The Commission Notice on Co-operation with National Courts
| Autor | Mariarosaria Ganino |
| Cargo del Autor | Abogado. Martínez-Lage y Asociados, Madrid |
| Páginas | 69-137 |
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On 1 May 2004, the new procedural Regulation 1/2003 entered into force, bringing about a major reform of the Community procedure for the application of Articles 81 and 82 of the EC Treaty.
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The central feature of the new system is the abolition of the Commission’s monopoly to apply Article 81(3). Under Article 1(2) of Regulation 1/2003, agreements which are caught by Article 81(1) but satisfy the conditions of Article 81(3) are permitted, with no need of a prior Commission’s decision to that end. The notification system established by Regulation 17/62 is thus replaced by a legal exception system, where Article 81 is in its entirety directly applicable by both the Commission and the national competition authorities and national courts.
The declared purpose of the reform is the decentralisation of the application of Community competition rules, including the promotion of private enforcement of such rules before national courts. Indeed, according to the Commission, the lack of direct effect of Article 81(3) represented a major obstacle for the enforcement of Community competition rules in proceedings before national competition authorities and national courts, which were of little appeal for potential plaintiffs due to the possibility for defendants of using the notification system as a dilatory mechanism1. The removal of such an obstacle should thus pave the way to an increased decentralised application of the Community competition rules. By relieving the Commission from the administrative burden of dealing with notifications, decentralisation should in turn permit the Commission to focus on the most serious infringements of such rules, such as cartels and abuses of dominant position.
The main risk or challenge of this new system is the coherent application of Community competition rules. Indeed, if the system works as envisaged2,
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the increased number of actors applying such rules will inevitably increase the risk of both conflicting decisions and different (and, potentially, not equally effective) enforcement practices. Thus, the establishment of appropriate mechanisms to minimise such risk and ensure the uniform and equally effective application of Community competition rules throughout the EU becomes a necessary complement of the purported decentralisation. Some of these mechanisms are inherent in the Community legal order, either enshrined in the very text of the Treaty (e.g. the Article 234 preliminary reference procedure) or developed by the Court of Justice (the main one being the principle of primacy of Community law). Others, such as the co-operation mechanisms between the Commission and national courts, as well as between the Commission and the national competition authorities, developed informally under the old system, where they then formed the subject of two Commission Notices3. Building on the Court’s case law and the Commission’s practice, in the new system those cooperation mechanisms have been (partly) codified and strengthened in the
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very text of Regulation 1/2003 and further developed in the accompanying new Commission Notices4.
In this context, the coherent application of Community competition rules is the fundamental idea underlying the Commission Notice on Co-operation with National Courts. Thus, in Section II on the "Application of EC Competition Rules by National Courts" the Notice deals with those coherence mechanisms that are inherent in the Community legal order (and partly codified in Regulation 1/2003). Section III on the "Co-operation between the Commission and the National Courts" deals with the cooperation mechanisms largely derived from the 1993 Notice, as codified and strengthened by Regulation 1/2003 (while also addressing, in Part B, national courts’ assistance to the Commission in the context of Commission’s inspections).
Both the Commission and the ECJ have emphasized that the application of Articles 81 and 82 EC by national courts is desirable as it implies a greater protection of individuals5. In this context the Commission has recently initiated a public consultation by means of its Green Paper on Actions for Damages6 with the view of promoting an increase of private enforcement within the EU.
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However, this article is not concerned with the convenience and/or the feasibility of private enforcement of competition law before national courts. It rather analyses how the coherence mechanisms established by the Treaty, the Community Courts’ case law and Regulation 1/2003 have been developed by the Commission in the NCs Notice. Having regard to the main issues which arose in the public consultation which preceded its adoption, it analyses how such issues have been dealt with in the final draft, whether the solution adopted is satisfactory and whether a different one was desirable and feasible.
Sections II and III of the Notice specifically dealing with such coherence mechanisms, as well as Section I on the "Scope of the Notice", are analysed below.
Section I on the "Scope of the Notice" identifies the addressees of the Notice. Those are the courts and tribunals of the EU Member States ("NCs") which are entitled to make a preliminary reference to the ECJ under Article 234 of the Treaty, and include the national courts designated as national competition authorities ("NCAs") pursuant to Article 35(1) of the Regulation.
Two main issues have arisen in this respect relating, respectively, to the exclusion of arbitrators from the scope of the Notice and, on the other hand, the extension of its application to NCs designated as NCAs.
According to the ECJ case law, courts and tribunals entitled to make a preliminary reference under Article 234 EC do not include arbitrators7.
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Arbitrators and arbitral tribunal are thus excluded from the co-operation mechanisms envisaged in the Notice.
While several commentators urged the Commission to extend the scope of the Notice to cover arbitrators, the Commission did not take up the suggestion in the final draft. There are indeed good arguments in favour of establishing some form of co-operation with arbitrators. In particular, while they do not have access to the ECJ through the Article 234 procedure, they are in fact bound to apply Articles 81 and 82 as public order provisions and their awards may be annulled for failure to do so8.
However, the question is not so much whether co-operation with arbitrators is desirable, but rather whether such co-operation should have been dealt with in the NCs Notice. In fact, nothing prevents the Commission from providing assistance to arbitrators by means of any other informal procedure. On the other hand, it is somehow understandable that the extension to arbitrators of the co-operation mechanisms established by Regulation 1/2003 was not finally contemplated in the Notice. Notwithstanding the great flexibility which the Commission may enjoy as to the content of a piece of "soft law" such as a notice, this was probably not the appropriate place to deal with this matter. Just like the co-operation mechanisms with NCs - now expressly codified in a piece of legislation -raised several issues relating to, inter alia, how they would actually fit and work within national judicial procedures (let alone their compatibility with the principle of autonomy of the judiciary), similar issues were likely to arise with respect to the suggested Commission’s co-operation with arbitrators, and even more in the absence of a direct legal basis for such cooperation. Indeed, while co-operation with NCs, whatever the form it may take, does have its ultimate legal basis in Article 10 of the Treaty (independently of the provisions of the Regulation and their development in the NCs Notice), the same is not true for co-operation with arbitrators. Thus, without prejudice...
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