Unionsrecht und Unionsgerichtshof in der Rechtsprechung des Kartellsenats des Bundesgerichtshofs

Abstract

European Union law and Court of Justice in the jurisprudence of the Bundesgerichtshof's Cartel Senate

Competition law in an EU member state today is largely the application of EU competition law or at least the application of national law shaped and influenced by Union law. Using the example of the Bundesgerichtshof’s Cartel Senate, this article examines what this means for tasks and self-perception of a supreme court of an EU member state. In particular, it attempts to determine how, in this context, the duty to refer cases to the EUCJ can be handled in such a way that the EUCJ and the national supreme court can fulfil their respective tasks in the best possible way and that Union law can be interpreted and developed in dialogue while fully respecting the prerogative of the EUCJ.

The demand for as many EUCJ decisions on as many legal questions as possible is understandable, but just as misguided as a practice that seeks to avoid referral to the EUCJ wherever this seems somehow possible. The EUCJ does not have a “monopoly of interpretation”, but the right to decide definitively in the case of different possible and plausible interpretations of Union law. In doing so, it determines itself – typically by reformulating the questions referred – at which level of abstraction it formulates sub-norms of EU law. Interpretation and application of Union law requires, as the EUCJ also says, a dialogue between the Court of Justice and the national courts. It must be taken into account that Union law and national law often intertwine and that the national court is not only responsible for the application of Union law – if applicable as interpreted by the EUCJ – but also for its integration into the national legal framework. This task of integration is particularly demanding when national law cannot be interpreted in conformity with Union law, or not in its entirety.

The court must therefore not allow the parties to dictate the questions for reference, as a party is regularly guided in their formulation by the goal of winning the case. The details of the facts are often decisive. The EUCJ can only take them into account when interpreting Union law if they are also communicated to it in the reference for a preliminary ruling. If the content of a provision of Union law requires interpretation, the facts to be communicated in the reference for a preliminary ruling must therefore also be examined in detail. The tasks of interpretation and application of EU law are interwoven and cannot be exactly separated from each other. Therefore, the responsibilities for the interpretation and application of the law are also interwoven and the courts involved are dependent on cooperation and dialogue – and all the more so the more extensive and significant the influence of Union law on national law is. Real problems can actually only arise where the EUCJ’s competence to interpret Union law conclusively is not respected or the competence of national courts to rule conclusively on national law is lost sight of. That cooperation may fail in individual cases is unavoidable.