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

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.

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

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  1. 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)

  2. 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?

  3. 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?

  4. 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.

  5. 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?

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