Effect of Commission decisions on private antitrust litigation: Setting the story straight

This article deals with the topical question of the effect of existing or contemplated Commission decisions in the area of competition law enforcement in relation to national civil litigation. It argues that national courts are independent of the European Commission and that the "supremacy" rule of the Masterfoods ruling of the Court of Justice and of Article 16 of Regulation 1/2003 ought not to be interpreted as a broad rule of precedence of public over private enforcement, which would be undesirable, but rather as an instance of the Community law principle of supremacy. For that reason, the duty imposed on national courts is in reality a negative duty of abstention, i.e. a duty "not to contradict" Commission decisions, and not a positive duty to follow entirely such decisions, since the latter do not produce a positive binding effect in a system of parallel competences. At the same time, the courts' duty not to contradict Commission decisions extends only to the operative part of Commission decisions and not to their reasoning, which means that courts are never bound by decisions dealing with merely similar facts. Based on these premises, the article proceeds to examine four different scenarios of conflict between Commission administrative and national civil proceedings and to propose ways to resolve such conflicts.