19th ANNUAL CONFERENCE FORDHAM INTELLECTUAL PROPERTY LAW INSTITUTE Fordham University School of Law...

19th ANNUAL CONFERENCE FORDHAM INTELLECTUAL PROPERTY LAW INSTITUTE

Fordham University School of LawThurday and Friday, April 28-29, 2011

Prof. Hugh C. HansenDirector

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

19th ANNUAL CONFERENCE FORDHAM INTELLECTUAL PROPERTY LAW INSTITUTE

Fordham University School of LawThurday and Friday, April 28-29, 2011

Prof. Hugh C. HansenDirector

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 package and

Regulation No. 1/2003.

• 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

• Authorization exemption system

• Notification system

NOW

• Implementation of Art. 101 and 102 TFEU in full

• Decentralization

• System of directly applicable exception


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 revoked only by the Commission


NEW REGULATIONRegulation 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


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 101-102 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


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


BLANKS

• Lack of a relevant distribution criteria (Notice on cooperation within the Network of Competition Authorities may support it)

• Lack of conflicts settlement system


RISKS

• Possible contradictions among the decisions (non erga omnes)

• Renationalization of competition policy

• Juridical uncertainty

• Over-sharpening of investigation instruments

• Threat to secrecy


COMMISSION IN THE 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

CO-ORDINATION

(AMICUS CURIAE)

INFORMATION NETWORK


ROLE OF THE COMMISSION AS AMICUS CURIAE

Required by the judges (Art. 15 Reg. 1 and points 21-26 of the Notice Commission / Judges)

Information

Opinions

At Commission own initiative

Written observations

Oral observations (subject to authorization)


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


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


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


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


CHARGES OF THE JUDGES

• They cannot adopt decisions which contrast with Commission ones

• 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


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


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


AUTHORITIES AND COURTS OF THE MEMBER STATES

• Differences among them

• Possible disagreements

• Difficulty to define powers

• Forum shopping


DIFFICULTIES

• Acquisition limits

• Possible insufficiency of trial means

• Lack of specialized Courts

• Lack of specific economic knowledge

• Lack of coherent implementation


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


DAMAGE REFUNDS

Existence of damage

Infringement

Negligence - Fault

Evidence of the actual damages

Chain of causation

Amount of damages

Lost profits

Increased damages

Image damage


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

19th ANNUAL CONFERENCE FORDHAM INTELLECTUAL PROPERTY LAW INSTITUTE Fordham University School of Law...

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