Overheidsmaatregelen en het toezicht van nationale mededingingsautoriteiten

Abstract

When competition authorities investigate anti-competitive conduct of undertakings, they can be confronted with state measures that have contributed to this conduct. In the CIF judgment the Court of Justice (‘Court’) has held that national competition authorities (‘NCAs’) have to disapply such state measures, if they are in breach of EU law. Although the CIF judgement seems to be quite spectacular, the question arises whether the judgment has actually increased the influence of NCAs on government agencies and the regulatory measures they take. This is the main subject of this doctoral thesis. NCAs can only exercise their power to disapply state measures in the context of procedures on the basis of Article 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). One could say that the power of NCAs to disapply state measures is an ‘implicit’ power which is ancillary to their ‘explicit’ power to enforce Article 101 and 102 TFEU. The CIF judgement is based on the Fratelli Costanzo judgment, where it has been established that administrative authorities have to disapply state measures that are incompatible with EU law. This presupposes that an administrative authority ‘bumps into’ a measure of the national government when exercising the powers it has explicitly been entrusted with (the enforcement of Article 101 and 102 TFEU). The CIF judgment does not entitle NCAs to act solely against state measures, like the Commission can when initiating an infringement procedure against a Member State (Article 258 TFEU). Although the CIF judgement focuses on the power of NCAs to disapply state measure that do not leave any room for competition (and consequently form a ‘legal shield’ against enforcement actions of NCAs), it is clear that NCAs also have the power to disapply state measures that do leave (some) room for competition. This may seem surprising because the compatibility of such measures with EU law is (strictly speaking) not relevant for the question whether the NCA concerned has the power to act on the basis of Article 101 and 102 TFEU. If there is room for competition, NCAs can apply these provisions regardless of whether any state measure that may have contributed to the anti-competitive conduct of the undertakings in question, is compatible with EU law. NCAs are nevertheless competent to disapply such state measures, even if there is room for competition and – as a result - Article 101 and 102 TFEU apply. In such cases the ‘disapplication’ of the state measure is not a necessary step for the NCA in order to enable itself to enforce Article 101 or 102 TFEU, but merely a ‘legal opinion’ (or perhaps an obiter dictum) with respect to the compatibility of the state measure with EU law. The application of the CIF judgment is not voluntary, but mandatory for NCAs. Indeed, the Court has held that NCAs have a duty to disapply state measures that are contrary to EU law. This is likely to have increased the influence of NCAs on regulatory measures of national government agencies