Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings

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Presentation transcript:

Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings GCLC Lunch Talk Brussels, October 24, 2011 Fabien Zivy Director, Legal Service Autorité de la concurrence (France) (All views expressed are strictly personal)

Outline Fleshing out two basic rules set out in Regulation N. 1 Self-assessment… … and the issue of prosecutorial discretion vs. legal guidance: – ECJ (g.c.), Tele2 Polska, May 3rd, 2011 (C-375/09). Effectiveness… … and the issue of competition litigation: – ECJ (g.c.), VEBIC, December 7th, 2010 (C-439/08). Quo vadis?

I. Prosecutorial discretion vs. legal guidance Rule Number One: from notification to self-assessment; exceptional “positive” enforcement by way of findings of inapplicability. Reading the Tele2 Polska judgment backwards: what the ECJ was really asked to do was to strike down a national provision imposing findings of inapplicability on the merits; NCAs earn greater prosecutorial discretion and ability to prioritize (the case of Poland & France). Is “positive” legal guidance lost in translation? Not necessarily. “non-enforcement” decisions precluded by Article 10 and ne bis in idem; what about “exemption” decisions? what about ex officio guidance?

II. Competition litigation Rule Number Two: minimum harmonization and procedural autonomy… … but duty of effectiveness as “red herring” of Regulation N. 1/2003… … coupled with primacy and dis-application of contrary national law. Right of NCAs to appear in court as defending party: Article 35 and independence of NCAs (representation in court by a ministry is not adequate); meaning of the VEBIC judgment: NCAs earn rights of defense before review court and right of appeal to superior court. Is equality of arms lost in translation? No. judges gain the possibility to quiz competition enforcers; applicants keep the power to frame the case and the right to have the last word.

Quo vadis? An always closer (competition) Union? European judges triggering approximation of competition law; competition authorities (Commission and NCAs) joining the movement in search of consistency and effectiveness; what about national governments and parliaments? what about EU law-makers? what about national judges?