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2.2.7.1. Article 177 rulings

The problems could be relieved in due course by the Community Court in preliminary rulings under Article 177 of the Treaty. In particular, some clear guidelines from the Community Court on a more harmonised approach to severance and remedies would be helpful. It could take a very long time, however, before a particular issue arises before the Court” and until then, uncertainty r u l e s .

Many, if not most, cases involving Articles 85 and 86 concern interlocutory proceedings and in respect of those cases there tends to be some resistance to references for preliminary rulings. The time required for such rulings makes them unsuitable for interlocutory proceedings. The Community Court has held that the obligation to refer under Article 177 para 3 :

"does not apply in interlocutory actions provided that each of the parties is entitled to institute proceedings on the substance and that during such proceedings any question of Community law provisionally decided in the summary proceedings may be reexamined and be the subject of a reference under Article 177"” .

” See 2.3.3. below.

” And the Community Court tends strictly to confine its rulings to the issues precisely requested. See 2.2.7.3. below.

” Morson and Jhanian v State of the Netherlands, cases 35 and 36/82, [1982] E.C.R. 3723. op. cit. from Braakman, para 85 of his contribution on the Netherlands, The Application of Articles 85 and 86 of the EC Treaty by national courts in the Member States. compiled by Braakman, published by the Commission, DG IV, July 1997.

2.2.7.2. Commission Notices

Another option would be for the Commission to issue further Notices offering guidance and assistance to Member States in the enforcement of EC competition law or recommending mutual assistance or cooperation between national courts.

2.2. 7.3. Legislation under Article 87, 100, or lOOA of the Treaty

Another, perhaps more effective, possibility would be the adoption of Regulations or Directives under article 87 (2) (e) of the Treaty or under Article 100 or lOOA to harmonise the most important substantive procedural rules of the Member States relating to time limits, discovery, evidence, severance and remedies in EC competition law cases. The various compliance Directives adopted in the field of public procurement may form an exemplary precedent®®. Even in the US, however, the different States have not harmonised their rules of procedure, but the Field Codes and Restatement have reduced the differences.

The Deringer Report as early as in 1960 considered that the question of remedies for breach of Articles 85 and 86 should be included in Regulation 17 but thought that no uniform rule should be proposed until a study of the laws if the Member States had been made®"'. We saw at 2.2.3. above that such a study was made for the Commission and that the conclusion was moderately positive in that each Member State could, in theory, provide remedies under domestic law for breaches of Articles 85 or 86 regardless the substantial differences between the procedural laws of the Member States®®. This positive conclusion may have deterred the Commission from taking any legislative initiatives

®® See also Whish, The Enforcement of EC Competition Law in the Domestic Courts of Member states, Current and Future Perspectives on EC Competition L aw. 14 European Monographs, 1997, ed Gormley, p . 88.

Report of the Committee of the European Parliament. Doc 104/1960-1961.

in this matter.

Kerse noted that, although a uniform solution may be thought desirable, there is much to be said for waiting until inadequacies or shortcomings of national law are clearly demonstrated^. This is true but, considering the substantial confusion that currently still exists, it is submitted that it may take a very long time before these shortcomings have crystallised in judgments. The current case-by-case solution through preliminary rulings is also taking too long. Not all requests for such rulings are granted and, if they are, the Community Court seems not often prepared to grasp opportunities to deal with the above issues in a wider sense. It tends to confine its rulings to the issues precisely requested.

In the Banks^° case, for example, the Advocate General was clearly prepared to deal in a general way (not only under the ECSC Treaty) with the issue of damages and the binding effect on national courts of formal negative clearances and comfort letters issued by the Commission, but the Court refused to go beyond the ambit of the specific situation and the provisions of the ECSC Treaty and did not go into the issue of damages under EC law.

The principle of subsidiarity^^ the Commission's active policy of encouraging decentralisation by virtue of attaching priorities to its case load^ and its Notices on cooperation with national courts” and national authorities” have brought domestic proceedings to the foreground and it is submitted that

Kerse, EC Antitrust Procedure. 3rd ed, 1994, p 370. ” Case C 128/92, [1994] E.C.R. I 1209, see 2.1. above. ” See 1.3. and 1.5. supra.

” See 1.4.2. supra.

” Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 EEC, O.J. 1993 C 39/6,

[1993] 4 C.M.L.R. 12.

” Notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Article 85 or 86 of the EC Treaty. O.J. C313/3 of 15.10.97.

specific legislative measures on the enforcement of EC competition law are needed soon in order to counter the growth of a general aversion against domestic proceedings because they seem ineffective, indiscriminate, or overly complicated^.

2.2. 7. 4. Database of judgments by national courts of the Member States

Whilst considering the need for measures to harmonise procedural rules, it might be useful if a database were set up containing all EC competition law decisions rendered by all national courts in the EC.

At this moment there is no organised compilation of national judgments. Each year, the Commission urges the Member States to inform it of cases decided under Article 85 and 86. Some Member States send all the decisions involving Articles 85 and 86, some only send the most important cases and some send none at all because the numbers are not compiled and recorded within the Member State itself. Some of the cases received by the Commission are discussed in its Annual Reports on Competition Policy. The Community Court compiles its own statistics of cases that have come to its attention by way of its function.

The database could be compiled in the original languages with short summaries in one or two of the main languages enabling identification of the central issues. Alternatively, a multi­ lingual service could be set up at the Commission, that could, upon request, perform the search for similar precedents or provide assistance.

This database would help the Commission to identify the

See also Winter stein: A Community Right in Damages for Breach of EC Competition Rules? [1995] 1 E.C.L.R. 46, at 52:

"It would indeed be a strange irony if the result of an increasingly decentralised enforcement of the EC competition rules were to be an undermining of their practical effectiveness."

He also remarked that, in addition to basing the claim for damages on Community law alone, a further step would be to contemplate common procedural rules for pleading claims of damages (footnote 21 on p 52 of his article) .

areas in which the scope for divergence is greatest and where action should be taken to address the situation. The domestic procedural rules that differ most could be remedied by harmonising legislation.

The database would also be useful to national courts having to apply Article 85 or 86 in that it would enable them to compare (economic)’'® assessments made and decisions taken by other courts on similar issues. It could also help them in deciding whether or not to make a reference for a preliminary ruling. This could facilitate a more uniform approach by the judges themselves, not in respect of those areas in which they are tied by procedural rules or restricted by parallel proceedings before the Commission, but in respect of those areas in which they enjoy some discretion.