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Recent ECJ Rulings on NCA Rights, Powers, and Duties: A GCLC Review

Explore recent ECJ rulings on the rights, powers, and duties of National Competition Authorities presented during a GCLC Lunch Talk in Brussels. Analysis of self-assessment, prosecutorial discretion, competition litigation, and more.

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Recent ECJ Rulings on NCA Rights, Powers, and Duties: A GCLC Review

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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)

  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: • notification vs. 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; • prioritization and prosecutorial discretion (the case of Poland & France). • Is “positive” legal guidance lost in translation? • “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 vs. procedural autonomy; • duty of effectiveness as “red herring” of Regulation N. 1/2003; • primacy, loyal cooperation and dis-application of contrary national law. • Right to appear in court as defending party: • Article 35, administrative enforcement and agency independence; • rights of defense and right of appeal. • Is equality of arms lost in translation? • the judge’s point of view: quizzing and grilling competition enforcers; • the applicants’ point of view: framing the case and keeping the last word.

  5. Quo vadis? • An always closer 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 judges? • what about national governments and parliaments? • what about EU law-makers?

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