefore take the safer route and calculate the appeal term from the date of the first Commission decision.
On 10 February 2017, the Commission notified Eco-Bat of their infringement decision in the car battery recycling cartel. Almost two months later, an amended decision was issued. This amendment corrected the omission of Eco-Bat's value of purchases, which was used when determining the basic amount of the fine in the initial decision. Eco-Bat appealed the decision within the required two-month term, calculated from the notification of the amending decision.
The General Court found that the value of purchases, as used by the Commission to calculate Eco-Bat's fine, could have been understood by Eco-Bat from reading the initial decision. The clock had therefore started ticking upon notification of the first infringement decision, not upon notification of the amending decision. Eco-Bat's action was therefore dismissed for having been brought out of time.
The Court of Justice, in rejecting Eco-Bat's appeal, took as a starting point the General Court's finding that the correcting element could have been ascertained by Eco-Bat by reading the initial decision. The two-month term starts to run from the time the addressee becomes acquainted with the content and grounds of the decision. Even if the amending decision corrects more than a purely formal omission, the decision does not affect the appeal period if the undertaking could have understood its grounds and content.
This judgment clarifies that the category of re-issued Commission decisions that do not restart the clock for submitting an appeal with the General Court includes more than purely formal changes. Adding figures that could have been understood by the addressee is such a change. If uncertain, companies should take the safe route and calculate the appeal term from the date of the first Commission decision.
This article was published in the Competition Law Newsletter of April 2019. Other articles in this newsletter:
- European Court of Justice sets aside Portuguese rules time-barring a damages action
- Fine liability in antitrust cases is closely scrutinised by Dutch courts
- Don't take the ACM's digital inspection guidelines too literally
- Loyalty rebate scheme 'saved' by pharma company's market misconceptions
- European Court of Justice issues landmark ruling on parental liability
