WRITTEN QUESTION P-1024/00

by Paul Rübig (PPE-DE) to the Commission

(29 March 2000)

Subject: Competence of the European Court of Justice in competition proceedings in applicant countries

One of the purposes of the pre-accession strategy is to prepare the EU's applicant countries to deal with the rules and procedures of the single market, and particularly to ensure that the national authorities are familiar with the acquis communautaire.

Under the principles of administrative procedures a Union citizen or business can appeal to the European Court of Justice when the powers of the European Union are affected as in the case of merger controls.

In the Commission's view, can the Court also be invoked in proceedings in applicant countries, for instance on the basis of association treaties or other agreements?

Answer given by Mr Prodi on behalf of the Commission

(9 June 2000)

Article 234 (formerly Article 177) of the EC Treaty clearly provides that the courts of the Member States alone may request the Court of Justice to give preliminary rulings on questions concerning the validity and interpretation of Community law. This means that a court of a third country, even if that country has applied for accession, may not ask the Court of Justice for a preliminary ruling.

However, there is nothing to prevent a court of an applicant country from being guided by decisions given by the Court in a specific area, where an Association Agreement concluded between the Community and a third country contains a provision referring to Community law. For example Article 63(2) of the Europe Agreement establishing an association with Poland states: Any practices contrary to this Article shall be assessed on the basis of criteria arising from the application of the rules of Articles [81, 82 and 88] of the Treaty establishing the European Community.

All this reference means is that the concepts of agreements restricting competition, abuse of a dominant position or state aid must be understood in accordance with Articles 81, 82 and 88 (formerly Articles 85, 86 and 93) of the EC Treaty. The reference to the Articles of the EC Treaty does not have the effect of giving the Court jurisdiction to give preliminary rulings on disputes originating in countries which have applied for accession. The national courts of the applicant countries remain the only ones with jurisdiction to settle in those countries disputes relating to the application of the Association Agreements.

The Court could acquire jurisdiction to give preliminary rulings on a question of interpretation of the Association Agreement at the request of a court of a country which has applied for accession if the Agreement itself contained a clause giving it such jurisdiction. However, no Association Agreement with an applicant country has yet contained such a jurisdiction clause.

In general, a dispute relating to the application of an Association Agreement between the Community and a third country may be referred to the Association Council if the Agreement itself provides for such a procedure, as in the case of the Europe Agreements, and in particular the Association Agreement with Poland: Article 105 thereof provides that either Party may refer any dispute relating to the application of the Agreement to the Association Council, which may settle the dispute by means of a decision. If it is not possible to settle the dispute in this way, either Party may notify the other of the appointment of an arbitrator.

Lastly, the Commission wishes to point out that nationals of third countries, including those which have applied for accession, may institute proceedings before the Court of First Instance against the Community institutions if the conditions for admissibility of such proceedings are satisfied. The means of instituting direct proceedings under Articles 230, 232 and 235 of the EC Treaty (formerly Articles 173, 175 and 178) do not require the plaintiff, if he is a natural or legal person, to be a national of a Member State.