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

Acting as EU courts of general jurisdiction, the national courts are bound to apply the primacy and direct effect of the EU rules . Points of law based on EU law - which are matters of public policy - must therefore be raised ex officio by the court where they do not involve that court going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances ot …

Application of EU law

Acting as EU courts of general jurisdiction, the national courts are bound to apply the primacy and direct effect of the EU rules . Points of law based on EU law - which are matters of public policy - must therefore be raised ex officio by the court where they do not involve that court going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions, bases his/her claim . Article 6 of Regulation No 1/2003 gives full powers to the national courts to apply Articles 101 and 102 of the Treaty. The courts of the Member States are competent to “apply” Articles 101 and 102 TFEU - which should cover the power to review the compatibility of an agreement with Article 101(3) and to assess whether acts adopted by EU institutions comply with the Treaty and with measures adopted to give the Treaty effect, to the extent that these acts have direct effect . In addition, the national courts have exclusive jurisdiction to implement Article 101(2) which states: “Any agreements or decisions prohibited pursuant to this article shall be automatically void”. Actions for damages that may result from a restrictive agreement or abuse of a dominant position are subject to the conditions laid down by Directive No 2014/104 of 26 November 2014 and the provisions enacting it into national law .

Article 15 of Regulation No 1/2003 establishes the framework for cooperation between the national courts and the EU authorities . The courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the EU competition rules ; Member States must forward to the Commission a copy of any written judgment of national courts deciding on the application of Article 101 or Article 102 of the Treaty. That copy must be forwarded without delay after the full written judgment is notified to the parties. The regulation makes a distinction between written observations that the NCAs and the Commission may submit of their own initiative, and oral observations that they may only submit with the permission of the court in question. The Notice on the cooperation between the Commission and the courts of the EU Member States recalls that where a national court comes to a decision before the Commission does, it must avoid adopting a decision that would conflict with a decision contemplated by the Commission . Article 16 of the regulation in effect consolidates settled case law, bringing the interpretation of the courts in line with that of the Commission . The court must not only take into account decisions already taken in application of the EU competition rules but also those decisions that will be rendered in cases where the Commission has initiated proceedings and must thereby suspend its own proceedings until the Commission has rendered its final decision . On the other hand, 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 . Finally, if a national court has doubts as to the compatibility of the practice at issue with the EU competition rules it may, in accordance with Article 267 TFEU, refer a question to the Court of Justice for a preliminary ruling .

Case T-51/89 Tetra Pak v Commission [1990] ECR II-309, LawLex200400002923JBJ; Case 106/77, Amministrazione delle finanze dello Stato v Simmenthal [1978] ECR 629, LawLex200700001337JBJ; Court of Cassation, 24 May 1975, LawLex200700000072JBJ; TGI Nanterre, 21 January 1981, LawLex200200003494JBJ: The national court must examine the validity of a distribution agreement in the light of EU law before it considers the existence of offenses under French criminal law (refusal to sell).

See Commission Notice No 2004/C 101/04, 27 April 2004, at pt 3.

Case C-344/98 Masterfoods and HB [2000] ECR I-11369, LawLex200500004956JBJ.

See Commission Notice No 2004/C 101/04 of 27 April 2004, at pt 7; thus, a national court may impose compliance with Commission decisions or regulations made in application of Articles 101(3) TFEU or may be called upon to comply with a Commission decision in respect of Articles 7 to 10 and 23 and 24 of the Regulation; See in particular Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, LawLex200900002340JBJ.

See Directive No 2014/104 of 26 November 2014.

See Commission Notice No 2004/C 101/04 of 27 April 2004.

However, the assistance offered by the Commission does not bind the national court: Commission Notice No 2004/C 101/04 of 27 April 2004, at pt 19. The Commission provides the national court with the information within a month of the date it receives the request and the requested opinion within four months from that date. The Commission limits itself to providing the national court with the factual information or the economic or legal clarification asked for, without considering the merits of the case pending before the national court. The opinion of the Commission does not legally bind the national court.

See Commission Notice No 2004/C 101/04 of 27 April 2004, at pt 12.

See Case C-234/89 Delimitis v Henninger Bräu [1991] ECR I-935, LawLex200500003931JBJ; Particularly in complex economic and legal assessments involved in European competition litigation, See Cases C-215/96 and C-216/96 Bagnasco and others [1999] ECR I-135, LawLex200400002954JBJ.

This obligation of consistent interpretation is however explicitly distinct from the rights and obligations arising from Article 267 TFUE on preliminary rulings.

Case C-547/16 Gasorba SL, Judgment of 23 November 2017, LawLex201700001931JBJ.

European Competition Law

181. Application of EU law

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181. Application of EU law

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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