The Relationship between the European Commission and Courts of the Member States in the Enforcement of EU Competition Law in Light of Decentralisation and Subsidiarity as Part of New Governance

Abstract: Compared to other areas of EU law, where the Commission is only the guardian of the Treaty, in the area of competition law it has enforcement powers. The enforcement is shared with the courts of the Member States. There are a number of instruments and rules, some newly introduced by the competition law modernisation, to ensure coherent application of EU law in a system of parallel competences. Those instruments, namely the Commission opinion to national courts and its intervention as amicus curiae create a number of uncertainties and legal problems with regard to their scope, addressees and binding effect. Another instrument to enhance uniform application is to oblige national courts not to contradict Commission decisions. It is still not clear if this obligation has to be interpreted narrowly or broadly or if there might actually be a positive binding effect of Commission decisions on national courts. Depending on how this issue may be solved by the Court of Justice, it might also affect the judicial independence of judges in the national courts. The far reaching powers of the Commission, including the possibility to issue contradicting decision at any time, even after a national judgement has become binding are not only a threat to the legal certainty and the rights of the parties involved but also question if one can actually speak of a decentralised enforcement system of EU competition rules.