Consiliul Concurenţei v Whiteland Import Export SRL.
Date: 2021-01-21
It should be noted, as a preliminary point, that although certain acts of secondary EU law, such as framework decisions, and in certain circumstances directives, do not entail direct effect, their binding character nevertheless places on national courts an obligation to interpret national law in conformity with EU law  (see, to that effect, judgments  of 13 November 1990, Marleasing, C‑106/89, EU:C:1990:395, paragraphs 6 and 8, and of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 58).
By contrast, under the second paragraph of Article 288 TFEU, an EU regulation is to be directly applicable in all Member States. It is settled case-law that any national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation pursuant to the principle of cooperation set out in Article 4(3)  TEU, fully to apply the directly applicable law of the Union and to protect the rights which the latter confers upon individuals, disapplying any provision of national law which may be to the contrary, whether the latter is prior to or subsequent to the EU  legal rule (judgment of 8 September 2010, Winner Wetten, C‑409/06, EU:C:2010:503, paragraph 55).
In that regard, according to settled case-law, in interpreting a provision of EU law, where its wording does not expressly delimit the provision’s scope, as is true of Article 25(3) of Regulation No 1/2003 in the present case, account must be taken of the context of the provision and the objectives pursued by the rules of which it forms part (see, to that effect, judgment of 14 May 2020, Országos Idegenrendézeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 113).
As regards the context of which Article 25(3) of Regulation No 1/2003 forms part, it should be borne in mind that Article 25(1) of that regulation makes the Commission’s power to impose fines and periodic penalty payments for infringements of the competition rules subject to a five-year limitation period (see, to that effect, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 166).
Thus, it is, in the absence of binding regulation under EU law on the subject, for Member States to establish and apply national rules on limitation periods for the imposition of penalties by national competition authorities, including the procedures for suspension and/or interruption (see, by analogy, judgment of 14 June 2011, Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 23).
However, as the Advocate General noted in point 49 of his Opinion, while the establishment and application of those rules falls within the competence of the Member States, the latter must exercise that competence in accordance with EU law, and in particular the principle of effectiveness. Accordingly, they may not render the implementation of EU law impossible in practice or excessively difficult and, specifically, in the area of competition law, they must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see, to that effect, judgment of 14 June 2011, Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 24). The authorities designated under Article 35(1) of Regulation No 1/2003 must ensure that those Treaty articles are applied effectively in the general interest (judgment of 7 December 2010, VEBIC, C‑439/08, EU:C:2010:739, paragraph 56).
In addition, it should be noted that, under Article 4(3)  TEU, Member States are obliged not to detract, by means of national legislation, from the full and uniform application of EU law; nor may they introduce or maintain in force measures which may render ineffective the competition rules applicable to undertakings (see, to that effect, judgment of 19 March 1992, Batista Morais, C‑60/91, EU:C:1992:140, paragraph 11 and the case-law cited).
That being so, it is compatible with EU law to lay down reasonable time limits for the imposition of penalties by national competition authorities in the interests of legal certainty, which protects both the undertakings concerned and those authorities.  Such time limits are not liable to make it in practice impossible or excessively difficult to apply EU law (see, by analogy, judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 41).
In order to determine whether national rules on limitation strike such a balance, all elements of those rules must be taken into consideration (see, by analogy, judgment of 28 March 2019, Cogeco Communications, C‑637/17, EU:C:2019:263, paragraph 45), which may include, inter alia, the date from which the limitation period begins to run, the duration of that period and the rules for suspending or interrupting it.
Account must also be taken of the specific features of competition law cases and in particular of the fact that those cases require, in principle, a complex factual and economic analysis (see, by analogy, judgment of 28 March 2019, Cogeco Communications, C‑637/17, EU:C:2019:263, paragraph 46).
Consequently, national legislation laying down the date from which the limitation period starts to run, the duration of that period and the rules for suspending or interrupting it must be adapted to the specific features of competition law and the objectives of applying the rules of that law by the persons concerned, so as not to prejudice the full effectiveness of the EU competition law rules (see, by analogy, judgment of 28 March 2019, Cogeco Communications, C‑637/17, EU:C:2019:263, paragraph 47).
National rules on limitation which, for reasons inherent to them, are systematically an obstacle to the imposition of effective and dissuasive penalties for infringements of EU competition law are liable to render application of the rules of that law impossible in practice or excessively difficult (see, by analogy, judgment of 17 January 2019, Dzivev and Others, C‑310/16, EU:C:2019:30, paragraph 31 and the case-law cited).
If that should prove to be the case, it would in principle be for the referring court, without waiting until the national legislation at issue is amended by legislation or by any other constitutional procedure, to give full effect to the obligations referred to in paragraph 47 above by interpreting that legislation so far as at all possible in the light of EU law, and particularly  the rules of EU competition law, as interpreted by the Court in particular in  paragraph 56 above, or, as necessary, by disapplying that legislation (see, see, by analogy, judgment of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 66, and the case-law cited).
In those circumstances, it is for the referring court, taking the whole body of national law into consideration and applying the interpretative methods recognised by that law, to interpret the national provisions at issue in the main proceedings, so far as is possible, in the light of the EU law and, in particular, the wording and the purpose of Article 101  TFEU (see, to that effect, judgments of 11 January 2007, ITC, C‑208/05, EU:C:2007:16, paragraph 68, and of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 43).
The principle that national law must be interpreted in conformity with EU law, by virtue of which the national court is required, to the greatest extent possible, to interpret national law in conformity with the requirements of EU law, is inherent in the system of the Treaties, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 159).
However, the principle of interpreting national law in conformity with EU law has certain limits.  Thus, the obligation on a national court to refer to the content of EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law, including the principle of legal certainty, and cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 44 and the case-law cited).
The question whether a national provision must be disapplied in so far as it conflicts with EU law arises only if no interpretation of that provision in conformity with EU law proves possible (judgment of 7 August 2018, Smith, C‑122/17, EU:C:2018:631, paragraph 41).