Brussels, 03/05/2011 (Agence Europe) - National competition authorities (NCAs) cannot themselves make findings that there has been no abuse of competition rules (“negative decisions”) on the EU's internal market: the Commission alone is empowered to make such decisions. Authorising national competition authorities to take such decisions would risk undermining the uniform application of the competition rules in the EU. Consequently, any national provision that requires closure of abuse of dominant position proceedings by a “negative decision” from the national authority runs counter to EU law.
That is the substance of the judgment handed down by the EU Court of Justice on Tuesday 3 May in Case C-375/09. The Court was responding to two questions put by the Supreme Court of Poland, asking it to interpret of Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU with regard to the areas of responsibility of member states' national competition authorities.
The Court noted that, in order to ensure the coherent application of the competition rules in the member states, the regulation puts in place a “sincere cooperation” mechanism between the Commission and the NCAs and allots responsibilities. When they find abuse, NCAs may require that an infringement be brought to an end, order interim measures, accept commitments, or impose fines, periodic penalty payments or any other penalty provided for in their national law. However, the same regulation allows them only to decide that there are no grounds for action if, on the basis of the information in their possession, they feel that the conditions for prohibition are not met. It is for the Commission, and the Commission alone, to make a finding that there has been no infringement of competition rules within the meaning of Articles 101 and 102 of the Treaty, even if these Articles are applied in a procedure undertaken by a national competition authority. Empowerment of national competition authorities to take decisions stating that there has been no breach of Treaty provisions on abuse of a dominant position could prevent the Commission from finding subsequently that the practice in question amounts to a breach of those rules and might, therefore, undermine the uniform application of the competition rules in the EU. (F.G./transl.rt)