Full effectiveness and uniform application vs procedural autonomy
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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. VEBIC. Summary - Facts:

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Full effectiveness and uniform application vs. procedural autonomy

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Full effectiveness and uniform application vs. procedural autonomy

Rights, powers and duties of NCAs

after Tele2 Polska and VEBIC

Silke Brammer

24 October 2011


    • Summary of case

    • Comments

  • Tele2 Polska

    • Summary of case

    • Comments

  • General conclusions

Silke Brammer


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


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


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.

Silke Brammer


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


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


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)

Silke Brammer


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


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

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

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

Tele2 Polska/3


  • 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

Tele2 Polska/4


  • 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

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

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

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 ?

Silke Brammer

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