Training of national judges in EU competition law and judicial cooperation between national competition law judges

The objective of this call for proposals is to co-finance projects aiming to train national judges in the context of enforcing European competition rules. This includes public and private enforcement of both the Antitrust rules and the State aid rules. The final aim is to ensure a coherent and consistent application of EU competition law by national courts.

These objectives can best be achieved through projects which specifically focus on the role of national judges in the application of EU competition law, their particular needs and work environments and pre-existing training and knowledge.

Themes and priorities (scope)

Projects must meet the above-mentioned objective and clearly demonstrate their EU added-value, i.e. that Union intervention in the form of funding through this grant programme can bring additional value compared to the action of Member States alone.

The target audience must consist of national judges dealing with competition cases, as defined in the section Objectives. This also includes prosecutors, apprentice national judges, and the staff of national courts.

The target audience as defined above is hereafter referred to as 'national judges'. Training projects not addressing national judges from an eligible country are not within the scope of the present call.

Projects should address at least one of the thematic priorities listed below but may address more than one.

Priority 1: Training on the application of Articles 101 and 102 TFEU and relevant secondary law. Applicants are invited to choose at least 3 out of the 6 topics listed below:

1. Scope of application of Article 101 (concept of undertaking, concept of agreement and concerted practice);
2. Restrictions by object and effect under Article 101;
3. Concept of dominance under Article 102;
4. Exclusionary and exploitative abuses under Article 102;
5. Concept of effect on trade between Member States;
6. The Block exemptions for vertical agreements^[1], production and specialisation agreements^[2], R&D agreements^[3] and technology transfer agreements^[4], including related guidelines.

Priority 2: Training activities focusing on national laws implementing Directive 2014/104 on antitrust damages actions^[5]. Applicants are invited to choose at least 2 out of the 5 topics listed below:

1. The disclosure of evidence in proceedings relating to an action for damages;
2. The passing on of overcharges and the interplay between damages actions relating to the same infringement but instituted by injured parties on different levels of the supply chain;
3. The quantification of antitrust harm in the framework of damages actions, including the application of the methods for quantification identified in the Commission's Practical Guide on the Quantification of Antitrust Harm^[6];
4. The interaction between the public and the private enforcement of competition law, focussing on both the positive interaction (how can claimants benefit from enforcement action by competition authorities) and measures to avoid negative interactions (for example limits on the disclosure of evidence and on the joint and several liability);
5. Case management and best practices in dealing with questions of jurisdiction and applicable law and in dealing with the situation of parallel or subsequent proceedings in different Member States.

Priority 3: Training activities focusing on underlying economic principles of competition law.

Applicants are invited to choose at least one topic:

1. Economic principles and economic reasoning (e.g., supply and demand, cost analysis, substitution and strategic interactions in different competition environments, market definitions, horizontal and vertically related markets, market power);
2. Assessment of economic evidence/studies in litigation and its procedural handling, including a review of currently used estimation methods (qualitative and quantitative), underlining advantages and limits of them, as well as the importance of consistency, robustness and duplicability of results.

Priority 4: Training activities focusing on the application of competition law in regulated industries (such as the energy, telecommunications or pharmaceutical sector). Applicants are invited to choose at least one topic:

1. Scope of application of competition law in regulated sectors;
2. Concepts of an undertaking and of an association of undertakings applied to public bodies (i.e. public bodies as undertakings vs public bodies as regulatory bodies).

Priority 5: Training activities focusing on how to apply the traditional competition law concepts in Articles 101 and 102 to digital markets. Applicants are invited to choose at least 1 out of the 3 topics listed below:

1. Market definition in digital markets (including two or multisided markets, zero price markets);
2. Assessment of market power and dominance in digital markets (including direct and indirect network effects, dynamic efficiencies, importance of access to data, single- and multi-homing);
3. Recent case law and decisional practice regarding digital markets and more generally potential theories of harm including new forms of collusion (use of algorithms), refusal to provide access to infrastructure (big data).

Priority 6: Training on State Aid, in light of State Aid Modernisation and the enforcement role of national courts. Applicants are invited to choose at least 2 out of the 4 topics listed below:

1. Notion of aid^[7] (including the method of financing of the aid through parafiscal levies and the Services of General Economic interest^[8]);
2. The regulations adopted in the framework of the State aid modernization exercise, i.e. mainly the De minimis Regulation^[9] and the General Block Exemption Regulation^[10];
3. The role of national courts in implementing State aid law (based on the notice on the enforcement of State aid law by national courts^[11] and on the Recovery notice^[12]). Particular attention should be paid to the use of cooperation tools^[13] available to national courts;
4. The request for provisional measures brought before the courts and its interaction with the EU Court proceedings.

Activities that can be funded (scope)

Projects must include tailored training activities on EU competition law such as:

• conferences;
• interactive, practice-oriented seminars and workshops;
• multilateral exchanges between national judges;
• joint study visits to EU courts;
• creation of training materials and tools for face-to-face training, blended learning or e-learning such as handbooks, manuals, case-law databases, train-the-trainer events, networking platforms, videos, podcasts, etc. in combination with organisation of training activities.

Trainings should be hands-on oriented, include case studies, refer to the relevant case law of the European Court of Justice and include an analysis of relevant EU jurisprudence.

The environment in which participative training for national judges takes place must be made sufficiently secure to enable participants to freely exchange views and experiences and to learn from one another, without external monitoring or interference. Projects are therefore at best exclusively addressed to national judges.

Expected impact

Projects funded under the present call should contribute to the following impacts:

• Improved coherent and consistent application of EU competition laws by national courts in the member states, including State Aid rules.
• Strengthened cooperation and networking possibilities among member states judges in relation to commonly applicable EU competition laws.
• Creation of a common understanding and a level playing field in the application of EU competition rules and relevant economic scrutiny in State Aid, cartel- and antitrust cases.
• Enabling national judges to strive for a coherent jurisprudence when confronted with developments at the interface between competition law and new legal or economic developments.

[1] Commission Regulation 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices.

[2]Commission Regulation No 1218/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty to categories of specialisation agreements.

[3]Commission Regulation No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the functioning of the European Union to categories of research and development agreements.

[4]Commission Regulation (EU) No 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements.

[5]European Parliament and Council Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of competition law provisions of the Members States and of the European Union, OJ L 349, pp. 1-19 available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.349.01.0001.01.ENG.

[6]http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_guide_en.pdf.

[7]Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union; OJ C 262, 19.7.2016, p. 1–50.

[8]The legal framework on the Services of General Economic Interest includes the following instruments: Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest, OJ C8, 11.01.2012, p. 4-14; Commission Decision of 20 December on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, OJ L7, 11.01.2012, p. 3-10; Communication from the Commission, European Union framework for State aid in the form of public service compensation, OJ C8, 11.01.2012, p. 15-22; Commission Regulation on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest, OJ L 114 of 26.4.2012, p. 8. Commission Regulation (EU) 2018/1923 of 7 December 2018 amending Regulation (EU) No 360/2012 as regards its period of application Official Journal L 313 of 10.12.2018, p.2-3; Commission Regulation (EU) 2020/1474 of 13 October 2020 amending Regulation (EU) No 360/2012 as regards the prolongation of its period of application and a time-bound derogation for undertakings in difficulty to take into account the impact of the COVID-19 pandemic, Official Journal L 337 of 14.10.2020, p. 1–2.

[9]Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid, OJ L 352, 24.12.2013, p. 1-8.

[10]Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty , OJ L 187, 26.6.2014, p. 1–78;

Commission Regulation (EU) 2017/1084 of 14 June 2017 amending Regulation (EU) No 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) No 702/2014 as regards the calculation of eligible costs, OJ L 156, 20.6.2017, p. 1–18 ; Commission Regulation (EU) 2020/972 of 2 July 2020 amending Regulation (EU) No 1407/2013 as regards its prolongation and amending Regulation (EU) No 651/2014 as regards its prolongation and relevant adjustments - Official Journal L 215, 7.7.2020, p. 3–6; Commission Regulation (EU) 2021/1237 of 23 July 2021 amending Regulation (EU) No 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty, OJ L 270, 29.7.2021, p. 39–75.

[11]Commission notice on the enforcement of State aid rules by national courts, OJ C 305, 30.7.2021, p. 1–28.

[12]Commission Notice on the recovery of unlawful and incompatible State aid, OJ C 247, 23.7.2019, p. 1–23.

[13]See in particular Article 29 of the Procedural Regulation 2015/1589 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, OJ L 248, 24.9.2015, p. 9-29.