116.oldal

 A "cikksorozat" további folytatását a választásokig szüneteltetem, mert nem célom, hogy bárki politikai céljai érdekében  használja fel.Köszönöm megértésüket!

Az UNIÓ joga szerint minden tagállam polgára jogusult a tagállam hivatalos  nyelvén levelezni az UNIÓ intézményeivel.A magyar is hivatalos nyelve az Uniónak! Biztosan van elegendő tolmács, hiszen csak az Európai Bizottság 25.000 főt foglalkoztat. Egy egész közepes város lakosságát. Ennek ellenére 24 hónap alatt azért nem értek ennek az ügynek a végére, mert szerintük sok volt a lefordítandó anyag. Majd lehetséges  lesz megtekinteni az UNIÓ JOGA  szerint, mit fordítottak le egyáltalán a beadványokból, hiszen a közokiratokkal bizonyított koholmány pár oldalon összefoglalható és "elemzéséhez" nem kellenek évek, csupán órák.

Azt szokták mondani,hogy "Aki nem tud arabusul, ne beszéljen arabusul",ami ez esetben azt jelenti, ha nem tudnak, vagy nem akarnak tudni magyarul, akkor ne beszéljenek magyarul, ne elemezenek magyarul (hátha fertőződött a Bizottságban a magyar rezidens és átterjedt a magyar ügyitézőre, aki a fordítandó anyagot kijelöli). Ezért kénytelen voltam angolul megküldeni az alábbi  anyagot (magyarul olvasható a 97.oldaltól). Így talán nehezebb lesz elsumákolni a közokiratokkal bizonyított tényeket, ugyanis a magyar közokirat az Unióban is közokirat! Az angol nyelvű szöveget még az UNIÓ korrupció gyanus ügyeit nézegető oknyomozó újságírók is "elemezni" tudják esetleg...

Honourable Legal Service,

Honourable Mr Ben SMULDERS, Senior Legal Counsel,

Re: Communication of supplementary statement of facts in the matter of complaint No. CHAP (2011) 02941.

Upon your opinion dated 4 December 2013 may I present you, within the provided time limit, this submission as supplement to my case of complaint. With regard to the summary character of my letter I send you this summary also in English language, in order to diminish the problems of translation, so as to render it easier for analysis and utilisation in a larger scope of professionals.

I built my fundamental references on the fact that, in accordance with the law of the European Union, neither any organ of the Union, nor a court of a Member State or a private individual has the right to consideration in the respect whether to apply or not the provisions of the EU law, whether to comply or not with such prescriptions.

The regulation of the European Union and the case law of the European Court of Justice may be annulled exclusively by the European Court. Thus the court of a Member State acting at last resort is charged by the obligation of seeking preliminary ruling, since the refusal of the application of an EU regulation is, in its consequences, equal to qualifying it invalid. (See more in detail in Chapter III.)

With regard to the references in my lawsuit and the earlier references of the Union I will invoke, in this submission of mine, “Article EC 81 and the provisions of the “Community” law”

The notice issued by the European Commission under the title “TFEU Commission Notice on the cooperation between the Commission and the courts of the EU Member States” expects the application of the TFEU Article 101 by the courts of the Member States.

This notice begins as follows: „After the entry into force of Council Regulation (EC) No 1/2003 on the implementation of the competition rules laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 81 and 82 of the Treaty Establishing the European Community (TEC)) establishes a system of parallel competences, in which the Commission, the EU, the countries of competent national competition authorities and the national courts can all rely upon Articles 101 and 102 of TFEU. Cooperation between national courts and the Commission is governed not only by the present notice but also by the Notice on Cooperation within the Network of Competition Authorities.”

My submissions provided in the matter of complaint contain the infringement of the “statute” of EU competition law (and the refusal of the application thereof), and also the violation of the provisions of the EU law, which have not been analysed by the Legal Service, but you did not at all cover this issue in your opinion.

The Hungarian courts (as evidenced by public deeds issued by them) refused (bypassed) in this matter (in six (6) court proceedings so far), considering the provisions of Council Regulation (EC) No. 1/2003, as well as other principles of law of the European Court, which is equivalent to the fact that although in the course of the arbitration proceeding Article 81 (1) of the Council Regulation (EC) No. 1/2003 has been applied –, however, in the proceedings of review the national courts refused application of the EU competition law. This proceeding of theirs resulted in failing to ensure enforcement of the prescriptions of the EU competition law.

May I inform the Honourable Legal Service that the national courts have not refused initiation of preliminary ruling on the EU competition law because they had no concerns, but because they were aware of the fact that they had complied with no prescription whatsoever of the EU competition law. I will prove this latter fact item by item in my present submission.

In my present reply I will evidence, with reference to the public deeds forwarded to you already, that the arbitration court, having acted in the matter, has applied EC - Article 81 (TFEU 101) (1) and (2) with reference to the infringement of trade between the Member States.

In the proceedings of annulment the national courts refused revision and annulment of the award of the arbitration court, – which failed to comply with the prescriptions of the EU regulation on competition law, in violation of specific principles of law established by the European Court.

This proceeding of the arbitration court and the national courts having acted in the matter is such a serious violation of the procedural obligation (evidence) prescribed in Council Regulation (EC) No. 1/2003, which gives rise in the Complainant’s opinion to the institution of infringement proceedings by the European Commission, even without any further infringements in the matter by the aforesaid arbitration court and national courts.

In a case to the contrary Council Regulation (EC) No. 1/2003 invoked by the Commission does not provide any support for us, if the application thereof could have been refused intentionally by the judges acting in this specific case.

We consider that the requirements worded in your letter, according to which infringements violate the general interests of the Union only if they are repeated, may not apply to such a cumulated infringement. In the judgment of the Complainant Council Regulation (EC) No. 1/2003 has for task not or not only to protect the general interests of the Union, but it warrants also for private individuals the right to protection in competition law matters.

By the way, the repeated infringements may be evidenced as facts: namely, the award of the arbitration court violated, on the one hand, the provisions of the Eco Swiss judgment, since it had reviewed a contract having the force of res judicata, and, on the other hand, it violated also the prescriptions of Council Regulation (EC) No. 1/2003 through the application, without evidence, of TFEU Article 101 (1), and after that the courts of the Member State, the Supreme Court (old name), the Tatabánya Tribunal, the CURIA, the Constitutional Court, and the Metropolitan Tribunal infringed in competition with each other the prescriptions of the EU law and EU competition law.

After such a series of judicature of the national courts, ignoring the prescriptions of the EU competition law, how could it be possible for the European Commission – after having taken notice of all this – require that the Hungarian national courts should comply with the European rules of law?

The sole judgment of the national court of the Member State, which had annulled the arbitration award and invoked the Eco Swiss judgment, has been set aside by the Supreme Court. The Supreme Court made questionable the first arbitration award having been finally res judicata for several years, in order to hinder the applicability of the Eco Swiss judgment, violating the national law and even the Eco Swiss judgment itself.

“Furthermore the national courts must, according to the guidance, satisfy also the conditions relating to the application of the EU competition law, thus, for example, they must make possible that the Commission and the national competition authorities submit them written observations.”

The national courts did not make possible for the European Union or even the Competition Office to make any observations. At the same time it is perfectly indubitable that they are aware of the prescriptions of the national competition act (Section 91/H), according to which the Act on Civil Proceedings shall apply with the differences specified in Council Regulation (EC) No. 1/2003. Here we are already at the issue of the burden of proof! According to the prescriptions of the regulation on the EU competition law on the burden of proof rests upon the party or the authority alleging infringement.

The European Commission (too) shall be notified, if the necessity of the application of TFEU Article 101 arises. Did they notify the Commission?

Did the Hungarian courts satisfy their obligations specified in Council Regulation (EC) No. 1/2003 Article 15 (2), and did they sent to the Commission copies of the final judgments? They were namely applying TFEU Article 101.

These facts prove that the national courts of the Member State did not comply with any prescription of the EU regulation on competition law.

The opinion of the European Court cited above does not leave any doubt in the respect, how the ordinary courts of the Member State must proceed in the course of the application of the EU law:

In the case Simenthal II. (ECR 1978, 629, 106/77) the Court pronounced that “any and all state judges acting within their jurisdiction are obliged to apply the Community law without any restriction, and to protect the rights which are vested into the private individuals, in such a manner that the judges shall disregard […] all provisions of the national law potentially contrasting with the EU law.

In the matter subject to the complaint the state judges have not satisfied their obligations prescribed by the Court of Justice (too), they have always found allusion references in order to bypass the prescriptions of the EU law.

Without prejudice to my complaint and even reconfirming it may I request the further analysis of the following infringements:

CHAPTER I

VIOLATION OF THE OBLIGATION OF EVIDENCE

Notwithstanding any other facts and circumstances of the matter, prescribed in Council Regulation (EC) No. 1/2003 in the Complainant’s judgment, the requirement of the standard application of the EU competition law and at the same time the rights of private individuals to defence are gravely violated, when they i) failed to meet the obligation of evidence, alleging the review of the arbitration award in the arbitration proceedings, and then ii) refuse to review the arbitration award due to the violation, by the national courts, of Article 81 (1) of the Council Regulation (EC) No. 1/2003 (this article has been qualified by the EU law as an issue of public policy), so that particularly this latter infringement provides grounds for the institution of infringements proceedings.

 

In the Complainant’s opinion the fact of the omission of the obligation of evidence prescribed in Council Regulation (EC) No. 1/2003 and admittance of this omission by the national courts provide ground for the institution of infringements proceedings.

 

Statement of Fact No. 1: The agreement, annulled by the arbitration court who invoked grievance to trade between Member States, covered exclusively the Hungarian market. (By the way, should it be any kind of market covered by such agreement, the obligation of evidence would have existed even in that case as condition precedent to the application of Article 81 (1) of the Council Regulation (EC) No. 1/2003.)

Evidence: We prove by a public deed (by the text of the arbitration award) that the agreement annulled by them affected exclusively Hungary’s internal market.

“The Arbitration Court finds that the provisions of the articles of association of Güntner-Tata Kft. in paragraphs 4.2.1. and 13. a1., according to which they ensure exclusive right of distribution within Hungary for an indefinite period of time, relating to the products of “Güntner-Tata Kft., for the benefit of Mirelta Kft. are null and void.” [Highlighting in Award No. Vb/08279 page 1 by Complainant.]

Legal Position of Complainant

Evidence: We evidence by a public deed (text of the arbitration award) that the arbitration court applied exclusively referring to the prescriptions of the Community law, specifically to those of the Article 81 (1) of the Council Regulation (EC) No. 1/2003, which is prohibiting restriction of competition between the Member States, the provision on nullity set out in Article 81 (2) of the Council Regulation (EC) No. 1/2003, for the sake of the abolition of Complainant’s right relating to the distribution of the products of Güntner-Tata Kft. as follows:

Pursuant to Article 81 (2) of the Council Regulation (EC) No. 1/2003 the agreements prohibited in subsection 1 are null and void. Alleging this statement the arbitration court qualified Defendant’s powers set out in the articles of association paragraphs 4.2.1 and 13a.1., according to which he should be entitled to distribute the products of Güntner-Tata Kft. within Hungary, for indefinite period of time, on the basis of exclusivity. [Award Vb/08279 paragraph V/2 fourth indent.]

Legal position of Complainant:

For a reason inexplicable to date the arbitration court applied Article 81 (1) of the Council Regulation (EC) No. 1/2003 – prohibiting restriction of trade between Member States – to an agreement concerning the market of a single Member State, that is of Hungary.

Council Regulation (EC) No. 1/2003 setting out the substantive and procedural prescriptions of the Community competition law, which were to be applied mandatorily in the Member States having recently acceded to the EU, as of the accession, contained also the conditions of application of Article 81 of the Council Regulation (EC) No. 1/2003, in the absence of which the legal assessment of the application of Article 81 of the Council Regulation (EC) No. 1/2003 cannot be interpreted, but the arbitration court ignored this legal rule in its totality, violating the procedural rules of this secondary Community norm.

At the same time the arbitration court ought to have applied also Regulation (EC) 2790/1999 of the Commission, which was in force until 31 May 2010 (regulation on group exemption), since the arbitration court held that it should apply the provisions of the Community competition law.

Complainant’s unambiguous legal position is – in harmony with the prescriptions of the EU law – that application of Article 81 (1) of the Council Regulation (EC) No. 1/2003 is restricted exclusively to agreements influencing the trade between the Member States. Therefore the judgment of the arbitration court is in contrast with the substantive provisions of the EU competition law, and, additionally, they had not complied even with the procedural rules of the application.

Statement of Fact No. 3: Infringement of Article 81 (1) of the Council Regulation (EC) No. 1/2003 has been evidenced neither by the party alleging the infringement, nor by the arbitration court. 

Evidence: In the respect of the substantial requirements of the obligation of evidence we refer, to the judgment of the Court of First Instance (fourth chamber, 2 May 2006, in case No. T-328/03), paragraph 66:

„Case T-328/03 O2 (Germany) GmbH & Co. OHG v Commission of the European Communities

66      In order to assess whether an agreement is compatible with the common market in the light of the prohibition laid down in Article 81(1) EC, it is necessary to examine the economic and legal context in which the agreement was concluded (Case 22/71 Béguelin Import [1971] ECR 949, paragraph 13), its object, its effects, and whether it affects intra-Community trade taking into account in particular the economic context in which the undertakings operate, the products or services covered by the agreement, and the structure of the market concerned and the actual conditions in which it functions (Case C‑399/93 Oude Littikhuis and Others [1995] ECR I‑4515, paragraph 10).”

This judgment had been passed three years prior to the aforementioned award of the arbitration court, thus the arbitral panel had sufficient time in order to get acquainted with this (and a high number of other identical or similar EU case-laws and notifications of the Commission)

Furthermore:

Commission Notice No. 2004/C 101/07 on the notion on effect exercised on trade issued by the Commission of the European Union explains in detail that already the fact, where the possibility arises at all in relation to a given agreement, shall be assessed with high circumspection, in the respect whether trade between Member States is affected, and, consequently, whether Council Regulation (EC) No. 1/2003, Article 81 may be applied at all.

Article 12 of the Notice is as follows: „12. The effect on trade criterion is an autonomous Community law criterion, which must be assessed separately in each case. […] Community competition law is not applicable to agreements and practices that are not capable of appreciably affecting trade between Member States.”

In comparison thereto it is evidenced that the arbitration award (Award No. Vb/08279) does not contain any factual evidence relating to the alleged infringement of competition law committed in the specific matter. It states that “agreements in this nature qualify as a so-called grave restriction, and, therefore neither in the framework of the exceptions according to Section 81 (3), nor that of the regulations on group exemption may constitute exception”. (page 9, second indent)

 

Award No. VB/08279 referred to (in its quality of public deed) evidences that the arbitration court did not require any proceedings of evidence as to facts and they had not even conducted such proceedings of evidence regarding the economic and legal background, and the object and impact regarding the alleged infringements of competition law, and whether they were able to touch at all any trade between the Member States.

Statement of Fact No. 4: The ordinary courts refused review of the arbitration award, which had applied Article 81 (1) and (2) of the Council Regulation (EC) No. 1/2003, and which had not applied Council Regulation (EC) No. 1/2003.

Evidence: We evidence by public deeds (judgment of the Tatabánya Tribunal and that of the CURIA) the fact that the ordinary courts refused to review the arbitration award without proving concrete legal grounds for the refusal (any reference to the national or the Community law). The wording of refusal is as follows:

“However, the contents on the merits of an arbitral decision applying the national and Community law with regard to each other may not be assessed in a lawsuit on annulment.”

[Judgment of the Tribunal G.40.083/2011/20, page 29, second indent; judgment of the CURIA No. Gfv. X.30.094/2012/7, page 17, first indent.]

At the same time award No. VB/08279 (in its quality of public deed) evidences that it was not at all about “an arbitral decision applying the national and the Community law with regard to each other”, it happened unambiguously application of Article 81 of the Council Regulation (EC) No. 1/2003.

Our fundamental reference in this respect is judgment No. C-126/97. (Eco Swiss).

Legal position of Complainant:

The Hungarian state courts refused to review the award, applying the EU competition law, in spite of the fact that we have evidenced by the judgments of the European Court: Article 81 of the Council Regulation (EC) No. 1/2003 is a provision of public policy, which must be applied ex officio by the national courts.

Judgment of the Court of 1 June 1999. - Eco Swiss China Time Ltd v Benetton International NV.   Case C-126/97.

„41 The answer to be given to the second question must therefore be that a national court to which application is made for annulment of an arbitration award must grant that application if it considers that the award in question is in fact contrary to Article 85 of the Treaty (new numbering: Article 81), where its domestic rules of procedure require it to grant an application for annulment founded on failure to observe national rules of public policy.”

Otherwise, this is underpinned also by a number of other EU norms and judgments, e.g. in the famous case “Manfredi” (C 295/04) it was reinforced by the European Court that EC Articles 81 and 82 are rules of public policy, which must be applied by the national courts ex officio”, i.e. the EU competition law is a (mandatory) category of public law. (See comprehensively the relationship of the EU competition law and of the rules of public policy within the sense of the New York Convention: Gordon Blanke and Renato Nazinni id em Part II (Issue 2/2008), pages 80 et seq.)

Furthermore, the Community law allows the ordinary courts to review the issues of EU law arising before the arbitration court as follows:

„32 It is to be noted, first of all, that, where questions of Community law are raised in an arbitration resorted to by agreement, the ordinary courts may have to examine those questions, in particular during review of the arbitration award, which may be more or less extensive depending on the circumstances and which they are obliged to carry out in the event of an appeal, for setting aside, for leave to enforce an award or upon any other form of action or review available under the relevant national legislation (Nordsee, cited above, paragraph 14).”

Furthermore, the Community law not only allows, but also requires that the issues relating to the interpretation of the prohibition ordered by Article 81 (1) of the Council Regulation (EC) No. 1/2003, qualified as an issue of public policy, should be assessed by the national courts, and, if necessary, the issues of competition law may constitute subject of preliminary ruling before the Court.

“40. […] Community law requires that questions concerning the interpretation of the prohibition laid down in Article 85(1) of the Treaty should be open to examination by national courts when asked to determine the validity of an arbitration award and that it should be possible for those questions to be referred, if necessary, to the Court of Justice for a preliminary ruling.”

According to the legal position of Complainant the ordinary courts refused the application of the prescriptions, referred to, of the EU case law established by the Court in violation of the Community law.

The position of “principle” cited by the Tribunal and the CURIA are totally contrary to the provisions of the EU law referred to, with particular regard to the fact that the provisions of EU law may not be set aside by a national legal rule (e.g. Act).

We allege the decisions of the European Court of Justice made in the ERTA case [22/70 Commission v Council (1971) ECR 263], furthermore in several other cases as well [48/71 (1972) ECR 527], [4/73 (1974) ECR 491], according to which there is no rule of national law which could be relied upon in order to put the EU law out of force.

Under reference to these latter pieces of case law Complainant considers such reference to infringe the EU when it is about refusal of the obligation to apply the EU law, and reference is made to the application of the national and Community law “with regard to each other”, which would not have any legal grounds even if the law of the Member State included a provision to this effect.

Complainant submits, in order to underpin and complement the aforesaid explications, the following evidences to the Honourable Legal Service. However, according to the position taken by the Complainant the infringements set out in the previous paragraph are sufficient in themselves to find the grave violation of the EU law, and, respectively, to initiate the proceedings of infringement.

CHAPTER II

FURTHER EVIDENCE OF THE INTENTIONAL VIOLATION, BY NATIONAL COUTS, OF EU LAW AND EU COMPETITION LAW

Complainant finds that non-compliance with the prescriptions set out in Council Regulation (EC) No. 1/2003, protecting the rights of private individuals, is sufficient – with regard to the facts evidenced in Chapter I – for proving intentional infringement by the national courts, among them by that of the national court of the Member State judging the case at last resort.

Complainant will provide further and more detailed evidence of intentional infringements committed by the arbitration court proceeding as the second one, and also by the courts of the Member State.

1. Intentional ignorance of national res judicata in order to exclude applicability of paragraph 2 of the operative part of case No. C-126/97.

Violation of paragraph 2 and paragraph 48 (!) of the operative part of case No. C-126/97, and in general violation of the EU principles of law specified in this case law.

Annulment of the competition office proceedings for an agreement, declared legally valid by an arbitration award, is unlawful in a newer arbitration proceeding, and in the course of the proceedings of revising this newer arbitration award by the state courts regarding the decision of the arbitration court, having acted as the first one, is also unlawful considering Article 101 of TFEU.

The last indent of page 34 of the first arbitration award (Vb.07129) supports that the decision, included in a public deed (arbitration award), settled the legal relationship between the parties in such a manner that it pronounced invalidity of the contract, including also the competition law agreement only in respect of the option right, found otherwise the legal validity of the contract as follows:

„On the basis of Section 239 (1) of the [Hungarian] Civil Code, should the invalidity of a contract exist in respect of a part thereof only, the invalidity of the full contract may only be found, if the parties had not entered into the contract in the absence of this invalid part. On the basis of the contents of the contract the arbitration court did not find the invalidity of the whole contract. Exercising the option was not required but it depended on the defendant’s discretion; furthermore, the contract has also regulated, what are these rights, the parties dispose of during the period of time lasting until the call-off of the option (logically also for the case if they do not make use of the purchase option).

By the way, parties stipulated even themselves, in paragraph 11 of the sale and purchase contract and members’ agreement, dated 15 September 2013, the partial invalidity as a legal consequence to be applied for the case, should certain provisions or parts of the agreement be null and void.”

Against the arbitration award no proceedings for annulment have been instituted, thus it obtained finally the force of res judicata. Since this decision had not been avoided by anybody, therefore it could not have been invalidated as well.

The second arbitration award revised, with reference to Article 81 (1) of the Council Regulation (EC) No. 1/2003 and ignoring the final force of res judicata, the former and final arbitration award annulled the agreement concluded on 15 December 2003 and existing even after 1 May 2004, relating to the exclusive right of distribution in Hungary of the products manufactured in Hungary, without evidences, alleging Article 81 (2) of the Council Regulation (EC) No. 1/2003.

The second arbitration award evidences, as a public deed, that the newer arbitration award revised the provision, relating to the maintenance in legal force of the contract, “objecting to the consequence” thereof, and annulled the first award with reference to Article 81 (1) and (2) of the Council Regulation (EC) No. 1/2003.

OPINION OF ADVOCATE GENERAL TIZZANO

delivered on 10 November 2005

“23      It should be added that the judgment in Kühne & Heitz, to which the national court refers in Question 1(a), is not such as to call into question the foregoing analysis. Even assuming that the principles laid down in that judgment could be transposed into a context which, like that of the main proceedings, relates to a final judicial decision, it should be recalled that that judgment makes the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision (see paragraphs 26 and 28 of that judgment). In this case it is sufficient to note that it is apparent from the reference for a preliminary ruling that that condition has not been satisfied. “

23.It follows, the Court has further held, that Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to ascertain that the decision infringed Community law.

See Eco Swiss, a case that actually concerned an arbitration award, at paragraph 48: ‘Community law does not require a national court to refrain from applying domestic rules of procedure according to which an interim arbitration award which is in the nature of a final award and in respect of which no application for annulment has been made within the prescribed time-limit acquires the force of res judicata and may no longer be called in question by a subsequent arbitration award, even if this is necessary in order to examine, in proceedings for annulment of a subsequent arbitration award, whether an agreement which the interim award held to be valid in law is nevertheless void under Article 85 of the Treaty’.

And this is pronounced by the judgment passed in this case C-234/04 on 16 March 2006 in its paragraphs 20, 21 and 24:

 

„20.      In that regard, attention should be drawn to the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question. (Judgment in Case No. C-224/01 Köbler on 30 September 2003 [ECR 2003 I-10239, paragraph 38).”

„21.      Therefore, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue (see, to that effect, Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraphs 46 and 47).”

„24.      Having regard to the foregoing considerations, the answer to Question 1(a) must be that the principle of cooperation under Article 10 EC does not require a national court to disapply its internal rules of procedure in order to review and set aside a final judicial decision if that decision should be contrary to Community law.”

JUDGMENT OF THE COURT (First Chamber)

16 March 2006 *

In Case C-234/04,

REFERENCE

The interpretation by the advocate general cited above and paragraphs 20, 21 and 24 of the judgment are in harmony with the contents set out in Paragraph 2, of the operative part of the Eco Swiss judgment, with the proviso that in accordance with the Court’s judgment a contract approved by a previous arbitration award, having the force of res judicata, may not be revised in a subsequent arbitration proceeding and may be revised by the state courts either, in the course of the proceedings of a national court in respect of annulment.

Complainant requests the Legal Service, with reference to the aforementioned interpretation of the Court, to review its opinion relating to the interpretation of paragraph 48 of the Eco Swiss judgment. Namely, the contents of paragraph 48 may not be, substantially, in contrast with the contents of paragraph 2 of the operative part and we have not even stated that the total case law of the EU should prescribe “that the principle of respecting the res judicata must be ignored in all circumstances in competition matters”, but we state just the contrary to this position: on the basis of the case law of the Court the rules of the court of a Member State must always take into account the rules relating to the own national res judicata.

And it is true that the (first) arbitration award, which had not been avoided via proceedings of annulment has obtained finally the force of res judicata under Hungarian law, and apart therefrom there has not existed any example for the point that any court should have broken the force of res judicata of an arbitration award without any proceedings of annulment.

The legal position explained in the ruling of the [Hungarian] Supreme Court upholds the decision of the first arbitration award, having the force of res judicata, subject to variation, via the second arbitration award (in contrast to the principle of national res judicata and violating the EU legal principles referred to), because:

“In the course of the second arbitration proceedings … the Court found, when examining the requests submitted to it and having analysed in detail the contents set out in the articles of association of Güntner TATA Kft., created by the parties, that a provision thereof (exclusive right to distribution in Hungary) became gravely market-restrictive due to the situation established by the first arbitration award, since it found the nullity of the stipulation relating to the purchase option, because thereby the exclusive right to distribution became unlimited in time” (ruling No. Gfv.X.30.138/2011/11., last indent of page 24).

The aforementioned citation proves that the EU regulation, relating to the equivalence of the principle of res judicata, is in vain, if in the practice “the situation having come into existence via the first arbitration award”, i.e. the situation having finally the force of res judicata, can be altered having reference just to the EU law.

In Case C‑2/08,

24. In the absence of Community legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law (principle of effectiveness) (see, to that effect, Kapferer , paragraph 22).

Complainant does not agree with the interpretation given by the Legal Service that it is sufficient if the principle of equivalence is realised in the case of the rules concerning the principle of res judicata. It is much more important to draw to account the national courts in the respect of the principle that the national courts may not deviate, in the practice either, from the principle of res judicata, in order to hinder thereby the enforcement of the EU law.

The rules of the principle of res judicata may not be differentiated, by anyone of the Member States, in function of the fact that applying the EU law would be more disadvantageous than in similar internal cases. This does not warrant, however, the equivalence of the application of the principle of res judicata in the course of the implementation. Already the legal sides of the specific case underpin as well the request for interpretation from the EU court, because it is not about an individual injury only, but also about the reasonableness of the exclusion, in reality, any possibility of the infringing application of an EU principle.

2. Infringement of Article 101 (1) of TFEU, in the second arbitration proceedings.

Finding the infringement of trade between Member States is, in the absence of evidence, a fiction only.

In the event of non-performance of the obligation of evidence prescribed in Regulation 1/2003/EC – relying on Article 101 (1) of TFEU –, the application without evidence of a quasi penal law sanction set out in Article 101 (2) of TFEU is seriously violating the rights of private individuals.

The regulation of the Council is setting out unambiguously the obligation to evidence the infringement of the prohibition stated in Article 101 (1) of TFEU. We wish only to prove, in the following explications, within what a scope the case law of the court requires assessment of the “compatibility with the common market” of an agreement, i.e. in which scope the arbitration court ought to have conducted the proceedings of evidence in order to come to the statement of infringement.

In this scope we allege Section 66 of the judgment of the Court of First Instance (chamber No. 4, 2 May 2006) in case T-328/03. (cited in chapter I)

On the basis of many other judgments and opinions of the Court of First Instance (furthermore, of the Court and the Commission) Complainant considers evidenced that the penalisation of the alleged infringement of the EU competition law without evidence, merely an “enunciation”, may not be applied either by an arbitration court or by the court of a Member State.

Complainant considers evidenced that the application of the prescriptions relating to the prohibition under the EU competition law had taken place, second arbitration proceedings, via the grave infringement of the EU competition rules, i.e. the application of a sanction was made in the absence of examining the compatibility, with the common market, of the agreement, i.e. the infringing sanction has been applied, relying on the prohibition stated in Article 101 (1) of TFEU.

3. In the course of the annulment of an arbitration award, substantial review of such award by the state courts is possible in the event of the application of the EU law, and it is mandatory particularly in the event of the application of the EU competition law (Article 101 of TFEU), subject to the rules of public policy. (Case No. C-126/97, paragraphs 32, 39 and 40)

Under this title we wish to prove that the courts of the Member States were not in the position to refuse substantial review of the second arbitration award, which relied on Article 101 of TFEU.

In the event of the application of the EU competition law by the arbitration court the review is made possible by the case C-126/97, on the basis of paragraph 32 of the case law referred to, while the review of the application by the arbitration court is made mandatory by paragraph 40 of the case law for the national court, since according to case law in paragraph 39 Article 101 of TFEU is qualified as a provision relating to the national rules of public policy, thus its illegal application or non-application must result in the annulment of the arbitration award.

The fact that the Tatabánya Tribunal refused, alleging Section 56 (2) of the Competition Act, on page 28 of its judgment 9. G.400.083/2011/20. the review of the arbitration award relating to the “application of Articles 81 ( -86) of the EC Treaty in arbitration proceedings”, is quite contrary to the prescriptions of the case law referred to and it means refusal of considering the case law, which is obviously equivalent to the infringement of the legal principles created by the Court and to the refusal of the application of the EU legal principles. This interpretation of law has been accepted by the CURIA having acted at last resort.

Refusal of the review of the arbitration award infringes the legal principles relating to the standard application of the EU competition law, since the European Court disposed just in the interest of the enforceability of this legal principal in such a manner that the review of an arbitration award, by state the courts is mandatory, if such a request is submitted to the national court.

4. Infringement of competition law must be evidenced by the party stating it. The obligation of evidencing has not been performed. Ensuring the right to defence was refused and hindered.

In spite of the application of Article 101 of TFEU the national courts of Hungary have not complied with anyone of the mandatory prescriptions provided for in the Regulation 1/2003/EC, concerning the EU competition law.

As it can be seen, the Hungarian courts considered invalid the regulation of the Council in the respect of themselves, in the respect of the case of competition law, having been heard by them in six proceedings by now, and also in respect of the Complainant, they have not applied any word thereof, it was in vain that we have made reference to it on a continuous basis.

In accordance with the EU law neither an arbitration court or the court of any Member State or any private individual dispose over the right of consideration in the issue, whether they should or should not comply with the regulation of EU and the prescriptions thereof, whether to apply the provisions thereof.

Namely, the Community (EU) regulation is the primary tool of the standardisation of law. It is an act in the nature of legal rule and covers a scope of legal subjects defined in generality: it is compulsory for the Member States, the citizens of the Member States and also for the institutions of the EU. A regulation is a source of law to apply directly, i.e. it will become part of the national legal system without any further act of a Member State and without any provision relating to the implementation thereof.

“Secondary law is a source of law, which is typically effective immediately in each direction: Regulation 1/2003/EC (Article 189, second phrase)”

It is a fundamental question, which the EU bodies have to reply in the opinion of Complainant, whether the courts of a Member State are entitled to deny the application of a regulation adopted by the Council and the execution of the prescriptions thereof.

The next big fundamental question is, if the European Commission may indulge that the courts of Hungary as a Member State apply in their discretion the European competition law, how we will we be able to force them that they take seriously the prescriptions of the EU law?

The arbitration court determined that the EU competition law should be applied in lieu of the Hungarian substantive law, to be found and stipulated in the agreement on arbitration. After that nobody has examined anything and nobody has evidenced anything, only a mere reference, relating to the EU competition law has happened.

Arbitrarily refusing any opportunity for defence Article 101 (2) of TFEU was applied as sanction in penal nature as acknowledged also by the European Court, in such a manner that national courts of six various instances approved it, infringing thereby the competition law of the EU.

Should there exist a legal act, unknown to ourselves, of the EU bodies, which would allow the courts of Hungary, as Member State, to refuse application of a regulation of the EU competition law, then we would like to know, which is this prescription, which one of the EU bodies has adopted it, for that we may claim refund of our losses in the future.

It cannot be imagined that in one of the most important fields regulated by the EU, in the field of the EU competition law so many loose rules could be enforced that the courts of Member States, ignoring totally the competition law, should be capable of causing so much damage to private individuals (without any consequences), as they wish to.

We presume that the Legal Service and the European Commission are aware of the fact that the judges of the courts of lower instance do not dare to find the infringement, committed by the court acting at last resort, by a court of higher instance, due to reasons of existence, and they do not adjudge the liability for damages of the state, and the court acting at last resort will not find its own infringement at an even higher level of probability.

The public deeds already submitted to the Legal Service prove with all of their force of proof that the arbitration court having acted as the second one and the courts of the Member State applied Article 101 (1) of TFEU of the EU competition law without meeting the smallest level of the obligation of evidence and without providing the right to defence.

The Regulation 1/2003/EC is setting out in detail the rules of application and the conditions of application of Article 101 of TFEU. For the sake of the judgment of the case may we make several supplementary references, namely that the Legal Service is aware of the fact that a substantive legal rule of the competition law may not, obviously, find application at the same time as the denial of the conditions of application.

Should the Honourable Legal Service interpret Article 101 of TFEU in such a manner that it is capable to be applied notwithstanding the prescriptions of the Regulation 1/2003/EC in itself, may we request an unambiguous explanation for this interpretation.

The documents, particularly the reasoning of the second arbitration award prove that

• the party to the lawsuit alleging Article 101 (1) of TFEU has not even tried the factual evidence of the possibility of the application of such rule, and also the party having applied the Article did not try to provide factual evidence (denial of the obligation of evidence);
• by these unlawful proceedings the arbitration court deprived Complainant of all opportunity to defence (denial of the right to defence)

The obligation to evidence relating to agreements violating allegedly the trade between the Member States is evidenced, over and above the Council’s regulation, also by the European Court and the European Commission in their case law.

Submitted documents prove that no one of the Hungarian courts did examine anything (verbally anything). In order to avoid redundancy we deem sufficient to quote one or two positions taken by the Court or by the Commission, since the Legal Service is of course well aware thereof.

The text of the agreement “declared null and void” proves in itself that the right to distribution, in Hungary, of products manufactured in Hungary allegedly “infringed” the trade between the Member States”, which is already in itself an absurd finding, since the courts were not eager to know either whether it was about water, milk or equipment for a power plant, or the fact that 95% of the products was exported to other Member States, thus there was nothing to hinder trade between Member States.

Council Regulation (EC) No 1/2003 refers expressly to the fact that this regulation must be applied with regard to the prescriptions of the Charter of Fundamental Rights.

 (37) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Regulation should be interpreted and applied with respect to those rights and principles.

The Hungarian courts had “solved” “respect of the aforementioned rights and fundamental principles” by refusing application of the whole competition law regulation.

The prescription below of the Council Regulation summarises the rules relating to respecting the enforcement of competition rules and of the fundamental right to defence:

 

 (5) In order to ensure an effective enforcement of the Community competition rules and at the same time the respect of fundamental rights of defence, this Regulation should regulate the burden of proof under Articles 81 and 82 of the Treaty. It should be for the party or the authority alleging an infringement of Article 81(1) and Article 82 of the Treaty to prove the existence thereof to the required legal standard. It should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate to the required legal standard that the conditions for applying such defence are satisfied. This Regulation affects neither national rules on the standard of proof nor obligations of competition authorities and courts of the Member States to ascertain the relevant facts of a case, provided that such rules and obligations are compatible with general principles of Community law.

In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringement of Article 81(1) or of Article 82 of the Treaty shall rest on the party or the authority alleging the infringement.

This burden of proof was devolved upon the Complainant with a wording which was unworthy of a court, saying that: in the (second) arbitration proceedings both parties declared their opinions in relation to Article 81 of the EC treaty. (…) On the basis of all this it can be found that the plaintiff was allowed, in the (second) arbitration proceedings to offer evidence in relation to Article 81 EC (…) (judgment No. 9.G.400.083/2011/20., page 30, first indent)

It happened this way that the national court reverted intentionally the burden of proof relating to the violation of Article 81 (1) of the EC Treaty, at the same time neither the party alleging infringement nor the arbitration court evidenced the infringement, and the Complainant has become aware of the fact that the arbitration court applied Article 81 (1) and (2) of the EC treaty from the award served in writing, while in the meanwhile the Complainant ought to have taken defence against the facts of the alleged infringement, which is unknown to date.

The CURIA, adopting the final decision, joined on page 17 of its judgment No. Gfv. X.30.094/2012/7, the infringement of the court of first instance, neglecting the provision relating to the burden of proof of 1/2003/EC, and CURIA explained that ”a court of the state shall not be obliged to examine, what was stated by the parties before the arbitration court in concreto, but merely the fact whether they had any possibility to submit their positions taken in their case.

The CURIA has thereby exempted the party stating infringement from the performance of obligation to evidence and replaced it by the fact of devolving upon the Complainant the consequences of the non-performance of the obligation to evidence prescribed in the EU competition law regulation. The CURIA has not taken into consideration either that it was the non-performance of the obligation to evidence, which resulted at the same time in refusing any opportunity to defence from the Complainant.

 

 

III.rész akövetkező 117.oldalon.

 

 

 

 

 

 

Oldal: 116.Aki nem tud arabusul, ne beszéljen arabusul!
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