OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 25 March 2010 1( )

Case C‑439/08

Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers VZW (VEBIC)

v

Raad voor de Mededinging,

Minister van Economie

(Reference for a preliminary ruling from the Hof van beroep te Brussel (Belgium))

(Competition policy – Interpretation of Articles 2, 5, 15(3) and 35(1) of Regulation (EC) No 1/2003 – National proceedings – Submission by national competition authorities of written observations and arguments in fact and in law in appeal proceedings against their decisions – More than one authority in a Member State – Principles of equivalence and effectiveness)

I – Introduction

1. This reference for a preliminary ruling concerns the interpretation of Articles 2, 5, 15(3) and 35 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. ( )

2. In essence, the referring court is seeking to ascertain whether the abovementioned provisions entitle, or even require, national competition authorities to submit written observations or a statement in defence in annulment proceedings brought against a decision adopted by one such authority.

II – Legal framework

A – Law of the European Union

3. Article 2 of Regulation No 1/2003, headed ‘Burden of proof’, provides:

‘In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringement of Article 81(1) or of Article 82 of the Treaty shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article 81(3) of the Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled.’

4. Article 5 of Regulation No 1/2003 provides:

‘The competition authorities of the Member States shall have the power to apply Articles 81 and 82 of the Treaty in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:

– requiring that an infringement be brought to an end,

– ordering interim measures,

– accepting commitments,

– imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action on their part.’

5. Article 15 of the same regulation, entitled ‘Cooperation with national courts’, provides:

‘1. In proceedings for the application of Article 81 or Article 82 of the Treaty, courts of the Member States may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the Community competition rules.

2. Member States 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. Such copy shall be forwarded without delay after the full written judgment is notified to the parties.

3. Competition authorities of the Member States, acting on their own initiative, may submit written observations to the national courts of their Member State on issues relating to the application of Article 81 or Article 82 of the Treaty. With the permission of the court in question, they may also submit oral observations to the national courts of their Member State. Where the coherent application of Article 81 or Article 82 of the Treaty so requires, the Commission, acting on its own initiative, may submit written observations to courts of the Member States. With the permission of the court in question, it may also make oral observations.

For the purpose of the preparation of their observations only, the competition authorities of the Member States and the Commission may request the relevant court of the Member State to transmit or ensure the transmission to them of any documents necessary for the assessment of the case.

4. This Article is without prejudice to wider powers to make observations before courts conferred on competition authorities of the Member States under the law of their Member State.’

6. Lastly, Article 35 of Regulation No 1/2003 provides:

‘1. The Member States shall designate the competition authority or authorities responsible for the application of Articles 81 and 82 of the Treaty in such a way that the provisions of this regulation are effectively complied with. The measures necessary to empower those authorities to apply those Articles shall be taken before 1 May 2004. The authorities designated may include courts.

2. When enforcement of Community competition law is entrusted to national administrative and judicial authorities, the Member States may allocate different powers and functions to those different national authorities, whether administrative or judicial.

3. The effects of Article 11(6) apply to the authorities designated by the Member States including courts that exercise functions regarding the preparation and the adoption of the types of decisions foreseen in Article 5. The effects of Article 11(6) do not extend to courts insofar as they act as review courts in respect of the types of decisions foreseen in Article 5.

4. Notwithstanding paragraph 3, in the Member States where, for the adoption of certain types of decisions foreseen in Article 5, an authority brings an action before a judicial authority that is separate and different from the prosecuting authority and provided that the terms of this paragraph are complied with, the effects of Article 11(6) shall be limited to the authority prosecuting the case which shall withdraw its claim before the judicial authority when the Commission opens proceedings and this withdrawal shall bring the national proceedings effectively to an end.’

B – National legislation

7. Article 1 of the Law on the protection of economic competition) (Wet tot bescherming van de economische mededinging) (‘the WBEM’), ( ) which entered into force on 1 October 2006, defines the Belgian competition authority as follows:

‘4. The Belgian competition authority: the Competition Council and the Competition Service of the Federal Public Service Economy, SMEs, Self-employed and Energy, each acting under its powers as laid down in the present law.

The Belgian Competition Authority shall be the competition authority responsible for the application of Articles 81 and 82 of the Treaty referred to in Article 35 of Regulation [No 1/2003].’

8. Article 2(1) of the WBEM provides:

‘The following shall be prohibited, without the need for a prior decision to that effect: all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or appreciable distortion of competition on the Belgian market concerned, or in a substantial part thereof, and in particular those which:

1. directly or indirectly fix purchase or selling prices or any other trading conditions;

…’

9. Article 11 of the WBEM reads:

‘1. A Competition Council is hereby established. That Council shall be an administrative court with power to adopt decisions and the other powers conferred on it by this Law.

2. The Competition Council shall comprise:

(i) the General Assembly of the Council;

(ii) the Auditoraat (investigatory authority);

(iii) the Registry.

…’

10. Article 12 of the WBEM reads:

‘1. The General Assembly of the Council shall be composed of twelve councillors. …’

11. Article 20 of that law states:

‘Each chamber of the Council and the Chairman, or the councillor to whom he delegates powers in a case of interim measures, shall rule by means of a reasoned decision in all cases referred to them, after hearing the arguments put forward by the parties concerned and, at their request, any complainants, or a by legal adviser of their choosing.’

12. Article 25 of the WBEM sets up an Auditoraat within the Competition Council, composed of a minimum of six members and a maximum of ten members, including the auditeur-general and auditeurs or adjunct-auditeurs (‘Auditor-General’ and ‘Auditors’ or ‘Assistant Auditors’).

13. Article 29 of the same law reads:

‘1. Auditors shall be responsible for:

1. receiving complaints and applications for interim measures relating to restrictive practices, and notifications of concentrations;

2. directing and organising investigations and ensuring enforcement of decisions taken by the Competition Council;

3. issuing travel orders to officials of the Competition Service …;

4. drafting the reasoned report and submitting it to the Competition Council;

5. filing complaints and applications for interim measures;

…

2 … Without prejudice to Article 27, Auditors may not seek or accept any directions concerning the processing of cases lodged under Article 44(1), or the position they will adopt at meetings of the Auditoraat held in order to determine the priorities for the policy of implementing the law and deciding on the order in which cases will be processed.

3 When the Auditoraat decides to initiate an investigation under Article 44(1), the official directing the Competition Service shall, in cooperation with the Auditor-General, appoint the officials from that service who will make up the team responsible for the investigation.

Officials who are assigned to an investigation team may not take any directions except from the Auditor directing that investigation.

…’

14. Article 34 of the WBEM provides that the Competition Service is to be responsible in particular for identifying and investigating the practices referred to in Chapter II, under the authority of the Auditoraat.

15. The first subparagraph of Article 45(4) of the WBEM provides that where the Auditoraat considers that a complaint or an application or, where relevant, an ex officio investigation is founded, the Auditor shall, on behalf of the Auditoraat, submit a reasoned report to the Chamber of the Competition Council. That report shall contain the investigation report, the objections and a proposal for a decision. It shall be accompanied by the investigation file and a list of the documents it contains. The list shall indicate the confidentiality of the documents in relation to each of the parties having access to the file.

16. Article 75 of the WBEM reads:

‘An appeal may be brought before the Brussels Court of Appeal against decisions of the Competition Council and of its Chairman …, except where the Competition Council makes a ruling under Article 79. ( )

The Court of Appeal shall have unlimited jurisdiction to rule on alleged restrictive practices and, where relevant, on the penalties that are imposed … The Court of Appeal may take into consideration any developments that have taken place since the Council took the decision under appeal.

The Court of Appeal may impose fines and penalty payments under the provisions set out in Section 8 of Chapter IV.’

17. Article 76 of the WBEM provides:

‘1. No separate appeal may be brought against decisions whereby the Competition Council refers a case back to the Auditor.

2. Appeals provided for in Article 75 may be brought by parties to proceedings before the Competition Council, by the complainant or by any other person demonstrating a valid interest under Article 48(2) or Article 57(2) who has applied to the Competition Council for leave to be heard. An appeal may also be brought by the Minister, without the need for him to demonstrate a valid interest and without him having been represented before the Competition Council.

…

Within five days of lodging an application, the appellant must, if the appeal is not to be considered void, send a copy of the application by registered letter with acknowledgment of receipt to the parties to whom the decision under appeal has been notified, as given in the letter of notification provided for in Article 67, to the Competition Council and to the Minister, where he is not the appellant.

A cross-appeal may be brought. It shall be admissible only if it is brought within a month of receipt of the letter provided for in the preceding subparagraph.

…

The [Brussels Court of Appeal] may request the Auditoraat at the Competition Council to carry out an investigation and to submit a report to it. In such a case the Auditoraat shall have the powers of investigation provided for in Section 1 of Chapter IV.

…

The Minister may file written observations at the registry of the Brussels Court of Appeal and consult the file at the Registry without removing it. The Brussels Court of Appeal shall set time limits for the submission of such observations. The Registry shall inform the parties of their content.

…’

III – The main proceedings and the questions referred for a preliminary ruling

18. Following deregulation of the price of bread in Belgium on 1 July 2004, the Minister van Economie (Minister for the Economy) sent a letter to the Competition Council requesting it to investigate as a matter of priority the possible existence of price-fixing agreements between bakers’ associations and bakers.

19. On 20 April 2005, the Competition Service sent requests for information in particular to the Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers VZW (‘VEBIC’), a non-profit‑making association which was set up in order to represent in particular the interests of the provincial associations of bakers and artisan confectioners in the Flemish Region. VEBIC supplied the information as requested.

20. Following a number of other investigatory measures, on 8 June 2007 the Auditor-General at the Competition Council submitted to the Chairman of that Council his report containing the objections and the investigation file, which was sent to VEBIC. The report stated that the decisions of the bakers’ federations did not affect trade between Member States and that therefore the Community competition rules were not applicable to the practices under investigation. The Auditoraat did, however, find that VEBIC had infringed Article 2(1) of the WBEM since it had, in essence, distributed and published a price index for bread, together with cost structures, to its members.

21. The Auditor-General also proposed to the Chamber of the Competition Council, first, that a fine should be imposed on VEBIC, taking into account the aggravating circumstances, since VEBIC was well aware that price-fixing agreements were illegal and had not taken the opportunity to notify the competition authority of the method used to calculate prices and, second, that the practice complained of should be prohibited on pain of a penalty payment.

22. On 13 August 2007, VEBIC submitted written observations on the Auditoraat’s report.

23. By decision of 25 January 2008, the Competition Council ruled that from 1 July 2004 to 8 June 2007 VEBIC had infringed Article 2 of the WBEM; it prohibited that practice and imposed a fine of EUR 29 121 on VEBIC.

24. On 22 February 2008 VEBIC brought an action for annulment of that decision before the Hof van beroep te Brussel (Brussels Court of Appeal) (Belgium).

25. That court held that the provisions of the WBEM, in particular Articles 75 and 76 thereof, do not entitle either the Auditoraat or the Competition Council to take part in proceedings before the Hof van beroep. Such exclusion is implicit in the case of the Auditoraat since it may be required by the Hof van beroep to carry out an investigation. Only the Federal Minister responsible for the Economy may apply for the decision of the Competition Council to be reversed and become a party to the proceedings before the Hof van beroep.

26. However, in the main proceedings the referring court points out that only VEBIC is a party to the appeal proceedings, since the Minister has not availed himself of the opportunity to submit written observations.

27. In view of the issue raised by the fact that there is no other party in the main proceedings besides the appellant, as should be the case in pursuance of the WBEM, the referring court questions the compatibility of such proceedings with the provisions of Regulation No 1/2003, in particular since the effectiveness of the Community competition rules does not appear to be ensured and the law concerned does not allow the defence plea of general economic interest.

28. As regards the relevance of such questioning to the interpretation of European Union law it is seeking, the referring court states, first, that the procedural rules at issue must be applied in a uniform way, irrespective of whether the proceedings instituted by the Competition Council are based on national competition rules or on Articles 81 EC and 82 EC. Secondly, it considers that the documents on the file in the main proceedings would allow it to reverse the Competition Council’s decision so that it might be held that the practice under consideration does indeed affect trade between Member States and hence falls within the scope of Article 81(1) EC.

29. It is against that background that the referring court decided to stay proceedings and refer the following four questions to the Court of Justice for a preliminary ruling:

‘(1) Must the provisions [of Articles 2, 15(3) and 35(1) of Regulation No 1/2003] be interpreted to mean that national competition authorities derive directly from [those provisions] an entitlement to submit written observations on arguments raised in the context of appeal proceedings brought against a decision made by them and that they can themselves present arguments in fact and in law, with the result that this entitlement cannot be excluded by a Member State?

(2) Must the same provisions be interpreted to mean that, for the effective application of the competition rules with a view to protecting the general interest, the public enforcement bodies which are designated as the competition authorities are not only entitled but also have a duty to participate in the appeal proceedings against their decisions by stating their position in relation to the arguments raised in fact and in law?

(3) If questions (1) and (2) are answered in the affirmative, must these provisions then be interpreted to mean that, in the absence of national provisions concerning the participation by the competition authority in the proceedings before the appeal body and where various authorities are designated, it is the authority which is competent to take the decisions set out in Article 5 of Regulation [No 1/2003] which shall participate in the appeal proceedings against its decision?

(4) Are the answers to the above questions different if the competition authority acts, in accordance with national law, as a court of law and/or if the final decision is taken on completion of an investigation by a body belonging to that court and charged with drawing up the objections and a draft decision?’

IV – Procedure before the Court of Justice

30. In its order for reference the Hof van beroep te Brussel requested the Court of Justice to deal with the reference for a preliminary ruling under an accelerated procedure, in accordance with the first subparagraph of Article 104a of the Rules of Procedure of the Court.

31. By order of 3 December 2008, the President of the Court rejected that request.

32. Written observations were submitted by VEBIC, the Competition Council, the Belgian and Polish Governments and by the Commission. Those interested parties also presented arguments at the hearing on 20 January 2010.

V – Legal analysis

A – The admissibility and relevance of the interpretation of European Union law sought

33. At the hearing before the Court of Justice, VEBIC pleaded that the reference for a preliminary ruling was inadmissible on the ground that the interpretation sought of the provisions of Regulation No 1/2003 or of European Union law in general had no relevance as regards the outcome of the dispute in the main proceedings. In essence, according to VEBIC, the conclusion must be drawn either that the dispute in the main proceedings is confined in all respects within a single Member State or that the Court is being asked to answer questions that are irrelevant or hypothetical.

34. That line of argument does not persuade me.

35. With regard to the first objection, I willingly concede that, as the summary of the dispute in the main proceedings given above shows, the referring court is entertaining an action for annulment against a decision of the Belgian Competition Council based exclusively on national competition law, since there is no effect on trade between Member States.

36. However, irrespective of the somewhat controversial question of the conclusions that the Court must draw where it finds that a reference for a preliminary ruling is based on elements of fact and of law that have no link with European Union law, ( ) it is also apparent from the reference for a preliminary ruling that many of the documents on the file lodged before the referring court should lead the latter to use the powers conferred on it by Article 75 of the WBEM to vary the decisions of the Competition Council so that Article 81 EC may be regarded as being applicable in the dispute in the main proceedings.

37. It is consistent case-law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC it is solely for the national court before which the 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, 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. ( )

38. Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling unless, in particular, 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 Community law requested bears no relation to the actual facts of the main action or its purpose. ( )

39. In that regard, I do not consider that VEBIC’s second objection, that the fact that the referring court did not give a definitive ruling on the applicability of Article 81 EC before making its reference for a preliminary ruling leads the Court to answer questions that are irrelevant or hypothetical, is persuasive either.

40. In general, I consider that at the admissibility stage it is necessary to examine whether it is apparent that, whatever answer the Court may give to a question referred for a preliminary ruling, that answer would be manifestly without impact on the outcome of the main proceedings since in that case the interpretation of Community law sought would not objectively be required for the decision to be taken by the national court. ( )

41. That is certainly not the position in the present case since, as the Competition Council and the Belgian Government have accepted, the interpretation of Regulation No 1/2003 sought could, depending on the outcome, afford the national competition authority the status of party to the main proceedings before the referring court, which has not so far been allowed under the WBEM. In addition, the fact that the referring court has not decided to give a definitive ruling on the applicability of Article 81 EC, which it intends to raise of its own motion, may very likely be explained by the purpose of its reference, which concerns the procedural rights which should be conferred on the national competition authority in connection with its task of ensuring the full effectiveness of Articles 81 EC and 82 EC.

42. Therefore, contrary to what VEBIC claims, it is in my view illogical, to say the least, that the referring court should give a definitive decision on a question which it intends to raise of its own motion without the presence of the national competition authority, even though in essence its questioning relates specifically to the possibility for that authority to obtain the status of party to the proceedings before the referring court and thus be able to lodge a response in those proceedings, a possibility which, according to the Hof van beroep te Brussel, is only likely to result from an interpretation of the provisions of Regulation No 1/2003.

43. In other words, if the referring court had given a definitive decision on the applicability of Article 81 EC, which it intends to raise of its own motion, it would have been induced to disregard one of the possible consequences of applying the provisions of European Union law which it is requesting the Court of Justice to interpret, that is to say, respect for the rights of defence of one of the parties to the proceedings. Thus, the fact that the referring court has not given a definitive decision on the applicability of Article 81 EC must not in any way form an obstacle to the admissibility of its reference for a preliminary ruling.

44. I therefore propose that the Court should declare the reference for a preliminary ruling admissible.

B – Substance

1. First two questions referred

45. By its first two questions, which in my view should be considered together, the referring court asks in essence whether Articles 2, 15(3) and 35(1) of Regulation No 1/2003 directly entitle or require a national competition authority to submit written observations and present arguments in fact and/or in law to the national court before which an appeal against one of its decisions has been brought.

46. The answer to that question involves determining the extent to which national competition authorities may intervene before national courts where the latter are applying the competition law of the European Union.

47. As I noted in point 41 of my Opinion in X BV, ( ) the transition from a highly centralised application of Articles 81 EC and 82 EC, as was the case under Council Regulation No 17, ( ) to an arrangement providing for the decentralised implementation of the Community competition rules, as established by Regulation No 1/2003, requires the establishment of mechanisms to ensure the ‘effective’, ‘efficient’, ‘uniform’ and/or ‘coherent’ application of the provisions of Articles 81 EC and 82 EC, in accordance with the various terms used by that regulation. ( )

48. So, whilst recital 34 of Regulation No 1/2003 states that the objective of the regulation is ‘to attain a proper enforcement of Community competition law’, recital 6 states that in order to attain that objective ‘the competition authorities of the Member States should be associated more closely with [the] application [of the Community competition rules]’ and they are therefore empowered to apply all of the provisions of Articles 81 EC and 82 EC as ‘public enforcers’ ( ) and in close cooperation with the Commission, in accordance with Articles 5 and 11 of that regulation. Together with the Commission, those authorities therefore form a network of public authorities applying the Community competition rules in close cooperation. ( )

49. As the Court held in X BV, the cooperation mechanisms set up in Chapter IV of Regulation No 1/2003 between the Commission, the national competition authorities and the courts of the Member States are part of the application of the general principle of sincere cooperation, referred to in Article 10 EC, which governs the relationships between the Member States and the institutions of the European Union. ( )

50. The first and second sentences of the first subparagraph of Article 15(3) of Regulation No 1/2003, which is in Chapter IV of that regulation, entitles national competition authorities of the Member States to submit written observations on their own initiative and also, with the permission of the national court concerned, oral observations to the national courts of their Member State on issues relating to the application of Article 81 EC and/or Article 82 EC.

51. In the light of the wording of that provision, that option appears to be open to national competition authorities in any situation in which a national court applies Article 81 EC and/or Article 82 EC. That might be so, for example, where a court of a Member State adjudicates in a dispute between individuals or where such a court hears an appeal against a decision of the national competition authority applying Article 81 EC and/or Article 82 EC, or again, as in the main proceedings, where such a court intends to vary such a decision and apply either of those articles.

52. However, as the Commission stated in essence at the hearing before the Court of Justice, those two examples do not constitute typical cases in which the mechanism provided for in the first subparagraph of Article 15(3) of Regulation No1/2003 would be activated.

53. In stating that ‘[f]or the purpose of the preparation of their observations only, the competition authorities of the Member States … may request the relevant court of the Member State to transmit or ensure the transmission to them of any documents necessary for the assessment of the case’, the second subparagraph of Article 15(3) of Regulation No 1/2003 would appear to assume that the mechanism provided for in the first subparagraph of Article 15(3) in respect of national competition authorities is set in motion, as a general rule, in situations in which those authorities are not entitled on any other basis to have access, even partial access, to the documents in the case before the national court. That view appears to be confirmed, by contrary inference, by recital 21 of that regulation, which states that such observations should in particular be submitted within the framework of national procedural rules safeguarding the rights of the parties.

54. Thus, where the relevant national court hears an appeal against a decision of a national competition authority, the option provided under the first sentence of the first subparagraph of Article 15(3) of Regulation No 1/2003 might generally be considered superfluous, since that authority may, in principle, enjoy the status of party to the proceedings before that court, entitling it to be informed of the content of all the documents on the file (which mainly originate from that authority) and hence to fulfil appropriately its function as a public authority responsible for applying the competition rules of the European Union effectively as a public enforcer, as required by Regulation No 1/2003.

55. That is why Regulation No 1/2003 did not expressly settle the issue of intervention by a national competition authority, since, at the time when that regulation was adopted, the Community legislature started from the premiss that each competition authority of the Member States has the right to defend its own decisions before the courts of the Member State in whose territory it is established. In that regard, it should be recalled that at the time of the adoption and entry into force of Regulation No 1/2003 the Belgian competition authority did indeed have such a right before the national courts and that it was not until 2006, when the WBEM conferred on the Competition Council the status of a court for the purposes of Belgian law, that that right was withdrawn.

56. However, first of all, I consider that in a situation such as that in the main proceedings, in which a national competition authority is not entitled to be party to appeal proceedings brought against one of its decisions even though the national court hearing the case intends to apply Article 81 EC, that authority must clearly have the right to submit observations to that court, in accordance with the mechanism provided for in the first paragraph of Article 15(3) of Regulation No 1/2003.

57. In accordance with the principle of sincere cooperation mentioned by the Court in X BV and the objective of applying the competition rules of the European Union effectively, it must be possible to exercise the option to submit written observations effectively, account being taken of the particular procedural requirements of the Member States.

58. In that regard, I have doubts as to whether, in a case such as that in the main proceedings, the national competition authority has all the effective means to really be in a position to exercise its right to submit written observations on its own initiative concerning the application of Article 81 EC and/or Article 82 EC, in accordance with the first subparagraph of Article 15(3) of Regulation No 1/2003, since, as the Competition Council and the Belgian Government confirmed at the hearing, there is no provision of national law that requires the Hof van beroep te Brussel, where it intends to raise of its own motion application of the competition rules of the European Union in a particular case, to notify the national competition authority of its intention.

59. Without such prior notification, since the national competition authority cannot, according to the WBEM and the information given in the reference for a preliminary ruling, be party to the proceedings before the referring court, that authority is, in my view, actually deprived of the right to exercise the option provided for in the first subparagraph of Article 15(3) of Regulation No 1/2003. ( )

60. Such a deficiency could be rectified if, secondly, and as the referring court is in essence requesting, the provisions of Regulation No 1/2003 required that the national competition authority enjoy the status of party to proceedings before the appeal court having jurisdiction in appeals brought against decisions of that authority or of one of its components.

61. The parties concerned which have submitted observations to the Court of Justice are divided on this issue. In essence, so far as the Polish Government and the Commission are concerned, the effective application of Articles 81 EC and 82 EC, which is the objective of the provisions of Regulation No 1/2003, requires that the national competition authorities should have full rights of standing as defendants in proceedings against one of their decisions where the national court applies those articles, without however being required to take part in such proceedings. By contrast, the Belgian Government, the Competition Council and VEBIC are essentially of the view that, since none of the provisions of Regulation No 1/2003 deals with that issue, the Member States are, by reason of procedural autonomy and the principle of subsidiarity, free to regulate it themselves. In that regard, those parties consider that the reason why the national competition authority does not have the right to defend the decision under appeal in the main proceedings before the referring court is that the Competition Council was granted the status of a court of law under the WBEM. In those circumstances, VEBIC adds that allowing a court of first instance, such as the Competition Council, the opportunity to obtain the status of party to proceedings before the court of appeal would amount to an infringement of its own rights of defence.

62. For my part and for the reasons set out below, I am inclined to consider that if the full effectiveness of Articles 81 EC and 82 EC is to be ensured, a competition authority of a Member State must, in view of the responsibility incumbent on that authority under Regulation No 1/2003, be granted the status of party to proceedings which concern the legality of a decision adopted by one of the components of that authority and which concern application of the competition rules of the European Union.

63. First, it should be noted that the Court has consistently held that, even in the absence of Community rules, the procedural autonomy enjoyed by Member States to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing court actions for safeguarding rights which individuals derive from European Union law is restricted by the principles of equivalence and effectiveness. ( )

64. The Court has also held that compliance with the principle of effectiveness, the only principle that is relevant in the present case, as is required of Member States, means that the procedural rules which the latter adopt must not render in practice impossible or excessively difficult the exercise of rights conferred by Community law ( ).

65. Moreover, the Court has held that each case which raises the question whether a national procedural provision renders the exercise of rights conferred by the Community legal order on individuals impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In that context, the Court considers it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. ( )

66. The first objection raised by the Competition Council to the applicability of that case-law in a case such as that in the main proceedings, which should in my view be rejected, is that the principle of effectiveness protects only those rights which individuals derive from European Union law.

67. Admittedly, there is no precedent in the context of which the Court has considered application of the principle of effectiveness in favour of national authorities from the point of view of whether national procedural rules should not be applied.

68. However, that is not really the question which arises in this case. It is more whether the principle of the effectiveness of European Union law precludes application of national procedural rules which render excessively difficult or in practice impossible the exercise of the specific obligations incumbent on national competition authorities under provisions of European Union law, in this case, those of Regulation No 1/2003.

69. As stated above, in the context of decentralising application of the competition rules of the European Union, Regulation No 1/2003 confers on the national competition authorities designated by each Member State the task of applying Articles 81 EC and 82 EC effectively as public enforcers. Those authorities, together with the Commission, are therefore entrusted with the task of ensuring that fundamental provisions essential for the functioning of the internal market are effectively applied. ( )

70. That obligation expressly includes, in particular, the right for a body to submit written observations on its own initiative to the courts of the Member State concerned, in accordance with Article 15(3) of that regulation, on issues relating to the application of Articles 81 EC and 82 EC, and, with the permission of those courts, to submit oral observations.

71. It also requires, in my view, that those authorities should be heard in any court proceedings concerning the legality of their own decisions, where the authorities and/or the national court consider Article 81 EC and/or Article 82 EC to be applicable.

72. Indeed, if that were not the case, the effectiveness of those articles would be significantly reduced, since a national competition authority would have no way of defending, before the national court hearing the case, the position it had adopted as a public enforcer, or of being heard by that court in respect of any issue which that court considered it its duty to raise of its own motion.

73. In the present case, it should be noted that Article 75 of the WBEM gives the Hof van beroep te Brussel unlimited jurisdiction, both as regards assessing the existence of an infringement of Articles 81 EC and 82 EC and as regards the level of any fine that may be imposed on the undertakings to have been investigated; that jurisdiction includes the possibility, which is moreover expressly mentioned in the same article of the WBEM, of taking into consideration developments post-dating the Competition Council’s decision appealed against before the Hof van beroep.

74. In those circumstances, not to afford the national competition authority the status of party to the proceedings and thus prevent it from defending the decision it adopted as a public enforcer carries the risk that the appeal court might be totally ‘captive’ to the pleas in law and arguments put forward by the appellant undertaking(s) in the appeal against the Competition Council’s decision.

75. In a field such as that of establishing infringements of the competition rules, which involves complex legal and economic assessments and the imposition of fines that are often the subject of disputes before national or European courts, the very existence of such a risk is likely to compromise exercise of the specific obligation on national competition authorities under Regulation No 1/2003 to ensure effective application of Articles 81 EC and 82 EC.

76. Furthermore, to deny a national competition authority the status of party to the proceedings in a situation such as that in the main proceedings also means that that authority is not in a position to exercise other remedies, including lodging an appeal on a point of law against the appeal court’s decision annulling and/or varying the decision adopted by the Competition Council, as the Belgian Government and the Competition Council accepted at the hearing before the Court of Justice.

77. In such circumstances, therefore, no public authority whose duty it is to ensure the full effectiveness of the competition rules of the European Union under Regulation No 1/2003 will be able to challenge any possibly incorrect interpretation of those rules on the part of the Hof van beroep te Brussel.

78. It is possible to imagine that the national competition authority might exercise its right to submit observations to the Hof van Cassatie (Court of Cassation) under Article 15(3) of Regulation No 1/2003. However, the existence of that possibility would not rectify the deficiencies mentioned above, since activation of the mechanism provided for in Article 15(3) of Regulation No 1/2003 would, in any event, be subject to prior introduction of an appeal on a point of law by one of the parties to the proceedings before the Hof van beroep te Brussel. It is clear that those parties may, for different subjective reasons, consider that it is not in their interest to bring such an appeal.

79. Hence, the national competition authority is, in my view, placed in a situation in which exercise of its obligations under Regulation No 1/2003 will be rendered excessively difficult by national procedural rules which do not allow it to intervene as a party to court proceedings concerning one of its decisions in which application of Article 81 EC and/or Article 82 EC is involved.

80. Furthermore, contrary to the contention of the Belgian Government and the Competition Council, the fact that it is impossible for the national competition authority to be a party to proceedings before the Hof van beroep te Brussel cannot be rectified in this case by the option afforded to the Federal Minister of the Economy to become a party. It is common ground that the Minister was not designated by the Kingdom of Belgium as the ‘national competition authority’ for the purposes of Regulation No 1/2003 and is not therefore responsible, under that regulation, for ensuring the effective application of Articles 81 EC and 82 EC as a public enforcer.

81. Nor can it be rectified by the possibility for the Hof van beroep te Brussel to request the Auditoraat for a further investigation, since such a measure has by its nature a limited scope and activation of it depends both on the documents submitted to that court and on the latter giving its consent.

82. Lastly, the argument put forward by VEBIC and the Belgian Government that the judicial status granted to the Competition Council by the WBEM precludes the national competition authority being a party to proceedings before the Hof van beroep te Brussel is no more persuasive. As is apparent from Article 1 of the WBEM, the Competition Council is only one of the components of the national competition authority designated by the Kingdom of Belgium in accordance with Regulation No 1/2003, and, as the Belgian Government accepted at the hearing before the Court of Justice, that authority is a hybrid, being part-judicial and part-administrative. It is for the same reason that VEBIC’s argument, put forward at the hearing before the Court of Justice, that to grant a national court of first instance the status of party to the main proceedings would infringe its own rights of defence, should be rejected. That is not the requirement laid down in Regulation No 1/2003.

83. Hence, although effective application of Articles 81 EC and 82 EC requires, in my view, that the national authority responsible for implementing them as a public enforcer in its own Member State should be given the opportunity to be a party to the proceedings before the referring court called upon to rule on those provisions, the law of the European Union requires also that that authority should enjoy the rights conferred on it by that status, first of which is the right that the principle that the parties should be heard should be observed.

84. In that regard, I would point out that the Court has held that that basic principle of law is infringed where a judicial decision is founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment, ( ) and that the principle that the parties should be heard also implies, as a rule, a right for the parties to be apprised of pleas in law raised by those courts of their own motion, on which they intend basing their decisions, and to discuss them, ( ) considerations which stem also from compliance with Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. ( )

85. It is also in that light that it is easy to understand the reasons why the referring court, which intended to base its decision to intervene on Article 81 EC without first having been requested to do so by the appellant, decided to stay proceedings and question the Court about the need to ensure, in pursuance of the provisions of Regulation No 1/2003, that representation of the national competition authority and full exercise by the latter of its rights of defence be safeguarded.

86. The concern expressed by the referring court appears to me to be all the more understandable since, under the WBEM, that court has unlimited jurisdiction and is thus entitled to take into consideration factors which arose after the decision adopted by the Competition Council and to substitute its own decision for the Competition Council’s decision. There is no doubt that the referring court rightly appears to consider that exercise of such jurisdiction cannot be absolved from compliance with procedural rules stemming from the principle that the parties have the right to be heard. ( )

87. As a result of all these considerations, I take the view that in the light of the obligation incumbent on national competition authorities to ensure the effective application of Articles 81 EC and 82 EC under Regulation No 1/2003, that regulation should be interpreted as meaning that national competition authorities must be able to obtain the status of party to judicial proceedings concerning the legality of one of their decisions and the application of Article 81 EC and/or Article 82 EC.

88. However, in reply to the referring court’s second question, and as all the parties concerned have maintained, effective application of Articles 81 EC and 82 EC cannot go so far as to require a national competition authority to defend the legality of its decisions in all cases without exception.

89. However, it should be added, as the Commission rightly maintained, that if a national competition authority were, almost as a matter of course, not to enter an appearance, both the general principle of sincere cooperation and the effectiveness of Articles 81 EC and 82 EC would be jeopardised.

2. Third and fourth questions referred

90. By its third question, raised only in the event of the first two questions being answered in the affirmative, the referring court requests the Court of Justice in essence to state whether it falls to the national competition authority which is competent to take the decisions set out in Article 5 of Regulation No 1/2003 to participate in the appeal proceedings. By its fourth question, the referring court asks whether the answers given to the first three questions are different if one of the components of the national competition authority has judicial status, or if a body belonging to the authority conducts an investigation that, depending on circumstances, leads to the final decision of the judicial component of that authority.

91. Although I suggest that an affirmative answer should be given only to the first question, the third and fourth questions are still, even in that eventuality, wholly relevant. It is therefore appropriate to answer them.

92. So far as the wording of the questions is concerned, I would point out that, under the provisions of the WBEM, the Kingdom of Belgium has designated a single competition authority for the purposes of Regulation No 1/2003, composed of two separate bodies, in accordance with Article 1 of the WBEM. The third and fourth questions therefore concern only the allocation of powers between the different components of that authority.

93. That being the case, the answer to those questions seems to me to lie in the procedural autonomy of the Member States.

94. Although, as I stated above, the Member States are required to grant the national competition authority responsible for ensuring effective application of Articles 81 EC and 82 EC as a public enforcer the right to be a party to proceedings concerning one of its decisions, those same States none the less remain competent, in the absence of European Union rules, to designate the body or bodies within that authority which will have the power to activate such a right. The effective application of Articles 81 EC and 82 EC does not, in my view, require that the discretion of Member States be restricted in that regard.

95. That answer and the answers to the first two questions referred to the Court for a preliminary ruling is not, in my view, different if one of the components of the national competition authority possesses the status of a court or tribunal within the meaning of domestic law. ( )

96. If the Court of Justice were to agree with my suggested answers to the four questions referred it is probable that the national legislature would have to amend the WBEM in order to grant one of the components of the competition authority the status of party to proceedings before the Hof van beroep te Brussel.

97. However, in the main proceedings in the present case it is very likely that the referring court cannot wait for intervention by the national legislature in order to resolve this issue.

98. Unless the referring court considers it should stay proceedings until the entry into force of the amendment to the WBEM it must – in accordance with the obligation incumbent on the authorities of the Member States under Article 10 EC to take any appropriate measure, whether general or particular, to ensure fulfilment of the obligations arising out of Community law – interpret domestic law as far as is at all possible in a way which accords with the requirements of Community law. ( )

99. The obligation thus imposed on the national court is limited to ‘as far as is … possible’, that is to say, it applies only in cases in which the wording of the national legislation in question leaves a margin for different interpretations. The scope of such an obligation does not therefore go so far as to require an interpretation of domestic law contra legem. ( )

100. Although that assessment must be made by the referring court, an interpretation of the WBEM in accordance with the requirement to ensure full effectiveness of Articles 81 EC and 82 EC does not appear to me to be impossible in view, on the one hand, of the fact that the national competition authority designated by the Kingdom of Belgium in accordance with Regulation No 1/2003 has a dual, part-administrative, part-judicial, structure and, on the other hand, of the fact noted in the reference for a preliminary ruling that the sole clear intention of the national legislature was to exclude the option for the judicial component of the authority to enjoy the status of party to proceedings before the Hof van beroep te Brussel in the context of an appeal brought against a decision adopted by the Competition Council.

101. I therefore suggest that the answer to the third and fourth questions from the referring court should be that, in the absence of European Union rules, the Member States remain competent to designate the body which, within the national competition authority designated under the provisions of Regulation No 1/2003, has the power to exercise the right to be a party to proceedings relating to one of the decisions of that authority and concerning the application of Article 81 EC and/or Article 82 EC, irrespective of whether one of that authority’s components has the status of a court or tribunal for the purposes of domestic law.

VI – Conclusion

102. For all the above considerations, I propose that the questions referred for a preliminary ruling by the Hof van beroep te Brussel should be answered as follows:

(1) In the light of the obligation incumbent on national competition authorities to ensure the effective application of Articles 81 EC and 82 EC under Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, that regulation should be interpreted as meaning that national competition authorities must be able to obtain the status of party to judicial proceedings concerning the legality of one of their decisions and the application of Article 81 EC and/or Article 82 EC. However, the effective application of Articles 81 EC and 82 EC cannot go so far as to require a national competition authority to defend the legality of its decisions in all cases without exception.

(2) In the absence of European Union rules, the Member States remain competent to designate the body which, within the national competition authority designated under the provisions of Regulation No 1/2003, has the power to exercise the right to be a party to proceedings relating to one of the decisions of that authority and concerning the application of Article 81 EC and/or Article 82 EC, irrespective of whether one of that authority’s components has the status of a court or tribunal for the purposes of domestic law.