On 26 November 2013, the Court of Justice ruled in Kendrion v Commission (C-50/12 P), Gascogne Sack Deutschland GmbH v Commission (C-40/12 P) and Groupe Gascogne SA v Commission (C-58/12 P). These cases concerned a cartel in the industrial bags market, where the Commission fined 16 firms a total of EUR 290.71 million.
In its appeal before the Court of Justice, the appellants sought to have the judgment of the General Court ("GC") set aside or, in the alternative, a reduction of the fine due to the excessive length of the GC's procedure. As regards the setting aside of the judgment, the Court of Justice concluded that, in line with existing case law, the judgment could not be set aside as the appellants did not provide any evidence that the failure to adjudicate within a reasonable time could have affected the outcome of the dispute.
As regards the reduction of the fine, the Court of Justice referred to two cases. In the first case, Baustahlgewebe v Commission (C-185/95), the Court of Justice granted the reduction of the fine for reasons of economy of procedure and in order to ensure an immediate and effective remedy regarding a procedural irregularity. In the second case, Der Grüne Punkt – Duales System Deutschland v Commission (C-385/07), the Court of Justice held that the failure to adjudicate within a reasonable time can give rise to a claim for damages.
Although noting that the present cases and Baustahlgewebe v Commission were analogous, the Court of Justice ruled in line with Der Grüne Punkt – Duales System Deutschland v Commission. The Court of Justice stated that a claim for damages constitutes an effective remedy, since such a claim can cover all the situations where a reasonable period of time has been exceeded in proceedings. Although the Court of Justice stated that the General Court had failed to adjudicate within a reasonable time, it dismissed the appellants' pleas to reduce the fine imposed, given that a claim for compensation must be brought before the General Court itself.
With this judgment the Court of Justice explicitly criticizes the General Court and offers undertakings a remedy to claim compensation if EU court's fail to adjudicate within a reasonable time. However, it should be noted that it can be a difficult task to prove an undertaking was harmed as a result of the failure to adjudicate within a reasonable time, besides the fact that the damages might be relatively small.
