Abstract
This chapter analyses the different ‘help lines’ provided by EU Institutions in support of national judges applying and enforcing EU competition law provisions. It particularly illustrates the different ways in which the European Commission, national competition authorities and the Court of Justice can be involved in national civil or administrative law disputes focusing on EU competition law. The chapter additionally questions whether the multitude of different help lines may cause confusion for national judges and proposes a modest adaptation to the current system in an attempt to alleviate any confusion remaining in that regard.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See Case C-41/90 Höfner [1991] ECR I-1979, para 21. For background, Dunne (2009).
- 2.
In addition, intended changes in control of undertakings (e.g. mergers and acquisitions) have to be notified to the European Commission prior to being implemented (concentration control regime), as those changes in control could in themselves give rise to a dominant economic position or to potential collusive market behaviour; see Council Regulation 139/2004 on the control of concentrations between undertakings, [2004] OJ L24/1.
- 3.
Article 106 of the Treaty on the Functioning of the European Union (TFEU) additionally ensures that State-controlled undertakings, undertakings enjoying special or exclusive rights granted by a Member State or undertakings entrusted with the provision of services of general economic interest are also covered by all EU competition law provisions. Article 106 nevertheless provides for some exceptions in that regard, which are to be determined by the European Commission. National courts do not play a particular role in that respect.
- 4.
On the notion of direct effect, see Mayer (2010), p. 22.
- 5.
In accordance with the Court’s judgment in Case 106/77, Simmenthal, [1978] ECR 629.
- 6.
Case C-127/73 BRT v Sabam [1974] ECR 51.
- 7.
See for issues and problems in that regard Cauffman (2012).
- 8.
See Article 6 Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L 1/1.
- 9.
For an overview, van der Vijver (2012).
- 10.
Articles 3(2) and 3(3) Regulation 1/2003.
- 11.
See for examples Whish and Bailey (2012), pp. 77–78.
- 12.
Para 8 Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC, [2004] OJ C101/54 (hereafter 2004 Commission Notice). See also Wright (2010), p. 740.
- 13.
Para 12 2004 Commission Notice.
- 14.
Para 9 2004 Commission Notice. On the rights incorporated in Articles 101 and 102 TFEU, see Case C-453/99 Courage [2001] ECR I-6297, para 26–27; Joined Cases C-295/04 to C-298/04 Manfredi [2006] ECR I-6619, para 39; Case C-360/09 Pfleiderer [2011] ECR I-5161, para 28.
- 15.
Para 8, final sentence 2004 Commission Notice.
- 16.
Case C-360/09 Pfleiderer [2011] ECR I-5161, para 21.
- 17.
This is the so-called Eurodefence; see Whish and Bailey (2012), p. 321.
- 18.
For background on restitution claims, see Lianos (2013).
- 19.
On the right to damages, see Milutinovic (2010).
- 20.
See for that distinction, http://ec.europa.eu/competition/court/antitrust.html. For examples, see Van Cleynenbreugel (2012), p. 302.
- 21.
Article 15(1) Regulation 1/2003.
- 22.
Para 12 2004 Commission Notice.
- 23.
Case C-275/00 First NV and Franex NV, [2002] ECR I-10493, para 49.
- 24.
See, however, Opinion of A.G. Léger to the same case, para 58, referring to the Commission’s willingness to make the system of EU competition law work.
- 25.
Para 22 2004 Commission Notice.
- 26.
Para 21 2004 Commission Notice.
- 27.
Para 25 2004 Commission Notice.
- 28.
The Commission can nevertheless also refuse to transmit information for overriding reasons relating to the need to safeguard the interests of the Union or to avoid any interference with its functioning and independence, in particular by jeopardising the tasks entrusted to it; see para 26 2004 Commission Notice.
- 29.
Para 26 2004 Commission Notice.
- 30.
Para 12 2004 Commission Notice.
- 31.
For a contrary position, see Raffaelli (2011), p. 257.
- 32.
Para 12 2004 Commission Notice.
- 33.
See e.g. Case C-234/89 Delimitis [1991] ECR I-935, para 53.
- 34.
Para 27 2004 Commission Notice.
- 35.
Para 28 2004 Commission Notice.
- 36.
- 37.
Para 28 2004 Commission Notice.
- 38.
Para 30 2004 Commission Notice.
- 39.
Para 29 2004 Commission Notice.
- 40.
Para 9 2004 Commission Notice.
- 41.
Para 9 2004 Commission Notice.
- 42.
Para 21 2004 Commission Notice.
- 43.
- 44.
I have used the opinions made available or the references to opinions not made publicly available on the Commission’s DG Comp website (last consulted 10 October 2014).
- 45.
Article 15(3) Regulation 1/2003.
- 46.
Para 17 2004 Commission Notice also refers to the amicus curiae concept in relation to the transmission of information and requests for an opinion. In those instances, however, the national court takes the initiative, resulting in a different dynamic between Commission and national courts.
- 47.
Regulation 1/2003 refers to ‘may’. The Commission is not obliged to but merely entitled to intervene. As such, it has discretion to intervene in particular instances. See also Wright (2010), p. 744, on the legal nature of the Commission opinion. See also para 19 2004 Commission Notice, which states that [i]n case the Commission has been contacted by any of the parties in the case pending before the court on issues that are raised before the national court, it will inform the national court thereof, independent of whether these contacts took place before or after the national court’s request for cooperation.
- 48.
Article 15(3) Regulation 1/2003. Para 32 2004 Commission Notice.
- 49.
Para 33 2004 Commission Notice.
- 50.
Para 32 2004 Commission Notice. In stating so, the Commission’s involvement is extensive compared to the Court’s, which can only intervene with regard to legal analysis; see Article 267 TFEU and Wright (2010), p. 753.
- 51.
Case C-429/07 X. BV [2009] ECR I-4833, para 18.
- 52.
Case C-429/07 X. BV [2009] ECR I-4833, para 37.
- 53.
Case C-429/07 X. BV [2009] ECR I-4833, para 39.
- 54.
Article 15(3) Regulation 1/2003.
- 55.
Article 15(4) Regulation 1/2003.
- 56.
- 57.
Rule 37 of the Rules of the Supreme Court of the United States, http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf (last consulted 27 February 2015).
- 58.
Article 15(2) Regulation 1/2003 only presupposes that national judgments will be transmitted to the Commission. Notification of a case involving Articles 101 or 102 TFEU is not included in the realm of the obligation to transmit information. That transmission does not appear to be functioning optimally; see Raffaelli (2011), p. 243.
- 59.
Wright (2010), p. 752.
- 60.
Para 13 2004 Commission Notice.
- 61.
Para 27 2004 Commission Notice.
- 62.
Article 267 TFEU states that where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. In exceptional circumstances, the national court can still refrain from referring the matter. See for an overview of such circumstances Case 283/81 CILFIT, [1982] ECR 3415, para 13–16: the Court distinguished situations conclusively dealt with by the Court and situations where the correct application of [EU] law is so obvious as to leave no scope for any reasonable doubt. The Court established a so-called acte claire doctrine in that regard. In Case 314/85 Foto Frost [1987] ECR 4199, para 20, the Court declared that national judges cannot invalidate a supranational act. In cases of doubt concerning the validity of such acts, a reference is always necessary.
- 63.
See Article 3 jo. Article 14 Council Regulation 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, [1999] OJ L83/1.
- 64.
Para 26 Commission notice on the enforcement of State aid law by national courts, [2009] OJ C85/1 (hereafter 2009 Commission Notice).
- 65.
Para 4 2009 Commission Notice.
- 66.
The so-called Block Exemption Regulations, which exempt particular categories of measures from the notification obligation, are directly applicable in the national legal orders and have to be applied as such by national courts.
- 67.
See Article 11 Regulation 659/1999.
- 68.
See Article 14 Regulation 659/1999.
- 69.
Para 83(b) 2009 Commission Notice.
- 70.
See para 84 2009 Commission Notice, referring to private individuals or Member States different from the one in which the requesting court is located having supplied information to the Commission.
- 71.
Para 84 2009 Commission Notice.
- 72.
Para 86–88 2009 Commission Notice.
- 73.
Case C-39/94 SFEI and Others [1996] ECR I-3547, para 50.
- 74.
Para 89 2009 Commission Notice.
- 75.
Para 91 2009 Commission Notice.
- 76.
Para 94 2009 Commission Notice.
- 77.
Para 93 2009 Commission Notice.
- 78.
Pare 93 2009 Commission Notice.
- 79.
Article 23a(2), third paragraph Regulation 659/1999.
- 80.
Contrary to Articles 101/102 TFEU enforcement, no organised network of national and supranational enforcement authorities is in place, in accordance with which information—also on pending national cases—can be exchanged.
- 81.
Case C-284/12 Flughafen Frankfurt-Hahn [2013] ECR I-0000, para 45.
- 82.
Case C-199/06 CELF I [2008] ECR I-469, para 55. See also Adriaanse (2009), pp. 44–45.
- 83.
Case C-1/09 CELF II [2010] ECR I-2099, para 29–30.
- 84.
Case C-1/09 CELF II [2010] ECR I-2099, para 31. See also Jaeger (2010).
- 85.
Case C-284/12 Flughafen Frankfurt-Hahn [2013] ECR I-0000, para 31.
- 86.
Case C-284/12 Flughafen Frankfurt-Hahn [2013] ECR I-0000, para 45.
- 87.
The Commission is seemingly also aware of the limits of its intervention mandate, as it pledges to remain neutral and objective in the opinions and interventions it makes, at least in the realm of State aid; see http://ec.europa.eu/competition/court/state_aid_requests.html.
- 88.
See particularly Article 6 TEU, referring to fundamental rights, which also include the right to a fair trial before an independent and impartial judiciary.
References
Adriaanse P (2009) Appropriate measures to remedy the consequences of unlawful state aid. An analysis of the ECJ judgment of 12 February 2008 in Case C-199/06 (CELF/SIDE). Rev Eur Adm Law 2:73–86
Cauffman C (2012) The impact of voidness for infringement of Article 101 TFEU on related contracts. Eur Compet J 8:95–122
Dunne N (2009) Knowing when to see it: state activities, economic activities and the concept of undertaking. Columbia J Eur Law 16:427–463
Jaeger T (2010) Settling into a weak effet utile standard for private state aid enforcement. J Eur Compet Law Pract 1:319–324
Lianos I (2013) Competition law remedies in Europe. Which limits for remedial discretion? CLES Research Paper 2/2013. https://www.ucl.ac.uk/cles/research-paper-series
Mayer F (2010) Van Gend en Loos: the foundation of a community of law. In: Maduro M, Azoulai L (eds) The past and future of EU law: the classics revisited on the 50th anniversary of the Rome Treaty. Hart Publishing, Oxford, pp 16–25
Milutinovic V (2010) The ‘right to damages’ under EU competition law: from Courage v. Crehan to the White Paper and beyond. Kluwer, Alphen a/d Rijn, 405 pp
Raffaelli E (2011) National judges and the application of Regulation 1/2003: remarks and proposals. In: Hawk BE (ed) International antitrust law & policy. Annual proceedings of the Fordham Competition Law Institute, Juris, Huntington, pp 237–274
Van Cleynenbreugel P (2012) Institutional assimilation in the wake of EU competition law decentralisation. Compet Law Rev 8:285–312
van der Vijver T (2012) Objective justification and Article 102 TFEU. World Compet 35:55–76
Whish R, Bailey D (2012) Competition law, 7th edn. Oxford University Press, Oxford, 1015 pp
Wright K (2010) The European Commission’s own ‘Preliminary Reference Procedure’ in competition cases? Eur Law J 16:736–759
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Van Cleynenbreugel, P. (2016). National Courts and EU Competition Law: Lost in Multilevel Confusion?. In: Bodiroga-Vukobrat, N., Rodin, S., Sander, G. (eds) New Europe - Old Values?. Europeanization and Globalization, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-02213-0_9
Download citation
DOI: https://doi.org/10.1007/978-3-319-02213-0_9
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-02212-3
Online ISBN: 978-3-319-02213-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)