Dr' Nagy, Csongor Istvn

1
Dr. Nagy, Csongor István

• Parallel and consecutive application of EC
  competition rules by national courts and the COM

2
The role of national courts in applying EC
competition law

• Competition judge function of competition
  adjudication as opposed to antitrust prosecution
  (e.g. Austria, Sweden).
• Judicial review revision of administrative
  decisions.
• Civil law suits applying private law sanctions.

3
Non-parallel, parallel and consecutive procedures

• NCs may deal with cases that are not dealt with
  and are not envisaged to be dealt with by the
  COM. (non-parallel application)
• NCs may encounter disputes regarding which the
  COM has already engaged in inspections without
  closing the procedure. (parallel application).
• National courts may face controversies which have
  been the subject matter of a previous COM
  decision (consecutive application). In this case
  it is of relevance whether the ECJ has annulled
  or endorsed the decision.

4
NCs powers in non-parallel procedures

• National courts face mainly the same problems
  that arise when applying EC law at large.
• The general means intended to ensure the uniform
  and effective application of EC law stand to the
  NCs disposal, unrestrictedly. (See Article 234)
• As an additional tool, the COM may be asked to
  submit its opinion on economic, factual and legal
  matters. Nonetheless, this opinion is legally not
  binding.

5
NCs powers in parallel procedures

• NCs must avoid adopting a decision that would
  conflict with the decision contemplated by the
  Commission. (See Article 16 (1) of Reg. 1/2003)
• This contemplation is binding, contrary to the
  COMs opinion in case of non-parallel procedures.
• The NC may ask the COM whether it has initiated
  proceedings and if it did how their progress is.
  The NC may stay its procedure. In this case the
  COM will endeavor to give priority to such cases.
• The NC may make use of article 234, as well.

6
NCs powers in consecutive procedures

• The NC is bound by the decisions rendered by the
  COM.
• NCs may accept themselves the validity of an EC
  act, however, NCs have no jurisdiction to declare
  such an act invalid. (Foto-Frost C-314/85) In the
  latter case they have to ask the ECJ for
  preliminary ruling.
• If the COM decision is challenged before the CFI
  on the basis of article 230 the NC may stay its
  procedure or it may submit questions to the ECJ
  according to article 234.
• In any case, it is up to the NC to order interim
  measures if it finds that necessary. (Masterfoods
  C-344/98)

7
COMs powers

• The COM is entitled to intervene in national
  court proceedings as amicus curiae.
• It may transmit information and it may submit its
  non-binding opinion (ex officio or upon the
  request of the NC).
• The COM will refuse to supply the requested
  information if the observance of professional
  secrecy or the overriding interests of the EC
  require that (Zwartweld C-2/88). The latter
  covers mainly information acquired due to the
  leniency program.

8
Transmission of NCs judgments to the COM

• According to article 15 (2) of Reg. 1/2003 MSs
  shall forward to the Commission a copy of any
  written judgment of national courts deciding on
  the application of Article 81 or Article 82 of
  the Treaty.

9
NCs and COM inspections

• According to article 20 (8) of Reg. 1/2003 the
  national judicial authority may not call into
  question the necessity for the inspection nor
  demand that it be provided with the information
  in the Commission's file. The lawfulness of the
  Commission decision shall be subject to review
  only by the Court of Justice. (See Hoechst
  joined cases 46/87 and 227/88, Roquette Frerès C
  94/00)
• The standard of review is whether the COM
  decision is authentic and that the coercive
  measures envisaged are neither arbitrary nor
  excessive having regard to the subject matter of
  the inspection.

10
The relationship between EC and national
competition laws

• In the field of competition the EC and the MSs
  have parallel competences. (dualism of
  competition law)
• EC competition law may pre-empt only its national
  counter-parts, i.e. EC competition law does not
  preclude the application of provisions of
  national law that predominantly pursue an
  objective different from that pursued by Articles
  81 and 82 of the Treaty.
• Article 81 and 82 do not preclude the application
  of national merger control laws.
• EC law pre-empts national law, however, the
  extent of this pre-emption varies according to
  the field concerned.

11
Cartel law complete pre-emption

• Article 81 pre-empts national laws completely.
• Agreements contrary to article 81 (1) not
  exempted under 81 (3) cannot be upheld by NCs.
  (Walt Wilhelm C-14/68)
• Agreements not contrary to article 81 (1) or
  exempted under 81 (3) cannot be convicted under
  national competition law. (Article 3 (2) of Reg.
  1/2003)

12
Article 82 restricted pre-emption

• Reg. 1/2003 provides that Member States shall
  not under this Regulation be precluded from
  adopting and applying on their territory stricter
  national laws which prohibit or sanction
  unilateral conduct engaged in by undertakings.
• This provision exempts, for instance, national
  unfair competition laws.

13
Ne bis in idem in the ECHR

• No one shall be liable to be tried or punished
  again in criminal proceedings under the
  jurisdiction of the same State for an offence for
  which he has already been finally acquitted or
  convicted in accordance with the law and penal
  procedure of that State. These provisions shall
  not prevent the reopening of the case (), if
  there is evidence of new or newly discovered
  facts, or if there has been a fundamental defect
  in the previous proceedings, which could affect
  the outcome of the case. (Article 4 of Protocol
  7 of the European Convention on Human Rights)

14
Ne bis in idem in the CFR

• No one shall be liable to be tried or punished
  again in criminal proceedings for an offence for
  which he or she has already been finally
  acquitted or convicted within the Union in
  accordance with the law. (Article 50 of the
  Charter of Fundamental Rights)

15
Parallel prosecution under EC and national
competition laws

• According to the jurisprudence of the ECJ, NCAs
  are not banned from applying national competition
  law to conducts also governed by EC competition
  law, given the fact that EC law focuses on
  conducts affecting inter-state commerce, whilst
  NCAs deal solely with domestic cases. However,
  natural justice requires that all previous
  sanctions be taken into account. (Walt Wilhelm
  C-14/68)

16
Parallel prosecution under EC and national
competition laws

• The European Court of Human Rights took a
  different position in Franz Fischer v Austria
  (Appl. No. 37950/97)
• The prohibition of double jeopardy encompasses
  not only consecutive prosecution of nominally the
  same offences but it prohibits prosecution for
  two offences that dispose of the same essential
  elements.
• Even though not tried in practice, yet, this
  ruling suggests that EC and national competition
  law cannot be applied consecutively.
• The ne bis in idem principle prohibits double
  prosecution and not double punishment.

17
Ne bis in idem in parallel procedures of EC law

• No simultaneous application of EC competition law
  by the COM, on the one hand, and by NCA(s) may
  occur since the intervention of the COM releases
  NCAs from their duty to proceed.
• Regarding parallel application of EC competition
  law by different NCAs, although Reg. 1/2003
  empowers but not obliges national authorities to
  suspend or terminate their procedures if another
  NCA proceeds, the objective of the whole system
  is to ensure that one case is always handled by a
  single authority.

18
Ne bis in idem in consecutive procedures of EC law

• Consecutive application is the real issue from
  the point of view of the ne bis in idem
  principle. May the COM or an NCA re-open the
  investigation if it is not satisfied with the
  outcome or the fine imposed?
• This raises the problem of forum-shopping and
  precautionary prosecutions.
• Any limitation on the exercise of the rights and
  freedoms recognized by this Charter must be
  provided for by law and respect the essence of
  those rights and freedoms. Subject to the
  principle of proportionality, limitations may be
  made only if they are necessary and genuinely
  meet objectives of general interest recognized by
  the Union or the need to protect the rights and
  freedoms of others. (article 52 (1) of CFR)

19
Summary of the major problems

• A contemplated decision of the COM is binding but
  its opinion is not.
• The pre-emption of national competition laws by
  the EC competition law is not conclusively
  settled.
• The effect of the principle of ne bis in idem
  after Reg. 1/2003 will be tested by the close
  cooperation between the members of the
  competition network.