On September 16, 2020, the Court of Justice ruled on the interpretation of the concept of “court or tribunal” within the meaning of Article 267 TFEU.[1] The Court of Justice held the reference for a preliminary ruling inadmissible, for lack of the referring Spanish competition authority (“CNMC”) constituting a “court or tribunal” for the purpose of Article 267 TFEU.

Without ruling on the substance of a dispute regarding the legality under Article 101 TFEU of a collective agreement between an employer and trade unions, the Court of Justice held that the conditions for referral for a preliminary ruling were not met.

First, the Court of Justice held that the CNMC is not a third party in relation to the authority which adopted the contested decision. The CNMC’s decision-making body, the Board of the CNMC, cannot be regarded as independent from the CNMC’s investigatory body, the Competition Directorate, which makes proposals for decisions that the Board is called upon to adjudicate. Although the CNMC’s investigative and decision- making activities are functionally separate, they are organizationally and operationally linked as the Board manages staff of, and coordinates and supervises the Competition Directorate.

Second, the decisions adopted by the CNMC are similar to administrative decisions and therefore cannot be considered as adopted in the exercise of judicial functions. In particular, the Court noted that the administrative nature of the main proceedings is confirmed, among others, by the fact that (i) the CNMC acts, of its own motion, as a specialized administration exercising the power to impose penalties in cases falling within its competence; (ii) it works in close collaboration with the Commission and may be denied jurisdiction in favor of the latter under Article 11(6) of Regulation No. 1/2003; (iii) penalty decisions of the CNMC for anti-competitive behavior are subject to a maximum time of expiry by which the proceedings will lapse automatically, regardless of the view of the parties; (iv) the CNMC’s decisions, whilst being final and immediately enforceable, lack the attributes of a judicial decision, in particular they do not bear authority of a judgment; and (v) where a decision of the CNMC is challenged in the administrative courts, the CNMC acts as a defendant in the court proceedings at first instance or as an appellant or respondent to an appeal before the Spanish Supreme Court.

To be referred to the Court of Justice, the CNMC’s decision would therefore first need to be challenged in Spanish courts which are entitled to refer a question to the Court of Justice. Alternatively, the CNMC could refer the case to the Commission, whose decisions are challengeable to the General Court. Either of these alternatives does not allow for a fast track resolution of interpretative questions that are commonly better solved at the EU level, and raises the question as to whether the uniform and effective application of EU competition law would not be better served by allowing direct referrals for preliminary rulings through specialized administrative bodies, too.

The judgment confirms the Court of Justice’s restrictive approach of the interpretation of “court or tribunal” within the meaning of Article 267 TFEU, in line with its Syfait case.[2] While unsurprising in its result, the judgment still places a new emphasis on the nature of the proceedings and the decision to be taken by the referring body in the main suit: only if they are judicial in nature will the referral be held admissible. The judgment may therefore foster disparities in treatment of the different national competition authorities of the EU Member States. It is not directly intuitive why competition authorities following the judicial model of competition law enforcement (such as in Austria) will be allowed a direct dialogue with the Court of Justice, while those following an administrative model are not.

[1]      Anesco e. a. (Case C-462/19), judgment of 16 September 2020.

[2]      See Syfait and others v. GlaxoSmithKline AEVE and GlaxoSmithKline plc. (Case C-53/03) EU:C:2004:673, judgment of 31 May 2005. The Anesco judgment is also in line with the Court’s judgment in Asociación Española de Banca Privada and Others (Case C-67/91) ECR I-4785, of 16 July 1992, where it admitted a request for

a preliminary ruling from the former Spanish Competition Court, because under the Spanish law in force at the time, the Spanish Competition Court was fully separate from the investigative body in competition matters.