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Publishers Abstract:
In October 2002, the European Court of First Instance annulled the European Commission merger prohibition decisions in Airtours/First Choice and Schneider Electric/Legrand. The following year, MyTravel (formerly Airtours) and Schneider Electric brought unprecedented actions for damages to recover losses allegedly caused by the Commission's unlawful intervention. This article will examine the arguments against and in favour of such actions, and will suggest an analytical framework in which to consider the Commission's potential liability in damages under the EC Merger Regulation (ECMR). The pending MyTravel and Schneider damages actions raise important issues of policy and principle and could potentially have far-reaching implications for the Commission's enforcement of the ECMR. Any right to reparation under the ECMR necessarily arises within a legal framework in which the public interest in maintenance of effective competition features prominently alongside the financial interests of the merging parties. There is no doubt that the Commission's manifest errors of assessment will form an integral part of the inquiry into whether there has been a 'sufficiently serious breach' of Community law.
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