October 01
Dolores Utrilla
16th September 2020
Competition & State Aid Justice & Litigation

Court of Justice: Spanish National Commission on Markets and Competition acting as competition enforcement authority is not a ‘court or tribunal’ under Article 267 TFEU

The Court of Justice has delivered today its judgment in Anesco e.a. (C-462/19), a preliminary ruling requested by the Spanish National Commission on Markets and Competition (Comisión Nacional de los Mercados y la Competencia) on the meaning of Article 101 TFEU and of Council Regulation 1/2003, as well as of the case law interpreting them. 

More specifically, the preliminary reference request concerned the possibility for Member States to enact provisions allowing agreements between operators and employee representatives concerning the transfer of dock workers and employment relations in the stevedoring sector. The Court of Justice was also called on to determine whether Member States can enact provisions allowing collective agreements that impose a particular means of transferring employees that extend beyond employment matters, producing a harmonisation of commercial conditions.

In its judgment today, the Court of Justice has declared the request for a preliminary ruling as inadmissible because the referring ‘court’, the Council of the Spanish CNMC, does not have the status of a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. According to today’s judgment, this is so for two reasons:

Firstly, because the Council of the CNMC does not have the status of a third party in relation to the one which took the decision that is the subject of the main proceedings (namely the Directorate for Competence of the CNMC). 

Secondly, because the decisions which the CNMC is required to take in cases such as that in the main proceedings are similar to decisions of an administrative nature, which precludes their adoption in the exercise of jurisdictional functions. According to the Court of Justice, this follows inter alia from the fact that (i) such proceedings concern the exercise by the CNMC of its power to impose penalties of its own motion; (ii) the CNMC must exercise that function in close cooperation with the European Commission, which may deprive it of its powers in that regard under Article 11(6) of Regulation 1/2003; and (iii) the resulting decision of the CNMC lacks the force of res iudicata.

The judgment is available here.


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