Article 234 and Competition Law: A Comparative Analysis
| Author | Barry J. Rodger |
| DOI | 10.1177/1023263X0801500202 |
| Published date | 01 June 2008 |
| Date | 01 June 2008 |
| Subject Matter | Article |
15 MJ 2 (2008) 149
ARTICLE 234 AND COMPETITION LAW:
A COMPARATIVE ANALYSIS
B J. R*
ABSTRACT
Many of the most signicant principles established by the ECJ have been decided in the
context of a reference to that court for a preliminary ruling under Article 234 (ex 177)
EC. Article 234 facilitates a dialogue between the national courts and the ECJ in order to
allow nat ional courts to seek guid ance on the appropriate inter pretation of Community
law principles in a particular dispute. e impor tance of the Article 23 4 procedure in
seeking to ensure the uniform and consistent interpretation of Community law c annot
be under- estimated, partic ularly in the eld of competition law. is article i s based on
collaborative re search involving fourte en Member State s and a comprehensive rev iew of
all Article 234 competition and Sta te aid rulings to 1 May 2004 . e article considers
various issues rel ating to the number and type of prelimina ry rulings given by the ECJ
in compet ition-law related matters. It provides in sights into which Member States have
resorted most frequently to the Article 234 mechani sm, and the ty pes of competition law
issues raised in those legal disputes, and assesses the extent to which resort to the procedure
has varied over dierent time-frames, together with sugge sted rationale for the varying use
between dierent Member States, and over dierent periods of time. Finally, the arti cle
outlines the extent to whic h information has been gained on the post-ruling process in
dierent Member States.
Keywords: Preliminar y ruling; ECJ; competition; State aid; Ar ticle 234; case law analysis
* e L aw School , Universit y of Strathclyde, Glasgow. is article is based on a book, edited by t he
author, entitled Article 234 and C ompetition Law: An Analys is, (K luwer L aw Intern ational, March
2008) (herein aer ‘the book ’). Many tha nks to all rapporteurs who have been involved in the project:
G. Taillandier; I. Taccani; L. Lernbor g; M . Dony, C. Moal-Nuyts; N. Tezcan, J. Boot, P.J. Slot ; U.
Neergaard; L. Rossi and S. Geralde s; R. Schm idbauer; A. A ine; A. Komn inos and H. Nikolopolou; D.
Cahil l and E. Fahey; T. Rodrigue z de las Heras Ballel l and M. Alba Fernandez . anks also to res earch
assistants during the len gthy period of this project, Jon athon Galloway a nd latterly Catr iona Skinner;
and also to the ed itor of this journal and t he anonymous referees for their helpf ul comments, alt hough
responsibilit y for this article a nd any errors and omission s remain mine alone.
Barry J. Rod ger
150 15 MJ 2 (2008)
§1. INTRODUCTION
EC competition l aw litigation has become more frequent in the Member States’ courts,
partly following important Eu ropean Court of Just ice (‘ECJ’) juri sprudence such
as Automec, Francovich and more recently Crehan.1 Nonetheless, there has be en no
research or literature that has comprehensively sought to identify the numbers, t rends
and types of competition (including State aid) litigation that h as been the subject of
the A rticle 234 procedure. is article is based on collaborative research that focused
on the Art icle 234 procedure i n relation to compet ition law and State aid cases. e
underlying research is an important contribut ion to t he literature on the ECJ and its
role in developing a competition cult ure across the Community; indeed t he importance
of ensur ing consistency and uniformity in the implementation of EC competition law
by national courts has been given added signicance following the introduc tion of
Regulation 1/20032 a nd the accession of new Member States. e article is based on the
information obtained from Member State national reports, ea ch of which reported on a
range of issues relative to every competition law-related ru ling by the ECJ, prior to 1 May
2004,3 in references from that Member State’s courts. e national reports considered the
number of rulings in relation to that Member State; the dates of all r ulings; details of the
case background, reference questions and the ECJ rul ing for each case; and information,
where available, on each post-ruli ng follow-up process.4
is article wi ll look at a number of issues relati ng to t he number a nd type of rulings
given by the ECJ in competition-law related matters. It will provide insight s into which
Member States have resorte d most frequently to the Article 234 mechanism in this
context, which courts within Member States have utilised the procedure most frequently,
and a ssess the extent to which resort to the procedure has varied over dierent time-
frames, together w ith suggested rationale for the varyi ng use between dierent Member
State c ourts, and over die rent periods of time.5 e rst issue examined is the total
number of preliminary ruli ngs in competit ion law-related matters, to 1 May 2004, across
the Member States. erea er the number of rulings by the ECJ within dierent periods,6
and withi n those periods across each of the Member States, will be considered, a nd the
rationale for any variation ascerta ined.7 e article will then focus on the subject-matter
of ECJ rulings and the post-ruling process, rst as sessing the frequency with which a
1 Case T-24/90 [1992] ECR II-2223; Cases C-6/90 & C-9/90 [1991] ECR I-5357; and Case C-453/99 [2001]
ECR I-6297 respec tively.
2 OJ L1/1, 2003.
3 e research includes a ll competition law-related r ulings prior to 1 May 200 4.
4 See Part II of the book .
5 is information ha s been collated from the v arious national repor ts, set out in Part I I of the book.
6 See Table 2 and Chart 2 infra .
7 In this se ction we have pr oduced charts only in relat ion to the ‘ big ve’ Member States: France, Italy,
Germany, Belgium and t he Netherlands. As we will note f urther infra, eac h of these Member States has
considerably more compet ition-law related ruli ngs to consider than ot her Member States.
Article 234 a nd Competition Law: A Comp arative Analysi s
15 MJ 2 (2008) 151
range of disti nctive competition law issue s were involved within the database of ECJ
rulings i n competition law-related matters to 1 May 2004. It w ill observe the number of
rulings by the ECJ involving each competition law issue within the dierent periods, and
within those pe riods in relation to each of the ‘big ve’ Member States. Finally, the post-
ruling process, a n aspect which makes this research project pioneering and ambitious in
seeking to establish wh at happened to each dispute in its national legal system following
the ECJ rul ing will be briey considered . e article wil l outline the extent to which we
gained information on post-rul ing national court judgments in di erent Member State s
and consider the treatment of certa in ‘landmark’ ca ses by those national courts.
§2. BACKGROUND TO ARTICLE 234 AND THE RESEARCH
PROJECT
Article 234 facilit ates a d ialogue between the nationa l courts and the ECJ in order to
allow national cour ts to seek guidance on the appropriate inter pretation of Community
law pri nciples in a part icular lega l dispute,8 and f rom a Community per spective th is
process shou ld enhance the uniform and consistent interpretation of Community law
throughout t he national cour ts.9 National cour ts, and tr ibunals, of a ll levels can make
a reference for a preliminary rul ing. ese wil l be discretiona ry references unles s a
ruling is necessary to enable a court of last instance to give judgment, in which case a
reference is mandatory.10 However, the preliminary ruling mec hanism allows the ECJ
to provide a ruling on the Community law aspect of the case wit hout determining t he
actual dispute be tween the parties, which is the preser ve of the national court i n the
light of the ECJ ru ling.11 e importance of the A rticle 234 procedure has been stres sed
on innumerable occasions; for ex ample: ‘almost al l the major pr inciples established by
8 Article 234 provide s that:
‘e Court of Just ice shall have juris diction to give prelim inary rul ings concerning:
(a) t he interpretation of t his Treaty;
(b) the va lidity and inter pretation of acts of the in stitutions of the Commu nity;
(c) the interpretation of the statutes of bodies establishe d by an act of the Council, where those statutes
so provide.
Where such a que stion is raised before any court or tribunal of a Memb er State, that cou rt or tribuna l
may, if it considers that a decision on the question is necessa ry to enable it to give judgment, request the
Court of Justic e to give a ruling t hereon.
Where any s uch quest ion is raised before any court or tr ibunal of a Member State, against whose
decisions t here is no judici al remedy unde r national law, t hat court or tribunal sha ll bring t he matter
before the Cour t of Justice.’.
9 See J. Steiner, L. Woods, and C Twigg-Flesner, EU law (OUP, 9th ed., 2006) Chapter 9, 193–224; P. Craig
10 ough thi s is moderated by the ac te clair doctri ne. See, for example, CI LFIT v Ministero dell a Sanita,
Case 283/81 [1982] ECR 345.
11 Cf I. Atanasiu and C-D. Ehlerma nn, ‘e Mod ernisation of EC Antitr ust Law: C onsequences for the
Future Role and Func tion of the EC Courts’, 23 Eur. Comp. L . Rev. 72 (2002).
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