CELEX: 62008CC0439
Language: en
Date: 2010-03-25 00:00:00
Title: Opinion of Mr Advocate General Mengozzi delivered on 25 March 2010. # Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers (VEBIC) VZW. # Reference for a preliminary ruling: Hof van Beroep te Brussel - Belgium. # Competition policy - National proceedings - National competition authorities participating in judicial proceedings - Hybrid national competition authority being judicial and administrative in nature - Appeal against the decision of such an authority - Regulation (EC) No 1/2003. # Case C-439/08.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 25 March 2010 1(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)
      
      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’), (3) 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. (4)
      
      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, (5) 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. (6)
      
      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. (7)
      
      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. (8)
      
      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, (9) the transition from a highly centralised application of Articles 81 EC and 82 EC, as was the case under Council Regulation
         No 17, (10) 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. (11)
      
      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’ (12) 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. (13)
      
      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. (14)
      
      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. (15)
      
      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. (16)
      
      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 (17).
      
      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. (18)
      
      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. (19)
      
      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, (20) 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, (21) 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. (22)
      
      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. (23)
      
      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. (24)
      
      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. (25)
      
      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. (26)
      
      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. 
      
      1 –	Original language:  French.
      
      2 –	OJ 2003 L 1, p. 1.
      
      3 –	Belgisch Staatsblad of 29 September 2006, p. 50613.
      
      4 –      Article 79 of the WBEM (not relevant to the main proceedings) provides that the Competition Council is to hear appeals against
         decisions taken by the sectoral regulatory authorities. Under Article 81 of the WBEM, an appeal on a point of law may be brought
         before the Court of Cassation against decisions taken by the Competition Council under Article 79 of the WBEM.
      
      5 –	In that regard, it is possible to list at least four lines of case-law that coexist. As regards the first and oldest of
         these, the Court holds that the rules of the EC Treaty are not applicable to a situation which is confined in all respects
         within a single Member State (see, in particular, Case C‑97/98 Jägerskiöld [1999] ECR I‑7319, paragraph 45, and Order of 19 June 2008 in Case C‑104/08 Kurt, paragraph 20). As regards the second line of case-law, the Court gives an answer ruling that the relevant European Union
         law does not preclude the national regulations at issue (see, in particular, the operative part of the Order of 5 April 2004
         in Case C‑3/02 Mosconi and Ordine degli Ingegneri di Verona e Provincia; Order of 21 January 2008 in Case C‑229/07 Mayeur, paragraph 20, and Order of 17 March 2009 in Case C‑217/08 Mariano, paragraphs 30 and 31). According to the third line of case-law, the Court considers that it has no jurisdiction to answer
         the questions raised (see, in particular, Case C‑299/05 Kremzow [1997] ECR I‑2629, paragraph 15; Order in Case C‑328/04 Vajnai [2003] ECR I‑8577, paragraph 13; Order of 25 January 2007 in Case C‑302/06 Koval’ský, paragraphs 20 and 23, and Order of 16 January 2008 in Case C‑361/07 Polier, paragraphs 11 and 16). According to the fourth line of case-law, the Court accepts the admissibility of questions referred
         for a preliminary ruling that are based on facts confined within a single Member State, in particular if the national law
         requires the national court to allow nationals of the Member State of that court to enjoy the same rights as those which those
         nationals would derive from European Union law in the same situation (see, among others, Case C‑448/98 Guimont [2000] ECR I‑10663, paragraph 23; Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraphs 33 to 35, and Case C‑380/05 Centro Europa 7 [2008] ECR I‑349 paragraph 69).
      
      6 –	See, in particular, Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 16, and Case C‑260/07 Pedro IV Servicios [2009] ECR I‑2437, paragraph 28.
      
      7 –	See, to that effect, Confederación Española de Empresarios de Estaciones de Servicio, paragraph 17 and case-law cited.
      
      8 –	See Case C‑206/99 SONAE [2001] ECR I‑4679, paragraphs 45 and 46, and point 40 of my Opinion in Pedro IV Servicios.
      
      9 –	Case C‑429/07 [2009] ECR I-0000.
      
      10 –	Regulation of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty, OJ, English Special
         Edition 1959-1962, p. 87, as last amended by Council Regulation (EC) No 1216/1999 of 10 June 1999 (OJ 1999 L 148, p. 5). 
      
      11 –	In the French language version of Regulation No 1/2003, the term ‘effectif[ve]’ is used in recitals 5 and 8 and, adverbially,
         in Article 35(1) of that regulation; the term ‘efficace’ is used in recitals 6 and 34; the term ‘uniforme’ is used in recital
         22 and in the title of Article 16 of Regulation No 1/2003; the term ‘cohérent(e)’ is used in recitals 14, 17, 19 and 21 and
         in Article 15(3) of Regulation No 1/2003. As I observed in point 33 of my Opinion in X BV, these differences are not necessarily relevant in all the language versions of Regulation No 1/2003. 
      
      12 –	See, in particular, recital 35 of Regulation No 1/2003.
      
      13 –	Recital 15 of Regulation No 1/2003.
      
      14 –	Paragraphs 20 and 21.
      
      15 –	I would add, for such purposes as this may serve, that the fact that, according to recital 21 of Regulation No 1/2003 and
         Article 76 of the WBEM, the national competition authority is notified of the appeal brought against its decision makes no
         difference, since in the present case VEBIC is by no means complaining that the Competition Council failed to apply Article
         81 EC. 
      
      16 –	See, to that effect, Joined Cases C‑430/93 and C‑431/93 Van Schijndel and van Veen [1995] ECR I‑4705, paragraph 17; Case C‑129/00 Commission v Italy [2003] ECR I‑14637, paragraph 25; Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraphs 62 and 71; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 28, and Case C‑268/06 Impact [2008] ECR I‑2483, paragraphs 44 to 46. 
      
      17 –	See, in particular, Van Schijndel and van Veen, paragraph 17; van der Weerd and Others, paragraph 28, and Impact, paragraph 46.
      
      18 –	See, to that effect, van der Weerd and Others, paragraph 33 and case-law cited.
      
      19 –	See, to that effect, Case C‑126/97 Eco Swiss [1999] ECR I‑3055, paragraph 36. 
      
      20 –	Joined Cases 42/59 and 49/59 Snupat v High Authority [1961] ECR 53, at 84; Case C‑480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I‑265, paragraph 24; Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 19, and Case C‑89/08 P Commission v Irelandand Others [2009] ECR I‑0000, paragraph 52.
      
      21 –	Commission v Ireland and Others, paragraph 55. See also Case C‑197/09 RX-II M v EMEA [2009] ECR I‑0000, paragraph 57.
      
      22 –	See, to that effect, Case C‑450/06 Varec [2008] ECR I‑581, paragraphs 46 and 47, and Commission v Ireland and Others, paragraphs 54 to 58. 
      
      23 –	See to that effect, as regards compliance with such a principle by European Union courts, M v EMEA, paragraph 58.
      
      24 –	In that regard, it should be pointed out that such status is without prejudice to the concept of a national court or tribunal
         within the meaning of Article 234 EC. See, with regard to the non-judicial nature of the Greek national competition authority
         within the meaning of Article 234 EC, Case C‑53/03 Syfait and Others [2005] ECR I‑4609, paragraphs 30 to 37. 
      
      25 –	See in particular to that effect Case C‑115/08 ČEZ [2009] ECR I-10265, paragraph 138).
      
      26 –	See, to that effect, among others, Case C‑54/96 Dorsch Consult [1997] ECR I‑4961, paragraph 45.