Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato.
Date: 2003-09-09
45. In that regard, it is appropriate to point out, first, that, although Articles 81 EC and 82 EC are, in themselves, concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 10 EC, which lays down a duty to cooperate, none the less require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Case 13/77  GB-Inno-BM  [1977] ECR 2115, paragraph 31; Case 267/86  Van Eycke  [1988] ECR 4769, paragraph 16; Case C-185/91  Reiff  [1993] ECR I-5801, paragraph 14; Case C-153/93  Delta Schiffahrts- und Speditionsgesellschaft  [1994] ECR I-2517, paragraph 14; Case C-96/94  Centro Servizi Spediporto  [1995] ECR I-2883, paragraph 20; and Case C-35/99  Arduino  [2002] ECR I-1529, paragraph 34).
46. The Court has held in particular that Articles 10 EC and 81 EC are infringed where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 81 EC or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see  Van Eycke , paragraph 16;  Reiff , paragraph 14;  Delta Schiffahrts- und Speditionsgesellschaft , paragraph 14;  Centro Servizi Spediporto , paragraph 21; and  Arduino , paragraph 35).
48. It is appropriate to bear in mind, second, that in accordance with settled case-law the primacy of Community law requires any provision of national law which contravenes a Community rule to be disapplied, regardless of whether it was adopted before or after that rule.
49. The duty to disapply national legislation which contravenes Community law applies not only to national courts but also to all organs of the State, including administrative authorities (see, to that effect, Case 103/88  Fratelli Costanzo  [1989] ECR 1839, paragraph 31), which entails, if the circumstances so require, the obligation to take all appropriate measures to enable Community law to be fully applied (see Case 48/71  Commission  v  Italy  [1972] ECR 527, paragraph 7).
50. Since a national competition authority such as the Authority is responsible for ensuring,  inter alia , that Article 81 EC is observed and that provision, in conjunction with Article 10 EC, imposes a duty on Member States to refrain from introducing measures contrary to the Community competition rules, those rules would be rendered less effective if, in the course of an investigation under Article 81 EC into the conduct of undertakings, the authority were not able to declare a national measure contrary to the combined provisions of Articles 10 EC and 81 EC and if, consequently, it failed to disapply it.
51. In that regard, it is of little significance that, where undertakings are required by national legislation to engage in anti-competitive conduct, they cannot also be held accountable for infringement of Articles 81 EC and 82 EC (see, to that effect,  Commission and France  v  Ladbroke Racing , paragraph 33). Member States ' obligations under Articles 3(1)(g) EC, 10 EC, 81 EC and 82 EC, which are distinct from those to which undertakings are subject under Articles 81 EC and 82 EC, none the less continue to exist and therefore the national competition authority remains duty-bound to disapply the national measure at issue.
56. Second, if a national law merely encourages, or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC and may incur penalties, including in respect of conduct prior to the decision to disapply that national law.
57. It must none the less be made clear that, although such a situation cannot lead to acceptance of practices which are likely further to exacerbate the adverse effects on competition, it nevertheless means that when the level of the penalty is set the conduct of the undertakings concerned may be assessed in the light of the national legal framework, which is a mitigating factor (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73  Suiker Unie and Others  v  Commission  [1975] ECR 1663, paragraph 620).
62. It should also be borne in mind that for the purposes of the procedure set out in Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter, when ruling on the interpretation or validity of Community provisions, is empowered to do so only on the basis of the facts which the national court puts before it (see Case C-30/93  AC-ATEL Electronics Vertriebs  [1994] ECR I-2305, paragraph 16). It is not for the Court of Justice to apply Community law to the dispute before the national court (see Joined Cases 253/78 and 1/79 to 3/79  Giry and Guerlain  [1980] ECR 2327, paragraph 6) or to assess the facts in the main proceedings.
67. First, it should be observed that the possibility of excluding particular anti-competitive conduct from the scope of Article 81(1) EC on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has precluded all scope for any competitive conduct on their part has been only partially accepted by the Court of Justice (see, by way of example, Joined Cases 209/78 to 215/78 and 218/78  Van Landewyck  v  Commission  [1980] ECR 3125, paragraphs 130 to 134; Case 41/83  Italy  v  Commission  [1985] ECR 873, paragraph 19; and Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82  Stichting Sigarettenindustrie and Others  v  Commission  [1985] ECR 3831, paragraphs 27 to 29).
68. It is appropriate to observe, second, that price competition does not constitute the only effective form of competition or that to which absolute priority must in all circumstances be given (Case 26/76  Metro  v  Commission  [1977] ECR 1875, paragraph 21).