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Full effectiveness and uniform application vs. procedural autonomy

Full effectiveness and uniform application vs. procedural autonomy . Rights, powers and duties of NCAs after Tele2 Polska and VEBIC Silke Brammer 24 October 2011. VEBIC Summary of case Comments Tele2 Polska Summary of case Comments General conclusions. VEBIC. Summary - Facts:

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Full effectiveness and uniform application vs. procedural autonomy

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  1. Full effectiveness and uniform application vs. procedural autonomy Rights, powers and duties of NCAs after Tele2 Polska and VEBIC Silke Brammer 24 October 2011

  2. VEBIC • Summary of case • Comments • Tele2 Polska • Summary of case • Comments • General conclusions Silke Brammer

  3. VEBIC Summary - Facts: • Belgian competition authority = Competition Service + Competition Council (“CC”) • CC (administrative court) adopts final decisions • VEBIC = professional association of artisan bakers in Flanders • CC imposed fine on VEBIC which appealed decision • CC not entitled to take part in appeal proceedings • Belgian judge questioned compatibility of this rule with Art. 15(3) of Reg. 1/2003 Silke Brammer

  4. VEBIC/2 Summary – Findings of the Court: While Art. 35 of Reg. 1/2003 acknowledges the institutional and procedural autonomy of MSt when enforcing Union competition law, … … the provision precludes, in the light of the principle of effectiveness, a national rule which does not allow the NCA to participate (as defendant or respondent) in appeal proceedings brought against decisions taken by that authority. Silke Brammer

  5. VEBIC/3 Summary – Findings of the Court/2: This does not mean, however, that there is a duty for the NCA to take part in every single review procedure. Only the systematic non-intervention would compromise the effectiveness of Union competition law. Art. 15(3) of Reg. 1/2003 does not provide an alternative means for ensuring that the NCA can take part in appeal proceedings concerning its own decisions. Silke Brammer

  6. VEBIC/4 Comments – Admissibility • challenged NCA decision solely based on domestic equivalent to Art. 101 TFEU • VEBIC pleaded inadmissibility (lack of relevance) • Court makes two general statements • review court has unlimited jurisdiction • premise that the practices at issue only had domestic effects “could be rebutted” Silke Brammer

  7. VEBIC/5 Comments – Admissibility/2 • no indication that CC had erred, ie that VEBIC’s practices did have an effect on inter-state trade • findings of the CC on the inapplicability of Union competition law not questioned • VEBIC essentially joins local bakeries in Flanders • no specific reason given why review court considered that practices may fall within scope of Art. 101 TFEU • merely abstract possibility that review court could apply Union competition law • arguably, Court answered a hypothetical question Silke Brammer

  8. VEBIC/6 Comments – Substance • four precise questions on the interpretation of Reg. 1/2003 – Court lumps them together • Court rejects possibility to resort to Art. 15(3) to allow NCAs to take part in review procedure • simple literal interpretation • no further explanation given • finding contrasts with AG’s opinion and Court’s own ruling in Inspecteur van de Belastingdienst (C-429/07, para. 25) Silke Brammer

  9. VEBIC/7 Comments – Substance/2 • Court leaves it to the MSt to designate • which component of the NCA is to assume function of defendant/respondent • in a system where final decisions are taken by a judicial body • Court does not explore other options • possible role of the Minister (who could (regularly) exercise his right to intervene in review proceedings to defend public interest) • possibility to involve Auditoraat (which can be requested by review court to carry out an investigation) Silke Brammer

  10. VEBIC/8 Comments – Summing up • The Court easily accepts arguments on the admissibility. • Was there a political or personal motivation to ‘comment’ on the Belgian appeal procedure? • It answers precise questions in fairly general terms, … • The NCA must entitled to defend its decisions in review proceedings. • … but then ‘backs out’ by recalling the procedural autonomy of the MSt • The judgment gives no meaningful answer to the question how the defence of an NCA decision can be organised in a system where such decisions are taken by a judicial body. Silke Brammer

  11. Tele2 Polska Summary - Facts: • Probe into conduct of Polish telecom company • Polish NCA finds no evidence of abuse of dominant position • NCA decision states that • as concerns domestic competition law, no infringement • as concerns Art. 102 TFEU, procedure brought to an end (devoid of purpose) • decision annulled on appeal • NCA should have stated that no infringement of Art. 102 • NCA claims that Reg. 1/2003 does not allow it to adopt such ‘non-infringement decision’ Silke Brammer

  12. Tele2 Polska/2 Summary – Findings of the Court: Art. 5 of Reg. 1/2003 must be interpreted as precluding an NCA from adopting a decision which states that a certain conduct which it has examined does not constitute a breach of Art. 102 TEFEU. Art. 5 of Reg. 1/2003 is directly applicable and precludes the application of a national rule which would require the NCA to take a decision on the merits where it has concluded that there is no infringement. Silke Brammer

  13. Tele2 Polska/3 Comments: • Literal interpretation of Art. 5 of Reg. 1/2003 • list not exhaustive (‘infringement decisions’ not mentioned) • “may decide” suggests that other measures possible • distinction between substantive decisions and procedural measures (only the latter covered by Art. 5) • Uniformity • no prior information duty, but para. 48 Network Notice • why are ‘non-infringement decisions’ such a danger • ‘infringement decisions’ can also be wrong (and cannot be ‘overruled ’ by Commission) • ‘non-infringement decisions’ can be appealed Silke Brammer

  14. Tele2 Polska/4 Comments/2: • No risk that ‘exemption system’ is re-introduced • no ‘application’ by the company concerned • NCA decision preceded by lengthy (ex officio) investigation • legitimate interest of company under investigation to obtain legal certainty • good governance Silke Brammer

  15. General Conclusions/1 • Controversial interpretation of Reg. 1/2003 • radical interference with procedural autonomy of MSt • requirements of effectiveness and uniformity used to justify intrusion • Result: approximation of national procedures by way of case law • against explicit wording of Reg. 1/2003 (arguably, VEBIC contradicts Art. 35(3) of Reg. 1/2003) • against implicit will of the MSt (opposed to harmonisation of nat’l procedures) • Union law used as a model (VEBIC) Silke Brammer

  16. General Conclusions/2 • Yet no coherent approach? • in Pfleiderer (C-360/09), effectiveness considerations pushed aside • furtherance of civil actions for damages seems overriding interest • Is it time for a more comprehensive approach? • Should the Commission propose a “Regulation on the enforcement of Articles 101 and 102 by the national competition authorities of the Member States”? Silke Brammer

  17. Silke Brammer

  18. General Conclusions/3 • Distrust in abilities of NCAs and national judges • Tele2 Polska: fear of under-enforcement • presumption that non-infringement decisions of NCAs would be more often wrong than right ? • VEBIC: risk that national court “wholly captive” to arguments of the appellant, but • review court has entire NCA file at its disposal • Commission can act as amicus curiae • nat’l judge can refer questions to the Court • When will NCAs and nat’l judges finally be viewed as partners on an equal footing with the Commission ? Silke Brammer

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