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 2Silke Brammer

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 3Silke Brammer

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. 4Silke Brammer

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. 5Silke Brammer

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” 6Silke Brammer

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 7Silke Brammer

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) 8Silke Brammer

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) 9Silke Brammer

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. 10Silke Brammer

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 NCA claims that Reg. 1/2003 does not allow it to adopt such ‘non-infringement decision’ 11Silke Brammer

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. 12Silke Brammer

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 13Silke Brammer

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 14Silke Brammer

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) 15Silke Brammer

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”? 16Silke Brammer

Procedural autonomyReg. 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 informal closure sanctions ‘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) 17 Silke Brammer

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 ? 18Silke Brammer