Advocate General finds that NCAs have no competence to acquit companies of infringements
On 7 December 2010, European Court of Justice ("ECJ") Advocate General ("AG") Jan Mazák published his opinion in Tele 2 Polska, advising the Court to rule that national competition authorities ("NCAs") should not be entitled to declare certain practices compatible with Articles 101 or 102 of the Treaty on the Functioning of the EU ("TFEU"). According to AG Mazák, attributing such competences to the NCAs would be contrary to Article 5 of Regulation 1/2003, which does not list such types of positive clearance decisions among the types of findings available to NCAs in applying EU competition law.
The question referred to the ECJ by the Polish Supreme Court arose in a dispute between the Polish National Competition Authority (UOKiK) and a complainant in national proceedings, Tele 2 (now Netia). In its decision of 28 September 2006, the UOKiK found that Telekomunikacja Polska SA, the incumbent on the telecom market, had not infringed Polish provisions prohibiting abuse of a dominant position. However, when applying Article 102 TFEU to the same practices, it merely held that there had been no grounds for action under that provision. This decision was appealed by the complainant, who argued that the UOKiK either should have found an infringement or acquitted the incumbent company of such allegations, effectively acquitting Telekomunikacja Polska of an infringement under Article 102 TFEU. The Polish appellate courts endorsed the complainant's view on the grounds that, in applying EU competition rules together with Polish antitrust provisions, the UOKiK is obliged to adopt a decision corresponding to its ruling under domestic law. The UOKiK challenged that finding before the Polish Supreme Court, which referred the case to the ECJ for a preliminary ruling.
The departure point for AG Mazák's considerations is the principle of procedural autonomy, which requires the application of national legislation in the absence of specifically applicable procedural provisions in EU law. AG Mazák observed that this principle cannot be regarded to be an absolute rule and is subject to certain limitations, one of which is the effectiveness of the EU legislation in question. Consequently, NCAs are not obliged to adopt under EU competition law the same decisions that are available under domestic provisions in all situations.
In that regard, AG Mazák noted that excluding acquittal decisions from the toolkit available to NCAs under Article 5 of the Regulation 1/2003 was not accidental or a mere oversight, as there are a number of reasons to prevent NCAs from acquitting undertakings of infringements of EU competition law. In particular, AG Mazák held that the power to adopt acquittal decisions rests exclusively with the European Commission in order to guarantee the coherent application of competition law within the decentralized system of the European Competition Network. Taking a contrary approach would lead to the creation of a one-stop shop system, where a single NCA clearing a particular practice could prevent other authorities, including the Commission, from finding that the practice in question breached EU competition law. Moreover, the uniform application of EU antitrust rules could be impaired by the fact that positive decisions are not listed among the types of decisions which have to be communicated to the Commission by NCAs before their definitive adoption.
AG Mazák's opinion underlines the need for effective and uniform enforcement of competition law in the EU, with the European Commission playing the leading role. Should the ECJ follow AG Mazák's opinion, the position of the Commission within the European Competition Network will be reinforced in line with the spirit of the modernized enforcement model of EU competition law.
OTHER DEVELOPMENT
ROMANIA: On 17 December 2010, the Romanian Competition Council (RCC) imposed a fine of RON 103.3 million (approximately € 24 million) on the National Company Romanian Mail (NCRM) for abusing its dominant position by applying dissimilar conditions to equivalent transactions with its postal services customers. The RCC decision focuses on two forms of abuse: granting preferential rebates to a Romanian printing house from 2005 to 2009 on the market for postal services for individually addressed advertising, and granting discriminatory rebates to certain intermediary services companies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
