The EU Court of Justice adopts a preliminary ruling in a telecom case depriving Competition Authorities of the power to take negative decisions while enforcing competition rules under EU Reg. 1/2003 (Tele2 Polska)

The Perverse Effects of the Court's Ruling in Tele2 Polska* In its recent Tele2 Polska ruling, the Court deprived the National Competition Authorities "NCAs" of the ability to take "negative decisions" (C-375/09, Prezes Urzędu Ochrony Konkurencji i Konsumentów contre Tele2 Polska sp. z o.o., 3 May 2011). Negative decisions – until now, I used to call them positive decisions… – acknowledge in their operative part that there is no infringement of the competition rules, and provide reasons for this. Under Article 10 of Regulation 1/2003, for instance, the Commission can take "inapplicability" decisions (to date, the Commission never adopted any). To take a hypothetical example, in a positive negative decision, a NCA would conclude that firm X conduct does not constitute an abuse of