Abstract
This paper provides an overview of the legal status quo in the European Union relating to the binding effect, in follow-on competition law cases, of public enforcement decisions, as well as of some of the legal issues which are likely to be the subject of controversy in years to come, in this regard. It tackles decisions declaring antitrust infringements adopted by the European Commission and by national competition authorities, as well as commitment decisions and decisions declaring infringements of merger control and State aid rules. It discusses the material, subjective and temporal scope of the binding effect. It also tackles other issues, such as the obligations of national courts relating to non-infringement decisions and ongoing investigations, and the issue of negative declarations. Finally, it looks into the arguments which may be put forward by litigants before national courts to avoid or circumvent the binding effect of public enforcement decisions. It is argued that the case-law already provides answers to many of the issues which are likely to be raised, which one may arrive at through a systematic and coherent interpretation of the general principles of EU Law, as clarified by the Court.
Highlights
In the transposition of the Damages Directive1 across most Member States (MS), one issue above all seemed to raise eyebrows and lead to heated discussions: the binding effect of NCA decisions declaring infringements of Articles 101/102 TFEU
This paper provides an overview of the legal status quo in the European Union relating to the binding effect, in follow-on competition law cases, of public enforcement decisions, as well as of some of the legal issues which are likely to be the subject of controversy in years to come, in this regard
Since there is more to Competition Law than just infringement decisions, sections 9 to 11 will discuss the binding effects arising from State aid decisions, merger control decisions and commitment decisions
Summary
In the transposition of the Damages Directive across most Member States (MS), one issue above all seemed to raise eyebrows and lead to heated discussions: the binding effect of NCA decisions declaring infringements of Articles 101/102 TFEU. European Commission infringement decisions Under Article 16(1) of Regulation (EC) 1/2003 (“Reg. 1/2003”), European Commission (“EC”) decisions identifying infringements of Article 101 or 102 of the Treaty on the Functioning of the European Union (“TFEU”), which have become final (res judicata), are binding upon national courts in follow-on private enforcement actions.. European Commission infringement decisions Under Article 16(1) of Regulation (EC) 1/2003 (“Reg. 1/2003”), European Commission (“EC”) decisions identifying infringements of Article 101 or 102 of the Treaty on the Functioning of the European Union (“TFEU”), which have become final (res judicata), are binding upon national courts in follow-on private enforcement actions.3 This was largely a codification of obligations that already arose from general principles of EU Law (separation of powers, direct effect, principles of sincere cooperation and legal certainty), as clarified by the Court.. A national court can only escape this binding effect of EC decisions if it believes that decision to be invalid and the CJEU declares this in a referral.
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