rights powers and duties of ncas a review of recent ecj rulings n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings PowerPoint Presentation
Download Presentation
Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings

Loading in 2 Seconds...

play fullscreen
1 / 5

Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings - PowerPoint PPT Presentation


  • 95 Views
  • Uploaded on

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.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings' - ember


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
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
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?
i prosecutorial discretion vs legal guidance
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?
ii competition litigation
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.
quo vadis
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?