Opinion of the Advocate General — ECLI:EU:C:2010:743
Date: 2010-12-07
Language of the case: Polish
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the Judgment 1. Competition – European Union rules – Application – Powers of the national competition authorities – Limits (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Arts 5 and 10) 2. Acts of the institutions – Regulations – Direct applicability – Article 5 of Regulation No 1/2003 – Consequences (Arts 102 TFEU and 288 TFEU; Council Regulation No 1/2003, Art. 5(2)) 1. According to the second paragraph of Article 5 of Regulation No 1/2003, where, on the basis of the information in their possession, the conditions for prohibition are not met, the national competition authorities may decide that there are no grounds for action on their part. The wording of that provision indicates clearly that, in such a situation, the power of the national competition authority is limited to the adoption of a decision stating that that are no grounds for action. That limitation of the power of the national competition authorities is corroborated by the determination of the Commission’s decision-making power when there has been no breach of Articles 101 TFEU and 102 TFEU. According to Article 10 of Regulation No 1/2003, the Commission may by decision find that Articles 101 TFEU and 102 TFEU are not applicable. Recital 14 in the preamble to the regulation states that the Commission may adopt such a decision of a declaratory nature ‘in exceptional cases’. The purpose of such action, according to that recital, is ‘to [clarify] the law and ensur[e] its consistent application throughout the [Union], in particular with regard to new types of agreements or practices that have not been settled in the existing case-law and administrative practice’. Furthermore, in order to ensure the coherent application of the competition rules in the Member States, a cooperation mechanism between the Commission and the national competition authorities was set up by the regulation, as part of the general principle of sincere cooperation. Empowering national competition authorities to take decisions stating that there has been no breach of Article 102 TFEU would call into question the system of cooperation established by the regulation and would undermine the power of the Commission. Such a ‘negative’ decision on the merits would risk undermining the uniform application of Articles 101 TFEU and 102 TFEU, which is one of the objectives of the regulation highlighted by recital 1 in its preamble, since such a decision might prevent the Commission from finding subsequently that the practice in question amounts to a breach of those provisions of Union law. It is thus apparent from the wording and the scheme of the regulation and from the objective it pursues that the Commission alone is empowered to make a finding that there has been no breach of Article 102 TFEU, even if that article is applied in a procedure undertaken by a national competition authority. Consequently, Article 5 of Regulation No 1/2003 must be interpreted as precluding a national competition authority, when, in order to apply Article 102 TFEU, it examines whether the conditions for applying that article are satisfied and when, following that examination, it forms the view that there has been no abuse, from being able to take a decision stating that there has been no breach of that article. (see paras 22-30, operative part 1) 2. Since the second paragraph of Article 5 of the Regulation is directly applicable in all Member States, according to Article 288 TFEU, it precludes the application of a rule of national law which would require a procedure relating to the application of Article 102 TFEU to be brought to an end by a decision stating that there has been no breach of that article. (see paras 34-35, operative part 2)