The Introduction

For more than ten years, European citizens were paying exorbitant roaming charges, being victims of exploitation of a few mobile operators. The Commission opened an investigation which was to be concluded with heavy penalties in 2006. This would have resulted in the enrichment of the Commission’s budget by potentially a few billion Euros while citizens would be given the opportunity to collect over a decade’s worth of overcharges paid for roaming. All of a sudden, with big fanfare and for no apparent reason (the Competition proceedings would have had the same greater effect with less opposition), the Commission introduced a Regulation reducing roaming charges from one Euro per minute to 30 cents. This was the flagrant proof, beyond any doubt, that operators were overcharging citizens.
Following the glorification of the protagonists of the Roaming Regulation (EC 717/2007), silently and with no fanfare, the Commission stopped the investigation, no penalties were raised, European citizens (without knowing) were deprived of the possibility to claim back excessive charges, and the DG Competition closed the roaming investigation dossier. What we wanted to know is why, and to this effect we asked the European Commission to explain... Here is what happened...

 The Deception...

 Competition Spokesperson Jonathan Todd (see here for full transcript) ...

"...it’s a question of efficiency, an antitrust investigation if it had been continued, might have found that those companies had been umm... guilty of antitrust violations, but, the result of such a decision ... would have been those companies might have been fined. That would not have had any impact on the consumers that might have paid over the odds in the meantime."

 ... and The European Law

When the European Commission finds a breach of the competition rules, victims of that infringement can directly rely on the Commission’s decision as binding proof in civil proceedings for damages.Council Regulation EC 1/2003 and Case law of the Court of Justice (ECJ) both confirm that in cases before national courts, a Commission decision is binding proof that the behaviour took place and was illegal. Regardless of Commission fines to the infringing companies, damages may be awarded to the victims without these being reduced on account of the Commission fine. It is also necessary to note that under established ECJ case law, the discretionary power of the European Commission is not unlimited.

The Fact

(DG Competition Website)

The amount of the fines is paid into the Community budget. The fines therefore help to finance the European Union and reduce the tax burden on individuals

The Statement

Competition Commissioner Neelie Kroes (extract) ...

"The Commission takes all cartels seriously. Whatever the scope of the affected market, the duration of the cartel or the size of the companies involved; there is no safe haven for those who do not play by the rules."

The Evidence available

Director General - DG Competition - Philip Lowe (from letter to New Europe, printed September 3, 2006)

“ ... possible anti-competitive practices in relation to mobile roaming charges are being actively investigated under the EC competition rules ...” “On the basis of the evidence collected during the inspections and further investigations, in 2004 and 2005, the Commission initiated formal proceedings against Vodafone, T-Mobile and O2 regarding their roaming tariffs. The proceedings were launched on the basis of the Commission’s own initiative, and not prompted by a formal complaint. Both the above mentioned inspections and the following proceedings have been widely reported in the press. At the time of writing, we are waiting for the final submissions from the companies concerned who have legal rights of defense which must be respected. It is however to be expected that the Commission will be able to take a final decision in the very near future ...” “Commissioner Kroes and my Directorate General have from the outset actively supported and contributed extensively to the recent Commission’s initiative to table a regulation on roaming charges to the Council and the Parliament ...” “We regard this instrument as a necessary complement to the application of the competition rules ...”

NE comment

The honorable spokesman maintained that the effective reduction of the roaming costs and cessation of anti-competitive behavior was achieved through the regulation proposed by the Commission and adopted by the European Parliament and Council. However this reduction of the cost and (presumed) cessation of anti-competitive behavior would have been achieved more efficiently and even more rapidly by allowing the antitrust investigations to go on and taking a Commission decision. It is indeed at the discretion of the Commission whether or not to fine a company in breach of competition rules. But, by not reaching a decision, the Commission has denied the victims (customers) of these companies the “binding proof” that the Commission was sitting on.
The Commission has through its act of (at least) negligence, and having the evidence to prove illegal practices and withdrawing filed charges substantiates negligence; actively harmed the European consumer. As such, the Commission may also find itself liable under article 340 EC (ex 288) stating that: “In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.”

The Bottom Line

The bottom line in this situation is that the European Commission could have enabled customers (victims) of companies overcharging for roaming (infringers) to get their money back, by providing them with binding proof for national courts. Those who have lost most are the customers of Vodafone and TMobile in Germany, Vodafone and O2 in the UK, companies that the European Commission had opened proceedings against, and customers of who knows how many other companies in Europe the Commission had found evidence against.
The Roaming Regulation was exquisite. It was done in record time and with record result if one considers the magnitude of the industry Commissioner Viviane Reding was up against. We congratulate all those who worked hard to achieve what we have today. But many Europeans cannot help but feel that the Roaming Regulation has simply established new levels of cartel behavior. These new levels are lower than before, but nevertheless there. The Commission has set aside evidence from 1993 to 2003, which would enable European citizens to get their money back, either through collective or personal action.
The figures range in the billions of Euros, and if you consider that the roaming regulation is absolutely no excuse to not fine companies acting illegally for over a , we are potentially talking of tens of billions. This is not water under the bridge. New Europe reserves all its legal rights, and will no doubt make a European-wide issue of this. We invite the Commission to prove us wrong and come out with a public statement that they have no evidence of any competition rules broken (in the case of Roaming) in the years 1997 to 2007 when the decision to close competition proceedings was taken.