19th ANNUAL CONFERENCE FORDHAM INTELLECTUAL PROPERTY LAW INSTITUTE Fordham University School of Law Thurday and Friday, April 28-29, 2011 Prof. Hugh C. Hansen Director An analysis of the relationship between private and public enforcement of competition law from the point of view of European and Italian Judges Marina Tavassi – Presiding Judge, IP Specialised Court of Milan, Italy

Main topics The modernization package and Regulation No. 1/2003. The role of National Courts in the field of competition. The role of the Commission towards National Courts. Damages claims in private enforcement. The harmonization of the systems of collective redress in EU Member States. Marina Tavassi – IP Specialised Court of Milan

BEFORE Implementation of Art and 81.2 Art. 82 by National Authorities and Courts Granted to the Commission Art Monopoly Suspension by National Authorities and Courts Authorization exemption system Notification system NOW Implementation of Art. 101 and 102 TFEU in full Decentralization System of directly applicable exception Marina Tavassi – IP Specialised Court of Milan

REGULATION No. 17 / 1962 INDIVIDUAL EXEMPTION CREATED RIGHTS WITH EFFECT ERGA OMNES It was retroactive at notification time Limitation period It could be subordinated to some conditions National Authorities did not modify it It could be revoked only by the Commission Marina Tavassi – IP Specialised Court of Milan

NEW REGULATION Regulation No. 1/2003 Administrative act is no longer required in order to avoid the prohibition of restrictive agreements under Art Agreements satisfying conditions are effective starting from their stipulation "Legal exception" is to be invoked by any interested party All the statements have to be formulated just in the case of judiciary or administrative litigations Limitation period shall be interrupted Withdrawal of the benefit of a block exemption by national Authority Marina Tavassi – IP Specialised Court of Milan

COMMISSION NOTICES ( O.J. C 101, )  Co-operation within the network of Competition Authorities  Co-operation between the Commission and the Courts of the EU Member States in the application of Articles 101 and 102 TFEU  Handling of complaints by the Commission under Articles 101 and 102 TFEU Informal guidance relating to novel questions concerning Art that arise in individual cases (guidance letters)  Guidelines on the effect on trade concept between the Member States contained in Art. 101 and 102  Guidelines on the application of Art Regulation N. 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant Art EC (now TFEU) (O.J. L 123, , p.1824) Marina Tavassi – Court of Appeal of Milan

EFFECTS Real involvement of National Judges and Authorities Reduction of Commission burden Resulting opportunity to focus on its institutional issues Role of leader played by the Commission in order to obtain the consistent enforcement of Community competition law Overcoming the abuses of the notification system Marina Tavassi – IP Specialised Court of Milan

ADVANTAGES 1.Making the enforcement of penalties more effective 2.Avoiding the risk that “notification” is equal to impunity 3.Reducing the burden on companies 4.Improving responsibility for companies 5.Strengthening common competition culture Marina Tavassi – IP Specialised Court of Milan

BLANKS Lack of a relevant distribution criteria (Notice on cooperation within the Network of Competition Authorities may support it) Lack of conflicts settlement system Marina Tavassi – IP Specialised Court of Milan

RISKS Possible contradictions among the decisions (non erga omnes) Renationalization of competition policy Juridical uncertainty Over-sharpening of investigation instruments Threat to secrecy Marina Tavassi – IP Specialised Court of Milan

COMMISSION IN THE NETWORK  Collection of the measures taken by the Courts of all Member States  Giving opinions  Intervention with its own observations  Indication of the competent Authorities CO-ORDINATION (AMICUS CURIAE) INFORMATION NETWORK Marina Tavassi – IP Specialised Court of Milan

ROLE OF THE COMMISSION AS AMICUS CURIAE Required by the judges (Art. 15 Reg. 1 and points of the Notice Commission / Judges) Information Opinions At Commission own initiative Written observations Oral observations (subject to authorization) Marina Tavassi – IP Specialised Court of Milan

INTERVENTION OF THE COMMISSION REQUIRED BY THE JUDGES INFORMATION About running proceedings About other cases which are similar or in any case useful Limits of confidentiality (Art. 287 EC) Business secrets Confidential information Marina Tavassi – IP Specialised Court of Milan

INTERVENTION OF THE COMMISSION REQUIRED BY THE JUDGES OPINIONS Matters concerning the enforcement of Community Competition Law Matters concerning economic subjects of fact and law Opinion is not mandatory Marina Tavassi – IP Specialised Court of Milan

INTERVENTION AT COMMISSION OWN INITIATIVE Written or Oral Observations about matters relating to the application of Art. 81 and 82 where necessary to their uniform implementation (Art Reg. no.1, points Notice Commission/Courts) Subject: economic and juridical analysis of the facts regarding the pending case Procedure: according to the rules and routine of the Member States, to be defined if necessary Marina Tavassi – IP Specialised Court of Milan

ASSISTANCE TO THE COMMISSION BY NATIONAL JUDGES (Points Notice Commission / Courts) Transmission of documents in order to allow the Commission to present its own Observations Transmission of the decisions Assistance on what concerns the investigations fulfilled by the Commission Marina Tavassi – IP Specialised Court of Milan

CHARGES OF THE JUDGES They cannot adopt decisions which contrast with Commission ones They have to evaluate whether to suspend the proceedings while waiting for the Commissions’ decision (possible provisional measures) Transmission to the Commission of copy of the decisions submitted to Articles Marina Tavassi – IP Specialised Court of Milan

RESPONSIBILITIS OF NATIONAL COURTS OF THE MEMBER STATES Giving information upon request of the Commission and Competition Authority Submission of written observations presented by the Commission and National Competition Authority Authorization to submit oral observations Adopting authorization measures or coercive measures, which are necessary for Commission and Competition Authority investigations Marina Tavassi – IP Specialised Court of Milan

RISKS OF THE NETWORK Difficulty of relationship between National Judges and Commission (Notice on cooperation Commission/Courts) Transmission of confidential information (procedure of the Notice) Uncertainty in application of legal defense Marina Tavassi – IP Specialised Court of Milan

AUTHORITIES AND COURTS OF THE MEMBER STATES Differences among them Possible disagreements Difficulty to define powers Forum shopping Marina Tavassi – IP Specialised Court of Milan

DIFFICULTIES Acquisition limits Possible insufficiency of trial means Lack of specialized Courts Lack of specific economic knowledge Lack of coherent implementation Marina Tavassi – IP Specialised Court of Milan

ADVANTAGES OF NATIONAL JURISDICTIONS Granting refunds for damages Pronunciation over payment claims or contractual obligations Declaration of nullity submitted to Art and evaluation of the consequences Adoption of provisional measures According protection on the basis of Community and National Law Imposition of the reimbursement of legal expenses Marina Tavassi – IP Specialised Court of Milan

DAMAGE REFUNDS Existence of damage Infringement Negligence - Fault Evidence of the actual damages Chain of causation Amount of damages Lost profits Increased damages Image damage Marina Tavassi – IP Specialised Court of Milan

Collective redress Private enforcement of EU law can be pursued, first of all, by way of individual redress (natural or legal persons). Where the same breach of EU law harms a wider group of citizens and businesses, a collective action or a representative action will be useful This system could simplify the process and reduce costs Two different forms:  injunctive relief  compensatory relief

Working Document-Public Consultation “Towards a coherent European approach to collective redress” (I) SEC(2011)173 final, 4 February 2011 The Commission has issued a consultation document to identify common legal principles relating to Collective redress The aim is to develop a coherent European approach to this subject For what reason? the Commision considers that an effective and efficient collective redress system would be capable of delivering certainty of law and fair outcomes within a reasonable time frame, while respecting the rights of all parties involved Europe 2020 strategy: COM (2010)2020, 3 March 2010 EU Council Document No /09 of 10/11 Dec Regulation No. 2006/2004 on Consumer Protection Cooperation Marina Tavassi

“Towards a coherent European approach to collective redress” (II) SEC(2011)173 final Procedures for the collective claim of compensatory relief have been introduced in the majority of Member States The mechanisms vary widely with regard to category of victims, the effect of judgements, etc. Regarding the members of the group concerned: the decision i)only binds those who have expressly consented to the proceedings (“opt-in”, e.g. Italy, Sweden) ii)the decision becomes binding for all members of the group unless they “opt out” (Portugal, Denmark, Netherlands) Marina Tavassi

“Towards a coherent European approach to collective redress” (III) SEC(2011)173 final  As general principles to guide possible future EU initiatives on collective redress: The need for effectiveness and efficiency of redress The importance of information and of the role of representative bodies The need to take account of collective consensual resolution as a means of alternative dispute resolution The need for strong safeguards to avoid abusive litigation Marina Tavassi

“Towards a coherent European approach to collective redress” (IV) SEC(2011)173 final 34 questions Submissions by the end of April 2011 The Commission expects to publish a Communication on the results of this consultation Future commitments for the Commission: i) to first try to identify a general legal framework for collective redress across the EU ii) to make a specific proposal of antitrust damages action during the second half of 2011