2003R0001 — EN — 01.05.2004 — 001.001 — 1
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►B COUNCILREGULATION(EC)No1/2003
of16December 2002
ontheimplementationoftherulesoncompetitionlaiddowninArticles81and82oftheTreaty
(TextwithEEArelevance)
(OJ L 1, 4.1.2003, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 411/2004 of 26 February 2004 L 68 1 6.3.2004
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COUNCILREGULATION(EC)No1/2003
of16December 2002
on the implementation of the rules on competition laid down in
Articles 81and82oftheTreaty
(TextwithEEArelevance)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 83 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the European Economic and Social
Committee (3),
Whereas:
(1)In order to establish a system which ensures that competition in
the common market is not distorted, Articles 81 and 82 of the
Treaty must be applied effectively and uniformly in the Commu-
nity. Council Regulation No 17 of 6 February 1962, FirstRegulation implementing Articles 81 and 82 (*) of the Treaty (
4),
has allowed a Community competition policy to develop that hashelped to disseminate a competition culture within the Commu-nity. In the light of experience, however, that Regulation should
now be replaced by legislation designed to meet the challenges
of an integrated market and a future enlargement of the Commu-nity.
(2)In particular, there is a need to rethink the arrangements forapplying the exception from the prohibition on agreements,which restrict competition, laid down in Article 81(3) of the
Treaty. Under Article 83(2)(b) of the Treaty, account must be
taken in this regard of the need to ensure effective supervision,on the one hand, and to simplify administration to the greatestpossible extent, on the other.
(3)The centralised scheme set up by Regulation No 17 no longer
secures a balance between those two objectives. It hampers
application of the Community competition rules by the courtsand competition authorities of the Member States, and thesystem of notification it involves prevents the Commission fromconcentrating its resources on curbing the most serious infringe-ments. It also imposes considerable costs on undertakings.
(4)The present system should therefore be replaced by a directlyapplicable exception system in which the competition authoritiesand courts of the Member States have the power to apply notonly Article 81(1) and Article 82 of the Treaty, which havedirect applicability by virtue of the case-law of the Court ofJustice of the European Communities, but also Article 81(3) of
the Treaty.
(5)In order to ensure an effective enforcement of the Community
competition rules and at the same time the respect of funda-mental rights of defence, this Regulation should regulate theburden of proof under Articles 81 and 82 of the Treaty. It shouldbe for the party or the authority alleging an infringement of2003R0001 — EN — 01.05.2004 — 001.001 — 2
(1) OJ C 365 E, 19.12.2000, p. 284.
(2) OJ C 72 E, 21.3.2002, p. 305.
(3) OJ C 155, 29.5.2001, p. 73.
(*) The title of Regulation No 17 has been adjusted to take account of the
renumbering of the Articles of the EC Treaty, in accordance with Article
12 of the Treaty of Amsterdam; the original reference was to Articles 85
and 86 of the Treaty.
(4) OJ 13, 21.2.1962, p. 204/62. Regulation as last amended by Regulation (EC)
No 1216/1999 (OJ L 148, 15.6.1999, p. 5).
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Article 81(1) and Article 82 of the Treaty to prove the existence
thereof to the required legal standard. It should be for the under-taking or association of undertakings invoking the benefit of a
defence against a finding of an infringement to demonstrate to
the required legal standard that the conditions for applying suchdefence are satisfied. This Regulation affects neither nationalrules on the standard of proof nor obligations of competitionauthorities and courts of the Member States to ascertain the rele-
vant facts of a case, provided that such rules and obligations are
compatible withgeneral principles of Community law.
(6)In order to ensure that the Community competition rules areapplied effectively, the competition authorities of the MemberStates should be associated more closely with their application.
To this end, they should be empowered to apply Community
law.
(7)National courts have an essential part to play in applying theCommunity competition rules. When deciding disputes betweenprivate individuals, they protect the subjective rights under
Community law, for example by awarding damages to the
victims of infringements. The role of the national courts herecomplements that of the competition authorities of the MemberStates. They should therefore be allowed to apply Articles 81and 82 of the Treaty in full.
(8)In order to ensure the effective enforcement of the Communitycompetition rules and the proper functioning of the cooperationmechanisms contained in this Regulation, it is necessary tooblige the competition authorities and courts of the MemberStates to also apply Articles 81 and 82 of the Treaty where
they apply national competition law to agreements and practices
which may affect trade between Member States. In order tocreate a level playing field for agreements, decisions by associa-tions of undertakings and concerted practices within the internalmarket, it is also necessary to determine pursuant to Article83(2)(e) of the Treaty the relationship between national laws
and Community competition law. To that effect it is necessary
to provide that the application of national competition laws toagreements, decisions or concerted practices within the meaningof Article 81(1) of the Treaty may not lead to the prohibition ofsuchagreements, decisions and concerted practices if th ey are
not also prohibited under Community competition law. The
notions of agreements, decisions and concerted practices areautonomous concepts of Community competition law coveringthe coordination of behaviour of undertakings on the market asinterpreted by the Community Courts. Member States shouldnot under this Regulation be precluded from adopting and
applying on their territory stricter national competition laws
which prohibit or impose sanctions on unilateral conductengaged in by undertakings. These stricter national laws mayinclude provisions which prohibit or impose sanctions onabusive behaviour toward economically dependent undertakings.Furthermore, this Regulation does not apply to national laws
which impose criminal sanctions on natural persons except to
the extent that such sanctions are the means whereby competi-tion rules applying to undertakings are enforced.
(9)Articles 81 and 82 of the Treaty have as their objective theprotection of competition on the market. This Regulation, which
is adopted for the implementation of these Treaty provisions,
does not preclude Member States from implementing on theirterritory national legislation, which protects other legitimateinterests provided that such legislation is compatible withgeneral principles and other provisions of Community law. In
so far as suchnational legislation pursues predominantly an
objective different from that of protecting competition on themarket, the competition authorities and courts of the MemberStates may apply suchlegislation on th eir territory. Accordingly,Member States may under this Regulation implement on theirterritory national legislation that prohibits or imposes sanctions2003R0001 — EN — 01.05.2004 — 001.001 — 3
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on acts of unfair trading practice, be they unilateral or contrac-
tual. Suchlegislation pursues a specific objective, irrespective ofthe actual or presumed effects of such acts on competition on the
market. This is particularly the case of legislation which prohi-
bits undertakings from imposing on their trading partners,obtaining or attempting to obtain from them terms and condi-tions that are unjustified, disproportionate or withoutconsideration.
(10)Regulations suchas 19/65/EEC (1), (EEC) No 2821/71 (2), (EEC)
No 3976/87 (3), (EEC) No 1534/91 (4), or (EEC) No 479/92 (5)
empower the Commission to apply Article 81(3) of the Treatyby Regulation to certain categories of agreements, decisions by
associations of undertakings and concerted practices. In the areas
defined by such Regulations, the Commission has adopted andmay continue to adopt so called ‘block’ exemption Regulationsby which it declares Article 81(1) of the Treaty inapplicable tocategories of agreements, decisions and concerted practices.
Where agreements, decisions and concerted practices to which
such Regulations apply nonetheless have effects that are incom-patible with Article 81(3) of the Treaty, the Commission and thecompetition authorities of the Member States should have thepower to withdraw in a particular case the benefit of the blockexemption Regulation.
(11)For it to ensure that the provisions of the Treaty are applied, theCommission should be able to address decisions to undertakingsor associations of undertakings for the purpose of bringing to an
end infringements of Articles 81 and 82 of the Treaty. Provided
there is a legitimate interest in doing so, the Commission shouldalso be able to adopt decisions which find that an infringementhas been committed in the past even if it does not impose a fine.This Regulation should also make explicit provision for theCommission's power to adopt decisions ordering interim
measures, which has been acknowledged by the Court of Justice.2003R0001 — EN — 01.05.2004 — 001.001 — 4
(1) Council Regulation No 19/65/EEC of 2 March1965 on th e application of
Article 81(3) (The titles of the Regulations have been adjusted to take
account of the renumbering of the Articles of the EC Treaty, in accordance
with Article 12 of the Treaty of Amsterdam; the original reference was to
Article 85(3) of the Treaty) of the Treaty to certain categories of agreements
and concerted practices (OJ 36, 6.3.1965, p. 533). Regulation as last
amended by Regulation (EC) No 1215/1999 (OJ L 148, 15.6.1999, p. 1).
(2) Council Regulation (EEC) No 2821/71 of 20 December 1971 on the appli-
cation of Article 81(3) (The titles of the Regulations have been adjusted to
take account of the renumbering of the Articles of the EC Treaty, in accor-
dance with Article 12 of the Treaty of Amsterdam; the original reference
was to Article 85(3) of the Treaty) of the Treaty to categories of agree-
ments, decisions and concerted practices (OJ L 285, 29.12.1971, p. 46).
Regulation as last amended by the Act of Accession of 1994.
(3) Council Regulation (EEC) No 3976/87 of 14 December 1987 on the appli-
cation of Article 81(3) (The titles of the Regulations have been adjusted to
take account of the renumbering of the Articles of the EC Treaty, in accor-
dance with Article 12 of the Treaty of Amsterdam; the original reference
was to Article 85(3) of the Treaty) of the Treaty to certain categories of
agreements and concerted practices in the air transport sector (OJ L 374,
31.12.1987, p. 9). Regulation as last amended by the Act of Accession of
1994.
(4) Council Regulation (EEC) No 1534/91 of 31 May 1991 on the application
of Article 81(3) (The titles of the Regulations have been adjusted to take
account of the renumbering of the Articles of the EC Treaty, in accordance
with Article 12 of the Treaty of Amsterdam; the original reference was to
Article 85(3) of the Treaty) of the Treaty to certain categories of agree-
ments, decisions and concerted practices in the insurance sector (OJ L 143,
7.6.1991, p. 1).
(5) Council Regulation (EEC) No 479/92 of 25 February 1992 on the applica-
tion of Article 81(3) (The titles of the Regulations have been adjusted to
take account of the renumbering of the Articles of the EC Treaty, in accor-dance with Article 12 of the Treaty of Amsterdam; the original reference
was to Article 85(3) of the Treaty) of the Treaty to certain categories of
agreements, decisions and concerted practices between liner shipping
companies (Consortia) (OJ L 55, 29.2.1992, p. 3). Regulation amended by
the Act of Accession of 1994.
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(12)This Regulation should make explicit provision for the Commis-
sion's power to impose any remedy, whether behavioural or
structural, which is necessary to bring the infringement effec-tively to an end, having regard to the principle ofproportionality. Structural remedies should only be imposedeither where there is no equally effective behavioural remedy orwhere any equally effective behavioural remedy would be more
burdensome for the undertaking concerned than the structural
remedy. Changes to the structure of an undertaking as it existedbefore the infringement was committed would only be propor-tionate where there is a substantial risk of a lasting or repeatedinfringement that derives from the very structure of the under-
taking.
(13)Where, in the course of proceedings which might lead to an
agreement or practice being prohibited, undertakings offer theCommission commitments suchas to meet its concerns, th eCommission should be able to adopt decisions which make thosecommitments binding on the undertakings concerned. Commit-ment decisions should find that there are no longer grounds for
action by the Commission without concluding whether or not
there has been or still is an infringement. Commitment decisionsare without prejudice to the powers of competition authoritiesand courts of the Member States to make such a finding anddecide upon the case. Commitment decisions are not appropriate
in cases where the Commission intends to impose a fine.
(14)In exceptional cases where the public interest of the Community
so requires, it may also be expedient for the Commission toadopt a decision of a declaratory nature finding that the prohibi-tion in Article 81 or Article 82 of the Treaty does not apply,witha view to clarifying th e law and ensuring its consistent
application throughout the Community, in particular with regard
to new types of agreements or practices that have not beensettled in the existing case-law and administrative practice.
(15)The Commission and the competition authorities of the MemberStates should form together a network of public authoritiesapplying the Community competition rules in close cooperation.For that purpose it is necessary to set up arrangements for infor-
mation and consultation. Further modalities for the cooperation
within the network will be laid down and revised by theCommission, in close cooperation withth e Member States.
(16)Notwithstanding any national provision to the contrary, theexchange of information and the use of such information inevidence should be allowed between the members of the network
even where the information is confidential. This information
may be used for the application of Articles 81 and 82 of theTreaty as well as for the parallel application of national competi-tion law, provided that the latter application relates to the samecase and does not lead to a different outcome. When the infor-
mation exchanged is used by the receiving authority to impose
sanctions on undertakings, there should be no other limit to theuse of the information than the obligation to use it for thepurpose for which it was collected given the fact that the sanc-tions imposed on undertakings are of the same type in allsystems. The rights of defence enjoyed by undertakings in the
various systems can be considered as sufficiently equivalent.
However, as regards natural persons, they may be subject tosubstantially different types of sanctions across the varioussystems. Where that is the case, it is necessary to ensure thatinformation can only be used if it has been collected in a way
which respects the same level of protection of the rights of
defence of natural persons as provided for under the nationalrules of the receiving authority.
(17)If the competition rules are to be applied consistently and, at thesame time, the network is to be managed in the best possibleway, it is essential to retain the rule that the competition autho-rities of the Member States are automatically relieved of their2003R0001 — EN — 01.05.2004 — 001.001 — 5
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competence if the Commission initiates its own proceedings.
Where a competition authority of a Member State is alreadyacting on a case and the Commission intends to initiate proceed-
ings, it should endeavour to do so as soon as possible. Before
initiating proceedings, the Commission should consult thenational authority concerned.
(18)To ensure that cases are dealt with by the most appropriateauthorities within the network, a general provision should belaid down allowing a competition authority to suspend or close
a case on the ground that another authority is dealing with it or
has already dealt with it, the objective being that each caseshould be handled by a single authority. This provision shouldnot prevent the Commission from rejecting a complaint for lackof Community interest, as the case-law of the Court of Justicehas acknowledged it may do, even if no other competition
authority has indicated its intention of dealing with the case.
(19)The Advisory Committee on Restrictive Practices and Dominant
Positions set up by Regulation No 17 has functioned in a verysatisfactory manner. It will fit well into the new system ofdecentralised application. It is necessary, therefore, to buildupon the rules laid down by Regulation No 17, while improvingthe effectiveness of the organisational arrangements. To this end,
it would be expedient to allow opinions to be delivered by
written procedure. The Advisory Committee should also be ableto act as a forum for discussing cases that are being handled bythe competition authorities of the Member States, so as to helpsafeguard the consistent application of the Community competi-
tion rules.
(20)The Advisory Committee should be composed of representativesof the competition authorities of the Member States. For meet-
ings in which general issues are being discussed, MemberStates should be able to appoint an additional representative.This is without prejudice to members of the Committee beingassisted by other experts from the Member States.
(21)Consistency in the application of the competition rules also
requires that arrangements be established for cooperation
between the courts of the Member States and the Commission.This is relevant for all courts of the Member States that applyArticles 81 and 82 of the Treaty, whether applying these rulesin lawsuits between private parties, acting as public enforcers oras review courts. In particular, national courts should be able to
ask the Commission for information or for its opinion on points
concerning the application of Community competition law. TheCommission and the competition authorities of the MemberStates should also be able to submit written or oral observationsto courts called upon to apply Article 81 or Article 82 of theTreaty. These observations should be submitted within the
framework of national procedural rules and practices including
those safeguarding the rights of the parties. Steps should there-fore be taken to ensure that the Commission and thecompetition authorities of the Member States are kept suffi-ciently well informed of proceedings before national courts.
(22)In order to ensure compliance withth e principles of legal
certainty and the uniform application of the Community compe-
tition rules in a system of parallel powers, conflicting decisionsmust be avoided. It is therefore necessary to clarify, in accor-dance with the case-law of the Court of Justice, the effects ofCommission decisions and proceedings on courts and competi-tion authorities of the Member States. Commitment decisions
adopted by the Commission do not affect the power of the courts
and the competition authorities of the Member States to applyArticles 81 and 82 of the Treaty.
(23)The Commission should be empowered throughout the Commu-nity to require suchinformation to be supplied as is necessary todetect any agreement, decision or concerted practice prohibitedby Article 81 of the Treaty or any abuse of a dominant position2003R0001 — EN — 01.05.2004 — 001.001 — 6
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prohibited by Article 82 of the Treaty. When complying with a
decision of the Commission, undertakings cannot be forced toadmit that they have committed an infringement, but they are in
any event obliged to answer factual questions and to provide
documents, even if this information may be used to establishagainst them or against another undertaking the existence of aninfringement.
(24)The Commission should also be empowered to undertake such
inspections as are necessary to detect any agreement, decision
or concerted practice prohibited by Article 81 of the Treaty orany abuse of a dominant position prohibited by Article 82 ofthe Treaty. The competition authorities of the Member Statesshould cooperate actively in the exercise of these powers.
(25)The detection of infringements of the competition rules is
growing ever more difficult, and, in order to protect competition
effectively, the Commission's powers of investigation need to besupplemented. The Commission should in particular be empow-ered to interview any persons who may be in possession ofuseful information and to record the statements made. In thecourse of an inspection, officials authorised by the Commission
should be empowered to affix seals for the period of time neces-
sary for the inspection. Seals should normally not be affixed formore than 72 hours. Officials authorised by the Commissionshould also be empowered to ask for any information relevantto the subject matter and purpose of the inspection.
(26)Experience has shown that there are cases where businessrecords are kept in the homes of directors or other peopleworking for an undertaking. In order to safeguard the effective-ness of inspections, therefore, officials and other personsauthorised by the Commission should be empowered to enterany premises where business records may be kept, including
private homes. However, the exercise of this latter power should
be subject to the authorisation of the judicial authority.
(27)Without prejudice to the case-law of the Court of Justice, it isuseful to set out the scope of the control that the national judicialauthority may carry out when it authorises, as foreseen bynational law including as a precautionary measure, assistance
from law enforcement authorities in order to overcome possible
opposition on the part of the undertaking or the execution of thedecision to carry out inspections in non-business premises. Itresults from the case-law that the national judicial authoritymay in particular ask the Commission for further information
which it needs to carry out its control and in the absence of
which it could refuse the authorisation. The case-law alsoconfirms the competence of the national courts to control theapplication of national rules governing the implementation ofcoercive measures.
(28)In order to help the competition authorities of the Member States
to apply Articles 81 and 82 of the Treaty effectively, it is expe-
dient to enable them to assist one another by carrying outinspections and other fact-finding measures.
(29)Compliance with Articles 81 and 82 of the Treaty and the fulfil-ment of the obligations imposed on undertakings andassociations of undertakings under this Regulation should be
enforceable by means of fines and periodic penalty payments.
To that end, appropriate levels of fine should also be laid downfor infringements of the procedural rules.
(30)In order to ensure effective recovery of fines imposed on asso-ciations of undertakings for infringements that they have
committed, it is necessary to lay down the conditions on which
the Commission may require payment of the fine from themembers of the association where the association is not solvent.In doing so, the Commission should have regard to the relativesize of the undertakings belonging to the association and inparticular to the situation of small and medium-sized enterprises.2003R0001 — EN — 01.05.2004 — 001.001 — 7
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Payment of the fine by one or several members of an association
is without prejudice to rules of national law that provide forrecovery of the amount paid from other members of the associa-
tion.
(31)The rules on periods of limitation for the imposition of fines and
periodic penalty payments were laid down in Council Regulation(EEC) No 2988/74 (
1), which also concerns penalties in the field
of transport. In a system of parallel powers, the acts, which mayinterrupt a limitation period, should include procedural steps
taken independently by the competition authority of a Member
State. To clarify the legal framework, Regulation (EEC) No2988/74 should therefore be amended to prevent it applying tomatters covered by this Regulation, and this Regulation shouldinclude provisions on periods of limitation.
(32)The undertakings concerned should be accorded the right to beheard by the Commission, third parties whose interests may be
affected by a decision should be given the opportunity of
submitting their observations beforehand, and the decisions takenshould be widely publicised. While ensuring the rights ofdefence of the undertakings concerned, in particular, the rightof access to the file, it is essential that business secrets be
protected. The confidentiality of information exchanged in the
network should likewise be safeguarded.
(33)Since all decisions taken by the Commission under this Regula-tion are subject to review by the Court of Justice in accordancewith the Treaty, the Court of Justice should, in accordance withArticle 229 thereof be given unlimited jurisdiction in respect ofdecisions by which the Commission imposes fines or periodic
penalty payments.
(34)The principles laid down in Articles 81 and 82 of the Treaty, as
they have been applied by Regulation No 17, have given acentral role to the Community bodies. This central role shouldbe retained, whilst associating the Member States more closelywith the application of the Community competition rules. In
accordance withth e principles of subsidiarity and proportionality
as set out in Article 5 of the Treaty, this Regulation does not gobeyond what is necessary in order to achieve its objective, whichis to allow the Community competition rules to be applied effec-tively.
(35)In order to attain a proper enforcement of Community competi-tion law, Member States should designate and empower
authorities to apply Articles 81 and 82 of the Treaty as public
enforcers. They should be able to designate administrative aswell as judicial authorities to carry out the various functionsconferred upon competition authorities in this Regulation. ThisRegulation recognises the wide variation which exists in the
public enforcement systems of Member States. The effects of
Article 11(6) of this Regulation should apply to all competitionauthorities. As an exception to this general rule, where a prose-cuting authority brings a case before a separate judicialauthority, Article 11(6) should apply to the prosecuting authoritysubject to the conditions in Article 35(4) of this Regulation.
Where these conditions are not fulfilled, the general rule should
apply. In any case, Article 11(6) should not apply to courtsinsofar as they are acting as review courts.2003R0001 — EN — 01.05.2004 — 001.001 — 8
(1) Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning
limitation periods in proceedings and the enforcement of sanctions under
the rules of the European Economic Community relating to transport and
competition (OJ L 319, 29.11.1974, p. 1).
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(36)As the case-law has made it clear that the competition rules
apply to transport, that sector should be made subject to the
procedural provisions of this Regulation. Council Regulation No141 of 26 November 1962 exempting transport from the applica-tion of Regulation No 17(
1) should therefore be repealed and
Regulations (EEC) No 1017/68 (2), (EEC) No 4056/86 (3) and
(EEC) No 3975/87 (4) should be amended in order to delete the
specific procedural provisions they contain.
(37)This Regulation respects the fundamental rights and observes the
principles recognised in particular by the Charter of Fundamental
Rights of the European Union. Accordingly, this Regulation
should be interpreted and applied with respect to those rightsand principles.
(38)Legal certainty for undertakings operating under the Communitycompetition rules contributes to the promotion of innovation andinvestment. Where cases give rise to genuine uncertaintybecause they present novel or unresolved questions for the appli-cation of these rules, individual undertakings may wish to seek
informal guidance from the Commission. This Regulation is
without prejudice to the ability of the Commission to issue suchinformal guidance,
HAS ADOPTED THIS REGULATION:
CHAPTER I
PRINCIPLES
Article 1
ApplicationofArticles 81and82oftheTreaty
1. Agreements, decisions and concerted practices caught by Article
81(1) of the Treaty which do not satisfy the conditions of Article81(3) of the Treaty shall be prohibited, no prior decision to that effect
being required.
2. Agreements, decisions and concerted practices caught by Article
81(1) of the Treaty which satisfy the conditions of Article 81(3) ofthe Treaty shall not be prohibited, no prior decision to that effect beingrequired.
3. The abuse of a dominant position referred to in Article 82 of the
Treaty shall be prohibited, no prior decision to that effect beingrequired.
Article 2
Burdenofproof
In any national or Community proceedings for the application of Arti-
cles 81 and 82 of the Treaty, the burden of proving an infringement of2003R0001 — EN — 01.05.2004 — 001.001 — 9
(1) OJ 124, 28.11.1962, p. 2751/62; Regulation as last amended by Regulation
No 1002/67/EEC (OJ 306, 16.12.1967, p. 1).
(2) Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of
competition to transport by rail, road and inland waterway (OJ L 175,
23.7.1968, p. 1). Regulation as last amended by the Act of Accession of
1994.
(3) Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down
detailed rules for the application of Articles 81 and 82 (The title of the
Regulation has been adjusted to take account of the renumbering of the Arti-
cles of the EC Treaty, in accordance with Article 12 of the Treaty of
Amsterdam; the original reference was to Articles 85 and 86 of the Treaty)
of the Treaty to maritime transport (OJ L 378, 31.12.1986, p. 4). Regulationas last amended by the Act of Accession of 1994.
(
4) Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down
the procedure for the application of the rules on competition to undertakings
in the air transport sector (OJ L 374, 31.12.1987, p. 1). Regulation as last
amended by Regulation (EEC) No 2410/92 (OJ L 240, 24.8.1992, p. 18).
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Article 81(1) or of Article 82 of the Treaty shall rest on the party or the
authority alleging the infringement. The undertaking or association ofundertakings claiming the benefit of Article 81(3) of the Treaty shall
bear the burden of proving that the conditions of that paragraph are
fulfilled.
Article 3
RelationshipbetweenArticles81and82oftheTreatyandnational
competitionlaws
1. Where the competition authorities of the Member States or
national courts apply national competition law to agreements, decisionsby associations of undertakings or concerted practices within themeaning of Article 81(1) of the Treaty which may affect trade betweenMember States within the meaning of that provision, they shall also
apply Article 81 of the Treaty to such agreements, decisions or
concerted practices. Where the competition authorities of the MemberStates or national courts apply national competition law to any abuseprohibited by Article 82 of the Treaty, they shall also apply Article 82of the Treaty.
2. The application of national competition law may not lead to the
prohibition of agreements, decisions by associations of undertakings
or concerted practices which may affect trade between Member States
but which do not restrict competition within the meaning of Article81(1) of the Treaty, or which fulfil the conditions of Article 81(3) ofthe Treaty or which are covered by a Regulation for the application ofArticle 81(3) of the Treaty. Member States shall not under this Regula-tion be precluded from adopting and applying on their territory stricter
national laws which prohibit or sanction unilateral conduct engaged in
by undertakings.
3. Without prejudice to general principles and other provisions of
Community law, paragraphs 1 and 2 do not apply when the competi-tion authorities and the courts of the Member States apply nationalmerger control laws nor do they preclude the application of provisionsof national law that predominantly pursue an objective different from
that pursued by Articles 81 and 82 of the Treaty.
CHAPTER II
POWERS
Article 4
PowersoftheCommission
For the purpose of applying Articles 81 and 82 of the Treaty, the
Commission shall have the powers provided for by this Regulation.
Article 5
PowersofthecompetitionauthoritiesoftheMemberStates
The competition authorities of the Member States shall have the power
to apply Articles 81 and 82 of the Treaty in individual cases. For thispurpose, acting on their own initiative or on a complaint, they may take
the following decisions:
— requiring that an infringement be brought to an end,
— ordering interim measures,
— accepting commitments,
— imposing fines, periodic penalty payments or any other penalty
provided for in their national law.
Where on the basis of the information in their possession the conditions
for prohibition are not met they may likewise decide that there are nogrounds for action on their part.2003R0001 — EN — 01.05.2004 — 001.001 — 10
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Article 6
Powersofthenationalcourts
National courts shall have the power to apply Articles 81 and 82 of the
Treaty.
CHAPTER III
COMMISSIONDECISIONS
Article 7
Findingandterminationofinfringement
1. Where the Commission, acting on a complaint or on its own
initiative, finds that there is an infringement of Article 81 or of Article
82 of the Treaty, it may by decision require the undertakings and asso-ciations of undertakings concerned to bring suchinfringement to anend. For this purpose, it may impose on them any behavioural or struc-tural remedies which are proportionate to the infringement committedand necessary to bring the infringement effectively to an end. Struc-
tural remedies can only be imposed either where there is no equally
effective behavioural remedy or where any equally effective beha-vioural remedy would be more burdensome for the undertakingconcerned than the structural remedy. If the Commission has a legiti-mate interest in doing so, it may also find that an infringement has
been committed in the past.
2. Those entitled to lodge a complaint for the purposes of paragraph
1 are natural or legal persons who can show a legitimate interest andMember States.
Article 8
Interimmeasures
1. In cases of urgency due to the risk of serious and irreparable
damage to competition, the Commission, acting on its own initiativemay by decision, on the basis of a prima facie finding of infringement,
order interim measures.
2. A decision under paragraph1 sh all apply for a specified period of
time and may be renewed in so far this is necessary and appropriate.
Article 9
Commitments
1. Where the Commission intends to adopt a decision requiring that
an infringement be brought to an end and the undertakings concernedoffer commitments to meet the concerns expressed to them by theCommission in its preliminary assessment, the Commission may bydecision make those commitments binding on the undertakings. Such
a decision may be adopted for a specified period and shall conclude
that there are no longer grounds for action by the Commission.
2. The Commission may, upon request or on its own initiative,
reopen the proceedings:
(a) where there has been a material change in any of the facts on
which the decision was based;
(b) where the undertakings concerned act contrary to their commit-
ments; or
(c) where the decision was based on incomplete, incorrect or
misleading information provided by the parties.
Article 10
Findingofinapplicability
Where the Community public interest relating to the application of
Articles 81 and 82 of the Treaty so requires, the Commission, acting2003R0001 — EN — 01.05.2004 — 001.001 — 11
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on its own initiative, may by decision find that Article 81 of the Treaty
is not applicable to an agreement, a decision by an association ofundertakings or a concerted practice, either because the conditions of
Article 81(1) of the Treaty are not fulfilled, or because the conditions
of Article 81(3) of the Treaty are satisfied.
The Commission may likewise make such a finding with reference to
Article 82 of the Treaty.
CHAPTER IV
COOPERATION
Article 11
CooperationbetweentheCommissionandthecompetitionauthori-
tiesoftheMemberStates
1. The Commission and the competition authorities of the Member
States shall apply the Community competition rules in close coopera-tion.
2. The Commission shall transmit to the competition authorities of
the Member States copies of the most important documents it has
collected witha view to applying Articles 7, 8, 9, 10 and Article29(1). At the request of the competition authority of a Member State,the Commission shall provide it with a copy of other existing docu-ments necessary for the assessment of the case.
3. The competition authorities of the Member States shall, when
acting under Article 81 or Article 82 of the Treaty, inform theCommission in writing before or without delay after commencing thefirst formal investigative measure. This information may also be madeavailable to the competition authorities of the other Member States.
4. No later than 30 days before the adoption of a decision requiring
that an infringement be brought to an end, accepting commitments orwithdrawing the benefit of a block exemption Regulation, the competi-tion authorities of the Member States shall inform the Commission. Tothat effect, they shall provide the Commission with a summary of the
case, the envisaged decision or, in the absence thereof, any other docu-
ment indicating the proposed course of action. This information mayalso be made available to the competition authorities of the otherMember States. At the request of the Commission, the acting competi-tion authority shall make available to the Commission other documents
it holds which are necessary for the assessment of the case. The infor-
mation supplied to the Commission may be made available to thecompetition authorities of the other Member States. National competi-tion authorities may also exchange between themselves informationnecessary for the assessment of a case that they are dealing with underArticle 81 or Article 82 of the Treaty.
5. The competition authorities of the Member States may consult the
Commission on any case involving the application of Community law.
6. The initiation by the Commission of proceedings for the adoption
of a decision under Chapter III shall relieve the competition authorities
of the Member States of their competence to apply Articles 81 and 82of the Treaty. If a competition authority of a Member State is alreadyacting on a case, the Commission shall only initiate proceedings afterconsulting with that national competition authority.
Article 12
Exchangeofinformation
1. For the purpose of applying Articles 81 and 82 of the Treaty the
Commission and the competition authorities of the Member States shall
have the power to provide one another with and use in evidence anymatter of fact or of law, including confidential information.
2. Information exchanged shall only be used in evidence for the
purpose of applying Article 81 or Article 82 of the Treaty and in2003R0001 — EN — 01.05.2004 — 001.001 — 12
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respect of the subject-matter for which it was collected by the transmit-
ting authority. However, where national competition law is applied inthe same case and in parallel to Community competition law and does
not lead to a different outcome, information exchanged under this
Article may also be used for the application of national competitionlaw.
3. Information exchanged pursuant to paragraph 1 can only be used
in evidence to impose sanctions on natural persons where:
— the law of the transmitting authority foresees sanctions of a similar
kind in relation to an infringement of Article 81 or Article 82 of theTreaty or, in the absence thereof,
— the information has been collected in a way which respects the
same level of protection of the rights of defence of natural persons
as provided for under the national rules of the receiving authority.
However, in this case, the information exchanged cannot be used bythe receiving authority to impose custodial sanctions.
Article 13
Suspensionorterminationofproceedings
1. Where competition authorities of two or more Member States
have received a complaint or are acting on their own initiative under
Article 81 or Article 82 of the Treaty against the same agreement, deci-
sion of an association or practice, the fact that one authority is dealingwith the case shall be sufficient grounds for the others to suspend theproceedings before them or to reject the complaint. The Commissionmay likewise reject a complaint on the ground that a competition
authority of a Member State is dealing with the case.
2. Where a competition authority of a Member State or the Commis-
sion has received a complaint against an agreement, decision of anassociation or practice which has already been dealt with by anothercompetition authority, it may reject it.
Article 14
AdvisoryCommittee
1. The Commission shall consult an Advisory Committee on
Restrictive Practices and Dominant Positions prior to the taking ofany decision under Articles 7, 8, 9, 10, 23, Article 24(2) and Article29(1).
2. For the discussion of individual cases, the Advisory Committee
shall be composed of representatives of the competition authorities of
the Member States. For meetings in which issues other than individualcases are being discussed, an additional Member State representativecompetent in competition matters may be appointed. Representativesmay, if unable to attend, be replaced by other representatives.
3. The consultation may take place at a meeting convened and
chaired by the Commission, held not earlier than 14 days after dispatch
of the notice convening it, together with a summary of the case, anindication of the most important documents and a preliminary draftdecision. In respect of decisions pursuant to Article 8, the meetingmay be held seven days after the dispatch of the operative part of adraft decision. Where the Commission dispatches a notice convening
the meeting which gives a shorter period of notice than those specified
above, the meeting may take place on the proposed date in the absenceof an objection by any Member State. The Advisory Committee shalldeliver a written opinion on the Commission's preliminary draft deci-sion. It may deliver an opinion even if some members are absent and
are not represented. At the request of one or several members, the posi-
tions stated in the opinion shall be reasoned.
4. Consultation may also take place by written procedure. However,
if any Member State so requests, the Commission shall convene ameeting. In case of written procedure, the Commission shall determinea time-limit of not less than 14 days within which the Member States2003R0001 — EN — 01.05.2004 — 001.001 — 13
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are to put forward their observations for circulation to all other
Member States. In case of decisions to be taken pursuant to Article 8,the time-limit of 14 days is replaced by seven days. Where the
Commission determines a time-limit for the written procedure which
is shorter than those specified above, the proposed time-limit shall beapplicable in the absence of an objection by any Member State.
5. The Commission shall take the utmost account of the opinion
delivered by the Advisory Committee. It shall inform the Committee
of the manner in which its opinion has been taken into account.
6. Where the Advisory Committee delivers a written opinion, this
opinion shall be appended to the draft decision. If the AdvisoryCommittee recommends publication of the opinion, the Commissionshall carry out such publication taking into account the legitimateinterest of undertakings in the protection of their business secrets.
7. At the request of a competition authority of a Member State, the
Commission shall include on the agenda of the Advisory Committee
cases that are being dealt with by a competition authority of a MemberState under Article 81 or Article 82 of the Treaty. The Commissionmay also do so on its own initiative. In either case, the Commissionshall inform the competition authority concerned.
A request may in particular be made by a competition authority of a
Member State in respect of a case where the Commission intends toinitiate proceedings withth e effect of Article 11(6).
The Advisory Committee shall not issue opinions on cases dealt with
by competition authorities of the Member States. The AdvisoryCommittee may also discuss general issues of Community competition
law.
Article 15
Cooperationwithnationalcourts
1. In proceedings for the application of Article 81 or Article 82 of
the Treaty, courts of the Member States may ask the Commission totransmit to them information in its possession or its opinion on ques-tions concerning the application of the Community competition rules.
2. Member States shall forward to the Commission a copy of any
written judgment of national courts deciding on the application of
Article 81 or Article 82 of the Treaty. Such copy shall be forwardedwithout delay after the full written judgment is notified to the parties.
3. Competition authorities of the Member States, acting on their
own initiative, may submit written observations to the national courtsof their Member State on issues relating to the application of Article
81 or Article 82 of the Treaty. With the permission of the court in
question, they may also submit oral observations to the national courtsof their Member State. Where the coherent application of Article 81 orArticle 82 of the Treaty so requires, the Commission, acting on its owninitiative, may submit written observations to courts of the Member
States. With the permission of the court in question, it may also make
oral observations.
For the purpose of the preparation of their observations only, the
competition authorities of the Member States and the Commissionmay request the relevant court of the Member State to transmit orensure the transmission to them of any documents necessary for the
assessment of the case.
4. This Article is without prejudice to wider powers to make obser-
vations before courts conferred on competition authorities of theMember States under the law of their Member State.
Article 16
UniformapplicationofCommunitycompetitionlaw
1. When national courts rule on agreements, decisions or practices
under Article 81 or Article 82 of the Treaty which are already the2003R0001 — EN — 01.05.2004 — 001.001 — 14
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subject of a Commission decision, they cannot take decisions running
counter to the decision adopted by the Commission. They must alsoavoid giving decisions which would conflict with a decision contem-
plated by the Commission in proceedings it has initiated. To that
effect, the national court may assess whether it is necessary to stay itsproceedings. This obligation is without prejudice to the rights and obli-gations under Article 234 of the Treaty.
2. When competition authorities of the Member States rule on agree-
ments, decisions or practices under Article 81 or Article 82 of theTreaty which are already the subject of a Commission decision, theycannot take decisions which would run counter to the decision adoptedby the Commission.
CHAPTER V
POWERSOFINVESTIGATION
Article 17
Investigations into sectors of the economy and into types of agree-
ments
1. Where the trend of trade between Member States, the rigidity of
prices or other circumstances suggest that competition may be
restricted or distorted within the common market, the Commissionmay conduct its inquiry into a particular sector of the economy orinto a particular type of agreements across various sectors. In thecourse of that inquiry, the Commission may request the undertakings
or associations of undertakings concerned to supply the information
necessary for giving effect to Articles 81 and 82 of the Treaty andmay carry out any inspections necessary for that purpose.
The Commission may in particular request the undertakings or associa-
tions of undertakings concerned to communicate to it all agreements,
decisions and concerted practices.
The Commission may publish a report on the results of its inquiry into
particular sectors of the economy or particular types of agreementsacross various sectors and invite comments from interested parties.
2. Articles 14, 18, 19, 20, 22, 23 and 24 shall apply mutatis
mutandis.
Article 18
Requestsforinformation
1. In order to carry out the duties assigned to it by this Regulation,
the Commission may, by simple request or by decision, require under-takings and associations of undertakings to provide all necessary
information.
2. When sending a simple request for information to an undertaking
or association of undertakings, the Commission shall state the legalbasis and the purpose of the request, specify what information isrequired and fix the time-limit within which the information is to be
provided, and the penalties provided for in Article 23 for supplying
incorrect or misleading information.
3. Where the Commission requires undertakings and associations of
undertakings to supply information by decision, it shall state the legal
basis and the purpose of the request, specify what information is
required and fix the time-limit within which it is to be provided. Itshall also indicate the penalties provided for in Article 23 and indicateor impose the penalties provided for in Article 24. It shall further indi-cate the right to have the decision reviewed by the Court of Justice.
4. The owners of the undertakings or their representatives and, in
the case of legal persons, companies or firms, or associations havingno legal personality, the persons authorised to represent them by lawor by their constitution shall supply the information requested on behalfof the undertaking or the association of undertakings concerned.2003R0001 — EN — 01.05.2004 — 001.001 — 15
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Lawyers duly authorised to act may supply the information on behalf
of their clients. The latter shall remain fully responsible if the informa-tion supplied is incomplete, incorrect or misleading.
5. The Commission shall without delay forward a copy of the simple
request or of the decision to the competition authority of the MemberState in whose territory the seat of the undertaking or association ofundertakings is situated and the competition authority of the Member
State whose territory is affected.
6. At the request of the Commission the governments and competi-
tion authorities of the Member States shall provide the Commissionwithall necessary information to carry out th e duties assigned to it by
this Regulation.
Article 19
Powertotakestatements
1. In order to carry out the duties assigned to it by this Regulation,
the Commission may interview any natural or legal person whoconsents to be interviewed for the purpose of collecting informationrelating to the subject-matter of an investigation.
2. Where an interview pursuant to paragraph 1 is conducted in the
premises of an undertaking, the Commission shall inform the competi-tion authority of the Member State in whose territory the interviewtakes place. If so requested by the competition authority of thatMember State, its officials may assist the officials and other accompa-nying persons authorised by the Commission to conduct the interview.
Article 20
TheCommission'spowersofinspection
1. In order to carry out the duties assigned to it by this Regulation,
the Commission may conduct all necessary inspections of undertakingsand associations of undertakings.
2. The officials and other accompanying persons authorised by the
Commission to conduct an inspection are empowered:
(a) to enter any premises, land and means of transport of undertakings
and associations of undertakings;
(b) to examine the books and other records related to the business, irre-
spective of the medium on which they are stored;
(c) to take or obtain in any form copies of or extracts from suchbooks
or records;
(d) to seal any business premises and books or records for the period
and to the extent necessary for the inspection;
(e) to ask any representative or member of staff of the undertaking or
association of undertakings for explanations on facts or documentsrelating to the subject-matter and purpose of the inspection and torecord the answers.
3. The officials and other accompanying persons authorised by the
Commission to conduct an inspection shall exercise their powers uponproduction of a written authorisation specifying the subject matter andpurpose of the inspection and the penalties provided for in Article 23 incase the production of the required books or other records related to the
business is incomplete or where the answers to questions asked under
paragraph2 of th e present Article are incorrect or misleading. In goodtime before the inspection, the Commission shall give notice of theinspection to the competition authority of the Member State in whoseterritory it is to be conducted.
4. Undertakings and associations of undertakings are required to
submit to inspections ordered by decision of the Commission. Thedecision shall specify the subject matter and purpose of the inspection,appoint the date on which it is to begin and indicate the penaltiesprovided for in Articles 23 and 24 and the right to have the decision2003R0001 — EN — 01.05.2004 — 001.001 — 16
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reviewed by the Court of Justice. The Commission shall take such
decisions after consulting the competition authority of the MemberState in whose territory the inspection is to be conducted.
5. Officials of as well as those authorised or appointed by the
competition authority of the Member State in whose territory theinspection is to be conducted shall, at the request of that authority or
of the Commission, actively assist the officials and other accompanying
persons authorised by the Commission. To this end, they shall enjoythe powers specified in paragraph 2.
6. Where the officials and other accompanying persons authorised
by the Commission find that an undertaking opposes an inspection
ordered pursuant to this Article, the Member State concerned shallafford them the necessary assistance, requesting where appropriate theassistance of the police or of an equivalent enforcement authority, so asto enable them to conduct their inspection.
7. If the assistance provided for in paragraph 6 requires authorisa-
tion from a judicial authority according to national rules, suchauthorisation shall be applied for. Such authorisation may also beapplied for as a precautionary measure.
8. Where authorisation as referred to in paragraph 7 is applied for,
the national judicial authority shall control that the Commission deci-sion is authentic and that the coercive measures envisaged are neither
arbitrary nor excessive having regard to the subject matter of the
inspection. In its control of the proportionality of the coercivemeasures, the national judicial authority may ask the Commission,directly or through the Member State competition authority, fordetailed explanations in particular on the grounds the Commission hasfor suspecting infringement of Articles 81 and 82 of the Treaty, as well
as on the seriousness of the suspected infringement and on the nature
of the involvement of the undertaking concerned. However, thenational judicial authority may not call into question the necessity forthe inspection nor demand that it be provided with the information inthe Commission's file. The lawfulness of the Commission decision
shall be subject to review only by the Court of Justice.
Article 21
Inspectionofotherpremises
1. If a reasonable suspicion exists that books or other records related
to the business and to the subject-matter of the inspection, which maybe relevant to prove a serious violation of Article 81 or Article 82 of
the Treaty, are being kept in any other premises, land and means of
transport, including the homes of directors, managers and othermembers of staff of the undertakings and associations of undertakingsconcerned, the Commission can by decision order an inspection to beconducted in suchoth er premises, land and means of transport.
2. The decision shall specify the subject matter and purpose of the
inspection, appoint the date on which it is to begin and indicate theright to have the decision reviewed by the Court of Justice. It shall inparticular state the reasons that have led the Commission to conclude
that a suspicion in the sense of paragraph 1 exists. The Commission
shall take such decisions after consulting the competition authority ofthe Member State in whose territory the inspection is to be conducted.
3. A decision adopted pursuant to paragraph1 cannot be executed
without prior authorisation from the national judicial authority of the
Member State concerned. The national judicial authority shall controlthat the Commission decision is authentic and that the coercivemeasures envisaged are neither arbitrary nor excessive having regardin particular to the seriousness of the suspected infringement, to the
importance of the evidence sought, to the involvement of the under-
taking concerned and to the reasonable likelihood that business booksand records relating to the subject matter of the inspection are kept inthe premises for which the authorisation is requested. The nationaljudicial authority may ask the Commission, directly or through theMember State competition authority, for detailed explanations on those2003R0001 — EN — 01.05.2004 — 001.001 — 17
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elements which are necessary to allow its control of the proportionality
of the coercive measures envisaged.
However, the national judicial authority may not call into question the
necessity for the inspection nor demand that it be provided with infor-mation in the Commission's file. The lawfulness of the Commissiondecision shall be subject to review only by the Court of Justice.
4. The officials and other accompanying persons authorised by the
Commission to conduct an inspection ordered in accordance withpara-
graph 1 of this Article shall have the powers set out in Article 20(2)(a),(b) and (c). Article 20(5) and (6) shall apply mutatis mutandis .
Article 22
InvestigationsbycompetitionauthoritiesofMember States
1. The competition authority of a Member State may in its own
territory carry out any inspection or other fact-finding measure underits national law on behalf and for the account of the competitionauthority of another Member State in order to establish whether there
has been an infringement of Article 81 or Article 82 of the Treaty.
Any exchange and use of the information collected shall be carriedout in accordance withArticle 12.
2. At the request of the Commission, the competition authorities of
the Member States shall undertake the inspections which the Commis-
sion considers to be necessary under Article 20(1) or which it has
ordered by decision pursuant to Article 20(4). The officials of thecompetition authorities of the Member States who are responsible forconducting these inspections as well as those authorised or appointedby them shall exercise their powers in accordance with their nationallaw.
If so requested by the Commission or by the competition authority of
the Member State in whose territory the inspection is to be conducted,officials and other accompanying persons authorised by the Commis-sion may assist the officials of the authority concerned.
CHAPTER VI
PENALTIES
Article 23
Fines
1. The Commission may by decision impose on undertakings and
associations of undertakings fines not exceeding 1 % of the total turn-over in the preceding business year where, intentionally or negligently:
(a) they supply incorrect or misleading information in response to a
request made pursuant to Article 17 or Article 18(2);
(b) in response to a request made by decision adopted pursuant to
Article 17 or Article 18(3), they supply incorrect, incomplete or
misleading information or do not supply information within therequired time-limit;
(c) they produce the required books or other records related to the
business in incomplete form during inspections under Article 20or refuse to submit to inspections ordered by a decision adoptedpursuant to Article 20(4);
(d) in response to a question asked in accordance withArticle 20(2)(e),
— they give an incorrect or misleading answer,
— they fail to rectify within a time-limit set by the Commission an
incorrect, incomplete or misleading answer given by a memberof staff, or
— they fail or refuse to provide a complete answer on facts
relating to the subject-matter and purpose of an inspectionordered by a decision adopted pursuant to Article 20(4);2003R0001 — EN — 01.05.2004 — 001.001 — 18
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(e) seals affixed in accordance withArticle 20(2)(d) by officials or
other accompanying persons authorised by the Commission havebeen broken.
2. The Commission may by decision impose fines on undertakings
and associations of undertakings where, either intentionally or negli-gently:
(a) they infringe Article 81 or Article 82 of the Treaty; or
(b) they contravene a decision ordering interim measures under Article
8; or
(c) they fail to comply with a commitment made binding by a decision
pursuant to Article 9.
For eachundertaking and association of undertakings participating in
the infringement, the fine shall not exceed 10 % of its total turnoverin the preceding business year.
Where the infringement of an association relates to the activities of its
members, the fine shall not exceed 10 % of the sum of the total turn-over of each member active on the market affected by the infringementof the association.
3. In fixing the amount of the fine, regard shall be had both to the
gravity and to the duration of the infringement.
4. When a fine is imposed on an association of undertakings taking
account of the turnover of its members and the association is notsolvent, the association is obliged to call for contributions from its
members to cover the amount of the fine.
Where such contributions have not been made to the association within
a time-limit fixed by the Commission, the Commission may requirepayment of the fine directly by any of the undertakings whose repre-
sentatives were members of the decision-making bodies concerned of
the association.
After the Commission has required payment under the second subpara-
graph, where necessary to ensure full payment of the fine, theCommission may require payment of the balance by any of the
members of the association which were active on the market on which
the infringement occurred.
However, the Commission shall not require payment under the second
or the third subparagraph from undertakings which show that they have
not implemented the infringing decision of the association and either
were not aware of its existence or have actively distanced themselvesfrom it before the Commission started investigating the case.
The financial liability of each undertaking in respect of the payment of
the fine shall not exceed 10 % of its total turnover in the preceding
business year.
5. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a
criminal law nature.
Article 24
Periodic penaltypayments
1. The Commission may, by decision, impose on undertakings or
associations of undertakings periodic penalty payments not exceeding
5 % of the average daily turnover in the preceding business year per
day and calculated from the date appointed by the decision, in orderto compel them:
(a) to put an end to an infringement of Article 81 or Article 82 of the
Treaty, in accordance witha decision taken pursuant to Article 7;
(b) to comply witha decision ordering interim measures taken
pursuant to Article 8;
(c) to comply witha commitment made binding by a decision pursuant
to Article 9;2003R0001 — EN — 01.05.2004 — 001.001 — 19
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(d) to supply complete and correct information which it has requested
by decision taken pursuant to Article 17 or Article 18(3);
(e) to submit to an inspection which it has ordered by decision taken
pursuant to Article 20(4).
2. Where the undertakings or associations of undertakings have
satisfied the obligation which the periodic penalty payment was
intended to enforce, the Commission may fix the definitive amount ofthe periodic penalty payment at a figure lower than that which wouldarise under the original decision. Article 23(4) shall apply correspond-ingly.
CHAPTER VII
LIMITATIONPERIODS
Article 25
Limitationperiodsfortheimpositionofpenalties
1. The powers conferred on the Commission by Articles 23 and 24
shall be subject to the following limitation periods:
(a) three years in the case of infringements of provisions concerning
requests for information or the conduct of inspections;
(b) five years in the case of all other infringements.
2. Time shall begin to run on the day on which the infringement is
committed. However, in the case of continuing or repeated infringe-
ments, time shall begin to run on the day on which the infringementceases.
3. Any action taken by the Commission or by the competition
authority of a Member State for the purpose of the investigation or
proceedings in respect of an infringement shall interrupt the limitation
period for the imposition of fines or periodic penalty payments. Thelimitation period shall be interrupted with effect from the date onwhich the action is notified to at least one undertaking or associationof undertakings which has participated in the infringement. Actionswhich interrupt the running of the period shall include in particular
the following:
(a) written requests for information by the Commission or by the
competition authority of a Member State;
(b) written authorisations to conduct inspections issued to its officials
by the Commission or by the competition authority of a MemberState;
(c) the initiation of proceedings by the Commission or by the competi-
tion authority of a Member State;
(d) notification of the statement of objections of the Commission or of
the competition authority of a Member State.
4. The interruption of the limitation period shall apply for all the
undertakings or associations of undertakings which have participatedin the infringement.
5. Each interruption shall start time running afresh. However, the
limitation period shall expire at the latest on the day on which a periodequal to twice the limitation period has elapsed without the Commis-sion having imposed a fine or a periodic penalty payment. That periodshall be extended by the time during which limitation is suspended
pursuant to paragraph6.
6. The limitation period for the imposition of fines or periodic
penalty payments shall be suspended for as long as the decision of theCommission is the subject of proceedings pending before the Court ofJustice.2003R0001 — EN — 01.05.2004 — 001.001 — 20
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Article 26
Limitationperiodfortheenforcement ofpenalties
1. The power of the Commission to enforce decisions taken pursuant
to Articles 23 and 24 shall be subject to a limitation period of fiveyears.
2. Time shall begin to run on the day on which the decision
becomes final.
3. The limitation period for the enforcement of penalties shall be
interrupted:
(a) by notification of a decision varying the original amount of the fine
or periodic penalty payment or refusing an application for varia-
tion;
(b) by any action of the Commission or of a Member State, acting at
the request of the Commission, designed to enforce payment of thefine or periodic penalty payment.
4. Each interruption shall start time running afresh.
5. The limitation period for the enforcement of penalties shall be
suspended for so long as:
(a) time to pay is allowed;
(b) enforcement of payment is suspended pursuant to a decision of the
Court of Justice.
CHAPTER VIII
HEARINGSANDPROFESSIONALSECRECY
Article 27
Hearing oftheparties,complainantsandothers
1. Before taking decisions as provided for in Articles 7, 8, 23 and
Article 24(2), the Commission shall give the undertakings or associa-tions of undertakings which are the subject of the proceedingsconducted by the Commission the opportunity of being heard on thematters to which the Commission has taken objection. The Commissionshall base its decisions only on objections on which the parties
concerned have been able to comment. Complainants shall be asso-
ciated closely withth e proceedings.
2. The rights of defence of the parties concerned shall be fully
respected in the proceedings. They shall be entitled to have access to
the Commission's file, subject to the legitimate interest of undertakings
in the protection of their business secrets. The right of access to the fileshall not extend to confidential information and internal documents ofthe Commission or the competition authorities of the Member States.In particular, the right of access shall not extend to correspondencebetween the Commission and the competition authorities of the
Member States, or between the latter, including documents drawn up
pursuant to Articles 11 and 14. Nothing in this paragraph shall preventthe Commission from disclosing and using information necessary toprove an infringement.
3. If the Commission considers it necessary, it may also hear other
natural or legal persons. Applications to be heard on the part of such
persons shall, where they show a sufficient interest, be granted. Thecompetition authorities of the Member States may also ask theCommission to hear other natural or legal persons.
4. Where the Commission intends to adopt a decision pursuant to
Article 9 or Article 10, it shall publish a concise summary of the caseand the main content of the commitments or of the proposed course ofaction. Interested third parties may submit their observations within atime limit which is fixed by the Commission in its publication andwhich may not be less than one month. Publication shall have regard2003R0001 — EN — 01.05.2004 — 001.001 — 21
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to the legitimate interest of undertakings in the protection of their busi-
ness secrets.
Article 28
Professionalsecrecy
1. Without prejudice to Articles 12 and 15, information collected
pursuant to Articles 17 to 22 shall be used only for the purpose for
which it was acquired.
2. Without prejudice to the exchange and to the use of information
foreseen in Articles 11, 12, 14, 15 and 27, the Commission and thecompetition authorities of the Member States, their officials, servantsand other persons working under the supervision of these authorities
as well as officials and civil servants of other authorities of the
Member States shall not disclose information acquired or exchangedby them pursuant to this Regulation and of the kind covered by theobligation of professional secrecy. This obligation also applies to allrepresentatives and experts of Member States attending meetings of
the Advisory Committee pursuant to Article 14.
CHAPTER IX
EXEMPTIONREGULATIONS
Article 29
Withdrawalinindividualcases
1. Where the Commission, empowered by a Council Regulation,
suchas Regulations 19/65/EEC, (EEC) No 2821/71, (EEC) No 3976/
87, (EEC) No 1534/91 or (EEC) No 479/92, to apply Article 81(3) of
the Treaty by regulation, has declared Article 81(1) of the Treaty inap-plicable to certain categories of agreements, decisions by associationsof undertakings or concerted practices, it may, acting on its own initia-tive or on a complaint, withdraw the benefit of such an exemptionRegulation when it finds that in any particular case an agreement, deci-
sion or concerted practice to which the exemption Regulation applies
has certain effects which are incompatible with Article 81(3) of theTreaty.
2. Where, in any particular case, agreements, decisions by associa-
tions of undertakings or concerted practices to which a Commission
Regulation referred to in paragraph 1 applies have effects which areincompatible with Article 81(3) of the Treaty in the territory of aMember State, or in a part thereof, which has all the characteristics ofa distinct geographic market, the competition authority of that MemberState may withdraw the benefit of the Regulation in question in respect
of that territory.
CHAPTER X
GENERALPROVISIONS
Article 30
Publicationofdecisions
1. The Commission shall publish the decisions, which it takes
pursuant to Articles 7 to 10, 23 and 24.
2. The publication shall state the names of the parties and the main
content of the decision, including any penalties imposed. It shall haveregard to the legitimate interest of undertakings in the protection oftheir business secrets.
Article 31
ReviewbytheCourtofJustice
The Court of Justice shall have unlimited jurisdiction to review deci-
sions whereby the Commission has fixed a fine or periodic penalty2003R0001 — EN — 01.05.2004 — 001.001 — 22
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payment. It may cancel, reduce or increase the fine or periodic penalty
payment imposed.
Article 32
Exclusions
This Regulation shall not apply to:
(a) international tramp vessel services as defined in Article 1(3)(a) of
Regulation (EEC) No 4056/86;
(b) a maritime transport service that takes place exclusively between
ports in one and the same Member State as foreseen in Article1(2) of Regulation (EEC) No 4056/86.
Article 33
Implementingprovisions
1. The Commission shall be authorised to take such measures as
may be appropriate in order to apply this Regulation. The measures
may concern, inter alia :
(a) the form, content and other details of complaints lodged pursuant to
Article 7 and the procedure for rejecting complaints;
(b) the practical arrangements for the exchange of information and
consultations provided for in Article 11;
(c) the practical arrangements for the hearings provided for in Article
27.
2. Before the adoption of any measures pursuant to paragraph 1, the
Commission shall publish a draft thereof and invite all interestedparties to submit their comments within the time-limit it lays down,which may not be less than one month. Before publishing a draftmeasure and before adopting it, the Commission shall consult the Advi-
sory Committee on Restrictive Practices and Dominant Positions.
CHAPTER XI
TRANSITIONAL,AMENDINGANDFINALPROVISIONS
Article 34
Transitionalprovisions
1. Applications made to the Commission under Article 2 of Regula-
tion No 17, notifications made under Articles 4 and 5 of thatRegulation and the corresponding applications and notifications madeunder Regulations (EEC) No 1017/68, (EEC) No 4056/86 and (EEC)
No 3975/87 shall lapse as from the date of application of this Regula-
tion.
2. Procedural steps taken under Regulation No 17 and Regulations
(EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No 3975/87 shall
continue to have effect for the purposes of applying this Regulation.
Article 35
DesignationofcompetitionauthoritiesofMemberStates
1. The Member States shall designate the competition authority or
authorities responsible for the application of Articles 81 and 82 of theTreaty in such a way that the provisions of this regulation are effec-tively complied with. The measures necessary to empower thoseauthorities to apply those Articles shall be taken before 1 May 2004.
The authorities designated may include courts.
2. When enforcement of Community competition law is entrusted to
national administrative and judicial authorities, the Member States may2003R0001 — EN — 01.05.2004 — 001.001 — 23
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allocate different powers and functions to those different national
authorities, whether administrative or judicial.
3. The effects of Article 11(6) apply to the authorities designated by
the Member States including courts that exercise functions regardingthe preparation and the adoption of the types of decisions foreseen in
Article 5. The effects of Article 11(6) do not extend to courts insofar
as they act as review courts in respect of the types of decisions fore-seen in Article 5.
4. Notwithstanding paragraph 3, in the Member States where, for the
adoption of certain types of decisions foreseen in Article 5, anauthority brings an action before a judicial authority that is separateand different from the prosecuting authority and provided that the
terms of this paragraph are complied with, the effects of Article 11(6)
shall be limited to the authority prosecuting the case which shall with-draw its claim before the judicial authority when the Commissionopens proceedings and this withdrawal shall bring the national proceed-ings effectively to an end.
Article 36
AmendmentofRegulation(EEC)No1017/68
Regulation (EEC) No 1017/68 is amended as follows:
1. Article 2 is repealed;
2. in Article 3(1), the words ‘The prohibition laid down in Article 2’
are replaced by the words ‘The prohibition in Article 81(1) of theTreaty’;
3. Article 4 is amended as follows:
(a) In paragraph 1, the words ‘The agreements, decisions and
concerted practices referred to in Article 2’ are replaced by thewords ‘Agreements, decisions and concerted practices pursuantto Article 81(1) of the Treaty’;
(b) Paragraph2 is replaced by th e following:
‘2. If the implementation of any agreement, decision or
concerted practice covered by paragraph1 h as, in a given case,
effects which are incompatible with the requirements of Article81(3) of the Treaty, undertakings or associations of undertakingsmay be required to make sucheffects cease.’
4. Articles 5 to 29 are repealed withth e exception of Article 13(3)
which continues to apply to decisions adopted pursuant to Article 5
of Regulation (EEC) No 1017/68 prior to the date of application ofthis Regulation until the date of expiration of those decisions;
5. in Article 30, paragraphs 2, 3 and 4 are deleted.
Article 37
AmendmentofRegulation(EEC)No2988/74
In Regulation (EEC) No 2988/74, the following Article is inserted:
‘Article 7a
Exclusion
This Regulation shall not apply to measures taken under Council
Regulation (EC) No 1/2003 of 16 December 2002 on the imple-mentation of the rules on competition laid down in Articles 81and 82 of the Treaty (*).
(*) OJ L 1, 4.1.2003, p. 1.’2003R0001 — EN — 01.05.2004 — 001.001 — 24
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Article 38
AmendmentofRegulation(EEC)No4056/86
Regulation (EEC) No 4056/86 is amended as follows:
1. Article 7 is amended as follows:
(a) Paragraph1 is replaced by th e following:
‘1.Breach of an obligation
Where the persons concerned are in breach of an obligation
which, pursuant to Article 5, attaches to the exemptionprovided for in Article 3, the Commission may, in order to
put an end to suchbreachand under th e conditions laid
down in Council Regulation (EC) No 1/2003 of 16December 2002 on the implementation of the rules oncompetition laid down in Articles 81 and 82 of theTreaty (*) adopt a decision that either prohibits them fromcarrying out or requires them to perform certain specific
acts, or withdraws the benefit of the block exemption which
they enjoyed.
(*) OJ L 1, 4.1.2003, p. 1.’
(b) Paragraph2 is amended as follows:
(i) In point (a), the words ‘under the conditions laid down in
Section II’ are replaced by the words ‘under the conditions
laid down in Regulation (EC) No 1/2003’;
(ii) The second sentence of the second subparagraph of point
(c)(i) is replaced by the following:
‘At the same time it shall decide, in accordance with Article
9 of Regulation (EC) No 1/2003, whether to accept commit-ments offered by the undertakings concerned with a view,inter alia , to obtaining access to the market for non-confer-
ence lines.’
2. Article 8 is amended as follows:
(a) Paragraph1 is deleted.
(b) In paragraph2 th e words ‘pursuant to Article 10’ are replaced
by the words ‘pursuant to Regulation (EC) No 1/2003’.
(c) Paragraph3 is deleted;
3. Article 9 is amended as follows:
(a) In paragraph1, th e words ‘Advisory Committee referred to in
Article 15’ are replaced by the words ‘Advisory Committee
referred to in Article 14 of Regulation (EC) No 1/2003’;
(b) In paragraph2, th e words ‘Advisory Committee as referred to in
Article 15’ are replaced by the words ‘Advisory Committeereferred to in Article 14 of Regulation (EC) No 1/2003’;
4. Articles 10 to 25 are repealed withth e exception of Article 13(3)
which continues to apply to decisions adopted pursuant to Article81(3) of the Treaty prior to the date of application of this Regulation
until the date of expiration of those decisions;
5. in Article 26, the words ‘the form, content and other details of
complaints pursuant to Article 10, applications pursuant to Article12 and the hearings provided for in Article 23(1) and (2)’ are
deleted.
Article 39
AmendmentofRegulation(EEC)No3975/87
Articles 3 to 19 of Regulation (EEC) No 3975/87 are repealed withth e
exception of Article 6(3) which continues to apply to decisions adoptedpursuant to Article 81(3) of the Treaty prior to the date of applicationof this Regulation until the date of expiration of those decisions.2003R0001 — EN — 01.05.2004 — 001.001 — 25
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Article 40
Amendment of Regulations No 19/65/EEC, (EEC) No 2821/71 and
(EEC)No1534/91
Article 7 of Regulation No 19/65/EEC, Article 7 of Regulation (EEC)
No 2821/71 and Article 7 of Regulation (EEC) No 1534/91 arerepealed.
Article 41
AmendmentofRegulation(EEC)No3976/87
Regulation (EEC) No 3976/87 is amended as follows:
1. Article 6 is replaced by the following:
‘Article 6
The Commission shall consult the Advisory Committee referred to
in Article 14 of Council Regulation (EC) No 1/2003 of 16December 2002 on the implementation of the rules on competitionlaid down in Articles 81 and 82 of the Treaty (*) before publishing
a draft Regulation and before adopting a Regulation.
(*) OJ L 1, 4.1.2003, p. 1.’
2. Article 7 is repealed.
Article 42
AmendmentofRegulation(EEC)No479/92
Regulation (EEC) No 479/92 is amended as follows:
1. Article 5 is replaced by the following:
‘Article 5
Before publishing the draft Regulation and before adopting the
Regulation, the Commission shall consult the Advisory Committeereferred to in Article 14 of Council Regulation (EC) No 1/2003 of16 December 2002 on the implementation of the rules on competi-tion laid down in Articles 81 and 82 of the Treaty (*).
(*) OJ L 1, 4.1.2003, p. 1.’
2. Article 6 is repealed.
Article 43
RepealofRegulationsNo17andNo141
1. Regulation No 17 is repealed withth e exception of Article 8(3)
which continues to apply to decisions adopted pursuant to Article
81(3) of the Treaty prior to the date of application of this Regulationuntil the date of expiration of those decisions.
2. Regulation No 141 is repealed.
3. References to the repealed Regulations shall be construed as
references to this Regulation.
Article 44
ReportontheapplicationofthepresentRegulation
Five years from the date of application of this Regulation, the Commis-
sion shall report to the European Parliament and the Council on thefunctioning of this Regulation, in particular on the application of
Article 11(6) and Article 17.
On the basis of this report, the Commission shall assess whether it is
appropriate to propose to the Council a revision of this Regulation.2003R0001 — EN — 01.05.2004 — 001.001 — 26
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Article 45
Entryintoforce
This Regulation shall enter into force on the 20th day following that of
its publication in the Official Journal of the European Communities .
It shall apply from 1 May 2004.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.2003R0001 — EN — 01.05.2004 — 001.001 — 27