Effective application of Community competition law by national courts — problems in practical application
1.3.2010
WRITTEN QUESTION E-1456/10
by Sergej Kozlík (ALDE)
to the Commission
Council Regulation No 1/2003[1] established a system of parallel powers between the European Commission, the national competition authorities and the national courts.
However, the experience of some Member States, mainly the new ones (such as Slovakia and the Czech Republic), shows that there has not been a significant shift in the application of the law by the courts and that there is a divergence from the established case-law of the European courts, even at the level of the supreme court of a country.
The objective — to eliminate market failures — can often not be achieved as a result of inappropriate court rulings that, for example, require the standard of proof typical for criminal law, which cannot however be applied analogously in competition law. As an example we could take the requirement of a Slovak court to define in its ruling the precise place where an agreement restricting competition was concluded, while the court did not accept that the defining of the relevant market is a decisive factor; or the recognition of the possibility of applying the ‘economic continuity test’ on the one hand, whilst on the other lowering the fine imposed (by as much as 88 %) on the grounds that the penalty is being imposed on a party which did not directly commit the infringement.
1. Is the European Commission aware of these problems at national level and, if so, does it not consider that they can paralyse the coherent application of Community competition law, at least in part of the single market?
2. How does the Commission propose to put an end to this undesirable development?
3. Does the Commission not intend to make more intensive use of the instruments which it has at its disposal in this connection, in particular the amicus curiae, which has proved to be a very beneficial instrument for giving guidance to courts in their opinions, with the aim of ensuring the coherent application of Community competition law?
- [1] OJ L 1, 4.1.2003, p. 1.
OJ C 138 E, 07/05/2011