It is no secret that the European Union law can be characterized by different degrees of integration, all depending on the policy area involved. EU competition law is one of the most integrated areas, with very well established jurisprudence. Time to time, the European Commission, the executive authority in this field of law, issues non-binding legal acts, notices & recommendations, with the pursuit of explaining the law. The role of these acts is an advisory one and the interpretation of law expressed by these Commission documents is, of course, built on the jurisprudence of the EU Courts. The Commission, by publishing and distributing its view of the law, in the form of non-binding legal acts, it creates certain expectations and therefore it is obliged to act accordingly to them. It may create the expectation that a certain type of behaviour is not anti-competitive by its object, or that an undertaking within certain thresholds will not be subject to any allegation concerning an infringement of a specific provision.
In a recent Opinion to a pending case, Expedia Inc, the AG Kokott has maintained that the national authorities and Courts are also obliged to respect the Commission's view of the law, expressed by its Recommendations and Notices., because a different conclusion will lead to an infringement of the general principles of law, foremost:
* the principle of equal treatment
* the principle of duty of sincere cooperation
* the principle of legal certainty
* the principle of level playing field
* the principle of uniform and effective application of EU law.
See points 36-38 in the Opinion attached hereby.
The result can be that a non-binding act becomes 'binding' due to the fundamental pursuit of preserving the respect for general principles of EU law. The national authorities and court are though allowed to adopt a divergent view, if they can justify it and this justification can be judicially reviewed.
This equation could be translated into:
Soft law + Union exclusive competence + Preservation of general principles of EU law = Binding law
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CC0226:EN:HTML
The European Commission notices so far as European Union Competition law is concerned have no binding legal effect for national authorities and courts. With regard to 'de minimis' notice, it highlights that the matter is of trivial significance, not being binding in nature but at the same time this has not resulted in dismissal of the same.
Dear Sarita Jandial, thank you for your answer. However I must confess that I do not really understand what you wanted to say exactly.
For instance, you have asserted that 'the European Commission notices so far as European Union Competition law is concerned have no binding legal effect for national authorities and courts'. What do you mean by 'so far as'? Can you name any legally binding notices from other areas of law?
The other meaning that I can't comprehend is 'but at the same time this has not resulted in dismissal of the same'.
The Commission Notices are based on the jurisprudence of the Court. The Commission has never issued notices and recommendation unless it had enough case law at hand to be able to express its view on the matter. Moreover, the view of the Commission has been confirmed by the Courts in many cases ie the view of the Commission has become practice and the principle of legal certainty would require that this practice is followed by the national authorities, unless they have strong reasons to do otherwise. If they choose not the follow the Commission notice, they must provide reasons and make them subject to judicial review in case it is necessary for the protection of individual rights. This is basically what the Opinion above is giving support for.
I attach below an article that I have written recently about this case in order to improve the understanding of the problematic inferred by such an issue. My experience shows that at a superficial look, any case is clear and easy, though deeper you explore it and more you try to watch the parties' interests, more difficult it becomes to reach the ideal solution.
http://www.concurrences.com/anglais/bulletin/news-issues/september-2012-ii/the-ecj-advocate-general-kokott-48815?lang=en
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