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15.2.2.  European and national competition law

    In the field of competition, national competence and Union competence are autonomous and parallel, the latter being defined by the criterion of the effect of trade among Member States. In a concrete case there may be juxtaposition of the validity of European law and national law. In any case, European law takes precedence over national law [see section 3.3]. National authorities may take action against an agreement, pursuant to national law, even where the position of that agreement with regard to European rules is pending before the Commission. They can also apply the European competition law. However, the decision resulting from a national procedure may not run counter to the Commission's decision. Where the latter precedes the national decision, the competent authorities of the Member State are obliged to observe its effects. Where, on the other hand, the Commission's decision post-dates the national decision and is at variance with its effects, it is for the national authorities to take appropriate measures in conformity with it.

    The Member States cannot oppose Commission decisions, whereas the Commission can request the competent authorities of the States concerned to proceed with any verification it deems necessary or to collect fines or penalty payments it has imposed. National courts can apply the European law or refer matters of European law to the Court of Justice for a preliminary ruling. Appeal courts are obliged to request a preliminary ruling where a decision on the point at issue is necessary to enable them to deliver their judgment.

    The Court of Justice has consistently held that government measures could be regarded as contrary to the competition rules laid down in the EC Treaty, if they were to impose or encourage the conclusion of agreements contrary to Article 81 (ex Article 85, new Article 101 TFEU), to heighten the effects of an agreement (e.g. by guaranteeing provisions of an existing agreement in a given market) or to delegate to private operators the power to take concerned decisions on economic action. On the other hand, national legislation could not be regarded as contrary to the European rules merely because it had restrictive effects on competition similar to those resulting from measures prohibited by Article 81 [see Cases C-2/91, C-185/91 and C-245/91].

    As regards national aids and discrimination in favour of public undertakings, on which the Member States are responsible for infringements of the free-competition arrangements, the precedence of European law on competition is even more clear-cut. Likewise, it is quite evident that law must be applied by supranational bodies with the power to compel national authorities to comply with their decisions. According to the Court of justice, if a government measure has not been notified to the Commission under Article 92 of the EEC Treaty (Article 87 TEC, Article 107 TFEU) or the Commission has not yet decided whether the measure in question is compatible, the national court must refer any disputes to the Commission for clarification or to the Court for a preliminary ruling [Case C-39/94].

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