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Competition Policy

Amicus curiae observations - Antitrust

Pursuant to Article 15(3) of Regulation 1/2003, the Commission, acting on its own initiative, may submit written observations ("amicus curiae" observations) to courts of the Member States where the coherent application of Article 101 or 102 TFEU so requires. With the permission of the court in question, it may also make oral observations.

In its Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 101 and 102 TFEU, the Commission has explained its policy regarding the application of Article 15(3) of Regulation 1/2003:

 

The competent national court gave permission to publish the following amicus curiae observations:

2020

Case:

National Court:

Commission observation:

National Court judgment:

Hungarian Banking Association / the Hungarian Competition Authority

Kúria (HU)

09/01/2020 hu

22/01/2020 hu

 

2019

Case:

National Court:

Commission observation:

National Court judgment:

Flynn Pharma Limited & Pfizer v/ the Competition and Markets Authority (CMA)

Court of Appeal (UK)

14/06/2019 en

10/03/2020 en

 

2018

Case:

National Court:

Commission observation:

National Court judgment:

Visa and MasterCard MIFs (several cases under appeal)

Court of Appeal (UK)

21/02/2018 en 06/04/2018 en

04/07/2018 en

Summary and background:

The Commission submitted amicus curiae observations to the UK Court of Appeal in the context of three damages claims that will be heard together concerning Multilaterally agreed Interchange Fess (MIF) set by Visa and MasterCard, respectively.

The cases concern the analysis of the legality of MIFs under Article 101 TFEU and include issues related to the relevant market for the purposes of the finding of a restriction of competition, the taking into consideration of the two-sided nature of the market, the objective necessity of MIFs, the establishment of the relevant counterfactual, and the calculation of an exemptible MIF level.

The intervention of the Commission aims at ensuring a uniform application of Article 101 TFEU to MIFs in view of the jurisprudence of the European Court of Justice, namely Case C-382/12 P - MasterCard Inc. and Others v. Commission.

 

2017

Case:

National Court:

Commission observation:

National Court judgment:

EURIBOR

High Court of Justice, Commercial Court (UK)

27/01/2017 enen

Case still pending

Keywords: disclosure of documents – damages for breach of contract – use in private litigation of documents arising from investigation by competition authorities – contemporaneous documents – settlements – leniency statements – confidentiality ring

Summary and background:

The Commission submitted amicus curiae observations to the UK High Court of Justice relating to the disclosure of documents, some of which were from the Commission's file in a cartel case which, at the date of adoption of the relevant decision, was not closed against all the parties under investigation. The context of the disclosure was peculiar, since the documents were claimed in Court proceedings that are not for the application of Art. 101 or 102 TFEU. In such cases particular attention should be given to ensuring that the effective enforcement of competition rules is not undermined. The Commission considered Art. 15(3) of Regulation 1/2003 provided a legal basis for the Commission to intervene, since the proceedings gave rise to issues relating to Art. 101 and 102 TFEU and potentially called into question the coherent application of those Articles. Regarding the possibility to disclose documents, the Commission considers that the issue should be determined differently depending on the various categories of documents: 1. contemporaneous documents may be disclosed, notably if they are not identified as documents that were part of the Commission's file; 2. in the event that the public version of a settlement decision does not provide sufficient disclosure, the settlement decision as notified to the settling party may be disclosed on condition that: (i) any third party information which is not disclosed in the public version and not relevant to the proceedings is redacted and (ii) disclosure is made within a confidentiality ring 3. leniency statements and settlement submissions should not be disclosed, in order to maintain the effectiveness of public enforcement of the competition rules; 4. other relevant material may be disclosed, subject to any redactions necessary to remove identifiable references to leniency statements and settlement submissions.

 

2015

Case:

National Court:

Commission observation:

National Court judgment:

Competition law in the agricultural sector

Court of Cassation (France)

27/02/2015

Preliminary ruling procedure under Article 267 TFEU

Keywords:

applicability of competition law in the agricultural sector – primacy of EU law over national provisions - general and specific derogations under the Common Agricultural Policy (CAP) – special rules for producer organisation and associations of producer organisations – restriction by object – single and continuous infringement – Art 101(1) TFEU - Art 267 TFEU

Summary and background:

The Commission submitted amicus curiae observations to the French Court of Cassation in the context of a case concerning the applicability of competition law in the agricultural sector. In the underlying case, the French NCA found an infringement of Article 101 (1) TFEU (and Articles L-420-1 of the French Commercial code) and imposed fines on several chicory producer organisations and associations of producer organisations. The appeal court quashed the NCA's decision based, inter alia, on the ground that fixing of minimum prices and volumes and exchanging commercially sensitive information by chicory producers does not constitute an infringement of competition rules. According to the appeal court it was not demonstrated by the NCA that the producers exceeded the scope of their legal missions conferred on them by the agricultural legislation (EU and/or national). Accordingly, the appeal court considered that the applicable agricultural legislation authorised the practices of chicory producers and made Article 101(1) TFEU inapplicable to the behaviour at hand. The NCA brought the case before the French Court of Cassation. As regards the non-applicability of competition rules in the agricultural sector, namely in the fruit and vegetables sector, the amicus curiae observations of the Commission refer in general terms to the existence of general and specific derogations from EU competition rules. In that context the Commission also refers to the fact that both general and specific derogations from EU competition rules should be interpreted in a restrictive manner and be limited to the specific activities contained in the derogations. Furthermore, the Commission stressed that, at the time of the facts of the case at hand, it held exclusive competence to apply the general derogation from EU competition rules and that no such derogation was granted to the practices at hand (Art. 2(2) of Council Regulation 26/1962). As for the applicability of the national law and the derogations from competition rules based on it, the Commission recalls the obligation of national courts to set aside the provisions of national law that are incompatible with EU law (even if they had not been formally repealed yet). Another reasoning would be in breach of the basic principle of primacy of EU law (6/64 Costa Enel). The amicus curiae observations of the Commission refer, on a secondary basis, also to the interpretation of the notions of "by object infringement" and the "single, complex and continuous infringement" of competition rules. The Court of Cassation suspended the proceedings and launched the preliminary ruling procedure at the ECJ under Article 267 TFEU.

 

> Amicus curiae observations archive (2006 - 2014)