Challenges in Decentralisation of Competition Law Enforcement
Krystyna Kowalik-Ba.czyk discusses the challenges of decentralising competition law enforcement and the need for potential changes. The presentation highlights the current status, issues with decentralisation, the role of national competition authorities, and the importance of coherence and convergence.
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Decentralisation of competition law enforcement and its challenges Where do we stand and is change required? 1 Krystyna Kowalik-Ba czyk, Judge at EU General Court 25 March 2022
1. Where do we stand? decentralisation v. centralisation 2. Challenges relationship national/EU law best placed authority ne bis in idem 3. Need for change? Decentralisation after 18 years 2 how to achieve coherence and convergence? ECN + Directive
Where do we stand? Where do we stand? DECENTRALISATION CENTRALISATION NCAs some recurring problems : National and EU level (Generics, Slovak Telekom, Truck cartel) Court of Justice fewer preliminary questions: C-857/19 Slovak Telekom, C-617/17 PZU C-308/19 Whiteland C-307/18 Generics, 28/18 Budapest Bank C-882/19 Sumal, C-724/17 Skanska, C-30/20 Volvo European Commission less cases What is left? Negociated proceedings Pan-EU cartels dominance cases and abuse of General Court and Court of Justice - more direct actions : Hybric proceedings - C-440/19 P Pometon/Commission Direct actions for pan-EU cases 3
Best placed authority LL-Carpenter/Commission, T-531/18 Intepretation of 1/2003 Para. 47: the word deal with does not simply mean authority has received a complaint or that it has before it a case of its own motion Para. 64: Commission is entitled to give differing degrees of priority to the complaints brought before it [Agria Polska T-480/15] Sped-Pro/Commission, T-791/19 Commission can reject the complaint if the applicant s rights are satisfactorily protected (Au Lys de France/Commission, T-458/04) art. 13(2) Reg. right to effective judicial protection (Art. 2 TEU, Art. 19 para 1 TEU, Art. 47 of the Charter) that another Para 86: NCA has to be absolutely independent in order to assure competition law effictiveness of EU Para 98: serious reasons to presume that there is a risk of violation of fundamental rights of the undertaking concerned if the case is handled at the national level e.a./Commission, 4
Ne bis in idem Art. 50 Charter in antitrust context PZU ycie/UOKIK, C-617/17 - both EU and national law can be applied by the same authority Slovak Telekom/Protimonopolny urad Slovenskej republiky, C-857/19 - both EU authority and national authority may look into the same/similar behaviour if relating to separate product markets or separate geographical markets Opinion of AG Bobek concurrence, C-117/20 both competition law and regulatory law applied judgement on 22 March 2022 5 bpost/Autorit belge de
Need for change? Coherence and convergence by legislation or by jurisprudence? Modernisation was already introduced by ECN + Directive effectiveness in enforcement: autonomy and independence of NCAs better cooperation between NCAs Art. 3 of Dir. - harminisation of national procedural standards, also in purely internal situations Preamble lists: right to good administration, rights of defence, right to be heard Art. 8 privilege against self-incrimination 6
Conclusions Composite legal space - enhanced level of complexity and risk of overlaps Return to centralisation? NCAs and national courts still at the frontline but for exceptional cases only 7
Thank you for your attention 8
