You are on page 1of 1


Binding effect ofNCAdecisions Observations onarticle9 oftheCommission proposal ofdirective, June2013

By Jacqueline RIFFAULT-SILK(*)
Judge at the Commercial Chamber, Cour de cassation (France) President of the Association of European Competition Law Judges (AECLJ)

RLC 2557

What does binding effect stand for? Even since the early seventies, the ECJ (European Court of Justice) has made clear that EU competition law produces direct effects in relations between individuals and creates subjective rights that have to be safeguarded by national courts (ECJ, 30Jan. 1974, case127/73, BRT and Sabam). This allowed the CFI (Court of rst instance) to rule that the Commission was entitled to reject a complaint for lack of sufcient Community interest, based, inter alia, on the possibility for the prejudiced parties to seek relief before a national court (CFI,18Sept. 1992, case T-24/90, Automec vCommission, para.84s.). It was not before 2001 that the ECJ ruled, in the Courage Crehan case, that private parties who have suffered a loss due to an infringement of Articles81 or 82 (now 101 or 102 TFEU) have the right to claim an appropriate compensation before the competent national court (ECJ, 20Sept. 2001, C-453/99, Courage and Crehan). As ruled in the Delimitis (ECJ, 28Feb. 1991, C-234/89) and Masterfoods (ECJ, 14Dec. 2000, C-344/98) decisions, uniform application of EU law requires that national courts must comply with the decisions taken by the Commission and EU courts. The ruling is clear: national courts cannot contradict the decisions taken by the Commission, as well as by Community courts, were the cases brought before them. As indicated in these decisions, the grounds of such an obligation are to be found in the duty of sincere cooperation between the courts, the Commission and the Community courts, and also in the need of legal certainty, effectiveness and efciency of the implementation of EU competition law.

Commission in the implementation of Articles 85(1) and 86, and also of Article 85(3). Such conicting decisions would be contrary to the general principle of legal certainty and must, therefore, be avoided when national courts give decisions on agreements or practices which may subsequently be the subject of a decision by the Commission.

2) The obligation of sincere cooperation between, ontheonehand, National courts, andontheother, theCommission and theCommunity courts(2)
() It is even more important that when national courts rule on agreements or practices which are already the subject of a Commission decision they cannot take decisions running counter to that of the Commission, even if the latters decision conicts with a decision given by a national court of rst instance (...) It should be borne in mind that application of the Community competition rules is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Community Courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty () If a national court stays proceedings, it is incumbent on it to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties pending nal judgment. Article16(1) of the Regulation1/2003 echoes these rulings. When national courts rule on agreements, decisions or practices under Article81 or Article82 of the Treaty (now101 or102 TFEU) which are already the subject of a Commissions decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court

1)The principle oflegal certainty(1)

Account should () be taken of the risk of national courts taking decisions which conict with those taken or envisaged by the

(*) (1)

This note is strictly personal ECJ, 28 Feb 1991, C-234/89, Delimitis, para.47. (2) ECJ, 14Dec. 2000, C-344/98, Masterfoods, para.51 seq.

Numro 39 I Avril - Juin 2014 39 Avril - Juin


I 191