Preliminary ruling and Competition Law: Some reflections for National Judges

EU Competition Law

Between Public and Private Enforcement

Edited byBernardo Cortese

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List of Editor and Contributors

Filippo Amato is Of Counsel in the Brussels office of Jones Day, and member of theBrussels and Turin Bar. Before joining Jones Day, he served as an official of theEuropean Commission, at the Directorate General for Competition and at the Commis-sion’s Legal Service. Between 2002-2003 he was Référendaire at the Court of Justice, atthe cabinet of former Advocate General Antonio Tizzano. He received his law degree in1995 from the University of Turin, an LL.M. in EU Law from the College of Europe in1998, and LL.M. from Columbia University in 2001.

Prof. Bernardo Cortese, PhD, is Associate Professor of International Law at theUniversity of Padua School of Law, Department for Public Law, International and EULaw. He lectures in European Union Law at the main Padua campus of the School ofLaw, and in International and European Trade Law at the Treviso campus of the sameSchool. From 2001 to 2004 he was Référendaire at the European Court of Justice, in theChambers of Prof. Antonio Tizzano.

Daniele P. Domenicucci is an Italian lawyer who has held the position of Référendaireat the General Court (Luxembourg) since 2005. He was a member of the Bar of Pescara(Italy) from 1992 until 2005 and practiced as a senior associate in the Brussels office ofthe Italian firm Bonelli Erede Pappalardo from 1999 to 2005. He taught a “Jean Monnet”module in EC law at the University of Camerino (Italy) from 1998 to 2005 and hecurrently lectures on EU Litigation at the University of Lorraine (France). He is a regularguest-speaker at universities and professional training courses for lawyers and judges.

Mr. Fabio Filpo is an Italian lawyer with significant EU competition law experience.Since 2002 he has practised in Brussels and is currently a senior associate at the lawfirm FratiniVergano - European Lawyers. He often acts as a competition law expert ininternational projects, is a frequent speaker at conferences, seminars and trainingcourses and regularly publishes articles about EU competition law.

Paolo Iannuccelli, LLM (College of Europe, Bruges), LLM (University of Michigan LawSchool), PhD (University of Perugia and Bocconi University, Milan), admitted

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to the Italian Bar, practiced in several international law firms, before joining in 2005 theChambers of Bo Vesterdorf, then President of the Court of First Instance of the EC. Heregularly lectures in EU procedural law at SciencesPo (Paris). From 2006 he isRéférendaire at the European Court of Justice, in the Chambers of Judge AntonioTizzano.

Francesco Liberatore is a Senior Associate at Jones Day in London. He advises clientson all aspects of the application of antitrust and competition laws. He represents clientsin OFT, Competition Commission and EU Commission proceedings, and in judicialproceedings before the Competition Appeal Tribunal, the High Court of Justice and theEuropean Courts. He authored various articles on regulatory and competition lawissues published by, amongst others, the International Bar Association and theAmerican Bar Association. Regular speaker at events including the European Commis-sion’s competition law training seminars for the national judiciary, Francesco isrecommended in various legal directories by clients and peers for his competition lawexperience (Chambers Global 2013 and Legal 500 UK).

Prof. Pietro Manzini, PhD, is barrister and full Professor of International Law and EULaw at the University of Bologna, Department of legal Studies. From 1998 to 1899 hewas Référendaire at the Court of First Instance. From 2008 to 2011 he was SecondedNational Expert at the Legal Service of the European Commission. He has been externallawyer for the European Commission in competition litigations before the EU courts.

Roberto Mastroianni is full Professor of European Union law at the University“Federico II” in Naples, Italy, where he also teaches Media Law. He graduated in Lawat the University of Florence, Italy (1987), and holds a Ph.D. in European Law from theUniversity of Bologna (1991) as well as a LL.M. from the Penn State/Dickinson Schoolof Law in Carlisle (PA), USA (1992). He specialized in International Copyright Law andin European Mass Media Law at the Universities of Geneva, Amsterdam and New York(NYLS). Former Researcher of International Law at the University of Florence (1992-1997), he served as Référendaire at the European Court of Justice in Luxembourg, inthe Cabinets of Advocate General Giuseppe Tesauro and Antonio Saggio (1997-2000).

The Hon. Mr. Justice William M. McKechnie, who was born in 1951, was educatedat Presentation Brothers College, University College Cork, from which he graduated in1971, University College Dublin and King’s Inns, Dublin.

He was called to the Bar in 1972 and admitted to the Inner Bar in 1987. As aBarrister he practised in the area of commercial, chancery and local authority law, andhad a special interest in medical negligence.

He held a number of senior positions in the Bar Council of Ireland for severalyears and was elected Chairman in 1999 and re-elected in 2000.

He was appointed a High Court Judge in 2000 and took charge of the competitionlist in 2004. As such he presided over all competition cases both civil and criminal. Hemade the first Declaration of Incompatibility under the European Convention onHuman Rights Act, 2003, in the Transgender case of Foy –v- An t-Ard Chláraitheoir.


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Mr. Justice McKechnie was Chairman of the Valuation Tribunal from 1995 to 2000 andsince 2002 has been the Chair of the Editorial Board of the Judicial Studies InstituteJournal. He has been a member of the Courts Service Board and also of the RulesMaking Committee

He was appointed to the Supreme Court in June 2010.In 2010 he was elected President of the Association of European Competition Law

Judges, which represents each of the 27 Member States of the European Union, as wellas Judges from the Court of Justice and the General Court of the European Union andfrom the EFTA Court. He is the third President of the Association, following SirChristopher Bellamy and Dr. Joachim Bornkamm.

He has written several papers, participated in and presided over many confer-ences and delivered the 4th Annual CCJHR Lecture at UCC on the 4th March 2010. Heholds a Masters Degree in European Law.

He is a Bencher of the Honourable Society of King’s Inns.

Prof. Francesco Munari, PhD, is full Professor of European Union law at the Universityof Genoa, Department of Law, where he teaches also international law. He is also alegal practitioner at the law-firm Munari Giudici Maniglio Panfili of Genoa, Italy.

Gabriella Muscolo, Judge sitting in the specialist section for IP and Competition Law-Court for undertakings in Rome. Italian Member of the Enlarged Board of Appeal of theEuropean Patent Office. Lecturer in Commercial Law in the post-graduated School ofLaw at La Sapienza Università di Roma. Author of several contributions on IP andCompetition Law published in Italy and abroad.

Stefano Nicolin, PhD, is a lawyer, member of the Italian Bar, and Honorary Fellow inEuropean Union Law at the at the University of Padua School of Law, Department forPublic Law, International and EU Law. He is also Temporary Lecturer of InternationalLaw at the Treviso campus of the Ca’ Foscari University of Venice.

Prof. Lorenzo Federico Pace is Professor of EU Law, University of Molise, and Memberof the Bar of Rome, Italy.

Alice Pezard is Of Counsel in Heenan Blaikie AARPI since March 2013Former Judge Alice Pezard received her law degrees from the University of Paris

and was accepted at the Bar. She then completed her studies at the “Ecole nationale dela Magistrature”, and was appointed judge in 1976. She worked as a prosecutor in theCourts before being appointed as a member of the Ministry of Justice where shesupervised the implementation of anti-trust law in the oil industry. In 1983, she was putin charge of French proceedings in the European Human Rights Courts in Strasbourg(France) . In 1986, she became legal Adviser to Mr Jean-Claude Trichet, Treasury Head,then From 1995 until 2002, head of the legal affairs and tax Department in the Frenchand International banking Group “Caisse des dépôts et Consignations”. After five years( 2002,-2007) as a “President de chambre”, in the Paris Court of Appeals, in charge oftrade and anti-trust law, financial services, telecommunications and intellectual prop-erty, she was appointed Judge in the Supreme Court in the Economic and Finance


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Chamber. In parallel, she has held teaching positions at the University of Paris and abusiness school.

Main publications: “The future of European finance” ; City of York (Paris, 1995);“Codified French monetary and financial regulations” (LexisNexis, 2004, preface byJ.-Cl. Trichet, 2006 preface by M. Camdessus , 2009 preface by Mrs Lagarde);“Corporate Governance in American and French law” (Documentation française);“Droit et Déontologie des activités financières : comparaison internationale”(Germany, United Kingdom, United States, Japan); “Corporate governance : perspec-tives internationales »“Droit et Déontologie des activités financières en Allemagne”.

Dario Ruggiero, partner at Cintioli & Associati, is a lawyer specialized in EU and Italiancompetition law. He regularly appears before Competition Authorities and Courts torepresent leading corporate clients, both in public and in private enforcement. Hisactivity particularly focuses on postal services, telecommunication, insurance, energyand gas, air transport services, gaming and betting, environment. He is guest lecturerin EU and Italian competition law and speaker at meetings and seminars, as well asauthor of articles and monographic pamphlets, on postal services and private enforce-ment.

Iannis Symplis is a Maître des Requêtes (Associate Justice) at the Council of State(Supreme Administrative Court) of Greece, specializing in taxation, competition, IP,and public procurement. Member of the Executive Board of the AECLJ since 2009.From 2009 to 2012 he was a member of the Law Commission.

Igor Taccani is an Italian qualified lawyer and an EU official currently serving as aRéférendaire at the Court of Justice of the European Union (cabinet of AdvocateGeneral Mengozzi). From 2008 to 2012 he served as a Référendaire at the General Courtof the European Union. Prior to joining the EU Courts, Mr Taccani practiced competi-tion law in Brussels in two international law firms (Latham & Watkins and Shearman& Sterling). He has also worked in three different competition authorities (EuropeanCommission, Italian Competition Authority and German Federal Cartel Office). Heregularly lectures EU and Italian Competition Law at universities and he currentlyteaches Public Law at the University of Trier (Germany). He received his law degreeSumma Cum Laude from the University of Genoa, Italy, and he holds an LLM SummaCum Laude from the University of Cologne, Germany, and a Public Certificate inInternational Law from the University of London (Queen Mary College).


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Summary of Contents

List of Editor and Contributors v

Foreward xxiii

Preface xxv

PART IGeneral Problems: Goals and Scope of EU Competition LawBernardo Cortese 1

CHAPTER 1The Goals of EU Competition LawPietro Manzini 21

CHAPTER 2Defining Agreements and Concerted Practices Restricting Competition inEU Competition LawFilippo Amato 35

CHAPTER 3The Scope of EU and National Competition Law: The Effect on InterstateTrade Criterion in PracticeIgor Taccani 47

CHAPTER 4Piercing the Corporate Veil in EU Competition Law: The Parent SubsidiaryRelationship and Antitrust LiabilityBernardo Cortese 73

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PART IIThe Difficult Relationship between Administrative Authorities and theJudiciary in Antitrust Private EnforcementBernardo Cortese 95

CHAPTER 5Antitrust Enforcement After the Entry into Force of Regulation No. 1/2003:The Interplay between the Commission and the NCAs and the Need foran Enhanced Role of National CourtsFrancesco Munari 111

CHAPTER 6The Effects on Private Enforcement of the Commission’s and NationalCompetition Authorities’ Decisions: An Italian PerspectiveDario Ruggiero 129

CHAPTER 7Defining the Role of Courts and Administrative Bodies in PrivateEnforcement in Europe: United in Diversity?Bernardo Cortese 145

PART IIIPrivate Enforcement and Preliminary Rulings: The Interaction betweenNational Judges and the ECJBernardo Cortese 173

CHAPTER 8Preliminary Rulings and Competition Law: Some Reflections for NationalJudgesDaniele P. Domenicucci 179

CHAPTER 9The European Court of Justice and the Shaping of Private Enforcement ofEU Antitrust Law through Preliminary RulingsPaolo Iannuccelli 223

CHAPTER 10The Court of Justice ‘Antitrust Enforcement Negative HarmonisationFramework’ and the CDC and Pfleiderer Judgments: ‘Another Brick in the Wall’Lorenzo F. Pace 241

PART IVDamages Actions in Private Antitrust EnforcementBernardo Cortese 257

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CHAPTER 11Damages Actions in Private Antitrust Enforcement: French ReportAlice Pezard 263

CHAPTER 12Damages Actions in Private Antitrust Enforcement: Greek ReportIannis Symplis 269

CHAPTER 13Damages Actions in Private Antitrust Enforcement: Irish ReportWilliam McKechnie 287

CHAPTER 14Damages Actions in Private Antitrust Enforcement: Italian ReportGabriella Muscolo 301

PART VCompetition, Regulation and Liberalization: Sector-SpecificApproaches and Their Significance for Private EnforcementBernardo Cortese 307

CHAPTER 15Competition Enforcement in the Electronic Communications Sector:The Case of Margin SqueezeFabio Filpo 311

CHAPTER 16Promoting Information Pluralism through EU Law: Regulation orCompetition Law in the Audiovisual Sector?Roberto Mastroianni 333

CHAPTER 17Restrictions on Parallel Trade of Pharmaceutical Products and EUCompetition LawFrancesco Liberatore 347

CHAPTER 18EU Competition Law and the Financial Services SectorStefano Nicolin 359

Annexes 367

Table of Cases 429

Index 469

Summary of Contents

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Table of Contents

List of Editor and Contributors v

Foreward xxiii

Preface xxv

PART IGeneral Problems: Goals and Scope of EU Competition LawBernardo Cortese 1

CHAPTER 1The Goals of EU Competition LawPietro Manzini 21

§1.01 Introduction 21§1.02 The Goals of Article 101: The Balance between Consumer Protection,

Promotion of Economic Efficiency, and Competitiveness of the Market 23§1.03 The Goals of Article 102: In Search of Economic Efficiency? 25§1.04 The Alignment between the Goals of Articles 101 and 102 29§1.05 The Goal of Market Integration 31§1.06 Conclusions 33

CHAPTER 2Defining Agreements and Concerted Practices Restricting Competition in EUCompetition LawFilippo Amato 35

§2.01 The Notion of Agreements, Concerted Practices, and Decisions byAssociations of Undertakings 35[A] Agreements 35

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[B] Concerted Practices 37[C] Complex Cartels 38[D] Decision by Association of Undertakings 38

§2.02 The Notion of Restriction of Competition 38[A] Restrictions by Object (Hardcore Restrictions) 39[B] Restrictions on Competition that Are Not Appreciable (‘De

Minimis’ Restrictions) 41[C] Ancillary Restrictions 42[D] Restrictions of Competition by Effect 43

§2.03 Conclusions 45

CHAPTER 3The Scope of EU and National Competition Law: The Effect on InterstateTrade Criterion in PracticeIgor Taccani 47

§3.01 Introduction 47§3.02 The Effect on Trade Criterion: The Notion 49

[A] The Guidelines on the Effect on Trade 49[B] The Effect on Trade Criterion 51[C] The Three Cumulative Elements Constituting the Effect on Trade

Criterion 52[D] The NAAT Rule and the Positive Presumption 55[E] Types of Agreements and Practices 56

§3.03 The Effect on Trade Criterion: Selected EU Case Law 57[A] Case Law on the Effect on Trade Criterion 57[B] Case Law on the NAAT Rule 60

§3.04 The Effect on Trade Criterion: Case law of the National Courts ofMember States 63[A] Introduction 63[B] National Courts’ Case Law: Italy 64[C] National Courts’ Case Law: France 65[D] National Courts’ Case Law: Other EU Member States 68

§3.05 Concluding Remarks 71

CHAPTER 4Piercing the Corporate Veil in EU Competition Law: The Parent SubsidiaryRelationship and Antitrust LiabilityBernardo Cortese 73

§4.01 Introduction 73§4.02 General Remarks on the Notion of Undertaking under Article 101 TFEU 74§4.03 The Economic Unit Doctrine ‘as a Shield’ 74§4.04 The Origins of the Economic Unit Doctrine ‘as a Sword’:

Affirming Jurisdiction over Third Country Parent Companies 76

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§4.05 The Mature Phase of the Economic Unit Doctrine: Strengtheningthe Effectiveness of EU Competition Law by Piercing theCorporate Veil 77

§4.06 The Need to React to Abuses or Situations Objectively Impairingthe Effectiveness of EU Competition Law: Reality or FataMorgana? 79

§4.07 The Attribution in Case of Wholly Owned Subsidiaries: Is Therea Need for Specific Evidence? 83

§4.08 Reviving the AEG-Telefunken Special Rule: Presumption ofDecisive Influence in Case of Wholly Owned Subsidiaries 85

§4.09 Expanding the Economic Unit Approach to Enforcement?The Limits Arising from the Principle of Procedural Autonomyof Member States 89

PART IIThe Difficult Relationship between Administrative Authorities and theJudiciary in Antitrust Private EnforcementBernardo Cortese 95

CHAPTER 5Antitrust Enforcement After the Entry into Force of Regulation No. 1/2003:The Interplay between the Commission and the NCAs and the Need for anEnhanced Role of National CourtsFrancesco Munari 111

§5.01 Introduction 111§5.02 Modernization through Direct Effect: The Risk of Building an

Unbalanced System 112§5.03 Does the ECN Ensure Uniformity and Transparency? 113§5.04 Direct Effect of Article 101(3) TFEU and Legal Certainty 115§5.05 The Commission’s Normative Role 116§5.06 The Cooperation between NCAs and the Commission: The

Circulation of Evidence in the ECN 117§5.07 Leniency Programmes and the Circulation of Evidence 118§5.08 The Role of National Courts in Judicial Review Cases 119§5.09 The Role of National Courts in Private Enforcement Cases 121§5.10 Access to Leniency Files and Private Enforcement: The Risk of Forum

Shopping 124§5.11 Conclusive Remarks 125Selected Bibliography 125

CHAPTER 6The Effects on Private Enforcement of the Commission’s and NationalCompetition Authorities’ Decisions: An Italian PerspectiveDario Ruggiero 129

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§6.01 Introduction 129[A] Effects of Administrative Decisions on the National Courts’

Proceedings 131[B] The Effects of Administrative Decisions on Italian Case Law 135[C] An Assessment of Italian Case Law 138

§6.02 Conclusion 140Bibliography 141

CHAPTER 7Defining the Role of Courts and Administrative Bodies in PrivateEnforcement in Europe: United in Diversity?Bernardo Cortese 145

§7.01 Introductory Remarks 145§7.02 German Bundeskartellamt as Amicus Curiae 146§7.03 French Autorité de la Concurrence as Amicus Curiae 148§7.04 Requests for Opinions: The Need for Inter Partes Proceedings 149§7.05 EU Commission as an Amicus Curiae before French Courts: Need

for Fine Tuning? 149§7.06 Amicus Curiae and Preliminary Ruling: The Pierre Fabre

Dermo-Cosmétique Case 151§7.07 Amicus Curiae Submissions, Request for Information, and Preliminary

Ruling: Some General Considerations 151§7.08 British NCAs as Amicus Curiae 152§7.09 The Italian Practice: No Use of Amicus Curiae Briefs or Other

Cooperation Tools as a Consequence of Strict Separation betweenAdministrative and Judicial Functions 155

§7.10 Evidence From Public Enforcement? General Tools Instead of DirectCooperation 156

§7.11 The Effects of Commission Infringement Decisions in Italian PrivateEnforcement Cases 157

§7.12 The Effect of Italian NCA’s Infringement Decisions 158§7.13 Spanish Comisión Nacional de la Competencia as Amicus Curiae 160§7.14 Sweden Konkurrensverket as Amicus Curiae: Consistent Practice

under both Regulation and General National Provisions 162§7.15 Reinforced Cooperation between Courts and NCAs: Beyond the

Amicus Curiae Model? 163[A] Malta Office for Competition: Just an Amicus Curiae? 163[B] Latvia: Duty to Cooperate as a Consequence of General

Provisions? 165[C] Romania: Duty to Cooperate as a Consequence of Special

Provisions? 166

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§7.16 Czech Republic and Slovakia: Applicability of General Provisions onCooperation 167[A] Czech Republic 167[B] Slovakia 167

§7.17 Luxembourg: No Relevant Case Implementing Appropriate SpecialLegislation 168

§7.18 Bulgaria: No Relevant Practice or Provisions 169§7.19 Conclusive Remarks 169

PART IIIPrivate Enforcement and Preliminary Rulings: The Interaction betweenNational Judges and the ECJBernardo Cortese 173

CHAPTER 8Preliminary Rulings and Competition Law: Some Reflections for NationalJudgesDaniele P. Domenicucci 179

§8.01 General Introduction 179§8.02 Object of Preliminary References 183§8.03 The Concept of ‘Court or Tribunal’ as Established in the Court of

Justice’s Case Law 185§8.04 Option and Obligation to Refer a Question 188

[A] Exceptions to the Obligation to Refer a Question for aPreliminary Ruling as They Concern Courts against WhoseDecisions There Is No Judicial Remedy under National Law 189

§8.05 Preliminary References of Questions of Validity 190[A] The Relationship between Ascertaining Validity through a

Reference for a Preliminary Ruling and Actions for Annulment 192§8.06 ‘Consequences’ for Failure to Comply with the Obligation to Refer a

Question for a Preliminary Ruling 192§8.07 Clear-Cut ‘Division of Labour’ and Cooperation between National

Courts and the Court of Justice 194[A] The ‘Inadmissibility’ of Questions Referred for a Preliminary

Ruling 197§8.08 The Effect of the Ruling 203

[A] The Temporal Effect of the Ruling 205§8.09 Final Remarks and Practical Suggestions on How to Prepare an Order

for Reference 206§8.10 The Preliminary Reference Procedure in the Context of Competition

Law: Some Reflections on the Post-Modernization Period 211§8.11 The Possible Interaction between the Mechanism of Reference for a

Preliminary Ruling and Regulation No. 1/2003: The Role of theNational Judge 217

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CHAPTER 9The European Court of Justice and the Shaping of Private Enforcementof EU Antitrust Law through Preliminary RulingsPaolo Iannuccelli 223

§9.01 Introduction 223§9.02 The Role of the Judge in Private Enforcement 225

[A] In General 225[B] Specifically, in Stand-Alone Cases 226[C] Specifically, in Follow-On Cases 227

§9.03 Compensation 228§9.04 Procedural Autonomy and the EU Legislative Framework for

Antitrust Compensation 232§9.05 The Limits of the Workability of Private Enforcement: A Return to

Public Enforcement? 235§9.06 Conclusion 238

CHAPTER 10The Court of Justice ‘Antitrust Enforcement Negative HarmonisationFramework’ and the CDC and Pfleiderer Judgments: ‘Another Brick inthe Wall’Lorenzo F. Pace 241

§10.01 Introduction 241§10.02 The Objective of Regulation 1/03: Between Decentralization and

Safeguarding the Rights of Those Harmed by Infringements ofArticles 101 and 102 TFEU 242

§10.03 Attempts at European Level to Adopt a Directive in the Field of PrivateEnforcement. The Important (Albeit Insufficient) Role of the EuropeanCourt in the Development of Private Enforcement in the Teeth of theTardiness of the European Legislator. Awaiting the Proposal for aDirective and Compliance with the Principle of Subsidiarity 243

§10.04 Case Law of the ECJ and the Role of the Principle of Effectiveness 244§10.05 Private Antitrust Enforcement in Europe, Absence of a Proposal for a

Directive on Private Enforcement and the ‘Alternative Use’ ofRegulation 1049/2001 247

§10.06 The Consequences of the Lack of Private Antitrust EnforcementRules on the Relationship Between Public and Private Enforcement 249

§10.07 The CDC Judgment and the Refusal to Accept General Exceptions toAccess Commission Documents Based on the Protection of ItsCompetition Policy 249

§10.08 The Pfleiderer Judgment and the National Court’s Power to WeighInterests. The Solution that Permits the Refusal of Access to theLeniency Applicant’s Documents in the Possession of the Commission 251

§10.09 Conclusions 253

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PART IVDamages Actions in Private Antitrust EnforcementBernardo Cortese 257

CHAPTER 11Damages Actions in Private Antitrust Enforcement: French ReportAlice Pezard 263

§11.01 Public Enforcement Findings and Their Role in Private EnforcementJudicial Proceedings 263

§11.02 Damages Actions: Burden of Proof Issues 263§11.03 A Very Limited Recourse to Courts’ Experts… 264§11.04 An Intense Dialogue between Parties’ Experts and the Court 264§11.05 The Conduct of the Hearing: Judicial Control over NCA’s Decisions

before the Paris Court of Appeal 265§11.06 Evidence and the Cour de Cassation 265§11.07 Passing-On Defence 266

CHAPTER 12Damages Actions in Private Antitrust Enforcement: Greek ReportIannis Symplis 269

§12.01 An Overview of Case Law 269§12.02 Binding Effect of the Decisions of Administrative Courts and

Competition Authorities 274§12.03 Calculation of Damages and the Passing-On Defence 279§12.04 Proof of Damage: Discovery, Confidentiality, Economic Expertise 282

[A] Discovery 282[B] Expertise 285[C] Third Party Access to Information and Confidentiality 286[D] Requests for Assistance and Amicus Curiae Briefs 286

CHAPTER 13Damages Actions in Private Antitrust Enforcement: Irish ReportWilliam McKechnie 287

§13.01 Brief Overview: Competition Law in Ireland 287§13.02 Private Enforcement of Competition Law 288

[A] Private Enforcement in Ireland 288[B] European Commission: Encouraging More Private Enforcement 289[C] Obstacles to Private Enforcement in Ireland 289

[1] ‘Follow-On’ Actions 292[2] Burden of Proof 293

[a] Amicus Curiae Briefs 295

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[D] Requests for Information 296[1] On Expertise and Other General Tools 298

CHAPTER 14Damages Actions in Private Antitrust Enforcement: Italian ReportGabriella Muscolo 301

§14.01 The Cooperation between National Courts and the NationalCompetition Authority in Searching Evidence 301

§14.02 Collecting Evidence before National Courts 304

PART VCompetition, Regulation and Liberalization: Sector-SpecificApproaches and Their Significance for Private EnforcementBernardo Cortese 307

CHAPTER 15Competition Enforcement in the Electronic Communications Sector: The Caseof Margin SqueezeFabio Filpo 311

§15.01 Introduction 311§15.02 The Peculiarities of Antitrust Enforcement in the E-communications

Sector: Vertical Integration and Sector-Specific Regulation 311§15.03 The EU Approach on Margin Squeeze 314

[A] Margin Squeeze as an Abuse of Dominant Position 314[B] The EU Practice and Case Law 315

§15.04 Critical Aspects of Margin Squeeze 317[A] Margin Squeeze as a Stand-Alone Abuse 318[B] Margin Squeeze as an Effect-Based Abuse 321[C] Possible Justifications: (1) The Role of Efficiencies 322[D] Possible Justifications: (2) The Influence of Sector-Specific

Regulation 323[E] The Appropriate Cost Benchmark and Cost Models 324[F] The (Different) US Approach to Margin Squeeze 327

§15.05 Margin Squeeze Abuses and Private Enforcement 328§15.06 Concluding Remarks 329Selected Bibliography 330

CHAPTER 16Promoting Information Pluralism through EU Law: Regulation orCompetition Law in the Audiovisual Sector?Roberto Mastroianni 333

§16.01 Introduction: European Union Legislative Competences in theAudiovisual Sector 333

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§16.02 EU Harmonization Competences in the Field of Information Pluralism 335§16.03 The Insufficiency of the Current EU Antitrust and Regulatory

Framework 339§16.04 The Provisions Contained in the So-Called ‘Telecoms Package’ 340§16.05 Concluding Remarks: Regulation and Competition 344

CHAPTER 17Restrictions on Parallel Trade of Pharmaceutical Products and EUCompetition LawFrancesco Liberatore 347

§17.01 Introduction 347§17.02 Background 348§17.03 The Commission’s Perspective 349§17.04 The EU Courts’ Perspective 349§17.05 Legal Framework 349§17.06 Specific Features of the Pharmaceutical Sector 350§17.07 Relevant Product Market 350§17.08 Relevant Geographic Market 351§17.09 Dual Pricing 352§17.10 Supply Quota System by a Non-dominant Company 353§17.11 Supply Quota System by a Dominant Company 354§17.12 Product Life Cycle Management Strategies 355§17.13 Conclusion 357

CHAPTER 18EU Competition Law and the Financial Services SectorStefano Nicolin 359

Annexes 367

Table of Cases 429

Index 469

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CHAPTER 8

Preliminary Rulings and Competition Law:Some Reflections for National JudgesDaniele P. Domenicucci*

§8.01 GENERAL INTRODUCTION

The reference for a preliminary ruling, which is governed by Article 267 of the Treatyon the Functioning of the European Union ‘TFEU’ (formerly Article 234 EC), isundoubtedly the best known legal mechanism out of the whole range of jurisdictionalremedies provided for by the EU legal system,1 and it is thanks to its widespreaddiffusion among national judges that the Court of Justice of the European Union in

* Wording reviewed and updated of the report presented at the training seminar for magistrates‘Antitrust EU law in a perspective of decentralized application’ organized by the University ofPadua (Venice – San Servolo Island, 3–5 February 2012). The opinions expressed in thispresentation are those of the author and cannot be ascribed to the institution to which he belongs.The author thanks Thomas Evans and Fabio Filpo for their valuable suggestions.

1. The preliminary reference procedure has been dealt with by a very large number of authors.Please refer to, among others: A Adinolfi, L’accertamento in via pregiudiziale della validità di atticomunitari, Milan (1997); D Anderson and M Demetriou, References to the European Court, 2nded., London (2002); K Lenaerts et al., Procedural Law of the European Union, 2nd ed., London(2006); M C Reale and M Borraccetti, Da giudice a giudice. Il dialogo tra giudice italiano e Cortedi giustizia delle Comunità europee, Milan (2008); M Condinanzi and R Mastroianni, Il conten-zioso dell’Unione europea Turin (2009); M Broberg and N Fenger, Preliminary references to theEuropean Court of Justice, Oxford (2010); C Naomé, Le renvoi préjudiciel en droit européen, 2nded., Brussels (2010); M Wathelet, Contentieux européen, Brussels (2010); A Barav, Études sur lerenvoi préjudiciel dans le droit de l’Union européenne, Brussels (2011); C Soulard, ‘Renvoipréjudiciel’ in C Soulard, A Rigaux and R Munoz (eds.), Contentieux de l’Union européenne/3.Renvoi préjudiciel. Recours en manquement, Rueil-Malmaison (2011), 19 ff.; G Vandersanden, Laprocédure préjudicielle devant la Cour de Justice de l’Union européenne, Brussels (2011);E D’Alessandro, Il procedimento pregiudiziale interpretativo dinanzi alla Corte di giustizia.Oggetto e efficacia della pronuncia, Turin (2012); D Dittert, ‘Article 267 TFEU’, in C Curti Gialdino(ed.), Codice dell’Unione europea operativo, Naples (2012) 1926 ff.

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Luxembourg has been and is still able to contribute in a decisive way to building thelegal system of the EEC and, now, the EU.2

Essentially, the mechanism of reference for a preliminary ruling enables nationaljudges to address the Court of Justice3 to obtain clarifications on the interpretation ofEU law and/or on the validity of acts of the institutions, bodies, offices, or agencies ofthe EU (‘EU acts’) and, therefore, to contribute de facto, albeit indirectly, to the processof EU integration. Indeed, through this mechanism a direct cooperation is establishedbetween the national and the EU judiciaries. This is exemplified by the non-contentiousnature of the proceeding, whereby the reference comes from the national judge(s)concerned and is not left to the parties’ initiative, the latter being merely invited,according to Article 23(2) of the Statute, to submit statement of case or writtenobservations.4

The main objective of the reference for a preliminary ruling is to ensure theuniform nature of EU law through an accurate and uniform construction and applica-tion by national judges.5 Indeed, this uniform feature would be difficult to guarantee if

2. The preliminary reference or preliminary ruling has been instrumental in the development of EUlaw, with most of the Court of Justice’s better known judgments being delivered under thismechanism. Indeed, such rulings resulted in the judgments that confirmed the direct effect of EUlaw (Case 26/62 van Gend & Loos [1963] ECR 1), the primacy (or supremacy) of the latter overnational law (Case 6/64 Costa [1964] ECR 585 and Case 106/77 Simmenthal [1978] ECR 629), andthe non-contractual liability of the Member States for infringing community law (now: EU law)(Joined Cases C-6/90 and C-9/90 Francovich and others [1991] ECR I-5357; Joined Cases C-46/93and C-48/93 Brasserie du pêcheur and Factortame [1996] ECR I-1029 or Case C-173/03 Traghettidel Mediterraneo [2006] ECR I-5177). See also A Stone Sweet and T L Brunell, The EuropeanCourt, National Judges and Legal Integration: A researcher’s Guide to the Data Set on PreliminaryReferences in EC Law 1958-1998, Robert Schuman Centre Working paper, 1999, http://www.iue.it/RSCAS/Publications/. In particular, in a competition law context, it has been notedthat ‘the preliminary reference procedure has had a disproportionately significant impact on thesubstantive development of EU competition law’; cf. M Demetriou, Preliminary References andCompetition Law, Competition Law Journal, 345 (2002). See: Case C-234/89 Delimitis [1991] ECRI-935; Case C-126/97 Eco Swiss [1999] ECR 3055; Case C-344/98 Masterfoods [2000] ECR I-11369;Case C-453/99 Courage [2001] ECR I-6297; Case C-94/00 Roquette Frères [2002] ECR I-9011; andCase C-418/01 Ims Health [2004] ECR I-5039. Furthermore, see Case C-198/01 CIF [2003] ECRI-8055I for specific reference to the obligation for national competition authorities, includingnational judges, to ensure the prevalence of EU law in national application of Articles 101 and 102TFEU and therefore to disapply the incompatible domestic law.

3. According to Article 256(3) the General Court shall have jurisdiction to hear and determinequestions referred for a preliminary ruling under Article 267, in specific areas laid down by theStatute, with the possibility of an exceptional review of its decisions by the Court of Justice. Arecent debate also concerned the possible transfer of preliminary ruling competences in relationto competition matters to the General Court [see in this regard An EU Competition Court (15thReport of Session 2006-07, HL 75, 49-52) and C Baudenbacher, Concentration of preliminaryreferences at the ECJ or transfer to the High Court/CFI: some remarks on competition law, inI Pernice et al (eds), The future of the European Judicial System in a Comparative Perspective,267–272 (2005). In any case, to date the General Court has not been attributed any suchpreliminary cases. Nor is a future transfer on the immediate agenda. See also on this point BCortese, Private Enforcement and Preliminary Ruling: The Interaction between National Judgesand the ECJ, Introductory Notes to part III of this volume, sub IV.B, above.

4. Case 44/65 Singer [1965] ECR 1191; Case C-364/92 SAT Fluggesellschaft [1994] ECR I-43, para. 9;and Case C-210/06 Cartesio [2008] ECR I-9641, paras 90–91.

5. Case C-461/03 Gaston Schul [2005] ECR I-10513, para. 21; Case C-344/04 IATA and ELFAA [2006]ECR I-403, para. 27; and Case C-404/06 Quelle [2008] ECR I-2685, para. 22. Recently the Court ofJustice, in the Opinion 1/09 of 8 March 2011 on the Draft Agreement on the European

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the construction of EU law and, more importantly, the recognition of the validity of EUacts were only referred to national judges.

In view of its features and the fact that the national judge is its main driver, as heor she is the first judge of the European Union acting simultaneously under nationaland under EU law,6 the preliminary ruling mechanism – which is essentially modelledon national systems for reviewing the constitutionality of domestic laws7 – has metwith consistent and gradual success, so much so that the applications for preliminaryrulings currently represent over half of applications pending before the Court ofJustice.8

Any national court (whether a civil, criminal, administrative, or fiscal one) hasthe task of providing effective judicial protection for individuals under EU law and isunder a duty to apply the latter of its own motion,9 according it primacy over conflictingprovisions of national law, whether or not they predated or post-dated the relevant EUlegal provisions, without having to call for or wait for their prior removal throughlegislative channels or through any other constitutional procedure.10 Nevertheless, it is

and Community Patents Court, delivered pursuant to Article 218(11) TFEU, stated that ‘Article267 TFEU, which is essential for the preservation of the Community character of the lawestablished by the Treaties, aims to ensure that, in all circumstances, that law has the same effectin all Member States. The preliminary ruling mechanism thus established aims at avoidinginconsistencies in the interpretation of European Union law which the national courts have toapply and tends to ensure this application by making available to national judges a way ofeliminating difficulties that may be occasioned by the requirement of giving European Union lawits full effect within the framework of the judicial systems of the Member States […]’ (Opinion1/09 [2011] ECR I-0000, para. 83).

6. See European Parliament Resolution of 9 July 2008 on the role of the national judge in theEuropean judicial system (2009/C 294 E/06) OJ C 294 E27 3 December 2009.

7. It is an historical fact that the proposal to introduce the preliminary ruling mechanism in theTreaty of Rome came during the negotiations leading to that treaty from the Italian delegation,along the lines of the judgment of constitutionality provided for in the Italian constitution.

8. According to the Court of Justice, references for preliminary rulings constitute by far the largestcategory of cases brought before it and, in more than one respect, play a decisive role in thedevelopment of EU law and its integration into national law (see the ‘Introductory explanatorynotes to the Draft Rules of Procedure of the Court of Justice’, 74). The most recent statisticspublished on the Court of Justice’s website (www.curia.europa.eu) indicate that at the end of2012 there were 886 pending cases, at least 537 of which were for preliminary ruling, whereasout of a total of 595 cases dealt with in 2012 no fewer than 386 were for preliminary ruling. Theabsolute data for cases lodged between 1953 and 2012 show that, out of a total of 18,139, 7,832were questions lodged for preliminary ruling. It should also be noted that, in practice, thenumber of preliminary references differs considerably from Member State to Member State.Different factors might explain the variation in the number of references between courts indifferent Member States: (i) the countries’ sizes of population; (ii) the amount of cross-borderactivity; (iii) the level of compliance with EU law; (iv) the differences in litigation patterns. Foran examination of these factors, see Broberg and Fenger, Fn. 1 above, 41–58.

9. Cf. N Fennelly, The National Judge as Judge of the European Union, in A Rosas, E Levits and YBot (eds.), The Court of Justice and the Construction of Europe: Analyses and Perspectives on SixtyYears of Case-law, 61-79, The Hague (2013).

10. The Court has recently recalled that ‘in those circumstances, it is for the national court, hearinga dispute involving the principle of non-discrimination on grounds […] to provide, within thelimits of its jurisdiction, the legal protection that individuals derive from European Union law andto ensure the full effectiveness of that law, disapplying, if need be, any provision of nationallegislation contrary to that principle’; see Case C-555/07 Kücükdeveci [2010] ECR I-365, para. 51.In this respect, it is also useful to note that when it was asked a question relating to the existenceof an obligation for the national judge to disapply, pursuant to Article 6 of the Treaty on

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the Court of Justice that has the authority to provide the correct interpretation of the EUlegal provision and thus to guarantee its uniform application throughout the territory ofthe Member States, through a review mechanism, which is triggered upon the requestof a national judicial authority seized of solving a specific dispute pending before it.

Article 267 TFEU thus constitutes a legal provision based on a clear-cut demar-cation between the jurisdiction of the Court of Justice and that of the national courts.Whereas the Court of Justice alone has exclusive jurisdiction to supply the answer toquestions referred by the national court or tribunal, it is the latter that have exclusivejurisdiction to determine its relevance as regards the specific solutions to the disputespending before them.

Having obtained the ruling, it is always up to the adjudicating (or a quo) court ortribunal to issue its judgment in the main proceedings, while abiding by the ruling ofthe Court of Justice11 in both the temporal sense, since it precedes the judgment by thenational court or tribunal, and the functional sense, as it is instrumental in deciding thelatter.

To conclude this introduction, the preliminary ruling mechanism can be summedup as one aiming to achieve a range of objectives: (i) first and foremost, it guaranteesuniformity in the application of EU law through the national courts; (ii) it exists inaddition to the instruments of direct action for reviewing the legality of communityacts, thereby providing legal protection for those who have limited standing to bringabout actions for annulment themselves; and (iii) it ensures a form of review, albeit anindirect one, of the compatibility of domestic acts with EU law.12

European Union (‘TEU’), a national legal provision conflicting with the ECHR, the Court ofJustice answered that the referral made by Article 6(3) TEU to the ECHR did not impose any suchobligation on the national judge; see Case C-571/10 Kamberaj [2012] ECR I-0000, para. 63.

11. On this point it is interesting to consider the data on the time taken by the procedure before theCourt. In 2002, the average duration of a case was 24,1 months; in 2003 25,5 months; in 200520,4 months; in 2006 19,8 months; in 2007 17,1 months; in 2009 17,1 months; in 2010 16,1months and in 2012 15,7 months. It is thus clear that, with the exception of 2003, there has beena continuous reduction in the average duration of a case since 2002, particularly over the lastthree years. The reasons for the shortening of the average length of procedure meets the needalready felt by the Court of Justice itself for some time to be able to conclude the cases pendingbefore it within a reasonably short period of time. The undeniable success achieved in the courseof the years mentioned in terms of cutting back the duration of cases is due to several factorsaimed at improvement introduced from 2004 onwards (the year when the EU was enlarged toinclude ten new Member States; for a detailed description, see Naomé, Fn. 1 above, 35–36). Togain a better understanding of the time required for each of the various phases making up aprocedure, it is useful to look into how each of these is handled. In 2012, the average durationsof each of the individual phases were: (i) written procedure: 3,9 months; (ii) translation of theobservations: 2,0 months; (iii) preparation of the preliminary report (known to insiders asthe rapport préalable): 2,7 months; (iv) general meeting: 0,6 months; (v) setting the date for thehearing: 1,4 months; (vi) setting the date for the announcement of the submissions of theAdvocate General: 1,3 months; (vii) deliberations: 3,8 months; in all, 15,7 months.

12. Cf. Condinanzi and Mastroianni, Fn. 1 above, 188–190.


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§8.02 OBJECT OF PRELIMINARY REFERENCES

The Court of Justice holds jurisdiction to decide on questions referred to it forpreliminary ruling on the interpretation of EU law and on the validity of the EU acts.This general jurisdiction is bestowed on it by Article 19(3)(b) TEU and Article 267TFEU.

National courts can be seen as the devolved courts of EU jurisdiction (or as‘ordinary courts’ or even ‘natural courts’), in that they both may and must apply EUlaw within their jurisdiction and must guarantee the rights that individuals derive fromEU law. The mechanism for preliminary ruling offers them the possibility of resolvingany genuine (i.e., not a fabricated one) and reasonable doubt existing as to the correctinterpretation or validity (which must also be relevant for the decision to be adopted inthe main proceedings) of EU legal provisions.

Once the national judge has ruled, whether on its own motion or following thesuggestion of the parties, to raise a preliminary question and pursuant to which madea referral to the Court of Justice, he or she orders the stay of the proceedings pendingbefore him or her,13 initiating a particular form of procedure, which is frequentlydefined as ‘judge to judge’. In the course of this procedure, the parties to the mainproceedings have an opportunity to submit their written and oral statements in an interpartes hearing, which is extended to include interventions by the institutions and bythose Member States that want to take part in it. At the end of this procedure, the Courtof Justice issues its ruling. This does not ensure the final adjudication sought by theparties to the main proceedings, but it provides the national court or tribunal with theinterpretative principle for solving the question so as to decide on the dispute in adefinitive manner.

Article 267 TFEU also makes the distinction between ‘questions of interpretation’and ‘questions of validity’. The former deals with so-called primary law, i.e., the Treatyprovisions (including any amending acts). On a par with these are the protocolsannexed to the accession treaties of individual countries as well as the generalprinciples of the Union’s law14 and the fundamental rights guaranteed at EU level,including the provisions of the ‘Charter of Fundamental Rights of the European Union’,which has acquired the ‘same legal value as the Treaties’15 upon the entry into force ofthe Treaty of Lisbon. As far as the so-called secondary law is concerned, it too may bethe subject matter of questions referred for a preliminary ruling when it deals with theinterpretation of acts adopted by EU institutions, including the international agree-ments entered into by the EU.16 Upon the entry into force of the Treaty of Lisbon, theacts of the institutions, bodies, offices, and entities of the EU were added. The mentionof the acts of the institutions, within the meaning of Article 13(1) TEU, must beunderstood as encompassing the acts of the European Parliament, the European

13. The procedure has then to be resumed in compliance with the national procedural provisions.14. See, e.g., Case C-144/04 Mangold [2005] ECR I-9981.15. Cf. Article 6(1) TEU. On this point see Joined Cases C-92/09 and C-93/09 Volker und Markus

Schecke and others [2010] ECR I-11063.16. Case C-12/86 Demirel [1987] ECR 3719 and Case C-386/08 Brita [2010] ECR I-1289.


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Council, the Council, the European Commission, the European Central Bank, and theCourt of Auditors. The Court of Justice’s own judgments and orders may also be thesubject matter of questions referred for interpretative preliminary rulings.17

The Court of Justice’s jurisdiction shall include all the acts likely to have animpact on the decision in the main proceedings; first of all the so-called ‘typical acts’,listed in Article 288 TFEU (regulations, directives, and decisions), quite different fromthe direct applicability of the provisions contained in them;18 and second, moregenerally, any acts of the institutions, including atypical ones, such as the so-calledsoft-law acts, like resolutions,19 recommendations, opinions, and notices.20

However, the Court of Justice’s interpretative powers do not extend to nationalacts in ways that are not connected with the application of EU law since theinterpretation of national legal provisions is a matter for the national courts and not forthe Court of Justice.21 Whereas, where national law refers to the content of an EU legalprovision in order to determine the provisions to be applied to a merely domesticsituation in that country, the Court of Justice has recognized that it has jurisdiction.22

In addition, the Court of Justice has no jurisdiction to rule on the construction ofinternational law rules binding on Member States, but falling outside the scope of EUlaw.23

In relation to questions concerning the validity of acts, the acts mentioned abovemay be the ones concerned (but not those on the provisions of the Treaties, whichfunction instead as benchmarks for assessing the validity of the other acts24). In this

17. Case 69/85 Wünsche [1986] ECR 947; Case 314/81 Waterkeyn [1982] ECR 4337; Case C-1/05 Jia[2007] ECR I-1; and Case C-478/07 Budejovický Budvar [2009] ECR I-7721. See also, for aquestion referred for a preliminary ruling concerning the meaning and import of a judgment ofthe Court of Justice issued at the outcome of an infringement proceeding, Case 314/81Waterkeyn [1982] ECR 4337.

18. See Case C-254/08 Futura Immobiliare and others [2009] ECR I-6995, para. 34, and CaseC-370/12 Pringle [2012] ECR I-0000, para. 89.

19. Case 9/73 Schluter [1973] ECR 1135.20. Case C-322/88 Grimaldi [1989] ECR I-4407 and Case C-415/07 Lodato Gennaro [2009] ECR

I-2599 [concerning the interpretation of the ‘Guidelines on aid to employment’ (OJ 1995, C 334,4)]. It is worth noting that, as the Court has found, Commission notices in the area of EUcompetition law do not have a binding legal effect on national authorities and courts, see CaseC-360/09 Pfleiderer [2011] ECR I-5161, para. 21; similarly, Joined Cases C-189/02 P, C-202/02 P,C-205/02 P to Case C-208/02 P and C-213/02 P Dansk Rørindustri and Others v. Commission[2005] ECR I-5425, para. 209, which states that measures adopted by the Commission may notbe regarded as rules of law.

21. See, e.g., Case C-53/04 Marrosu and Sardino [2006] ECR I-7213, para. 54, and Case C-217/08Mariano [2009] ECR I-0000. The same is true as concerns any judgments of compatibility of anational measure with EU law, see Case C-295/97 Piaggio [1999] ECR I-3735, para. 29.

22. Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763. In the wake of this case law, andnotwithstanding the aversion shown by a number of Advocates General (see below, Fn. 106),the Court of Justice even declared to be competent to interpret an EU law provision madeapplicable in national law by a contractual clause (see Case C-88/91 Federconsorzi [1992] ECRI-4035, and also Vandersanden, Fn. 1 above, 43–44).

23. Case C-466/11 Currà and others [2012] ECR I-0000, para. 15.24. The same is true for the rules of the Charter of Fundamental Rights, see Case C-236/09

Association Belge des Consommateurs Test-Achats and others [2011] ECR I-773, which declaredthe invalidity of a directive on insurance as it conflicted with Articles 21 and 23 of the Charter ofFundamental Rights.


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respect it shall be noted that the TFEU provides for an efficient instrument for havingthe legality of such acts reviewed by either the Court of Justice or the General Court(depending on the nature of the applicant) through actions for annulment, pursuant toArticle 263 TFEU.25

Nonetheless, the effectiveness of the safeguard available through a direct actionfor annulment, the acceptance of which involves the declaration of voidance of the actex tunc, is limited by the requirement for such an action to be commenced within aspecific time period. However, it is perceived that the preliminary reference in mattersof validity has become significant in protecting the rights of private individuals as it hasgradually taken on the role of an instrument for the widespread review of legality of EUacts, extending its scope in a similar manner to the one provided for direct actions,26

without, however, suffering from the constraints inherent to the legal standing ofprivate individuals.

§8.03 THE CONCEPT OF ‘COURT OR TRIBUNAL’ AS ESTABLISHED INTHE COURT OF JUSTICE’S CASE LAW

Article 267 TFEU states that the competence to refer matters for preliminary ruling mayonly pertain to bodies that meet the definition of national ‘courts or tribunals’. Themain difficulties encountered in defining the scope of this provision come from the factthat there are different organizational forms in the various national legal systems anddiffering ideas in each of them as to which courts should be eligible for referringquestions.

In an effort to overcome the particularisms of the individual legal systems, giventhe need for uniformity, the Court of Justice has managed to define a ‘generic’ conceptof ‘court or tribunal’27 in which it includes all the bodies that meet the followingrequirements28: (i) they are established by law; (ii) they are permanent or they exercise

25. This particular judicial remedy gives the judges in Luxemburg the opportunity of scrutinizing thevalidity of the acts of the EU in actions brought by a Member State, the European Parliament, theCouncil or the Commission on grounds of ‘lack of competence, infringement of an essentialprocedural requirement, infringement of the Treaties or of any rule of law relating to theirapplication or misuse of powers’ as well as actions brought by the Court of Auditors, by theEuropean Central Bank and by the Committee of the Regions for the purpose of protecting theirprerogatives. Such proceedings may also be instituted by any natural or legal person against anact addressed to that person or being of direct and individual concern to them, and against aregulatory act being of direct concern to them and does not entail any implementing measures[Article 263(4) TFEU]. This latest innovation, which is of considerable importance in havingaccess to the Court of Justice, was added by the Treaty of Lisbon.

26. Incidentally, the reasons why the Court of Justice may declare an act to be invalid are identicalto those laid down in the Treaty for the cases of setting acts aside. Therefore, the examination ofthe questions of validity is simply a transposition of the principle applied in an action forannulment to the context of the preliminary reference procedure. Thus, the legislative param-eters are likewise identical in an examination of a question referred for a preliminary ruling onvalidity and the judgment in an action for the annulment of an EU act.

27. This has to do with the substantially jurisdictional nature of the functions carried out by the bodyand not with its nomen iuris, nor its position in the national judicial system.

28. See Case 61/65 Vaassen-Göbbels [1966] ECR 408; Case C-54/96 Dorsch Consult [1997] ECRI-4961 and Case C-205/08 Umweltanwalt von Kärnten [2009] ECR I-11525. Finally, see also Case


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judicial functions more than just occasionally; (iii) their jurisdiction is compulsory; (iv)their procedure is inter partes; (v) they apply rules of law rather than ruling in equity;(vi) they are independent and impartial vis-à-vis the parties in the case.29 Additionally,a national court may refer a question to the Court only if there is a case pending beforeit and it is called upon to give judgment in proceedings intended to lead to a decisionof a judicial nature.30 On the basis of such principles, interpreted in a flexible manner,the Court of Justice has ruled as being admissible questions referred to it by bodiesforming part of the national judicial system in the course of interim, summary,winding-up, and enforcement proceedings.31 The expression ‘legal proceedings’should be interpreted in a broad sense but in such a way as to exclude the proceedingsthat are merely procedural in the exercise of administrative functions, even thoughthey are performed by a judicial body (e.g., appointments or nominations), as well asthe proceedings in which the referring body performs a function that is not typicallyjudicial but merely advisory.32 By applying this yardstick, the right to submit prelimi-nary references has been denied to bodies of a private nature or, more specifically, tobodies set up by autonomous professional organizations.33 Likewise, arbitrationcommittees have been excluded from the above-mentioned notion,34 given that thereexists the possibility of applying for a preliminary reference in the juridicial phase thatmay follow the arbitration award or having a review of it performed at that stage.35

C-196/09 Miles [2011] ECR I-0000, para. 37 (cf. nevertheless the Opinion delivered by Advocate-General Sharpston on 16 December 2010 in respect of this case, where she criticized therestrictive approach of the Court of Justice on the subject and suggested to interpret theprovision in a teleological way, thus favouring a broader interpretation of the concept ofjurisdictional body. This suggestion was not followed by the Court of Justice).

29. The existence of such a question is in fact examined with a certain degree of flexibility. It shouldbe considered that the issue was not even raised in the case of a question lodged by the Consigliodi Giustizia Amministrativa for the Sicilian Region (Case C-78/07 Ispettorato Provincialedell’Agricoltura di Enna and others [2008] ECR I-1635), although the latter also includedmembers appointed by the President of the Region.

30. Case C-178/99 Salzmann [2001] ECR I-4421, para. 14.31. See G Gori, La notion de juridiction d’un État membre au sens de l’article 234 CE, in N Fenger,

K Hagel-Sørensen and B Vesterdorf (eds), Festskrifttil Claus Gulmann, Copenhagen 155, 180 ff.(2006).

32. Case 318/85 Greis Unterweger [1986] ECR 955.33. Case C-138/80 Borker [1980] ECR 1975 and Case C-506/04 Wilson [2006] ECR I-8613; see,

nevertheless, Case C-55/94 Gebhard [1995] ECR I-4165, concerning the Italian Council of BarAssociations, which is established by law and hears appeals from local bar associations againstdecisions by the latter relating to entries on the rolls and disciplinary matters. Furthermore, ithas the power to give legal rulings and appeals of its rulings will be heard by the Italian Courtof Appeal (Corte di Cassazione).

34. Case 102/81 Nordsee [1982] ECR 109 and Case C-125/04 Denuit [2005] I-923.35. Case C-393/92 Almelo [1994] ECR I-1477 and Case C-126/97 Eco Swiss [1999] ECR I-3055.

According to the latter Eco Swiss case, where domestic rules of procedure require a nationalcourt to admit an application for annulment of an arbitration award where such an applicationis based on the failure to comply with national rules of public policy, such national court mustalso admit that application where it is based on the failure to comply with the prohibition laiddown in Article 101 TFEU. That provision constitutes a fundamental provision that is essentialfor the accomplishment of the tasks entrusted to the Community and, in particular, for thefunctioning of the domestic market. Also, EU law requires that questions concerning theinterpretation of the prohibition laid down in Article 101 should be open to examination by


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However, the Court of Justice has adopted a different attitude in the case of ‘quasi-arbitral’ boards operating in the social, professional, or commercial sectors, whenthese were established by law and endowed with compulsory jurisdiction.36 In the caseof public authorities, the Court of Justice has come down in favour of the admissibilityof preliminary references, but with a number of distinctions. It has considered as beingadmissible the preliminary references made to it by specific appeal bodies in matters ofpublic contracts37 but has declared inadmissible the reference by the Austrian super-visory body for the telecommunications sector.38

The body wishing to refer a question must possess a jurisdictional quality notonly in the institutional sense of the term but also in the functional sense, which meansthat in dealing with the facts of the case it must genuinely carry out the function of acourt and not that of an administrative authority.39

Finally, it is worth mentioning briefly two apparently conflicting positions thatthe Court of Justice has taken in relation to the jurisdictional nature of two nationalantitrust authorities. Indeed, while in 1992 the Court declared the admissibility of anapplication for a preliminary ruling submitted by the Spanish Tribunal de Defensa de laCompetencia (which, despite its name, did not belong to the Spanish judicial systembut was the local competition authority),40 in the later judgment in Syfait of 200541 theCourt of Justice ruled (without mentioning the above-mentioned Spanish case, noteven to deny any similarity between the two cases) that the Greek CompetitionCommission (Epitropi Antagonismou), which had made a reference for a preliminaryruling in a case concerning an alleged abuse of dominant position carried out by apharmaceutical company that refused to handle certain orders so as to prevent andcontain the parallel trade of pharmaceuticals, did not have a jurisdictional naturepursuant to Article 234 EC (now Article 267 TFEU) then in force. This was notwith-standing the opposite opinion given by the Advocate-General Jacobs in his Opinionconcerning the same case.42

national courts when they are asked to determine the validity of an arbitration award and thatit should be possible for those questions to be referred to the Court of Justice, if necessary, fora preliminary ruling.

36. Case 109/88 Danfoss [1989] ECR 3199 and Case 109/88 Handels-ug KontorfunktionaernesForbund i Danmark [1989] ECR 3199.

37. Case C-54/96 Dorsch Consult [1997] ECR I-4961 and Case C-411/00 Felix Swoboda [2002] ECRI-10567.

38. Case C-256/05 Telekom Austria [2005] ECR I-0000.39. Case 138/80 Borker [1980] ECR 1975; Case C-134/97 Victoria Film [1998] ECR I-7023 and Case

C-497/08 Amiraike Berlin [2010] ECR I-101.40. Case C-67/91 Asociación Española de Banca Privada and others [1992] ECR I-4785.41. Case C-53/03 Syfait [2005] ECR I-4609. On this case see H Tagaras and M Waelbroeck, Les

autorités nationales de la concurrence et l’article 234 du traité. Un étrange arrêt de la Cour dejustice, Cahiers de droit européen (2005) 465–492, as well as L Raimondi, La nozione digiurisdizione nazionale ex art. 234 TCE alla luce della recente giurisprudenza comunitaria, in IlDiritto dell’Unione Europea (2006) No. 2, 369–405. Vandersanden, Fn. 1 above, 17–18, is alsovery critical in this respect.

42. Opinion of Advocate-General Jacobs in Case C-53/03 Syfait [2005] ECR I-4609. Among thevarious practical reasons in favour of admitting references from competition authorities, theAdvocate-General had invoked considerations of Judicial economy which would favour allow-ing a reference to be made at the earliset stage, so that no further challenges are necessary toproceed with a reference for a preliminary ruling. From this point of view, according to


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In the light of the rationale followed by the Court of Justice,43 which not onlyestablishes whether the authority in question is independent enough of the politicalpower but also specifically refers to Regulation No. 1/2003 and, more specifically, tothe power of the Commission to deprive the national authority of its competence(Article 11 (6) of such regulation), this case law also seems to be applicable, mutatismutandis, to the Italian antitrust authority and to the other national independentauthorities having similar characteristics, precluding the right to refer a question to theCourt of Justice for a preliminary ruling,44 notwithstanding the key role that theabove-mentioned Regulation No. 1/2003 attributes to them.

§8.04 OPTION AND OBLIGATION TO REFER A QUESTION

In the system of referring questions for preliminary rulings, the position in which thenational courts find themselves varies depending on whether or not a judicial remedyis available under national law against the judgments those courts deliver. If so, thenational court involved has the option to refer a question45 (Article 267(2) TFEU); ifnot, the court has a genuine obligation to make a preliminary reference (Article 267(3)TFEU).46 On this point, the Court of Justice has made it clear that what counts for thepurposes of identifying the obligation to refer is not the formal position of the court inthe national judicial system but rather the genuine likelihood that the judgments of thatcourt would be the subject matter of an ordinary form of appeal.47 As for EU

Advocate-General Jacobs, a specialised competition authority having jurisdictional characteris-tics would be able to identify the relevant EU competition issues even better than a generalistcourt charged with reviewing its decisions.

43. The Greek Competition Commission was to decide on the cases on the basis of recommendationsprepared by a secretariat and this secretariat was also responsible for the investigation of thecases. The chairman of this Competition Commission was the head of the secretariat, and wasthus formally responsible for its management. The Court of Justice found, among other things,that there was a functional link between the Competition Commission and its secretariat thatwas responsible for dealing with the cases referred to the Competition Commission for thelatter’s decision. This was one of the factors that led the Court of Justice to hold that the GreekCompetition Commission was not a court or tribunal within the meaning of Article 267 (CaseSyfait, Fn. 41 above, paras 30 and 37).

44. See also the case of the Austrian telecommunications control commission (Case TelekomAustria, Fn. 38 above).

45. On this point the Court has recently issued a reminder that the possibility recognized by Article267(2) TFEU of asking the Court a preliminary ruling before disapplying the national provisionthat is contrary to EU law cannot, however, be transformed into an obligation because nationallaw does not allow that court to disapply a provision it considers to be contrary to theConstitution, unless such provision has first been declared unconstitutional by the Constitu-tional Court (Case Kücükdeveci, Fn. 10 above, para. 54).

46. See, e.g., M Condinanzi, I giudici italiani ‘avverso le cui decisioni non possa porsi un ricorsogiurisdizionale di diritto interno’ e il rinvio pregiudiziale, in Il Diritto dell’Unione europea (2010)No. 2, 295–334.

47. Case C-99/00 Lyckeskog [2002] ECR I-4839; Case C-495/03 Intermodal Transports [2005] ECRI-8151; Case Cartesio, Fn. 4 above. It may not be ruled out that there might be certain actual casesof litigation where there is no court obliged to lodge a preliminary reference. This will happenevery time that the party concerned does not take the matter as far as the court against whose


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competition law, as clarified by the Court of Justice,48 the prohibition for nationaljudges to take decisions conflicting with decisions adopted or contemplated by theCommission under Article 16 of Regulation No. 1/2003 does not affect their ability orobligation to refer the case for a preliminary ruling.49

In essence, should a national court or a tribunal not feel bound to make areference, the parties must always be able to appeal its decision if it is capable of havingdirect repercussions on the relevant aspects of EU law.50 Conversely, a court or tribunalof a Member State against whose decisions there is no judicial remedy under nationallaw shall have an obligation to make a reference even if such a body is not at the topof the judicial system.51

[A] Exceptions to the Obligation to Refer a Question for a PreliminaryRuling as They Concern Courts against Whose Decisions There IsNo Judicial Remedy under National Law

In interpreting the scope of the obligation to refer a question where it affects courtsagainst whose decisions there is no judicial remedy under national law, the Court ofJustice has, nonetheless, introduced a number of elements of flexibility, therebymaking the distinction between them and other courts less clear-cut. Specifically, it isnot necessary to refer a question to the Court of Justice when: (i) the question raisedregarding EU law has no influence on the case being heard; (ii) the answer is to befound in settled case law, independent of the nature of the proceedings in which thequestion has arisen (the so-called theory of acte éclairé); or (iii) the correct applicationof EU law is so obvious as to admit no scope for any reasonable doubt concerning thesolution to be given to the question raised (so-called theory of acte clair derived fromthe well-known principle of in claris non fit interpretatio).52 The likely occurrence ofsuch an eventuality has to be assessed in light of the inherent characteristics of EU law;

decisions there is no judicial remedy under national law, by failing to exhaust all the availablejudicial remedies, and it may also happen that the lower court has given its ruling without optingto refer any question.

48. Case IMS Health, Fn. 2 above.49. See also below under para. 12.50. It seems hardly necessary to point out that domestic judicial remedies do not include revision

and third-party proceedings. As far as the review is concerned, the reason for its exclusion issimple and is based on ascertaining that such a remedy may be obtained for precise reasons,which are linked in some way with the possible subject matter of the question referred for apreliminary ruling. Third-party proceedings, on the other hand, are no more than a possibleinstrument and are dependent on the initiative of a subject who has not acted as a party in thecourt action. Therefore, one may safely conclude that the qualification as a judicial body, as abody against whose decisions there is no judicial remedy under national law, with the duty torefer questions for preliminary rulings, may most certainly not depend on an external andmerely hypothetical factor.

51. Based upon these remarks, in a well-known judgment the Court of Justice ruled that the Italian‘Giudice conciliatore’ had an obligation to make a reference, although an appeal to the ItalianCourt of Appeal (Corte di Cassazione) against its judgment for breach of law was admissible (achallenge that in any case the Court of Justice deemed to be unlikely), see Case Costa, Fn. 2above.

52. Case 283/81 Cilfit [1982] ECR 3415 and Case Intermodal Transports, Fn. 47 above.

Chapter 8: Preliminary Rulings and Competition Law §8.04[A]

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the particular difficulties in interpreting it, especially as regards linguistic differences;and the risk of divergence in judgments within the Union. In the final analysis, thenational court or tribunal deciding not to refer a question must be convinced that theseemingly obvious conclusion would have to be equally obvious to the courts andtribunals of the other Member States and to the Court of Justice itself.53 Naturally, thepresence of one of the three conditions mentioned above does not prevent the court ortribunal concerned from seizing the Court of Justice although such a court or tribunalmight not be obliged to do so.54

Finally, regarding the existence of a precedent of the Court of Justice relating toa question concerning the validity of an act, a distinction shall be drawn between twocases: (i) if the precedent concerns a judgment declaring the EU act to be valid in itsentirety, the national court or tribunal against whose decisions there is no judicialremedy under national law has no reason not to abide by that ruling and draw theimmediate consequences from it for its own judgment in the main proceedings (whilemaintaining its right to refer a new question to the Court of Justice); (ii) if the precedentconcerns a judgment declaring the invalidity of the act, there is no obligation to makea reference, neither for courts or tribunals against whose decisions there is no judicialremedy under national law nor, even less so, for bodies of lower degrees of jurisdiction.

§8.05 PRELIMINARY REFERENCES OF QUESTIONS OF VALIDITY

Despite the fact that Article 267 TFEU does not impose an obligation on courts ortribunals against whose decisions there is a judicial remedy under national law to makepreliminary references, the Court of Justice has ruled that they are not permitted todeclare an EU act invalid but have to ask the latter to rule on its validity.55 In supportof this interpretation, the Court of Justice has stated that ‘differences between courts of

53. This, however, does not overcome the difficulty of applying such a criterion (formulated by theCourt at a time when the Community still only had ten Member States only and far fewer officiallanguages than it does today). This aspect was considered by the Working Group set up to studythe preliminary reference procedure by the ‘General Assembly of the Association of the Councilsof State and the Supreme Administrative Jurisdictions of the European Union’ on 14 May 2007,in which it emerged that the national courts often tended towards a reductionist interpretationof the criteria indicated in Case Cilfit, Fn. 52 above, leading to the wish that, in a new decision,the Court of Justice would redraw the boundaries of the necessary action for a reference for apreliminary ruling (cf. conclusions of the Working Group available at www.juradmin.eu).

54. Joined Cases C-428/06 and C-434/06 UGT-Rioja [2008] ECR I-6747 and Case C-260/07 Pedro IVServicios [2009] ECR I-2437.

55. Case C-314/85 Foto-Frost [1987] ECR 4199. The application of this case law principle wasexplicitly mentioned in the ‘Commission Notice on the cooperation between the Commissionand the courts of the EU Member States in the application of Articles [101 and 102 TFEU]’ (OJC 101, 27.4.2004) with regard to the case where the national judge questions the legality of adecision adopted by the Commission (which it should abide by pursuant to Article 16, para. 1,of Regulation No. 1/2003, see below in para. 12) and wishes not to be bound by such a decision.This is only possible where the Court rules against the decision, as the interpretation of the latteris not affected by the binding effect of the Commission’s decision. Therefore, if a national judgeintends to rule against the decision, such judge shall necessarily refer the question to the Courtfor a preliminary ruling (Commission Notice, para. 13).


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the Member States as to the validity of [EU] acts would be likely to jeopardize theessential unity of the [Union’s] legal system and undermine the fundamental require-ment of legal certainty’.56

In the final analysis, although a domestic court or tribunal against whosedecisions there is a judicial remedy under national law may abstain from submitting aquestion of interpretation to the Court of Justice, in cases where it is confronted witha question of validity, such a court or tribunal has two possibilities: (i) it must refer thequestion if it has any doubt whatsoever as to the validity of the EU act; (ii) it is notforced to do so if it has well-founded grounds for believing that the EU act is valid (noris it forced to refer the question in cases where the Court has already declared theinvalidity of the EU act concerned57).

However, the Court of Justice has accepted that any national court having seriousdoubts as to the validity of an EU act may either suspend the implementation of thenational act based on the EU act, provided that it refers the question of the validity ofthe latter to the Court58 and that applications were made for the national court to orderinterim relief,59 or suspend the application of such EU act.60 In this potentially awkwardsituation, the Court of Justice has again shown that it is particularly sensitive to theneed to preserve the rights of private individuals, who would suffer a clear prejudice ifthe national court or tribunal were not able to grant them interim relief, having to waitfor the final ruling of the Court of Justice as regards the validity. Considering the timeneeded to process a case (sixteen months on average in recent years), this wouldotherwise translate into the essential negation of the possibility of effectively invokinginterim relief.

56. On this point cf. Case Gaston Schul, Fn. 5 above, and Case IATA and ELFAA, Fn. 5 above.57. Case 66/80 International Chemical Corporation [1981] ECR 1191 and Case C-421/06 Fratelli

Martini and Cargill [2007] ECR I-0000.58. On this point it might be useful to mention that the Italian legislator has included a provision in

Law No. 101 of 6 June 2008 (published in the Italian Official Journal No. 132 of 7 June 2008)whereby, in civil proceedings concerning the acts and procedures intended to recover State aidsby executing a recovery decision adopted by the Commission, the national court is allowed togrant suspension of the administrative or judicial payment title whenever: (i) there are seriousgrounds for doubting the legality of the recovery decision; (ii) there is an evident error in theidentification of the subject required to repay the aid or in the calculation of the sum to berecovered; and (iii) there is a risk of an imminent and irreparable prejudice (cf. in particularArticles 1(1) and 2(1)). On this point see B Nascimbene, Giudice nazionale, recupero di aiuti diStato e rinvio pregiudiziale d’urgenza alla Corte di giustizia, in Corriere Giuridico (2009) pp. 858ff. In cases where the suspension is based on reasons to do with the illegality of the recoverydecision, the national court is to stay the case and to lodge an immediate preliminary referenceof the question to the Court of Justice, if the question of the validity of such act has not alreadybeen referred. In accordance with the stance consistently taken by the Court of Justice, thelegislator also specifies that the application for suspension cannot be accepted in a case wherethe applicant has not lodged an appeal against the recovery decision as provided for by Article263 TFEU.

59. Joined Cases C-143/88 and C-92/89 Zuckerfabrick [1991] ECR I-415.60. Case C-465/93 Atlanta Fruchthandelsgesellschaft and others [1995] ECR I-376.


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[A] The Relationship between Ascertaining Validity through a Referencefor a Preliminary Ruling and Actions for Annulment

It is barely worth reviewing the relationship between the reference for a preliminaryruling concerning an assessment of validity and the action for annulment pursuant toArticle 263 TFEU as these are two complementary instruments,61 both aiming atacknowledging the illegality of an EU act. Specifically, it is a matter of determiningwhether in a given situation admitting the admissibility of an application for apreliminary ruling ‘of validity’ may be a way of eluding the provisions of Article 263TFEU. Thereupon, the Court has made it clear that any applicant who failed to makeuse of the latter remedy against an act, despite being informed of and having thepossibility of using it, would be precluded by the principle of legal certainty, after theend of the period allowed to commence an action for annulment, from challenging suchact via a preliminary question to ascertain its validity.62 However, this preclusion isonly effective in practice if it may also be demonstrated ex post that a direct actionunder Article 263 TFEU would manifestly be admissible beyond any doubt.63

§8.06 ‘CONSEQUENCES’ FOR FAILURE TO COMPLY WITH THEOBLIGATION TO REFER A QUESTION FOR A PRELIMINARYRULING

The failure by a last-instance court to make a reference for a preliminary ruling is notwithout consequences. Such failure can still constitute an infringement of Article 267TFEU by the national judge even if the latter has correctly followed the procedure forconsidering whether or not a preliminary reference would be necessary. Such an

61. As pointed out by the Court of Justice, in the complete system of legal remedies and proceduresestablished by the Treaty to ensure the judicial review of legality of the EU acts, natural and legalpersons that cannot, because of the admissibility requirements provided for at Article 267 (4)TFEU, directly challenge EU acts having a general import are entitled, depending on the case, toenforce the invalidity of such acts, whether incidentally pursuant to Article 277 TFEU before theEU judge or before national judges, inviting the latter, who are themselves not competent tojudge the validity of such acts, to refer a question to the Court for a preliminary ruling, see CaseC-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR 11453,para. 39.

62. Case C-188/92 TWD [1994] ECR I-833 and Case C-239/99 Nachi Europe [2001] ECR I-1197; as faras the Member States are concerned, see Case C-241/01 National Farmers Union [2002] ECRI-9079. As for the TWD Case in the context of the new standing of natural and legal persons tochallenge certain measures of general application extended by the Treaty of Lisbon, see RSchwensfeier, The TWD principle post-Lisbon, European Law Review (2012) 37(2), 156–175.Such a situation may easily occur with respect to State aids, where the beneficiary of the aiddeclared by the Commission to be incompatible challenges the order of recovery before thenational judge, invoking the illegality of the Commission’s decision without first challenging itbefore the EU Court pursuant to Article 263 TFEU; see the ‘Commission notice on theenforcement of State aid law by national courts’, OJ C 85, 9.04.2009, 1-22.

63. Case C-241/95 Accrington Beef and others [1996] ECR I-6699; Case C-346/03 and C-529/03Atzeni and others [2006] ECR I-1875; Case C-343/07 Bavaria and Bavaria Italia [2009] ECRI-5491, para. 40; and Case C-494/09 Bolton Alimentari [2011] ECR I-647, paras 22 and 23.


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infringement is likely to entail the liability of the Member State concerned,64 againstwhich it is possible to initiate an infringement proceedings as provided for in Article258 TFEU.65 A failure to fulfil the obligation to lodge a preliminary reference may alsogive rise to actions for compensation against the Member State concerned on thegrounds of the extra-contractual liability of the latter. As the Court itself has clearlystated, ‘the principle that Member States are obliged to make good damage caused toindividuals by infringements of [EU] law for which they are responsible is alsoapplicable where the alleged infringement stems from a decision of a court adjudicatingat last instance’.66 It shall be noted that the Court of Justice has made it clear that EUlaw precludes, on the one hand, any national legislation that generally excludes theliability of the Member State for damage caused to private individuals as a result of aninfringement of EU law due to a court adjudicating at last instance (in the case in pointthe Italian Court of Appeal, ‘Corte di Cassazione’) and, on the other hand, also anynational legislation limiting liability solely to cases of intentional fault and seriousmisconduct on the part of the national court or tribunal.67

64. For a detailed examination of the blatant cases of failure by Italian courts to make a reference,please refer to Condinanzi, Fn. 46 above, 323–333.

65. It is worth noting, by the way, that when the court fails to comply with a preliminary ruling italso constitutes a breach of EU law so that the Commission may commence an infringementaction under Article 258 TFEU against the State concerned. Moreover, a failure to comply witha preliminary ruling can constitute such a serious infringement of EU law that it will also triggerState liability. On the infringement proceedings, see generally L Prete and B Smulders, TheComing of Age of Infringement Proceedings (2010) 47 Common Market Law Review, 9. Althoughin the past the Commission took the first steps in various infringement proceedings on the basisof Article 258 TFEU on the grounds of failure to comply with the duty to make a preliminaryreference (essentially in cases of abuse of the theory of ‘acte clair’) by national courts andtribunals against whose decisions there is no judicial remedy under national law, none of thesehas to date given rise to any action before the Court of Justice. On this point, reference is made,among other things, to Case C-154/08 Commission v. Spain [2009] ECR I-0000, paras 64–66.Within the meaning used by the German Constitutional Court, for instance, the Court of Justiceis a ‘legal judge’ of the parties pursuant to Article 101 of the German Constitutional Chart.Therefore, if a last-instance jurisdictional body does not make a reference for a preliminaryruling, in breach of Article 267 TFEU, the Constitutional Court shall have jurisdiction to overturnsuch a judgment for breach of the Constitution (see, for instance, the order of the Bundesver-fassungsgericht dated 9 January 2001 relating to a decision of the Bundesverwaltungsgericht onthe equality of men and women in the medical profession, BvR 1036/99).

66. Case C-224/01 Köbler [2003] ECR I-10239.67. Case Traghetti del Mediterraneo Fn. 2 above. In this respect it seems hardly necessary to point

out that the Court’s judgment in this case was followed up by action before the national courtfrom which the reference for a preliminary ruling came in the first place, the court of Genoa(Italy). This court lodged a new question for an interpretative type of preliminary ruling, askingthe Court of Justice whether the national legislation that had permitted the grant of the disputedaid to the business in competition with the company that was the plaintiff in the mainproceedings was compatible with the Treaty rules on State aid, cf. Case C-140/09 FallimentoTraghetti del Mediterraneo [2010] ECR I-5243. However, following the judgment of the CaseTraghetti del Mediterraneo, the Commission commenced an infringement proceeding againstItaly pursuant to Article 258 TFEU, aimed at obtaining the declaration that, as Italy had limitedthe liability of the State – pursuant to Article 2, paras 1-2, of Law No.117 of 13.4.1988 on thecompensation of damage caused in the exercise of judicial functions and on the civil liability ofmagistrates (Italian OJ No. 88 of 15.4.1988, 3) – for the damage caused to individuals followinga breach of EU law by a court adjudicating at last instance, Italy had not complied with its


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Finally, it is only worth mentioning that, recently, the European Court of HumanRights (unanimously) held that the Belgian Council of State’s failure to make apreliminary reference to the Court of Justice, dismissing the application by one of theparties in that sense, did not constitute an infringement of Article 6 of the EuropeanConvention of Human Rights, concerning the principle of fair trail, because the Councilof State had set out its reasons for not making a preliminary reference.68

§8.07 CLEAR-CUT ‘DIVISION OF LABOUR’ AND COOPERATIONBETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE

As already stated, the Court of Justice does not rule on whether a national lawapparently in conflict with EU law is indeed precluded by it. Its competence is limitedto providing the domestic court with the elements of interpretation to be drawn fromEU law and helping to put it in a position to rule on such compatibility by giving itsjudgment in the main proceedings.

However, in going further than abstractly begging the question, the Court hasrather circumvented the problem, but has managed to arrive at a substantially identicalresult by using formulae along the lines of: ‘provision x of the Treaty (or regulation ordirective) precludes a provision of national law that lays down that …’. The Courtthereby transforms an abstract, hypothetical question into a problem of a conflictbetween two legal systems, which it is up to the national court to settle. It is thuspossible to use the preliminary reference to obtain a ruling, albeit an indirect one, onthe compatibility of the domestic legal provision with EU law, and the effects of this arenot very different from those resulting from a judgment based on Article 258 TFEU asthe outcome of infringement proceedings instituted by the Commission.

On the one hand, the Court of Justice provides the referring court with a bindinginterpretation of EU law and has also the monopoly of reviewing the validity of EU acts.However, it carries out these functions in a way that fully respects the jurisdiction ofthe referring court. Only the latter has jurisdiction to decide whether or not to refer thequestion,69 compile the case file and state the facts of the case, and therefore interpretand apply national law as well as EU law to the case submitted to it.

obligations pursuant to the general principle of the liability of Member States for the infringe-ment of EU law by one of their court adjudicating at last instance. The Court upheld theCommission’s application and sentenced Italy accordingly, see Case C-379/10 Commission v.Italy [2011] ECR I-0000.

68. Ullens de Schooten and Rezabek v. Belgium ECHR [2011] of 20 September 2011 (Applicationsnos. 3989/07 and 38353/07). Indeed, the question of whether a national court’s failure to makea preliminary reference constitutes a breach of Article 6 of the European Convention of HumanRights has arisen on several occasions, see on this point Broberg and Fenger, Fn. 1 above,271–272.

69. Therefore, in technical terms it is impossible to speak of a ‘request for a preliminary ruling’ bythe parties to the case. In a case where both the Commission and one of the parties to the caserequested the Court to rule not only on the current Article 106 TFEU, but also on the currentArticle 105 TFEU, the Court answered in the negative, pointing out that the national judge hadonly mentioned the former article in the order for reference and the plaintiff in the main case hadnonetheless and explicitly requested to call on the Court also with respect to the interpretationof the current Article 105 TFEU, see Case 247/86 Alsatel [1988] ECR 5987, para. 8.


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The adjudicating national court or tribunal is also free to decide at what stage ofits proceedings to refer a question to the Court of Justice70 even though the latter hasstated that it is preferable to wait to have all the necessary elements of fact and lawavailable to the national court or tribunal, so that the latter is able to present a view ofthe main proceedings to the Court of Justice that will put it in a position to give a helpfulruling71 and also to have the inter partes hearing conducted.72

In the absence of any rules stating in advance what type of mechanism is to beused for referring questions for a preliminary ruling to the Court of Justice, there is anabsolute freedom of form as to how this is to be done, and the national court is likewisefree to decide on its contents.

In the dialogue created between the national court or tribunal and the Court ofJustice, it is therefore the former, the only court to have full knowledge of the facts ofthe case, which is in the more suitable position to assess the relevance of the questionsof law that have been raised and the need to have a preliminary ruling before it canadjudicate.73 It follows that, according to the Court of Justice, provided that thequestions raised by the referring court or tribunal do deal with the interpretation of EUlaw, such court or tribunal is required to issue a ruling as a matter of principle.74 In thiscontext the Court, driven by the desire to provide a useful answer, had not hesitated toact on the questions received,75 and it rephrased the questions asked in an obscure76 or

70. Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association [1981] ECR 735 andCase C-470/03 A.G.M.-COS.MET [2007] ECR I-2749 (according to the Court of Justice, thedecision as to the stage at which a question should be referred to the Court for a preliminaryruling falls within the unrestricted discretion of the national court). Concerning a case in whichthe Court decided to reply to the questions for preliminary rulings raised in the context of apreliminary hearing, reference is made to the Case C-303/06 Coleman [2008] ECR I-5603.Furthermore, in a recent judgment (Joined Cases C-188/10 and C-189/10 Melki and Abdeli[2010] ECR I-5667) the Court of Justice has reaffirmed, in giving its view on the compatibilitywith EU law of the procedural mechanism known as ‘priority question of constitutionality’,recently introduced in France, that the national court is free at any stage of the proceedings thatit deems to be fit, and thus also at the end of incidental proceedings of constitutionality, tosubmit to the Court of Justice any question for a preliminary ruling that it considers as beingnecessary. In this way, it has found that Article 267 TFEU does not preclude national legislationestablishing an incidental procedure for scrutinizing the constitutionality of national laws,provided that the other national courts and tribunals remain free to: (i) refer to the Court atwhatever stage in the proceedings that they consider appropriate, including at the end ofinterlocutory procedure for the review of constitutionality; (ii) adopt any necessary measures toensure the interim judicial protection of the rights bestowed by the legal system of the EuropeanUnion; and (iii) disapply the national legal provision at issue at the end of the above-mentionedprocedure should they find it to be incompatible with EU law.

71. Case C-14/86 Pretore di Salò v. X [1987] ECR 2545.72. Case C-332/92 Eurico Italia [1994] ECR I-711 and Case C-18/93 Corsica Ferries [1994] ECR

I-1783. As regards the situations where, under Italian law, the court is offered the possibility ofsubmitting a question for a preliminary ruling to the Court of Justice and of a judgment onconstitutionality, see Italian Constitutional Court, order No. 1 of 21 March 2002, No. 85, ItalianOJ No. 13 of 27 March 2002, in which the Italian Constitutional Court declared a question ofconstitutionality to be inadmissible, feeling that the judgment of constitutionality would dependon the reply by the Court of Justice concerning the applicability of the provisions of domestic lawconcerned.

73. Case C-83/91 Meilicke [1992] ECR I-4871.74. See, e.g., Case C-318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I-905.75. See Wathelet, Fn. 1 above, 345–349.


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improper77 manner, grouped those that were too numerous or repetitive, or placedthem in a hierarchical order or in a different logical order.78 Furthermore, the Courtbelieves that in the presence of questions asked in an incorrect way79 or falling outsidethe scope of its competence provided for by Article 267 TFEU, it should anyway identifythe aspects of EU law worth interpreting (or the validity of which was worth assessing).Similarly, when a question of interpretation is referred to the Court, it would be illogicalto prohibit it from giving a ruling on invalidity where the legal prerequisites are met80

and the ruling may be used by the referring court.81 The ‘effet utile’ (effectiveness) isthe principle always at stake, corroborated by the one of judicial economy, whichmakes it legitimate for the Court to issue declaratory judgments on the invalidity of anEU legal provision on grounds of a different primary provision of EU law from the oneindicated by the referring court or tribunal82 – this is a clear departure from thewell-known principle that the judicial decisions must be commensurate with therequest made by the parties.83

However, such a strict definition of roles would prevent the Court of Justice fromchecking the wording of the question referred by the national court or tribunal, fromassessing the truthfulness and exactitude of the reconstruction made in the order forreference and, consequently, from judging the actual relevance of the questionreferred. It is a matter of fact that the Court of Justice has long been reluctant toexamine the relevance of the questions submitted to it for preliminary rulings.84

Despite that, the competence of the national court or tribunal cannot be consid-ered as being exclusive and must be reconciled with the need to preserve the functionassigned to the Court of Justice, which consists in contributing to the administration ofjustice in the Member States and not in giving opinions on general or hypotheticalquestions.85 The Court of Justice has thus gradually established a number of require-ments, which it also uses to evaluate the relevance of the questions referred and, ifappropriate, to declare their inadmissibility86 (in whole or in part, by order87 or by

76. Case C-107/98 Teckal [1999] ECR I-8121, para. 34.77. Joined Cases C-317/08 to C-320/08 Alassini and others [2010] ECR I-2213, para. 37.78. Case C-158/06 ROM-Projecten [2007] ECR I-5103, para. 19.79. Case C-74/09 Bâtiments and Ponts Construction and WISAG Produktionsservice [2010] ECR

I-7271.80. On this point, see Case 16/65 Schwarze [1965] ECR 1081; for the opposite hypothesis, see Case

29/69 Stauder [1969] ECR 419.81. Case C-383/98 Polo Lauren [2000] ECR I-2519, paras 23 ff.82. See, e.g., Case 62/76 Strehl [1977] ECR 211.83. On this point see D’Alessandro, Fn. 1 above, 101–114.84. According to C Barnard and E Sharpston, The changing face of Article 177 references (1997)

Common Market Law Review, 1113-1171, at 1117, in the early years the Court of justice ‘gave theimpression that it was delighted to receive Article 177 references from national courts, and it wasduring this phase that the Court established some of the fundamental tenets of Community law’.

85. See, among other things, Case C-144/04 Mangold [2005] ECR 9981, para. 36. See also CaseBudejovický Budvar, n. 17 above, para. 64.

86. For an exemplification of the various aspects of inadmissibility of the individual questions, seethe recent Case Kamberaj, Fn. 10 above, paras 40–58.

87. According to Articles 53(2) and 99 of the Rules of Procedure, where it is clear that the Court hasno jurisdiction to hear and settle a case or where a request or an application is clearlyinadmissible, the Court may decide to issue a decision by a reasoned order without taking anyfurther steps in the proceedings. According to Article 99 of the Rules of Procedure, the Court of


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judgment88), or to declare that it does not have jurisdiction; or it has used the formula‘no need to adjudicate’ or ‘no need to reply’.89

[A] The ‘Inadmissibility’ of Questions Referred for a Preliminary Ruling

In this context the Court of Justice’s approach is controversial and has been criticizedin the legal literature.90 Indeed, on the one hand neither the Treaty nor the rules ofprocedure defined the minimum conditions the absence of which led to declare theinadmissibility of a question referred for a preliminary ruling (see, however, Article 94of the new Rules of Procedure, n. 121 below). Whereas, the Court case law on thesubject seems, at first sight, to be casuistic and not very scientific and, therefore,difficult to predict and classify.91

Although it is far from easy to categorize the various types of inadmissibilityorders issued by the Court of Justice, there are various recurring motifs in thoserulings.92

First of all, the Court of Justice has declared that questions referred for prelimi-nary ruling are inadmissible if they are manifestly irrelevant for the solution of the mainproceedings. On this point, it may be true that assessing the relevance of the questions(assumed to be relevant) should be left to the court or tribunal making the reference,but it is equally true that, in respect of the spirit of reciprocal cooperation, the Court of

Justice may at any time, after hearing the Advocate General, decide to rule by reasoned Orderwhere: (i) a question referred to the Court for a preliminary ruling is identical to a question onwhich the Court of Justice has already ruled; or (ii) the reply to such a question may be clearlydeduced from existing case law or (iii) the answer to the question referred for a preliminaryruling admits of no reasonable doubt.

88. In the case of orders, the questions are rejected in their entirety, whereas in the case ofjudgments some of the questions asked are rejected, while answers are given to the others.However, it shall be noted that in some cases, e.g., in Case 104/79 Foglia v. Novello I [1980] ECR745 and Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo [1993] ECR I-393, the Courtrejected the questions submitted for a preliminary ruling in their entirety by a judgment.

89. See, respectively, e.g., Case C-155/11 PPU Mohammad Imran [2011] ECR I-5095 and CaseC-525/06 Nationale Loterij [2009] ECR I-2197.

90. It is worth noting that until the mid-1990s the Court of Justice adopted a mild approach and onlyin very rare cases did it refuse to issue rulings on references worded unsatisfactorily. A changein practice was introduced in 1993 with Telemarsicabruzzo case and since then the dismissal ofdefective reference has become the norm (see Broberg and Fenger, Fn. 1 above, 302). For anin-depth and critical study of the case law on inadmissibility, see, in particular, Vandersanden,Fn. 1 above, 60–77; Barav, Fn. 1 above, 19–36 and 252–271, and also P Oliver, La recevabilité desquestions préjudicielles: la jurisprudence des années 1990, in Cahiers de droit européen (2001)No. 1–2, 15–43. According to the Advocate-General Jääskinen’s Opinion in Case C-393/08Sbarigia [2010] ECR I-6337, in principle the questions referred for a preliminary ruling shouldnot be declared to be inadmissible; rather, their merits should be examined. In this respect,Advocate-General Jääskinen argued that ‘the fact that the Court merely points out that thequestion is inadmissible could be perceived by national judges as a breach of the principle ofcooperation with them – a fundamental principle, which regulates the relationship in question.’

91. As rightly pointed out by Borraccetti and Reale, Fn. 1 above, 176, in the absence of a systematicavailability of essential information on the subject (about the use of seemingly interchangeableexpressions such as ‘inadmissibility’, ‘lack of jurisdiction’ or ‘no need to adjudicate’), it isimpossible to understand, for instance, the proportion of the questions rejected because they aretoo generic, the proportion of those rejected because they are inaccurate, or are deemed to beirrelevant or concern similar matters already resolved.

92. See, e.g., Case C-467/05 Dell’Orto [2007] ECR I-5557.


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Justice does check that the referring court has not exceeded the limit of the discretion-ary power granted to it by law.93 Accordingly, preliminary questions have beendeclared inadmissible where: (i) they had no bearing on the actual circumstances or onthe subject matter of the main proceedings;94 (ii) they concerned proceedings alreadyclosed;95 (iii) they were general and merely hypothetical in nature;96 (iv) they dealtwith questions of interpretation, the solution of which was not necessary for adjudi-cating the main proceedings;97 or (v) they related to situations falling outside the scopeof EU law.98

Second, the Court of Justice has ruled as inadmissible those preliminary ques-tions that while appearing in the reference document omit the necessary explanation offact and law for it to be able to provide a helpful answer.99 Indeed, in the absence ofsuch explanation, the Court is not in a position to protect the rights of the interestedparties entitled to submit remarks or to supply the national court with an answer thatis useful to it.100

Third, the Court of Justice has ruled as inadmissible questions arising in thecontext of fabricated or friendly litigation.101 However, it has shown extreme caution inthis respect, hesitating to consider pleas as being inadmissible on the grounds of theartificial nature of the national dispute.102 The admissibility of the preliminary refer-ence has thus not been ruled out in cases where the parties were in agreement on theresult to be obtained so long as the question per se dealt with an objective need to findthe solution in the main proceedings.103

However, the Court of Justice will refuse to reply to questions asked by thereferring court, when the EU provisions for which interpretation is sought are not

93. Case C-380/05 Centro Europa 7 [2008] ECR I-349.94. Case C-286/88 Falciola [1990] ECR I-191.95. Case 338/85 Pardini [1988] ECR 2041.96. Case C-343/90 Lourenço Dias [1992] ECR I-4673.97. Case C-448/01 EVN and Wienstrom [2003] ECR I-14527.98. Cf. Case C-299/95 Kremzow [1997] ECR I-2629, in which the Court of Justice found no

connecting factor with EU law; and Case C-302/04 Ynos [2006] ECR I-371 dealing with a caseof inapplicability of EU law ratione temporis.

99. Case C-295/05 Asemfo [2007] ECR I-2999. For instance, in a recent order the Court of Justicedeemed it to be clearly inadmissible a question for a preliminary ruling submitted by the courtof Torre Annunziata (Italy) concerning the interpretation of a number of provisions of (EC)Regulation No. 2201/2003 of the Council, dated 27.11.2003, relating to the jurisdiction, theacknowledgement and the implementation of the decisions on matrimony and on parentalresponsibility, as the judge who referred the relevant question not only had not described thefacts, but had also failed to state the factual assumptions upon which the question was based.Furthermore, the Court of Justice added that the referring judge ‘did not offer any circum-stantial information on the national law context such as to enable the parties to make remarksand the Court to provide useful answers. Finally, the judge who referred the question did notexplain in sufficient detail the exact reasons why it deemed the requested interpretation of EUlaw to be necessary for resolving the main proceedings and did not formulate questions forpreliminary rulings in order to obtain such interpretation’ (Case C-185/12 Ciampaglia [2012]ECR I-0000, paras 7-10).

100. Case Telemarsicabruzzo, Fn. 88 above; Case C-134/03 Viacom Outdoor [2005] ECR I-1167;and Case C-42/07 Liga Portuguesa de Futebol Profissional [2009] I-7633.

101. Case Foglia v. Novello, Fn. 88 above and Case 244/80 Foglia v. Novello II [1981] ECR 3085.102. Case 267/86 Van Eycke [1988] ECR 4769 and Case C-144/04 Mangold [2005] ECR I-9981.103. Case C-412/93 Leclerc-Siplec [1995] ECR I-179.

Daniele P. Domenicucci§8.07[A]

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applicable to the facts of the case and where it is a ‘purely domestic’ situation (thelatter, however, being a context in which it is difficult to draw the dividing line betweenadmissible and inadmissible questions).104

In this respect, in relation to questions raised for preliminary ruling that concernEU competition law provisions in purely domestic disputes,105 it is worth mentioningthat the interesting case law (see also Fn. 20 above) that has deemed questions for apreliminary ruling concerning an EU law provision to be acceptable even where suchprovision does not appear to apply to the case in point, in the specific case where thenational law of a Member State refers to the contents of the rule in question todetermine the rules to be applied to a situation existing merely within such MemberState. Indeed, according to the Court of Justice, it is clearly in the interest of the EU legalsystem to ensure a uniform interpretation of all EU law provisions, irrespective of theconditions in which they will be applied, so as to avoid any future interpretationdivergences although it is then the responsibility of national judges to implement theprovision interpreted by the Court of Justice, in view of the factual and legalcircumstances of the case submitted to them, and also to determine the exact import ofthe reference to EU law.

The application of this case law, which was highly criticized by some Advocates-General,106 has strongly established itself in the area of competition law.107 Specifically,in the judgments Oscar Bronner,108 Poseidon Chartering,109 ETI110, Confederación

104. See, in various respects, Case Sbarigia, Fn. 90 above (as well as the Advocate-GeneralJääskinen’s Opinion in the same case), and Case C-482/10 Cicala [2011] ECR I-0000.

105. Recently, e.g., in Case C-32/11 Allianz Hungária Biztosító and others [2013] ECR I-0000,despite the purely domestic nature of the dispute at the centre of the main proceedings, theHungarian Supreme Court deemed it advisable to submit a question concerning the interpre-tation of Article 101 TFEU as the qualification of such agreements, according to the Hungariancompetition domestic law, is based on identical concepts, as to their contents, to those referredto by the above-mentioned Article 101 TFEU (see the Opinion of the Advocate-General CruzVillalón in this case).

106. Cf. Vandersanden, Fn. 1 above, 43–46; see also Advocate-General Ruiz Jarabo Colomer’sOpinion in Case C-1/99 Kofisa Italia [2001] ECR I-207, paras 22 ff. For instance, Advocate-General Tesauro in his Opinion in Kleinwort Benson (Case C-346/93 Kleinwort Benson [1995]ECR I-615, para. 26, concerning the ‘Brussels Convention’) argued: ‘I do not believe that theItalian court could ask the Community judicature for an interpretation of Article 85 of the Treatyin order to apply the corresponding national provision; and I am even more certain that in anyevent it would not receive a reply from the Court that it was seeking’. In this case, the Court ofJustice, following the Advocate-General Tesauro’s Opinion, declined jurisdiction. The Court ofJustice was, in fact, concerned to ensure that, as a matter of national law, the preliminary rulingwould bind the interpretation of the relevant domestic provisions. Its conclusion was that sucha binding effect would only be felt when national law contained a ‘direct and unconditional’reference to EU law.

107. Cf. M Attew, National Competition Law and the Preliminary Ruling Procedure, EuropeanJournal of Law Reform (2000) Vol. 2, No. 2, 241–257.

108. Case C-7/97 Oscar Bronner [1998] ECR I-7791. In this case the Oberlandesgericht Wien referredto the Court of Justice, asking whether the conduct complained of by Oscar Bronner, thepublisher of an Austrian daily newspaper, claiming that a publisher of a rival newspaper hadbreached a provision of domestic law, based on Article 86 EC (now Article 102 TFEU),constituted an abuse of dominant position contrary to the latter. The Court of Justice ruled thereference to be admissible on the grounds that the referring court was faced with a genuinequestion of Community Law, see on this point Attew, Fn. 107 above, 253–256.

109. Case C-3/04 Poseidon Chartering [2006] ECR I-2505.


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Española de Empresarios de Estaciones de Servicio,111 and, recently, Allianz HungáriaBiztosító and others112 the Court of Justice declared a number of questions for apreliminary ruling to be admissible where in principle the main proceedings remainedoutside the scope of application of EU law and in actual fact concerned only nationalcompetition rules.113

In these cases, to defend its jurisdiction the Court of Justice also invoked theargument based upon the need to forestall future differences of interpretation on agiven legal provision of the European Union, depending on whether the latter is onlyapplicable indirectly (through a reference by national law) or directly (as it falls withinthe scope of application of national law and of Article 101 TFEU).114

Furthermore, in the presence of a gradual Europeanization of domestic compe-tition law,115 which has taken vast proportions in the case of certain national legalsystems those essentially following EU law, the national judge may have somedifficulties understanding the distinction between a situation where the question for apreliminary ruling is likely to be declared admissible and those where it is not.

Advocate General Cruz Villalón suggested in Allianz Hungária Biztosító andothers116 that it should only be in the presence of an explicit ‘direct and unconditionalreference’ to EU law117 that questions for a preliminary ruling should be ruledadmissible where the reference by the national legislature concerns a provision ofcompetition law.

Thus, the declaration of inadmissibility essentially remains the extrema ratio,with the result that, still from the point of view of the full cooperation inspiring thedialogue and the division of labour between the Court of Justice and the referring courtor tribunal, the former may, after hearing the Advocate General, request clarification

110. Case C-280/06 ETI and others [2007] ECR I-10893.111. Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR

I-11987.112. See Fn. 105 above.113. Similarly, according to the Court of Justice, the fact that the national court has not yet issued

a final decision on the question as to whether national competition law alone should be appliedor whether, on the contrary, EU law is also applicable is not an obstacle to the admissibility ofits reference, see Case C-439/08 VEBIC [2010] ECR I-1247, para. 45.

114. See Case Oscar Bronner, Fn. 108 above, paras 19–20; Case Poseidon Chartering, Fn. 109 above,para. 16; Case ETI and others, Fn. 110 above, para. 26; Case Confederación Española deEmpresarios de Estaciones de Servicio, Fn. 111 above, para. 20; and Case Allianz HungáriaBiztosító and others, Fn. 105 above, para. 20.

115. According to Attew, Fn. 107 above, 243, there are different ways in which domestic competi-tion law draws on EU Law: (i) domestic law may transpose aspects of the Treaty and associatedsecondary legislation; (ii) domestic law may incorporate passages from EU case law; (iii)domestic law may attribute EU principles a general role in matters of interpretation.

116. See Advocate-General Cruz Villalón’s Opinion in Case Allianz Hungária Biztosító and others,Fn. 105 above, para. 48.

117. As argued by the Court of Justice at para. 19 of Case Cicala, Fn. 104 above, an interpretation ofEU law provisions in purely domestic situations is justified because they are made applicableby national law in a direct and unconditional way (see, to that effect, Case Kleinwort Benson,Fn. 106 above, para. 16, and Case ETI and Others, Fn. 110 above, para. 25), so as to ensure thatdomestic situations and situations governed by EU law are treated in the same way.


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from the latter, so as to dispel any doubt about the admissibility of the question118 (onthis point see Article 101 of the Rules of Procedure119).

Specifically, to solve the recurrent problem of the incompleteness of somequestions referred for a preliminary ruling, which, as mentioned above, obliges theCourt of Justice to declare them to be inadmissible in the event of the total absence ofparticulars on the legal or factual circumstances of the main case, or, exceptionally, forthe lack of any question, the court has stated in a new article (Article 94 of the Rules ofProcedure)120 – directly inspired to the ‘Information Note on references from nationalcourts for a preliminary ruling’ – the minimum required contents that any questionreferred for a preliminary ruling must have.121

As regards the subject matter of cases dealt with, by far the largest number ofquestions rejected by the Court of Justice has concerned the interpretation of theprovisions concerning competition122 and/or State aids, often in conjunction with or as

118. Cases C-467/06 Consel Gi. Emme [2008] ECR I-0000, para. 14, and C-20/05 Schwibbert [2007]ECR I-9447. Most recently: Case C-384/08 Attanasio Group [2010] ECR I-2055, paras 28-29. Inany case, the reply of the referring court or tribunal to that request for clarification did notnecessarily result in the admissibility of the question for a preliminary ruling, see, among otherthings, Case C-54/03 Austroplant-Arzneimittel [2004] ECR I-0000.

119. According to Article 101 (‘Request for clarification’), the Court of Justice may ask the nationaljudge to provide additional factual information if the order for referral is either ambiguous orincomplete on a given point which turns out to be relevant. In practice, this provision enablesthe Court of Justice to also enquire with the national judge whether the referral has lost itsobject (see Case C-134/94 Esso Espanola [1995] ECR I-4223, para. 7), for instance because of anintervening judgment by the Court of Justice (Case C-254/06 Zürich Versicherungs-Gesellschaft[2007] ECR I-0000; see also B Wägenbaur, Court of Justice of the EU – Commentary on Statuteand Rules of Procedure –, Munich, Oxford, Baden-Baden (2013) 340–342. In this regard, referalso to Case C-240/12 Le relais [2013] ECR I-0000, paras 14–21, where the Court of Justicefound a preliminary reference to be inadmissible for lack of adequate information provided bythe referring judge, even after repeated and unanswered information requests.

120. Title III (‘References for a preliminary ruling’) of the new rules of procedure, which came intoforce on 1st November 2012, is composed of 4 chapters and a total of 25 articles. It is asignificant rationalization (and partly codification) work, which, as pointed out by the Court ofJustice in the explanatory report accompanying the draft of the new Rules of Procedure (see Fn.8 above), is intended to attribute to references for a preliminary ruling the importance that theydeserve, ‘at the same time making the rules applicable to this category of cases more completeand clearer for both EU citizens and national judges’.

121. According to Article 94 (‘Content of the request for a preliminary ruling’) of the new Rules ofProcedure of the Court of Justice, in addition to the wording of the questions referred to thecourt for a preliminary ruling, the request for a preliminary ruling shall contain: (a) a summaryof the subject matter of the dispute and the relevant factual findings as determined by thereferring court or tribunal, or, at least, an account of the facts on which the questions are based;(b) the tenor of any national provisions applicable in the case and, where appropriate, therelevant national case law; (c) a statement of the reasons that prompted the referring court ortribunal to inquire about the interpretation or validity of certain provisions of EU law and therelationship between those provisions and the national legislation applicable to the mainproceedings.

122. As the Court of Justice stated in Telemarsicabruzzo judgment, Fn. 88 above, para. 6, therequirements that the national court should define the factual and legislative context of thequestions which it refers or at least explain the assumptions of fact on which those questionsare based are of particular importance in certain areas, like that of competition, characterizedby complex factual and legal situations; see, e.g., among the first orders of inadmissibility, CaseC-157/92 Banchero [1993] ECR I-1085, paras 4–5; Case C-386/92 Monin Automobiles [1993]ECR I-2049, paras 6-7; Case C-378/93 La Pyramide [1994] ECR I-3999, paras 14–15; Case


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an alternative to asking for interpretation of the provisions concerning free move-ment.123 Whereas, rare are the cases concerning the interpretation of specific provi-sions or those of a technical nature.124

Otherwise, the fact that the decision to refer a matter for a preliminary ruling isnot made public, there is virtually no reference to it in the Court’s order (or judgment),constitutes a barrier to analysis from the outside. However, it should be pointed outthat, especially in more recent cases, some of the questions referred that were laterdeclared inadmissible were characterized not necessarily by the fact of lacking indetail, but by the fact that they had not explained the reasons underlying thesubmission of the questions for a preliminary ruling.

It also appears obvious that there are cases (though not many in number) inwhich the orders for reference pandered to the interests of the parties, who hoped tooverturn the national provision with the assistance of the Court of Justice by invokinggeneric provisions or principles of EU law. In these cases, the judge has to pay specialattention as he or she is the only one who can establish the relevance of the questionsfor the purpose of solving the dispute.

Where, however, the judge lets the parties guide him or her and does notquestion the usefulness of the reference, the national court or tribunal fails in its filteror mediation function between the parties to the case and the Court of Justice. In suchsituations, it is obvious that the weakness of the arguments stated in the order forreference, although often concealed behind an impressive judicial and legislativereconstruction, could be a reason for the court’s rejection of the questions referred toit.

By way of conclusion, the case law of the Court of Justice has not facilitated thealready difficult task of the national judge. Indeed, on the one hand, orders are oftennot sufficiently grounded when not copied from other orders; on the other hand, theCourt of Justice’s attitude in relation to admissibility has not always been veryconsistent.125 There is the impression that the Court of Justice wishes to maintain a

C-458/93 Saddik [1995] ECR I-511, para. 12; and Joined Cases C-128/97 and C-137/97 Testaand Modesti [1998] ECR I-2181, para. 14. On this point, see Oliver, Fn. 90 above, 15–43.

123. Finally, see, e.g., Case Sbarigia, Fn. 90 above, where the regional administrative tribunal ofLazio (Italy) asked the Court of Justice, in relation to the matter of the opening hours ofpharmacies, to assess the compatibility of the Italian legislation in this respect with theprovisions on freedom of establishment and free provision of services, on competition and onpublic health.

124. Perhaps this is because, in cases where the question really does turn on specific or technicalmatters, the court performs an in-depth study and by the time it decides to submit the questionfor a preliminary ruling, it already has a very precise knowledge of the facts of the case andassociated legal questions. In this regard, see also, e.g., Case C-316/93 Vaneetveld [1994] ECRI-763, para. 13, in which the Court of Justice pointed out that the requirement to give anexhaustive description of the legal and factual situation is less important where the questionsreferred relate to specific technical points.

125. One case that springs to mind, for instance, is that of the two set of questions referred by a judge(Giudice di Pace) in Bitonto (Italy) concerning compensation for the losses suffered byconsumers at the hands of insurance companies guilty of purportedly taking part in anagreement endorsed by the Italian competition authority, allowing them to fix the premiums forthird-party motor insurance policies. In that matter, despite the fact that the orders were


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degree of flexibility in determining whether or not the questions submitted to it may beaccepted and is more or less strict and rigorous according to the situation.126

§8.08 THE EFFECT OF THE RULING

The effectiveness of preliminary rulings is not dependent on any particular enforce-ment mechanism. In the absence of any details in the Treaty in this respect, thequestion of effectiveness needs to be examined from two different points of view: (i)within the main proceedings, i.e., with reference to the same proceedings as those inwhich the question was raised and possible higher instances dealing with the samematter later on; and (ii) beyond the relevant proceedings, i.e., with reference to all theother national proceedings in which the EU legislation examined by the Court is alsoapplied. As regards the former, the effect of the judgment is clearly obtained by it beingcompletely binding on the referring court (as well as on the other courts that may becalled on to hear the same dispute should this go on to appeal or even Supreme Courtlevel) and, indirectly, on the parties too.127 In this case, the only possible action opento the referring court or tribunal is to address the Court of Justice again to seekclarification of the answers given in response to the original request128 or to put a newquestion of law or new elements for appraisal to the Court, which might lead it to give

substantially similar, the Court did not feel inclined to reject them a second time, notwith-standing the exceptions invoked by the parties (refer, first and foremost, to Joined CasesC-438/03, C-439/03, C-509/03 and C-2/04 Cannito and others [2004] ECR I-1605 and then toJoined Cases C-295/04 to C-298/04 Manfredi and others [2006] ECR I-6619). In actual fact, onthe occasion of the second reference, the background to the situation had changed, as theCommission had already launched a series of initiatives regarding the possibility of legislativeintervention in the field of private enforcement of antitrust law. Therefore, the questionssubmitted for preliminary ruling by the Bitonto judge turned out to be particularly propitious asthey offered the Court of Justice the opportunity to rule on a number of aspects concerningprivate enforcement.

126. Cf. J Molinier and J Lotarski, Droit du contentieux de l’Union Européenne, Paris (2012), 129.127. Case 52/76 Benedetti [1977] ECR 163 and Case C-446/98 Fazenda Pública [2000] ECR I-11435.

In conforming with the interpretation supplied by the Court of Justice, the referring court ortribunal must, if necessary, disregard the legal ruling of other national courts and tribunals,even higher instance ones. See also Case C-173/09 Elchinov [2010] ECR I-8889.

128. As stated by the Court of Justice itself in the Case Pretore di Salò v. X, Fn. 71 above, a furtherrequest for a preliminary ruling may be justified whenever the national court or tribunal isfaced with difficulties in understanding and applying the ruling. As only the national judges candetermine whether they believe they are sufficiently enlightened by the preliminary rulingissued at their request or whether they deem it necessary to address the Court of Justice again,the parties to the main proceedings may not invoke Article 44 of the Statute or Article 159 of theRules of Procedure to request the repeal of the judgments issued pursuant to Article 267 TFEU.Only the referring judge could, if necessary, submit to the Court of Justice new elements forconsideration that may lead it to provide a different answer to a question already raised; seeCase C-116/96 REV Reisebüro Binder [1998] ECR I-1889. For the same reasons, the parties (oran EU institution proving its interest in the matter) may not invoke Article 43 of the Statute orArticle 158 of the Rules of Procedure to request the interpretation of a judgment arisen from areference for a preliminary ruling, see Case 40/70 Sirena [1979] ECR 3169. In this respect,please note that the new Rules of Procedure have, for the avoidance of doubt, introduced a newprovision, namely Article 105 (bearing the heading ‘Interpretation of preliminary rulings’),where it is explicitly pointed out that the article relating to the interpretation of judgments andorders does not apply to the decisions issued by the Court of Justice in reply to a question for


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a different answer to a question already raised.129 However, it cannot challenge thevalidity of the judgment.130

It is clear that if ever the Court of Justice were to regard it as necessary to resolvemore questions than those actually referred to it by the national court or tribunal, thenthe binding effect would not necessarily extend to those additional rulings, given thatthe referring national court or tribunal might feel that these other rulings were notrelevant to the solution of the specific dispute. By doing so, the national court ortribunal maintains its own exclusive competence to check, according to its ownjudgment, the relevance of the question for the solution of the dispute brought beforeit.131 The binding effect of the Court’s ruling is absolute in its operative part. The sameapplies to the grounds for the decision, in all the passages linked to the conclusionexpressed in the operative part, whereas the frequent obiter dicta132 aimed, by theirnature, at being effective and apt to solve any matters that may arise in future nationalproceedings essentially take on their relevance beyond the specific proceedings.

Concerning judgment that deals with the validity of an EU act, the construction ofan EU act made by the Court of Justice to declare its validity has the same binding effectas that of the final decision as it is intrinsically linked with that decision. Where theCourt of Justice finds that an act of the Union is indeed valid, the effect is strictly limitedto the case in point and the specific reasons for the action. Conversely, whenever theCourt of Justice’s ruling is one of invalidity of the challenged act, it must be impossiblefor the court or tribunal lodging the question, as well as for any other court or tribunal,to be able to apply the act declared invalid. If it were to be otherwise, the decision takenby the latter would be irredeemably thwarted and would leave considerable latitude forabuse. For the same reason, a decision of validity supported by a specific interpretativereasoning shall bind the judge to whom the question was referred to make the sameinterpretation as the one provided by the Court. Whenever the Court’s ruling on thequestion of validity is issued with reference to a particular ‘relavant provision’, this willnot prevent the national court or tribunal from bringing up the question again at a laterstage, but with a link to any other provision not considered the first time round.

As far as the effects beyond a specific case are concerned, it is now establishedthat the existence of a precedent from the Court of Justice removes the obligation forthe court or tribunal against whose decisions there is no judicial remedy under nationallaw to refer the matter for a preliminary ruling133 even if it has also been established

a preliminary ruling. Indeed, as already mentioned, as there are no actual parties in preliminaryruling proceedings, the Court of Justice has no reason to interpret its decision.

129. Case C-466/00 Kaba II [2003] ECR I-2219, para. 39.130. Cases C-69/85 Wünsche [1986] ECR 947 and Case Pretore di Salò v. X, Fn. 71 above.131. Case C-222/78 ICAP [1979] ECR 1963.132. The Court of Justice has frequently made important statements of law on issues which did not

arise between the parties or in the questions of the referring court; see on this point Andersonand Demetriou, Fn. 1 above, 314–315.

133. However, the possibility of staying national proceedings while waiting for a ruling from theCourt of Justice in reply to a question submitted to it by another court or tribunal that turns onthe same issue, is governed by the national procedural order. In the Italian case, there wasinitially some reluctance as to the possibility of staying proceedings pursuant to Article 295 of


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that such court or tribunal maintains the option of submitting the question to thecourt’s scrutiny to provoke the latter to ‘overrule’134 a precedent, when it has doubtabout what precisely this precedent means. However, given the very nature ofjudgments and orders issued through the preliminary reference procedure, which takesthe form of rulings on points of law, it is impossible to deny the substantially bindingscope of the provisions interpreted by the Court of Justice and, therefore, the fact thatsuch judgments and orders do indeed produce effects towards everybody.135 Further-more, the fundamental purpose of ensuring the uniform application of EU law at thevery heart of the preliminary reference procedure would be thwarted if the Court ofJustice’s interpretative rulings were to have an impact solely on the national disputethat was at the origin of the questions lodged with the Court.

However, it should be highlighted that the judgment declaring the EU act invaliddoes not, by right, produce those same effects towards everybody as those of thejudgment declaring an act void in an action for annulment. In other words, theincidental judgment of invalidity does not produce the constitutive effect per se ofdisapplying the act although it is certainly of de facto relevance.136

[A] The Temporal Effect of the Ruling

Preliminary rulings have a retroactive or ex tunc effect, in the sense that the EU legalprovision that was the subject matter of the question referred will have to beinterpreted in compliance with the Court of Justice’s clarification going right back tothe time when it entered into force. The basis of this is the underlying assumption thatthe Court of Justice merely clarifies and spells out the scope of the legal provision,which must or should have been understood and applied in that way by the referring

the Code of Civil Procedure, but the Italian Court of Appeal (Corte di Cassazione) has now ruledthat it is admissible for the court adjudicating at last instance to stay its proceedings. Cf. Cortedi Cassazione, judgment No. 21635 of 9 October 2006 (see Condinanzi and Mastroianni, Fn. 1above, 253-255).

134. Indeed, turnarounds are very rare in the Court of Justice case law (see, e.g., Case C-127/08Metock and others [2008] ECR I-6241, para. 58, compared with Case C-109/01 Akrich [2003]ECR I-9607).

135. Whereas, the substantially binding nature of the precedent on all national courts and tribunals,whether adjudicating at first or last instance, is indirectly confirmed by Article 99 of the Rulesof Procedure of the Court of Justice, which makes provision for changing the procedure beforethe court itself in the event of a question being referred that is ‘manifestly identical’ to one onwhich the court has already ruled. In such a case the Court of Justice, after hearing anyobservations of the parties concerned and informing the court or tribunal making the reference,will actually be able to give its decision by a reasoned order (it is also possible to follow thisprocedure ‘where the answer to the question ( …) admits of no reasonable doubt’). Further-more, the Court of Justice’s ruling is also a precedent for administrative authorities (see CaseC-453/00 Kühne & Heitz [2004] ECR I-837 and Case C-2/06 Kempter [2008] ECR I-411).

136. This distinction is confirmed by the working of Article 277 TFEU (which deals with theso-called objection of illegality), which makes it possible to disapply a regulation if this turnsout to be invalid in the context of a pending dispute within the European Union. Assuming sucha case, this judgment of invalidity is like the mirror image of a preliminary ruling, and it hasbeen established that its effects only affect the court or tribunal to which it is addressed.


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court or tribunal to legal relationships established before the interpretative judg-ment.137 This principle does not allow for exceptions with regard to its effects withinthe specific proceedings. As regards the extent of the effects produced beyond thespecific case, the retroactivity rule may be mitigated by certain conditions, such asthe principle of legitimate expectations and the ‘innovation’ in scope brought about bythe preliminary ruling. In a number of cases, the Court of Justice has reserved thepower to set time limits for the application of its own judgments in both interpretativeand validity questions138 (by a similar application of Article 264(2) TFEU), particularlywhen its rulings, if applied retroactively, would risk causing serious financial conse-quences because a significant number of legal arrangements have been established onthe basis of the legal provision that has now been found incompatible with EU law.139

Therefore, only in exceptional circumstances does the Court of Justice, in applicationof the general principle of legal certainty inherent in the EU legal order, have the optionof restricting for any person concerned the opportunity of relying upon a provision thatit has interpreted with a view to calling in question legal relationships established ingood faith.140 At the very most, the Court of Justice’s interpretation might be effectivefor those, companies and individuals, who had already filed their claims before anational court or tribunal before the preliminary ruling became known.141

The Court of Justice has exclusive jurisdiction to place temporal limits on theeffects of a preliminary ruling, and any such limit must be stated as such in thejudgment providing the interpretation requested or declaring the act that was chal-lenged to be invalid.142 National courts and tribunals, however, are not permitted toapply considerations of legal certainty or protection of legitimate expectations withregard to the ex tunc effect of preliminary rulings.143

§8.09 FINAL REMARKS AND PRACTICAL SUGGESTIONS ON HOW TOPREPARE AN ORDER FOR REFERENCE

The cases in which the judge (other than a last-instance judge) may have to face thequestion of whether or not to make a reference for a preliminary ruling are numerous,as the case law suggests. In any case, as mentioned above, the national judge is the

137. Case 61/79 Denkavit italiana [1980] ECR 1205 and Case C-347/00 Barreira Pérez [2002] ECRI-8191. It is hardly necessary to point out that the retroactive effect of a preliminary rulinginterpretation is that, under certain conditions, it tramples an administrative act definitivelyconfirmed by a judgment having the force of res judicata (Case Kühne & Heitz, Fn. 134 above,para. 28).

138. For instance, by temporarily keeping alive certain effects of the act declared void, cf. JoinedCases C-38/90 and C-151/90 Lomas and others [1992] ECR I-1781 and Joined Cases C-92/09and C-93/09 Schecke and others [2010] ECR I-11063.

139. Case 112/83 Société des produits de maïs [1985] ECR 719.140. See, e.g., Case C-104/98 Buchner and others [2000] ECR I-3625, para. 39.141. See, e.g., Case C-262/96 Sürül [1999] ECR I-2685.142. Case Meilicke, Fn. 73 above, and Case C-475/03 Banca popolare di Cremona [2006] ECR I-9373.143. Case C-409/06 Winner Wetten [2010] ECR I-8015.


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main character in the system of reference for preliminary rulings and the only personwho can trigger this procedure in practice.144

A quick look at case law will allow us to list a number of scenarios that mayoriginate a decision of making a reference.145 For instance, this reference may be theresult of a consideration by the judge (in compliance with the adversary principle ofhearing both sides) or may be influenced by either or both the parties to theproceedings.146 It may also be the product of a strategy pursued by certain judges on alarge scale (one only has to think of the references conceived a few years ago by anumber of ‘environmentalist’ judges concerning the interpretation of the concept of‘waste’ in EU law147), by a group of businesses (like in the gambling cases148), or by agroup of consumers (like the actions for compensation commenced against theinsurance companies liable for putting in place an anti-competitive agreement aimed atfixing the prices of motor vehicle liability insurance policies149) basically aiming atusing the tool of reference to demolish the domestic system and remove national rulesconflicting with EU law – which often, but not always concern the domestic market (anexample is the recent issue of immigration.150

144. The preliminary reference procedure is particularly attractive to the national court confrontedwith a point of EU law: it offers expert guidance in a field that is generally unfamiliar, withoutthe loss of jurisdiction or control over matters considered by the national court to fall within itsown province and, furthermore, without a prior determination by it, cf. Anderson andDemetriou, Fn. 1 above, 23.

145. It has been rightly observed that the courts of first instance have a greater propensity toreferring questions. This is allegedly due not so much to the existence of doubtful effects oruncertainties as to the coordination of EU law rules and domestic law rules, as to a peculiarhabit developed by these courts of first instance of seizing the strategic potential of thepreliminary ruling mechanism and of using it also to gain more strength in the domestic judicialsystem or to try and influence certain legislative policy choices, see Borraccetti and Reale, Fn.1 above, 175. Nevertheless, it has also been noted that there was an increasing proportion ofreferences from courts of appeal in competition-related cases, almost achieving parity in theperiod 1998–2004 and that the period 2006–2011 further shows this trend, with the majority ofreferences coming from courts of appeal and above, cf. B J Rodger, Art. 267 TFEU preliminaryrulings: An overview of EU and national case law, e-Competitions (National Competition LawsBulletin), No. 41669, www.concurrences.com, 1–2.

146. Of course, the role of the parties will be much more significant in preliminary rulingsconcerning validity. Indeed, it is clear that the legality of an EU rule or act will be challengedin the vast majority of cases by one of the parties involved, who shall also specify theirregularities that impair its validity. From this point of view it is worth noting that the Court ofJustice even appreciated the validity of an act in the light of the grounds for invalidity invokedby the parties in the written observations in addition to those mentioned in the order forreference; see Case C-183/95 Affish [1997] ECR I-4315.

147. Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and others [1997] ECRI-3561.

148. Case C-67/98 Zenatti [1999] ECR I-7289; Case C-243/01 Gambelli and others [2003] ECRI-13031; Joined Cases C-338/04 and C-359/04 to C-360/04 Placanica and others [2007] ECRI-1891; and Joined Cases C-72/10 and C-77/10 Costa and others [2012] ECR I-0000. In general,with reference to the so-called ‘serial cases’, see Borraccetti and Reale, Fn. 1 above, 178.

149. Joined Cases Manfredi and others, Fn. 125 above.150. Case C-45/03 Dem’Yanenko [2004] ECR I-0000; Case C-61/11 PPU El Dridi [2011], ECR I-3015;

Case C-144/11 Abdallah [2011] ECR I0000; Case C-73/12 Ettaghi [2012] ECR I-0000; CaseC-74/12 Tam [2012] ECR I-0000; and Case C-75/12 Abdel [2012] ECR I-0000 (the latter relatingentirely to preliminary rulings of the same Italian judge).


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It may also be noted that the dispute at the origin of the reference may be agenuine dispute in the context of which the interpretative solution proposed by theCourt of Justice may determine the prevalence of either party to the proceedings or, onthe contrary, may have been conceived by the parties and created on purpose.

In all these situations, the reference for a preliminary ruling remains a verypowerful instrument in the hands of the national judge who may use it as he or she seesfit within the limits mentioned above. In any case, this use will never be abusive as,notwithstanding any contingent reason, it shall give the Court of Justice the possibilityof adding another brick to the construction of the EU legal system.151

Irrespective of the degree of imagination inspiring the referring judge in theformulation of the questions (which in any case are always required to be relevant tothe solution of the dispute), the order must comply with a number of minimumrequirements to avoid the problem of becoming inadmissible.

In this respect, it should be noted that there are no formal requirements for theform of preliminary reference (see, however, Article 94 of the Rules of Procedurementioned above). What does exist, however, are the ‘Recommendations to nationalcourts and tribunals in relation to the initiation of preliminary ruling proceedings’152

issued by the Court itself. These Recommendations are not, as expected, in any waylegally binding, however.153 These Recommendations do provide a number of useful

151. From this point of view, the references that gave rise to the judgments Foglia v. Novello, Fn. 88above, and Telemarsicabruzzo, Fn. 88 above, are important, allowing the Court of Justice toindicate the limits that a preliminary ruling should not exceed. On this point it must beunderstood that the Court of Justice remains seized of the case until such time as the questionsubmitted for a preliminary ruling is withdrawn by the referreing court or tribunal, sometimeseven though after the Advocate-General handed down his opinion (cf., e.g., the removal orderin Case C-174/03 Impresa portuale di Cagliari [2006] ECR I-0000, issued by the Court of Justiceafter the latter was informed by the Sardinian regional administrative tribunal that in any casesuch tribunal already intended to withdraw its question, probably in the light of the submis-sions filed by Advocate General Jacobs in his Opinion on 21 April 2005) or in cases where theeffect of a legal remedy is that the court that originally submitted the question no longer holdsjurisdiction for the case (Case Nationale Loterij, Fn. 89 above); see also on this point Brobergand Fenger, Fn. 1 above, 431–432. If, under the previous rules, there was nothing to prevent anational court or tribunal to withdraw its order of referral at any time, the Court of Justiceinserted now a ‘point of no return’ concerning this possibility, on this point see Article 100(entitled ‘Circumstances in which the Court remains seized’) of the Rules of Procedure of theCourt of Justice, which states: ‘1. The Court shall remain seized of a request for a preliminaryruling for as long as it is not withdrawn by the court or tribunal which submitted that request tothe Court. The withdrawal of a request may be taken into account until notice of the date ofdelivery of the judgment has been served on the interested persons referred to in Article 23 of theStatute. 2. However, the Court may at any time declare that the conditions of its jurisdiction areno longer fulfilled’.

152. These Recommendations, available on the website www.curia.europa.eu and published in OJC 338 of 6.11.2012, replace the ‘Informative note relating to the questions for preliminary rulingsreferred by national judges’ (referred to in Article 94 of the Rules of Procedure, which is a partialcodification and the latest version of which is published in the OJ C 160 of 28.5.2011, 1) andbrings it into line with the amendments introduced by the new Rules of Procedure that cameinto force on 1 November 2012.

153. See para. 6 of the Recommendations. On this point see Joined Cases C-292/09 and C-293/09Calestani and others [2010] ECR I-0000, para. 28, in which the Court of Justice referred for thefirst time to the Informative note, effectively reprimanding the referring Italian court for notconsulting with it to ensure the correct wording of the question that it intended to refer. In point


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insights on how the decision to refer the matter ought to be devised and worded withthe aim of ensuring that it will result in a reply that will be useful for the referring court.

In addition, in order to design and produce a useful order for reference to theCourt, one should bear in mind that the order will be translated and read by lawyers,judges, and law clerks, from the most diverse legal cultures who will not necessarilymaster the jargon or the legal system of the country from which the request for apreliminary ruling originates.

One further general point worth stressing is that the order for reference mustinclude succinct but complete reasoning and must also contain all the relevantinformation for the Court154 and any interested parties entitled to submit comments tounderstand correctly the factual and legal context of the dispute within the nationalprocedure.155

Ideally, the order for reference should be structured with the help of titles andsubtitles, and it is important to number the paragraphs (see para. 25 of the Recommen-dations). Furthermore, this order should not exceed a maximum length of approxi-mately 10–15 pages (and is it thus advisable to avoid dwelling at length on superfluousinformation that is not strictly necessary for understanding the questions raised).156

The order for reference must also contain an exhaustive presentation of the facts,an illustration of the areas of law that may be relevant, the reasons that led the nationalcourt or tribunal to refer the question to the Court, and, if appropriate, a reconstruction

of fact, the question of a preliminary ruling as received did not allow to distinguish withcertainty which exactly were the EU law provisions of which the requesting court was asked togive an interpretation.

154. Whereas, the role played by the national judge in the ordinary preliminary ruling procedurefollowing a referral is quite negligible, the national judge plays a much more active role inso-called special proceedings, i.e., the expedited procedure (see Article 105 of the Rules ofProcedure) and the urgent preliminary ruling procedure concerning questions raised in theareas covered by Title V, Part III, of TFEU (see Articles 107–114 of the Rules of Procedure),which allow the request for a preliminary ruling to have priority, so as to obtain a quick replyfrom the Court of Justice. Specifically, in the latter procedure the referring court or tribunalshall set out the matters of fact and law which establish the urgency and justify the applicationfor that exceptional procedure and shall, in so far as possible, indicate the answer that itproposes to the questions referred, see Article 107(2) of the Rules of Procedure.

155. The Court of Justice has had more than one opportunity to point out that, since the informationprovided in the decisions to make a reference must not only be such as to enable it to replyusefully but also enable the governments of the Member States and other parties concerned tosubmit remarks pursuant to Article 23 of the Statute of the Court of Justice, it is the court’s duty‘to ensure that this opportunity is preserved, bearing in mind that, by virtue of the above-mentioned provision, only the orders for reference are notified to the parties concerned.Therefore, ( …) it is essential that the national court provide at the very least some explanationof the reasons for the choice of the [EU] provisions that it asks to be interpreted and of the linkthat it establishes between those provisions and the national legislation applicable to the dispute’(see, e.g., Case C-20/05 Schwibbert [2007] ECR I-9447, para. 21). In this respect, for instance,it shall be noted that a mere reference by the national judge to a decision of a competitionauthority in an action for damages in an antitrust context was not deemed by the Court to besufficient, see Joined Cases Cannito and others, Fn. 125 above, para. 8.

156. The principal risk faced by to long an order for reference is that only part of it or only someexcerpts of it will be translated. In any case, such order shall be translated into French in full,French being the working language of the judges, and notified in full to the parties concernedin this language.


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of the arguments put forward by the parties in the main proceedings and, of course, thewording of the actual question presented to the Court.157

The amount of detail in the description of the national dispute depends, of course,on the complexity of the dispute. For example, in the cases dealing with competitionlaw the Court of Justice has stipulated that it is crucial for the order for reference to beworded very accurately158 and to include, among other things, a description of therelevant market. However, in respect of competition law it is not rare to see questionsonly partially admitted, for instance, where the Court of Justice declares questions onfreedom of movement admissible and questions on competition inadmissible.159

The relevant national legislation must also be clearly identified160 and must bequoted verbatim in the decision to make the reference (which means avoidingabbreviations or at least stating their full meaning if they are used) and references tothe published sources must also be given, including the websites from which thewording of such legislation may be retrieved.

Copies of the documents necessary for putting the dispute into context (i.e., the‘case file’) must be appended to the decision to make the reference. It should not beforgotten that the appended documents are not translated; therefore, where necessary,it is preferable to insert the salient excerpts of them directly into the main text of theorder for reference. The referring court may also add to the extent possible a briefindication of its own point of view as to how the questions referred for a preliminaryruling could be solved.

It is also good practice to communicate the final outcome of the main proceedingsto the Court of Justice (and when a judgment is given in the referring court, a copyshould be furnished to the Court of Justice for its archive), which makes it possible for

157. In this respect it should be pointed out that the actual presentation of the question is a relativelyminor component of the order for reference (see Case C-172/08 Pontina Ambiente [2010] ECRI-0000, in which it stated that, although the court making the reference had not expresslyformulated any questions, that court had nonetheless supplied sufficient information on boththe elements of fact and the elements of law characterizing the main proceedings to allow theCourt of Justice to understand the subject matter of the question referred to it and to provide aninterpretation of the pertinent EU law provisions, which could be helpful to the referring courtin resolving such a dispute). Even though the wording of the question may not be decisive(whereas, a clearly worded decision to make a reference is), the Court is not obliged to re-wordit. Therefore, it is advisable to avoid the mistake of asking the Court of Justice whether aprovision of national law is compatible with a provision of EU law (since, as clearly statedabove, the Court of Justice has no power at all to perform such a scrutiny).

158. See Fn. 122 above; see also, e.g., Case C-176/96 Lehtonen and Castors Braine [2000] ECRI-2681; Case Viacom Outdoor, Fn. 100 above, para. 23; Case Centro Europa 7, Fn. 93 above;Case C-250/06 United Pan-Europe Communications Belgium and others [2007] ECR I-11135,para. 20; and Case 603/11 Fontaine [2012] ECR I-0000, paras 15 and 19–25.

159. See Case C-61/97 FDV [1998] ECR I-5171.160. For instance, in the above-mentioned Joined Cases Cannito and others, Fn. 125 above, which

concerned a number of questions on competition matters, the Court of Justice stated that theorders for reference did not contain sufficient explanations of the legislation applicable to thedispute.


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legal practitioners to have a comprehensive view of how the court or tribunal thatraised the question applied the legal principles by which the Court responded to it.161

As a final remark, it should be emphasized that the preliminary referenceprocedure remains without a doubt an extremely useful instrument for the court ortribunal called on to resolve a dispute in which EU law provisions are applicable.Notwithstanding this a court or tribunal should only have recourse to this mechanismwhere, having carefully considered the various profiles of EU law (including theexisting case law of the Court of Justice itself, which often already supplies anexhaustive reply to doubts regarding interpretation), it still feels that it cannot proceedwithout the interpretative assistance of the judges in Luxembourg.

§8.10 THE PRELIMINARY REFERENCE PROCEDURE IN THE CONTEXTOF COMPETITION LAW: SOME REFLECTIONS ON THEPOST-MODERNIZATION PERIOD

As mentioned above, the preliminary reference procedure in the context of competitionlaw has been critical for the development of the latter.162 The majority of the currentcompetition rights have been recognized by the Court of Justice in the exercise ofits competence under Article 267 TFEU. Most of these rights have been subsequently‘codified’ in Regulation No. 1/2003 and in the Commission’s ‘modernizationpackage’.163

In the context of the modernization process set up by Regulation No. 1/2003, thenational judge is attributed a major role in the enforcement of competition law.164

161. It is very important to know what happens to the case after the Court of Justice has issued itspreliminary ruling. As regards the Court of Justice and the post-ruling process in competitioncases, see B J Rodger (ed.), Article 234 and Competition Law. An analysis, Alphen aan den Rijn(2008) 83–107.

162. A very interesting analysis of the importance of the preliminary references in the context ofcompetition law can be found in Rodger, Fn. 161 above; see also B J Rodger, Article 234 andcompetition law: a comparative analysis, in Maastricht journal of European and comparativelaw, Vol. 15 (2008), No. 2, 149–191. More in general, see A Tizzano, Il contributo dei giudicidell’Unione europea allo sviluppo del diritto della concorrenza, in A Ligustro and G Sacerdoti(eds.), Problemi e tendenze del diritto internazionale dell’economia. Liber amicorum in onore diPaolo Picone, Naples (2011) 787–800. See also, generally, R Milchior, Droit de la concurrence etrenvoi préjudiciel, in L Grard and B Saintourens (eds.), La libre concurrence face aux juges,Bordeaux (2010) 175–219; and B Gencarelli and S Crespi, Regole di concorrenza e giudicedell’Unione europea, in A Frignani and S Bariatti (eds.), Disciplina della concorrenza nella UE,Padova (2012) 639–644.

163. See, among other, ‘Commission Notice on the cooperation between the Commission and thecourts of the EU Member States in the application of Articles 81 and 82 EC’, OJ C 101,27.04.2004, 54, and ‘Commission notice – Guidelines on the effect on trade concept containedin Articles 81 and 82 of the Treaty’, OJ C 101, 27.4.2004, 81.

164. Under recital 7 of the Regulation, national courts have an essential role in applying EUcompetition rules, in particular in private enforcement disputes, which complements that of thenational competition authorities. Article 6 highlights the powers of national courts to applyArticles 101 and 102 TFEU, while Articles 15 and 16 establish the principles of cooperationbetween the national courts the Commission and the national competition authorities and ofthe uniform application of competition law (on this point see further below).


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As a result, an increasing number of requests for preliminary rulings wereexpected from national courts in the post-modernization period although the Commis-sion took the view upon introducing Regulation No. 1/2003 that, while an initialincrease in preliminary references could be expected, a significant increase wasunlikely because most litigation before national courts would concern areas where thelaw has been clearly established.165

Two main factors indicated that a significant increase of preliminary rulings incompetition cases would take place.166

First, Regulation No. 1/2003 entered into force on 1 May 2004, decentralized theapplication of EU competition law by giving national courts the power to apply Article101 TFEU and raised a number of complex legal issues, such as the interrelationshipbetween EU and national competition law.167 These elements should have promptedthe national judges to address more preliminary references to the Court of Justice thanthey did prior to the entry into force of the Regulation.168

Second, the same day Regulation No. 1/2003 entered into force, ten new MemberStates joined the EU and were joined by two new more Member States (Bulgaria andRomania) on 1 January 2007. In less than three years the number of Member Statesnearly doubled. Even assuming that the courts of the new Member States might needsome time to become fully aware of their rights and obligations under Article 267 TFEU,there was a strong potential for an increase in the number of preliminary references.Indeed, the total number of preliminary references has significantly increased since2004 along with the size of the EU (from 249 in 2004 to 404 in 2012).

However, despite the above factors, the number of preliminary references incompetition law has actually decreased considerably since 2004, especially between

165. Proposal for a Council Regulation on the implementation of the rules on competition laid downin Articles 81 and 82 of the Treaty and amending Regulations (EEC) No. 1017/68 (EEC) No.2988/74, (EEC) No. 4056/86 and (EEC) No. 3975/87 (‘Regulation implementing Articles 81 and82 of the Treaty’), COM (2000)0582 final, OJ C 365E, 19.12.2000, 284, para. 2(b).

166. Cf. E Barbier de La Serre, Competition law cases before the EU Courts: is the well running dry?,in M Merola and J Derenne (eds.), The role of the Court of Justice of the European Union incompetition law cases, (2012) 94–96.

167. As Advocate-General Mazák mentioned in para. 13 of his Opinion in Case C-375/09 Tele 2Polska [2011] ECR I-0000, the decentralization of the enforcement of EU competition law goesfurther than simply requiring national competition authorities (‘NCAs’) and national courts toapply Articles 101 and 102 TFEU. To enable the decentralization to be properly implemented,Regulation No. 1/2003 provides for at least three distinct mechanisms: (i) the conferral ofpower on NCAs and the national courts, with a resultant decrease in the Commission’s directenforcement activity; (ii) the requirement for the NCAs and the national courts to apply Articles101 and 102 TFEU within a system regulating the relationship between national and EU law;and, last but not least, (iii) arrangements to facilitate cooperation and control of the work of theNCAs and the national courts in order to safeguard a uniform and coherent application of theEU competition rules. As we will see below, a consequence of the important role which NCAs(and the national courts) play in the functioning of the new system is that, under RegulationNo. 1/2003, they are subject to strict rules as regards both the powers conferred on them andthe exercise of those powers.

168. According to N Petit, The Future of the Court of Justice in EU Competition Law, in Rosas, Levits,and Bot, The Court of Justice and the Construction of Europe: Analyses and Perspectives on SixtyYears of Case law, Fn. 9 above, 397 ff., at 402, the text of Regulation No. 1/2013 revealsambiguities and lacunas. Thus, short of explicit answers, national courts would turn to theCourt of Justice to request assistance through the preliminary reference procedure.


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2006 and 2011, both in absolute terms and as a proportion to the overall number ofpreliminary references made to the Court of Justice.169 While during the period1995–2003, 109 requests have been brought in competition law cases (including 57related cases),170 since the entry into force of Regulation No. 1/2003 to date,171 only 76such requests have been brought. Of these 76 requests, 65 have already received ananswer from the Court (55 by way of judgments, including a number of joined cases,and 10 by way of orders172). In proportion to the overall number, preliminaryreferences in competition law fell from approximately 7%–8% in 1997 to 3% in 2012.

This trend leads to the expectation of a further decrease of preliminary referencesin competition law in the coming years.

The following paragraphs provide an overview of the preliminary referencesbrought to the Court of Justice since the entry into force of Regulation No. 1/2003 in2004.

In 2004, the Court received 9 requests for preliminary rulings, all of which weresubmitted by the Italian courts. Five of these requests were submitted by the samejudge in related cases, concerning competition law enforcement,173 including the land-mark Manfredi ruling discussed above.174 Four more requests concerned the compat-ibility of Italian national legislation with different provisions of EU competition law,including the Cipolla referral on lawyers’ fees regulation.175

In 2005, the Court received seven requests, five of which concerned verticalrestraints of competition under Article 101 TFEU.176 The other two requests concerned

169. Cf. Rodger, Fn. 140 above, 1–2.170. In detail, out of 109 cases referred during the period 1995–2003: 9 were referred in 1995,

including two sets of related cases (respectively, two and three cases); 15 in 1996, includingtwo sets of related cases (for and three); 19 in 1997 including three sets of related cases(respectively, two, two and six); 15 in 1998, including two sets of related cases (two and five);nine in 1999 (two related cases); six in 2000; 20 in 2001, including five sets of related cases(respectively, for, five, three, two and two); two in 2002; 14 in 2003, including two sets ofrelated cases (five and three).

171. This survey takes into account preliminary references brought until 2012 and Court’s decisionsup to March 2013.

172. Among these, two are inadmissibility orders.173. For a full analysis on preliminary rulings concerning competition law enforcement, see P

Iannuccelli, The European Court of Justice and the shaping of private enforcement of EUantitrust law through preliminary rulings, Chapter 9 of this volume, below.

174. These requests came from the judge in Bitonto, Italy (see Fn. 125 above).175. Joined Cases C-94/04 and C-202/04 Cipolla and others [2006] ECR I-11421, on referrals from

the Corte di Appello di Torino and the Tribunale di Roma. The others were Cases C-410/04ANAV [2006] ECR I-3303, from the Tribunale Amministrativo Regionale Puglia, and C-149/04Fava (fallimento IMEG) [2005] ECR I-0000, from the Corte di Cassazione (Italy).

176. Case C-125/05 Vulcan Silkeborg [2006] ECR I-7637, from the Østre Landsret (Denmark); CaseC-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987,from the Tribunal Supremo (Spain); Joined Cases C-376/05 and C-377/05 Brünsteiner andAutohaus Hilgert [2006] ECR I-11383, from the Bundesgerichtshof (Germany); and CaseC-421/05 City Motors Groep [2007] ECR I-653, from the Rechtbank van koophandel Brussel(Belgium).


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a horizontal agreement on information exchange under the same provision177 and thecompatibility of State regulation with Article 101 TFEU and related provisions.178

In 2006, the Court received 14 requests, 11 of which related to the application ofArticle 102 TFUE in joined cases concerning obstacles to parallel imports of pharma-ceutical products in Greece,179 while the three remaining cases concerned Article 101TFEU, two of which on vertical restraints and one on a horizontal agreement.180

In 2007, the Court received nine requests. Three of these concerned the compat-ibility of State legislation with EU competition law.181 Three more requests concernedthe application of Article 101 TFEU, two of which in relation to horizontal agreementsand the other to vertical restraints of competition.182 Two requests concerned theapplication of Article 102 TFEU (including one on the combined application of Articles102 and 106 TFEU).183 The remaining request (the ‘X’ case) concerned competition lawenforcement and is of importance: the Court established that, under Article 15(3) ofRegulation No. 1/2003, the Commission could submit, on its own initiative, writtenobservations to a national court in a competition law case (concerning the deductibilityfrom taxable profits of the amount of a fine or a part thereof imposed by theCommission for infringement of Articles 101 or 102 TFEU).184

In 2008, the Court of Justice received only four requests, two of which were onthe compatibility of State legislation with EU competition law,185 one on the applicationof Article 101 TFEU to a horizontal agreement,186 and one on enforcement.187

In 2009, the Court of Justice received six requests, including two on thecompatibility of State regulation,188 two on enforcement (including the landmark

177. Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I-11125, from theTribunal Supremo (Spain).

178. Case C-446/05 Doulamis [2008] ECR I-1377, from the Tribunal de première instance deBruxelles (Belgium).

179. Joined Cases C-468/06 to C-478/06 Sot. Lélos kai Sia and others [2008] ECR I-7139, from theEfeteio Athinon (Greece).

180. Respectively, Case C-273/06 Auto Peter Petschenig [2007] ECR I-0000, from the HandelsgerichtWien (Austria); Case C-279/06 CEPSA [2008] ECR I-6681, from the Audiencia Provincial deMadrid (Spain); and Case ETI, Fn. 110 above, from the Consiglio di Stato (Italy), concerning thequestion of succession to responsibility for infringements and fines.

181. Case C-350/07 Kattner Stahlbau [2009] ECR I-1513, from the Sächsiches Landessozialgericht(Germany); Case C-386/07 Hospital Consulting and others [2008] ECR I-0000, from theConsiglio di Stato (Italy); and Case C-531/07 Fachverband der Buch – und Medienwirtschaft[2009] ECR I-3717, from the Oberster Gerichtshof (Austria).

182. Respectively, Case C-209/07 Beef Industry Development Society and Barry Brothers [2008] ECRI-8637, from the Supreme Court (UK); Case Pedro IV Servicios, Fn. 54 above, from the AudienciaProvincial de Barcelona (Spain); Case C-506/07 Lubricarga [2009] ECR I-0000, from theAudiencia Provincial de La Coruña (Spain).

183. Case C-49/07 MOTOE [2008] ECR I-4863, from the Diokitiko Efeteio Athinon (Greece); andCase C-52/07 Kanal 5 and TV 4 [2008] ECR I-9275, from the Marknadsdomstolen (Sweden).

184. C-429/07, X. [2009] ECR I-4833, from the Gerechtshof te Amsterdam (The Netherlands).185. Case C-91/08 Wall [2010] ECR I-2815, from the Landgericht Frankfurt am Main (Germany);

and Case Sbarigia, Fn. 90 above, from the Tribunale Amministrativo Regionale Lazio (Italy).186. Case C-8/08 T-Mobile Netherlands and others [2009] ECR I-4529, from the College van Beroep

voor het bedrijfsleven (The Netherlands).187. Case VEBIC, Fn. 113 above, from the Hof van Beroep te Brussels (Belgium).188. Case C-338/09 Yellow Cab Verkehrsbetrieb [2010] ECR I-13927, from the Unabhängiger

Verwaltungssenat Wien (Austria); Case C-437/09 AG2R Prévoyance [2011] ECR I-0000, from


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Pfleiderer ruling on access to documents and information provided under a nationalleniency programme),189 one on the application of Article 101 TFEU to a distributionagreement190, and the landmark TeliaSonera ruling on the application of Article 102TFEU to ‘margin squeeze’ practices by an incumbent telecommunication operator.191

In 2010, the Court of Justice received five requests, three of which were relatedand concerned the compatibility of State regulation with EU competition law,192 oneconcerned enforcement,193 and the remaining case concerned the application of Article102 TFEU to rebates applied by a dominant postal operator to competitor’s customers(the Post Danmark ruling).194

In 2011, the Court of Justice received eight requests. Four of these concernedenforcement issues,195 including the interesting Expedia ruling on the application by anational competition authority of Article 101(1) TFEU to a ‘de minimis agreement’, andthe Schenker ruling on antitrust liability of an undertaking that erred with regard to thelawfulness of its conduct. Two more cases concerned the application of Article 101

the Tribunal de grande instance de Périgueux (France).189. Case C-360/09 Pfleiderer [2011] ECR I-0000, from the Amtsgericht Bonn (Germany), on this

judgement see, in particular, L F Pace, The Court of Justice ‘Antitrust Enforcement NegativeHarmonisation Framework’ and the CDC and Pfleiderer Judgments: ‘Another Brick in the Wall’,Chapter 10 of this volume, below; and Case C-375/09 Tele 2 Polska [2011] ECR I-0000, from theSad Najwyzszy (Poland).

190. Case C-439/09 Pierre Fabre Dermo-Cosmétique [2011] ECR I-0000, from the Cour d’Appel deParis (France). It is worth noting that in this case, the French judges, not satisfied with the briefsubmitted, on the basis of Article 15 (3) of Regulation No. 1/2003, by the Commission actingas amicus curiae, decided to submit a request for preliminary ruling to the Court of Justice; seeB Cortese, Defining the roles of the Court and administrative bodies in private enforcement inEurope – United in diversity?, Chapter 7 of this volume, above.

191. Case C-52/09 TeliaSonera Sverige [2011] ECR I-527, from the Stockolms tingsrätt (Sweden).192. Joined Cases C-97/10 to C-99/10 AG2R Prévoyance [2011] ECR I-0000, from the Tribunal

d’instance de Dax (France) (these cases were related to the previous Case AG2R Prévoyance,Fn. 188 above).

193. Case C-17/10 Toshiba Corporation and others [2012] ECR I-0000, from the Krajský soud v Brne(Czech Republic).

194. Case C-209/10 Post Danmark [2012] ECR I-0000, from the Højesteret (Denmark).195. Case C-199/11 Europese Gemeenschap v. Otis and others [2012] ECR I-0000, from the

Rechtbank van koophandel te Brussel (Belgium) (in this peculiar case the Court of Justiceestablished, by the way, that Article 47 of the Charter does not preclude the Commission frombringing an action before a national court, on behalf of the EU, for damages in respect of losssustained by the EU as a result of an agreement or practice which has been found by a decisionof the Commission to infringe Article 101 TFEU); Case C-226/11 Expedia [2012] ECR I-0000,from the Cour de Cassation (France); C-536/11 Donau Chemie and Others, from the Oberland-esgericht Wien (Austria) (on this Case, see Opinion of the Advocate-General Jääskinendelivered on 7 February 2013), concerning the grant of access to documents of a national court,gathered within competition law proceedings involving the application of EU competition law,to third persons who are not parties to those competition law proceedings, but who wish toprepare actions for damages against participants in an agreement that has been the object of thecompetition law proceedings (as regards this issue, see P Iannuccelli, Fn. 173 above and L FPace, Fn. 189 above, in this volume); Case C-681/11 Schenker and others, from the ObersterGerichtshof Wien (Austria) (on this Case, see Opinion of the Advocate-General Kokottdelivered on 28 February 2013), concerning the notion of ‘error of law’ committed by anundertaking as to whether its conduct is contrary to competition law and the attributability ofthis error.


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TFEU to vertical restraints.196 A further case concerned the combined application ofArticles 101 and 102 TFUE,197 while the remaining case concerned the compatibility ofState legislation with EU law.198

Finally, in 2012 the Court received 14 requests. Most of these (eight) werereferred in two cases on the compatibility with Articles 101 and 102 TFEU of Italianlegislation concerning, respectively, para-pharmacies199 and car-and-driver hire ser-vices.200 Three more cases concerned the compatibility of State legislation, one ofwhich was cancelled following the withdrawal of the request,201 another concernednational legislation imposing minimum tariffs on bodies responsible for verifying andattesting the compliance of potential subcontractors for public works with conditionslaid down in law,202 and the third case concerned rules on training credits adopted bya professional association of chartered accountants.203

Two other cases in 2012 concerned the application of Article 101 TFEU tohorizontal and vertical restraints of competition,204 and the remaining case concernsboth enforcement issues, including the scope of the obligation on courts of finalinstance to make a reference for a preliminary ruling, and the application of Article 101TFEU and secondary legislation to a code of conduct of a professional geologists’association prohibiting fees lower than the specified standards.205

The above picture is not encouraging, particularly in two respects: first, thescarcity and declining number of requests, many of which were also related (28 out of76 over the whole period);206 second, the limited number of countries from which thequestions originated, which is far from representing the entire Union. Only courts from16 countries (out of 25 from 2004 to 2007 and out of 27 from 2007 to date) referredpreliminary questions and, among those, only 4 new Member States were involved.

196. Case Allianz Hungária Bistositó, Fn. 105 above, from the Magyar Köztársaság Legfelso″bbBírósága (Hungary), and Case C-158/11 Auto 24 [2012] ECR I-0000, from the Cour de Cassation(France).

197. Case C-603/11 Fontaine [2012] ECR I-0000, from the Juge de Proximité de Chartres (France),declared inadmissible by the Court.

198. Case C-138/11 Compass-Datenbank [2012] ECR I-0000, from the Oberster Gerichtshof (Aus-tria).

199. Joined Cases C-159/12 to C-161/12 Venturini and others, from the Tribunale AmministrativoRegionale Lombardia (Italy); Case C-497/12 Gullotta and others, form the Tribunale Ammin-istrativo Regionale Sicilia (Italy).

200. Joined Cases C-162/12 and C-163/12 Airport Shuttle Express and others; Joined Cases C-419/12and C-420/12 Crono Service Scarl and others, all from the Tribunale Amministrativo RegionaleLazio (Italy).

201. Case C-364/12 Miguel Fradera Torredemer and others [2013] ECR I-0000, from the AudienciaProvincial de Barcelona (Spain).

202. Case C-327/12 Soa Nazionale Costruttori, from the Consiglio di Stato (Italy).203. Case C-1/12 Ordem dos Téchnicos Oficias de Contas [2013] ECR I-0000, from the Tribunal da

Relação de Lisboa (Portugal), concerning the compatibility with the Article 101 TFEU of aregulation which puts into place a system of compulsory training for chartered accountants inorder to guarantee the quality of the services offered by them.

204. Respectively, Case C-68/12 Slovenská sporitelnaand [2013] ECR I-0000, from the Najvyšší súdSlovenskej republiky (Slovak Republic), and Case C-117/12 La Retoucherie de Manuela [2013]ECR I-0000, from the Audiencia Provincial de Burgos (Spain).

205. Case C-136/12 Consiglio Nazionale dei Geologi, from the Consiglio di Stato (Italy).206. Related cases were as follows: five in 2004; two in 2005; 11 in 2006; three in 2010; and seven

in 2012, including two groups of cases (four and three, respectively).


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This disappointing outcome, whose reasons are not easily identifiable, hasn’tmatched expectations nor the human and financial investments devoted over the yearsto give national judges responsibility for the implementation of competition law andincrease their awareness of the legal and economic tools available.

While the overall number of preliminary references in competition law does notconstitute, as such, an indication of the effective enforcement of competition law, theregular increase of the overall number of preliminary references over a number of yearsled to the expectation of a corresponding ‘physiological’ increase in competition lawcases.

While venturing into a far-reaching interpretation of the above statistics would bemistaken, these factors do nevertheless raise some concerns about the current perfor-mance of competition law enforcement by national judges, in light of the crucial rolethe 2003 reform entrusts to national judges and also national competition authorities,whose decisions are ultimately subject to judicial review of the former.207 Thisadditional responsibility increases the potential for preliminary reference by nationaljudges, in both damages actions (an area which, despite Commission’s best attempts,is still and it is likely to remain unregulated at the Union level for the time being) andappeals against national competition authorities’ decisions.

§8.11 THE POSSIBLE INTERACTION BETWEEN THE MECHANISM OFREFERENCE FOR A PRELIMINARY RULING AND REGULATIONNO. 1/2003: THE ROLE OF THE NATIONAL JUDGE

A further aspect that deserves attention concerns the interference and the interactionbetween Regulation No. 1/2003, which assigns national judges a significant role in thedecentralized application of antitrust law208 (specifically Articles 15 and 16),209 and themechanism for preliminary ruling.210

Two features of Regulation No. 1/2013 are significant in this respect.

207. See, e.g., Case VEBIC, Fn. 112 above (which has been referred in proceedings brought by theFlemish Federation of Bakers (VEBIC), seeking annulment of a decision by which the BelgianCompetition Council found there to be pricing agreements between artisan bakers and imposeda fine on VEBIC); Case Tele 2 Polska, Fn. 189 above, (which has been referred in proceedingsbetween the President of the Office of Competition and Consumer Protection and Tele2 Polska,concerning a decision taken by the former pursuant to Article 82 EC); and Case C-439/09 PierreFabre Dermo-Cosmétique, Fn. 190 above, (which has been referred in an action for annulmentagainst a decision of the French Competition Authority.

208. See the ‘Commission Notice on the cooperation between the Commission and the courts of theEU Member States in the application of Articles [101 and 102 TFEU]’, Fn. 55 above. Cf. also AKomninos, EC Private Antitrust Enforcement. Decentralized application of EC Competition Lawby national courts, Oxford and Portland (2008) 90–139, and E A Raffaelli, National judges andthe application of Regulation 1/2003: remarks and proposals, in International Antitrust Law &Policy, 2010 (2011), 237–274.

209. Articles 15 and 16(1) of Regulation No. 1/2003 are the provisions governing the relationshipbetween national judges and the European Commission. For a general overview of theseprovisions see R Whish and D Bailey, Competition Law, 7th ed., Oxford, 302–305 (2012).

210. Cf. A Komninos, Article 234 EC and national competition authorities in the era of decentrali-sation, European Law Review, 2004, No. 1, 106–114.


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First, Article 15(1) of Regulation No. 1/2003211 enables national judges to ask theCommission for amicus curiae opinions on matters relating to the application ofcompetition rules which, according to the ‘Commission Notice on the cooperationbetween the Commission and the courts of the EU Member States’,212 may also concernmatters of law.213 This instrument is concurrent with, if not alternative to, the referencefor a preliminary ruling.214

According to the above-mentioned Notice,215 judges may resort to this instrumentif they cannot infer from the already available sources of EU law (case law, guidelines,Commission notices) any clearer indications as to the specific economic and/or legalissues that may be useful for the purpose of settling the dispute pending before them.

Essentially, this is a preliminary and informal instrument available to the judge toaddress legal and economic issues concerning the application of EU law.

In view of the short time frame for issuing the opinion (four months as of receiptof the relevant request or of any supplemental information216), such an instrumentcould sometimes constitute, for the national judge, a valid alternative to the more

211. So far the EU judge has not had an opportunity to rule on the application of Article 15(1) ofRegulation No. 1/2003. However, the Court has been able to rule on the application of Article15(3), clarifying for instance that the third sentence of the first sub-para. of Article 15(3) ofRegulation No. 1/2003 must be interpreted so as to allow the Commission to submit writtenobservations on its own initiative to a court of a Member State in proceedings relating to thedeductibility from taxable income of the amount of a fine or part thereof imposed by theCommission for the infringement of Article 101 TFEU or of Article 102 TFEU, see Case X., Fn.184 above. For a case where a Commission decision concerning the sending of certaindocuments to a national court for use in evidence in proceedings brought against the applicant,which were submitted by it to the Commission during the investigation in a competition case,see the pending Case T-164/12 Alstom v. Commission and the Order of the President of theGeneral Court in Case T-164/12 R [2012] ECR II-0000.

212. See Fn. 155 above. Even though the area of State aid law is beyond the remit of this article, itis worth noting that a similar power of the national judge is also provided for in such area; see‘Commission Notice on the enforcement of State aid law by national courts’, OJ C 85, 9.4.2009.In particular, national courts may request the Commission’s opinion on relevant issuesconcerning the application of the State aid rules. According to para. 90 of the Notice suchopinions may, in principle, cover all economic, factual or legal matters arising in the context ofnational proceedings. Naturally, matters concerning the interpretation of EU law can also leadthe national court to ask for a preliminary ruling of the Court of Justice. Where no furtherjudicial remedy exists against the court’s decision under national law, the use of thispreliminary reference procedure is, in principle, mandatory.

213. See para. 27 of the Notice.214. On the website of the Commission’s DG Competition (http://ec.europa.eu/competition/court/

antitrust_requests.html) the guidelines may also be viewed in order to draft opinion requests.First of all, it is recommended to keep opinion requests as short as possible and to use simple,clear and concise language, in view of the frequent need for the Commission to translate them.To ensure that the Commission has a clear understanding of the factual and legal context of theproceedings, the request for an opinion should: (i) include a brief account of the subject matterof the dispute and the relevant findings of fact, or, at least, set out the factual situation on whichthe question referred is based; (ii) explain the reasons that prompted the national court torequest an opinion, and (iii) include, where appropriate, a summary of the main arguments ofthe parties. To facilitate the reading of the request it is also recommended to number the pointsor areas of the opinion request and to include the question(s) of the request in a clearlyidentified section.

215. See paras 27–30 of the Notice.216. See para. 28 of the Notice.


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lengthy preliminary ruling proceedings, especially when it concerns specific andlimited matters. Additionally, the use of this mechanism does not affect the possibilityor the obligation, as the case may be, to refer a question to the Court for a preliminaryruling.217 This is the case, for instance, where the opinion is not entirely satisfactory orleaves certain questions unanswered.

The significance of the questions asked to date by the national judges who haverequested the Commission’s opinion shows that such an instrument has been used asa surrogate of the reference for a preliminary ruling and has to a certain extent mirroredthe questions referred to the Court of Justice for preliminary ruling.218 Unlike the Courtof Justice’s judgment, however, the opinion of the Commission does not legally bindthe national court.219 Despite this, the latter will have to handle the opinion inaccordance with the relevant national rules of procedure, which have to abide by thegeneral principles of EU law.220 From the point of view of domestic law, the opinion isan important tool to convince the judge, who, if intending to rule differently, wouldprobably have to explain the reasons for such disagreement with the Commission’sopinion.221

As a second significant feature of the new regime, Article 16 of Regulation No.1/2003 provides for an explicit obligation for national judges to comply with thedecisions adopted or to be adopted by the Commission, should they have to rule onthe same matter. With this provision, the EU legislator takes a significant step towardsthe uniform and consistent application of EU competition law, both centrally and atdecentralized level, also in compliance with the principle of legal certainty.

217. See para. 27 of the Notice.218. Opinion requests (which are actually few) are usually available on the website of DG

Competition (http://ec.europa.eu/competition/court/antitrust_requests.html) and are alsosystematically reported on the latest ‘Annual Reports on Competition Policy’ published by theCommission. However, it should be noted that so far this instrument has not been used widely,in general, and has been completely neglected, e.g., in Italy, cf. M Tavassi, Il ruolo dei giudicinazionali nel private enforcement, competenze concorrenti e coordinamento con l’azionedell’Autorità garante, in C Rabitti Bedogni and P Barucci (eds.), 20 Anni di Antitrust.L’evoluzione dell’Autorità Garante della Concorrenza e del Mercato, Vol II, Turin, 1011 (2010).Throughout the period between the publication of the Commission Report on the Functioningof Regulation No. 1/2003 and the year 2010 the number of opinions totalled 22 (see Raffaelli,Fn. 208 above, 243–244). Spanish judges are among the few who have actively exercised theirright to address the Commission. While a simplistic explanation of the limited use of this easyinstrument by national judges could be that it is not well known, the doubt remains as towhether the low number of opinion requests matches the number – undoubtedly lower thanexpected – of references for preliminary rulings on competition matters received by the Courtof Justice after the coming into force of Regulation No. 1/2003; see above §8.10. In any case,in view of the nature of this instrument and of the manner in which it has been used so far, thestatement of the above-mentioned author, whereby ‘this cooperation instruments overlaps withthe preliminary reference procedure in any extremely dangerous manner’ seems to be exagger-ated.

219. See para. 29 of the Notice.220. See para. 30 of the Notice.221. According to Raffaelli, Fn. 208 above, 252, even though the opinions of the European

Commission are not binding on national courts, it is undeniable that the outcome of the opiniondoes ultimately influence the national judge in a significant way. The few opinions delivered bythe Commission and published on the DG Competition website so far would confirm thisassumption.


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This provision is paramount for follow-on cases.222 Conversely, in stand-alonecases223 the judge has only a duty not to adopt a decision conflicting with a potentialCommission decision in the context of proceedings commenced by the latter.224

Notably, this is not a true innovation within the system of cooperation of theCommission with national courts. On the one hand, a similar mechanism was alreadyforeseen in the ‘Notice on cooperation between national courts and the Commission inapplying Articles 85 and 86 of the EEC Treaty’.225 However, the Court had alreadyintervened to specify with increasing precision how Commission decisions werebinding on national courts.226

In particular, the Court has pointed out that Commission decisions pursuant tocompetition law are binding on all those – whether authorities or judges – who have toapply Articles 101 and 102 TFEU in the territory of a Member State, establishing thefollowing principles.

First, national judges, when ruling on agreements, decisions, or practices thatmay be the subject matter of Commission decisions, have to avoid issuing judgmentsthat are incompatible with a decision that the Commission intends to adopt pursuant toArticles 101 and 102 TFEU. Second, should national judges rule on cases that werealready decided by the Commission, such judges may not adopt any decisionsconflicting with the one adopted by the Commission, even if this is in conflict with adecision issued by a national judge of first instance.227 This principle also applies whennational courts are hearing an action for damages for loss sustained as a result of anagreement or practice, which has been found by a decision of the Commission toinfringe Article 101 TFEU.228

222. ‘Follow-on actions’ are actions for damages based on an illegal distortion of competitionpreviously found by an antitrust authority (e.g., the Commission) in a formal decision. Theseactions follow on from the decision of the antitrust authority and are substantially based uponit.

223. These are the actions for damages commenced by the claimant in the absence of a previousfinding of the competition law infringement by the antitrust authority. Therefore, the judgeinvolved must ascertain (based upon the mere allegations of the parties) whether or not thealleged breach of competition rules took place.

224. For a clear distinction between these two types of actions, see Iannuccelli, Fn. 173 above.225. OJ C 39, 13/02/1993; see, in particular, paras 17 ff.226. Case Delimitis Fn. 2 above, para. 47, and, even more clearly, Case Masterfoods and HB, Fn. 2

above, paras 52 e 60. As recently highlighted by the Court of Justice (see Case EuropeseGemeenschap v. Otis and others, Fn. 195 above, para. 50), Article 16 of Regulation No. 1/2003is a codification of the Court’s case law (see Case Masterfoods and HB, Fn. 2 above, para. 52).

227. V. Case Delimitis, Fn. 2 above, para. 47, and Case Masterfood and HB, Fn. 2 above, paras51–52.

228. Case Europese Gemeenschap v. Otis and others, Fn. 195 above, para. 51. However, in thisrespect it should be noted that while the obligation of the national judge not to adopt anydecisions conflicting with a Commission decision ascertaining an infringement obliges thejudge to admit the existence of a forbidden agreement or practice, it will be the national judge’sresponsibility to establish the existence of loss and the direct causal link between such loss andthe forbidden agreement or practice and, if necessary, to determine individually the loss causedto each of the persons to have brought an action for damages (Case Europese Gemeenschap v.Otis and others, Fn. 195 above, paras 65 and 66). Such an assessment is not contrary to Article16 of Regulation No. 1/2003.


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Also, in the above-mentioned Masterfood and HB judgment it is stated that theacts of EU institutions are in principle presumed to be lawful until such time as they areannulled or withdrawn (point 53 of the judgment) and that, when in doubt as to theinterpretation or validity of an EU act, the national judge may or must refer a questionto the Court of Justice for a preliminary ruling (point 54 of the judgment).229 Such aprinciple was first explicitly implemented and codified by Regulation No. 1/2003,which also, by its nature, enhanced its importance and the guarantee that it would becomplied with by national judges. Article 16 of the Regulation was later strengthenedand further explained in the Notice, with reference to the cases of ‘parallel orconsecutive application of [EU] competition rules by the Commission and by nationalcourts’.230

As the national judge may not adopt any judgment conflicting with Commissiondecisions (for instance in the context of follow-on actions), in the event of doubt as tothe legality of a Commission decision that, for any reason, has not yet been confirmedby the General Court, and ultimately by the Court of Justice, the judge cannot avoid thebinding effects of that decision without a ruling to the contrary by the Court of Justice(as in the Foto-Frost judgment231).

Therefore, a judge of any court or at any degree of jurisdiction having to rule ona matter already being the subject matter of a Commission decision with which suchjudge does not wish to comply must refer a question for a preliminary ruling pursuantto Article 267 TFEU.

Finally, if the Commission’s decision is challenged before the General Courtpursuant to Article 263 TFEU and the outcome of the dispute before the national courtdepends on the validity of the Commission decision, the national court should stay itsproceedings pending final judgment in the action for annulment before the EU Courtsunless it considers, even in this case, that a reference to the Court of Justice for apreliminary ruling on the validity of the Commission decision is warranted.232 In bothcases of stay of the proceedings pending the judgment of the EU judge, the nationaljudge will have to consider whether or not to adopt interim measures to protect theparties’ interests.233

229. Case Masterfoods and HB, Fn. 2 above, paras 53–54.230. See section C of the Notice, paras 11 and ff.231. See Fn. 55 above.232. See para. 13 of the Notice.233. See para. 14 of the Notice.


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Preliminary ruling and Competition Law: Some reflections for National Judges

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