Opinion of the Advocate General — ECLI:EU:C:2003:58
Date: 2003-01-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Italy

SUMMARY — CASE C-198/01 
Summary of the Judgment 
1. Competition — Community rules — Obligations of the Member States — National 
law making compulsory or facilitating conduct on the part of undertakings which is 
contrary to Community rules — Duty of the national competition authority not to 
apply the law — Power to impose penalties on undertakings for conduct made 
compulsory by national law — None — Power to impose penalties for conduct 
taking place after the decision finding there to have been a breach of Article 81 EC and 
for past conduct facilitated or encouraged by national law 
(Arts 10 EC and 81(1) EC) 
2. Competition — Community rules — Obligations of the Member States — National 
law conferring power to fix the retail selling prices of a product on a ministry and 
power to allocate production between undertakings on a consortium to which the 
relevant producers are obliged to belong — Possibility of competition between 
undertakings — Assessment in each specific case of whether undertakings have acted 
autonomously 
(Art. 81(1) EC) 
1. Where undertakings engage in conduct 
contrary to Article 81(1) EC and where 
that conduct is required or facilitated 
by national legislation which legit­
imises or reinforces the effects of the 
conduct, specifically with regard to 
price-fixing or market-sharing arrange­
ments, a national competition auth­
ority which has been made responsible 
for ensuring that the competition rules 
and, in particular, Article 81 EC are 
observed, is under a duty not to apply 
the national legislation. Since Article 81 
EC, in conjunction with Article 10 EC, 
imposes a duty on Member States to 
refrain from introducing measures 
contrary to the Community compe­
tition rules, those rules would be ren­
dered less effective if, in the course of 
an investigation under Article 81 EC 
into the conduct of undertakings, the 
authority were not able to declare a 
national measure contrary to the com­
bined provisions of Articles 10 EC and 
81 EC and if, consequently, it failed to 
disapply it. 
However, if the general Community-
law principle of legal certainty is not to 
be violated, the duty of a national 
competition authority to disapply such 
an anti-competitive law cannot expose 
the undertakings concerned to any 
penalties, either criminal or adminis­
trative, in respect of past conduct 
where the conduct was required by 
the law concerned. It follows that that 
authority may not impose penalties on 
the undertakings concerned in respect 
of past conduct when the conduct was 
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required by the national legislation; it 
may impose penalties on them in 
respect of their conduct after the 
decision declaring there to be a breach 
of Article 81 EC, once the decision has 
become definitive in their regard. 
In any event, the national competition 
authority may impose penalties in 
respect of past conduct where the 
conduct was merely facilitated or pro­
moted by the national legislation, 
whilst taking due account of the spe­
cific features of the legislative frame­
work in which the undertakings acted. 
In that regard, when the level of the 
penalty is set the conduct of the under­
takings concerned may be assessed in 
the light of the national legal frame­
work, which is a mitigating factor. 
(see paras 50, 53-55, 
57-58, operative part 1) 
2. National legislation under which com­
petence to fix the retail selling prices of 
a product is delegated to a ministry and 
power to allocate production between 
undertakings is entrusted to a consor­
tium to which the relevant producers 
are obliged to belong, may be regarded, 
for the purposes of Article 81(1) EC, as 
not precluding undertakings from 
engaging in autonomous conduct 
capable of preventing, restricting or 
distorting competition if, in the specific 
case concerned, it does not preclude 
that possibility of competition between 
undertakings and if any additional 
restrictions for which the undertakings 
are blamed are not in fact attributable 
to the Member State concerned. 
(see paras 66, 80, 
operative part 2) 
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