The Role of the European Commission as an Intervener in the Private Enforcement of Competition Law

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This is the first article that we know of which addresses in any depth the power of the European Commission to act as an intervenor in private actions by submitting amicus curiae observations to courts of the Member States pursuant to Article 15(3) of Regulation (EC) No 1/2003. The first part of the article analyses the legal basis, the scope and the details of the procedure, followed by a succinct overview of the most significant competition law cases where the European Commission has made observations. The second part focuses on the extension of the scope of the amicus curiae observations to State aid and arbitration proceedings and discusses the Commission’s amicus curiae briefs to the courts of the US.The power of the European Commission to submit amicus curiae observations in competition law cases pending before the courts of the Member States has assisted in clarifying basic principles of EU competition law, ensuring the coherent application of Articles 101 and 102 TFEU and providing legal certainty with respect to competition matters. Despite the non-binding nature of the observations, the national courts have often adhered to the opinions expressed by the Commission and adopted its position in their final decisions. The extension of the power to intervene to State aid and arbitration proceedings has further increased the scope for the Commission to act. The European Commission has made significant use of this instrument over the past years and it will be interesting to see how this practice will further develop.