COMPETITION • EUROPEAN LAW • PROCEDURE
Regulation No 1/2003 gives the national courts greater involvement in the application of the EU competition rules but does not define the concept of national courts; Article 6 merely sets out their powers. According to the Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 101 and 102 of the Treaty, “the courts of the EU Member States’ (hereinafter ‘national courts’) are those courts and tribunals within an EU Member State that can apply Articles 101 and 102 TFEU and that are authorized to ask a preliminary question to the Court of Justice pursuant to [Article 267 TFEU]”. To determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU usually depends on a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent in respect of the executive branch.
Acting as EU courts of general jurisdiction, the national courts are bound to apply the primacy and direct effect of the EU rules. Article 6 of Regulation No 1/2003 gives full powers to the national courts to apply Articles 101 and 102 of the Treaty. The courts of the Member States are competent to apply Articles 101 and 102 TFEU – which covers the power to propose a dismissal and to assess whether acts adopted by EU institutions comply with the Treaty and with measures adopted to give the Treaty effect, to the extent that these acts have direct effect. In addition, the national courts have exclusive jurisdiction to implement Article 101(2) which states: “Any agreements or decisions prohibited pursuant to this article shall be automatically void”.
Article 15 of Regulation No 1/2003 establishes the framework for cooperation between the national courts and the EU authorities. The national courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the EU competition rules; Member States must forward to the Commission a copy of any written judgment of national courts deciding on the application of Article 101 or Article 102 of the Treaty. The national competition authorities (NCAs)and the Commission may also submit observations to the national court concerning the application of Articles 101 or 102 TFEU. The regulation makes a distinction between written observations that the NCAs and the Commission may submit of their own initiative, and oral observations that they may only submit with the permission of the court in question. The Notice on the cooperation between the Commission and the courts of the EU Member States recalls that where a national court comes to a decision before the Commission does, it must avoid adopting a decision that would conflict with a decision contemplated by the Commission.
Article 3 of Regulation No 1/2003 lays down the principle according to which application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 101(1) TFEU, or which fulfill the conditions of Article 101(3) TFEU or which are covered by a regulation for the application of Article 101(3) TFEU. When EU and national law contain conflicting provisions, the general principle of the precedence of EU law requires that the national courts disapply any provision of national law contrary to the EU rules, regardless of whether the national law was enacted before or after the EU rule.
