On 21 September 2010, the ECJ examined the question of whether national competition authorities (NCAs) can adopt decisions explicitly stating a company has not infringed article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU). The question arose after a Polish court of appeal made a reference to the ECJ in relation to a case opposing the Polish competition authority and Netia, a competitor of the Polish telecoms incumbent, Telekomunikacja Polska. In this case, Netia argued that the Polish competition authority did not have the power to take a decision expressly recognising that Telekomunikacja Polska had not breached EU competition law.
The Commission, together with the Polish government and the EFTA Surveillance Authority, argued before the ECJ that Regulation 1/2003 did not contain any provision allowing NCAs to take non-infringement decisions. In particular, Article 5 of Regulation 1/2003 does not allow for formal acquittals to be granted. If no breach of either article 101 or 102 is established, then NCAs should either close the investigations or reject the complaint. It was also argued that the adoption of a non-infringement decision by one of the NCAs would make it more difficult for the Commission or other NCAs to conduct their individual investigations on the same matter. It could also jeopardize any possible claims for damages.
The Commission recognised during the hearing that its reading of Regulation 1/2003 may result in the odd situation wherein a national regulator would be taking two simultaneous decisions on the same matter: a non-infringement decision based on national law and a "no grounds for action" decision based on EU law. Although the Commission recognised that this may not be an optimal situation, this would be in conformity to the text of Regulation 1/2003 and the will of the legislator.
The opinion of Advocate-General Jan Mazak on this case is expected on 7 December 2010.
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