25.6.2011

Official Journal of the European Union

C 186/4

(Case C-375/09) (<span class="super">1</span>)

(Competition - Regulation (EC) No 1/2003 - Article 5 - Abuse of a dominant position - Powers of the competition authorities of the Member States to find that there has been no breach of Article 102 TFEU)

2011/C 186/06

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: Prezes Urzędu Ochrony Konkurencji i Konsumentów

Defendant: Tele2 Polska sp. z o.o., now Netia SA

Re:

Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p. 1) — Abuse of a dominant position — Whether the competition authorities of the Member States have the power to take a decision stating that Article 82 EC is not applicable to the commercial practices of an undertaking

Operative part of the judgment

1.Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty must be interpreted as precluding a national competition authority, in the case where, in order to apply Article 102 TFEU, it examines whether the conditions for applying that article are satisfied and where, following that examination, it forms the view that there has been no abuse, from being able to take a decision stating that there has been no breach of that article;

2.The second paragraph of Article 5 of Regulation No 1/2003 is directly applicable and precludes the application of a rule of national law which would require a procedure relating to the application of Article 102 TFEU to be brought to an end by a decision stating that there has been no breach of that article.

(<span class="super">1</span>) OJ C 297, 5.12.2009.