Electronic copy available at: http://ssrn.com/abstract=2524320

EU Competition Law

Between Public and Private Enforcement

Edited byBernardo Cortese

Electronic copy available at: http://ssrn.com/abstract=2524320

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List of Editor and Contributors

Filippo Amato is Of Counsel in the Brussels office of Jones Day, and member of theBrussels and Turin Bar. Before joining Jones Day, he served as an official of theEuropean Commission, at the Directorate General for Competition and at the Commis-sion’s Legal Service. Between 2002-2003 he was Référendaire at the Court of Justice, atthe cabinet of former Advocate General Antonio Tizzano. He received his law degree in1995 from the University of Turin, an LL.M. in EU Law from the College of Europe in1998, and LL.M. from Columbia University in 2001.

Prof. Bernardo Cortese, PhD, is Associate Professor of International Law at theUniversity of Padua School of Law, Department for Public Law, International and EULaw. He lectures in European Union Law at the main Padua campus of the School ofLaw, and in International and European Trade Law at the Treviso campus of the sameSchool. From 2001 to 2004 he was Référendaire at the European Court of Justice, in theChambers of Prof. Antonio Tizzano.

Daniele P. Domenicucci is an Italian lawyer who has held the position of Référendaireat the General Court (Luxembourg) since 2005. He was a member of the Bar of Pescara(Italy) from 1992 until 2005 and practiced as a senior associate in the Brussels office ofthe Italian firm Bonelli Erede Pappalardo from 1999 to 2005. He taught a “Jean Monnet”module in EC law at the University of Camerino (Italy) from 1998 to 2005 and hecurrently lectures on EU Litigation at the University of Lorraine (France). He is a regularguest-speaker at universities and professional training courses for lawyers and judges.

Mr. Fabio Filpo is an Italian lawyer with significant EU competition law experience.Since 2002 he has practised in Brussels and is currently a senior associate at the lawfirm FratiniVergano - European Lawyers. He often acts as a competition law expert ininternational projects, is a frequent speaker at conferences, seminars and trainingcourses and regularly publishes articles about EU competition law.

Paolo Iannuccelli, LLM (College of Europe, Bruges), LLM (University of Michigan LawSchool), PhD (University of Perugia and Bocconi University, Milan), admitted

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to the Italian Bar, practiced in several international law firms, before joining in 2005 theChambers of Bo Vesterdorf, then President of the Court of First Instance of the EC. Heregularly lectures in EU procedural law at SciencesPo (Paris). From 2006 he isRéférendaire at the European Court of Justice, in the Chambers of Judge AntonioTizzano.

Francesco Liberatore is a Senior Associate at Jones Day in London. He advises clientson all aspects of the application of antitrust and competition laws. He represents clientsin OFT, Competition Commission and EU Commission proceedings, and in judicialproceedings before the Competition Appeal Tribunal, the High Court of Justice and theEuropean Courts. He authored various articles on regulatory and competition lawissues published by, amongst others, the International Bar Association and theAmerican Bar Association. Regular speaker at events including the European Commis-sion’s competition law training seminars for the national judiciary, Francesco isrecommended in various legal directories by clients and peers for his competition lawexperience (Chambers Global 2013 and Legal 500 UK).

Prof. Pietro Manzini, PhD, is barrister and full Professor of International Law and EULaw at the University of Bologna, Department of legal Studies. From 1998 to 1899 hewas Référendaire at the Court of First Instance. From 2008 to 2011 he was SecondedNational Expert at the Legal Service of the European Commission. He has been externallawyer for the European Commission in competition litigations before the EU courts.

Roberto Mastroianni is full Professor of European Union law at the University“Federico II” in Naples, Italy, where he also teaches Media Law. He graduated in Lawat the University of Florence, Italy (1987), and holds a Ph.D. in European Law from theUniversity of Bologna (1991) as well as a LL.M. from the Penn State/Dickinson Schoolof Law in Carlisle (PA), USA (1992). He specialized in International Copyright Law andin European Mass Media Law at the Universities of Geneva, Amsterdam and New York(NYLS). Former Researcher of International Law at the University of Florence (1992-1997), he served as Référendaire at the European Court of Justice in Luxembourg, inthe Cabinets of Advocate General Giuseppe Tesauro and Antonio Saggio (1997-2000).

The Hon. Mr. Justice William M. McKechnie, who was born in 1951, was educatedat Presentation Brothers College, University College Cork, from which he graduated in1971, University College Dublin and King’s Inns, Dublin.

He was called to the Bar in 1972 and admitted to the Inner Bar in 1987. As aBarrister he practised in the area of commercial, chancery and local authority law, andhad a special interest in medical negligence.

He held a number of senior positions in the Bar Council of Ireland for severalyears and was elected Chairman in 1999 and re-elected in 2000.

He was appointed a High Court Judge in 2000 and took charge of the competitionlist in 2004. As such he presided over all competition cases both civil and criminal. Hemade the first Declaration of Incompatibility under the European Convention onHuman Rights Act, 2003, in the Transgender case of Foy –v- An t-Ard Chláraitheoir.

List of Editor and Contributors

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Mr. Justice McKechnie was Chairman of the Valuation Tribunal from 1995 to 2000 andsince 2002 has been the Chair of the Editorial Board of the Judicial Studies InstituteJournal. He has been a member of the Courts Service Board and also of the RulesMaking Committee

He was appointed to the Supreme Court in June 2010.In 2010 he was elected President of the Association of European Competition Law

Judges, which represents each of the 27 Member States of the European Union, as wellas Judges from the Court of Justice and the General Court of the European Union andfrom the EFTA Court. He is the third President of the Association, following SirChristopher Bellamy and Dr. Joachim Bornkamm.

He has written several papers, participated in and presided over many confer-ences and delivered the 4th Annual CCJHR Lecture at UCC on the 4th March 2010. Heholds a Masters Degree in European Law.

He is a Bencher of the Honourable Society of King’s Inns.

Prof. Francesco Munari, PhD, is full Professor of European Union law at the Universityof Genoa, Department of Law, where he teaches also international law. He is also alegal practitioner at the law-firm Munari Giudici Maniglio Panfili of Genoa, Italy.

Gabriella Muscolo, Judge sitting in the specialist section for IP and Competition Law-Court for undertakings in Rome. Italian Member of the Enlarged Board of Appeal of theEuropean Patent Office. Lecturer in Commercial Law in the post-graduated School ofLaw at La Sapienza Università di Roma. Author of several contributions on IP andCompetition Law published in Italy and abroad.

Stefano Nicolin, PhD, is a lawyer, member of the Italian Bar, and Honorary Fellow inEuropean Union Law at the at the University of Padua School of Law, Department forPublic Law, International and EU Law. He is also Temporary Lecturer of InternationalLaw at the Treviso campus of the Ca’ Foscari University of Venice.

Prof. Lorenzo Federico Pace is Professor of EU Law, University of Molise, and Memberof the Bar of Rome, Italy.

Alice Pezard is Of Counsel in Heenan Blaikie AARPI since March 2013Former Judge Alice Pezard received her law degrees from the University of Paris

and was accepted at the Bar. She then completed her studies at the “Ecole nationale dela Magistrature”, and was appointed judge in 1976. She worked as a prosecutor in theCourts before being appointed as a member of the Ministry of Justice where shesupervised the implementation of anti-trust law in the oil industry. In 1983, she was putin charge of French proceedings in the European Human Rights Courts in Strasbourg(France) . In 1986, she became legal Adviser to Mr Jean-Claude Trichet, Treasury Head,then From 1995 until 2002, head of the legal affairs and tax Department in the Frenchand International banking Group “Caisse des dépôts et Consignations”. After five years( 2002,-2007) as a “President de chambre”, in the Paris Court of Appeals, in charge oftrade and anti-trust law, financial services, telecommunications and intellectual prop-erty, she was appointed Judge in the Supreme Court in the Economic and Finance

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Chamber. In parallel, she has held teaching positions at the University of Paris and abusiness school.

Main publications: “The future of European finance” ; City of York (Paris, 1995);“Codified French monetary and financial regulations” (LexisNexis, 2004, preface byJ.-Cl. Trichet, 2006 preface by M. Camdessus , 2009 preface by Mrs Lagarde);“Corporate Governance in American and French law” (Documentation française);“Droit et Déontologie des activités financières : comparaison internationale”(Germany, United Kingdom, United States, Japan); “Corporate governance : perspec-tives internationales »“Droit et Déontologie des activités financières en Allemagne”.

Dario Ruggiero, partner at Cintioli & Associati, is a lawyer specialized in EU and Italiancompetition law. He regularly appears before Competition Authorities and Courts torepresent leading corporate clients, both in public and in private enforcement. Hisactivity particularly focuses on postal services, telecommunication, insurance, energyand gas, air transport services, gaming and betting, environment. He is guest lecturerin EU and Italian competition law and speaker at meetings and seminars, as well asauthor of articles and monographic pamphlets, on postal services and private enforce-ment.

Iannis Symplis is a Maître des Requêtes (Associate Justice) at the Council of State(Supreme Administrative Court) of Greece, specializing in taxation, competition, IP,and public procurement. Member of the Executive Board of the AECLJ since 2009.From 2009 to 2012 he was a member of the Law Commission.

Igor Taccani is an Italian qualified lawyer and an EU official currently serving as aRéférendaire at the Court of Justice of the European Union (cabinet of AdvocateGeneral Mengozzi). From 2008 to 2012 he served as a Référendaire at the General Courtof the European Union. Prior to joining the EU Courts, Mr Taccani practiced competi-tion law in Brussels in two international law firms (Latham & Watkins and Shearman& Sterling). He has also worked in three different competition authorities (EuropeanCommission, Italian Competition Authority and German Federal Cartel Office). Heregularly lectures EU and Italian Competition Law at universities and he currentlyteaches Public Law at the University of Trier (Germany). He received his law degreeSumma Cum Laude from the University of Genoa, Italy, and he holds an LLM SummaCum Laude from the University of Cologne, Germany, and a Public Certificate inInternational Law from the University of London (Queen Mary College).

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Summary of Contents

List of Editor and Contributors v

Foreward xxiii

Preface xxv

PART IGeneral Problems: Goals and Scope of EU Competition LawBernardo Cortese 1

CHAPTER 1The Goals of EU Competition LawPietro Manzini 21

CHAPTER 2Defining Agreements and Concerted Practices Restricting Competition inEU Competition LawFilippo Amato 35

CHAPTER 3The Scope of EU and National Competition Law: The Effect on InterstateTrade Criterion in PracticeIgor Taccani 47

CHAPTER 4Piercing the Corporate Veil in EU Competition Law: The Parent SubsidiaryRelationship and Antitrust LiabilityBernardo Cortese 73

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PART IIThe Difficult Relationship between Administrative Authorities and theJudiciary in Antitrust Private EnforcementBernardo Cortese 95

CHAPTER 5Antitrust Enforcement After the Entry into Force of Regulation No. 1/2003:The Interplay between the Commission and the NCAs and the Need foran Enhanced Role of National CourtsFrancesco Munari 111

CHAPTER 6The Effects on Private Enforcement of the Commission’s and NationalCompetition Authorities’ Decisions: An Italian PerspectiveDario Ruggiero 129

CHAPTER 7Defining the Role of Courts and Administrative Bodies in PrivateEnforcement in Europe: United in Diversity?Bernardo Cortese 145

PART IIIPrivate Enforcement and Preliminary Rulings: The Interaction betweenNational Judges and the ECJBernardo Cortese 173

CHAPTER 8Preliminary Rulings and Competition Law: Some Reflections for NationalJudgesDaniele P. Domenicucci 179

CHAPTER 9The European Court of Justice and the Shaping of Private Enforcement ofEU Antitrust Law through Preliminary RulingsPaolo Iannuccelli 223

CHAPTER 10The Court of Justice ‘Antitrust Enforcement Negative HarmonisationFramework’ and the CDC and Pfleiderer Judgments: ‘Another Brick in the Wall’Lorenzo F. Pace 241

PART IVDamages Actions in Private Antitrust EnforcementBernardo Cortese 257

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CHAPTER 11Damages Actions in Private Antitrust Enforcement: French ReportAlice Pezard 263

CHAPTER 12Damages Actions in Private Antitrust Enforcement: Greek ReportIannis Symplis 269

CHAPTER 13Damages Actions in Private Antitrust Enforcement: Irish ReportWilliam McKechnie 287

CHAPTER 14Damages Actions in Private Antitrust Enforcement: Italian ReportGabriella Muscolo 301

PART VCompetition, Regulation and Liberalization: Sector-SpecificApproaches and Their Significance for Private EnforcementBernardo Cortese 307

CHAPTER 15Competition Enforcement in the Electronic Communications Sector:The Case of Margin SqueezeFabio Filpo 311

CHAPTER 16Promoting Information Pluralism through EU Law: Regulation orCompetition Law in the Audiovisual Sector?Roberto Mastroianni 333

CHAPTER 17Restrictions on Parallel Trade of Pharmaceutical Products and EUCompetition LawFrancesco Liberatore 347

CHAPTER 18EU Competition Law and the Financial Services SectorStefano Nicolin 359

Annexes 367

Table of Cases 429

Index 469

Summary of Contents

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Table of Contents

List of Editor and Contributors v

Foreward xxiii

Preface xxv

PART IGeneral Problems: Goals and Scope of EU Competition LawBernardo Cortese 1

CHAPTER 1The Goals of EU Competition LawPietro Manzini 21

§1.01 Introduction 21§1.02 The Goals of Article 101: The Balance between Consumer Protection,

Promotion of Economic Efficiency, and Competitiveness of the Market 23§1.03 The Goals of Article 102: In Search of Economic Efficiency? 25§1.04 The Alignment between the Goals of Articles 101 and 102 29§1.05 The Goal of Market Integration 31§1.06 Conclusions 33

CHAPTER 2Defining Agreements and Concerted Practices Restricting Competition in EUCompetition LawFilippo Amato 35

§2.01 The Notion of Agreements, Concerted Practices, and Decisions byAssociations of Undertakings 35[A] Agreements 35

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[B] Concerted Practices 37[C] Complex Cartels 38[D] Decision by Association of Undertakings 38

§2.02 The Notion of Restriction of Competition 38[A] Restrictions by Object (Hardcore Restrictions) 39[B] Restrictions on Competition that Are Not Appreciable (‘De

Minimis’ Restrictions) 41[C] Ancillary Restrictions 42[D] Restrictions of Competition by Effect 43

§2.03 Conclusions 45

CHAPTER 3The Scope of EU and National Competition Law: The Effect on InterstateTrade Criterion in PracticeIgor Taccani 47

§3.01 Introduction 47§3.02 The Effect on Trade Criterion: The Notion 49

[A] The Guidelines on the Effect on Trade 49[B] The Effect on Trade Criterion 51[C] The Three Cumulative Elements Constituting the Effect on Trade

Criterion 52[D] The NAAT Rule and the Positive Presumption 55[E] Types of Agreements and Practices 56

§3.03 The Effect on Trade Criterion: Selected EU Case Law 57[A] Case Law on the Effect on Trade Criterion 57[B] Case Law on the NAAT Rule 60

§3.04 The Effect on Trade Criterion: Case law of the National Courts ofMember States 63[A] Introduction 63[B] National Courts’ Case Law: Italy 64[C] National Courts’ Case Law: France 65[D] National Courts’ Case Law: Other EU Member States 68

§3.05 Concluding Remarks 71

CHAPTER 4Piercing the Corporate Veil in EU Competition Law: The Parent SubsidiaryRelationship and Antitrust LiabilityBernardo Cortese 73

§4.01 Introduction 73§4.02 General Remarks on the Notion of Undertaking under Article 101 TFEU 74§4.03 The Economic Unit Doctrine ‘as a Shield’ 74§4.04 The Origins of the Economic Unit Doctrine ‘as a Sword’:

Affirming Jurisdiction over Third Country Parent Companies 76

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§4.05 The Mature Phase of the Economic Unit Doctrine: Strengtheningthe Effectiveness of EU Competition Law by Piercing theCorporate Veil 77

§4.06 The Need to React to Abuses or Situations Objectively Impairingthe Effectiveness of EU Competition Law: Reality or FataMorgana? 79

§4.07 The Attribution in Case of Wholly Owned Subsidiaries: Is Therea Need for Specific Evidence? 83

§4.08 Reviving the AEG-Telefunken Special Rule: Presumption ofDecisive Influence in Case of Wholly Owned Subsidiaries 85

§4.09 Expanding the Economic Unit Approach to Enforcement?The Limits Arising from the Principle of Procedural Autonomyof Member States 89

PART IIThe Difficult Relationship between Administrative Authorities and theJudiciary in Antitrust Private EnforcementBernardo Cortese 95

CHAPTER 5Antitrust Enforcement After the Entry into Force of Regulation No. 1/2003:The Interplay between the Commission and the NCAs and the Need for anEnhanced Role of National CourtsFrancesco Munari 111

§5.01 Introduction 111§5.02 Modernization through Direct Effect: The Risk of Building an

Unbalanced System 112§5.03 Does the ECN Ensure Uniformity and Transparency? 113§5.04 Direct Effect of Article 101(3) TFEU and Legal Certainty 115§5.05 The Commission’s Normative Role 116§5.06 The Cooperation between NCAs and the Commission: The

Circulation of Evidence in the ECN 117§5.07 Leniency Programmes and the Circulation of Evidence 118§5.08 The Role of National Courts in Judicial Review Cases 119§5.09 The Role of National Courts in Private Enforcement Cases 121§5.10 Access to Leniency Files and Private Enforcement: The Risk of Forum

Shopping 124§5.11 Conclusive Remarks 125Selected Bibliography 125

CHAPTER 6The Effects on Private Enforcement of the Commission’s and NationalCompetition Authorities’ Decisions: An Italian PerspectiveDario Ruggiero 129

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§6.01 Introduction 129[A] Effects of Administrative Decisions on the National Courts’

Proceedings 131[B] The Effects of Administrative Decisions on Italian Case Law 135[C] An Assessment of Italian Case Law 138

§6.02 Conclusion 140Bibliography 141

CHAPTER 7Defining the Role of Courts and Administrative Bodies in PrivateEnforcement in Europe: United in Diversity?Bernardo Cortese 145

§7.01 Introductory Remarks 145§7.02 German Bundeskartellamt as Amicus Curiae 146§7.03 French Autorité de la Concurrence as Amicus Curiae 148§7.04 Requests for Opinions: The Need for Inter Partes Proceedings 149§7.05 EU Commission as an Amicus Curiae before French Courts: Need

for Fine Tuning? 149§7.06 Amicus Curiae and Preliminary Ruling: The Pierre Fabre

Dermo-Cosmétique Case 151§7.07 Amicus Curiae Submissions, Request for Information, and Preliminary

Ruling: Some General Considerations 151§7.08 British NCAs as Amicus Curiae 152§7.09 The Italian Practice: No Use of Amicus Curiae Briefs or Other

Cooperation Tools as a Consequence of Strict Separation betweenAdministrative and Judicial Functions 155

§7.10 Evidence From Public Enforcement? General Tools Instead of DirectCooperation 156

§7.11 The Effects of Commission Infringement Decisions in Italian PrivateEnforcement Cases 157

§7.12 The Effect of Italian NCA’s Infringement Decisions 158§7.13 Spanish Comisión Nacional de la Competencia as Amicus Curiae 160§7.14 Sweden Konkurrensverket as Amicus Curiae: Consistent Practice

under both Regulation and General National Provisions 162§7.15 Reinforced Cooperation between Courts and NCAs: Beyond the

Amicus Curiae Model? 163[A] Malta Office for Competition: Just an Amicus Curiae? 163[B] Latvia: Duty to Cooperate as a Consequence of General

Provisions? 165[C] Romania: Duty to Cooperate as a Consequence of Special

Provisions? 166

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§7.16 Czech Republic and Slovakia: Applicability of General Provisions onCooperation 167[A] Czech Republic 167[B] Slovakia 167

§7.17 Luxembourg: No Relevant Case Implementing Appropriate SpecialLegislation 168

§7.18 Bulgaria: No Relevant Practice or Provisions 169§7.19 Conclusive Remarks 169

PART IIIPrivate Enforcement and Preliminary Rulings: The Interaction betweenNational Judges and the ECJBernardo Cortese 173

CHAPTER 8Preliminary Rulings and Competition Law: Some Reflections for NationalJudgesDaniele P. Domenicucci 179

§8.01 General Introduction 179§8.02 Object of Preliminary References 183§8.03 The Concept of ‘Court or Tribunal’ as Established in the Court of

Justice’s Case Law 185§8.04 Option and Obligation to Refer a Question 188

[A] Exceptions to the Obligation to Refer a Question for aPreliminary Ruling as They Concern Courts against WhoseDecisions There Is No Judicial Remedy under National Law 189

§8.05 Preliminary References of Questions of Validity 190[A] The Relationship between Ascertaining Validity through a

Reference for a Preliminary Ruling and Actions for Annulment 192§8.06 ‘Consequences’ for Failure to Comply with the Obligation to Refer a

Question for a Preliminary Ruling 192§8.07 Clear-Cut ‘Division of Labour’ and Cooperation between National

Courts and the Court of Justice 194[A] The ‘Inadmissibility’ of Questions Referred for a Preliminary

Ruling 197§8.08 The Effect of the Ruling 203

[A] The Temporal Effect of the Ruling 205§8.09 Final Remarks and Practical Suggestions on How to Prepare an Order

for Reference 206§8.10 The Preliminary Reference Procedure in the Context of Competition

Law: Some Reflections on the Post-Modernization Period 211§8.11 The Possible Interaction between the Mechanism of Reference for a

Preliminary Ruling and Regulation No. 1/2003: The Role of theNational Judge 217

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CHAPTER 9The European Court of Justice and the Shaping of Private Enforcementof EU Antitrust Law through Preliminary RulingsPaolo Iannuccelli 223

§9.01 Introduction 223§9.02 The Role of the Judge in Private Enforcement 225

[A] In General 225[B] Specifically, in Stand-Alone Cases 226[C] Specifically, in Follow-On Cases 227

§9.03 Compensation 228§9.04 Procedural Autonomy and the EU Legislative Framework for

Antitrust Compensation 232§9.05 The Limits of the Workability of Private Enforcement: A Return to

Public Enforcement? 235§9.06 Conclusion 238

CHAPTER 10The Court of Justice ‘Antitrust Enforcement Negative HarmonisationFramework’ and the CDC and Pfleiderer Judgments: ‘Another Brick inthe Wall’Lorenzo F. Pace 241

§10.01 Introduction 241§10.02 The Objective of Regulation 1/03: Between Decentralization and

Safeguarding the Rights of Those Harmed by Infringements ofArticles 101 and 102 TFEU 242

§10.03 Attempts at European Level to Adopt a Directive in the Field of PrivateEnforcement. The Important (Albeit Insufficient) Role of the EuropeanCourt in the Development of Private Enforcement in the Teeth of theTardiness of the European Legislator. Awaiting the Proposal for aDirective and Compliance with the Principle of Subsidiarity 243

§10.04 Case Law of the ECJ and the Role of the Principle of Effectiveness 244§10.05 Private Antitrust Enforcement in Europe, Absence of a Proposal for a

Directive on Private Enforcement and the ‘Alternative Use’ ofRegulation 1049/2001 247

§10.06 The Consequences of the Lack of Private Antitrust EnforcementRules on the Relationship Between Public and Private Enforcement 249

§10.07 The CDC Judgment and the Refusal to Accept General Exceptions toAccess Commission Documents Based on the Protection of ItsCompetition Policy 249

§10.08 The Pfleiderer Judgment and the National Court’s Power to WeighInterests. The Solution that Permits the Refusal of Access to theLeniency Applicant’s Documents in the Possession of the Commission 251

§10.09 Conclusions 253

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PART IVDamages Actions in Private Antitrust EnforcementBernardo Cortese 257

CHAPTER 11Damages Actions in Private Antitrust Enforcement: French ReportAlice Pezard 263

§11.01 Public Enforcement Findings and Their Role in Private EnforcementJudicial Proceedings 263

§11.02 Damages Actions: Burden of Proof Issues 263§11.03 A Very Limited Recourse to Courts’ Experts… 264§11.04 An Intense Dialogue between Parties’ Experts and the Court 264§11.05 The Conduct of the Hearing: Judicial Control over NCA’s Decisions

before the Paris Court of Appeal 265§11.06 Evidence and the Cour de Cassation 265§11.07 Passing-On Defence 266

CHAPTER 12Damages Actions in Private Antitrust Enforcement: Greek ReportIannis Symplis 269

§12.01 An Overview of Case Law 269§12.02 Binding Effect of the Decisions of Administrative Courts and

Competition Authorities 274§12.03 Calculation of Damages and the Passing-On Defence 279§12.04 Proof of Damage: Discovery, Confidentiality, Economic Expertise 282

[A] Discovery 282[B] Expertise 285[C] Third Party Access to Information and Confidentiality 286[D] Requests for Assistance and Amicus Curiae Briefs 286

CHAPTER 13Damages Actions in Private Antitrust Enforcement: Irish ReportWilliam McKechnie 287

§13.01 Brief Overview: Competition Law in Ireland 287§13.02 Private Enforcement of Competition Law 288

[A] Private Enforcement in Ireland 288[B] European Commission: Encouraging More Private Enforcement 289[C] Obstacles to Private Enforcement in Ireland 289

[1] ‘Follow-On’ Actions 292[2] Burden of Proof 293

[a] Amicus Curiae Briefs 295

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[D] Requests for Information 296[1] On Expertise and Other General Tools 298

CHAPTER 14Damages Actions in Private Antitrust Enforcement: Italian ReportGabriella Muscolo 301

§14.01 The Cooperation between National Courts and the NationalCompetition Authority in Searching Evidence 301

§14.02 Collecting Evidence before National Courts 304

PART VCompetition, Regulation and Liberalization: Sector-SpecificApproaches and Their Significance for Private EnforcementBernardo Cortese 307

CHAPTER 15Competition Enforcement in the Electronic Communications Sector: The Caseof Margin SqueezeFabio Filpo 311

§15.01 Introduction 311§15.02 The Peculiarities of Antitrust Enforcement in the E-communications

Sector: Vertical Integration and Sector-Specific Regulation 311§15.03 The EU Approach on Margin Squeeze 314

[A] Margin Squeeze as an Abuse of Dominant Position 314[B] The EU Practice and Case Law 315

§15.04 Critical Aspects of Margin Squeeze 317[A] Margin Squeeze as a Stand-Alone Abuse 318[B] Margin Squeeze as an Effect-Based Abuse 321[C] Possible Justifications: (1) The Role of Efficiencies 322[D] Possible Justifications: (2) The Influence of Sector-Specific

Regulation 323[E] The Appropriate Cost Benchmark and Cost Models 324[F] The (Different) US Approach to Margin Squeeze 327

§15.05 Margin Squeeze Abuses and Private Enforcement 328§15.06 Concluding Remarks 329Selected Bibliography 330

CHAPTER 16Promoting Information Pluralism through EU Law: Regulation orCompetition Law in the Audiovisual Sector?Roberto Mastroianni 333

§16.01 Introduction: European Union Legislative Competences in theAudiovisual Sector 333

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§16.02 EU Harmonization Competences in the Field of Information Pluralism 335§16.03 The Insufficiency of the Current EU Antitrust and Regulatory

Framework 339§16.04 The Provisions Contained in the So-Called ‘Telecoms Package’ 340§16.05 Concluding Remarks: Regulation and Competition 344

CHAPTER 17Restrictions on Parallel Trade of Pharmaceutical Products and EUCompetition LawFrancesco Liberatore 347

§17.01 Introduction 347§17.02 Background 348§17.03 The Commission’s Perspective 349§17.04 The EU Courts’ Perspective 349§17.05 Legal Framework 349§17.06 Specific Features of the Pharmaceutical Sector 350§17.07 Relevant Product Market 350§17.08 Relevant Geographic Market 351§17.09 Dual Pricing 352§17.10 Supply Quota System by a Non-dominant Company 353§17.11 Supply Quota System by a Dominant Company 354§17.12 Product Life Cycle Management Strategies 355§17.13 Conclusion 357

CHAPTER 18EU Competition Law and the Financial Services SectorStefano Nicolin 359

Annexes 367

Table of Cases 429

Index 469

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CHAPTER 7

Defining the Role of Courts andAdministrative Bodies in PrivateEnforcement in Europe: United inDiversity?Bernardo Cortese

§7.01 INTRODUCTORY REMARKS

This study is a follow-up to a survey conducted by the author in the framework ofEuro-Comp-Aid, a networking programme co-funded by the European Commission,DG Competition, and directed by the author. Several experts, mainly from NationalCompetition Authorities (NCAs) of the EU Member States, answered a questionnairedrafted by the author of the present study.1 The present study reflects on some of themost interesting results of the survey, as to the actual impact of cooperation toolsprovided for by Article 15 of Regulation 1/2003. It also addresses the ways in which thelegal systems of Member States complement Article 15 cooperation tools especially asconcerns NCAs. Such national mechanisms of cooperation between courts dealing withprivate enforcement cases and public enforcement authorities are assessed by takinginto account their soundness in the framework of the modernization and decentrali-zation of EU competition law and some concerns about possible inconsistencies withthe system designed by Article 267 TFEU. Due account is also taken of the role playedby NCA public enforcement findings before civil courts dealing with private enforce-ment follow-on actions.

1. The answers to the questionnaires are reproduced as an Annex to this volume.

145

§7.02 GERMAN BUNDESKARTELLAMT AS AMICUS CURIAE

It is interesting to start the analysis of the actual significance of Article 15 of theRegulation by having a look at German law. As is widely known, German law wasundoubtedly a model for the cooperation between judges and administrative authori-ties in antitrust private enforcement. In fact, under section 90 of the German Act againstRestraints of Competition (ARC),2 the German Bundeskartellamt (BKA) is entitled tosubmit written observations, and to present arguments at hearings before civil courtsdealing with private enforcement disputes.3

The German practice is therefore substantial and shows a systematic participa-tion of the BKA before the Federal Supreme Court (Bundesgerichtshof), while itsparticipation as an amicus curiae in lower instances is in principle limited to caseswhere questions of law or fact arise, which are dealt with in parallel cases before theBKA.

However, it should be mentioned that Article 15, paragraph 3, of Regulation 1/03,has introduced some innovation in the German system too. On the one hand, it hasextended the BKA’s power to submit observations to (the quite rare case of) disputespending before administrative jurisdictions.4 On the other, it has entrusted the Com-mission with the same powers BKA already enjoyed.

Quite understandably, however, in view of the extensive practice of the BKAacting as amicus curiae, no special need has yet arisen for the Commission to use itsamicus curiae powers before German courts. The need for the Commission’s directinvolvement before national courts dealing with private enforcement cases, it issubmitted here, should actually be measured against NCA attitudes on cooperationwith national judges, and against the effectiveness of such cooperation. Where NCAinterventions are systematic and effective, as is the case for Germany, the Commissioncan and probably should limit its intervention to exceptional cases.

At the same time, it is submitted, national judges should always remember theyare applying EU competition law. Accordingly, they should always consider the NCA’s(and Commission’s) amicus curiae interventions as non-decisive, contrary to EuropeanCourt of Justice (ECJ) preliminary rulings. As a consequence, German Supreme Courtcases should quite often give rise to a request for a preliminary ruling, as the amicus

2. Gesetz gegen Wettbewerbsbeschränkungen, GWB, BGBl. I, 1957, p. 1081, as last published in 2005and 2009: BGBl. 2005, I, 2114; 2009, I, 3850.

3. Under section 87 ARC. According to German procedural law, the BKA cannot be regarded as aparty in the adversarial judicial proceeding, as it cannot submit new evidence.

4. Dr. Joerg Nothdurft, Director of BKA’s Litigation and Legal Unit, who answered the Euro-Comp-Aid questionnaire for the BKA, specifically mentioned the BKA intervention in a case before theFederal Supreme Court for Administrative Matters (Bundesverwaltungsgericht, BVerwG), whereBKA made use of Article 15 (3) Regulation 1/2003: BverwG Judgment of 18.06.2009, 7 C 16.08,BVerwGE 134, 154; the judgment is downloadable from http://www.bverwg.de. The Germanadministrative courts were confronted in that case with the admissibility of a German measuregranting to some public entities exclusive rights to operate waste collecting services, in theframework of the German Kreislaufwirtschafts-und Abfallgesetz (Act on the ‘closed substancecycle’ and waste management. It is noteworthy that in that case the administrative judge decidedin a way that runs counter to BKA’s position and ruled for the admissibility of such exclusiverights, based inter alia on Article 106 TFEU (see points 17 and 43–45 of the reasoning).

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curiae intervention of an NCA is not an element that could trigger the application of theCilfit5 acte clair doctrine.6 If this is true, however, one might wonder why, since theentry into force of Regulation 1/2004, only one judgment has been rendered by the ECJon a reference for preliminary ruling by the German Federal Supreme Court.7

As to the effects of NCA’s public enforcement findings before civil courts dealingwith follow-on actions, German law provides for a binding effect not only of theCommission’s infringement decisions but also of infringement decisions of BKA andany other European Competition Network (ECN) national competition authority.8 Ofcourse, this solution limits the actual significance of Article 15 and correspondingnational provisions on the cooperation between national courts and NCAs, makingsuch provisions irrelevant in many follow-on cases.

The German approach, upon which the relevant provision of the recent proposalfor a directive on actions for damages9 seems to be based,10 risks making the rights ofprivate parties before civil courts depend not only on a public enforcement decisionupon which they had limited or no control but also one that might have been takenwithout any involvement by the European Court of Justice.

5. Judgment of the Court of 6 October 1982, Cilfit, case 283/81, [1982] ECR 3415.6. Cilfit, paragraphs 16 to 20. See, moreover, the extensive explanation of this doctrine AG Tizzano

gave in his Opinion in the Lyckeskog case (C-99/00, [2002] ECR I-4839), esp. at paragraphs61–76. On the Cilfit judgment and the acte clair doctrine see, among many others, A. Tizzano,note in Il Foro italiano, 1983, IV, col. 63–65; K. Lenaerts, La modulation de l’obligation de renvoipréjudiciel, Cahiers de droit européen, 1983, pp. 471–500; G. F. Mancini, Corte comunitaria ecorti supreme nazionali, in Hacia un nuevo orden internacional y europeo. Estudios en homenajeal profesor don Manuel Díez de Velasco, Tecnos, Madrid, 1993, pp. 1043–1053; P. Craig, TheClassics of EU Law Revisited: CILFIT and Foto-Frost, in The Past and Future of EU Law. TheClassics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, 2010, pp. 185–191; A.Stone Sweet, The Juridical Coup d’Etat and the Problem of Authority: CILFIT and Foto-Frost, inThe Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of theRome Treaty, 2010, pp. 201–210. See, moreover, in this volume D. P. Domenicucci, ThePreliminary Ruling and Competition Law: A Procedural Point of View, below, pp. 179–221, at p.189.

7. Namely, the judgement of the Court of 30 November 2006, BMW, joined cases C-376 and 377/05,[2006] ECR I-11383.

8. According to Section 33, paragraph 4, ARC, ‘[w]here damages are claimed for an infringementof a provision of this Act or of Article 81 or 82 of the EC Treaty, the court shall be bound by afinding that an infringement has occurred, to the extent such a finding was made in a finaldecision by the cartel authority, the Commission of the European Community, or the competi-tion authority – or court acting as such – in another Member State of the European Community.The same applies to such findings in final judgments resulting from appeals against decisionspursuant to sentence 1. Pursuant to Article 16(1), sentence 4 of Regulation (EC) No. 1/2003 thisobligation applies without prejudice to the rights and obligations under Article 234 of the ECTreaty’.

9. Proposal for a Directive of the European Parliament and of the Council on certain rules governingactions for damages under national law for infringements of the competition law provisions ofthe Member States and of the European Union, COM(2013) 404 final, dated 11 June 2013.

10. Article 9 of that proposal reads as follows: ‘Member States shall ensure that, where nationalcourts rule, in actions for damages under Article 101 or 102 of the Treaty or under nationalcompetition law, on agreements, decisions or practices which are already the subject of a finalinfringement decision by a national competition authority or by a review court, those courtscannot take decisions running counter to such finding of an infringement. This obligation iswithout prejudice to the rights and obligations under Article 267 of the Treaty’.

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As a consequence, it is here submitted, civil courts dealing with private enforce-ment cases should be particularly vigilant in defining the scope of the above-mentionedbinding effect and, in any case, consider the need to submit a question for preliminaryruling to the ECJ whenever a doubt on the interpretation of Articles 101 and 102 TFEUarises, in connection with a previous decision of the NCA, which would not be coveredby the TWD principle11 or by equivalent national estoppel rules.

§7.03 FRENCH AUTORITÉ DE LA CONCURRENCE AS AMICUS CURIAE

Under French law, Articles L-470-6 and R-461-2 of the code de commerce not onlyenable the French Autorité de la Concurrence to submit its observations before thecourts entrusted with the application of competition law but also enable it to present itsown pleas, which might be totally disconnected from the main parties’ pleas.

According to the answer provided by the Autorité de la Concurrence to theEuro-Comp-Aid questionnaire,12 the only case in which such a power has been used sofar is the Eco-emballages case,13 currently pending before the Tribunal de Commerce deParis. That case is particularly noteworthy, as it shows the difference and overlapbetween coexisting legal cooperation tools in the judicial proceedings: while theAutorité de la Concurrence appeared there as an amicus curiae, the court found itnecessary to oblige the Autorité to give further cooperation. In an order of 16 March2012, the Paris commercial court made use of its general powers of injunction underthe French Code of Civil Procedure and addressed to the Autorité de la Concurrence anorder of disclosure. The order required the Autorité to disclose to the requesting partybefore the Paris commercial court a set of documents of the administrative procedureit had initiated against the defending parties of the private enforcement procedure andwhich was later stopped by it as a consequence of commitments made by theundertakings involved.14

Such an approach is particularly interesting in the light of the ECJ Pfleidererjudgment,15 as it shows how far the powers granted by Member States’ legal systemsto their national judges can go in ordering the disclosure of ECN public enforcementfiles, after having weighed ‘the interests protected by European Union law’16: it is

11. Judgment of the Court of 9 March 1994, TWD, case C-188/92, [1994] ECR I-833.12. Through M. Alain Mouzon, Adjoint au Chef du Service Juridique of the Autorité de la

Concurrence.13. Tribunal de Commerce de Paris, 15.me Chambre, DKT International v. Eco-emballages et

Valorplast, RG 2011023307 and 2011017303.14. On the decision taken by the Tribunal de Commerce de Paris in Eco-emballages see: Christophe

Lemaire, Simon Naudin, Le Tribunal de commerce de Paris rejette la demande de rétractation del’Autorité de la concurrence et maintient son injonction de lui communiquer des pièces issuesd’une procédure d’engagements dans le cadre d’un contentieux en réparation (Ma Liste deCourses c/ Highco, DKT International c/ Eco-emballages et Valorplast), Concurrences N. 2-2012,pp. 142–145.

15. Judgment of the Court (Grand Chamber) of 14 June 2011, Pfleiderer, case C-360/09, [2011] ECRI-5161. See L.F. Pace, The Court of Justice ‘Antitrust Enforcement Negative harmonisationFramework’ …, cit., esp at p. 251 ff.

16. Pfleiderer, cit., paragraph 32.

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questionable whether a unitary approach to such questions would not have beenpreferable. Now, the recently published proposal for a directive on actions fordamages17 takes this uniformity need into account, as it aims to introduce limits on thedisclosure of evidence from the public enforcement file. Article 6 of the proposal, infact, permanently excludes the disclosure of ‘leniency corporate statements’ and‘settlement submissions’, on the one hand, and temporarily limits the disclosure ofinformation ‘prepared specifically’ by private parties for the public enforcementproceedings, and ‘information drawn up by a competition authority in the course of itsproceedings’, on the other. An order to disclose such information would only bepossible after the proceedings have been closed, or a decision taken by the Commissionor the NCA.

§7.04 REQUESTS FOR OPINIONS: THE NEED FOR INTER PARTESPROCEEDINGS

Another interesting provision of French law is Article L.462-3 of the code de commerce,which is the French equivalent to Article 15, paragraph 1, of Regulation 1/03. It enablescourts to submit a request for opinion to the Autorité de la Concurrence and requiresthat an inter partes proceeding take place before the French NCA. Such requirement isnot applicable, however, if the NCA bases its opinion on information already in itspossession because of a previous administrative proceeding.

According to the Autorité de la Concurrence, this cooperation tool is not used veryfrequently. Still, it has been resorted to in several quite interesting cases.18 On the onehand, they show that the French NCA might give its opinion on decisive points of thecase at issue, such as the definition of the relevant market, and the assessment of theposition in that market of the undertakings concerned. On the other, it clearly emergesfrom a consideration of the case law referred to that the NCA’s opinion is not bindingon the courts.

§7.05 EU COMMISSION AS AN AMICUS CURIAE BEFORE FRENCHCOURTS: NEED FOR FINE TUNING?

Interestingly, although the power of the Conseil de la Concurrence (later Autorité de laConcurrence) to present amicus curiae briefs had existed since the entry into force ofRegulation 1/2003,19 in 2006 the Commission nonetheless deemed it necessary to

17. Cited above, at footnote 8.18. See in particular Opinion of 27 February 1996, 96-A-02, on a request submitted by the Tribunal

de Commerce de Meaux; Opinion of 17 December 1996, 96-A-13, on a request submitted by theCour d’Appel de Paris; Opinion of 15 July 2003, 03-A-12, on a request submitted by the Tribunalde Commerce de Versailles; Opinion of 9 November 2005, 05-A-20, on a request submitted by theTribunal de Grande Instance de Paris. All opinions are downloadable from the site www.au-toritedelaconcurrence.fr

19. In any event, that power existed under French municipal law since the modification of ArticleL470-6 of the Code de Commerce through the Ordonnance n. 2004-1173 of 4 November 2004,JORF 5 November 2004.

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present an amicus curiae brief of its own motion before the Paris Cour d’Appel in theGarage Gremeau case.20 This case possibly exemplifies when the Commission will stepin private enforcement cases instead of just letting Member States’ NCAs presentamicus curiae briefs before internal courts.

In the Garage Gremeau case, the Commission had to react to a previous (partiallywrong) decision of the French Cour de Cassation on that very same case.21 While theCour de Cassation had quashed a previous Dijon Court of Appeal decision, stating interalia that criteria used in a quantitative selective distribution system must be objective,the Commission was forced to step in before the Paris Court of Appeal dealing with thecase after referral by the Supreme Court, to affirm what it considered to be the rightinterpretation of the applicable block exemption regulation.22

In the Garage Gremeau case, the Commission’s intervention arguably helpedremedy a complicated situation, essentially originated by the inaction of the NCA (andthe Commission itself) at the Supreme Court stage and by the latter’s disregard ofArticle 267 TFEU.

Such a situation shows how the system of cooperation set up by Article 15 ofRegulation 1/2003 could be in need of ‘fine tuning’. The burdensome developments ofthis case, it is here submitted, could have been significantly reduced by a timelyintervention either by the Autorité de la Concurrence or by the Commission at theSupreme Court stage. That this did not happen might be explained either by insufficientcommunication between the judiciary and the NCA or by a non-optimal evaluation bythe latter of the need to intervene.

The Garage Gremeau case discloses another problematic feature of that system ofcooperation between the administration and the judiciary in the application of EU law.It is quite disturbing, it is here submitted, that a case referred back by a nationalSupreme Court to a lower instance jurisdiction, with the indication of a principle of EUlaw whose soundness is contested by the EU Commission, was not made the object ofa request to the ECJ for a preliminary ruling. First of all, such a case shows a ratherevident disregard of the Cilfit acte clair doctrine23 by the Supreme Court. Further, thepreceding observation notwithstanding, it is difficult to accept that the bindingindication of the principle of law applicable in the case made by the Supreme Court bedisregarded by the lower instance relying merely on the Commission’s amicus curiaesubmission. In such a case, it is submitted, it is for the lower national court to take intoserious consideration the need to refer the case to the ECJ for a preliminary ruling.Lacking such a referral, in fact, the risk exists that the (allegedly) wrong principle

20. Garage Gremeau v. Daimler Chrysler France case, Cour d’Appel de Paris, RG n. 05/17909.21. Cour de cassation, judgment of 28 June 2005, case n. 04-15279.22. Namely, Regulation EC 1400/2002 of the Commission, of 31 July 2002. In fact, the Commission

amicus curiae brief makes it clear that ‘L’article 1(g) du Règlement ne mentionne pas la nécessitépour le fournisseur (1) de définir des critères de sélection quantitatifs qui auraient un caractèreobjectif, ni (2) de définir également des critères objectifs d’ordre qualitatif, pour que son systèmede distribution puisse relever de la distribution sélective quantitative et donc bénéficier del’exemption au titre du Règlement’. See http://ec.europa.eu/competition/court/amicus_curiae_2006_gremeau_fr.pdf, at p. 5, last sentence.

23. See section §7.02 above, esp. footnote 6.

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affirmed by the Supreme Court not contradicted by an ECJ ruling would find furtherapplication by national lower courts.

§7.06 AMICUS CURIAE AND PRELIMINARY RULING: THE PIERREFABRE DERMO-COSMÉTIQUE CASE

The complementarity of Article 15 cooperation tools, on the one hand, and thepreliminary ruling mechanism, provided for by Article 267 TFEU, on the other, is wellexemplified by another recent French public enforcement case. In the Pierre FabreDermo-Cosmétique case, the Cour d’Appel de Paris was called upon to review thelegality of a Conseil de la Concurrence decision on a general prohibition of online salesimposed by a supplier of cosmetic products to the distributors belonging to its selectivedistribution network. The Commission submitted an amicus curiae brief on the basis ofArticle 15, paragraph 3, of Regulation 1/2003. In its brief, the Commission shared theNCA’s qualification of the relevant practice as a hard-core restriction of competition.The Paris Court of Appeal, however, not satisfied with the NCA and Commissionpositions, submitted a request for preliminary ruling to the ECJ.24 The ECJ answered byconfirming that such an absolute prohibition restricts competition by its object, whichexcludes the distribution agreement from the relevant block exemption regulation. Onthat basis, the Court of Appeal finally confirmed the NCA decision.25

§7.07 AMICUS CURIAE SUBMISSIONS, REQUEST FOR INFORMATION,AND PRELIMINARY RULING: SOME GENERAL CONSIDERATIONS

The above-mentioned French cases suggest further reflection on how amicus curiaeadministrative cooperation tools and the ECJ preliminary ruling mechanism shouldcomplement each other to guarantee both procedural efficiency and uniform andeffective application of EU competition law.

First of all, as it has been stressed above in relationship to the Garage Gremeaucase, and as further stressed below when discussing the Italian practice, an efficientsystem of communication between the national courts and the NCAs appears to be anecessary prerequisite to make the whole system work properly. To this end, uniformor at least harmonized rules should be adopted at the EU level in order to make NCAsand the Commission aware of private enforcement cases pending before nationalcourts. Moreover, a Commission and ECN communication could be envisaged, settingthe policy of intervention by the Commission and NCAs before national courts. As aminimum, it is submitted, such policy should include the need for ECN authorities tointervene in Supreme Court cases.

Second, the Pierre Fabre Dermo-Cosmétique case shows how amicus curiaeintervention based on Article 15, paragraph 3, of the modernization Regulation, as well

24. ECJ judgment of 13 October 2011, in case C-439/09, Pierre Fabre Dermo-Cosmétique, not yetreported in ECR.

25. The final judgment was rendered by the Cour d’Appel de Paris on 31 January 2013. See http://ec.europa.eu/competition/court/amicus_2009_pierre_fabre_judgment2_fr.pdf.

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as amicus curiae interventions by the Autorité de la Concurrence based on internalFrench provisions, should be preferred to a request for information or opinion andespecially to a request addressed to the Commission on the basis of Article 15,paragraph 1, of the Regulation.

In fact, amicus curiae submissions put the cooperation in the framework of thejudicial proceedings, thus obliging the Commission and NCAs to respect the interpartes nature of the judicial proceedings and the time frame set under the Court’sauthority. To the contrary, a request for opinion to the Commission on the basis ofArticle 15, paragraph 1, of the Regulation, makes the pace of judicial proceedingsdepend on the goodwill of the Commission and excludes the Commission from interpartes discussion.26

Therefore, having the Commission and ECN authorities included in the judicialproceedings as amicus curiae/third-party interveners better guarantees the proceduralrights of private parties, as it makes an adversarial discussion of the administrativeauthority’s position much more effective.

Moreover, as appears from the Eco-emballages case, if the administrative author-ity participates in the judicial proceedings as amicus curiae, it is then easier for thecourt to request and even order – at least as far as NCAs are concerned – furthercooperation, according to the needs of equitable inter partes judicial proceedings.

Finally, having a full and structured cooperation by the Commission and NCAsinside the judicial proceedings will help the judge assess the need or opportunity toaddress a request for preliminary ruling to the ECJ.

§7.08 BRITISH NCAS AS AMICUS CURIAE

Under English law, the UK NCAs can resort both to Article 15, paragraph 3, ofRegulation 1/2003 and to Articles 4 and 4.1A of the Competition Law Practice Directionto make written observations and seek permission to make oral observations beforenational courts dealing with claims based either on EU or on municipal competitionlaw. NCA submissions are in principle not binding on the court. At the same time, it hasto be stressed that, in principle, NCAs decisions in public enforcement cases bindEnglish courts entrusted with private enforcement actions, as to the existence of theinfringement.27 Regarding other questions, however, the court is not formally bound

26. This is not the case of requests for opinions to the Autorité de la Concurrence based on internalFrench provisions. As we have seen at section §7.04 above, in fact, when Article L-462-3 of theFrench commercial code is resorted to some due process of law guarantees apply. However, thepossibility of having the Autorité de la Concurrence present its opinion without prior inter partesproceedings still remains. On the danger arising from the limitation of inter partes guarantees incase of Commission’s opinions according to Article 15, paragraph 1, of Regulation 1/03, seeK. Wright, The European Commission’s Own ‘Preliminary Reference Procedure’ in CompetitionCases? 16 European Law Journal [2010], pp. 736–759, at p. 750 f.

27. Section 58 A of UK Competition Act 1998.

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by NCA findings.28 Finally, to complete the picture regarding the UK private enforce-ment system, general rules exist under English law that empower public authorities toseek permission to be a party to an appeal before both the Court of Appeal29 and theSupreme Court.30

The power to submit written observations as amicus curiae has been used by theOffice of Rail Regulation (ORR), a sectorial British NCA, to submit observations beforethe Commercial Court in the English Welsh & Scottish Railway v. E.ON case.31 That wasa follow-on case in which the parties contended the effects on their contractualrelationship of an ORR decision finding that some exclusionary clauses included in acoal carriage agreement breached Article 82 EC. EWS, an operator of bulk rail freightservices continuing part of the freight sector of British Rail, after its privatization, wasfound by the ORR to be in breach of Article 82 EC because of some exclusionary clausesincluded in its coal carriage agreement (CCA) with E.ON. ORR directed the parties tothe CCA to remove the exclusionary clauses. EWS maintained that, as a consequence,the entire CAA was void, while E.ON took the view that the CAA would still be in force.EWS applied to the Commercial Court for a declaration that the directions rendered theCCA void and unenforceable.

The question on which the ORR submitted its opinion to the court had morespecifically to do with the interpretation of the directions issued by the ORR in thatcase. Quite understandably, therefore, the judge followed the position expressed byORR in its amicus curiae brief32 even if it was not formally bound by its terms.

Another interesting aspect of that case lies in the fact that E.ON, the respondentbefore the Commercial Court, appealed the OFT decision before the CompetitionAppeal Tribunal (CAT), under section 47(1) of the Competition Act 1998.33 E.ON askedthe Court to stay the proceedings and the same move was suggested by the CAT. TheHigh Court of Justice, however, declined to take up the specialized tribunal’s sugges-tion.34

This raises the more general question of the relationship between general courtsand specialized competition courts entrusted with judicial review over NCA acts. Ofcourse, in principle such a question is covered by Member States’ procedural

28. According to Section 58 of UK Competition Act 1998, parties before the court are bound byNCA’s findings of fact, but only unless the court directs otherwise. See below, moreover, thediscussion of Inntrepreneur Pub Company v. Crehan [2006] UKHL 38.

29. Civil Procedure Rule 52.1, resorted to in Office of Communications & Anor v. Floe Telecom Ltd[2006] EWCA Civ 768.

30. Rules 15 and 26 of the UK Supreme Court Rules of Procedure, resorted to by the Office for FairTrading in the Inntrepreneur case.

31. [2007] EWHC 599 (Comm), English Welsh & Scottish Railway Ltd v. E.ON UK Plc. TheCommercial Court case was referred to as the main case involving an NCA as amicus curiae inthe UK by Mr. Charles Dhanowa OBE, who answered to the Euro-Comp-Aid questionnaire onbehalf of the Competition Appeal Tribunal. The text of the judgment rendered by the Commer-cial Court is available at www.bailii.org/ew/cases/EWHC/Comm/2007/599.html. The case isreported in ELR 11, 5, pp. 633–644.

32. ORR submissions are reported in the Commercial Court’s judgement at paragraphs 21–24. TheCourt’s agreement with such submissions is explicitly stated at paragraph 26 of the judgement.

33. E.ON UK plc v. Office of Rail Regulation, case 1076/2/5/07.34. [2007] EWHC 599 (Comm), paragraph 13.

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autonomy. That said, it is worth stressing that a public enforcement decision taken bya NCA in the framework of the European Competition Network is part of a ratherdelicate process of decentralized application of powers pertaining to an EU-exclusivecompetence.35 In this framework, uniform interpretation of competition rules is afundamental interest whose protection is necessarily implied by the sincere coopera-tion principle. Therefore, it is submitted, when a follow-on action is introduced beforea civil court of general jurisdiction, and at the same time an appeal against the relevantNCA decision is pending before the specialized court, precedence should be given tothe latter proceeding in order to avoid excessive fragmentation of the EU enforcementmechanisms and even an undue interference by civil courts’ proceedings over admin-istrative judicial review.

More fundamentally, considering the English private enforcement system, wherethe Competition Appeal Tribunal is entrusted with jurisdiction over follow-on actions,but the High Court retains its general competence over such actions, one might wonderwhether this is a really workable system or whether it would not be advisable toprovide for a concentration of follow-on and judicial review competence on the part ofthe same specialized court.

A last word is required in connection with the Inntrepreneur v. Crehan judgmentof the House of Lords36 in the famous Courage v. Crehan case that had led to a previouspreliminary ruling of the European Court of Justice.37 While that was not, properlyspeaking, a follow-on case, it nonetheless raised the question of the relevance ofprevious findings by the Commission. In a number of prior decisions, in fact, theCommission had found that the English ‘on-the-premises’ beer market was foreclosedby virtue of cumulative networks of exclusive distribution agreements. The (exclusive)distribution relationship at issue was included in a network specifically considered bythe previous Commission decisions. The relevant question of fact, however, was thesame upon which these preceding decisions were based. So, the question of law arose,whether or not deference had to be paid to the Commission’s findings. When the casewas finally submitted to the House of Lords, after a High Court judgment reversed bythe Court of Appeal precisely on that issue, neither the Commission found it necessaryto use its powers under Article 15, paragraph 3, of Regulation 1/0338 nor did the Houseof Lords find it necessary to invest the European Court of Justice with such a decisivequestion regarding EU competition law private enforcement. Now, while the Commis-sion’s decision not to intervene before the House of Lords might only be qualified asunwise, because that EU Institution is free to use or not to use its powers of interventionas amicus curiae, the English Supreme Court’s disregard of its referral obligation underArticle 267 TFEU is manifest.39

35. See Article 3.1 b) TFEU.36. Cited above, at n. 26.37. Judgment of the Court of 20 September 2001, Courage Ltd v. Bernard Crehan and Bernard

Crehan v. Courage Ltd and Others, C-453/99, [2001] ECR I-6297.38. The Office for Fair Trading did intervene, to take position on a substantial issue pending before

it in a parallel proceeding.39. On the acte clair doctrine see the commentaries above at footnote 5.

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§7.09 THE ITALIAN PRACTICE: NO USE OF AMICUS CURIAE BRIEFSOR OTHER COOPERATION TOOLS AS A CONSEQUENCE OFSTRICT SEPARATION BETWEEN ADMINISTRATIVE ANDJUDICIAL FUNCTIONS

In Italian case law, no use has apparently been made of the powers provided for byArticle 15.3 of Regulation 1/200340 either by the Commission or by the Italian NCA, theAutorità Garante della Concorrenza e del Mercato (AGCM). Moreover, under ItalianLaw, no special provision exists, explicitly enabling the AGCM to file amicus curiaebriefs. Courts, in turn, apparently resorted to Article 15, paragraph 1, of that Regulationin order to ask the Commission for opinions or information only once.41 Internalgeneral provisions permitting to reach similar levels of cooperation42 have not beenused either.

While Italy is not alone in not having any relevant practice of amicus curiae inthis field,43 the Italian case is arguably a special one. As we have seen, in fact, privateenforcement of competition law is quite common in the Italian practice.44 Therefore,the lack of recourse to amicus curiae and similar cooperation tools cannot be explainedthrough a lack of relevant private enforcement practice. Rather, the reason might lie ina certain unease of Italian courts in having administrative agencies involved in theadjudication, given the strict separation between the administrative and the judicialfunctions that are at the core of the Italian legal system. This approach finds a clearexpression in Articles 101 and 104 of the Italian post-war Constitution – Article 101providing that ‘Judges are subject only to the law’, and Article 104 adding that ‘TheJudiciary is a branch that is autonomous and independent of all other powers’. Italianjudges, being clearly committed to preserve such independence of the judiciary, aretherefore rather inclined to submit a request for preliminary ruling to the ECJ45 than toask the Commission its opinion on a question pending before the judge.

40. See the answer to the Euro-Comp-Aid questionnaire by Mr. Massimo Merola of the Bonelli EredePappalardo law firm, attached to this volume. See, moreover, the contribution of G. Muscolo tothis volume, cit., esp. at p. 302 f.

41. According to the data gathered in the Euro-Comp-Aid research, so far there has been a singlerequest by the Turin District Court specialized chamber, in 2006. However, the parties settledthe dispute, and therefore the request for information became irrelevant. See below thecontribution of G. Muscolo to this volume, cit., at p. 303.

42. Articles 191 ff. of the Italian Code of Civil Procedure, while not specifically drafted forcompetition law, would in principle enable the judge to ask the AGCM – and even theCommission – to appear before the court as ‘experts’ and deliver a technical opinion.

43. As some of the answers to the above-mentioned Euro-Comp-Aid questionnaire have shown: seefurther sections §7.12 (Latvia), §7.14 (Czech Republic and Slovakia), §7.15 (Luxembourg),§7.16 (Bulgaria).

44. See above my Introductory notes to this part of the present volume, at p. 100.45. See first of all the Manfredi case, but also the many cases where EU competition law was the

object of requests for preliminary rulings in cases of regulated activities such as those of lawyers,architects, pharmacists, geologists, and on car and driver hire services (see the followingjudgments of the Court: 29 November 2001, case C-221/99, Rossi, [2001] ECR I-9359; 19February 2002, case C-35/99, Arduino, [2002] ECR I-1529; order of 17 February 2005, caseC-250/03, Mauri, [2005] ECR I-1267; 5 December 2006, case C-94/04, Cipolla, [2006] ECRI-11421; 1 July 2010, case C-393/08, Sbarigia, [2010] ECR I-6337; see moreover the

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Alternatively, the lack of amicus curiae submissions might essentially be ex-plained by the absence in the Italian system of any compulsory notification mechanismon pending or even decided competition law cases, which would enable the ItalianNCA to exercise its powers under Article 15 of Regulation 1/2003 in private enforce-ment cases pending before civil jurisdictions,46 at least in appellate or Supreme Court’scases.

§7.10 EVIDENCE FROM PUBLIC ENFORCEMENT? GENERAL TOOLSINSTEAD OF DIRECT COOPERATION

As already seen when considering French practice, another object of possible coopera-tion between courts and the NCA is, of course, evidence collected by the AGCM in theframework of its public enforcement activities. And, as it was already pointed out in theFrench system, general tools of municipal procedural law might be used together with,or as an alternative to, special cooperation tools provided by EU law. The Italianpractice confirms the usefulness of such general tools and, in particular, shows howcourts might try to find alternative ways to check facts when the cooperation providedfor by NCAs on evidentiary issues is insufficient. In the only known case in which arequest had been made by a civil court according to Article 213 of the Italian Code ofCivil Procedure to have the public enforcement file disclosed to the court, the AGCMdid not defer to the request of the Milan Court of Appeal in a Tele2 case,47 invokingconfidentiality reasons.48 Of course, such a refusal could be challenged before admin-istrative courts.49 The scope of the judicial review is, however, limited to legalityissues, following the French ‘excès de pouvoir’ model.

following pending cases: joined cases C-159/12 to C-161/12 Venturini and others; joined CasesC-162/12 and C-163/12 Airport Shuttle Express; Joined Cases C-419/12 and C-420/12 CronoService; case C-497/12 Gullotta).

46. It is noted here that Article 15, paragraph 2, of Regulation 1/03, providing for the communicationto the Commission of ‘a copy of any written judgment of national courts deciding on theapplication of Article 81 or Article 82 of the Treaty’ has not been enacted in any Italian lawprovision defining how this communication should be made, and at the initiative of whichauthority; moreover, the prevailing attitude among civil judges in Italy is to consider thisprovision non–self-executing, because of its alleged vagueness. See also below the contributionof G. Muscolo to this volume, cit., at p. 302 f.

47. I refer here to a pending follow-on case based on the AGCM decision in case A357 (2005–2007),Tele2 v. TIM, Vodafone, Wind, concerning exclusionary practices on the wholesale mobiletelephone market. Being still pending, the case is of course not yet reported, but was referred toduring Euro-Comp-Aid works by G. Bellomo, intern at the office of Judge M. Tavassi, of theMilan District Court – Specialized Chamber for Intellectual Property.

48. This is one of the reasons that could justify the denial of access to administrative documents bythe public body receiving a request by a private party (third party), according to Article 24 ofLaw no. 241 of 7 August 1990 on administrative proceedings. Similar rules apply to the requestsmade by entities that are parties to the public enforcement proceedings, according to Article 13of Presidential Decree no. 217/1998.

49. Against a refusal to grant access an action for annulment may be brought against the RegionalAdministrative Tribunal for the Latium Region (TAR Lazio) and, on appeal, before the Consigliodi Stato. Moreover, according to Law no. 241/90, as modified by Law of 15 February 2005, no.15, an administrative appeal could also be brought before the Commissione per l’accesso aidocumenti amministrativi, an administrative body with the authority to enjoin the requested

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Following general Italian rules, therefore, it will be up to administrative courtsexercising judicial control over the Authority ‘to determine the conditions under whichsuch access must be permitted or refused by weighing the interests protected byEuropean Union law’: namely, the effectiveness of public enforcement, via leniencyprogrammes, on the one, and the need not to make it practically impossible orexcessively difficult for private parties to obtain compensation for antitrust damages,on the other.50

However, it does not necessarily follow from this conclusion that civil courtscannot play a substantial role in this framework. In fact, it is interesting to note that inthe above-mentioned Milan Court of Appeal case the private parties appearing beforethe civil court were then asked to produce the relevant documents and deferred to thecourt’s request. This may be due to the fact that, under Italian law, the court’s requestto the parties to produce documents is not devoid of legal effect. Although such arequest is not a discovery order, the judge can rely on the non-cooperation by the partyrequested to assume that the assumptions of the other party on that point are wellfounded. This possibility notwithstanding, the need to introduce a real discovery orderin antitrust matters, which would build on the model of the IP enforcement discoveryorder,51 is openly advocated not only by many practitioners but also by many of thespecialist judges.

§7.11 THE EFFECTS OF COMMISSION INFRINGEMENT DECISIONS INITALIAN PRIVATE ENFORCEMENT CASES

Analysing the Italian approach to the public/private enforcement relationship can yieldus interesting elements for assessing the wider European picture too. There can be nohesitation in recognizing that, by virtue of Article 16 of Regulation 1/03, CommissionInfringement decisions bind Italian courts dealing with private enforcement cases.52

however, it should be stressed that the very same provision has caused sharp

public body, including the AGCM, to provide access. For a case in which the AGCM partiallygranted access to (non-leniency) documents of the public enforcement file to a third partyinterested in collecting evidence for a civil enforcement suit, and the administrative jurisdictionssubsequently confirmed the decision, see TAR Lazio – first chamber, judgment of 10 February2012, no. 1344/2012, case Alitalia v. AGCM & Kuwait Petroleum Italia.

50. See Pfleiderer case, cit., paras. 26, 30, and 32.51. Provided for by Article 6 Directive 2004/48/EC of the European Parliament and of the Council of

29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004), enactedin Italy through Legislative Decree no. 140 of March 2006.

52. To date, the only reported case where a Commission decision has played a significant role inItalian case law is the Butadiene case. Based on Article 16 of Regulation 1/2004, and in the lightof the Commission’s decision of 29 November 2006 in case COMP/F/38.638, Butadiene Rubberand Emulsion Styrene Butadiene Rubber, the Milan District Court declared inadmissible anaction proposed by some of that decision’s addressees, seeking a relief declaration. The actionegatoria aimed at demonstrating that they had not adopted the anticompetitive practices ofwhich they had been found responsible in the Commission’s decision, or at least that the cartelhad produced no effects on prices. See Milan District Court, Order of 29 April 2009, ENI andothers v. Pirelli and others, unreported but extensively relied upon by the English Court ofAppeal, at paras 22–24 of its Butadiene jurisdiction decision: Cooper Tire & Rubber CompanyEurope Limited and others [2010] EWCA Civ 864.

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reactions in Italy, as many voices coming from the judiciary as well as some scholarsviewed that provision as possibly infringing Article 101 of the Italian Constitution,enshrining one of its fundamental principles53 – according to which the judge is subjectonly to the law.

While one cannot share the view that Article 16 of the Regulation would beinvalid for violation of the general principles upon which the whole EU system rests, asit is in fact justified in light of the separation between EU and national legal systems,54

it is nonetheless true that Article 16 should be interpreted restrictively. What bindsnational courts, it is submitted, is just the finding of an anti-competitive behaviour andits necessary factual antecedents in the Commission’s reasoning. To argue differentlywould unduly restrict the defendants’ rights. Before the General Court and the ECJ, aplea of annulment based on a factual assessment that would not be an essentialantecedent of the attacked decision, would unavoidably be rejected as ineffective. Thatis to say, it would be rejected without considering its merits. Therefore, every time aCommission decision under Article 7 of Regulation 1/2003 finds that there is aninfringement by object, and at the same time finds that the contested behaviour alsoproduced anti-competitive effects, the latter finding will have at most persuasiveauthority in a subsequent private enforcement case. According to settled case law, infact, for the purpose of applying Article 101(1) TFEU there is no need to take accountof the concrete effects of an agreement once it appears that it has as its object theprevention, restriction, or distortion of competition.55

Moreover, even when the infringement decision is based on the effects of thepractice at stake, this should not be taken per se as a proof of harm actually suffered bycompetitors or consumers.

§7.12 THE EFFECT OF ITALIAN NCA’S INFRINGEMENT DECISIONS

Considering the contrasted assessment of Article 16 approach in the Italian legalsetting, it is no surprize that no formal binding effect is attached under Italian law eitherto decisions of the AGCM or other NCAs applying Articles 101 or 102 TFEU, or to AGCMdecisions based on Italian antitrust law. In fact, the lack of binding effect of NCA

53. Among the scholars see, e.g., P. Fattori, Art. 16 Regolamento 1/2003, in Marchetti and Ubertazzi,Commentario breve alle leggi su proprietà intellettuale e concorrenz (4th ed., Cedam 2007), 2125;G.L. Tosato, Il processo di modernizzazione, in Tosato and Bellodi, Il nuovo diritto europeo dellaconcorrenza (Giuffrè 2004), 47.

54. For the decisive remark that what binds the courts is, in the end, a decision of an administrativeauthority subject to review by the ECJ, see A. Adinolfi, Art. 16, in Adinolfi, Daniele, Nascimbeneand Amadeo, eds., L’applicazione uniforme del diritto comunitario in materia di concorrenza(2007), 198. For a different view, leading however to the same result, see L. Pace, I fondamentidel diritto antitrust europeo (Giuffrè, 2005), 309.

55. See, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig v. Commission [1966]ECR 299; Case C 272/09 P, KME Germany and Others v. Commission, not yet reported,paragraph 65; Case C 389/10 P KME Germany and Others v. Commission, not yet reported,paragraph 75; and Case C 226/11 Expedia, paragraph 35.

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administrative decisions in civil enforcement judicial proceedings is due to a principledeeply entrenched in the Italian legal order, and in those of many other countries,strictly separating the judicial and administrative jurisdictions.

In such a framework, the approach adopted by the Italian Supreme Court in itsGrand Chamber–leading 2009 decision in the Inaz Paghe case56 is probably the bestintermediate solution between irrelevance and binding effect. In fact, the approachdeveloped by the Italian Corte di Cassazione let AGCM findings enjoy the status of‘privileged evidence’ of the facts they are based upon, when relied upon before civilcourts. In other words, when invoked by a party in private enforcement cases, AGCMfindings and administrative court decisions upholding them create a presumption ofthe existence of the facts upon which they are based. That presumption is in principlerebuttable, but it is one that deserves very serious consideration by the court.57 Theabove-mentioned principle, although stipulated only with reference to AGCM decisionsapplying the Italian Antitrust Act, should of course be applicable to AGCM decisionsapplying EU antitrust law by virtue of the principle of equivalence in the judicialprotection of individuals’ rights.

It has to be observed, in this framework, that the Italian system, although notformally providing for a binding effect of NCA decisions before civil courts, is actuallycharacterized by an important degree of consistency between public and privateenforcement findings. Moreover, the system is partially advancing toward effectivecooperation as regards class actions.58 If the AGCM is carrying out an investigation ona given case, and a parallel stand-alone class action is brought before a civil court, theItalian Consumers’ Code authorizes the judge to wait for the AGCM finding beforeruling on the admissibility of the class action.59

56. Corte di Cassazione, first civil chamber, Judgment No. 3640 of 13 February 2009, AssociazioneNazionale Consulenti del Lavoro-ANCL v. Inaz Paghe, reported in Rivista di Diritto Industriale, II,586 (2009). A previous ruling by a simple chamber of the Supreme Court dates from 2007: Cortedi Cassazione, No. 2305/2007, Fondiaria SAI S.p.A. v. Nigriello (see notably para. IV.1). Thejudgment is reported in Foro Italiano, I, 1097 (2007); more recently see also Corte di Cassazione,third civil chamber, Judgment No. 5942 of 14 March 2011, Società Allianz v. Buonocore, reportedin Foro Italiano, I, 1724 (2011).

57. As the Italian government points out in its position paper on the Commission’s White Paper onDamages Actions (July 2008), in no reported case have the civil courts, in fact, contradicted theAGCM’s findings. The same appears to be true for subsequent case law. Normally, civil courtsrely directly on AGCM findings, to find a breach of antitrust law; even when courts follow anautonomous path – something which rather seldom happens – they reach the same conclusionsas the authority: see e.g., Milan Court of Appeal, judgment of 26 November 2006, Telsystemv. Sip. See for similar comments the contribution of G. Muscolo to this volume, cit., at p. 301.

58. For a first assessment of the class action reform in Italy see my Introductory notes to Part II ofthis volume, above, at p. 107.

59. Legislative decree 206/2005, Article 140bis, paragraph 6. The legislative provision empowerscivil courts to stay the proceedings while an independent administrative authority is investigat-ing the same case, or that case is the object of judicial proceedings pending before anadministrative court.

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§7.13 SPANISH COMISIÓN NACIONAL DE LA COMPETENCIA ASAMICUS CURIAE

Spanish case law shows substantial recourse to the amicus curiae cooperation providedfor by Article 15, paragraph 3, of Regulation 1/03.60 Moreover, it is worth stressing that2007 Spanish Competition Act61 introduces a set of national provisions complementingthe Regulation’s machinery.

According to Article 16.1 of Competition Act 2007, the Spanish NCA, ComisiónNacional de la Competencia (CNC), may of its own motion provide commercial courts62

with information, or otherwise submit observations on issues relating to the applica-tion of Articles 101 and 102 TFEU as well as relating to Articles 1 and 2 of the SpanishCompetition Act. Article 15bis of the Act on Civil Procedure63 complements thisprovision by extending the same power to ‘regional’ competition authorities. Article 25of that Act specifically mentions the case of opinions issued by the CNC on the criteriafor damages quantification.64

Therefore, the Spanish procedural machinery, read in the light of Article 15 ofRegulation 1/03, provides for three cases of cooperation between national judges andNCAs: (a) NCAs delivering an amicus curiae brief (or oral observations65) of their ownmotion;66 (b) NCAs delivering such amicus curiae brief upon the request of the

60. As shown by the detailed report drafted by Mr. Diego Castro-Villacañas, Head of the Legal Officeof the Comisión Nacional de la Competencia, as an answer to the Euro-Comp-Aid questionnaire.

61. Act 15/2007, of 3 July 2007, Ley de Defensa de la Competencia, BOE 159, 2007, p. 2884,substituting the previous Competition Act 1989.

62. Jurisdiction on private enforcement cases is entrusted to the commercial courts (Juzgados de loMercantil): see Competition Act 2007, first additional provision.

63. As introduced by the second additional provision of the Competition Act 2007. The relevantprovision reads as follows: ‘The European Commission, the National Competition Commissionand the competent bodies of the Autonomous Communities within the sphere of their compe-tences may intervene, without being considered a party, ex officio or at the request of the judicialbody, by providing information or submitting written observations on issues relating to theapplication of Articles 81 and 82 of the Treaty of the European Community or Articles 1 and 2 ofthe Competition Act. With the permission of the court in question, they may also make verbalobservations. For these purposes, they may request the competent court to transmit or ensurethe transmission to them of any documents necessary for the assessment of the case. Theprovision of information shall not include data or documents obtained within the sphere of thecircumstances of application of exemption or reduction of the amount of the fines […].’(unofficial translation).

64. According to which the CNC ‘shall act as consultative body on questions relating to competition.[…]. In any event, the [CNC] shall issue an opinion on: […]c) Criteria for the quantification ofcompensations that the person responsible for the conduct laid down in Articles 1, 2 and 3 of thisAct must satisfy to claimants and to third parties that have suffered damages as a consequenceof the former, when they are required to do so by the competent judicial body.’ (unofficialtranslation).

65. According to Mr. Castro-Villacañas report, the CNC has submitted oral observations only once,so far. In April 2011, at the request of Commercial Court no 3 of Alicante, the CNC participatedin an interim measures hearing in a case pending before that court between Ryanair and AENA,the public body operating airports in Spain and regarding a possible abuse of a dominantposition in the airport services market.

66. Mr. Castro-Villacañas refers to a case where a report was sent by the CNC in March 2008 to theCommercial court No. 1 of Cádiz, informing the court about the existence of a CNC investigationon the same facts (possible cartel of the Sherry producers) that were the object of

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competent national court;67 and (c) NCAs delivering a ‘special’ amicus curiae briefupon the request of the competent national court, having as its object the definition ofthe criteria for awarding damages in private enforcement cases.68 In no case theposition expressed by the NCAs (or the Commission) is binding on the court.

Moreover, it might be stressed that as a consequence of the above-mentionedprovisions, the position of the CNC as well as that of the Commission can becharacterized as privileged: not only can both provide written observations and, withthe consent of the court, oral ones but also they are additionally entitled to request thecompetent court to transmit any documents necessary for the assessment of the case.69

It is not clear whether or not the public enforcement authorities can directly use suchinformation in the prosecution of antitrust violations. In any case, such informationmight well be useful in determining further investigative acts by the said publicenforcement authorities. In such case, however, no major objection should be raisedagainst this mechanism. In fact, such information will only be included in the privateenforcement case file once the judge has ruled on its admissibility, including the needto preserve confidentiality.

Hence, the provision of Article 25 of the 2007 Competition Act is particularlyinteresting, in that it explicitly includes, among the objects of the cooperation betweenNCA and the courts, the definition of the criteria to assess damages in privateenforcement cases. Such a tool could be particularly helpful regarding follow-onactions,70 as NCA decisions often fall short of determining the actual effects on themarket of antitrust violations. A generalization of the Spanish approach could beenvisaged, both under Article 15, paragraph 1, of Regulation 1/03 and under similarnational law provisions, enabling courts to ask for NCA’s opinions. Recourse to suchopinions, it is submitted, will have to be weighed against the adversarial, inter partesnature of civil proceedings and the principles on burden and standard of proofprevailing in each Member State’s legal system. If considered from this perspective, theapproach actually followed by the requesting judge and the CNC in the Fontanet v.Repsol case would be acceptable in

a private enforcement proceeding before that court. As a consequence, coordination waspossible between the court and the CNC, concerning the issuance of parallel provisional orders.

67. Mr. Castro-Villacañas refers to CNC reporting to the Commercial Court no 5 of Barcelona inMarch 2008, at the latter’s request, on the application of Article 101 TFEU in a case between aservice station and its supplier of motor fuel (Juicio Ordinario No 179/2007 Sec. 7a Canals i FillsSL y Zero Set SA v. PETROCAT).

68. See case Estaciones de Servicio Fontanet v. Repsol, decided by Commercial Court n. 2 of Palmade Mallorca on 3 March, 2009, reported in the CNC response to Euro-Comp-Aid questionnaire asan example of the kind of cooperation provided for by Article 25 of the 2007 Competition Act. Seemoreover the Spanish report in OECD Competition Committee Competition Policy Roundtableon ‘Quantification of Harm to Competition by National Courts and Competition Agencies’,DAF/COMP(2011)25, p. 141 ff. In that report the CNC explains its contribution in the Fontanetv. Repsol case (p. 143). The OECD document is available at www.oecd.org/daf/competition. Thetext of the final Mallorca judgment is retrievable from http://ec.europa.eu/competition/elojade/antitrust/nationalcourts.

69. Article 15bis of the Spanish Competition Act (see footnote 57 above). A similar provision can befound in Czech law: see further, section §7.14, footnote 82.

70. CNC’s report stresses that Article 25 cooperation tools are normally resorted to in follow oncases, but at least in one case they were applied to a stand alone action.

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most European jurisdictions. In that case, the NCA opinion helped the judge assessingthe correctness of the lost profits estimates provided by the claimant, and based on acounterfactual scenario, thus leaving questions of burden and standard of proofunaffected.

Finally, it must be stressed that in Spanish law NCA decisions do not formallybind civil courts entrusted with private enforcement (follow-on) actions. However, aswe have seen, an intense and constructive cooperation is in fact in place between theadministrative authority and the judiciary.

§7.14 SWEDEN KONKURRENSVERKET AS AMICUS CURIAE:CONSISTENT PRACTICE UNDER BOTH REGULATION ANDGENERAL NATIONAL PROVISIONS

Under Swedish law, as is the case under other systems,71 general provisions of internallaw and Article 15 of Regulation 1/03 are somehow interchangeable in making possiblethe cooperation between national courts entrusted with private enforcement andpublic enforcement authorities.

Contrary to other systems discussed above (Germany, France, United Kingdom,Spain) no special provision exists in Swedish law providing for a request ofinformation/opinion to the Swedish Competition Authority (Konkurrensverket, KKV)by the courts entrusted with competition law private enforcement claims. However,under the general procedural principles of the Swedish system, a court is free to askpublic authorities to deliver a (nonbinding) opinion in a proceeding pending before thecourt. This general cooperation tool was used once in competition law matters, beforethe entry into force of Regulation 1/03, in a SAS case before the Göta hovrätt Court ofAppeals72 on a claim for damages arising from an abuse of dominant position.

After the modernization of EU competition law, in Swedish judicial practice atleast one case is known in which KVV made use of the powers granted to it by Article15, paragraph 3, of Regulation 1/03. In 2010, the KVV submitted to the Svea hovrättCourt of Appeals an amicus curiae brief of its own motion in an interim proceeding inthe Soda-Club case.73 The Svea hovrätt Court of Appeals was confronted with an appealintroduced by Vikingsoda against an interim injunction that had been granted in atrademark infringement case introduced by Soda Club before the Stockholm City Court.In its amicus curiae brief, the KKV stressed that an investigation was going on againstSoda Club, the trademark holder, based on a prima facie assessment of abuse ofdominant position. Accordingly, the KKV stressed that the alleged infringement of

71. See, e.g., what has been observed on the Italian system, at section §7.08 above. See furtherCzech law, referred to at section §7.14 below.

72. In his answer to the Euro-Comp-Aid questionnaire Mr. Daniel Sverinsson, Legal Counsellor atthe Swedish Competition Authority, referred to the Göta hovrätt Court of Appeals case no T33-00, Luftfartsverket v. Scandinavian Airlines System (SAS), decided by that court with ajudgement of 27 April 2001, not reported.

73. Mr. Sverinsson reported that the KKV has submitted for the first time on 25 March 2010 writtenobservations before the Svea hovrätt Court of Appeals, in the case Vikingsoda AB v. Soda-Club(CO2) SA & Soda-Club International B.V., case no Ö 1561-10.

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Article 102 TFEU should affect the possibility of obtaining an injunction againstVikingsoda in the trademark infringement dispute. Possibly as a consequence of thisopinion, Soda Club subsequently withdrew its interim claim.

Amicus curiae briefs are of course not binding on the courts: in that case,however, the KKV opinion seems to have been decisive. The Soda Club case isparticularly interesting, as it focuses on the special role an amicus curiae interventionmight have in interim judicial proceedings. In fact, given the limited scope of thejurisdictional powers normally exercised by courts in such proceedings, the position ofspecialized agencies involved in parallel public enforcement proceedings might well bedecisive in establishing a prima facie case. As a consequence, it is submitted, publicenforcement agencies should exercise self-restraint and limit their interventions only toexceptional situations.

Finally, the Swedish system does not provide for any binding effect of NCAdecisions on civil courts’ proceedings. As in the Italian system, however, an importantevidentiary effect might be attached to administrative decisions.

§7.15 REINFORCED COOPERATION BETWEEN COURTS AND NCAs:BEYOND THE AMICUS CURIAE MODEL?

Some Member State legal systems seem to have gone further than EU law itself inproviding for cooperation between civil courts entrusted with private enforcement andpublic enforcement agencies, and set some forms of reinforced and even structuralconnection between the two sides of competition law enforcement. The Euro-Comp-Aid survey shows that this is the case of Malta, Latvia and Romania. In all of theseMember States, a system is put in place, which goes to a certain extent beyond themodel of smooth cooperation outlined by Article 15 Regulation 1/03. Each of the saidMember States, however, follows its own path, thus requiring separate consideration.

[A] Malta Office for Competition: Just an Amicus Curiae?

Maltese law74 is of particular interest, from a comparative point of view as it providesfor mandatory referral of antitrust questions to the Anti-monopoly Office.75 Accordingto the Malta Office for Competition, this provision has only been resorted to in one caseso far.

It is noteworthy that the mere possibility for NCAs to submit written observa-tions, as provided for by Article 15.3 of Regulation 1/2003, has been transformed byArticle 27 of the Malta Competition Act in a duty to cooperate. The judge is in factbound to stay the proceedings and refer the competition law question to the Office. Theensuing Office’s report is not binding on the court, but, if a final decision is taken by the

74. As reported to the Euro-Comp-Aid first Seminar in 2011 by Dr. Sylvann Aquilina Zahra, DirectorGeneral for Competition of the Office for Competition, Malta Competition and Consumer AffairsAuthority.

75. According to Article 27 of the Malta Competition Act. The Act is downloadable from www.mjha.gov.mt

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Office in the framework of its public enforcement powers, that decision binds civilcourts, both on facts and on questions of law. As such provision concerns theapplication of both Maltese and EU competition law, it might be questionable whetherit is in full accordance with Regulation 1/2003. On the one hand, such a legislativechoice could be considered permitted by the principle of procedural autonomy ofMember States. On the other, it might well be argued that such a duty to stay the mainjudicial proceeding and institute an administrative referral proceeding would affect thedirect applicability of Articles 101 and 102 TFEU as well as of Regulation 1/2003.

As the Court of Justice stated in its 1978 judgment in the Simmenthal case,76

direct applicability requires that the judge entrusted with the task of applying EEC/EUlaw in an individual case shall be free to apply it directly, and opposes nationalprovisions requiring that judge stay the proceedings and refer the EC/EU law questionto ‘an authority with a discretion of its own, other than the court called upon to applycommunity law’.77 In the Simmenthal case the ECJ wanted to exclude that theConstitutional Court of a Member State be entrusted with exclusive jurisdiction to ruleon the conflict between EEC law and national legislation. Nonetheless, the link it builtbetween the direct applicability of EU norms and the powers of the judge called uponto apply them in the actual case seems to be capable of generalization. This is all themore true since the ECJ based its decision on the need to preserve the effectiveness ofthe then Article 177 EEC.78 The Simmenthal rule was recently confirmed – albeit withsome fine-tuning – by the Grand Chamber of the ECJ in its 2010 judgment in the Melkiand Abdeli cases.79

All this considered, it is here submitted that the Maltese approach risks limitingthe direct applicability of EU competition law provisions, and prejudicing the effective-ness of the Article 267 TFEU mechanism. In particular, as far as the preliminary rulingmechanism is concerned, applicable case law leaves no doubt that the Anti-monopolyOffice is not a jurisdiction entrusted with the power to submit a request for preliminaryruling to the ECJ.80 Although not formally binding, moreover, the Anti-monopolyOffice opinion will have an authoritative weight on the private enforcement judge, atleast by virtue of the Office’s specialization. Moreover, if the Office resorts to its publicenforcement powers81 and issues a final decision, that decision binds the civil court.

76. Judgment of the Court of 9 March 1978, Simmenthal SpA, case 106/77, [1978] ECR 629.77. Simmenthal case, cit., paragraph 23.78. Simmenthal case, cit., paragraphs 19 and 20.79. Judgment of the Court 22 June 2010, Melki and Abdeli, joined cases C-188/10 and C-189/10,

[2010] ECR I-5667, paragraphs 40–57.80. See judgment of the Court of 31 May 2005, Syfait, case C-53/03, [2005] ECR I-4609. On that

judgment, see the commentaries by: G. Anagnostaras, Preliminary problems and jurisdictionuncertainties: the admissibility of questions referred by bodies performing quasi-judicial func-tions, European Law Review 2005, pp. 878–890; H. Tagaras, M. Waelbroeck, Les autoritésnationales de la concurrence et l’article 234 du traité. Un étrange arrêt de la Cour de justice,Cahiers de droit européen 2005, pp. 465–492;

81. Article 27, paragraph 3, of Malta Competition Act expressly states that ‘For the purposes ofdrawing up reports under this Article the Director General may have resort to the investigatorypowers conferred upon him under this Act’.

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Further, as the Office’s involvement remains to a certain extent ‘outside’ the judicialproceedings and is tainted by public enforcement elements, private parties could findit difficult to challenge the conclusions of the Office’s report successfully, once thejudicial proceedings are revived. The risk cannot be underestimated, therefore, that byvirtue of Anti-monopoly Office involvement in all cases involving a competition lawissue, a ‘national’ approach in the application of Articles 101 and 102 TFEU wouldconsolidate, by virtue of such municipal law mechanism, without any involvement ofthe ECJ, in substantial disregard of Article 267 TFEU.

[B] Latvia: Duty to Cooperate as a Consequence of General Provisions?

In Latvian case law, no use has apparently been made of the cooperation provided forby Article 15 of the modernization Regulation. According to the Latvian CompetitionCouncil, moreover, internal provisions on cooperation are only occasionally resortedto, possibly because of the limited number of private enforcement cases.

Latvia is nonetheless to be considered carefully in this framework, as Article 89of Latvia’s Civil Procedure Law imposes on courts a duty to consult public authoritiesin judicial proceedings dealing with issues falling within the public authority compe-tence. Apparently, courts would be bound to use this tool also in case of EUcompetition law private enforcement cases.82 Such an interpretation of the applicableprovisions does not raise concerns in the light of their compatibility with EU law.Article 89 of the Latvian Civil Procedure Law, in fact, only obliges courts to invite theCompetition Council to participate in the judicial proceedings. Proceedings are,however, not mandatorily stayed, and the role of the administrative authority seems tobe limited to that of a third-party intervener.83 Competent civil courts, therefore,remain fully in control of the judicial proceedings and their power to submit prelimi-nary rulings to the ECJ is not diminished.

Finally, under Latvian law public enforcement decisions taken by the Competi-tion Council do not bind civil courts, but might have an important evidentiary role incivil proceedings. Despite the fact that the internal practice is scarce, this does not seem

82. As reported by Mr. Antis Apsitis, Head of the Legal Support Division of the Competition Councilof the Republic of Latvia, in his answer to the Euro-Comp-Aid questionnaire. Reference is madeto Article 89 of Latvia’s Civil Procedure Law, in conjunction with Article 15 of Regulation1/2003. However, that conclusion seems to be questionable. In fact, Article 89 limits theobligation to consult public authorities to ‘cases provided for by law’, and Article 15 ofRegulation 1/2003 cannot be read as imposing per se such consultation.

83. Moreover, the Competition Council purportedly limits its observations to points of law, as itappears from Mr. Apsitis report to the Euro-Comp-Aid first seminar. This statement is quiteinteresting, as Article 89 of the Civil Procedure Law appears to provide for a more active role ofpublic authorities intervening before civil judges. According to paragraph 2 of that article, infact, the invited authorities would have the right, inter alia, ‘to participate in examination ofevidence’. In this regard, therefore, the Competition Council appears to be exercising a voluntaryself restraint.

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to be a problem in ensuring a coherent enforcement of EU antitrust law. In fact, thecooperation mechanism described above seems capable of ensuring coordinationbetween public and private enforcement. In case of conflicting approaches, moreover,civil courts will have the possibility, or the duty, to refer the question to the EuropeanCourt of Justice.

[C] Romania: Duty to Cooperate as a Consequence of Special Provisions?

In Romanian court practice too, apparently, Article 15 of Regulation 1/2003 has foundno actual application. However, Romanian Law on Competition84 provides for acooperation tool that appears to have been used at least in some cases85 and that is axedon a duty by the NCA to cooperate with courts.

According to Article 27 of Romanian Competition Law, in fact, the CompetitionCouncil is said to have a ‘duty’ to ‘inform the courts on cases subject to theirjurisdiction’.86 However, that duty probably needs to be qualified. According to Article30 of the same Act, ‘the Competition Council shall state its viewpoint on every aspectof competition policy, at the request of: ( …), (f) the courts and prosecutors’ offices’.It appears therefore that the Competition Council is only bound to present its positionin cases where it has been asked to do so by the competent court. The CompetitionCouncil’s opinions are not binding on courts, contrary to infringement findingscontained in the Council’s public enforcement decisions.

Under Romanian law, therefore, the cooperation mechanism lies essentially inthe hand of the courts, and the NCA appears to be somehow ancillary in thecooperation relationship. One might wonder whether the duty of the NCA to informthe courts goes as far as implying, in case of follow-on cases, a disclosure of theadministrative file. As to this point, no doubt any cooperation is subject to a weighingof the contradicting interests at stake, according to Pfleiderer.87

84. Law 21 of 1996 on Competition, published in the Romanian Official Gazette, Part I, no. 88, of30th of April 1996, as subsequently amended. Unofficial translation available at http://www.legi-internet.ro

85. According to Mr. Valentin Mircea, Member of the Romanian Consiliul Concurentei. In his answerto the Euro-Comp-Aid questionnaire, he observed that ‘the number of such requests is ratherlow, due mainly to the fact that most judges handling competition cases already benefit ofspecialized training’.

86. Article 27, letter h), of Romanian Competition Law.87. Pfleiderer, cited above at footnote 10, paragraph 12 of the judgment. Moreover, should the

proposed directive on actions for damages be approved as it is, any cooperation involvingdisclosure of public enforcement files would be significantly limited by Article 6 thereof. Theproposal is cited above, at footnote 12.

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§7.16 CZECH REPUBLIC AND SLOVAKIA: APPLICABILITY OF GENERALPROVISIONS ON COOPERATION

[A] Czech Republic

In Czech practice, neither has use been made of Article 15, paragraph 3, of Regulation1/2003, or of its Czech complementing provision,88 nor has any request for informa-tion or opinion been made by Czech courts to the Commission under Article 15,paragraph 1.

According to the Office for the Protection of Competition,89 while a specificprovision of Czech law regulates the Office’s amicus curiae interventions before civilcourts called to apply EU competition law,90 no special provision exists concerning anintervention of the Office in private enforcement cases concerning Czech competitionlaw. General provisions and principles of judicial proceedings, however, make suchcooperation possible. Moreover, the general provisions of Czech law91 permit civilcourts to ask the Office for its opinion concerning the application of competition law.Such opinions are not binding on the courts but have evidentiary value in the judicialproceedings.

In a couple of cases, the Office appears to have been asked to give its opinion,based on EU competition law, on the anti-competitive nature of certain contractualclauses and of unilateral conduct allegedly amounting to the abuse of a dominantposition. Moreover, courts in two further cases involving the application of Czechcompetition law sought the Office’s opinions. The Office replied to the questions inwriting and, apparently, its replies might well have constituted relevant piece ofevidence in the civil enforcement proceedings.

Finally, under Czech law civil courts are bound by both findings of infringementsand of non-infringements by the Office for the Protection of Competition.92

[B] Slovakia

In Slovak practice, apparently, no use has been made either of the possibilities open tothe Anti-monopoly Office by Article 15 of Regulation 1/2003 in the framework of

88. Article 20 a, para 3, letter e), of the Czech Law on Competition provides for the power of theOffice for the Protection of Competition not only to ‘submit to courts observations on issuesrelating to the application of Articles 81 and 82 of the Treaty’, but also ‘to request the relevantcourt to transmit any documents necessary for the assessment of the case’. This Czechprovision, it is worth noting, resembles to Article 15bis of the 2007 Spanish Competition Act,referred to above at section §7.09, esp. footnote 36.

89. According to the answer to the Euro-Comp-Aid questionnaire submitted by Ms Lucie Zhanalova,of the Office for the Protection of Competition International Department.

90. Section 20a.3.e) of the 2001 Competition Act.91. Sections 125 and 129 of the Czech Civil Procedure Code.92. According to the answer to the Euro-Comp-Aid questionnaire submitted by the Office for the

Protection of Competition.

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private enforcement proceedings.93 No equivalent special provision is foreseen, as faras national antitrust law is concerned. However, under Slovak Law, courts may requestany public administration to provide information and cooperation. Contrary to findingsof infringement made by the Anti-monopoly Office in its public enforcement deci-sions,94 positions expressed by the Office in the framework of cooperation with civilcourts would not bind the requesting court but would have evidentiary value.95

Apparently, moreover, the Anti-monopoly Office may theoretically intervene as a thirdparty in private enforcement cases, also by virtue of a general provision of Slovak Law.As the Office is not informed of cases pending before civil courts, however, that poweris not resorted to in practice.

§7.17 LUXEMBOURG: NO RELEVANT CASE IMPLEMENTINGAPPROPRIATE SPECIAL LEGISLATION

In Luxembourg no cases are reported of the Grand-Duchy National CompetitionAuthority making use of either Article 15, paragraph 3, of Regulation 1/2003, or of thespecial provisions of national competition law96 built on the model of Article 15. Thesame is true for the possibility opened by the first paragraph of that Article, ofrequesting opinions or information from the Commission. This is due to the fact thatprivate enforcement of antitrust law is practically non-existent in the Grand-Duchy.97

Moreover, public enforcement activity by the Luxembourg NCA seems also to be quitescarce.

Luxembourg may be paradigmatic of the situation prevailing in some otherMember States, where a structural effort might have been put in place, in line with themodernization and decentralization effort taken at the EU level, but this seems for thetime being not to have had any actual impact on the socio-economic environment.

93. It is to be noted here that Article 15, paragraph 3, was resorted to by the Commission, in thepublic enforcement Railway cargo (Zeleznicna spolocnost) case, in which an AntimonopolyOffice Decision was challenged before the Slovak Supreme Court. On the case see http://ec.europa.eu/competition/ecn/brief/02_2012/sk_cargo.pdf

94. According to the answer to the Euro-Comp-Aid questionnaire by Ms. Lenka Lietavová of theAnti-monopoly Office of the Slovak Republic, this seems to be a consequence of a general ruleincluded in the Slovak Civil Procedure Code regarding the relationship between administrativeand jurisdictional authorities. Courts should be bound as to the finding of the infringement, andon its imputation to the infringer. Moreover, a de facto binding effect should probably berecognized for findings that are the necessary precedents of the infringement finding, such as thedefinition of the relevant market.

95. According to the answer to the Euro-Comp-Aid questionnaire by the Anti-monopoly Office.96. Articles 29 of Competition Law and 33 of Competition Law 2011. According to the said

provisions, the Conseil de la Concurrence (formerly Inspection de la Concurrence) is entitled tosubmit its ‘conclusions’ in writing before civil and administrative jurisdictions called upon toapply national competition law. Moreover, the NCA is entitled to submit to the judge internalacts of its public enforcement proceedings (namely, ‘procès-verbaux’ and ‘rapports d’enquête’).

97. Besides the answers to the Euro-Comp-Aid questionnaire submitted by Ms. Vivienne Faber,Rapporteur of the Inspection de la Concurrence, see the report submitted by Mr P. and G.L.Elvinger in the framework of the 2004 Study on the conditions of claims for damages in case ofinfringement of EC competition rules submitted by the Law Firm Ashurst and retrievable fromhttp://ec.europa.eu/competition/antitrust/actionsdamages/study.html.

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In the Luxembourg case, moreover, the consequences of its market’ actualintegration in the EU internal market, and especially in the markets of neighbouringcountries, will mean that cartels involving that Member State’s market will very oftenhave a larger dimension. This contributes of course in making separate privateenforcement litigation unlikely. In this regard, it is quite interesting to note that eventhe EU Commission, acting in … private enforcement on behalf of the EuropeanCommunities as a ‘private’ party damaged by the lift cartel in Belgium and Luxem-bourg, despite substantial damage suffered by EU Institutions in the Grand-Duchy, didnot propose separate actions before the Grand Duchy’s courts but introduced instead anumber of connected claims before the Brussels commercial court (Otis case).98

§7.18 BULGARIA: NO RELEVANT PRACTICE OR PROVISIONS

Finally, the survey conducted in the framework of the Euro-Comp-Aid first seminarshowed that Article 15 of Regulation 1/2003 has not yet found application in Bulgaria.Moreover, no special provision of internal law exists in that legal system enabling theBulgarian Competition Authority to cooperate with national courts in private enforce-ment cases. Finally, the Bulgarian Competition Authority’s infringement decisionsbind civil courts,99 and the same effect should possibly be recognized for foreign NCA’sdecisions.100

§7.19 CONCLUSIVE REMARKS

Besides making apparent obvious differences existing among various Member States,the present follow-up study shows the need for a more comprehensive and coherentapproach to cooperation between courts dealing with private enforcement cases andadministrative authorities entrusted with public enforcement powers. It also shows theneed to preserve the European Court of Justice’s role in ensuring the uniforminterpretation of EU competition law, which some national approaches risk jeopardiz-ing.

First of all, it is submitted here that in a system of decentralized application, theCommission’s intervention as amicus curiae could remain exceptional. In order to havethe cooperation system work properly, however, the cooperation between nationalcourts and NCAs needs to be concrete, and the Commission should be able to supervisethe process. To this end, a Commission communication setting the policy of ECN

98. ECJ Judgment of 6 November 2012, Europese Gemeenschap v. Otis NV a.o, Case C-199/11, notyet reported. See on the case A. Vallery, Otis: Can the Commission be a Victim in Addition toActing as a Police Officer, a Prosecutor and a Judge? Journal of European Competition Law &Practice (2013), published online in May 2013, doi: 10.1093/jeclap/lpt014

99. According to the answer to the EuroCompAid questionnaire given for the Commission on theProtection of Competition by Ms. Aleksandra Kinaneva, Senior Legal Advisor at the Commis-sion’s Legal Analyses and Competition Policy Directorate.

100. According to the above-mentioned answer of the Commission on the Protection of Competi-tion.

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intervention before national courts would be required.101 Moreover, an effectivesystem of compulsory notification of first instance and appellate judgments involvingthe private enforcement of EU antitrust law would make it possible for NCAs toevaluate the need to appear as amicus curiae before Courts of Appeal and SupremeCourts. Such a system would also make it possible to involve the entire ECN in theassessment of the opportunity to intervene and leave the choice open to the Commis-sion to intervene in the most important cases. As apparently not all Member States’courts consider Article 15, paragraph 2, of Regulation 1/03 to be self-executing,102 aCommission’s communication, at least, could be envisaged.

Second, it is here submitted that, in follow-on cases, recourse to amicus curiaeintervention should be quite a natural move for NCAs. More than that, it could beassumed that the sincere cooperation principle would require such an intervention,save in repetitive cases. This would have several positive outcomes. On the one hand,it could help reduce the distance that might exist, in some systems, between thejudiciary and the administrative bodies.103 On the other, it would enable a more openinter partes discussion of authorities’ positions104 and even make it possible for courtsto impose further cooperation on the NCAs.105 Should requests for further cooperationby the courts be resisted by NCAs, national courts should resort to the ECJ for apreliminary ruling on the admissibility of the contested request.106

A further point, where the principle of sincere cooperation comes to the forefront,is that of cooperation (or lack thereof) in collecting evidence. It is here submitted thatNCAs should in principle choose to participate as amicus curiae in the judicialproceedings raising questions of general interest, thereby submitting to the rules of thejudicial proceeding, and making possible an extended cooperation.107 Where, how-ever, the needs of such sincere cooperation are not adequately addressed by theadministrative authorities, national courts could still resort to general tools of munici-pal procedural law, to try and force, or circumvent, the obstacle to a full protection ofindividual rights arising out of Articles 101 and 102 TFEU.108

Moreover, national approaches, namely the Spanish one, suggest the need for aminor but promising reform of Article 15 of Regulation 1/03, or at least of the

101. See section §3.06 above.102. For the prevailing view in Italy, excluding the self executing character of Article 15, paragraph

2, see section §7.06 above.103. Reference is made here to the Italian system, see section §7.08 above.104. To this end, it has been submitted, the amicus curiae intervention is to be preferred to the

simple issuance of an opinion according to Article 15.1 of the Regulation. See section §7.06above.

105. See the Eco-emballage case discussed at section §7.03 above.106. This would be true independently of the approval of a specific EU harmonized framework in

this field, such as the proposed directive for damages claims: the question of admissibility ofan order of disclosure, in fact, relates to the EU law principles of sincere cooperation, on theone hand, and of effectiveness, on the other.

107. See commentaries on the French Eco-emballages case, above, p. 148.108. See again commentaries on Eco-emballages case, above, p. 148, and on to the Italian Tele2

case. above, p. 156, footnote 47.

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Commission’s Notice on cooperation109 and its Communication on quantifyingharm,110 which could make the practice of private enforcement more effective (andattractive for damaged parties). Reference is made here to the possibility of havingNCAs actively involved in the judicial proceedings by proposing specific criteria forawarding damages in the light of the peculiarities and needs of the case at stake.

Further, the survey has shown that some Member State systems have gonebeyond the amicus curiae model, providing for somehow compulsory cooperationbetween civil courts entrusted with private enforcement and NCAs. While such astructural choice might to a certain extent be beneficial for EU competition enforce-ment, some questions arise as to the compatibility of some of the relevant nationalprovisions with the role of the European Court of Justice in ensuring the uniforminterpretation of EU law.111

More generally, the preceding analysis has shown that the preliminary rulingmechanism should continue to be understood as the most important tool to ensureconsistency and ‘good law’ in the decentralized application – and especially in theprivate enforcement – of EU competition law. At the same time, it cannot be denied thatin recent years national courts (and especially Supreme Courts) have resorted topreliminary rulings far less than they should have, in substantial disregard of the Cilfitacte clair doctrine.112 This is all the more problematic as the decentralization in publicenforcement, and the lack of a transparent and verifiable coordination in the EuropeanCompetition Network, have increased the risk of diverging approaches.

Finally, in such a framework, it is submitted that no need would arise for theexceptional provision of Article 16 of Regulation 1/2003 to be extended to NCAs. Thebinding character of Commission’s decisions for national courts – which already seemsquestionable in its extension, at least according to the House of Lords Inntrepreneurjudgment113 – cannot be seen as the expression of an unprecedented and inadmissiblesupremacy of administrative authorities over judicial ones. That binding character is infact only justifiable in the light of the rule of law principles, upon which the entire EUbuilding rests, because of the control exercised by the EU Courts over the Commissionand the need to ensure consistency in EU competition law application once the EU levelhas spoken. When, however, the public enforcement is decentralized and no involve-ment of the European Court of Justice is therefore granted, it should be in an

109. Commission Notice on the cooperation between the Commission and the courts of the EUMember States in the application of Articles 81 and 82 EC, OJ C 101 of 27 April 2004, pp.54–64.

110. Communication from the Commission on quantifying harm in actions for damages based onbreaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, OJ C167 of 13 June 2013, pp. 19–21.

111. See the discussion of the Maltese system at section §7.12 above.112. See the commentaries made at p. 147, 150. See moreover, on the possible State liability for

failure to comply with the obligation to refer a question to the ECJ under Article 267 TFEU, thecontribution to this volume by D. P. Domenicucci, The Preliminary Ruling …, cit., at p. 192 f.

113. Inntrepreneur Pub Company (CPC) and others v. Crehan, [2006] UKHL 38. See on thatjudgment the approving commentaries by A. P. Komninos, Effect of Commission Decisions onPrivate Antitrust Litigation: Setting the Story Straight, 44 Common Market Law Review (2007)pp. 1387–1428, at 1403.

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adversarial dialogue with the parties before national courts, and with the possibleinvolvement of the ECJ through Article 267 TFEU, that ECN Authorities should defendtheir decisions and promote consistency and uniformity of EU law application.114 Theproposal for a directive on damages actions, it is therefore submitted, goes too far inestablishing a binding effect for NCAs’ decisions as well.115

114. An egregious example of how this dialogue should be put in place can be found in the EWS v.E.ON case discussed at section §7.07 above.

115. Proposal for a directive on damages actions, cit., Article 9.

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