RSCAS 2016/20 European Networking and Training for National Competition Enforcers Entrance for Judges 2014
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RSCAS 2016/20 Robert Schuman Centre for Advanced Studies European Networking and Training for National Competition Enforcers (ENTraNCE) European Networking and Training for National Competition Enforcers ENTraNCE for Judges 2014 Selected Case Notes Edited by Pier Luigi Parcu and Giorgio Monti European University Institute Robert Schuman Centre for Advanced Studies European Networking and Training for National Competition Enforcers (ENTraNCE) European Networking and Training for National Competition Enforcers ENTraNCE for Judges 2014 Selected Case Notes Edited by Pier Luigi Parcu and Giorgio Monti EUI Working Paper RSCAS 2016/20 This text may be downloaded only for personal research purposes. Additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper, or other series, the year and the publisher. ISSN 1028-3625 © Edited by Pier Luigi Parcu and Giorgio Monti, 2016 Printed in Italy, March 2016 European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu/RSCAS/Publications/ www.eui.eu cadmus.eui.eu Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992 and directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe’s place in 21st century global politics. The Centre is home to a large post-doctoral programme and hosts major research programmes, projects and data sets, in addition to a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration, the expanding membership of the European Union, developments in Europe’s neighbourhood and the wider world. Details of the research of the Centre can be found on: http://www.eui.eu/RSCAS/Research/ Research publications take the form of Working Papers, Policy Papers, and e-books. Most of these are also available on the RSCAS website: http://www.eui.eu/RSCAS/Publications/ The EUI and the RSCAS are not responsible for the opinions expressed by the author(s). European Networking and Training for National Competition Enforcers (ENTraNCE Judges) This series of working papers is published in the context of ENTraNCE Judges, training for national judges in competition law. The training is organised by the RSCAS, with the financial support of DG Competition of the European Commission. In the context of the training programme, selected judges from different EU Member States attend both online and residential training activities in Florence. Each year the training focusses on a different aspect of competition law enforcement that is relevant to the national judiciary. Information concerning the ENTraNCE Judges training program can be found at: http://www.eui.eu/Projects/ENTRANCE/Home.aspx Each working paper includes the case notes written by the national judges participating in one edition of ENTraNCE Judges. In the context of the training activities, in fact, each participating judge is requested to summarise and to comment on a national judgement that is related to the field of competition law. The working paper thus aims to increase understanding of the challenges faced by the national judiciary in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement introduced by Reg. 1/2003. Abstract The working paper includes a collection of the case notes written by the national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE for Judges 2014). The training programme was organised by RSCAS between January and October 2014 with the financial contribution of DG Competition of the European Commission. The case notes included in the working paper summarise judgments from the different EU Member States relating to different aspects of competition law enforcement. The working paper thus aims to increase understanding of the challenges faced by the national judiciary in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement introduced by Reg. 1/2003. Keywords Competition law; Art. 101 TFEU; Art. 102 TFEU; Reg. 1/2003; judicial training, national judges TABLE OF CONTENTS 1. INTRODUCTION 1 2. SCOPE OF APPLICATION OF THE COMPETITION LAW 13 2.1. POHRIB ALINA, BUCHAREST COURT OF APPEAL (ROMANIA) 13 2.2. CARLSON PER, MARKET COURT (SWEDEN) 16 2.3. CHARLETON PETER, HIGH COURT (IRELAND) 20 2.4. ARAÚJO ANABELA, LISBON ADMINISTRATIVE COURT (PORTUGAL) 27 2.5. SURGAILIENE EGLE, VILNIUS DISTRICT COURT (LITHUANIA) 29 2.6. GHERASIM ADRIANA, COURT OF APPEAL CONSTANTA (ROMANIA) 36 3. COMPETITION LAW PROCEEDINGS AND FUNDAMENTAL RIGHTS 43 3.1. HOČEVAR PETRA, ADMINISTRATIVE COURT (SLOVENIA) 43 3.2. LANGÁŠEK TOMÁŠ, SUPREME ADMINISTRATIVE COURT (CZECH REPUBLIC) 49 3.3. GRBOVIĆ DJORDJE, DISTRICT COURT OF LJUBLJANA (SLOVENIA) 55 3.4.SŁYSZ-MARCINÓW ANNA, DISTRICT COURT OF SOSNOWIEC (POLAND) 58 3.5. VOUXINOU FOTEINI, ATHENS ADMINISTRATIVE COURT OF APPEAL (GREECE) 62 3.6. VAN RANSBEEK RAF, COURT OF APPEAL OF BRUSSELS (BELGIUM) 66 4. HORIZONTAL AGREEMENTS – CARTELS AND CONCERTED PRACTICES 72 4.1. AERTS HANS, COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN (THE NETHERLANDS) 72 4.2. PENNANEN PAULA, COURT OF APPEAL OF VAASA (FINLAND) 78 4.3. STRUMSKIENE JURA MARIJA, VILNIUS REGIONAL ADMINISTRATIVE COURT (LITHUANIA) 84 4.4. VIDUSA RUDITE, SUPREME COURT (LATVIA) 90 4.5. KUKOVEC POLONA, SUPREME COURT (SLOVENIA) 94 4.6. LUKA KOVAČ, SUPREME COURT (SLOVENIA) 99 5. HORIZONTAL AGREEMENTS - DECISIONS OF ASSOCIATIONS OF UNDERTAKINGS 103 5.1. CHOLAKOVA VESELINA, ADMINISTRATIVE COURT (BULGARIA) 103 5.2. RODRIGUES CARLA, TRIBUNAL DO COMÉRCIO DE LISBOA (PORTUGAL) 107 5.3. PEDROSO ALBERTINA, TRIBUNAL DA RELAÇÃO DE COIMBRA (PORTUGAL) 111 5.4. RUSKAN VESLAVA, SUPREME ADMINISTRATIVE COURT (LITHUANIA) 114 5.5. VÎLVOI DENISA, TRIBUNAL OF VÂLCEA (ROMANIA) 119 6. VERTICAL AGREEMENTS 123 6.1. CERQUEIRA MAGDA, TRIBUNAL JUDICIAL DE BARCELOS (PORTUGAL) 123 6.2. NEDELCHEVA NATALIYA, VARNA DISTRICT COURT (BULGARIA) 129 6.3. NORKUS RIMVYDAS, SUPREME COURT (LITHUANIA) 139 6.4. CRISTEA BOGDAN, BUCHAREST COURT OF APPEAL (ROMANIA) 143 7. ABUSE OF DOMINANCE 146 7.1. BASTOS FERNANDO, JUÍZO DE MÉDIA INSTÂNCIA CÍVEL DA AMADORA (PORTUGAL) 146 7.2. GEORGIOU ELIAS, JUDICIAL AUTHORITY OF CYPRUS (CYPRUS) 149 7.3. MATTILA MARKUS, MARKET COURT (FINLAND) 152 7.4. TRENČAN MARIÁN, REGIONAL COURT OF BRATISLAVA (SLOVAKIA) 159 7.5. ARKOUDA CHRISTINA, DISTRICT COURT KATERINI (GREECE) 163 8. COMPETITION LAW ENFORCEMENT IN THE TELECOM INDUSTRY 169 8.1. KERKMEESTER HEICO, COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN (THE NETHERLANDS) 169 8.2. KOSTA OLYMPIA, FIRST INSTANCE COURT OF LARISSA (GREECE) 175 8.3. CHRISTODOULIDOU MESSIOU STELLA, NICOSIA DISTRICT COURT (CYPRUS) 179 8.4. ÖWERSTRÖM DAN, SVEA COURT OF APPEAL (SWEDEN) 181 9. COMPETITION LAW ENFORCEMENT IN THE ENERGY INDUSTRY 185 9.1. BEARKAUSKAS ALVYDAS, VILNIUS REGIONAL COURT (LITHUANIA) 185 9.2. STOYANOVA LYUBKA, SOFIA ADMINISTRATIVE COURT (BULGARIA) 190 9.3. NÕMM IKO, TALLINN COURT OF APPEAL (ESTONIA) 194 10. PRIVATE ENFORCEMENT OF COMPETITION LAW 199 10.1. WIGGERS-RUST LIDY, COURT OF APPEAL ARNHEM-LEEUWARDEN (THE NETHERLANDS) 199 10.2. SPERA PIETRO, TRIBUNALE DI GENOVA (ITALY) 205 10.3. PALOMÄKI PETTERI PIRKANMAA, DISTRICT COURT (FINLAND) 209 10.4. CORREIA JOÃO, TRIBUNAL JUDICIAL DA GRANDE COMARCA LISBOA NOROESTE (PORTUGAL) 213 11. UNFAIR COMPETITION AND STATE AID CONTROL 217 11.1. MITROVA DENITZA, SOFIA ADMINISTRATIVE COURT (BULGARIA) 217 11.2. STOYANOVA KAMELIYA, SOFIA ADMINISTRATIVE COURT (BULGARIA) 220 11.3. MILACHKOVA KRASIMIRA , SOFIA ADMINISTRATIVE COURT (BULGARIA) 229 11.4. CAZANGIU MIHAELA CAMELIA, TRIBUNAL OF VALCEA (ROMANIA) 238 LIST OF THE JUDGES WHO PARTICIPATED IN ENTRANCE FOR JUDGES 2014 243 1. INTRODUCTION The 48 case annotations included in this working paper have been written by the participants to ENTraNCE for Judges 2014, training program for national judges in competition law and economics. The 2014 edition represented the fourth edition of the program, organized by the RSCAS at EUI with the financial support of DG Competition of the European Commission. In particular, the 2014 edition program took place between January and October 2014, and focused on the application of the right of defence and due process in competition law proceedings. Besides training, the program aimed at fostering networking among national judges; participants could exchange their experience in relation to competition law enforcement in an informal setting. The reason for publishing these accounts is to inform other judges, but also policymakers and lawmakers and other interested stakeholders, of the state of play of competition enforcement across the EU and the role national judges are playing. In the absence of a database collecting all judgments these working papers serve to provide a snapshot of the kinds of issues that arise in the national courts and the emerging jurisprudence. This introduction provides a thematic summary of the contributions to help the reader gain a quick impression of the key legal and economic challenges that national courts have faced, Anti-competitive State action Judge Carlson (section 2.2) provides us with