Transcript 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
Silke Brammer
2
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
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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
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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 nonintervention 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
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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
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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
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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 (C429/07, para. 25)
Silke Brammer
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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
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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
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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
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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
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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
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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
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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
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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
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Procedural autonomy
Reg. 1/2003
-Investigative powers
• judicial warrant
• legal privilege
• search of private homes
-Handling of complaints
-Access to file
• for the parties
• for third parties (→ Pfleiderer)
• confidentiality
- Termination of procedure
• ‘non-action decisions’
• but no ‘non-infringement’
decisions (→ Tele2 Polska)
- Appeal proceedings
• right to lodge appeal
• scope of jurisdiction of review court
(eg reformatio in peius ?)
• NCA must be able to act as
respondent/defendant
(→ VEBIC)
• informal closure
• sanctions
Silke Brammer
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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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