19th ANNUAL CONFERENCE
FORDHAM INTELLECTUAL PROPERTY LAW INSTITUTE
Fordham University School of Law
Thurday and Friday, April 28-29, 2011
Prof. Hugh C. Hansen
Director
An analysis of the relationship between
private and public enforcement of
competition law from the point of view of
European and Italian Judges
Marina Tavassi – Presiding Judge, IP Specialised Court of Milan, Italy
Main topics
• The
modernization
Regulation No. 1/2003.
package
and
• The role of National Courts in the field
of competition.
• The role of the Commission towards
National Courts.
• Damages claims in private enforcement.
• The harmonization of the systems of
collective redress in EU Member States.
Marina Tavassi – IP Specialised Court of Milan
BEFORE
• Implementation of
Art. 81.1 and 81.2
Art. 82 by National
Authorities and Courts
• Granted to the
Commission Art. 81.3
• Monopoly
• Suspension by National
Authorities and Courts
NOW
• Implementation of Art.
101 and 102 TFEU in
full
• Decentralization
• System of directly
applicable exception
• Authorization exemption
system
• Notification system
Marina Tavassi – IP Specialised Court of Milan
REGULATION No. 17 / 1962
INDIVIDUAL
EXEMPTION
CREATED
RIGHTS WITH EFFECT ERGA OMNES
• It was retroactive at notification time
• Limitation period
• It could be subordinated to some
conditions
• National Authorities did not modify it
• It could be
Commission
revoked
only
Marina Tavassi – IP Specialised Court of Milan
by
the
NEW REGULATION
Regulation No. 1/2003
• Administrative act is no longer required in order
to avoid the prohibition of restrictive agreements
under Art. 101.3
• Agreements satisfying conditions are effective
starting from their stipulation
• "Legal exception" is to be invoked by any
interested party
• All the statements have to be formulated just in
the case of judiciary or administrative litigations
• Limitation period shall be interrupted
• Withdrawal of the benefit of a block exemption
by national Authority
Marina Tavassi – IP Specialised Court of Milan
COMMISSION NOTICES
(O.J. C 101, 27.04.2004)
 Co-operation within the network of Competition Authorities
 Co-operation between the Commission and the Courts of the EU
Member States in the application of Articles 101 and 102 TFEU
 Handling of complaints by the Commission under Articles 101 and
102 TFEU Informal guidance relating to novel questions concerning
Art. 101- 102 that arise in individual cases (guidance letters)
 Guidelines on the effect on trade concept between the Member
States contained in Art. 101 and 102
 Guidelines on the application of Art. 101.3
Regulation N. 773/2004 of 7 April 2004 relating to the conduct of
proceedings by the Commission pursuant Art. 81-82 EC (now 101102 TFEU) (O.J. L 123, 27.04.2004, p.1824)
Marina Tavassi – Court of Appeal of Milan
EFFECTS
• Real involvement of National Judges and
Authorities
• Reduction of Commission burden
• Resulting opportunity to focus on its
institutional issues
• Role of leader played by the Commission
in order to obtain the consistent
enforcement of Community competition law
• Overcoming the abuses of the notification
system
Marina Tavassi – IP Specialised Court of Milan
ADVANTAGES
1. Making the enforcement of penalties
more effective
2. Avoiding the risk that “notification”
is equal to impunity
3. Reducing the burden on companies
4. Improving responsibility for companies
5. Strengthening common competition
culture
Marina Tavassi – IP Specialised Court of Milan
BLANKS
• Lack of a relevant distribution
criteria
(Notice on cooperation within the Network of
Competition Authorities may support it)
• Lack of conflicts settlement system
Marina Tavassi – IP Specialised Court of Milan
RISKS
• Possible contradictions among the
decisions (non erga omnes)
• Renationalization of competition
policy
• Juridical uncertainty
• Over-sharpening of investigation
instruments
• Threat to secrecy
Marina Tavassi – IP Specialised Court of Milan
COMMISSION IN THE NETWORK
CO-ORDINATION
(AMICUS CURIAE)
INFORMATION NETWORK
 Collection of the measures taken by the
Courts of all Member States
 Giving opinions
 Intervention with its own observations
 Indication of the competent Authorities
Marina Tavassi – IP Specialised Court of Milan
ROLE OF THE COMMISSION
AS AMICUS CURIAE
Required by the judges
(Art. 15 Reg. 1 and points
21-26 of the Notice
Commission / Judges)
At Commission
own initiative
Information
Opinions
Written
observations
Oral
observations
(subject to authorization)
Marina Tavassi – IP Specialised Court of Milan
INTERVENTION OF THE COMMISSION
REQUIRED BY THE JUDGES
INFORMATION
• About running proceedings
• About other cases which are similar or in any
case useful
Limits of confidentiality (Art. 287 EC)
• Business secrets
• Confidential information
Marina Tavassi – IP Specialised Court of Milan
INTERVENTION OF THE COMMISSION
REQUIRED BY THE JUDGES
OPINIONS
• Matters concerning the enforcement of
Community Competition Law
• Matters concerning economic subjects
of fact and law
Opinion is not mandatory
Marina Tavassi – IP Specialised Court of Milan
INTERVENTION AT COMMISSION
OWN INITIATIVE
• Written or Oral Observations about matters
relating to the application of Art. 81 and 82
where necessary to their uniform
implementation (Art. 15.3 Reg. no.1, points 31-35
Notice Commission/Courts)
• Subject: economic and juridical analysis of the
facts regarding the pending case
• Procedure: according to the rules and routine
of the Member States, to be defined if necessary
Marina Tavassi – IP Specialised Court of Milan
ASSISTANCE TO THE COMMISSION
BY NATIONAL JUDGES
(Points 36-40 Notice Commission / Courts)
• Transmission of documents in order to
allow the Commission to present its own
Observations
• Transmission of the decisions
• Assistance on what concerns the
investigations fulfilled by the
Commission
Marina Tavassi – IP Specialised Court of Milan
CHARGES OF THE JUDGES
• They cannot adopt decisions
contrast with Commission ones
which
• They have to evaluate whether to suspend
the proceedings while waiting for the
Commissions’
decision
(possible
provisional measures)
• Transmission to the Commission of copy of
the decisions submitted to Articles 101-102
Marina Tavassi – IP Specialised Court of Milan
RESPONSIBILITIS OF NATIONAL COURTS
OF THE MEMBER STATES
• Giving information upon request of the
Commission and Competition Authority
• Submission of written observations
presented by the Commission and
National Competition Authority
• Authorization to submit oral observations
• Adopting authorization measures or
coercive measures, which are necessary
for
Commission
and
Competition
Authority investigations
Marina Tavassi – IP Specialised Court of Milan
RISKS OF THE NETWORK
• Difficulty of relationship between National
Judges and Commission (Notice on
cooperation Commission/Courts)
• Transmission of confidential information
(procedure of the Notice)
• Uncertainty in application of legal defense
Marina Tavassi – IP Specialised Court of Milan
AUTHORITIES AND COURTS
OF THE MEMBER STATES
• Differences among them
• Possible disagreements
• Difficulty to define powers
• Forum shopping
Marina Tavassi – IP Specialised Court of Milan
DIFFICULTIES
• Acquisition limits
• Possible insufficiency of trial means
• Lack of specialized Courts
• Lack of specific economic knowledge
• Lack of coherent implementation
Marina Tavassi – IP Specialised Court of Milan
ADVANTAGES OF
NATIONAL JURISDICTIONS
• Granting refunds for damages
• Pronunciation over payment claims or
contractual obligations
• Declaration of nullity submitted to Art.
101.2 and evaluation of the consequences
• Adoption of provisional measures
• According protection on the basis of
Community and National Law
• Imposition of the reimbursement of legal
expenses
Marina Tavassi – IP Specialised Court of Milan
DAMAGE REFUNDS
Infringement
Existence
of damage
Amount of
damages
Negligence - Fault
Evidence of the
actual damages
Chain of causation
Lost profits
Increased damages
Image damage
Marina Tavassi – IP Specialised Court of Milan
Collective redress
• Private enforcement of EU law can be pursued,
first of all, by way of individual redress (natural
or legal persons).
• Where the same breach of EU law harms a wider
group of citizens and businesses, a collective action
or a representative action will be useful
• This system could simplify the process and reduce
costs
• Two different forms:
 injunctive relief
 compensatory relief
Working Document-Public Consultation
“Towards a coherent European
approach to collective redress” (I)
SEC(2011)173 final, 4 February 2011
• The Commission has issued a consultation document to identify
common legal principles relating to Collective redress
• The aim is to develop a coherent European approach to this
subject
• For what reason? the Commision considers that an effective
and efficient collective redress system would be capable of
delivering certainty of law and fair outcomes within a
reasonable time frame, while respecting the rights of all parties
involved
• Europe 2020 strategy: COM (2010)2020, 3 March 2010
• EU Council Document No. 17024/09 of 10/11 Dec. 2009
• Regulation No. 2006/2004 on Consumer Protection Cooperation
Marina Tavassi
“Towards a coherent European
approach to collective redress” (II)
SEC(2011)173 final
Procedures for the collective claim of compensatory relief
have been introduced in the majority of Member States
The mechanisms vary widely with regard to category of
victims, the effect of judgements, etc.
Regarding the members of the group concerned:
the decision
i) only binds those who have expressly consented to the
proceedings (“opt-in”, e.g. Italy, Sweden)
ii) the decision becomes binding for all members of the
group unless they “opt out” (Portugal, Denmark,
Netherlands)
Marina Tavassi
“Towards a coherent European
approach to collective redress” (III)
SEC(2011)173 final
 As general principles to guide possible future EU
initiatives on collective redress:
• The need for effectiveness and efficiency of redress
• The importance of information and of the role of
representative bodies
• The need to take account of collective consensual
resolution as a means of alternative dispute resolution
• The need for strong safeguards to avoid abusive
litigation
Marina Tavassi
“Towards a coherent European
approach to collective redress” (IV)
SEC(2011)173 final
• 34 questions
• Submissions by the end of April 2011
[email protected]
• The Commission expects to publish a Communication
on the results of this consultation
• Future commitments for the Commission:
i) to first try to identify a general legal framework for
collective redress across the EU
ii) to make a specific proposal of antitrust damages
action during the second half of 2011