Keywords

Summary



Keywords

1. Preliminary rulings – Reference to the Court – Need for a preliminary ruling and relevance of the questions raised – Assessment by the national court

(Art. 267 TFEU)

2. Competition – European Union rules – Application – Competence of the Member States – Designation of national competition authorities – National legislation not allowing such authorities to take part, as defendants or respondents, in proceedings brought against their decisions before a court hearing an appeal – Not permissible

(Council Regulation No 1/2003, Art. 35)

Summary

1. In the context of the cooperation between the Court of Justice and the national courts provided for by Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case before it, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Where questions submitted by national courts concern the interpretation of a provision of European Union law, the Court is thus, in principle, bound to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of European Union law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

In that regard, in a reference for a preliminary ruling concerning the interpretation of European Union competition law, the fact that the national court has not yet given a definitive decision on the question as to whether national competition law alone should be applied or whether, on the contrary, European Union law is also applicable is no bar at all to the admissibility of its reference. Indeed, it would be illogical if, for the purposes of the admissibility of a reference for a preliminary ruling, the national court had to give a definitive decision on an issue which, directly or indirectly, forms the subject-matter of its reference.

Moreover, in view of the division of responsibilities between the national courts and the Court of Justice, the referring court cannot be required to make all the findings of fact and of law required by its judicial function first before it may then bring the matter before the Court. It is sufficient that both the subject-matter of the dispute in the main proceedings and the main issues raised for the European Union legal order may be understood from the reference for a preliminary ruling, in order to enable the Member States to submit their observations in accordance with Article 23 of the Statute of the Court of Justice and to participate effectively in the proceedings before the Court.

(see paras 41-42, 45-47)

2. Article 35 of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty must be interpreted as precluding national rules which do not allow a national competition authority to participate, as a defendant or respondent, in judicial proceedings brought against a decision that the authority itself has taken. If the national competition authority is not afforded the rights attaching to the status of a party to proceedings and is thus prevented from defending a decision that it has adopted in the general interest, there is, in fact, a risk that the court before which the proceedings have been brought might be wholly ‘captive’ to the pleas in law and arguments put forward by the undertaking(s) bringing the proceedings. In a field such as that of establishing infringements of the competition rules and imposing fines, which involves complex legal and economic assessments, the very existence of such a risk is likely to compromise the exercise of the specific obligation on national competition authorities under Regulation No 1/2003 to ensure the effective application of Articles 101 TFEU and 102 TFEU, which have replaced Articles 81 EC and 82 EC.

It is for the national competition authorities to gauge the extent to which their intervention is necessary and useful having regard to the effective application of European Union competition law. However, if the national competition authority consistently fails to enter an appearance in such judicial proceedings, the effectiveness of Articles 101 TFEU and 102 TFEU is jeopardised.

In the absence of European Union rules, the Member States remain competent, in accordance with the principle of procedural autonomy, to designate the body or bodies of the national competition authority which may participate, as a defendant or respondent, in proceedings brought before a national court against a decision that the authority itself has taken, while at the same time ensuring that fundamental rights are observed and that European Union competition law is fully effective.

(see paras 58, 64, operative part)