search

… The first plea in 82 The first plea is based on 6 of the ECHR and of the of Fundamental Rights. According to the applicant, it is apparent from those two read together that a fine may be imposed only by an ‘ and by ’ which fulfils all the procedural safeguards provided for in Article 6 ECHR. Not only is the Commission not a court, but it combines prosecution and decision-making functions. …

… It is also justified by the need to ensure respect for the procedural safeguards provided for by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), signed in Rome on 4 November 1950, and of the Charter of Fundamental Rights of the European Union. 72 The applicant recalls that, according to the contested decision, the infringement that TP is alleged to have committed ended on 22 October 2009, and thus before the adoption of the …

… The applicant nevertheless asked the Court to exercise its unlimited jurisdiction, in accordance with the principles established in the case-law cited above, and, accordingly, to take account of both Article 6 ECHR and of the Charter of Fundamental Rights, as when examining the arguments put forward in support of the head of claim seeking adjustment of the amount of the fine. 84 It must therefore be held, in respect of the claim for annulment, that the applicant withdrew its first plea …

… of the adds more specific remedial protection, such as a requirement that hearings be fair, public, conducted within a reasonable time by an and by , that the rights of the defence are respected, and that legal aid is available. 35 - The explanations go on to state that the second paragraph of , encapsulating, inter alia, the fairness of hearings, corresponds to Article 6(1) ECHR. 36 - De Geouffre de la Pradelle v. …

… Therein lies the problem, particularly with respect to of the Charter. 3. of the Charter and the right to an effective remedy 40. …

… of the Charter of Fundamental Rights) I - Introduction 1. …

… A plea of that kind cannot therefore be fully effective in the context of an administrative appeal procedure (judgment in CR v Parliament, EU:F:2014:38, paragraph 40). 48 Thirdly and lastly, the points out that the principle of effective judicial protection is a general principle of EU to which expression is now given by the second paragraph of of the , pursuant to which ‘[e]veryone is entitled to a … hearing … by an and … …

… is compatible with of the Charter. …

… by …’. …

… of the Charter of Fundamental Rights. 77 Furthermore, according to consistent case-law, the Commission is not a ‘tribunal’ within the meaning of Article 6 of the ECHR (Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 81, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 7) or within the meaning of the second paragraph of of the Charter of Fundamental Rights. …

… It follows that, in order to comply with the principles laid down in of the Charter of Fundamental Rights, the Court should at the least exercise its unlimited jurisdiction in the present case and reduce the sanction to provide a more appropriate reflection of the gravity of the infringement. Saint-Gobain too asks the Court to exercise its unlimited jurisdiction by reducing the fine to an appropriate amount. 293 The Commission rejects those arguments. …

… That principle is now enshrined in of the Charter of Fundamental Rights (Case C-279/09 DEB [2010] ECR I-13849, paragraphs 30 and 31, and Case C-69/10 Samba Diouf [2011] ECR I-7151, paragraph 49). 83 It follows from the case-law that the judicial review of the decisions adopted by the Commission in order to penalise infringements of competition law that is provided for in the Treaties and supplemented by Regulation No 1/2003 is consistent with that principle (see, to that effect, Case C …

… Such a plea cannot therefore be fully effective in an administrative appeal procedure. 41 In the third, and last place, the recalls that the principle of effective judicial protection is a general principle of EU to which expression is now given in the second paragraph of of the , which provides that ‘[e]veryone is entitled to a … hearing by an and … by …’. …

… As the General Court observed, the right to an effective remedy and the right of access to an impartial tribunal are guaranteed by of the Charter (paragraph 40). 31 While it is true that the case-law referred to at paragraphs 27 and 28 above was developed in areas other than that of the civil service, Koninklijke Grolsch v Commission concerns the compatibility with of the Charter of a restriction of access to justice that was not expressly provided for by the legislature. …

… of the Charter of Fundamental Rights of the European Union, so that the person concerned may be in a position properly to challenge a decision of the appointing authority that adversely affects him and the principle of legal certainty, so that the appointing authority may be aware, at the complaint stage, the criticisms levelled by the person concerned against the contested decision (Commission v Moschonaki, paragraph 82). 28 Last, the case-law has applied the correspondence rule to an action …

… Article 6(1) of the European Convention on Human Rights (‘the ECHR’) provides, in particular: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an and by . …’ 6. …

… A good deal of criticism has been levelled at the Commission’s triple role of investigator, prosecutor and decision-maker in competition law enforcement procedures, and KME has cited some of that criticism in its appeal. (29) However, while there may be cogent grounds for taking the view that the Commission is not, in that regard, an ‘ and by ’, it seems to me that such considerations are, in reality, extraneous to the present appeal. …

… That implies, in particular, that it may be compatible with Article 6(1) ECHR for criminal penalties to be imposed, in the first instance, not by an ‘ and by ’ but by an administrative or non-judicial body which does not itself comply with the requirements of that provision, provided that the decision of that body is subject to subsequent control by a judicial body that has full jurisdiction and does comply with those requirements. (27) Put another way …

… and by . …’ Law of the European Union (‘EU law’) 4 of the of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), as adjusted at Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1), which is entitled ‘Right to an effective remedy and to a fair trial’, provides: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal …

… Legal context The European Convention for the Protection of Human Rights and Fundamental Freedoms 3 Paragraph 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), which is entitled ‘Right to a fair trial’, provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an …

… of the Charter of Fundamental Rights of the European Union (see Mono Car Styling, paragraph 47 and the case-law cited). 62 In that regard, it is common ground in the cases before the referring court that, by making the admissibility of legal proceedings concerning electronic communications services conditional upon the implementation of a mandatory attempt at settlement, the national legislation introduces an additional step for access to the courts. …

… In examining the second ground of appeal, high relevance must be attached to the provision made in Article 6(1) of the ECHR, according to which, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an and by . That fundamental right has taken on a similar form in of the of Fundamental Rights. 57. …

… I infer from those two provisions that the right to a fair trial enshrined therein and recognised in the case-law of the Court of Justice (12) necessarily includes the guarantee of an and . …

… In the opinion of the appellant, this fact is sufficient to show that there was a breach of the right to a fair trial by an impartial tribunal enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) and in of the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’). …

… That fundamental right has taken on a similar form in of the of Fundamental Rights of the European Union (43) according to which everyone is entitled to a fair and public hearing within a reasonable time by an and previously by . …

… In order to answer the first question, it is relevant to begin with the provisions of 6(1) of the ECHR according to which, in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an and by . …

… Otherwise there is a risk that the procedural guarantees provided for by Community law based on Article 6(1) of the ECHR and of the Charter of Fundamental Rights could be circumvented if a Member State were entitled to create an additional and competing jurisdiction. …

… A feature common to 6 of the ECHR and of the Fundamental Rights is that legal protection must be guaranteed by an and court or by and also operating publicly in accordance with fair procedure. 87. …

… The first sentence of 6(1) provides: ‘In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an and by .’ 80. Reference should also be made to of the of Fundamental Rights, (55) which, admittedly, does not yet have any binding legal effect. …

… Moreover, no comparable restriction on civil-law claims can be inferred from of the Fundamental Rights Charter either. It is thus sufficient if what is in issue is a right ‘guaranteed by the of the Union’. A claim for compensation under 1(4) of the Second Directive must unquestionably be treated as being such a right. 86. …