Subsidiarity and Antitrust: The Enforcement of European Competition Law in the National Courts of Member States (1995)

II Introduction Three interrelated developments, emanating from three separate institutions of the European Union, have signaled a reshaping of the application of competition law within the European Union in the post-Maastricht era. Collectively, they represent the initiation of a move away from the present system in which competition enforcement decisions are centralized in a Brussels-based bureaucracy and toward a policy of devolved and decentralized enforcement in which private actions will plan an increasingly important part. These three developments are, respectively, the Council of Ministers' adoption of the principle of subsidiarity,(1) the Court of First Instance's decision in Automec II,(2) and the Commission's publication of its Notice on Cooperation Between National Courts and the Commission in Applying Article, 85 and 86.(3) This move toward a decentralized approach to competition law enforcement is not merely a question of jurisdiction allocation but forms part of the general development of Union law, whereby it is integrated into the national laws and practices of the member states. At a more practical level, it represents a kind of double jeopardy whereby firms breaching the competition rules of the Union face not only investigation and sanction by the European Commission but also litigation initiated by private parties before the national courts of the member states.(4) The most fundamental of these three developments is the adoption of the principle of subsidiarity. The meaning of subsidiarity, put simply, is that action should be taken at the Community level only when this is more appropriate than taking action at a national or regional level. The principle is contained in Title II of the Treaty on European Union,(5) which creates a new Article 3b of the E.C. Treaty: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.(6) The principle of subsidiarity was adopted largely at the insistence of the United Kingdom government which, in common with the other large Member States, wanted to resist the centralizing tendency of Brussels and to effect a devolution of policy to the national level.(7) This issue came to prominence in the second six months of 1992, during which time the United Kingdom held the presidency of the Council of Ministers.(8) Final agreement on the wording of Article 3b was achieved at the Edinburgh Summit of the Council of Ministers on December 11th and 12th 1992.(9) The implication of this principle for competition enforcement is that the Commission henceforward is not merely able but is obliged to give consideration to the role and functions of national authorities and private persons in enforcing competition law before exercising its own powers to investigate, enjoin, or penalize anticompetitive conduct. The principle of subsidiarity was foreshadowed in the Court of First Instance's decision in Automec II, delivered on September 18th, 1992.(10) In this case, the court redefined the scope of the Commission's obligations in relation to complaints alleging infringements of Articles 85 or 86 of the E.C. Treaty.(11) The court held that the Commission may validly exercise its discretion so as to refuse to investigate a complaint that lacks sufficient Community, interest.(12) The judgment,(13) which is discussed in detail in Part IV.A below, is of enormous importance because it indicates that in many instances aggrieved competitors or customers may be forced to ventilate their grievances before a national court. The alternative avenue of a complaint to the Commission will no longer be available. The third and final major development is the Commission's publication of the Notice. …