Opinion of the Advocate General — ECLI:EU:C:2009:130
Date: 2009-03-05
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment Competition – Community rules – Application – Cooperation between the Commission and the national courts – Intervention by the Commission in proceedings pending before a national court (Arts 81 EC, 82 EC and 83 EC; Council Regulation No 1/2003, Art. 15(3)) Article 15 of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, entitled ‘Cooperation with national courts’, establishes a system for the mutual exchange of information between the Commission and the courts of the Member States, and provides, in specific circumstances, for the possibility of intervention by the Commission and the competition authorities of the Member States in proceedings pending before national courts. A literal interpretation of the first subparagraph of Article 15(3) of Regulation No 1/2003 leads to the conclusion that the option for the Commission, acting on its own initiative, to submit written observations to the courts of the Member States is subject to the sole condition that the coherent application of Articles 81 EC or 82 EC so requires. That condition may be fulfilled even if the proceedings concerned do not pertain to issues relating to the application of Article 81 EC or Article 82 EC. Moreover, Articles 81 to 83 EC must be understood as forming part of a comprehensive set of provisions designed to prohibit and punish anti‑competitive practices, the purpose of Article 83 EC being inter alia to ensure the effective supervision of cartels and abuses of dominant positions. To dissociate the principle of prohibition of anti‑competitive practices from the penalties provided for where that principle has not been observed would deprive of any effectiveness the action taken by the authorities responsible for monitoring compliance with that prohibition and punishing such practices. Thus, the provisions of Articles 81 EC and 82 EC would be ineffective if they were not accompanied by enforcement measures provided for in Article 83(2)(a) EC. There is an intrinsic link between the fines and the application of Articles 81 EC and 82 EC. The effectiveness of the penalties imposed by the national or Community competition authorities on the basis of Article 83(2)(a) EC is therefore a condition for the coherent application of Articles 81 EC and 82 EC. The decision that the court of a Member State must give in proceedings relating to the deductibility from taxable profits of the amount of a fine or a part thereof imposed by the Commission for infringement of Articles 81 EC or 82 EC is capable of impairing the effectiveness of the penalty in respect of anti‑competitive practices provided for in Article 83(2)(a) EC and therefore might compromise the coherent application of Articles 81 EC or 82 EC. The third sentence of the first subparagraph of Article 15(3) of Regulation No 1/2003 must therefore be interpreted as meaning that it permits the Commission to submit on its own initiative written observations to a court of a Member State in proceedings relating to the deductibility from taxable profits of the amount of a fine or a part thereof imposed by the Commission for infringement of Articles 81 EC or 82 EC. (see paras 24, 30, 33-34, 36-38, 40, operative part)