Keywords
Summary

Keywords

1. Competition — Community rules — Obligations of the Member States — National law making compulsory or facilitating conduct on the part of undertakings which is contrary to Community rules — Duty of the national competition authority not to apply the law — Power to impose penalties on undertakings for conduct made compulsory by national law — None — Power to impose penalties for conduct taking place after the decision finding there to have been a breach of Article 81 EC and for past conduct facilitated or encouraged by national law — (Arts 10 EC and 81(1) EC)

2. Competition — Community rules — Obligations of the Member States — National law conferring power to fix the retail selling prices of a product on a ministry and power to allocate production between undertakings on a consortium to which the relevant producers are obliged to belong — Possibility of competition between undertakings — Assessment in each specific case of whether undertakings have acted autonomously — (Art. 81(1) EC)

Summary

1. Where undertakings engage in conduct contrary to Article 81(1) EC and where that conduct is required or facilitated by national legislation which legitimises or reinforces the effects of the conduct, specifically with regard to price-fixing or market-sharing arrangements, a national competition authority which has been made responsible for ensuring that the competition rules and, in particular, Article 81 EC are observed, is under a duty not to apply the national legislation. Since Article 81 EC, in conjunction with Article 10 EC, imposes a duty on Member States to refrain from introducing measures contrary to the Community competition rules, those rules would be rendered less effective if, in the course of an investigation under Article 81 EC into the conduct of undertakings, the authority were not able to declare a national measure contrary to the combined provisions of Articles 10 EC and 81 EC and if, consequently, it failed to disapply it.

However, if the general Community-law principle of legal certainty is not to be violated, the duty of a national competition authority to disapply such an anti-competitive law cannot expose the undertakings concerned to any penalties, either criminal or administrative, in respect of past conduct where the conduct was required by the law concerned. It follows that that authority may not impose penalties on the undertakings concerned in respect of past conduct when the conduct was required by the national legislation; it may impose penalties on them in respect of their conduct after the decision declaring there to be a breach of Article 81 EC, once the decision has become definitive in their regard.

In any event, the national competition authority may impose penalties in respect of past conduct where the conduct was merely facilitated or promoted by the national legislation, whilst taking due account of the specific features of the legislative framework in which the undertakings acted. In that regard, when the level of the penalty is set the conduct of the undertakings concerned may be assessed in the light of the national legal framework, which is a mitigating factor.

see paras 50, 53-55, 57-58, operative part 1

2. National legislation under which competence to fix the retail selling prices of a product is delegated to a ministry and power to allocate production between undertakings is entrusted to a consortium to which the relevant producers are obliged to belong, may be regarded, for the purposes of Article 81(1) EC, as not precluding undertakings from engaging in autonomous conduct capable of preventing, restricting or distorting competition if, in the specific case concerned, it does not preclude that possibility of competition between undertakings and if any additional restrictions for which the undertakings are blamed are not in fact attributable to the Member State concerned.

see paras 66, 80, operative part 2