1. GCLC Lunch Talk Brussels, October 24, 2011 Fabien Zivy Director, Legal Service Autorité de la concurrence (France) (All views expressed are strictly personal) R IGHTS, P OWERS AND D UTIES OF NCA S : A R EVIEW OF RECENT ECJ R ULINGS

2. O UTLINE  Fleshing out two basic rules set out in Regulation N. 1 I. Self-assessment… … and the issue of prosecutorial discretion vs. legal guidance: – ECJ (g.c.), Tele2 Polska, May 3 rd, 2011 (C-375/09). I. Effectiveness… … and the issue of competition litigation: – ECJ (g.c.), VEBIC, December 7 th, 2010 (C-439/08).  Quo vadis? 2

3. I. P ROSECUTORIAL 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? 3

4. II. C OMPETITION 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. 4

5. Q UO 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? 5