EU competition policy: cooperation between the European Commission and national courts

SUMMARY OF:

Commission Notice on the co-operation between the Commission and EU countries’ national courts in the application of Articles 81 and 82 EC

WHAT IS THE AIM OF THE NOTICE?

• It sets out how the European Commission and national courts cooperate when the national courts apply Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (previously Articles 81 and 82 of the Treaty establishing the European Community):
  • Article 101 bans cartels and anti-competitive behaviour;
  • Article 102 outlaws any abuse of a dominant position.
• The notice aims to help national courts when applying EU competition rules. It does not bind them, nor does it affect the rights and obligations of EU governments or natural or legal persons.
• A separate Commission notice covers cooperation within the network of competent authorities.

KEY POINTS

EU countries’ national courts:

• may apply Articles 101 and 102 in administrative, civil or criminal proceedings;
• do not need to apply national competition law in parallel;
• must apply EU competition rules to any concerted practices being handled under national law if these could affect cross-border trade;
• must respect the principle of the supremacy of EU law and must not issue a judgement that would be contrary to EU rules;
• enforce Commission decisions or regulations on certain categories of agreements, decisions or concerted practices;
• are bound by EU competition policy case-law and Commission regulations;
• if there are no specific EU legal provisions, apply national procedural law and sanctions while ensuring these are compatible with general EU principles.

Specific rules apply if a national court and the Commission are both involved in the same EU competition case. The national court may not adopt a decision that:

• might conflict with a subsequent decision not yet issued by the Commission. The national court may ask the Commission about the progress of proceedings and the likelihood of a decision in the case. The national court may wait until the Commission has reached a decision;
• would conflict with a decision the Commission had already taken. However, if it is considering doing so and has doubts about the legality of the Commission decision, the national court may refer a question to the Court of Justice for a ruling.

The Commission and national courts have a mutual duty of loyal cooperation, whereby the former assists the latter when they apply EU law and the latter help the former in fulfilling its tasks.

The Commission must:

• respect the independence of national courts;
• be neutral and objective when giving assistance;
• not serve the private interests of a party involved in the case.

Article 15 of Regulation (EC) No 1/2003 (see summary) provides for the most frequent means of cooperation. The Commission can:

• transmit documents in its possession or provide procedural information, while respecting professional secrecy;
• give its opinion on national court requests about the application of EU competition rules and on economic, factual and legal matters;
• submit observations on application of Articles 101 and 102 to national courts. The Commission and national competition authorities may submit written observations on their own initiative or oral ones with the national court’s permission.

National courts must:

• provide the Commission with a copy of any document it considers necessary to assess a case before submitting its observations;
• send the Commission a copy of all national written judgments applying Articles 101 and 102;
• give the Commission, if requested, the necessary authorisation to carry out inspections into business behaviour.

The Commission publishes details of its cooperation with national courts in its annual competition policy report.

The notice replaced the 1993 notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty.

FROM WHEN DOES THE NOTICE APPLY?

The notice was issued in order to assist national courts in the application of the Treaty articles relating to anti-trust. It does not bind the national courts, nor does it affect the rights and obligations of the EU countries and natural or legal persons under EU law.

BACKGROUND

For more information, see:

• Cooperation with national courts (Antitrust) (European Commission).

MAIN DOCUMENT

Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 101, 27.4.2004, pp. 54-64)

Successive amendments to the notice have been incorporated into the original text. This consolidated version is of documentary value only.

Corrigendum to Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 230, 15.7.2017, p. 56)

RELATED DOCUMENTS

Consolidated version of the Treaty on the Functioning of the European Union — Part Three — Union policies and internal actions — Title VII — Common rules on competition, taxation and approximation of laws — Chapter 1 — Rules on competition — Section 1 — Rules applying to undertakings — Article 101 (ex Article 81 TEC) (OJ C 202, 7.6.2016, pp. 88-89)

Consolidated version of the Treaty on the Functioning of the European Union — Part Three — Union policies and internal actions — Title VII — Common rules on competition, taxation and approximation of laws — Chapter 1 — Rules on competition — Section 1 — Rules applying to undertakings — Article 102 (ex Article 82 TEC) (OJ C 202, 7.6.2016, p. 89)

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Article 267 (ex Article 234 TEC) (OJ C 202, 7.6.2016, p. 164)

Communication from the Commission — Amendments to the Commission Notice on the cooperation between the Commission and courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 256, 5.8.2015, p. 5)

Commission Notice on cooperation within the Network of Competition Authorities (OJ C 101, 27.4.2004, pp. 43-53)

Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, pp. 18-24)

See consolidated version.

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, pp. 1-25)

See consolidated version.

last update 15.05.2020