Examination of Witnesses (Questions 360-361)
M Michel Petite and Mr Philip Lowe
10 JANUARY 2007
Q360 Chairman: And you think they can
comfortably work within that framework.
M Petite: I think so.
Q361 Chairman: You have already indicated
that you do not think the Court itself would be agreeable to preliminary
references from national courts in respect of competition law
or, indeed, anything else being passed down the line to the CFI,
but what view does the Commission itself in fact take about that?
Does the Commission think it would be a good idea?
Mr Lowe: May I express a view about this first.
With the other competition authorities in Europe ie our national
competition authorities and the Commission, we are applying together
EU law, so we regularly meet, whether it is with Mr Fingleton
or Mr Freeman, to discuss issues of this kind, and it has been
a concern in the application of the new regulation upon antitrust
law that there should be consistency of application across the
European Union. We have had several dialogues between judges in
different jurisdictions and the heads of the competition authorities,
to work out what would be the most appropriate system, the most
effective system to make it work. The view of the judges so far
was that the preliminary ruling procedures, whichever court took
them, were extremely lengthy and they normally had to reach a
decision quickly—except in cases of pure legality.
Their tendency, in terms of national practice, was to ask for
evidence or for the appearance of the national competition authority
rather than immediately to think of a preliminary ruling. So the
view expressed in recent discussions has said: Yes, ultimately
the Luxembourg courts should be responsible for ensuring coherence
and consistency of application on the same provisions, but this
should be exceptional and rare, given the realities of the process,
which are inevitably long for the moment. Their views and our
views about the difference of competence between the CFI and the
Court of Justice would certainly be motivated, from the point
of view of my department, in getting a speedy decision. On the
other hand, normally speaking, if there are serious questions
of legal principle, they would probably not just affect competition
law but may have implications on other aspects of European law
and I think it is in that sense that the Court of Justice hesitates
to consider such a delegation.
M Petite: I think that is right. In your sector,
Philip, there are very few preliminary requests.
Mr Lowe: Only seven out of about 220 in 2005.
M Petite: On whether or not to make a divide
between sectors where preliminary rulings could be decided by
the Court of First Instance and some remaining with the Court,
I think we are also pretty reticent for the same reasons as the
Court of Justice. The main reason is that, in fact, many of the
landmark cases, of the quasi-constitutional cases, have emanated
from preliminary requests and the Court is very much on the line
that, if there is a function of uniformity of interpretation of
the Treaty and of Community law, it should remain theirs. I think
it is also our view that to make a divide between sectors and
between courts would probably create more difficulties than it
would solve in allocating some of these questions, which, as Philip
said, are often intermixed between internal market and competition
policy. On balance, so far, the reluctance of the Court of Justice
to delegate to the Court of First Instance I think we support.
Chairman: Unless any other Member of the Committee
has any particular question to ask on this and unless there is
anything further either of you would wish to add, it remains then
to thank you again for coming to help us and for your very great
assistance in the evidence you have given to us today. Thank you
very much indeed.
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