* EU's highest court backs Commission claim against elevator
* EU regulators seek 7 mln euros from Otis, Kone, Schindler,
* Commission's first cartel compensation claim
By Foo Yun Chee
BRUSSELS, Nov 6 The European Commission can
claim compensation like any other customer from companies which
it has found guilty of fixing prices, Europe's highest court
said on Tuesday.
The Commission is seeking compensation for having overpaid
for escalators and lifts in European Union buildings in Brussels
and Luxembourg as a result of a cartel formed by Otis,
Kone, Schindler and ThyssenKrupp.
The European Court of Justice said the Commission, the
European Union's executive, could seek damages from companies
that had collaborated in a cartel because of the harm it had
suffered as a consumer.
The Commission launched a damages claim in 2008 on behalf of
the EU after its had fined the four companies and Mitsubishi
Elevator Europe 992 million euros ($1.3 billion) for the cartel
in Belgium, Germany, Luxembourg and the Netherlands.
The Commission asked a Belgian court to award damages of
about 7 million euros from U.S. conglomerate United Technologies
Corp's Otis, Swiss-based Schindler, Finland's Kone and German
Asked by the Belgian court to clarify several points,
European Court judges ruled that the Commission was entitled to
seek compensation on behalf of the European Union.
"The Charter of Fundamental Rights does not prevent the
Commission from bringing an action, on behalf of the EU, before
a national court for compensation for loss caused to the EU by
an agreement or practice contrary to EU law," the court said.
But it said that EU rules clearly block the Commission from
using information gathered during an antitrust investigation for
other purposes. Lawyers said this would determine how the
Commission could proceed with such damages claims.
It was possible some defendants would challenge the
Commission's adherence to such a legal safeguard, said Tobias
Caspary, an antitrust lawyer at London-based firm Fried Frank.
"This is obviously a landmark case and a victory for the
Commission. However, the minute the Commission puts itself in
the shoes of a private plaintiff, it potentially exposes itself
to the same risks any other private plaintiff would face in
European damage claims," he said.
He said defendants could argue that the Commission used
information obtained in connection with its cartel investigation
to support its damage claim.
Judges would review such challenges under the rules and
procedures of the relevant member state, which could have
differing results, Caspary said.
It was also possible that suits could be filed in a
"defendant-friendly" EU country to try to prevent the Commission
from launching a damage claim in other EU member states.
The EU competition watchdog has sanctioned 187 cartel
participants in the last five years.