Opinion of Advocate General Pitruzzella delivered on 3 September 2020

Data

Court: Court of Justice

Case date: 3 september 2020

Opinion of Advocate General

Pitruzzella

delivered on 3 September 2020^(*)

Case C‑308/19

Consiliul Concurenţei

v

Whiteland Import Export SRL

(Request for a preliminary ruling
from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania))

"(Request for a preliminary ruling - Competition - Agreements, decisions or concerted practices - Decision of a national competition authority finding an agreement, decision or concerted practice - Limitation period for the imposition of penalties - Types of actions interrupting the limitation period - Principle of effectiveness of antitrust action)"

Can national rules interpreted as meaning that the final action interrupting the limitation period for an enforcement action by a national competition authority is the formal action of initiating the investigation into an anticompetitive practice, without the subsequent actions taken for the purpose of such an investigation being actions interrupting the limitation period, be disapplied by the national court on the ground that those rules are contrary to the principles of sincere cooperation and effectiveness of antitrust action? The answer to that question requires an analysis of the case-law of the Court of Justice on various principles of EU law which must be balanced fairly: the principle of sincere cooperation between the Member States and the European Union; the principle of effectiveness of antitrust action; the principle of procedural autonomy of the Member States; and, in the case of legislation of a punitive nature in the broad sense, the principle of non-retroactivity of substantive legal provisions.

Legal framework

EU law

Article 4(3) of the Treaty on European Union (‘TEU’) provides:

‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or arising from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’

Article 101 of the Treaty on the Functioning of the European Union (TFEU) provides:

‘1.
The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:

directly or indirectly fix purchase or selling prices or any other trading conditions;

limit or control production, markets, technical development, or investment;

share markets or sources of supply;

apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2.
Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3.
The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

any agreement or category of agreements between undertakings,

any decision or category of decisions by associations of undertakings,

any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.’

Article 25 of Regulation No 1/2003,^(*) entitled ‘Limitation periods for the imposition of penalties’, provides:

‘1.
The powers conferred on the Commission by Articles 23 and 24 shall be subject to the following limitation periods:

three years in the case of infringements of provisions concerning requests for information or the conduct of inspections;

five years in the case of all other infringements.

2.
Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.
3.
Any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement. Actions which interrupt the running of the period shall include in particular the following:

written requests for information by the Commission or by the competition authority of a Member State;

written authorisations to conduct inspections issued to its officials by the Commission or by the competition authority of a Member State;

the initiation of proceedings by the Commission or by the competition authority of a Member State;

notification of the statement of objections of the Commission or of the competition authority of a Member State.

4.
The interruption of the limitation period shall apply for all the undertakings or associations of undertakings which have participated in the infringement.
5.
Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which limitation is suspended pursuant to paragraph 6.
6.
The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice.’

National law

Articles 5(1), 61 and 62 of Legea concurenței n. 21/1996 (Law No 21/1996 on competition), in the version applicable to the main proceedings, in force on the date of Decision No 13 of the Consiliul Concurenței (Competition Authority, Romania; ‘the Competition Authority’) of 14 April 2015, provide as follows:

‘Article 5 – (1)
The following shall be prohibited: all agreements between undertakings, all decisions by associations of undertakings and all concerted practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition in the Romanian market or a part thereof, in particular those which:

directly or indirectly fix purchase or selling prices or any other trading conditions;

…
Article 61 – (1)
The right of the Competition Authority to impose administrative penalties for the infringement of the provisions of this law is subject to the following limitation periods:

three years for the infringements referred to in Articles 51 and 52;

five years for the other infringements provided for herein.

(2)
The limitation period for the right of appeal to the Competition Authority shall begin to run on the day on which the infringement is committed. In the case of continuing or repeated infringements, time shall begin to run on the day on which the final anticompetitive action or conduct in question ceases.
Article 62 – (1)
Any action taken by the Competition Authority for the purpose of the preliminary examination or for the purpose of initiating an investigation into any infringement of the law shall interrupt the limitation periods provided for in Article 61. The interruption of the limitation period shall take effect on the day on which the measure adopted by the Competition Authority is notified to at least one economic operator or to an association of economic operators which participated in the infringement.
(2)
The measures which may be taken by the Competition Authority and which interrupt the limitation period are mainly as follows:

written requests for information;

the decision of the President of the Competition Authority to initiate an investigation;

the initiation of legal proceedings.

(3)
The interruption of the limitation period shall apply for all economic operators or associations of economic operators which participated in the infringement.
(4)
In the event of interruption of the limitation period, a new limitation period of a similar duration shall begin to run on the day on which the Competition Authority adopts one of the measures referred to in paragraph 2. The limitation period shall expire at the latest on the day on which a period equal to twice the limitation period applicable to the infringement in question has elapsed without the Competition Authority having imposed one of the penalties provided for in this law.’

The provisions of Articles 61 and 62 of Law No 21/1996 on competition, referred to in the previous point, were amended on 30 June 2015 by Decree Law No 31/2015 amending and supplementing Law No 21/1996 on competition and supplementing Decree Law No 83/2014 on the salaries of staff paid from public funds in 2015 and other measures relating to public expenditure, are now Articles 63 and 64, following republication of the aforementioned law, and are worded as follows:

‘Article 63 [ex Article 61] – The right of the Competition Authority to impose administrative penalties for infringement of the provisions of this law is subject to the following limitation periods:

three years for the infringements referred to in Articles 53 and 54;

five years for the other infringements provided for herein.

(2)
The limitation period for the right of the Competition Authority to impose penalties shall begin to run on the day on which the infringement is committed. For continuous or repeated infringements, the limitation period shall run on the day on which the final anticompetitive action or conduct in question ceases.
Article 64 [ex Article 62] – (1)
Any action taken by the Competition Authority for the purpose of a preliminary examination or for the prosecution of an infringement of the law shall interrupt the limitation periods provided for in Article 63. The interruption of the limitation period shall take effect on the day on which the measure adopted by the Competition Authority is notified to at least one economic operator or to an association of economic operators which participated in the infringement.
(2)
Measures which may be taken by the Competition Authority which interrupt the limitation period are mainly the following:

written requests for information;

the decision of the President of the Competition Authority to initiate an investigation;

the conduct of inspections;

the communication of the investigation report.

(3)
The interruption of the limitation period shall apply to all economic operators or associations of economic operators which participated in the infringement.
(4)
In the event of interruption of the limitation period, a new limitation period of a similar duration shall begin to run on the day on which the Competition Authority adopts one of the measures referred to in paragraph 2. The limitation period shall expire at the latest on the day on which a period equal to twice the limitation period applicable to the infringement in question has elapsed without the Competition Authority having imposed one of the penalties provided for in this law.
(5)
The limitation period for the imposition of penalties shall be suspended for as long as the decision of the Competition Authority is the subject of proceedings before a court.’

The facts, the main proceedings and the question referred for a preliminary ruling

On 7 September 2009, the Competition Authority initiated, of its own motion, a series of investigations into various food retailers, including Metro Cash & Carry România SRL (‘Metro’), and their suppliers, including the applicant in the main proceedings, Whiteland Import Export SRL (‘Whiteland’), with a view to establishing possible infringements of competition law. On 12 August 2014, the Competition Authority communicated the investigation report to Whiteland and the hearings before the Authority in plenary session were held on 23 October 2014. The Competition Authority engaged in deliberations on 9 December 2014, the date on which the minutes were prepared for the decision finding the infringement of competition law by Metro and 13 of its suppliers, including Whiteland. By Decision No 13 of 14 April 2015, the Competition Authority found that Metro and its suppliers, including Whiteland, had infringed Article 5(1) of Law No 21/1996 on competition, and Article 101(1) TFEU by entering into anticompetitive agreements aimed at distorting and hindering competition on the market and fixing the selling and retail price of suppliers’ products, and issued Whiteland with a fine. More specifically, with regard to the relationship between Metro and Whiteland, the Competition Authority found that a series of vertical agreements existed which were intended to limit competition in the retail food market. Such agreements restrict the freedom of the buyer (retailer) and the supplier to determine their own pricing policy. The restriction of selling and retail prices took place between 2006 and 2009 through various contractual documents signed between the supplier, Whiteland, and the retailer, Metro, as well as through contracts and promotional offers. Pursuant to Article 53(1)(a) of Law No 21/1996 on competition, Whiteland was fined 2 324 484 Romanian lei (RON), or 0.55% of its turnover in 2013, for infringement of Article 5(1)(a) of Law No 21/1996 on competition and Article 101(1) TFEU. By application entered in the register of the Curtea de Apel București (Court of Appeal of Bucharest, Romania; ‘the Court of Appeal’), Whiteland sought the partial annulment of Decision No 13 of 14 April 2015, in so far as it concerned it, in addition to exemption from the penalty, on the ground that the Competition Authority’s power to impose any administrative penalty for infringement of competition law was time-barred, since the five-year limitation period provided for in Article 61(1)(b) of Law No 21/1996 on competition had already elapsed. By judgment No 92 of 19 January 2016, the Eighth Chamber for administrative and tax matters of the Court of Appeal upheld the appeal lodged by Whiteland and therefore annulled Decision No 13 of 14 April 2015 in so far as it concerned Whiteland, on the ground that the right of the Competition Authority to impose the administrative penalty on the applicant was time-barred. The Court of Appeal held that, in accordance with the rules on limitation period for the Competition Authority’s right to impose administrative penalties under Articles 61 and 62 of Law No 21/1996 on competition, the final action of the Competition Authority that could interrupt the limitation period was the decision to initiate the investigation taken by the Competition Authority itself. In the case at issue, the Court of Appeal held that the anticompetitive conduct was of a continuous nature and that the final anticompetitive action that Whiteland is alleged to have committed had taken place on 15 July 2009, the date on which the five-year limitation period provided for in Article 61(1)(b) of Law No 21/1996 on competition began to run. The Competition Authority took the decision to initiate the investigation on 7 September 2009, which interrupted the limitation period, so that a new five-year limitation period began to run on that date. Since the Court of Appeal, by adopting a strict interpretation of Law No 21/1996 on competition, held that the decision to initiate the investigation was the final action of the Competition Authority able to interrupt the limitation period, it concluded that said period had elapsed on 7 September 2014 – that is to say, prior to both the subsequent deliberations of the Competition Authority (which took place on 9 December 2014) and the adoption of Decision No 13 of 14 April 2015. The Competition Authority brought an appeal against the Court of Appeal’s judgment No 92 of 19 January 2016, the subject of the main proceedings before the Înalta Curte de Casaţie şi Justiţie – Secția de contencios administrativ și fiscal (High Court of Cassation and Justice – Chamber for administrative and tax matters, Romania; ‘the High Court’). First, it contended that the correct interpretation of the applicable provisions is that the limitation period may be interrupted by any procedural action intended to curb the infringement, and not the strict interpretation adopted by the Court of Appeal whereby the decision to initiate an investigation is the final action able to interrupt the limitation period. Secondly, the Competition Authority argued that the interpretation whereby the decision to initiate the investigation is the final action which interrupts the limitation period would lead to a non-uniform application of the relevant national and European provisions in the matter. If, in the case at issue, the Competition Authority had not also initiated an investigation into the possible infringement of Article 101 TFEU, and if the Commission itself had investigated that point, the actions interrupting the limitation period would have been identified in accordance with Article 25 of Regulation No 1/2003, according to which the actions which interrupt the limitation period are all those relating to the proceedings in respect of the infringement. In the proceedings before the High Court, the Competition Authority requested that a reference for a preliminary ruling be made in order to ascertain whether the provisions of EU law (namely Articles 4(3) TEU and 101 TFEU, in conjunction with Article 25(3) of Regulation No 1/2003) preclude national rules from being interpreted as meaning that the formal action of initiating the investigation into an anticompetitive practice is the final action capable of interrupting the limitation period and that subsequent measures taken by the Competition Authority for the purpose of the investigation are not categorised as actions interrupting the limitation period, even if those rules are such as to preclude the Competition Authority from effectively applying Article 101 TFEU. The referring court asks whether such a strict interpretation of national Law No 21/1996 on competition, adopted by the Court of Appeal in the case at issue, leads to a non-uniform application of the relevant provisions of competition law. It notes that, according to a strand of national case-law, Article 25 of Regulation No 1/2003 concerns only the power of the Commission to impose penalties for alleged infringements of the rules of EU competition law, since that provision is not applicable to the Competition Authority. Nevertheless, the High Court notes the existence of another strand of case-law according to which there must be a correlation between Article 25 of Regulation No 1/2003 and the rules of national law on limitation periods, since there must be consistency between the rules of EU law and the rules of national law, in particular where those rules are intended to transpose the content of EU competition law. In those circumstances, the High Court referred the following question to the Court of Justice of the European Union for a preliminary ruling:

‘Must Articles 4(3) TEU and 101 TFEU be interpreted as requiring the courts of the Member States to interpret the provisions of national law governing the time limit on the Competition Authority’s right to impose administrative penalties in accordance with the provisions of Article 25(3) of Regulation No 1/2003 and as precluding the interpretation of a provision of national law as meaning that an action interrupting the limitation period means only the formal action of initiating the investigation into an anticompetitive practice, without the subsequent actions taken for the purpose of such investigation falling within the same scope of the actions interrupting the limitation period?’

Legal analysis

Preliminary observations

The request for a preliminary ruling and the legal questions raised

In the interests of clarity, and in the context of the legal analysis, it is worth recalling several facts in order to understand the legal questions behind the request for a preliminary ruling submitted by the referring court. The national provision in force at the time of the main proceedings (Article 62 of the Romanian law on competition), which states that ‘any action taken by the Competition Authority for the purpose of a preliminary examination or investigation of an infringement of the law shall interrupt the limitation period’,^(*) provides that the actions which can interrupt the limitation period are ‘mainly’: (a) written requests for information; (b) the decision of the President of the Competition Authority to initiate an investigation; (c) the initiation of legal proceedings.^(*) The interpretation of that provision by the Bucharest Court of Appeal (subsequently challenged before the referring court) was that, in the case at issue, the final action capable of interrupting the limitation period was the decision by the President of the Competition Authority to initiate the investigation. Consequently, at the date of the final decision, the limitation period had elapsed with the result that the penalty imposed by that authority was invalid. The referring court (the Romanian High Court), in the proceedings brought by the Competition Authority, is uncertain as to the correct interpretation of the national provision offered by the Court of Appeal and asks the Court of Justice, in substance: (1) whether Article 4(3) TEU and Article 101 TFEU oblige national courts to interpret in accordance with Article 25(3) of Regulation No 1/2003 national legislation laying down rules on the limitation period for the right to impose administrative penalties and (2) whether the strict interpretation of a provision such as the aforementioned Article 62, according to which the final action which can interrupt the limitation period is the formal opening of the investigation by the President of the Competition Authority, could have the effect of precluding the effective application of Article 101 TFEU, thus undermining the principle of effectiveness as a limitation of the procedural autonomy of the Member States and the principle of sincere cooperation referred to in Article 4(3) TEU. The legal question to be resolved is, therefore, the identification of limits within which Member States may regulate the limitation period for the actions of national competition authorities, particularly as regards the type of actions which interrupt the limitation period. The reference contained in the request for a preliminary ruling to Article 25 of Regulation No 1/2003, if interpreted (as some parties to the dispute seem to do so) as applying directly to the present case, is misleading when it comes to tackling the legal question. Indeed, that article provides that the power conferred on the Commission under Articles 23 and 24 of the regulation is subject to specific limitation periods and rules governing their expiration, such as the condition, laid down in paragraph 3, that ‘any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement’ must interrupt the limitation period for the imposition of fines or periodic penalty payments. It is clear from the wording of Article 25 that that provision applies only to the exercise of the powers conferred on the Commission by Regulation No 1/2003, and not to the exercise of the powers conferred on the national competition authorities. I therefore consider irrelevant the fact, relied on by some of the parties, that the Romanian legislature, when the competition law entered into force, was inspired by the wording of Article 25 of Regulation No 1/2003. As the Commission has also pointed out,^(*) Article 62 of the law on competition is worded differently from Article 25 of Regulation No 1/2003. It cannot be argued, therefore, that the Romanian legislature reproduced verbatim the content of Article 25, nor can that article be directly applicable to the actions taken by the national competition authority. It follows that the answer to the question referred by the national court cannot be derived from the application of the abovementioned Article 25, but stems from the interpretation of Article 62 of the law on competition in the light of the reconciliation of different principles of EU law:^(*) the principle of procedural autonomy of the Member States in the absence of harmonised rules; the principle of effectiveness of the antitrust enforcement action; the principle of sincere cooperation between the Member States and the European Union; and the principle of non-retroactivity of substantive legal provisions of a punitive nature.

Applicable law and subsequent amendments

Before turning to the analysis of the abovementioned principles, it is worth remembering, first of all, that going forward the question now before the Court will no longer serve any practical purpose in the national law of origin. Indeed, the national legislature has amended the abovementioned Article 62, harmonising it with the provisions of Article 25 of Regulation No 1/2003^(*) and thus providing for subsequent grounds for interrupting the limitation period other than the opening of the investigation.^(*) However, the previous provision continues to apply ratione temporis to the case brought by Whiteland before the national court. The Court of Justice will, therefore, have to provide the referring court with the criteria to resolve it in the light of the correct interpretation of EU law. In my view, the amendments made are completely neutral with regard to the resolution of the present case: the Court’s assessment is limited to the compatibility with EU law of an interpretation (such as that outlined by the referring court and adopted by the Court of Appeal) of the national rule applicable at the material time. Lastly, Article 29 of Directive 2019/1^(*) lays down certain rules on limitation periods for the imposition of fines by the national competition authorities. However, these do not concern the aspects involved in the present case.^(*) The EU legislature thus seems resolved not to regulate directly the issue of the duration of limitation periods and the type of actions which interrupt the limitation period with regard to measures taken by the national competition authorities.

Principle of procedural autonomy of the Member States and principle of effectiveness of antitrust action

In the case currently before the Court, since the direct applicability of Article 25 of Regulation No 1/2003 is excluded, a number of general principles of EU law need to be reconciled on which the Court has previously ruled on several occasions. In assessing whether a legal provision such as the Romanian provision in force at the material time (strictly interpreted, as the Court of Appeal did) is compatible with EU law, it has to be assumed that the antitrust action must be effective both when it is the responsibility of the Commission and when it is the responsibility of the national competition authorities. Indeed, the Member States are to ‘designate the competition authority or authorities responsible for the application of Articles 101 TFEU and 102 TFEU in such a way that the provisions of [Regulation No 1/2003] are effectively complied with. The authorities so designated must, in accordance with [Regulation No 1/2003], ensure that those Treaty Articles are applied effectively in the general interest (see Recitals 5, 6, 8, 34 and 35 in the preamble to the Regulation)’.^(*) It is true that ‘in accordance with the principle of national procedural autonomy, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law’^(*) and that ‘in so far as Community law, including its general principles, does not include common rules to this effect, the national authorities when implementing Community regulations act in accordance with the procedural and substantive rules of their own national law’.^(*) Nevertheless, that principle, as the Court has long instructed, ‘must be reconciled with the need to apply Community law uniformly so as to avoid unequal treatment of producers and traders’.^(*) This means that, as clarified succinctly in subsequent interventions by the Court, the discretionary powers of the Member States are subject to compliance with EU principles^(*) and, in particular, the principle of effectiveness. National provisions must not ‘render the implementation of European Union law impossible or excessively difficult’.^(*) This applies in particular to the area of competition. The modernisation of the rules and procedures relating to the application of Articles 101 and 102 TFEU, effected by Regulation No 1/2003, is based on the design of a decentralised system for the application of European antitrust rules, in which the European Commission, the national competition authorities and the courts of the Member States work closely together. Those entities have been given new powers, in relation to the previous rules, so as to improve the efficiency of enforcement at the European level, while maintaining its coherence and uniformity. A decentralised system thus designed, in which the national authorities directly apply EU law, requires the rules laid down for antitrust enforcement to avoid posing an obstacle to the uniform and effective application of antitrust law, while respecting the procedural autonomy of the Member States. Accordingly, Member States ‘must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 TFEU and 102 TFEU’^(*) and that ‘the detailed procedural rules for legal proceedings brought against decisions of the competition authorities’ do not jeopardise the objective of Regulation No 1/2003, which is to ‘ensure that Articles 101 TFEU and 102 TFEU are applied effectively by those authorities’.^(*) With regard to limitation periods in particular, a case concerning the right to bring an action for damages for infringement of competition law was recently heard by the Court. The law of the Member State restricted the limitation period to three years, which started to run irrespective of whether or not the injured party was aware of the identity of the person liable and the overall extent of the damage. Moreover, that law did not allow for any suspension or interruption of the limitation period for proceedings pending before the national competition authority. The Court held on that occasion that ‘Article 102 TFEU and the principle of effectiveness must be interpreted as precluding national legislation which, first, provides that the limitation period in respect of actions for damages is three years and starts to run from the date on which the injured party was aware of its right to compensation, even if unaware of the identity of the person liable and, secondly, does not include any possibility of suspending or interrupting that period during proceedings before the national competition authority’.^(*) The Court also reiterated the principle that ‘national legislation laying down the date from which the limitation period starts to run, the duration and the rules for suspension or interruption of that period must be adapted to the specificities of competition law’^(*) which ‘requires, in principle, a complex factual and economic analysis’.^(*) In my view, those principles – affirmed by the Court in relation to an action brought by private individuals to obtain compensation for a loss suffered as a result of anticompetitive conduct (private enforcement) – also apply to the present case, in which the action subject to a limitation period is that of a national competition authority (public enforcement). This is due to the fact that private enforcement has become a ‘second pillar’^(*) alongside public enforcement and, ‘as a result of the decentralised system for the enforcement of antitrust law, created by means of Regulation … No 1/2003 … such actions are now a well-established feature’.^(*) Actions for damages for infringement of EU competition rules are an ‘integral part of the system for enforcement of those rules, which are intended to punish anticompetitive behaviour on the part of undertakings and to deter them from engaging in such conduct’.^(*) Regulation No 1/2003 emphasised the complementary relationship between public and private enforcement which characterises the European model:^(*) public enforcement – due to the robust investigative and sanctioning powers granted to the competent authorities – primarily serves to curb and deter anticompetitive offences, whereas private enforcement has the task of ensuring the protection of rights and compensation for the loss suffered by the victims of the offence. The most recent directives^(*) on that subject confirm that approach, yet add elements that seem to converge towards increasing complementarity. Rather than looking at two competing enforcement systems, it would be more appropriate to treat them as a single system, since they are two means of achieving the same result.^(*) The aim of coordinating those enforcement methods is to encourage virtuous interaction in pursuit of the shared objective of effective application of competition law.^(*) Practical experience has shown that not only can civil actions for damages be a specific opportunity to bring potential antitrust cases before the court that would otherwise go unprotected,^(*) but that the right of any individual to claim compensation for a loss resulting from anticompetitive conduct ‘strengthens the working of the European Union competition rules … thereby making a significant contribution to the maintenance of effective competition in the European Union’.^(*) In view of that close complementarity between private and public enforcement,^(*) both of which serve the public interest in the pursuit of effective and free competition in the single market, I take the view that the principles expressed above by the Court in Cogeco can also be applied in the present case. The principle of effectiveness requires that ‘national rules must not make it in practice impossible or excessively difficult to exercise the rights conferred by EU law’.^(*) This is particularly true in the area of competition,^(*) given the decentralised enforcement system described above and considering that ‘a correct legal appreciation of infringements of the competition rules in many cases requires the assessment of complex economic relationships and internal business documents, which often come to light only as a result of the work of the competition authorities’.^(*) In relation to the limitation period, therefore, the rules laid down by the individual Member States must allow effective antitrust action even in the most complex cases. Analysing the case now before the Court, a series of indications emerge that could lead to the Court of Appeal’s interpretation of the national rule being found to be contrary to the principle of effectiveness: the absolute preclusion of actions interrupting the limitation period after the opening of the investigation, which is unable to take into account procedural events following the opening of the investigation, and the consequent excessive reduction in the application of the absolute limitation period of 10 years, also laid down in the same rules. It is not the duration of the limitation period per se, nor specific cases of interrupting actions, which appears to be in breach of EU law in a case such as this, but the unreasonable rigidity of the strict interpretation offered, which appears not to allow the interruption of the limitation period even in particularly complex cases. Such an interpretation would render virtually meaningless the absolute limitation period of 10 years, provided for by the same legislation in addition to the ‘ordinary’ period of 5 years: if no action following the official opening of the proceedings can interrupt the limitation period, the 5-year limitation period will rarely be exceeded and at most, only the brief period of time that elapses between the alleged competitive offence being reported and the proceedings being opened may be exceeded. Admittedly, the relevant department conducts a preliminary investigation before the Competition Authority opens the proceedings. However, various actions that are material to the proceedings – such as inspections, for example – cannot be carried out during that period, and in any case not all the procedural events typical of a proper adversarial procedure tend to take place. Member States may, therefore, provide for different limitation periods and procedures than those laid down by the Commission in Article 25 of Regulation No 1/2003, on condition, however, that they allow enforcement to take place in a manner appropriate to the complexity of the legal and economic analysis of cases submitted to the national competition authorities. In my view, this is what the expression ‘not render the implementation of European Union law impossible or excessively difficult’, which has been used on several occasions by the Court, should mean when it comes to competition. To that end, rather than the absolute duration of the limitation period, which must not be excessive in order to avoid the opposite effect of an untimely antitrust action, it is the actions interrupting the limitation period that are key, by allowing the duration of the proceedings to be adapted to the actual complexity of the case. It follows that a legislative provision such as the Romanian one must be interpreted by the national courts, albeit in accordance with the procedural autonomy of the Member States, taking into account: (a) the entire system of rules on limitation periods in force, rather than individual provisions on a piecemeal basis;^(*) (b) the average complexity of the cases handled by the national competition authority and the time needed for an appropriate legal and economic analysis. As suggested by the Commission in its written observations,^(*) the test proposed by the Court in the Taricco 1 case could be used for that purpose.^(*) By applying the test to the case at issue, the national court should ascertain whether the application of the national provisions on the interruption of the limitation period, as interpreted by the Court of Appeal, results, in a considerable number of cases, in the impunity of undertakings which have engaged in serious antitrust offences, since such acts would generally be time-barred before the antitrust penalty provided for by law can be imposed. If positively ascertained, the national court should find that the measures laid down by national law to combat antitrust offences cannot be considered effective and dissuasive, which would be contrary to Article 101 TFEU, read in conjunction with Article 4(3) TEU. Consideration could be given not only to the actual number of cases of impunity resulting from the expiration of the limitation period as a proportion of the total number of cases examined by the relevant national competition authority, but also the fact that, for example, certain types of infringement of competition law would systematically go unpunished^(*) as a result of the application of national provisions on the interruption of the limitation period. Lastly, I would point out that, with a view to assessing the effects of any time-barring of the enforcement action of the national competition authority, the national court might also consider the interests of third parties who, as a result of the decision of the national competition authority being time-barred, suffer a loss which, although unrealised, can be regarded as material. I am referring in particular to consumers who, having suffered a loss due to the anticompetitive conduct of the undertakings penalised, are waiting for the court to uphold the authority’s decision before proceeding with follow-on actions for damages. This, in my view, would be further confirmation of my earlier argument^(*) on the complementarity of public and private enforcement, both of which serve the public interest in the pursuit of effective and free competition in the single market. That further assessment presupposes that certain conditions which could also bring the interest of consumers within the national court’s overall assessment are met, namely: (a) the decision of the national competition authority should not appear prima facie unlawful for reasons other than those relating to the limitation period and (b) the content of the decision of the national competition authority being challenged must in theory provide a basis for follow-on actions by a substantial number of consumers who have suffered a loss as a result of unlawful conduct on the part of the undertakings penalised. Following the investigations described above, it is for the national court, in my view, to make a final assessment, namely whether the national provision is consistent not with the letter, but rather the ‘spirit’, of all the rules of EU law relating to the limitation period for the Commission’s enforcement action. In other words, although binding on the Member States, the spirit of those rules nevertheless represents an ‘efficiency standard’ for antitrust action, which must be as uniform as possible in a decentralised legal enforcement system in which individual national competition authorities increasingly act in synergy with the Commission. What emerges from the foregoing is that, from the set of circumstances inferred from the file, a strict interpretation of the actions interrupting the limitation period, such as the one offered by the Court of Appeal, could hinder the enforcement action of a national competition authority, particularly when the specific features of the case are such as to require complex legal and economic analysis (partly as a result of the volume of material to be examined) and further investigation, including inspections and other means of gathering evidence. As previously mentioned, it will be for the national court to apply the abovementioned criteria in order to assess whether, in the case at issue, the national rule, as interpreted by the Court of Appeal, makes the antitrust enforcement action by the national competition authority excessively difficult and thus contrary to the principle of effectiveness. Following that assessment, the referring court must apply the principle that national law is to be interpreted in a manner consistent with EU law, which, as we know, ‘requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it’.^(*) If the national court should find it impossible to interpret the national rule in a manner that is consistent with EU law and should proceed to disapply the national rule, the focus ultimately must be on the legal consequences in the main proceedings, as the Commission suggests in its written observations.^(*) If the national court should find that the strict interpretation of Article 62 of the Romanian law on competition is incompatible with EU law, thereby disapplying the national rule and considering that the limitation period had been validly interrupted by further action following the opening of the investigation procedure, the legal situation would have to be assessed with regard to the principle of legality and non-retroactivity of the rules on penalties.^(*) This is because it appears from the file and, in particular, from the Commission’s written observations,^(*) that in the Romanian legal system, as in the Italian legal system which was the subject of the Taricco 1^(*) and Taricco 2^(*) judgments, the rules on the limitation period for offences, like the rules on the definition of offences and the determination of penalties, are based on substantive criminal law. As such, they are subject, like those latter rules, to the principle that offences and penalties must be defined by law,^(*) as enshrined in Article 49(1) of the Charter of Fundamental Rights of the European Union and Article 7(1) of the European Convention on Human Rights. The rules on limitation in criminal matters are, therefore, subject to the requirements of foreseeability, precision and non-retroactivity inherent in the principle that offences and penalties must be defined by law. In the Taricco 2 judgment,^(*) the Court of Justice ruled that if the national court held that the obligation to disapply the national provisions at issue should be contrary to the principle that offences and penalties must be defined by law, which requires the law to establish criminal offences and penalties in a foreseeable, precise and non-retroactive manner, it would not be obliged to comply with that obligation, even if compliance with the obligation allowed a national situation incompatible with EU law to be remedied. That principle could also be considered applicable to penalties in competition cases on the basis of the settled case-law of the European Court of Human Rights.^(*) Given the aim of competition law, the nature of the penalties (both preventive and punitive in effect) and their size (large financial penalties), such proceedings must, according to the European Court of Human Rights, be subject to the guarantees provided for in Article 6 ECHR.^(*) The Court of Justice has also followed that approach on several occasions: in Commission v Anic Partecipazioni, the Court recognised the applicability of the principle of personal responsibility to competition rules;^(*) in Hüls v Commission, the Court referred to the principle of the presumption of innocence enshrined in Article 6(2) of the European Convention on Human Rights.^(*) As Advocate General Bot puts it, ‘the fines referred to in Article 23 of Regulation No 1/2003^(*) are comparable in nature and size to criminal penalties’ and the procedure ‘is therefore covered by “criminal” within the meaning of Article 6(1) of the European Convention for the protection of human rights and fundamental freedoms’.^(*) It cannot be excluded, therefore, if the conditions referred to above are met, that a legislative provision, which is subsequently found not to comply with the principles of EU law, may continue to bind the parties in accordance with the principle of legality and non-retroactivity of criminal or punitive provisions in the broad sense. Similar reasoning could be applied where an existing rule has been consistently interpreted. The prerequisite for this to apply is that there are unequivocal and consistent interpretations of case-law which can, therefore, be considered within that specific national legal system as ‘diritto vivente’ (established and uniform case-law). Only in that case may the interpretation of a legal provision of a punitive nature, as ‘diritto vivente’, continue to bind the parties even if it is subsequently found not to comply with EU law. In the present case, according to the file, it seems to me that such a situation cannot be considered to exist, since the case-law interpretations in the Member State appear to differ. The referring court explains that, following Decision No 13 of 14 April 2015, 10 applications were filed with the Bucharest Court of Appeal. In five of them, the right to apply the penalty was found to be time-barred, whereas in the other five the contested decision was upheld.^(*) This confirms the existence of a ‘non-uniform practice of the courts ruling on the merits in this regard’.^(*) The Competition Authority recalls that ‘the lower courts which examined the legality of Decision No 13/2015 have interpreted and applied differently the applicable rules on limitation periods for the imposition of penalties in the area of competition as regards the actions which interrupt the limitation period.’^(*) Nevertheless, it will be for the national court to ascertain whether the conditions laid down in Taricco 2 and clarified by the case-law of the European Court of Human Rights and the Court of Justice are fulfilled, by applying the criteria set out above.

Conclusion

In the light of the foregoing considerations, I am of the view that the Court should answer as follows the question raised by the referring court:

Article 4(3) TEU and Article 101 TFEU must be interpreted as requiring the Member States’ courts to interpret the national rules, which govern the time-barring of the Competition Authority’s power to impose administrative penalties, in accordance with the principles of sincere cooperation between the Member States and the European Union and of the effectiveness of the antitrust action.
Member States may, within the scope of their own procedural autonomy, lay down rules for the time-barring of the national competition authorities’ power to impose penalties, which are different from the rules provided for the Commission by Article 25 of Regulation (EC) No 1/2003, on condition that the rules laid down allow, in accordance with the principle of effectiveness, the exercise of enforcement activities appropriate to the complexity of the legal and economic analysis of cases submitted to the national competition authorities.
The interpretation of a rule of national law to the effect that the final action interrupting the limitation period is the action of initiating the investigation into an anticompetitive practice, without the subsequent actions taken for the purpose of such an investigation falling within the same scope as the actions interrupting the limitation period, may be inconsistent with the abovementioned principles of sincere cooperation and effectiveness of the antitrust action if the national court finds that certain conditions are met which render the action of the national competition authority excessively difficult. In its assessment, the national court must take into account: (a) the specific features of competition law which requires, in principle, a complex factual and economic analysis; (b) the entire system of rules on the limitation period in force; (c) the role played by actions interrupting the limitation period, which make it possible to adapt the duration of the proceedings to the actual complexity of the case; (d) the average complexity of the cases handled by the national competition authority, if necessary using the test proposed by the Court in its judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555 ).
If the abovementioned conditions are met, the referring court must apply the principle that national law is to be interpreted in conformity with EU law and, only if this proves impossible, disapply the national rule, ascertaining that such disapplication complies with the principle that offences and penalties must be defined by law, within the terms specified by the Court in its judgment of 5 December 2017, M.A.S. and M.B . (C‑42/17, EU:C:2017:936 ).