Cooperation between the Commission and national courts
With the entry into force of Council Regulation (EC) No 1/2003, European Union (EU) competition rules may be relied on by firms and individuals before national courts. This also means that national courts are responsible for implementing Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 81 and 82 of the Treaty Establishing the European Community (TEC)). The present notice illustrates how this new cooperation between the Commission and national courts operates.
Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC [Official Journal C 101 of 27.4.2004].
Council Regulation (EC) No 1/2003 on the implementation of the competition rules laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 81 and 82 of the Treaty Establishing the European Community (TEC)) establishes a system of parallel competences in which the Commission, European Union (EU) countries’ competent national competition authorities and national courts * can all apply Articles 101 and 102 TFEU. Cooperation between national courts and the Commission is governed not only by the present notice but also by the Notice on cooperation within the Network of Competition Authorities.
Application of EU competition rules by national courts
National courts can apply Articles 101 and 102 TFEU without it being necessary to apply national competition law in parallel. However, where a national court applies national competition law to agreements, decisions or practices which may affect trade between EU countries within the meaning of Article 101(1) TFEU (ex-Article 81(1) TEC) or to any abuse prohibited by Article 102 TFEU, they also have to apply EU competition rules to those agreements, decisions or practices. The parallel application of national competition law to agreements may not lead to a different outcome from that resulting from the application of EU competition law.
In other words, in the case of parallel application of national competition law and EU competition law, agreements:
- which do not infringe Article 101(1) TFEU or which fulfil the conditions of Article 101(3) TFEU (ex-Article 81(3) TEC) cannot be prohibited under national competition law (Article 3(2) of Regulation (EC) No 1/2003);
- which violate Article 101(1) and do not fulfil the conditions of Article 101(3) cannot be upheld under national law (case law of the Court of Justice).
As to Article 102 TFEU, Article 3 of the Regulation (EC) No 1/2003 does not provide for a similar convergence obligation. However, in the event of conflicting provisions, the general principle of primacy of EU law requires national courts to disapply any provision of national law which contravenes an EU rule, regardless of whether that national law provision was adopted before or after the EU rule.
When it has to apply EU competition rules, a national court may first find guidance in EU case law or in the Commission regulations, decisions, notices and guidelines relating to the application of Articles 101 and 102 TFEU. Where such instruments do not provide sufficient guidance, the national court may ask the Commission for its opinion on matters relating to the application of EU competition rules.
In the absence of EU law provisions on procedures and sanctions related to the enforcement of EU competition rules by national courts, the latter apply national procedural law. They must also comply with the conditions for applying EU competition rules, e.g. by allowing the Commission and the national competition authorities to present written observations to them.
Parallel or consecutive application of EU competition rules and cooperation between the Commission and national courts
A national court may be applying EU competition law to an agreement affecting trade between EU countries at the same time as the Commission or subsequent to it.
Where a national court comes to a decision before the Commission, it must avoid adopting a decision that would conflict with a decision contemplated by the Commission. To that effect, the national court may ask the Commission whether it has initiated proceedings regarding the same agreement and, if so, about the progress of proceedings and the likelihood of a decision in the case. The national court may, for reasons of legal certainty, also consider staying its proceedings until the Commission has reached a decision. Where the Commission reaches a decision in a particular case before the national court, the latter may, if it doubts the legality of the Commission decision, refer the matter to the Court of Justice. However, the national court can never take a decision running counter to that of the Commission.
A system of parallel or consecutive application of the competition rules must be based on sound cooperation. However, while EU legislation does not contain any explicit provision in this respect, the EU courts have laid down that Article 4(3) of the Treaty on European Union (TEU) (ex-Article 10 TEC), which obliges the EU countries to facilitate the achievement of the EU's tasks, imposed on the European institutions and the EU countries mutual duties of loyal cooperation with a view to attaining the objectives of the Treaty. Article 4(3) thus implies that:
- the Commission must assist national courts when they apply EU law;
- national courts may be obliged to assist the Commission in the fulfilment of its tasks.
The Commission must assist national courts in a neutral and objective manner that does not bind the national court. National courts must send their requests for assistance to the Commission in writing. The Commission makes known its views by:
- transmitting information: the national court may, for example, ask the Commission for documents in its possession or for information of a procedural nature that will enable it to discover whether a certain case is pending before the Commission, whether the Commission has initiated a procedure or whether it has already taken a position. The Commission will endeavour to provide the requested information within one month of the date on which it receives the request;
- giving an opinion: the national court may ask the Commission for its opinion on economic, factual and legal matters, without prejudice, of course, to the possibility or the obligation for the national court to ask the Court of Justice for a preliminary ruling regarding the interpretation or validity of EU law in accordance with Article 267 TFEU (ex-Article 234 TFEU). In giving its opinion, the Commission will limit itself to providing the national court with the factual information or the economic or legal clarification asked for, without considering the merits of the case pending before the national court. Its opinion does not legally bind the national court;
- submitting observations: the national competition authorities and the Commission may submit observations to a national court. This will be possible, however, only when the coherent application of Article 101 or 102 TFEU so requires. In order to enable the Commission to submit useful observations, national courts may be asked to transmit or ensure the transmission to the Commission of a copy of all documents necessary for assessing the case.
The duty of loyal cooperation also implies that EU countries’ authorities may be required to assist the Commission in fulfilling its tasks. Regulation (EC) No 1/2003 provides for three examples of such assistance:
- transmission of documents necessary for assessing a case in which the Commission would like to submit observations;
- transmission of judgments applying Article 101 or 102 TFEU: according to Article 15(2) of Regulation (EC) No 1/2003, EU countries must send to the Commission a copy of any written judgment of national courts applying Article 101 or 102 without delay after the full written judgment is notified to the parties;
- participation in inspections: the Commission may ask national courts to play a role in the context of an inspection of undertakings and associations of undertakings.
If the crucial moment in cooperation between the Commission and national courts is the exchange of information, this must not be to the detriment of compliance with professional secrecy (Article 339 TFEU (ex-Article 287 TEC)). Even where the duty of loyal cooperation obliges the Commission to provide the national court with all the information it requests from it, including information covered by professional secrecy, the Commission may refuse to provide such information in cases where the national court cannot guarantee protection of confidential information and business secrets. It may also refuse to provide information to the national courts for reasons to do essentially with the need to safeguard the EU’s interests.
The Commission will publish a summary of its cooperation with national courts pursuant to this notice in its annual competition policy report. It may also provide access to its opinions and observations on its website.
This notice replaces the 1993 Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EC Treaty.