COMMISSION NOTICE on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 85 or 86 of the EC Treaty (97/C 313/03)

(Text with EEA relevance)

I. ROLE OF THE MEMBER STATES AND OF THE COMMUNITY

1. In competition policy the Community and the Member States perform different functions. Whereas the Community is responsible only for implementing the Community rules, Member States not only apply their domestic law but also have a hand in implementing Articles 85 and 86 of the EC Treaty.

2. This involvement of the Member States in Community competition policy means that decision can be taken as closely as possible to the citizen (Article A of the Treaty on European Union). The decentralized application of Community competition rules also leads to a better allocation of tasks. If, by reason of its scale or effects, the proposed action can best be taken at Community level, it is for the Commission to act. Otherwise, it is for the competition authority of the Member State concerned to act.

3. Community law is implemented by the Commission and national competition authorities, on the one hand, and national courts, on the other, in accordance with the principles developed by the Community legislature and by the Court of Justice and the Court of First Instance of the European Communities.

It is the task of national courts to safeguard the rights of private persons in their relations with one another (1). Those rights derive from the fact that the prohibitions in Articles 85 (1) and 86 (2) and the exemptions granted by regulation (3) have been recognized by the Court of Justice as being directly applicable. Relations between national courts and the Commission in applying Articles 85 and 86 were spelt out in a Notice published by the Commission in 1993 (4). This Notice is the counterpart, for relations with national authorities, to that of 1993 on relations with national courts.

4. As administrative authorities, both the Commission and national competition authorities act in the public interest in performing their general task of monitoring and enforcing the competition rules (5). Relations between them are determined primarily by this common role of protecting the general interest. Although similar to the Notice on cooperation with national courts, this Notice accordingly reflects this special feature.

5. The specific nature of the role of the Commission and of national competition authorities is characterized by the powers conferred on those bodies by the Council regulations adopted under Article 87 of the Treaty. Article 9 (1) of Regulation No 17 (6) thus provides: 'Subject to review of its decision by the Court of Justice (7), the Commission shall have sole power to declare Article 85 (1) inapplicable pursuant to Article 85 (3) of the Treaty`. And Article 9 (3) of the same Regulation provides: 'As long as the Commission has not initiated any procedure under Article 2 (8), 3 (9) or 6 (10), the authorities of the Member States shall remain competent to apply Article 85 (1) and Article 86 in accordance with Article 88 of the Treaty.`

It follows that, provided their national law has conferred the necessary powers on them, national competition authorities are empowered to apply the prohibitions in Articles 85 (1) and 86. On the other hand, for the purposes of applying Article 85 (3), they do not have any powers to grant exemptions in individual cases; they must abide by the decisions and regulations adopted by the Commission under that provision. They may also take account of other measures adopted by the Commission in such cases, in particular comfort letters, treating them as factual evidence.

6. The Commission is convinced that enhancing the role of national competition authorities will boost the effectiveness of Articles 85 and 86 of the Treaty and, generally speaking, will bolster the application of Community competition rules throughout the Community. In the interests of safeguarding and developing the single market, the Commission considers that those provisions should be used as widely as possible. Being closer to the activities and businesses that require monitoring, national authorities are often in a better position than the Commission to protect competition.

7. Cooperation must therefore be organized between national authorities and the Commission. If this cooperation is to be fruitful, they will have to keep in close and constant touch.

8. The Commission proposes to set out in this Notice the principles it will apply in future when dealing with the cases described herein. The Notice also seeks to induce firms to approach national competition authorities more often.

9. This Notice describes the practical cooperation which is desirable between the Commission and national authorities. It does not affect the extent of the powers conferred by Community law on either the Commission or national authorities for the purpose of dealing with individual cases.

10. For cases falling within the scope of Community law, to avoid duplication of checks on compliance with the competition rules which are applicable to them, which is costly for the firms concerned, checks should wherever possible be carried out by a single authority (either a Member State's competition authority or the Commission). Control by a single authority offers advantages for businesses.

Parallel proceedings before the Commission, on the one hand, and a national competition authority, on the other, are costly for businesses whose activities fall within the scope both of Community law and of Member States' competition laws. They can lead to the repetition of checks on the same activity, by the Commission, on the one hand, and by the competition authorities of the Member States concerned, on the other.

Businesses in the Community may therefore in certain circumstances find it to their advantage if some cases falling within the scope of Community competition law were dealt with solely by national authorities. In order that this advantage may be enjoyed to the full, the Commission thinks it is desirable that national authorities should themselves apply Community law directly or, failing that, obtain, by applying their domestic law, a result similar to that which would have been obtained had Community law been applied.

11. What is more, in addition to the resulting benefits accruing to competition authorities in terms of mobilization of their resources, cooperation between authorities reduces the risk of divergent decisions and hence the opportunities for those who might be tempted to do so to seek out whichever authority seemed to them to be the most favourable to their interests.

12. Member States' competition authorities often have a more detailed and precise knowledge than the Commission of the relevant markets (particularly those with highly specific national features) and the businesses concerned. Above all, they may be in a better position than the Commission to detect restrictive practices that have not been notified or abuses of a dominant position whose effects are essentially confined to their territory.

13. Many cases handled by national authorities involve arguments based on national law and arguments drawn from Community competition law. In the interests of keeping proceedings as short as possible, the Commission considers it preferable that national authorities should directly apply Community law themselves, instead of making firms refer to the Community-law aspects of their cases to the Commission.

14. An increasing number of major issues in the field of Community competition law have been clarified over the last thirty years through the case-law of the Court of Justice and the Court of First Instance and through decisions taken on questions of principle and the exemption regulations adopted by the Commission. The application of that law by national authorities is thereby simplified.

15. The Commission intends to encourage the competition authorities of all Member States to engage in this cooperation. However, the national legislation of several Member States does not currently provide competition authorities with the procedural means of applying Articles 85 (1) and 86. In such Member States conduct caught by the Community provisions can be effectively dealt with by national authorities only under national law.

In the Commission's view, it is desirable that national authorities should apply Articles 85 or 86 of the Treaty, if appropriate in conjunction with their domestic competition rules, when handling cases that fall within the scope of those provisions.

16. Where authorities are not in a position to do this and hence can apply only their national law to such cases, the application of that law should 'not prejudice the uniform application throughout the common market of the Community rules on cartels and of the full effect of the measures adopted in implementation of those rules` (11). At the very least, the solution they find to a case falling within the scope of Community law must be compatible with that law, Member States being forbidden, given the primacy of Community law over national competition law (12) and the obligation to cooperate in good faith laid down in Article 5 of the Treaty (13), to take measures capable of defeating the practical effectiveness of Articles 85 and 86.

17. Divergent decisions are more likely to be reached where a national authority applies its national law rather than Community law. Where a Member State's competition authority applies Community law, it is required to comply with any decisions taken previously by the Commission in the same proceedings. Where the case has merely been the subject of a comfort letter, then, according to the Court of Justice, although this type of letter does not bind national courts, the opinion expressed by the Commission constitutes a factor which the national courts may take into account in examining whether the agreements on conduct in question are in accordance with the provisions of Article 85 (14). In the Commission's view, the same holds true for national authorities.

18. Where an infringement of Articles 85 or 86 is established by Commission decision, that decision precludes the application of a domestic legal provision authorizing what the Commission has prohibited. The objective of the prohibitions in Articles 85 (1) and 86 is to guarantee the unity of the common market and the preservation of undistorted competition in that market. They must be strictly complied with if the functioning of the Community regime is not to be endangered (15).

19. The legal position is less clear as to whether national authorities are allowed to apply their more stringent national competition law where the situation they are assessing has previously been the subject of an individual exemption decision of the Commission or is covered by a block exemption Regulation. In Walt Wilhelm, the Court stated that the Treaty 'permits the Community authorities to carry out certain positive, though indirect, actions with a view to promoting a harmonious development of economic activities within the whole Community` (paragraph 5 of the judgment). In Bundeskartellamt v. Volkswagen and VAG Leasing (16), the Commission contended that national authorities may not prohibit exempted agreements. The uniform application of Community law would be frustrated every time an exemption granted under Community law was made to depend on the relevant national rules. Otherwise, not only would a given agreement be treated differently depending on the law of each Member State, thus detracting from the uniform application of Community law, but the full effectiveness of an act giving effect to the Treaty - which an exemption under Article 85 (3) undoubtedly is - would also be disregarded. In the case in point, however, the Court did not have to settle the question.

20. If the Commission's Directorate-General for Competition sends a comfort letter in which it expresses the opinion that an agreement or a practice is incompatible with Article 85 of the Treaty but states that, for reasons to do with its internal priorities, it will not propose to the Commission that it take a decision thereon in accordance with the formal procedures laid down in Regulation No 17, it goes without saying that the national authorities in whose territory the effects of the agreement or practice are felt may take action in respect of that agreement or practice.

21. In the case of a comfort letter in which the Directorate-General for Competition expresses the opinion that an agreement does restrict competition within the meaning of Article 85 (1) but qualifies for exemption under Article 85 (3), the Commission will call upon national authorities to consult it before they decide whether to adopt a different decision under Community or national law.

22. As regards comfort letters in which the Commission expresses the opinion that, on the basis of the information in its possession, there is no need for it to take any action under Article 85 (1) or Article 86 of the Treaty, 'that fact cannot by itself have the result of preventing the national authorities from applying to those agreements` or practices 'provisions of national competition law which may be more rigorous than Community law in this respect. The fact that a practice has been held by the Commission not to fall within the ambit of the prohibition contained in Article 85 (1) and (2)` or Article 86, 'the scope of which is limited to agreements` or dominant positions 'capable of affecting trade between Member States, in no way prevents that practice from being considered by the national authorities from the point of view of the restrictive effects which it may produce nationally`. (Judgment of the Court of Justice in Procureur de la République v. Giry and Guerlain (17)).

II. GUIDELINES ON CASE ALLOCATION

23. Cooperation between the Commission and national competition authorities has to comply with the current legal framework. First, if it is to be caught by Community law and not merely by national competition law, the conduct in question must be liable to have an appreciable effect on trade between Member States. Secondly, the Commission has sole power to declare Article 85 (1) of the Treaty inapplicable under Article 85 (3).

24. In practice, decisions taken by a national authority can apply effectively only to restrictions of competition whose impact is felt essentially within its territory. This is the case in particular with the restrictions referred to in Article 4 (2) (1) of Regulation No 17, namely agreements, decisions or concerted practices the only parties to which are undertakings from one Member State and which, though they do not relate either to imports or to exports between Member States, may affect intra-Community trade (18). It is extremely difficult from a legal standpoint for such an authority to conduct investigations outside its home country, such as when on-the-spot inspections need to be carried out on businesses, and to ensure that its decisions are enforced beyond its national borders. The upshot is that the Commission usually has to handle cases involving businesses whose relevant activities are carried on in more than one Member State.

25. A national authority having sufficient resources in terms of manpower and equipment and having had the requisite powers conferred on it, also needs to be able to deal effectively with any cases covered by the Community rules which it proposes to take on. The effectiveness of a national authority's action is dependent on its powers of investigation, the legal means it has at its disposal for settling a case - including the power to order interim measures in an emergency - and the penalties it is empowered to impose on businesses found guilty of infringing the competition rules. Differences between the rules of procedure applicable in the various Member States should not, in the Commission's view, lead to outcomes which differ in their effectiveness when similar cases are being dealt with.

26. In deciding which cases to handle itself, the Commission will take into account the effects of the restrictive practice or abuse of a dominant position and the nature of the infringement.

In principle, national authorities will handle cases the effects of which are felt mainly in their territory and which appear upon preliminary examination unlikely to qualify for exemption under Article 85 (3). However, the Commission reserves the right to take on certain cases displaying a particular Community interest.

Mainly national effects

27. First of all, it should be pointed out that the only cases at issue here are those which fall within the scope of Articles 85 and 86.

That being so, the existing and foreseeable effects of a restrictive practice or abuse of a dominant position may be deemed to be closely linked to the territory in which the agreement or practice is applied and to the geographic market for the goods or services in question.

28. Where the relevant geographic market is limited to the territory of a single Member State and the agreement or practice is applied only in that State, the effects of the agreement or practice must be deemed to occur mainly within that State even if, theoretically, the agreement or practice is capable of affecting trade between Member States.

Nature of the infringement: cases that cannot be exempted

29. The following considerations apply to cases brought before the Commission, to cases brought before a national competition authority and to cases which both may have to deal with.

A distinction should be drawn between infringements of Article 85 of the Treaty and infringements of Article 86.

30. The Commission has exclusive powers under Article 85 (3) of the Treaty to declare the provisions of Article 85 (1) inapplicable. Any notified restrictive practice that prima facie qualifies for exemption must therefore be examined by the Commission, which will take account of the criteria developed in this area by the Court of Justice and the Court of First Instance and also by the relevant regulations and its own previous decisions.

31. The Commission also has exclusive responsibility for investigation complaints against decisions it has taken under its exclusive powers, such as a decision to withdraw an exemption previously granted by it under Article 85 (3) (19).

32. No such limitation exists, however, on implementation of Article 86 of the Treaty. The Commission and the Member States have concurrent competence to investigate complaints and to prohibit abuses of dominant positions.

Cases of particular significance to the Community

33. Some cases considered by the Commission to be of particular Community interest will more often be dealt with by the Commission even if, inasmuch as they satisfy the requirements set out above (points 27-28 and 29-32), they can be dealt with by a national authority.

34. This category includes cases which raise a new point of law, that is to say, those which have not yet been the subject of a Commission decision or a judgment of the Court of Justice or Court of First Instance.

35. The economic magnitude of a case is not in itself sufficient reason for its being dealt with by the Commission. The position might be different where access to the relevant market by firms from other Member States is significantly impeded.

36. Cases involving alleged anti-competitive behaviour by a public undertaking, an undertaking to which a Member State has granted special or exclusive rights with the meaning of Article 90 (1) of the Treaty, or an undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly within the meaning of Article 90 (2) of the Treaty may also be of particular Community interest.

III. COOPERATION IN CASES WHICH THE COMMISSION DEALS WITH FIRST

37. Cases dealt with by the Commission have three possible origins: own-initiative proceedings, notifications and complaints. By their very nature, own-initiative proceedings do not lend themselves to decentralized processing by national competition authorities.

38. The exclusivity of the Commission's powers to apply Article 85 (3) of the Treaty in individual cases means that cases notified to the Commission under Article 4 (1) of Regulation No 17 by parties seeking exemption under Article 85 (3) cannot be dealt with by a national competition authority on the Commission's initiative. According to the case-law of the Court of First Instance, these exclusive powers confer on the applicant the right to obtain from the Commission a decision on the substance of his request for exemption (20).

39. National competition authorities may deal, at the Commission's request, with complaints that do not involve the application of Article 85 (3), namely those relating to restrictive practices which must be notified under Articles 4 (1), 5 (1) and 25 of Regulation No 17 but have not been notified to the Commission and those based on alleged infringement of Article 86 of the Treaty. On the other hand, complaints concerning matters falling within the scope of the Commission's exclusive powers, such as withdrawal of exemption, cannot be usefully handled by a national competition authority (21).

40. The criteria set out at points 23 to 36 above in relation to the handling of a case by the Commission or a national authority, in particular as regards the territorial extent of the effects of a restrictive practice or dominant position (points 27-28), should be taken into account.

Commission's right to reject a complaint

41. It follows from the case-law of the Court of First Instance that the Commission is entitled under certain conditions to reject a complaint which does not display sufficient Community interest to justify further investigation (22).

42. The Commission's resultant right to reject a complaint stems from the concurrent competence of the Commission, national courts and - where they have the power - national competition authorities to apply Articles 85 (1) and 86 and from the consequent protection available to complainants before the courts and administrative authorities. With regard to that concurrent competence, it has been consistently held by the Court of Justice and the Court of First Instance that Article 3 of Regulation No 17 (the legal basis for the right to lodge a complaint with the Commission for alleged infringement of Article 85 or Article 86) does not entitle an applicant under that Article to obtain from the Commission a decision within the meaning of Article 189 of the Treaty as to whether or not the alleged infringement has occurred (23).

Conditions for rejecting a complaint

43. The investigation of a complaint by a national authority presupposes that the following specific conditions, derived from the case-law of the Court of First Instance, are met.

44. The first of these conditions is that, in order to assess whether or not there is a Community interest in having a case investigated further, the Commission must first undertake a careful examination of the questions of fact and law set out in the complaint (24). In accordance with the obligation imposed on it by Article 190 of the Treaty to state the reasons for its decisions, the Commission has to inform the complainant of the legal and factual considerations which have induced it to conclude that the complaint does not display a sufficient Community interest to justify further investigation. The Commission cannot therefore confine itself to an abstract reference to the Community interest (25).

45. In assessing whether it is entitled to reject a complaint for lack of any Community interest, the Commission must balance the significance of the alleged infringement as regards the functioning of the common market, the probability of its being able to establish the existence of the infringement, and the extent of the investigative measures required for it to perform, under the best possible conditions, its task of making sure that Articles 85 and 86 are complied with (26). In particular, as the Court of First Instance held in BEMIM (27), where the effects of the infringements alleged in a complaint are essentially confined to the territory of one Member State and where proceedings have been brought before the courts and competent administrative authorities of that Member State by the complainant against the body against which the complaint was made, the Commission is entitled to reject the complaint for lack of any sufficient Community interest in further investigation of the case, provided however that the rights of the complainant can be adequately safeguarded. As to whether the effects of the restrictive practice are localized, such is the case in particular with practices to which the only parties are undertakings from one Member State and which, although they do not relate either to imports or to exports between Member States, within the meaning of point 1 of Article 4 (2) of Regulation No 17 (28), are capable of affecting intra-Community trade. As regards the safeguarding of the complainant's rights, the Commission considers that the referral of the matter to the national authority concerned needs must protect them quite adequately. On this latter point, the Commission takes the view that the effectiveness of the national authority's action depends notably on whether that authority is able to take interim measures if it deems it necessary, without prejudice to the possibility, found in the law of certain Member States, that such measures may be taken with the requisite degree of effectiveness by a court.

Procedure

46. Where the Commission considers these conditions to have been met, it will ask the competition authority of the Member State in which most of the effects of the contested agreement or practice are felt if it would agree to investigate and decide on the complaint. Where the competition authority agrees to do so, the Commission will reject the complaint pending before it on the ground that it does not display sufficient Community interest and will refer the matter to the national competition authority, either automatically or at the complainant's request. The Commission will place the relevant documents in its possession at the national authority's disposal (29).

47. With regard to investigation of the complaint, it should be stressed that, in accordance with the ruling given by the Court of Justice in Case C-67/91 (30) (the 'Spanish banks` case), national competition authorities are not entitled to use as evidence, for the purposes of applying either national rules or the Community competition rules, unpublished information contained in replies to requests for information sent to firms under Article 11 of Regulation No 17 or information obtained as a result of any inspections carried out under Article 14 of that Regulation. This information can nevertheless be taken into account, where appropriate, to justify instituting national proceedings (31).

IV. COOPERATION IN CASES WHICH A NATIONAL AUTHORITY DEALS WITH FIRST

Introduction

48. At issue here are cases falling within the scope of Community competition law which a national competition authority handles on its own initiative, applying Articles 85 (1) or 86, either alone or in conjunction with its national competition rules, or, where it cannot do so, its national rules alone. This covers all cases within this field which a national authority investigates before the Commission - where appropriate - does so, irrespective of their procedural origin (own-initiative proceedings, notification, complaint, etc.). These cases are therefore those which fulfil the conditions set out in Part II (Guidelines on case allocation) of this Notice.

49. As regards cases which they deal with under Community law, it is desirable that national authorities should systematically inform the Commission of any proceedings they initiate. The Commission will pass on this information to the authorities in the other Member States.

50. This cooperation is especially necessary in regard to cases of particular significance to the Community within the meaning of points 33-36. This category includes (a) all cases raising a new point of law, the aim being to avoid decisions, whether based on national law or on Community law, which are incompatible with the latter; (b) among cases of the utmost importance from an economic point of view, only those in which access by firms from other Member States to the relevant national market is significantly impeded; and (c) certain cases in which a public undertaking or an undertaking treated as equivalent to a public undertaking (within the meaning of Article 90 (1) and (2) of the Treaty) is suspected of having engaged in an anti-competitive practice. Each national authority must determine, if necessary after consulting the Commission, whether a given case fits into one of these sub-categories.

51. Such cases will be investigated by national competition authorities in accordance with the procedures laid down by their national law, whether they are acting with a view to applying the Community competition rules or applying their national competition rules (32).

52. The Commission also takes the view that, like national courts to which competition cases involving Articles 85 or 86 have been referred, national competition authorities applying those provisions are always at liberty, within the limits of their national procedural rules and subject to Article 214 of the Treaty, to seek information from the Commission on the state of any proceedings which the Commission may have set in motion and as to the likelihood of its giving an official ruling, pursuant to Regulation No 17, on cases which they are investigating on their own initiative. Under the same circumstances, national competition authorities may contact the Commission where the concrete application of Article 85 (1) or of Article 86 raises particular difficulties, in order to obtain the economic and legal information which the Commission is in a position to supply to them (33).

53. The Commission is convinced that close cooperation with national authorities will forestall any contradictory decisions. But if, 'during national proceedings, it appears possible that the decision to be taken by the Commission at the culmination of a procedure still in progress concerning the same agreement may conflict with the effects of the decision of the national authorities, it is for the latter to take the appropriate measures` (Walt Wilhelm) to ensure that measures implementing Community competition law are fully effective. The Commission takes the view that these measures should generally consist in national authorities staying their proceedings pending the outcome of the proceedings being conducted by the Commission. Where a national authority applies its national law, such a stay of proceedings would be based on the principles of the primacy of Community law (Walt Wilhelm) (34) and legal certainty, and where it applies Community law, on the principle of legal certainty alone. For its part, the Commission will endeavour to deal as a matter of priority with cases subject to national proceedings thus stayed. A second possibility may, however, be envisaged, whereby the Commission is consulted before adopting the national decision. The consultations would consist, due regard being had to the judgment in the Spanish banks case, in exchanging any documents preparatory to the decisions envisaged, so that Member States' authorities might be able to take account of the Commission's position in their own decision without the latter having to be deferred until such time as the Commission's decision has been taken.

Procedure

In respect of complaints

54. Since complainants cannot force the Commission to take a decision as to whether the infringement they allege has actually occurred, and since the Commission is entitled to reject a complaint which lacks a sufficient Community interest, national competition authorities should not have any special difficulty in handling complaints submitted initially to them involving matters that fall within the scope of the Community competition rules.

In respect of notifications

55. Although they form a very small percentage of all notifications to the Commission, special consideration needs to be given to notifications to the Commission of restrictive practices undergoing investigation by a national authority made for dilatory purposes. A dilatory notification is one where a firm, threatened with a decision banning a restrictive practice which a national authority is poised to take following an investigation under Article 85 (1) or under national law, notifies the disputed agreement to the Commission and asks for it to be exempted under Article 85 (3) of the Treaty. Such a notification is made in order to induce the Commission to initiate a proceeding under Articles 2, 3 or 6 of Regulation No 17 and hence, by virtue of Article 9 (3) of that Regulation, to remove from Member States' authorities the power to apply the provisions of Article 85 (1). The Commission will not consider a notification to be dilatory until after it has contacted the national authority concerned and checked that the latter agrees with its assessment. The Commission calls upon national authorities, moreover, to inform it of their own accord of any notifications they receive which, in their view, are dilatory in nature.

56. A similar situation arises where an agreement is notified to the Commission with a view to preventing the imminent initiation of national proceedings which might result in the prohibition of that agreement (35).

57. The Commission recognizes, of course, that a firm requesting exemption is entitled to obtain from it a decision on the substance of its request (see point 38). However, if the Commission takes the view that such notification is chiefly aimed at suspending the national proceedings, given its exclusive powers to grant exemptions it considers itself justified in not examining it as a matter of priority.

58. The national authority which is investigating the matter and has therefore initiated proceedings should normally ask the Commission for its provisional opinion on the likelihood of its exempting the agreement now notified to it. Such a request will be superfluous where, 'in the light of the relevant criteria developed by the case-law of the Court of Justice and the Court of First Instance and by previous regulations and decisions of the Commission, the national authority has ascertained that the agreement, decision or concerted practice at issue cannot be the subject of an individual exemption` (36).

59. The Commission will deliver its provisional opinion on the likelihood of an exemption being granted, in the light of a preliminary examination of the questions of fact and law involved, as quickly as possible once the complete notification is received. Examination of the notification having revealed that the agreement in question is unlikely to qualify for exemption under Article 85 (3) and that its effects are mainly confined to one Member State, the opinion will state that further investigation of the matter is not a Commission priority.

60. The Commission will transmit this opinion in writing to the national authority investigating the case and to the notifying parties. It will state in its letter that it will be highly unlikely to take a decision on the matter before the national authority to which it was referred has taken its final decision and that the notifying parties retain their immunity from any fines the Commission might impose.

61. In its reply, the national authority, after taking note of the Commission's opinion, should undertake to contact the Commission forthwith if its investigation leads it to a conclusion which differs from that opinion. This will be the case if, following its investigation, the national authority concludes that the agreement in question should not be banned under Article 85 (1) of the Treaty or, if that provisions cannot be applied, under the relevant national law. The national authority should also undertake to forward a copy of its final decision on the matter to the Commission. Copies of the correspondence will be sent to the competition authorities of the other Member States for information.

62. The Commission will not itself initiate proceedings in the same case before the proceedings pending before the national authority have been completed; in accordance with Article 9 (3) of Regulation No 17, such action would have the effect of taking the matter out of the hands of the national authority. The Commission will do this only in quite exceptional circumstances - in a situation where, against all expectations, the national authority is liable to find that there has been no infringement of Articles 85 or 86 or of its national competition law, or where the national proceedings are unduly long drawn-out.

63. Before initiating proceedings the Commission will consult the national authority to discover the factual or legal grounds for that authority's proposed favourable decision or the reasons for the delay in the proceedings.

V. CONCLUDING REMARKS

64. This Notice is without prejudice to any interpretation by the Court of First Instance and the Court of Justice.

65. In the interests of effective, consistent application of Community law throughout the Union, and legal simplicity and certainty for the benefit of undertakings, the Commission calls upon those Member States which have not already done so to adopt legislation enabling their competition authority to implement Articles 85 (1) and 86 of the Treaty effectively.

66. In applying this Notice, the Commission and the competent authorities of the Member States and their officials and other staff will observe the principle of professional secrecy in accordance with Article 20 of Regulation No 17.

67. This Notice does not apply to competition rules in the transport sector, owing to the highly specific way in which cases arising in that sector are handled from a procedural point of view (37).

68. The actual application of this Notice, especially in terms of the measures considered desirable to facilitate its implementation, will be the subject of an annual review carried out jointly by the authorities of the Member States and the Commission.

69. This Notice will be reviewed no later than at the end of the fourth year after its adoption.

(1) Case T-24/90 Automec v. Commission ('Automec II`) [1992] ECR II-2223, paragraph 85.

(2) Case 127/73 BRT v. SABAM [1974] ECR 51, paragraph 16.

(3) Case 63/75 Fonderies Roubaix-Wattrelos v. Fonderies A. Roux [1976] ECR 111.

(4) Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty (OJ C 39, 13. 2. 1993, p. 6).

(5) Automec II, see footnote 1; paragraph 85.

(6) Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty; OJ 13, 21. 2. 1962, p. 204/62 (English Special Edition 1959-62, p. 87).

(7) Now by the Court of First Instance and, on appeal, by the Court of Justice.

(8) Negative clearance.

(9) Termination of infringements - prohibition decisions.

(10) Decisions pursuant to Article 85 (3).

(11) Case 14/68 Walt Wilhelm and Others v. Bundeskartellamt [1969] ECR 1, paragraph 4.

(12) Walt Wilhelm, see footnote 11; paragraph 6; Case 66/86 Ahmed Saeed Flugreisen and Others v. Zentrale Zur Bekämpfung Unlauteren Wettbewerbs [1989] ECR 803, paragraph 48.

(13) Case C-165/91 Van Munster v. Rijksdienst voor Pensioenen [1994] ECR I-4661, paragraph 32.

(14) Case 99/79 Lancôme v. Etos [1980] ECR 2511, paragraph 11, cited in the abovementioned notice on cooperation between national courts and the Commission in applying Articles 85 and 86.

(15) Fourth Report on Competition Policy 1974, point 45.

(16) Case C-266/93 [1995] ECR I-3477; see also the Opinion of Advocate-General Tesauro in the same case, paragraph 51.

(17) Joined Cases 253/78 and 1 to 3/79 Procureur de la République v. Giry and Guerlain [1980] ECR 2327, paragraph 18.

(18) It is possible that an agreement, 'although it does not relate either to imports or to exports between Member States` within the meaning of Article 4 of Regulation No 17, 'may affect trade between Member States` within the meaning of Article 85 (1) of the Treaty (judgment of the Court of Justice in Case 43/69 Bilger v. Jehle [1970] ECR 127, paragraph 5).

(19) Automec II, see footnote 1; paragraph 75.

(20) Case T-23/90 Peugeot v. Commission [1991] ECR II-653, paragraph 47.

(21) Automec II, see footnote 1; paragraph 75.

(22) Automec II, se footnote 1; paragraph 85; cited in Case T-114/92 BEMIM v. Commission [1995] ECR II-147, paragraph 80, and in Case T-77/95 SFEI and Others v. Commission [1997] ECR II-1, paragraphs 29 and 55.

(23) See in particular Case 125/78, GEMA v. Commission [1979] ECR 3173, paragraph 17, and Case T-16/91, Rendo and Others v. Commission [1992] ECR II-2417, paragraph 98.

(24) Automec II, see footnote 1; paragraph 82.

(25) Automec II, see footnote 1; paragraph 85.

(26) Automec II, see footnote 1; paragraph 86, cited in BEMIM, paragraph 80.

(27) See footnote 22; paragraph 86.

(28) See footnote 18.

(29) However, in the case of information accompanied by a request for confidentiality with a view to protecting the informant's anonymity, an institution which accepts such information is bound, under Article 214 of the Treaty, to comply with such a condition (Case 145/83 Adams v. Commission [1985] ECR 3539). The Commission will thus not divulge to national authorities the name of an informant who wishes to remain anonymous unless the person concerned withdraws, at the Commission's request, his request for anonymity vis-à-vis the national authority which may be dealing with his complaint.

(30) Case C-67/91 Dirección General de Defensa de la Competencia v. Asociación Española de Banca Privada (AEB) and Others [1992] ECR I-4785, operative part.

(31) See footnote 30; paragraphs 39 and 43.

(32) See footnote 30; paragraph 32.

(33) Case C-234/89 Delimitis v. Henninger Bräu [1991] ECR I-935, paragraph 53.

(34) See footnote 11; paragraphs 8, 9 and 5 respectively.

(35) With respect to agreements not subject to notification pursuant to point 1 of Article 4 (2) of Regulation No 17, points 56 and 57 of this Notice also apply mutatis mutandis to express requests for exemption.

(36) Points 29 and 30 of the Notice on cooperation between national courts and the Commission.

(37) Council Regulation No 141/62 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ 124, 28. 11. 1962, p. 2753; English Special Edition 1959-62, p. 291), as amended by Regulations Nos 165/65/EEC (OJ 210, 11. 12. 1965, p. 314) and 1002/67/EEC (OJ 306, 16. 12. 1967, p. 1); 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; English Special Edition 1968 I, p. 302); Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ L 378, 31. 12. 1986, p. 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); and Commission Regulation (EC) No 870/95 of 20 April 1995 on the application of Article 85 (3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) pursuant to Council Regulation (EEC) No 479/92 (OJ L 89, 21. 4. 1995, p. 7).