European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The principle of primacy of EU law  dictates that the national authorities must apply the EU competition rules, which are of direct effect. Article 3 of Regulation No 1/2003 of 16 December 2002 enshrines the obligation for the competition authorities and courts of the Member States to apply EU law where they apply national competition law to agreements and practices which may affect trade between  …

Application of EU law

The principle of primacy of EU law  dictates that the national authorities must apply the EU competition rules, which are of direct effect. Article 3 of Regulation No 1/2003 of 16 December 2002 enshrines the obligation for the competition authorities and courts of the Member States to apply EU law where they apply national competition law to agreements and practices which may affect trade between Member States . The need to ensure that conditions of competition are homogenous within the internal market makes it impossible for a practice to be prohibited under national law if it is not prohibited under EU law. The national authorities are bound to comply with this rule of convergence: they cannot take decisions on agreements, decisions or practices under Article 101 or Article 102 which would run counter to the decision adopted by the Commission (Article 16 of Regulation No 1/2003).

Article 5 of the regulation defines the extent of the competence of the national authorities in applying the EU competition rules. Acting on their own initiative or on a complaint, they may (i) order that an infringement be brought to an end; (ii) order interim measures; (iii) accept commitments; (iv) impose fines, periodic penalty payments or any other penalty provided for in their national law. However, “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” . The European Court of Justice has confirmed in a landmark ruling that the Commission alone is empowered to make a finding that there has been no breach of Articles 101 or 102 TFEU, even if those articles are applied in a procedure undertaken by a national competition authority . Accordingly, the fact that a national competition authority has accepted commitments is not binding on the Commission with regard to the finding that there has been no infringement of Articles 101 or 102 TFEU . Similarly, communications by a national competition authority as to the lawfulness of an agreement cannot create legitimate expectations that no proceedings will be brought on the basis of Article 101 TFEU . The decentralization of jurisdiction is thus limited in its goal of achieving uniformity in European law: allowing national authorities to take decisions declaring European law inapplicable could, according to the European judicature, compromise the consistent application of the competition rules in the Member States by preventing the Commission from subsequently holding that the practice in question constitutes an infringement.

The application of EU law must be carried out in close cooperation with the European Commission . Article 11 of the regulation defines how this cooperation should be pursued . Like under Regulation No 17, the national authorities must stay the proceedings where a procedure is initiated by the Commission . This is not the case where the elements being examined by both the Commission and the national authority only relate to indications concerning the practices at issue and concern a different time period  or do not relate to the same alleged infringements(s) of Articles 101 or 102 TFEU “committed by the same undertaking or undertakings on the same product  market or markets and the same geographical market or markets during the  same period or periods   The concept of the Commission "initiating proceedings” has not been afforded any legal definition; according to the Court of Justice the act of initiating proceedings is, “[…] an authoritative act of the Commission, evidencing its intention of taking a decision” . This is not the case for requests for information . On the other hand, a decision by the Commission to take no further action on a complaint does not mean that the practices subject to its assessment cannot be deemed contrary to Articles 101 and 102. On the contrary, where a file is closed due to lack of EU public interest, it is referred back to the national courts or authorities, which must apply the EU rules . In the event of the initiation of a commitments procedure by the Commission, the national authorities' subsequent loss of jurisdiction is only operative for the duration of that procedure and does not prevent them from applying Articles 101 and 102 TFEU afterwards in the case at issue .

In the context of Regulation No 1/2003, two situations must be distinguished. If the Commission is the first authority to initiate proceedings with a view to taking a decision under the regulation, the national authorities are relieved of their competence to deal with the case. If one or several national authorities have informed the Commission that they are acting on a case, the Commission may only initiate proceedings after consulting with that national competition authority within the two months initial allocation period. After the allocation phase, the Commission will, in principle, apply Article 11(6) only if one of the following situations arises: (i) network members envisage conflicting decisions in the same case; (ii) network members envisage a decision which is obviously in conflict with consolidated case law; (iii) proceedings in the case are unduly long; (iv) there is a need to adopt a Commission decision to develop EU competition policy; or (v) the national competition authority or authorities concerned do not object.

On the occasion of the tenth anniversary of Regulation No 1/2003, the Commission published a communication reviewing the achievements of the regulation and the perspectives for the future of antitrust enforcement . The communication advocated a reinforced application of EU law and greater autonomy by national competition authorities. The adoption, on 11 December 2018, of Directive No 2019-1, called ECN+, (European Competition Network+) brings a tangible response to that objective . The directive harmonizes the laws of the Member States when the NCAs apply Articles 101 and 102 TFEU in parallel with the provisions of their national competition law in the same case and establishes a procedural basis common to all NCAs. It extends to them the procedural rules applicable to the Commission under Regulation No 1-2003 and its implementing texts, and the interpretations of the Court of Justice's case law, in particular as regards the definition of an “undertaking”. The directive thus safeguards the application of the general principles of Union law and the Charter of Fundamental Rights of the European Union by NCAs which will be required to respect the undertakings' rights of defense, including the right to be heard, the right to an effective remedy, and to have proceedings conducted within a reasonable timeframe, and to refrain from taking any decision before issuing a Statement of Objections (Article3). The Member States must guarantee the independence of the NCAs and their funding (Articles 4 and 5). It sets out the minimum powers that the NCAs must have to carry out their investigations (Articles 6 to 9), find and terminate the infringement (Article 10), take interim measures (Article 11) and accept commitments (Article 12) and lays down the rules for imposing fines and periodic penalty payments (Articles 13 to 16), those intended to boost the effectiveness and attractiveness of leniency programs (Articles 17 to 23), as well as those relating to fostering mutual assistance between NCAs (Articles 24 to 28).

The Court of Justice, called upon to interpret Article 102, held that Articles 4(5) and 13(1) of Directive No 2019/1 preclude national legislation which, in  proceedings for a finding establishing an anticompetitive practice by a national competition authority, first, requires that authority to  commence the inter partes investigation stage of those proceedings by notifying the Statement of Objections to the  undertaking concerned within a period of 90 days from the moment it has knowledge of the essential elements of the alleged infringement, which could be no more than those set out in the first  report of the infringement, and, second, penalizes failure to observe that period by annulling in its entirety the final decision of that authority at the end of the infringement proceedings and revoking that authority’s power to initiate new infringement proceedings in respect of  that same practice .

The principle of primacy prohibits national authorities and courts from implementing national provisions that may prejudice the application of EU law: Case 14/68 Walt Wilhelm and others v Bundeskartellamt [1969] ECR 1, LawLex200400002688JBJ.

Case C-857/19 Slovak Telekom a.s., Judgment of 25 February 2021, LawLex202100001502JBJ.

See Case 48/72 Brasserie de Haecht v Wilkin-Janssen [1973] ECR 77, LawLex200400002770JBJ.

See French Competition Council Decision No 02-MC-09 of 12 June 2006.

Case T-342-11 CEEES and Asociación de Gestores de Estaciones de Servicio, Judgment of 6 February 2014, LawLex201700000983JBJ; Case T-574/14 European Association of Euro-Pharmaceutical Companies, Judgment of 26 September 2018, LawLex201800001412JBJ.

Ten Years of Antitrust Enforcement under Regulation No 1/2003: Achievements and Future Perspectives, COM(2014) 453.

Directive No 2019/1 of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (known as ECN+), OJEU L 11/3 of 14 January 2019.

Case C-511/23 Caronte & Tourist SpA, Judgment of 30 January 2025, LawLex202500006424JBJ.

Case C-375/09 Tele2 Polska [2011] ECR I-3055, LawLex201100000948JBJ.

Case T-402/13 Orange, Judgment of 25 November 2014, LawLex201500000568JBJ. Conversely, a Commission decision accepting commitments proposed by an undertaking under Article 9(1) of Regulation No 1/2003, does not preclude national courts from examining whether those agreements comply with the competition rules and, if necessary, declaring those agreements void pursuant to Article 101(2) TFEU: Case C-547/16 Gasorba SL, Judgment of 23 November 2017, LawLex201700001931JBJ.

Case T-472/13 H. Lundbeck A/S, Judgment of 8 September 2016, LawLex201600001398JBJ; Case T-470/13 Merck KGaA, Judgment of 8 September 2016, LawLex201600001399JBJ.

See Case 41/69 Chemiefarma v Commission [1970] ECR 661, LawLex200400002662JBJ, which stipulated even then that the application by the national authorities of the Community rules cannot call in question the Commission's exercise to the full of its powers to initiate proceedings.

See Commission Notice of 27 April 2004, on cooperation within the network of competition authorities.

See Case 14/68 Walt Wilhelm and others v Bundeskartellamt [1969] ECR 1, LawLex200400002688JBJ; French Council Decision No 96-D-57 of 1st October 1996, personal hygiene and cosmetics products sector: stipulating that the stay in proceedings does not prevent the application of national law, subject to respect of the effectiveness of the Comunity rules. See also CA Paris, 3 February 1995, on the obligation to suspend ongoing proceedings in the event of initiation of proceedings by the Commission.

European Competition Law

178. Application of EU law

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178. Application of EU law

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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