LEGAL PRACTICE: PROCEDURES - REJECTION - NCA - COMPETENCE - NATIONAL COMPETITION LAWS - EFFICIENCY - ECN

Article 13 of Regulation 1/2003 animated

Article 13 of Regulation 1/2003 entitles a national competition authority or the Commission to suspend proceedings or reject a complaint on the grounds that the same agreement, decision of an association or practice brought to its attention, is being dealt, or has already been dealt with, by another competition authority. Although Article 13 of Regulation 1/2003 has been in place for more than a decade, and the Notice on cooperation within the Network of Competition Authorities has set out the Commission’s understanding of the provision, the General Court had the opportunity to throw light on the scope and application of that provision only recently. With the rulings in Si.mobil, VIMC, easyJet and Trajektna luka Split d.d., the General Court upheld respectively four Commission rejection decisions, the first three based on Article 13 and the fourth one based on Article 7 of Regulation 733/2004. The article examines the four rulings with a view to highlighting the approach taken by the General Court and exploring the boundaries of Article 13. The author argues that with these rulings, the General Court enables national competition authorities and the Commission to rely more effectively on each other’s assessment of the same practices, avoid duplication of work and save administrative resources that can be employed for other purposes beneficial to consumers. Finally, a proposition is made that Article 13 can and should be used also in scenarios in which the same practice has been reviewed by a national competition authority on the basis of national competition laws, provided that these laws are equivalent to Articles 101 and 102 TFEU. [1]

I. Introduction

1. The decentralisation of the application of Articles 101 and 102 TFEU introduced by Regulation 1/2003 increased the effectiveness of competition law enforcement in the EU. The empowerment of national competition authorities (“NCAs”) to apply Articles 101 and 102 TFEU, in parallel with the Commission, ensures that markets and business practices are watched closely and taken care of by the most appropriate authority. [2]

2. The Union courts have recognised that for the Commission to effectively perform its task of ensuring the application of Articles 101 and 102 TFEU and of giving orientation to EU competition policy, it has to be entitled to give differing degrees of priority to the complaints brought before it and to reject those which do not display a sufficient Union interest. [3] The right of the NCAs to prioritise their cases and the criteria that they can rely on for this purpose are, however, governed by national rules on procedure.

3. While Regulation 1/2003 does not regulate the work sharing between the Commission and the NCAs, Article 13 of that regulation entitles an NCA or the Commission to suspend proceedings or reject a complaint on the grounds that the same agreement, decision of an association or practice brought to its attention, is being dealt, or has already been dealt with, by another competition authority. [4] Recital 18 of Regulation 1/2003 explains that the purpose of the provision is to ensure that cases are dealt with by the most appropriate authorities within the network. The Court of Justice has clarified that Article 13 and Recital 18 reflect the broad discretion which the national authorities, joined together in that network, have in order to ensure an optimal attribution of cases within the latter. [5]

4. Although Article 13 has been in place for more than a decade, and the Notice on cooperation within the Network of Competition Authorities ( “the Cooperation Notice”) has set out the Commission’s understanding of the provision, [6] the General Court (“the GC”) had the opportunity to throw light on the scope and application of that provision only recently.

5. With the rulings in Si.mobil, [7] VIMC, [8] easyJet [9] and Trajektna luka Split d.d., [10] the GC upheld respectively four Commission rejection decisions, the first three based on Article 13 and the fourth one based on Article 7 of Regulation 733/2004. [11]

6. In Si.mobil the GC clarified the scope and meaning of the first paragraph of Article 13, which pertains to the scenario in which another competition authority is in the process of dealing with the same practice. The GC took a position on what “the same (…) practice” for the purpose of Article 13 means and when an authority can be considered to be dealing with a case. The GC reiterated its position in VIMC.

7. In easyJet, the GC analysed the scope of the second paragraph of Article 13, which concerns the scenario in which another competition authority has already dealt with the same practice. The GC made clear that Article 13 applies irrespective of the type of final act that an NCA adopts on a case, and irrespective of the concrete outcome of the case. The GC also threw light on the question whether Article 13 can be applied in circumstances in which an NCA has adopted a decision based on an investigation carried out under national laws.

8. The GC’s ruling in Trajektna luka Split d.d. suggests that when rejecting a complaint for limited likelihood of finding an infringement pursuant to Article 7 of Regulation 773/2004, the Commission can rely on a rejection decision of an NCA, adopted on the basis of national substantive competition law provisions and adopt the reasoning of the NCA without itself repeating a similar analysis. [12] While the ruling does not concern Article 13 directly, it allows drawing parallels and distinctions between rejections of complaints based on Article 13 of Regulation 1/2003 and those based on Article 7 of Regulation 773/2004.

9. This article examines the reasoning of the GC in these rulings with a view to highlighting the approach taken by the GC and exploring the boundaries of Article 13. It will be argued that with these rulings, the GC enables NCAs and the Commission to rely more effectively on each other’s assessment of the same practices, avoid duplication of work and save administrative resources that can be employed for other purposes beneficial to consumers. Finally, a proposition will be made that Article 13 can and should be used also in scenarios in which the same practice has been reviewed by an NCA on the basis of national competition laws, provided that these laws are equivalent to Articles 101 and 102 TFEU.

II. Si.mobil: The scope and the meaning of Article 13(1)

10. In the Si.mobil case the Commission had relied on Article 13(1) to reject a complaint alleging an abuse of a dominant position in the form of margin squeeze and/or predatory pricing on the retail mobile market in Slovenia as the Slovenian competition authority (’the UVK’) was already dealing with the same practices. [13]

11. The Commission decision was appealed on the ground that the Commission had misinterpreted and misapplied the conditions laid down in Article 13(1). In particular, the applicant claimed that the Commission should have carried out a balancing test to ascertain whether the EU had an interest in conducting a further investigation and that the Commission should have considered whether the UVK had adequate institutional, financial or technical means to deal with the case.

1. Article 13(1) creates a new ground for rejection of complaints different from lack of EU interest

12. At the outset the GC clarified that the purpose of Article 13 was to create a new ground for rejection of complaints different from the ground lack of EU interest. [14] Therefore, under this provision the Commission is not expected to carry out any balancing test to ascertain whether there is Union interest justifying an investigation at the EU level. Instead, the application of Article 13 is subject only to two conditions: firstly, another authority has to be dealing with a case that has been referred to the Commission, and secondly, the case should relate to the same agreement or practice. [15]

2. When is the practice “the same”?

13. Evident from the text of Article 13(1), an essential condition for its application is that two competition authorities have received a complaint or are acting on their own initiative against “the same agreement, decision of an association or practice.” The provision, however, does not specify what the criteria for sameness are. The Cooperation Notice suggests that the agreement or practice in question should involve the same infringement(s) on the same relevant geographic and product markets. [16]

14. In Si.mobil, the GC upheld the Commission’s conclusion that the procedure before the UVK concerned the same alleged infringements on the same market within the same timeframe for the following reasons: (i) both the complaint before the Commission and the case dealt with by the UVK concerned an alleged margin squeeze and/or predation in the same product market (retail telephone market), (ii) both concerned conduct of the same undertaking that has started in the same year and (iii) in both the conduct was taking place in the same geographic market (Slovenia). [17]

15. The GC emphasised that when the Commission rejects a complaint on the grounds of Article 13, it must satisfy itself that the case being dealt with by an NCA relates to “the same factual matrix” as that set out in the complaint. However, the Commission cannot be bound by the subject matter of the cause of action identified by the complainants or the manner in which the latter characterise the matters of which they complain. [18]

16. This statement of the GC is important because it clarifies that the fact that the complainant has not qualified correctly the type of practice it complains of, or has not qualified it at all, does not prevent the application of Article 13. [19] By taking into account the “factual matrix,” rather than its possible legal qualification, a competition authority can rely on Article 13(1) without waiting for the authority dealing with the same case to assess and qualify the investigated practice. This ensures timely and effective reliance on the provision.

17. Although not spelled out in the ruling, the relevance of the identical factual matrix implies that the sameness of the case does not depend on the identity of complainants alleging the infringement. A practice would be considered the same for the purpose of Article 13 even if the identity of the complainants bringing the case before the NCA and the Commission is not the same.

3. When can a competition authority be deemed to be dealing with a case?

18. In the Cooperation Notice, the Commission takes the view that “dealing with the case” does not merely mean that a complaint has been lodged with another authority but that the other authority is investigating or has investigated the case on its own behalf. [20] The GC in essence confirms this interpretation by holding that for Article 13(1) to apply, after receiving the complaint the authority should have taken follow-up steps so that an ongoing investigation can be ascertained. [21] The GC suggested that sending a questionnaire by the authority to the complainant would, for example, be a sufficient indication that the authority is investigating the case. [22]

4. Issues that the Commission is not obliged to consider

4.1 The technical or financial means of the NCA

19. The GC made clear that the Commission has no duty to ascertain whether the NCA had the institutional, financial or technical means to fulfil the task entrusted to it by the Regulation. [23] While holding that the evidence in this particular case does not establish that there were institutional shortcomings within the UVK, the GC held that such a requirement would be inconsistent with the very purpose of Regulation 1/2003, which empowers the NCAs to apply the competition rules along with the Commission in order to ensure effective competition law enforcement. While the independence and availability of resources are crucial for effective administrative enforcement, neither the Commission nor any other authority within the European Competition Network (’ECN’) has the competence to assess and judge on these issues. Such powers would have introduced imbalance within the system based on cooperation. That being said, ensuring independence of NCAs and resources for investigating cases can be ensured through suitable legislative measures such as those initiated recently by the Commission. [24]

4.2 The approach taken by the NCA

20. The GC also emphasised that Article 13 does not require the Commission to verify whether the approach followed by the investigating NCA is well founded. [25] This clarification is useful, as such a requirement would not only have burdened the Commission with duties which belong to national courts only, but would have deprived Article 13 of its effectiveness and would have undermined the principle of mutual trust underlying the cooperation within the ECN.

4.3 The potential outcome of the case

21. In addition, the ruling clarified that the application of Article 13(1) cannot depend on the potential outcome of the investigation carried out by the authority that is dealing with the case. This is because the final position of that authority on the complaint would postdate the decision taken by the authority that is relying on Article 13(1), while long-standing case law has established that the legality of an EU measure is assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. [26] Similarly, claims that the complainant has been deprived of procedural rights in national proceedings would be ineffective, since they cannot affect the finding. [27]

5. No right for the undertakings involved to have their case dealt with by a specific authority

22. The GC recalled that while Regulation 1/2003 provides the Commission and the NCAs with parallel powers and establishes a system of close cooperation, neither Regulation 1/2003 nor the Cooperation Notice, lays down rules governing the allocation of powers between the Commission and the competition authorities. Article 13 cannot therefore be interpreted as a provision establishing a criterion for allocating or dividing up cases or competences. [28] The GC also reiterated the Court of Justice’s position that neither the Regulation nor the Cooperation Notice creates rights or expectations for an undertaking to have its case dealt with by a specific competition authority. [29]

23. It follows that in the context of Article 13, an undertaking cannot claim that the Commission should deal with its case simply because it considers that the Commission is better placed to deal with it. The GC went on to say that even if the UVK had not been well placed to deal with the case, while the Commission had been particularly well placed to deal with it, the complainant still could not have a right to have its case dealt with by the Commission. [30]

III. VIMC

24. In VIMC the GC upheld a Commission decision rejecting a complaint by Vienna International Medical Clinique (’VIMC’) alleging an infringement of Article 102 TFEU. In doing so, the GC adhered closely to the position it took in Si.mobil.

25. VIMC argued before the GC that the Commission had not taken into account the fact that the alleged infringement had an international dimension, that the Austrian competition authority (“the BWB”) had initially refused to examine the case due to insufficient resources and had been inactive for a couple of years. VIMC argued that “dealing” in the meaning of Article 13(1) means that the authority is examining the merits of the case, while an authority cannot do this if it has insufficient resources.

26. The GC reiterated that for the application of Article 13(1) only two conditions need to be satisfied: sameness of the case and the fact that another authority is dealing with the case. [31] The GC was satisfied with the evidence indicating that BWB was active on the case—namely, the confirmation sent by BWB to the Commission that it was dealing with the case and documents showing that BWB had invited the complainant for a meeting and there was an open investigation on the complaint. [32]

27. As regards the alleged international dimension of the alleged infringement, the GC reiterated its reasoning in Si.mobil that NCAs and the Commission have parallel powers and that a complainant has no right to have its case dealt with by a particular competition authority, even if that authority is particularly well placed to deal with its case. [33]

IV. easyJet

28. EasyJet complained to the Commission that the operator of Amsterdam-Schiphol airport (’Schiphol’) had imposed discriminatory and excessive charges in breach of Article 102 TFEU. The complainant argued that although it had filed complaints with the Dutch competition authority (“the NMa”), that authority had not taken a decision on the merits of any of these complaints and therefore the Commission had to deal with the case.

29. The Commission, however, considered that the NMa has already dealt with the same case and rejected the complaint on the basis of Article 13(2). [34]

1. The proceedings before the NMa

30. The proceedings before the NMa deserve particular attention, as they gave rise to specific questions concerning the scope of Article 13(2).

31. Before complaining to the Commission, easyJet filed with the NMa two complaints against Schiphol in relation to security and passenger service charges. One of the complaints was based on the national Law on Aviation, the other one on both Article 102 TFEU and the provision of the national competition law concerning abuse of dominance. [35] The NMa, having competence to apply the Law on Aviation, first dealt with the complaint alleging violation of that law, while suspending the review of the complaint alleging violation of the competition rules, pending the outcome of the assessment of the first complaint.

32. The NMa rejected the complaint based on the Law on Aviation on the ground that the complainant had failed to demonstrate that the tariffs charged by Schiphol were in breach of that law and, in particular, that they were contrary to the principle that charges must be cost-oriented, non-discriminatory and reasonable. [36] The complainant did not succeed in overturning the NMa’s rejection decision on appeal. [37]

33. The NMa then also rejected the complaint based on Article 102 TFEU and the national competition rules in accordance with its priority policy. [38] For this purpose, the NMa did not carry out an investigation but relied on the arguments and reasoning already used in the rejection of the complaint based on the Law on Aviation. The NMa concluded that a review of the charges complained of, in the light of Article 102 TFEU, would have had the same outcome as the review of the complaint based on the Law on Aviation.

2. The Commission’s consideration in rejecting the complaint

34. In its rejection decision the Commission took into account the fact that the NMa had explained that an infringement under the Law on Aviation could be a reason to pursue the case under the competition rules, that the NMa had described the comparable terminology of the two sets of rules—the Law on Aviation and competition law—and that “discrimination” and “reasonableness” were used either with exactly the same meaning or with comparable methods as established in the case law of the Union courts on competition law. The Commission also considered that the NMa had rejected the complaint under the competition rules after explaining why finding an infringement of those rules was unlikely, and thus why the complaint would not be given priority.

3. The GC’s findings

3.1 Article 13(2) can apply when another competition authority has rejected the same complaint on priority grounds

35. On appeal of the Commission decision, easyJet argued that the Commission could not have relied on Article 13(2) given that the complaint had been rejected by the NMa on priority grounds.

36. To address this argument, the GC interpreted the text of Article 13(2) literally and in connection with the first paragraph of Article 13, and concluded that the expression “complaint (…) dealt by another authority” is broad enough in scope to include all complaints that have been examined by authorities, irrespective of their outcome. [39] What matters for the application of the provision is that another authority has reviewed the complaint. [40] Moreover, the GC pointed out that as the Commission is in principle entitled to reject a complaint for lack of Union interest, even if that complaint has not been dealt with by another authority, a fortiori, it should be entitled to reject a complaint reviewed and rejected by another authority on priority grounds. [41]

37. In this context the GC also rejected the argument that the application of Article 13(2) requires the adoption of a decision by an NCA in the meaning of Article 5 of Regulation 1/2003. [42] The GC took the view that for the application of Article 13(2) it is sufficient that the authority has dealt with the case, but not necessarily that it has adopted a decision in the meaning of Article 5. Moreover, in the alternative, the GC considered that Article 5(2) should be interpreted to cover decisions taken by NCAs on priority grounds. This is because, as the Court of Justice ruled in Tele2 Polska, this provision enumerates restrictively the type of decisions that the NCAs can adopt. [43] If rejection decisions on priority grounds were not to be included in the scope of Article 5(2), the paradoxical outcome would have been that NCAs could not reject complaints on priority grounds, while in practice many of them (similarly to the Commission) often do so. The GC therefore concluded that the second paragraph of Article 5 covers all cases in which a competition authority finds that the information in its possession does not allow it to conclude that the conditions for prohibitions are met, without it being necessary for the authority to have ordered any preliminary measure of inquiry. [44]

3.2 The application of Article 13(2) is not precluded where the investigation of the NCA has not been conducted under the EU competition law

38. Another ground for the appeal of the Commission decision was that the Commission relied on a decision of the NMa that was not the subject of an investigation conducted under European Union competition law but under the Dutch Law on Aviation.

39. The GC held that Article 13(2) can be applied only where the complaint has been the subject of a review carried out in the light of EU competition law because, as all other provisions of Regulation 1/2003, also Article 13 refers to the situation in which Articles 101 and 102 TFEU are implemented. [45] However, the GC did not say that EU competition law should have been applied, but that the review should have been carried out in the light of the EU competition rules. The GC then concluded that there is nothing in Article 13(2) which prevents an NCA from relying, when seeking to ascertain compliance with EU competition rules, on conclusions which it has reached as part of the investigation carried out under different national legislation.

40. According to the GC, the fact that the assessment under national law relied on concepts similar to those under EU competition law, and that the NMa had interpreted the provisions of that national law in accordance with the case law of the courts of the European Union, was a sufficient indication that the assessment had been carried out in the light of the EU competition rules. The GC therefore concluded that the NCA had dealt with that complaint on the basis of Article 102 TFEU and the Commission had not erred in law in rejecting the applicant’s complaint on the basis of Article 13(2). [46]

41. Finally, as in Si.mobil, the GC emphasised that while the Commission’s task is to establish that the NMa had not rejected the applicant’s complaint without having first conducted its examination in the light of EU competition law rules, neither the Commission’s review nor the GC’s review must lead to an appraisal of the merits of the NMa’s decision or of the procedure or methodology used by the latter, which is a matter for the national courts. [47]

V. Trajektna luka Split d.d.

1. Proceedings before the NCA and the Commission

42. The complainant Trajektna luka Split d.d. (“TLS”) was the private operator of the passenger terminal at the Port of Split in Croatia. Its core activities, exercised on the basis of a concession, concerned passenger terminal operations in domestic and international traffic.

43. In 2013, before Croatia’s accession to the EU, TLS lodged a complaint with the Croatian competition authority alleging that the Split Port Authority had been fixing maximum fees for port services provided by TLS (in particular for domestic traffic and for supply of water) at prohibitively low levels and had infringed the national competition rules.

44. A few months later, and shortly after Croatia became a member of the EU, TLS filed a complaint with the European Commission, making in essence the same allegations but this time qualifying them as an infringement of Article 102 TFEU. Before the Commission had even started the assessment of the complaint based on Article 102 TFEU, the NCA rejected the identical complaint based on Croatian competition law.

45. The Commission then found insufficient Union interest to pursue the case and rejected the complaint alleging an infringement of Article 102 TFEU on the grounds that the likelihood of establishing an infringement was limited, the national courts and authorities appeared best placed to decide the issue raised and the impact on the functioning of the internal market appeared limited. As regards the finding of low likelihood of infringement, the Commission relied on the assessment made by the NCA. The Commission expressly stated that it did not base its decision on Article 13(2) because, as the complainant had indicated, the NCA had carried out its investigation before Croatia joined the EU and had applied only national law.

2. The GC’s findings

46. In its application for the annulment of the Commission decision, TLS argued that the Commission had relied solely on the wording of the NCA’s decision without making its own assessment. According to the applicant, the Commission was precluded from doing so because the NCA had based its decision only on national competition law, and consequently, Article 13(2) was inapplicable. [48]

47. The GC disagreed with the applicant. While noting that the Commission had accepted the complainant’s position that Article 13 was not applicable in this case, the GC found that the Commission had in fact conducted an analysis of the situation before concluding that there were insufficient grounds for it to conduct a more detailed investigation. [49] This was evident by the fact that the Commission had given the complainant the opportunity to explain its point of view. In particular, the Commission had met with the complainant and asked questions, the complainant had been invited to explain how the alleged abuse of a dominant position could have lasted for several years without having led to its exit from the market, and the complainant had been given the possibility to justify its position in written submissions. [50]

48. Taking into account that the national competition law provisions were identical with Articles 101 and 102 TFEU, the GC found that the Commission was correct in taking the position that the reasoning of the NCA provided a good indication of the limited likelihood of establishing an infringement. Importantly, the GC held that the Commission was correct to adopt the reasoning of the NCA without repeating a similar analysis. [51] As regards the applicant’s argument that the NCA had not applied EU law, the GC made clear that in view of the undisputed equivalence of the national and EU competition law provisions, the conclusions of the NCA would have been identical if that authority had carried out its own analysis in the light of Articles 101 and 102 TFEU. [52]

3. Practical implications of the judgment

49. Some important conclusions can be drawn from this aspect of the judgment. [53] First, when rejecting a complaint which has been already assessed and rejected by an NCA on the basis of national competition rules equivalent to Articles 101 and 102 TFEU, the Commission can adopt the reasoning of the NCA without itself repeating a similar analysis. In particular, the Commission can consider that the analysis of the NCA provides “a good indication that the likelihood of establishing the existence of an infringement of the EU competition rules appeared limited.” [54] Second, when national competition rules are equivalent to Articles 101 and 102 TFEU, it can be assumed that the NCA would have reached the same conclusion had it applied those articles. [55] This is true also in circumstances in which Article 13 is not the legal basis for the rejection. Third, when the Commission rejects a complaint for lack of Union interest, it would be insufficient for the Commission to only refer to the decision of the NCA. Though the Commission can rely on the assessment, and adopt the reasoning, of the NCA, it will still need to make an analysis of the situation and give the possibility to the complainant to express its views. [56]

VI. Can Article 13(2) be applied when the case has been dealt with on the basis of national competition law only?

1. Differences and similarities between easyJet and Trajektna luka Split d.d.

50. It is useful to compare the rulings in easyJet and Trajektna luka Split d.d. in order to highlight their similarities and differences and, on this basis, to reflect on whether there is scope for applying Article 13 when the NCA had investigated and adopted a decision pursuant to national competition law only.

51. In easyJet, the NCA rejected a complaint alleging an infringement of Article 102 TFEU by relying on an assessment carried out under national law. The fact that the national law shared common concepts with EU competition law, which the NCA took into account in the review of the complaint under Article 102 TFEU, was sufficient for the GC to conclude that the review of the NCA was carried out in the light of the EU competition rules and the Commission was correct in rejecting the same complaint on the basis of Article 13.

52. In Trajektna luka Split d.d, unlike in easyJet, the NCA was not seized with a complaint alleging an infringement of the EU competition rules and the NCA’s decision was based solely on national competition rules. These rules were, however, identical to the EU competition rules, which led the GC to the conclusion that the same result would have been attained, had the NCA applied the EU competition rules. The Commission was correct to rely on the assessment of the NCA to conclude that likelihood of finding an infringement was limited. In this particular case the Commission accepted the complainant’s argument that Article 13 would not apply as the NCA had run its investigation before Croatia’s accession to the EU and had to apply only Croatian law. [57]

53. That being said, the reasoning of the GC raises the question of whether Article 13 could, as a matter of principle, also apply in situations in which an NCA of a Member State has conducted its assessment on the basis of national competition rules, which are identical with the EU competition rules. Notably, in Trajektna luka Split d.d. the GC was careful not to preclude, as a matter of principle, the application of Article 13 in such scenarios. This is evident from the carefully presented explanation: “(...) the Commission merely confirmed the argument presented by the applicant in its letter of 19 August 2014 that the provisions of Article 13(2) of Regulation No 1/2003 could not be used since the NCA took its decision solely on the basis of national law. The Commission was therefore right to consider, in paragraphs 15 and 18 of the contested decision, that Article 13(2) of Regulation No 1/2003 was not applicable in the present case.” [58] Moreover, while recalling that Article 13 refers to situations in which Articles 101 and 102 TFEU are implemented, the GC immediately reiterated its conclusion in easyJet that the Commission may reject a complaint on the basis of Article 13(2) of Regulation 1/2003 only where it has been the subject of a review carried out in the light of EU competition law rules, adding that an assessment under Articles 101 and 102 TFEU would have led to the same conclusion.

54. In both easyJet and Trajektna luka Split d.d., the main assessment was made on the basis of national laws which shared common concepts with EU competition law or on the basis of national provision equivalent to the EU competition rules. In both, the GC considered that the same conclusion would have been reached had the investigation been carried out under the EU competition rules. The formal difference, however, was that in easyJet, the assessment pursuant to national competition law informed the assessment of a complaint expressly referring to Article 102 infringement, while in Trajektna luka Split d.d. the rejected complaint was not based on Article 102 but on the equivalent national competition law provision.

55. The outlined similarities of the two cases raise the question of whether there are merits in applying Article 13(2) to situations in which the NCAs have reviewed the case under national competition rules equivalent to Articles 101 and 102 TFEU.

2. Merits in the broader application of Article 13(2)

56. It is submitted that there are a number of arguments that favour reliance on Article 13 also when another competition authority has reviewed the same practice on the basis of national competition rules equivalent to the EU competition rules.

  • First, while the possibility to rely on another competition authority’s analysis for the purpose of establishing the limited likelihood of an infringement and rejecting the complaint on this ground saves administrative resources, reliance on Article 13 allows for even swifter decision-making process. Owing to the co-operation and exchanges between the competition authorities, the sameness of the case can be established relatively quickly and no collection of further evidence is needed.
  • Second, while after the ruling in Trajektna luka Split d.d. it is clear that the Commission can rely on the assessment of NCAs when rejecting a complaint under Article 7 of Regulation 773/2004 for limited likelihood of finding an infringement, NCAs, being subject to national procedural rules, will not necessarily have a similar possibility. Article 13, being directly applicable, may be the only instrument that would allow an NCA to benefit from the assessment made by another authority and save administrative resources (provided, of course, that the two authorities have substantive competition law provisions equivalent to Articles 101 and 102 TFEU).
  • Third, from a practical point of view, it should be irrelevant whether the complainant or the decision of the NCA refers to the EU competition rules expressly or not, if the outcome of the application of the national competition rules would be the same as the outcome that would be attained if the EU competition rules were applied. If the national provisions are identical to the EU competition rules, it can be anticipated that the concepts underlying their application are also identical or at least similar. It is true that Article 3(2) of Regulation 1/2003 envisages the possibility for Member States to have stricter rules on unilateral conduct, and that some national laws envisage a lower threshold of the dominance than the EU case law, but if an authority has rejected a complaint under stricter rules, a fortiori, such a complaint can be rejected under less stringent rules.
  • Fourth, in a context in which the national competition rules are similar to the EU competition rules, and the NCAs apply similar concepts under the national and the EU rules, it is useful to distinguish the scenario in which an NCA adopts a prohibition or commitment decision from the scenario in which it rejects a complaint.

2.1 The NCA adopts a prohibition or commitment decision

57. In general, Article 13 can be applied not only when another NCA has rejected the complaint, but also when it has dealt with the case by way of adopting a prohibition or commitment decision. Admittedly, in such scenarios, complainants are unlikely to bring the same allegations before another competition authority, but this cannot be excluded a priori. [59]

58. Article 3(1) of Regulation 1/2003 obliges NCAs to apply Articles 101 and 102 TFEU, along with the national competition rules, where the investigated practice has an effect on trade between the Member States. Decisions of NCAs adopted in breach of this obligation are exposed to legal challenges and invalidity. [60] They cannot, therefore, be regarded as decisions with which a case has been dealt with in the meaning of Article 13(2).

59. On the other hand, if an NCA has correctly applied only national competition law due to the absence of effect on trade, and the complainant brings the same allegations to the European Commission, Articles 101 and 102 TFEU will be inapplicable and the Commission can dismiss the complaint on the grounds that it has no jurisdiction. If the complainant shows that the factual circumstances have changed and the same practice now produces effect on trade, the “factual matrix” of the case dealt with by the NCA will not be the same with the case brought to the Commission and, therefore, Article 13 will be inapplicable.

60. It appears therefore that Article 13 would be rarely used in situations in which the case has been dealt with by way of a prohibition or commitment decision.

2.2 The NCA rejects a complaint

61. Different is the scenario in which NCAs reject a complaint alleging the infringement of national competition laws only. Although the grounds for rejections are governed by national procedural rules and may differ across Member States, the NCAs would usually not spend resources on ascertaining whether the alleged anticompetitive practice has an effect on trade, if they find that the infringement is unlikely or unsubstantiated or there are other reasons for rejecting the complaint on priority grounds. The NCAs will most likely reject the complaint without making explicit reference to effect on trade and/or Articles 101 and 102 TFEU, if the complaint does not invoke these provisions.

62. If the complaint does not raise concerns under national competition laws, a fortiori, it cannot raise concerns under the equivalent EU competition rules and will be rejected under the latter rules too.

63. A position that Article 13(2) is inapplicable simply because the complainant has not expressly invoked Articles 101 and 102 TFEU would lead to a rather formalistic use of the provision. Moreover, the application of Article 13(2) would become dependent on the complainant’s own legal qualification of the case and/or would allow the complainant to keep busy two or more authorities with the same case, by filing parallel identical complaints basing them on national competition laws and on EU competition law. Such an approach would be inconsistent with the GC’s proposition in Si.mobil that for the application of Article 13(1) what matters is the identity of the factual matrix rather than its legal qualification.

VII. Conclusion

64. The approach taken by the GC in the rulings discussed above encourages the use of Article 13 and stimulates a more efficient work sharing between competition authorities in the ECN.

65. The following clarifications made by the GC are worth highlighting.

  • First, the explicit confirmation that Article 13 creates an independent ground for rejection of complaints based on two requirements only—showing “sameness” of the practice and the fact that another authority is dealing or has dealt with it—makes the provision an attractive tool enabling swift decision-making and saving valuable administrative resources.
  • Second, important is the clarification that the application of the provision does not require the competition authority relying on it to take into account whether the authority dealing with the case has financial and technical means at its disposal. Such a requirement would have not only burdened competition authorities with atypical tasks, and made the application of Article 13 extremely difficult, but would have risked creating tensions within the ECN undermining the spirit of cooperation within the system.
  • Third, the clarification that Article 13(2) can be applied not only where the authority in question has rejected the complaint with a formal decision after an in-depth assessment but also where the complaint has been rejected on priority grounds is crucial for the effective use of the provision as many competition authorities often reject complaints on the basis of priority.
  • Fourth, the GC’s interpretation allowing for Article 13(2) to be applied where the authority dealing with the case has relied on an assessment carried out on the basis of national rules sharing common concepts with the EU competition law, in order to draw a conclusion on a complaint alleging an infringement of the EU competition rules, usefully broadens the scope of the provision to ensure administrative efficiency.
  • Fifth, a reading of easyJet and Trajektna luka Split d.d. together suggests that these rulings pave the way to even broader use of Article 13, whereby the provision can be applied also where an NCA has rejected the same complaint on the basis of national competition law equivalent to the EU competition rules and has used concepts similar to those used by the Union courts.

66. These clarifications by the GC will certainly give life to Article 13, encourage its application and contribute to more effective use of administrative resources within the ECN. As competition authorities have the right to use this provision but not the duty to do so, a broad interpretation of the provision cannot encroach on the powers of any of the authorities within the ECN but can only help them work together more effectively.

67. There is also another reason why the clarifications made by the GC and the incentives it provided for the use of this provision come more than ten years after the entry into force of Regulation 1/2003. The application of a provision, which implies reliance on another authority’s assessment, is possible only in a mature system of cooperation between authorities. The past decade of close cooperation and exchanges within the ECN contributed to the endorsement of common concepts and approaches in applying the competition rules. This increases the common trust between the competition authorities and thus their readiness to rely on Article 13. At the same time the increasing number of Member States that have national competition rules, equivalent to the EU competition rules, makes it possible for competition authorities to take advantage of the administrative efficiency inherent in Article 13 and rely on the provision also in situations in which the same practice has been reviewed on the basis of national competition rules. It is submitted that a potential support of this approach by the Union courts would further contribute to an effective use of administrative resources within the ECN and would allow the authorities to focus on cases that raise serious competitive harm. [61]

Footnotes

[1Feedback on earlier drafts of this contribution was kindly provided by Anthony Dawes, Ivan Zaloguin and Assimakis Komninos. The opinions expressed are strictly personal; they do not represent the views of DG COMP or the European Commission. The author alone is responsible for any errors or omissions.

[2Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 001, 04.01.2003, pp. 1–25. The principles set out in the Regulation as regards the cooperation between the Commission and national competition authorities are further developed in Commission Notice on cooperation within the Network of Competition Authorities, OJ C 101, 27.04.2004, pp. 43–53.

[3See for example, Case C-344/98, Masterfoods v. HB Ice Cream, ECLI:EU:C:2000:689, para. 46; Case C-119/97 P, Union française de l’Express (Ufex) and Others v. Commission of the European Communities, ECLI:EU:C:1999:116, para. 88; Case T-24/90, Automec v. Commission of the European Communities, ECLI:EU:T:1992:97, para. 73–77.

[4Regulation 1/2003 leaves the division of case work to the cooperation of the Commission and the Member States’ competition authorities inside the European Competition Network.

[5Case C‑ 17/10, Toshiba, ECLI:EU:C:2012:72, para. 90.

[6Para. 20–25.

[7Ca se T‑201/11, Si.mobil telekomunikacijske storitve d.d., ECLI:EU:T:2014:1096.

[8Case T-431/16, VIMC – Vienna International Medical Clinic GmbH v. Commission, ECLI:EU:T:2017:755.

[9Case T-355/13, easyJet Airline v. Commission, ECLI:EU:T:2015:36.

[10Case T-70/15, Trajektna luka Split v. Commission, ECLI:EU:T:2016:592.

[11Commission Regulation (EC) No. 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty; OJ L 123, 27.4.2004, pp. 18–24.

[12Case T-70/15, Trajektna luka Split v. Commission, ECLI:EU:T:2016:592, para. 31. The possibility for the Commission to consider measures taken by an NCA is not a novelty (see for instance Case T-342/11, CEEES and Asociación de Gestores de Estaciones de Servicio v. Commission, ECLI:EU:T:2014:60, para. 60 and 65). However, in Trajektna luka Split d.d. the GC goes a step further by affirming the possibility for the Commission to adopt the reasoning of the NCA, see section V below.

[13The Commission also adopted a rejection decision pursuant to Article 7(2) of Regulation No. 773/2004 finding insufficient degree of Union interest as regards allegations concerning abuses on the wholesale market.

[14As the GC pointed out, this is made clear in Recital 18 of the Regulation, which states that Article 13 should not prevent the Commission from rejecting a complaint for lack of Union interest. The case law has acknowledged that the Commission may do so, even if no other competition authority has indicated its intention of dealing with the case.

[15Para. 33–34.

[16Para. 21.

[17Para. 69–72.

[18Para. 75–76.

[19For example, the fact that before the NCA the complaint has been alleging discrimination, while before the Commission margin squeeze or predation, should not prevent the application of Article 13, if the complaint in both cases concerns the same practice, based on the same factual circumstances.

[20Para. 20 of the Notice.

[21Para. 48 and 50.

[22Para. 53.

[23Para. 57.

[24See Proposal for a Directive to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, COM(2017) 142 final, available at http://ec.europa.eu/
competition/antitrust/proposed_directive_en.pdf.

[25Para 49.

[26Para. 63–64.

[27Para 66.

[28See Case T-340/04, France Télécom SA, ECLI:EU:T:2007:81, para. 130.

[29Para. 39.

[30Para. 40. Different is the situation where the complaint is launched only with the Commission. If the Commission rejects on the basis of Article 7 of Regulation 773/2004 on the grounds that another authority is well placed to deal with the complaint, the Commission will have to give reasons for this finding.

[31Para. 21.

[32Para. 28–29.

[33Para. 32–34.

[34The Commission decision was supplemented by reasoning based on the low likelihood of finding an infringement.

[35For the purpose of accuracy, it has to be mentioned that easyJet filed in fact three complaints, two of which based on the Law on Aviation and one on Article 102 TFEU. However, the first complaint based on the Law on Aviation was found to be out of date and was not pursued for this reason.

[36Para. 5.

[37The complainant failed the first appeal, and later withdrew its second appeal.

[38Para. 6.

[39Para. 26.

[40Para. 27.

[41Para. 28.

[42The provision lists the type of decisions that NCAs are competent to adopt.

[43Case C-375/09, Tele2 Polska, ECLI:EU:C:2011:270, see para. 19–30.

[44The GC also considered that if Article 13(2) were not to apply where an NCA had rejected a complaint on priority grounds, the Commission would be required to review complaints rejected on priority grounds by NCAs and such a requirement would be tantamount to transferring to the Commission the power to review the decisions of those authorities which is a matter of national courts alone (para. 39). However, it should be kept in mind that if an NCA rejects on priority grounds, there is no obstacle for another authority to take up the case and find an infringement or reject it for different reasons. This certainly does not amount to “review” of the decision by another authority.

[45Para. 44.

[46Para. 49.

[47Para. 51.

[48Para. 22.

[49Para. 23.

[50Para. 24.

[51Para. 31 and 32.

[52Para. 33.

[53The review of the other grounds on which the complaint was rejected - limited impact on the internal market and competence of national courts and national competition authorities to decide on the issue - remain outside the scope of this article.

[54Para. 31–32.

[55Para. 33–34.

[56Complainants are given the possibility to express their views on the preliminary conclusions of the Commission set out in a letter pursuant to Article 7(1) of Regulation 773/2004. Although Article 9, unlike Article 7 of the Regulation, does not require the Commission to address a letter expressing its preliminary views to the complainant in the case of rejections pursuant to Article 13 of Regulation 1/2003, the Commission has adopted the practice of doing so.

[57It can be argued that Article 70(2) of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part, already set out duties for the application of the competition rules to anticompetitive practices by taking into account criteria applicable to the EU competition rules. However, relying on that agreement might have raised a number of questions and make the rejection of the complaint more complex than it needed to be. Moreover, at the time of the Commission decision in Trajektna luka Split d.d there was no guidance from the Union courts on the application of Article 13, as neither the ruling in Si.mobil nor the ruling in easyJet was rendered yet.

[58Para. 28–29.

[59For instance, a complainant may be unsatisfied with the precise reasoning of the NCA because it precludes it from seeking effectively damages and/or the complainant may have exhausted the possibility to appeal the decision before national courts.

[60See J. Faull and A. Nikpay (eds.), The EU Competition Law of Competition, OUP 2014, p. 103. See also L. Kjølbye, Council Regulation 1/2003: The Modernisation Regulation—The Relationship between Community Competition Law and National Competition Laws in a Modernised World, Paper presented at the IBA 7th Annual Competition Conference (Fiesole, October 2003).

[61The Commission has already relied on Article 13 in cases in which an NCA has rejected a complaint on the basis of national competition law. See for instance Commission rejection decision in Case COMP AT 40251, PL Rail transport freight forwarding - PKP Cargo, rejection decision published on 21 March 2017. The action against the decision was dismissed by the General Court as inadmissible (T-880/16, RF v. Commission, ECLI:EU:T:2017:647) and the order of the General Court has been appealed (C-660/17 P, RF v. Commission).

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Ekaterina Rousseva, Article 13 of Regulation 1/2003 animated, May 2018, Concurrences Review N° 2-2018, Art. N° 86514, www.concurrences.com

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