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Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings

Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings. GCLC Lunch Talk Brussels, October 24, 2011 Fabien Zivy Director, Legal Service Autorité de la concurrence (France). Outline. Fleshing out two basic rules set out in Regulation N. 1 Self-assessment…

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Rights, Powers and Duties of NCAs: A Review of recent ECJ Rulings

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  1. Rights, Powers and Duties of NCAs:A Review of recent ECJ Rulings GCLC Lunch Talk Brussels, October 24, 2011 Fabien Zivy Director, Legal Service Autorité de la concurrence (France)

  2. Outline • Fleshing out two basic rules set out in Regulation N. 1 • Self-assessment… … and the issue of prosecutorial discretion vs. legal guidance: – ECJ (g.c.), Tele2 Polska, May 3rd, 2011 (C-375/09). • Effectiveness… … and the issue of competition litigation:– ECJ (g.c.), VEBIC, December 7th, 2010 (C-439/08). • Quo vadis?

  3. I. Prosecutorial discretion vs. legal guidance • Rule Number One: • notification vs. self-assessment; • exceptional “positive” enforcement by way of findings of inapplicability. • Reading the Tele2 Polska judgment backwards: • what the ECJ was really asked to do was to strike down a national provision imposing findings of inapplicability; • prioritization and prosecutorial discretion (the case of Poland & France). • Is “positive” legal guidance lost in translation? • “non-enforcement” decisions precluded by Article 10 and ne bis in idem; • what about “exemption” decisions? • what about ex officio guidance?

  4. II. Competition litigation • Rule Number Two: • minimum harmonization vs. procedural autonomy; • duty of effectiveness as “red herring” of Regulation N. 1/2003; • primacy, loyal cooperation and dis-application of contrary national law. • Right to appear in court as defending party: • Article 35, administrative enforcement and agency independence; • rights of defense and right of appeal. • Is equality of arms lost in translation? • the judge’s point of view: quizzing and grilling competition enforcers; • the applicants’ point of view: framing the case and keeping the last word.

  5. Quo vadis? • An always closer Union? • European judges triggering approximation of competition law; • competition authorities (Commission and NCAs) joining the movement in search of consistency and effectiveness; • what about national judges? • what about national governments and parliaments? • what about EU law-makers?

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