DHL Express (Italy) Srl and DHL Global Forwarding (Italy) SpA v Autorità Garante della Concorrenza e del mercato.
Date: 2016-01-20
30


It is settled case-law that the cooperation mechanism between the Commission and the national competition authorities which was set up in Chapter IV of Regulation No 1/2003 is intended to ensure the coherent application of the competition rules in the Member States (see, to that effect, judgments in X, C‑429/07, EU:C:2009:359, paragraph 20, and in Tele2 Polska, C‑375/09, EU:C:2011:270, paragraph 26).
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In that respect, the Court has already held that neither the Commission Notice on Cooperation, nor the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’) is binding on Member States (see judgment in Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 21).
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Moreover, the Notice on Cooperation and the Leniency Notice, adopted in the context of the ECN, were published in 2004 and 2006, respectively, in the ‘C’ series of the Official Journal of the European Union, which, by contrast with the ‘L’ series of the Official Journal, is not intended for the publication of legally binding measures, but only of information, recommendations and opinions concerning the European Union (judgments in Polska Telefonia Cyfrowa, C‑410/09, EU:C:2011:294, paragraph 35, and Expedia, C‑226/11, EU:C:2012:795, paragraph 30).
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As regards, in particular, the leniency programme applicable, within the European Union, to undertakings that cooperate with the Commission or with the national competition authorities in order to uncover unlawful cartels, it must be noted that neither the provisions of the FEU Treaty on competition nor Regulation No 1/2003 lay down common rules on leniency (judgment in Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 20). Thus, in the absence of a centralised system, at the EU level, for the receipt and assessment of leniency applications in relation to infringements of Article 101 TFEU, the treatment of such applications sent to a national competition authority is determined by that authority under the national law of the Member State in question.
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In that respect, it should be pointed out that the Leniency Notice relates only to leniency programmes implemented by the Commission itself (judgment in Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 21).
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In that context, it must be recalled that the Court has already held that the ECN Model Leniency Programme has no binding effect on the courts and tribunals of the Member States (judgment in Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 22).
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Secondly, the Court has already held that the leniency programme established by the Commission, through its Leniency Notice, is not binding on Member States (judgment in Kone and Others, C‑557/12, EU:C:2014:1317, paragraph 36). That conclusion also applies to the ECN Model Leniency Programme.
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It must be borne in mind in this regard that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a 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 to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, judgments in Kamberaj, C‑571/10, EU:C:2012:233, paragraph 40, and in Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 34).
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In those circumstances, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments in Kamberaj, C‑571/10, EU:C:2012:233, paragraph 42, and in Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 36).
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According to settled case law, it is not for the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with EU law or to interpret national legislation or regulations (see, inter alia, judgments in Jaeger, C‑151/02, EU:C:2003:437, paragraph 43, and in Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 43).
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The Member States’ competence to determine their leniency programmes must be exercised in accordance with EU law, including Regulation No 1/2003. In particular, the Member States may not render the implementation of EU law impossible 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 (judgments in Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 24, and in Kone and Others, C‑557/12, EU:C:2014:1317, paragraph 26).
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The Court has already held that leniency programmes are useful tools if efforts to uncover and bring to an end infringements of competition rules are to be effective and serve, therefore, the objective of effective application of Articles 101 TFEU and 102 TFEU (judgment in Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 25).
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Thus, the Court of Justice has held that the aim of the Leniency Notice is to create a climate of uncertainty within cartels in order to encourage the reporting of them to the Commission (judgment in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 87). That uncertainty arises, inter alia, from the fact that only one cartel participant can obtain full immunity and that, at any moment, the Commission may, on its own initiative, identify the existence of that cartel.