Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., devenue Netia SA.
Date: 2011-05-03
19. By its first question, the national court asks, in essence, whether Article 5 of the Regulation must be interpreted as precluding a national competition authority, in the case where, in order to apply Article 102 TFEU, it examines whether the conditions for applying that article are satisfied and where, following that examination, it forms the view that there has been no abuse, from being able to take a decision stating that there has been no breach of that article.
20. It should be noted from the outset that, under Article 3(1) of the Regulation, where the national competition authorities apply national competition law to any abuse by an undertaking having a dominant position on the market which may affect trade between Member States, they must also apply Article 102 TFEU.
21. The first paragraph of Article 5 of the Regulation specifies the powers of the competition authorities of the Member States to apply Articles 101 TFEU and 102 TFEU in individual cases. According to the first paragraph of Article 5 of the Regulation, those authorities, adjudicating on the substance, may, acting on their own initiative or on a complaint, take the following decisions: require that an infringement be brought to an end; order interim measures; accept commitments; and impose fines, periodic penalty payments or any other penalty provided for in their national law.
22. According to the second paragraph of Article 5 of the Regulation, where on the basis of the information in their possession the conditions for prohibition are not met, the national competition authorities may decide that there are no grounds for action on their part.
23. The wording of the latter provision indicates clearly that, in such a situation, the power of the national competition authority is limited to the adoption of a decision stating that that are no grounds for action.
24. That limitation on the power of th e national competition authorities is corroborated by the determination of the Commission’s decision-making power where there has been no breach of Articles 101 TFEU and 102 TFEU. According to Article 10 of the Regulation, the Commission may by decision find that Articles 81 EC and 82 EC are not applicable.
25. Recital 14 in the preamble to the Regulation states that the Commission may adopt such a decision of a declaratory nature ‘in exceptional cases’. The purpose of such action, according to that recital, is ‘to [clarify] the law and ensur[e] its consistent application throughout the [Union], in particular with regard to new types of agreements or practices that have not been settled in the existing case-law and administrative practice’.
26. Furthermore, the Court has held that, in order to ensure the coherent application of the competition rules in the Member States, a cooperation mechanism between the Commission and the national competition authorities was set up by the Regulation, as part of the general principle of sincere cooperation (see, to that effect, Case C‑429/07 X  [2009] ECR I‑4833, paragraphs 20 and 21).
27. Empowerment of national competition authorities to take decisions stating that there has been no breach of Article 102 TFEU would call into question the system of cooperation established by the Regulation and would undermine the power of the Commission.
28. Such a ‘negative’ decision on the merits would risk undermining the uniform application of Articles 101 TFEU and 102 TFEU, which is one of the objectives of the Regulation highlighted by recital 1 in its preamble, since such a decision might prevent the Commission from finding subsequently that the practice in question amounts to a breach of those provisions of European Union law.
29. It is thus apparent from the wording, the scheme of the Regulation and the objective which it pursues that the Commission alone is empowered to make a finding that there has been no breach of Article 102 TFEU, even if that article is applied in a procedure undertaken by a national competition authority.
30. Consequently, the answer to the first question is that Article 5 of the Regulation must be interpreted as precluding a national competition authority, in the case where, in order to apply Article 102 TFEU, it examines whether the conditions for applying that article are satisfied and where, following that examination, it forms the view that there has been no abuse, from being able to take a decision stating that there has been no breach of that article.
The second question