Full effectiveness and uniform application vs. procedural autonomy

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