Folie 1

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Cooperation between NCAs and national
courts Cooperation between the Commission and
national courts Novel questions
Anita Lukaschek
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Role of national courts in the enforcement of Art
81, 82 EC

• Recital 7 Reg. 1/2003
• National Courts have an essential part to play
  in applying the Community competition rules. When
  deciding disputes between private individuals,
  they protect the subjective rights under
  Community law, for example by awarding damages to
  the victims of infringements. The role of the
  national courts here complements that of the
  NCAs. They should therefore be allowed to apply
  Articles 81 and 82 EC in full.
• Direct Application of Art 81, 82 EC in
  administrative, civil and criminal proceedings
• Private Enforcement
• - Practical Examples

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Application of Articles 81, 82 EC by National
Courts

• Powers of the national courts to apply
• Art 81, 82 EC
• Art 6 Reg. 1/2003
• Direct Applicability
• Obligation to apply Art 81, 82 EC
• Art 3/1 Reg. 1/2003 (parallel application of
  national and EC competition law)
• Supremacy of EC Law

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Who else is responsible for enforcing EC
Competition law under the system established by
Reg. 1/2003?

• PUBLIC ENFORCEMENT
• European Commission
• concentrates its ressources on most serious
  infringements
• National Competition Authorities
• Art 35/1 Reg. 1/2003 Member States designate the
  competition authority or authorities responsible
  for the application of Art 81, 82 EC in such a
  way that the provisions of its regulations are
  effectively complied with.

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Austrian system of competition Law enforcement

• PUBLIC ENFORCEMENT
• Prosecuting Authorities
• gt Federal Competition Authority (FCA)
• gt Bundeskartellanwalt (Federal Cartel
  Prosecutor)
• Judicial Authority
• Cartel Court
• PRIVATE ENFORCEMENT
• National Courts

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Cooperation within the procedural framework
established by Reg. 1/2003

• European Competition Network (ECN)
• - Cooperation between Commission and NCAs
• - Cooperation between NCAs
• Cooperation between Commission and National
  Courts
• Art 10 EC, Art 15 Reg. 1/2003
• Cooperation between NCAs and National Courts
• Art 15/3 Reg. 1/2003 national legislation

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European Competition Network

• Case-handling within the Network
• - Information (about initiation,
  investigations, closure of a case )
• - Case allocation
• Exchange of information
• Leniency
• Assistance
• inspections and other fact-finding measures

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Cooperation between national courts and the
Commission I

• Legal basis
• Art 10 EC, Art 15 Reg. 1/2003
• Types of assistance provided by the Commission to
  national courts
• transmission of information
• opinion on questions concerning the application
  of EC competition rules,
• both upon request by the national courts
  (addressed to European Commission, Directorate
  General for Competition, B-1049 Brussels
  comp-amicus_at_cec.eu.int)
• submission of observations to the national courts
  by the Commission, acting on its own initiative.
• Opinions or obervations submitted by the
  Commission have no binding effect on national
  courts

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Cooperation between national courts and the
Commission II

• National courts assisting the Commission with the
  enforcement of EC competition law
• trasmission of documents necessary for the
  assessment of a case in which the Commission
  would like to submit observations
• transmission of judgements applying Art 81, 82 EC
• Commission inspections

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Information requests to the Commission (Art 15/1
Reg. 1/03)

• What about?
• documents, information on pending cases, ect.
• Procedural issues
• one-month-period for reply (para 22 Comm-Notice
  on cooperation)

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Information requests to the Commission II

• Obligation of the Commission to provide the
  requested information (Art 10 EC)
• gt Exeptions
• Information covered by professional secrecy
• (Art 287 EC para 23ss Comm-Notice on
  cooperation)
• gt national court has to offer a guarantee that
  it will protect the confidential information
• - Need to safeguard the interests of the EC or
  to avoid any interference with its functioning
  and independence, in particular by jeopardising
  the accomplishment of tasks entrusted to it (para
  26 Comm-Notice on cooperation, i.e. in context
  with leniency).

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Request for the Commissions Opinion (Art 15/1
Reg. 1/2003)

• What about?
• questions concerning the application of EC
  competition rules economic and legal
  clarifications as well as factual information
• National courts shall first seek guidance in
• - Commission regulations, notices and guidelines
• - Case law of the Community Courts (ECJ, CFI)
• - Commission decisions
• - Annual report on competition policy
• http//europa.eu.int/comm/competition/index_en.h
  tml http//europa.eu.int/eur-lex/en/search/sear
  ch_case.html

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Request for an Opinion II

• procedural issues
• 4-month-period for reply
• Commission will not hear parties before
  formulating ist opininion
• Commission will not consider the merits of the
  case
• without prejudice to the possibiltiy or
  opligation for the national court to ask the ECJ
  for a preliminary ruling (Art 234 EC)

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Submission of observations to a national court
(Art 15/3 Reg. 1/2003)

• by NCAs
• where the coherent application of Art 81, 82
  so requires by the Commission
• written observations on issues relating to the
  application of Art 81, 82 EC (oral observations
  only upon approval of national court)
• National courts shall transmit documents
  necessary for assessment of case
• Procedural framework national procedural rules

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Parallel or consecutive application of Art 81, 82
EC by the Commission and national courts (Art
16/1 Reg. 1/2003)

• Whereas the initiation of proceedings by the
  Commission for the adoption of a decision under
  Reg. 1/2003 relieves NCAs of their competence to
  apply Art 81, 82 EC on a case (Art 11/6 Reg.
  1/03), national courts and Commission may act in
  parallel or consecutively.
• However, national courts must avoid adopting a
  decision
• that would conflict a decision contemplated by
  the Commission,
• that would run counter to an already adopted
  decision of the Commission regarding the same
  agreement, decision or practise.

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excursus Informal guidance relating to novel
questions concerning Art 81, 82 EC (guidance
letters)

• Commission assumes that in a vast majority of
  cases undertaking are able to assess their
  agreements with Article 81 EC, i.e. legal
  certainty is given (paras 3ss of the Comm-Notice
  on guidance letters).
• Cases which give rise to genuine uncertainty
  because they present novel or unresolved
  questions
• Art 10 Reg. 1/2003 finding of inapplicability,
  where the Community public interest so requires
• Guidance letter (recital 38 Reg. 1/2003)

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excursus Informal guidance relating to novel
questions concerning Art 81, 82 EC (guidance
letters)

• Objectives
• legal certainty v. effective enforcement
• Conditions I
• (para 8 Comm-notice on guidance letters)
• novel or unresolved question question of
  application of Art 81, 82 EC for which there is
  no clarification in the existing EC legal
  framework including the case law of the Community
  Courts, nor publicly available general guidance
  or precedent in decision-making practice or
  previous guidance letters.

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excursus Informal guidance relating to novel
questions concerning Art 81, 82 EC (guidance
letters)

• Conditions II
• clarification of the novel question has to be
  useful, taking into account
• gt the economic importance from the point of view
  of the consumer of the goods or services
  concerned,
• gt the extend to which the agreement or practice
  corresponds to more widely spread economic usage,
• gt the extent of investments linked to the
  transaction.

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excursus Informal guidance relating to novel
questions concerning Art 81, 82 EC (guidance
letters)

• Procedural Issues
• no further fact-finding by the Commission
• NCAs can get involved
• where no guidance letter is issued, the
  Commission shall inform the applicant
• publication of a non-confidental version on the
  website of the Commission
• Effects
• gt no binding effect on Commission, NCAs and
• national courts

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Thank you for your attention!anita.lukaschek_at_bwb.
gv.at Tel [phone]Fax [phone]
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