On 18th June 2020, the EU’s General Court is hearing an appeal by truck manufacturer Scania against a European Commission decision adopted in 2017 that found Scania participated in a 14-year price-fixing and information exchange cartel from 1997 to 2011 alongside five other major trucks manufacturers. Unlike those other five manufacturers, who admitted their conduct and ‘settled’ the case with the Commission, Scania contests the infringement findings against it.
Many cartelists elect – as is their right – to appeal against Commission decisions. But Scania’s appeal is notable for one chilling reason: the General Court is conducting the entire appeal behind closed doors. No press, no public, no scrutiny.
In some cases it may be necessary to hear arguments (or parts of arguments ) in private, due to the nature of the case or the information or allegations being discussed. But Article 31 of the Statute of the European Court of Justice, which applies to the General Court, is clear: closed-door hearings should be the exception, not the rule. It says: “[t]he hearing in court shall be public, unless the Court of Justice, of its own motion or on application by the parties, decides otherwise for serious reasons.” This is developed in Article 109 of the General Court’s Rules of Procedure, which provides that, “[t]he request by a party for a case to be heard in camera must include reasons and specify whether it concerns all or part of the hearing. The oral proceedings in cases heard in camera shall not be published.”
Serious reasons. What are those “serious reasons” in the case of Scania’s appeal – an appeal that relates to conduct occurring between nine and 23 years ago, concerning the interactions between six truck manufacturers? No issues of national security. No ‘crown jewels’ business secrets.
The answer is: we don’t know. Why? Because the General Court has not published its reasons for holding the hearing in camera.
What seems clear, however, is that the standard by which information has been deemed confidential in this case falls far short of the “serious reasons” referred to in Article 31. The Report for the Hearing, written by the Judge-Rapporteur as a summary of the issues in the appeal, lays this bare. One need only read as far as paragraph 3 to see that the identity of the immunity applicant – and all other leniency applicants – has been redacted. Yet it is a matter of public record that MAN was the immunity applicant, and that Volvo/Renault, Daimler and Iveco received leniency discounts: the Commission’s settlement decision of 2016, addressed to the five settling cartelists and published on the Commission’s website, says as much; as does the Commission’s press release which has been on its website for almost four years.
The Court appears to be accepting as confidential information that plainly is not. If this is the standard by which it has concluded that the entire appeal is to be heard behind closed doors, the Court is very obviously setting the bar too low.
It is concerning, disappointing and sinister (in equal measure) that decisions such as this cannot be challenged by anyone other than the parties. Without the ability to scrutinise, who holds the Court’s adherence to its own rules to account? What about open justice, transparency, democracy?
This is at least the second cartel appeal in recent years that has taken place behind closed doors – the other being HSBC’s appeal last September of the Commission’s Euribor infringement decision. Everyone with an interest in open justice will be worse off if the trend is now to bow to requests by companies with an agenda to avoid public scrutiny of their activities.
This is not how European justice should be done.
Hausfeld teams are acting on behalf of many claimants in the Trucks Cartel across several European jurisdictions.