Official Journal of the European Union

C 297/19

(Case C-375/09)

2009/C 297/25

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: Prezes Urzędu Ochrony Konkurencji i Konsumentów

Respondent: Tele2 Polska sp. z o.o., now Netia S.A.

Questions referred

1.Is 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 to be interpreted as meaning that a national competition authority cannot take a decision stating that a practice does not restrict competition within the meaning of Article 82 EC in a case in which it has found, after conducting proceedings, that the undertaking did not breach the prohibition of abuse of a dominant position under that Treaty provision?

2.If the answer to the first question is in the affirmative: in a situation in which, under national competition law — if it should be established that the practice of an undertaking does not infringe the prohibition in Article 82 EC — a national competition authority may bring cartel proceedings to an end only by taking a decision which states that the practice does not restrict competition, is the third sentence 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 of the Treaty to be interpreted as constituting a direct legal basis for that authority to ‘decide that there are no grounds for action on [its] part’?

(<span class="super">1</span>) OJ 2003 L 1, p. 1.