Communication inviting third parties to submit observations on draft Commission notices

(2003/C 243/04)

(Text with EEA relevance)

The Commission invites all interested parties to send their comments on the following texts:

1. Draft Commission Notice on cooperation within the Network of Competition Authorities;

2. Draft Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC;

3. Draft Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EU Treaty;

4. Draft Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters);

5. Draft Commission Notice - Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty;

6. Draft Commission Notice - Guidelines on the application of Article 81(3) of the Treaty.

These comments should be sent to the Commission not later than eight weeks after the date of the publication in the Official Journal of the European Union. It is standard Commission practice to publish the submissions received in response to a public consultation. However it is possible to request that submissions or parts thereof remain confidential. Should this be the case, please indicate clearly on the front page of the submission that you request it should not be made publicly available. In this case a non-confidential version of the submission should also be forwarded to the Commission for publication. Comments should be sent either by e-mail to:

COMP-MODERNISATION-PACKAGE@cec.eu.int

Or in writing to: European Commission Directorate-General for Competition

Unit A 3 -- European Competition Network

Modernisation package

B - 1049 Brussel.

Draft Commission Notice on cooperation within the Network of Competition Authorities

I. INTRODUCTION

1. Council Regulation (EC) No 1/2003 (hereafter the "Council Regulation") creates a system of parallel competences in which the Commission and the Member States' competition authorities (hereafter the "NCAs")(1) can apply Article 81 and Article 82 of the EC Treaty. Together the NCAs and the Commission form a network of public authorities: they act in the public interest and cooperate closely in order to protect competition. The network is a forum for discussion and cooperation for the enforcement of EC competition policy. It provides a framework for the cooperation of European competition authorities in cases where Articles 81 and 82 of the EC Treaty are applied and is the basis for the maintenance of a common competition culture in Europe. The network is called "European Competition Network" (ECN).

2. The structure of the NCAs varies between Member States. In some Member States, one body investigates cases and takes all types of decisions. In other Member States, the functions are divided between two bodies, one which is in charge of the investigation of the case and another, often a college, which is responsible for deciding the case. Finally, in certain Member States, prohibition decisions and/or decisions imposing a fine can only be taken by a court: the competition authority acts as a prosecutor bringing the case before that court. Subject to the general principle of effectiveness, Article 35 of the Council Regulation allows Member States to choose the body or bodies which will be designated as national competition authorities and to allocate functions between them. Under general principles of Community law, Member States are under an obligation to set up a sanctioning system providing for sanctions which are effective, proportionate and dissuasive for infringements of EC law. The enforcement systems of the Member States differ but they have recognised the standards of each other's system as a basis for cooperation(2).

3. The network formed by the competition authorities should ensure both an efficient division of work and an effective and consistent application of EC competition rules. The Council Regulation together with the joint statement of the Council and the Commission on the functioning of the European Competition Network sets out the main principles of the functioning of the network. This notice presents the details of the system.

4. Consultations and exchanges within the network is a matter between public enforcers and does not alter any rights or obligations arising from Community or national law for companies. Each competition authority remains fully responsible for ensuring the due process of cases it deals with.

II. DIVISION OF WORK

A. Principles of allocation

5. The Council Regulation is based on a system of parallel competences in which all competition authorities have the power to apply Articles 81 or 82 of the EC Treaty and are responsible for an efficient division of work with respect to those cases where an investigation is deemed to be necessary. At the same time each network member retains full discretion in deciding whether or not to investigate a case. Under this system of parallel competences, cases will be dealt with by:

- a single NCA, possibly with the assistance of NCAs of other Member States; or

- several NCAs acting in parallel; or

- the Commission.

6. In most instances the authority that receives a complaint or starts an ex-officio-proceeding will remain in charge of the case. Re-allocation of a case would only be envisaged at the outset of proceedings (see paragraph 18) where either this authority considers that it is not well placed to act or where other authorities consider themselves also well placed to act (see points 8 to 15 below).

7. Where re-allocation is found to be necessary for an effective protection of competition and of the Community interest, network members will endeavour to re-allocate cases to a single well placed competition authority as often as possible(3). In any event, re-allocation should be a quick and efficient process and will not hold up ongoing investigations.

8. An authority can be considered to be well placed to deal with a case if the following three cumulative conditions are met:

1. the agreement or practice has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory;

2. the authority is able to effectively bring to an end the entire infringement i.e. it can adopt a cease and desist order the effect of which will be sufficient to bring an end to the infringement and it can, where appropriate, sanction the infringement adequately;

3. it can gather, possibly with the assistance of other authorities, the evidence required to prove the infringement.

9. The above criteria indicate that a material link between the infringement and the territory of a Member State must exist in order for that Member State's competition authority to be considered well placed. It can be expected that in most cases the authorities of those Member States where competition is substantially affected by an infringement will be well placed provided they are capable of effectively bringing the infringement to an end through either single or parallel action unless the Commission is better placed to act (see below paragraphs 14 and 15).

10. It follows that a single NCA is usually well placed to deal with agreements or practices that substantially affect competition mainly within its territory.

Example 1: Undertakings situated in Member State A are involved in a price fixing cartel on products that are mainly sold in Member State A.

The NCA in A is well placed to deal with the case.

11. Furthermore single action of an NCA might also be appropriate where, although more than one NCA can be regarded as well placed, the action of a single NCA is sufficient to bring the entire infringement to an end.

Example 2: Two undertakings have set up a joint venture in Member State A. The joint venture provides services in Member States A and B and gives rise to a competition problem. A cease and desist order is considered to be sufficient to deal with the case effectively because it can bring an end to the entire infringement. Evidence is located mainly at the offices of the joint venture in Member State A.

The NCAs in A and B are both well placed to deal with the case but single action by the NCA in A would be sufficient and more efficient than single action by the NCA in B or parallel action by both NCAs.

12. Parallel action by two or three NCAs may be appropriate where an agreement or practice has substantial effects on competition mainly in their respective territories and the action of only one NCA would not be sufficient to bring the entire infringement to an end and/or to sanction it adequately.

Example 3: Two undertakings agree on a market sharing agreement, restricting the activity of the company located in Member State A to Member State A and the activity of the company located in Member State B to Member State B.

The NCAs in A and B are well placed to deal with the case in parallel, each one for its respective territory.

13. The authorities dealing with a case in parallel action may find it useful to designate one of them as a lead authority and may agree to delegate tasks to the lead authority such as for example the coordination of investigative measures and the information of the parties involved.

14. The Commission is particularly well placed if one or several agreement(s) or practice(s), including networks of similar agreements or practices, have effects on competition in more than three Member States (cross-border markets covering more than three Member States or several national markets).

Example 4: Two undertakings agree to share markets or fix prices for the whole territory of the Community. The Commission is well placed to deal with the case.

Example 5: An undertaking, dominant in four different national markets, abuses its position by imposing fidelity rebates on its distributors in all these markets. The Commission is well placed to deal with the case. It could also deal with one national market so as to create a "leading" case and other national markets could be dealt with by NCAs particularly if each national market requires a separate assessment.

15. Moreover, the Commission is to be considered particularly well placed if Community interest requires the adoption of a Community decision to develop Community competition policy or to ensure effective enforcement or if a case is closely linked to other Community provisions which are more efficiently applied by the Commission or for which the Commission has exclusive competence.

B. Mechanisms of cooperation for the purpose of case allocation and assistance

1. Information at the beginning of the procedures (Article 11(3))

16. In order to detect multiple proceedings and to ensure that cases are dealt with by a well placed competition authority, the members of the network have to be informed at an early stage of the cases pending before the various competition authorities. If a case is to be reallocated, it is indeed in the best interest both of the network and of the undertakings concerned that the reallocation takes place quickly.

17. The Council Regulation creates a mechanism for the competition authorities to inform each other in order to ensure an efficient and quick re-allocation of cases. Article 11(3) of the Regulation lays down an obligation for NCAs to inform the Commission before or without delay after commencing the first formal investigative measure. It also states that the information may be made available to other NCAs(4). The rationale of Article 11(3) is to allow the network to detect multiple proceedings and address possible case re-allocation issues as soon as an authority starts investigating a case. Information should therefore be provided before or just after any step similar to the measures of investigation that can be undertaken by the Commission under Articles 18 to 21 of the Council Regulation is/has been taken. The obligation to inform the Commission applies in all cases where Article 81 or Article 82 of the EC Treaty is applied. The Commission has an equivalent obligation by virtue of Article 11(2) of the Regulation.

18. Where case re-allocation issues arise, they should be resolved swiftly, normally within a period of two months starting from the date of the first information sent to the network pursuant to Article 11, paragraph 2 or 3. During this period, competition authorities will endeavour to reach an agreement on a possible re-allocation and, where relevant, on the modalities for parallel action.

19. In general, the competition authority or authorities that is/are dealing with a case at the end of the re-allocation period should continue to deal with the case until the completion of the proceedings. Re-allocation of a case after the initial allocation period of two months should only occur where the facts known about the case change materially during the course of the proceedings.

2. Stay or closure of proceedings (Article 13)

20. If the same agreement or practice is brought before several competition authorities, be it because they have received a complaint or have opened a procedure on their own initiative, Article 13 of the Council Regulation provides a legal basis for suspending a proceeding or rejecting a complaint on the grounds that another authority is dealing with the case or has dealt with the case. In Article 13, "dealing with the case" does not merely mean that a complaint has been lodged with another authority. It means that the other authority is investigating or has investigated the case on its own behalf.

21. Article 13 applies when another authority has dealt with or foresees to deal with the competition issue raised by the complainant, even if the authority in question has acted or acts on the basis of a complaint lodged by a different complainant or as a result of an ex-officio-proceeding. This implies that Article 13 can be invoked when the agreement or practice involves the same infringement(s) on the same relevant geographic and product markets.

22. An NCA may suspend or close its proceedings but it has no obligation to do so. Article 13 leaves scope for appreciation of the peculiarities of each individual case. This flexibility is important: if a complaint was rejected by an authority following an investigation of the substance of the case, another authority may not want to re-examine the case. On the other hand, if a complaint was rejected for other reasons (e.g. the authority was unable to collect the evidence necessary to prove the infringement), another authority may wish to carry out its own investigation and deal with the case. This flexibility is also reflected, for pending cases, in the choice open to each NCA as to whether it closes or suspends its proceedings. An authority may be unwilling to close a case before the outcome of another authority's proceedings is clear. The ability to suspend its proceedings allows the authority to retain its ability to decide at a later point whether or not to terminate its proceedings. Such flexibility also facilitates consistent application of the rules.

23. Where an authority closes or suspends proceedings because another authority is dealing with the case, it may transfer the information provided by the complainant to the authority which is to deal with the case on the basis of Article 12 of the Council Regulation.

24. Article 13 can also be applied to part of a complaint or to part of a proceeding. It may be that only part of a complaint or of an ex-officio proceeding overlaps with a case already dealt or being dealt with by another competition authority. In that case, the competition authority to which the complaint is brought is entitled to reject part of the complaint on the basis of Article 13 and to deal with the rest of the complaint in an appropriate manner. The same principle applies to the termination of proceedings.

25. Article 13 is not the only legal basis for suspending or closing ex officio proceedings or rejecting complaints. NCAs may also be able to do so according to their national procedural law. The Commission may also reject a complaint for lack of Community interest or other reasons pertaining to the nature of the complaint(5).

3. Exchange and use of confidential information (Article 12)

26. A key element of the functioning of the network is the power of all the competition authorities to exchange and use information (including documents, statements and digital information) which have been collected by them for the purpose of applying Article 81 or Article 82 of the EC Treaty. This power is a precondition for efficient and effective allocation and handling of cases.

27. Article 12 of the Council Regulation states that for the purpose of applying Articles 81 and 82 of the EC Treaty, the Commission and the competition authorities of the Member States shall have the power to provide one another with and use in evidence any matter of fact or of law, including confidential information. This means that exchanges of information may not only take place between an NCA and the Commission but also between and amongst NCAs. Article 12 takes precedence over any contrary law of a Member State.

28. This exchange of information contains, however, a number of safeguards for undertakings and individuals.

(a) First, Article 28 states that "the Commission and the competition authorities of the Member States, their officials and other servants (...) shall not disclose information acquired or exchanged by them pursuant to the" Council Regulation which is "of the kind covered by the obligation of professional secrecy". However, the legitimate interest of undertakings in the protection of their business secrets may not prejudice the disclosure of information necessary to prove an infringement of Articles 81 and 82 of the EC Treaty (see Article 27(2) of Regulation (EC) No 1/2003). The term "professional secrecy" used in Article 28 of the Council Regulation is a Community law concept and covers in particular business secrets and other confidential information. This will create a common minimum level of protection throughout the Community.

(b) The second safeguard given to undertakings relates to the use of information which has been exchanged within the network. Under Article 12(2), information so exchanged can only be used in evidence for the application of Articles 81 and 82 of the EC Treaty and for the subject matter for which it was collected(6). According to Article 12(2), the information exchanged may also be used for the purpose of applying national competition law in parallel in the same case. This is, however, only possible if the application of national law does not lead to an outcome as regards the finding of an infringement different from that under Articles 81 and 82 of the EC Treaty.

(c) The third safeguard given by the Council Regulation relates to sanctions on individuals on the basis of information exchanged pursuant to Article 12(1). Regulation (EC) No 1/2003 only provides for sanctions on undertakings for violations of Articles 81 and 82. Some national laws also provide for sanctions on individuals in connection with violations of Articles 81 and 82. Individuals enjoy normally more extensive rights of defence (e.g. a right to remain silent compared to undertakings which may only refuse to answer questions which would lead them to admit that they have committed an infringement(7)). Article 12(3) ensures that information collected from undertakings cannot be used in a way which would circumvent the higher protection of individuals. This provision precludes sanctions being imposed on individuals on the basis of information exchanged pursuant to the Regulation if the transmitting and the receiving authorities do not provide for sanctions of a similar kind in respect of individuals unless the rights of the individual concerned have been respected by the transmitting authority to the same standard as they are guaranteed by the receiving authority as regards the collection of evidence. The qualification of the sanctions by national law ("administrative" or "criminal") is not relevant for the purpose of applying Article 12(3). The Regulation intends to create a distinction between sanctions which result in custody and other types of sanctions such as fines on individuals and other personal sanctions. If both the legal system of the transmitting and of the receiving authority provide for sanctions of the same kind (e.g. in both Member States, fines can be imposed on a member of the staff of an undertaking who has been involved in the violation of Article 81 or 82), information exchanged pursuant to Article 12 can be used by the receiving authority. In that case, procedural safeguards in both systems are considered to be equivalent. If on the other hand, both legal systems do not provide for sanctions of a similar kind, the information can only be used if the same level of protection of the rights of the individual has been respected in the case at hand (see Article 12(3) of Regulation (EC) No 1/2003). In that latter case however, custodial sanctions can only be imposed where both the transmitting and the receiving authority have the power to impose such sanction.

4. Investigations (Article 22)

29. The Council Regulation foresees the possibility for an NCA to ask another NCA for assistance in order to collect information on its behalf. An NCA can ask another NCA to carry out fact-finding measures on its behalf. Article 12 of the Council Regulation empowers the assisting NCA to transmit the information it has collected to the requesting NCA. Any exchange between or amongst NCAs and use in evidence by the requesting NCA of such information shall be carried out in accordance with Article 12 of the Regulation. Where an NCA acts on behalf of another NCA, it acts pursuant to its own rules of procedure, and under its own powers of investigation.

30. Under Article 22(2), the Commission can request an NCA to carry out an inspection on its behalf. The Commission can either adopt a decision pursuant to Article 20(4) or simply issue a request to the NCA. The agents of the Commission may assist the NCA during the inspection.

C. Position of undertakings

1. General

31. All network members will endeavour to make allocation of cases a quick and efficient process. Given the fact that the Council Regulation has created a system of parallel competences, the allocation of cases between members of the network constitutes a mere division of labour where some authorities abstain from acting. Allocation of cases therefore does not create individual rights for companies involved in or affected by an infringement to have a case dealt with by a particular authority.

32. If a case is re-allocated to a given competition authority, it is because the application of the allocation criteria set out above led to the conclusion that this authority is well placed to deal with the case by single or parallel action. The competition authority to which the case is re-allocated would have been in a position, in any event, to commence ex officio proceedings against the infringement.

33. Furthermore, all competition authorities apply Community competition law and the Council Regulation sets out mechanisms to ensure that the rules are applied in a consistent way.

34. If a case is reallocated within the network, the undertakings concerned and the complainant(s) are informed as soon as possible by the competition authorities involved.

2. Position of complainants

35. If a complaint is lodged with the Commission pursuant to Article 7 of the Council Regulation and if the Commission does not investigate the complaint or prohibit the agreement or practice complained of, the complainant has a right to obtain a decision rejecting his complaint without prejudice to Article 7(3) of the Commission implementing regulation(8). The rights of complainants who lodge a complaint with an NCA are governed by the applicable national law.

36. In addition, Article 13 of the Council Regulation gives all NCAs the possibility of suspending or rejecting a complaint on the ground that another competition authority is dealing or has dealt with the same case. That provision also allows the Commission to reject a complaint on the ground that a competition authority of a Member State is dealing or has dealt with the case. Article 12 allows the transfer of information between competition authorities inside the network subject to the safeguards provided in that Article (see paragraph 28).

3. Position of applicants claiming the benefit of a leniency programme

37. The Commission considers(9) that it is in the Community interest to grant favourable treatment to undertakings which cooperate with it in the investigation of cartel infringements. A number of Member States have also adopted leniency programmes(10) relating to cartel investigations. The aim of these leniency programmes is to facilitate the detection by competition authorities of cartel activity and also thereby to act as a deterrent to participation in unlawful cartels.

38. An application for leniency to a given authority is not to be considered as an application for leniency to any other authority. It is therefore in the interest of the applicant to apply for leniency to all competition authorities which have competence to apply Article 81 of the EC Treaty in the territory which is affected by the infringement and which may be considered well placed to act against the infringement in question(11). In view of the importance of timing in most existing leniency programmes, applicants will also need to consider whether it would be appropriate to file leniency applications with the relevant authorities simultaneously. It is for the applicant to take the steps which it considers appropriate to protect its position with respect to possible proceedings by these authorities.

39. As for all cases where Articles 81 and 82 are applied, where an NCA deals with a case which has been initiated as a result of a leniency application, it must inform the Commission and may make the information available to other members of the network pursuant to Article 11(3). The Commission has an equivalent obligation by virtue of Article 11(2) of the Regulation. In such cases, however, information submitted to the network pursuant to Article 11 will not be used by other members of the network as the basis for starting an investigation on their own behalf whether under the competition rules of the Treaty or, in the case of NCAs, under their national competition or other laws. This is without prejudice to any power of the authority to open an investigation on the basis of information received from other sources(12).

40. Save as provided below(13), information voluntarily submitted by a leniency applicant will only be transmitted to another member of the network pursuant to Article 12 with the consent of the applicant. Other information that has been obtained as a result of an inspection or other fact-finding measure which could not have been carried out except as a result of the leniency application will also not be transmitted to another authority pursuant to Article 12 unless the applicant has consented to the transmission to that authority of information it has voluntarily submitted in its application for leniency. The network members will encourage leniency applicants to give such consent, in particular as regards disclosure to authorities in respect of which it would be open to the applicant to obtain lenient treatment. Once the leniency applicant has given consent to the transmission of information to another authority, that consent may not be withdrawn. This paragraph is without prejudice, however, to the responsibility of each applicant to file leniency applications to whichever authorities it may consider appropriate.

41. Notwithstanding the above, the consent of the applicant for the transmission of information to another authority pursuant to Article 12 is not required in any of the following circumstances:

1. No consent is required where the receiving authority has also received a leniency application relating to the same infringement from the same applicant as the transmitting authority, provided that at the time the information is transmitted it is not open to the applicant to withdraw the information which it has submitted to that receiving authority.

2. No consent is required where the receiving authority has provided a written commitment not to use either any information transmitted to it or any other information it may obtain following the date and time of transmission as noted by the transmitting authority, to impose sanctions:

(a) on the leniency applicant;

(b) on any other legal or natural person covered by the favourable treatment offered by the transmitting authority as a result of the application made by the applicant under its leniency programme;

(c) on any employee or former employee of any of the persons covered by (a) and (b).

A copy of the receiving authority's written commitment will be provided to the applicant.

3. In the case of information collected by a network member under Article 22(1) on behalf of and for the account of the network member to whom the leniency application was made, no consent is required for the transmission of such information to, and its use by, the network member to whom the application was made.

42. The principles set out above will be abided by the Commission and by the network members who will have committed themselves to respect them.

III. CONSISTENT APPLICATION OF EC COMPETITION RULES(14)

A. Mechanism of cooperation (Articles 11(4) and 11(5))

43. Within the network of competition authorities the Commission has the ultimate but not the sole responsibility for ensuring consistent application of EC competition law.

44. According to Article 11(4), no later than 30 days before adopting a decision of application of Article 81 or 82 requiring that an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block-exemption regulation, NCAs shall inform the Commission. They have to send to the Commission, at the latest 30 days before the adoption of the decision, a summary of the case, the envisaged decision or, in the absence thereof, any other document indicating the proposed course of action.

45. As under Article 11(3), the obligation is to inform the Commission, but the information may be shared by the NCA informing the Commission with the other members of the network.

46. Where an NCA has informed the Commission and the 30 days deadline has expired, it can adopt its decision as long as the Commission has not initiated proceedings. The Commission may make written observations on the case before the adoption of the decision by the NCA.

47. If special circumstances require that a national decision is taken in less than 30 days following the transmission of information pursuant to Article 11(4), the NCA concerned may ask the Commission for a swifter reaction. The Commission will endeavour to react as quickly as possible.

48. Other types of decisions, i.e. decisions rejecting complaints, decisions closing an ex officio procedure or decisions ordering interim measures, can also be important from a competition policy point of view, and the network can have an interest in discussing them. NCAs can therefore on the basis of Article 11(5) inform the Commission and thereby inform the network of any other case in which EC competition law is applied.

49. All members of the network should inform each other about the closure of their proceedings which have been notified to the network pursuant to Article 11(3)(15).

B. The initiation of proceedings by the Commission under Article 11(6)

50. According to the established case law of the Court of Justice, the Commission, entrusted by Article 85(1) of the EC Treaty with the task of ensuring the application of the principles laid down in Articles 81 and 82 of the EC Treaty, is responsible for defining and implementing the orientation of Community competition policy(16). It can adopt individual decisions under Articles 81 and 82 of the EC Treaty at any time.

51. Article 11(6) of the Council Regulation states that the initiation by the Commission of proceedings for the adoption of a decision under the Regulation shall relieve all NCAs of their competence to apply Articles 81 and 82 of the EC Treaty. This means that once the Commission has opened proceedings, NCAs cannot act under the same legal basis against the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market.

52. The initiation of a proceeding by the Commission is a formal act(17) by which the Commission indicates its intention to adopt a decision under Chapter III of the Council Regulation. It can occur at any stage of the investigation of the case by the Commission. The mere fact that the Commission has received a complaint is not in itself sufficient to relieve NCAs of their competence.

53. Two situations can arise. First, where the Commission is the first competition authority to initiate proceedings in a case for the adoption of a decision under the Council Regulation, national competition authorities may no longer deal with the case. Article 11(6) of the Council Regulation provides that once the Commission has initiated a procedure, the NCAs can no longer start their own procedure with a view to applying Articles 81 and 82 of the EC Treaty to the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market.

54. The second situation is where one or more NCAs have informed the network pursuant to Article 11(3) that they are acting on a given case. During the initial allocation period (indicative time period of two months, see above point 18), the Commission can initiate proceedings with the effects of Article 11(6) after having consulted the authorities concerned. After the allocation phase, the Commission will in principle only apply Article 11(6) if one of the following situations arises:

(a) Network members envisage conflicting decisions in the same case.

(b) Network members envisage a decision which is obviously in conflict with consolidated case law; the standards defined in the judgements of the Community courts and in previous decisions and regulations of the Commission should serve as a yardstick; concerning the assessment of the facts (e.g. market definition), only a significant divergence will trigger an intervention of the Commission;

(c) Network member(s) is (are) unduly drawing out proceedings

(d) There is a need to adopt a Commission decision to develop Community competition policy in particular when a similar competition issue arises in several Member States or to ensure effective enforcement;

(e) The NCA(s) concerned do not object.

55. If an NCA is already acting on a case, the Commission will explain the reasons for the application of Article 11(6) of the Regulation in writing to the NCA concerned and to the other members of the Network(18).

56. The Commission will announce to the network its intention of applying Article 11(6) in due time, so that Network members have the possibility of asking for a meeting of the Advisory Committee on the matter before the Commission initiates proceedings.

57. The Commission will normally not - and to the extent that Community interest is not at stake - adopt a decision which is in conflict with a decision of an NCA after proper information pursuant to both Article 11(3) and (4) has taken place and the Commission has not made use of Article 11(6).

IV. THE ROLE AND THE FUNCTIONING OF THE ADVISORY COMMITTEE IN THE NEW SYSTEM

58. The Advisory Committee is the forum where experts from the various competition authorities discuss individual cases and general issues of Community competition law(19).

A. Scope of the consultation

1. Decisions of the Commission

59. The Advisory Committee is consulted prior to the Commission taking any decision pursuant to Articles 7, 8, 9, 10, 23, 24(2) or 29(1). The Commission must take the utmost account of the opinion of the Advisory Committee and inform the Committee of the manner in which its opinion has been taken into account.

60. For decisions adopting interim measures, the Advisory Committee is consulted following a swifter and lighter procedure, on the basis of a short explanatory note and the operative part of the decision.

2. Decisions of NCAs

61. It is in the interest of the network that important cases dealt with by NCAs under Articles 81 and 82 of the EC Treaty can be discussed in the Advisory Committee. The Council Regulation enables the Commission to put a given case being dealt with by an NCA on the agenda of the Advisory Committee. Discussion can be requested by the Commission or by any Member State. In either case, the Commission will put the case on the agenda after having informed the NCA(s) concerned. This discussion in the Advisory Committee will not lead to a formal opinion.

62. In important cases, the Advisory Committee could also serve as a forum for the discussion of case allocation. In particular, where the Commission intends to apply Article 11(6) after the initial allocation period, the case can be discussed in the Advisory Committee before the Commission initiates proceedings. The Advisory Committee may issue an informal statement on the matter.

3. Implementing measures, block-exemption regulations, guidelines and other notices (art. 33 of the Council Regulation)

63. The Advisory Committee will be consulted on draft Commission regulations as provided for in the relevant Council Regulations.

64. Beside regulations, the Commission may also adopt notices and guidelines. These more flexible tools are very useful for defining competition policy and explaining how rules are to be applied in individual cases. The Advisory Committee will also be consulted on these notices and guidelines.

B. Procedure

1. Normal procedure

65. For consultation on Commission draft decisions, the meeting of the Advisory Committee takes place at the earliest 14 days after the invitation to the meeting is sent by the Commission. The Commission attaches to the invitation a summary of the case, a list of the most important documents, i.e. the documents needed to assess the case, and a draft decision. The Advisory Committee gives an opinion on the Commission draft decision. At the request of one or several members, the opinion shall be reasoned.

66. The Council Regulation introduces the possibility for the Member States to agree upon a shorter period of time between the sending of the invitation and the meeting.

2. Written procedure

67. The Council Regulation has created the possibility of a written consultation procedure. If no Member State objects, the Commission can consult the Member States by sending the documents to them and setting a deadline within which they can comment on the draft. This deadline would not normally be shorter than 14 days, except for decisions on interim measures pursuant to Article 8 of Regulation (EC) No1/2003. Where a Member State requests that a meeting takes place, the Commission will arrange for such meeting.

C. Publication of the opinion of the Advisory Committee

68. The Advisory Committee can recommend the publication of its opinion. In that event, the Commission will carry out such publication simultaneously with the decision, taking into account the legitimate interest of undertakings in the protection of their business secrets.

V. FINAL REMARKS

69. This Notice is without prejudice to any interpretation of the applicable Treaty and regulatory provisions by the Court of First Instance and the Court of Justice.

70. This Notice will be the subject of periodic review carried out jointly by the NCAs and the Commission. On the basis of the experience acquired, it will be reviewed no later than at the end of the third year after its adoption.

71. This notice replaces the Commission notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 81 and 82 of the EC Treaty published in 1997(20).

(1) In this notice, the European Commission and the NCAs are collectively referred to as "the competition authorities".

(2) See paragraph 8 of the Joint Statement of the Council and the Commission on the functioning of the network available from the Council register at http://register.consilium.eu.int (document No 15435/02 ADD 1).

(3) See Recital 18 of the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(4) The intention of making any information exchanged pursuant to Article 11 available and easily accessible to all Network members is however expressed in the Joint Statement on the functioning of the network mentioned above in footnote 2.

(5) See Commission notice on complaints.

(6) See Case 85/87 Dow Benelux v Commission of the European Communities [1989] ECR 3137 (points 17-20).

(7) See Case 374/87 Orkem v Commission of the European Communities [1989] ECR 3283 and Case T-112/98 Mannesmannröhren-Werke AG v Commission of the European Communities [2000] ECR II-729.

(8) Commission Regulation (EC) No .../2004 of ... (OJ L ..., ... 2004).

(9) OJ C 45, 19.2.2002, p. 3 at paragraph 3.

(10) In this Notice, the term "leniency programme" is used to describe all programmes (including the Commission's programme) which offer either full immunity or a significant reduction in the penalties which would otherwise have been imposed on a participant in a cartel, in exchange for the freely volunteered disclosure of information on the cartel which satisfies specific criteria prior or during the investigative stage of the case. The term does not cover reductions in penalty granted for other reasons.

(11) See above points to 8 to 15.

(12) Similarly, information transmitted with a view to obtaining assistance from the receiving authority under Articles 20 or 21 of Regulation (EC) No 1/2003 or of carrying out an investigation or other fact-finding measure under Article 22 of that Regulation may only be used for the purposes of the application of the said Articles.

(13) See point 41.

(14) Article 15 of Regulation (EC) No 1/2003 empowers NCAs and the Commission to submit written and, with the permission of the Court, oral submissions in court proceedings for the application of Articles 81 and 82. This is a very important tool for ensuring consistent application of Community rules. In exercising this power NCAs and the Commission will cooperate closely.

(15) See point 24 of the Joint Statement on the functioning of the network mentioned above in footnote 2.

(16) See Case C-344/98 Masterfoods Ltd v HB Ice Cream Ltd, [2000] ECR I-11369.

(17) The Court of justice has defined that concept in the case 48/72 SA Brasserie de Haecht v Wilkin-Janssen, [1973] ECR 77: "the initiation of a procedure within the meaning of Article 9 of Regulation No 17 implies an authoritative act of the Commission, evidencing its intention of taking a decision."

(18) See point 22 of the Joint Statement mentioned above.

(19) In accordance with Article 14(2), where horizontal issues such as block-exemption regulations and guidelines are being discussed, Member States can appoint an additional representative competent in competition matters and who does not necessarily belong to the competition authority.

(20) OJ C 313, 15.10.1997, p. 3.

Draft Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC

I. THE SCOPE OF THE NOTICE

1. The present notice addresses the co-operation between the Commission and the courts of the EU Member States, when the latter apply Articles 81 and 82 EC. For the purpose of this notice, the "courts of the EU Member States" (hereinafter "national courts") are those courts and tribunals within an EU Member State that can apply Articles 81 and 82 EC and that are authorised to ask a preliminary question to the Court of Justice of the European Communities pursuant to Article 234 EC(1).

2. The national courts may be called upon to apply Articles 81 or 82 EC in lawsuits between private parties, such as actions relating to contracts or actions on damages. They may also act as public enforcer or as review court. A national court may indeed be designated as a competition authority of a Member State (hereinafter "the national competition authority") pursuant to Article 35(1) of Regulation (EC) No 1/2003 (hereinafter "the regulation")(2). In that case, the co-operation between the national courts and the Commission is not only covered by the present notice, but also by the notice on the co-operation within the network of competition authorities(3).

II. THE APPLICATION OF EC COMPETITION RULES BY NATIONAL COURTS

A. The competence of national courts to apply EC competition rules

3. To the extent that national courts have jurisdiction to deal with a case(4), they have the power to apply Articles 81 and 82 EC(5). Moreover, since Articles 81 and 82 EC are a matter of public policy and are essential to the accomplishment of the tasks entrusted to the Community, and, in particular, for the functioning of the internal market(6), national courts which under their national law have to apply of their own motion national rules of public policy, should also apply Articles 81 and 82 EC of their own motion(7). Where national courts are not required but have the faculty to apply of their own motion binding domestic rules under the conditions set out in their national law when they exercise such faculty, they equally have to apply binding Community rules, such as Articles 81 and 82 EC, while respecting the same conditions set out in national law(8).

4. Depending on the functions attributed to them under national law, national courts may be called upon to apply Articles 81 and 82 EC in administrative, civil or criminal proceedings(9). In particular, where an individual asks the national court to safeguard his subjective rights, national courts play a specific role in the enforcement of Articles 81 and 82 EC, which is different from the enforcement in the public interest by the Commission or by national competition authorities(10). Indeed, national courts can draw the consequences resulting from an infringement of Article 81 or 82 EC on the enforcement of a contract or on claims for damages.

5. National courts can apply Articles 81 and 82 EC, without it being necessary to apply national competition law in parallel. However, where a national court applies national competition law to agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States within the meaning of Article 81(1) EC(11) or to any abuse prohibited by Article 82 EC, they also have to apply EC competition rules to those agreements, decisions or practices(12).

6. The regulation does not only empower the national courts to apply EC competition law. The parallel application of national competition law to agreements, decisions of associations of undertakings and concerted practices which affect trade between Member States may not lead to a different outcome from that of EC competition law. Article 3(2) of the regulation provides that agreements, decisions or concerted practices which do not infringe Article 81(1) EC or which fulfil the conditions of Article 81(3) EC cannot be prohibited either under national competition law(13). On the other hand, the Court of Justice has ruled that agreements, decisions or concerted practices that violate Article 81(1) and do not fulfil the conditions of Article 81(3) EC cannot be admitted under national law(14). As to the parallel application of national competition law and Article 82 EC in the case of unilateral conduct, Article 3 of the regulation does not provide for a similar convergence obligation. However, in case of conflicting decisions, the general principle of primacy of Community law requires national courts to disapply any provision of national law which contravenes a Community rule, regardless of whether that national law provision was adopted before or after the Community rule(15).

7. Apart from the application of Articles 81 and 82 EC, national courts are also competent to apply acts adopted by EU institutions in accordance with the EC Treaty or in accordance with the measures adopted to give the Treaty effect, to the extent that these acts have direct effect. National courts may thus have to enforce Commission decisions(16) or Commission regulations applying Article 81(3) EC to certain categories of agreements, decisions or concerted practices. When applying these EC competition rules, national courts act within the framework of Community law and are consequently bound to observe the general principles of Community law(17).

8. The application of Articles 81 and 82 EC by national courts often depends on complex economic and legal assessments(18). When applying EC competition rules, national courts are bound by the case law of the Community courts as well as by Commission regulations applying Article 81(3) EC to certain categories of agreements, decisions or concerted practices(19). Furthermore, the application of Articles 81 and 82 EC by the Commission in a specific case binds the national courts when they apply EC competition rules in the same case in parallel with or subsequent to the Commission(20). Finally, and without prejudice to the ultimate interpretation of the EC Treaty by the Court of Justice, national courts may find guidance in Commission regulations and decisions which present elements of analogy with the case they are dealing with, as well as in Commission notices and guidelines relating to the application of Articles 81 and 82 EC(21) and in the annual report on competition policy(22).

B. Procedural aspects of the application of EC competition rules by national courts

9. The procedural conditions for the enforcement of EC competition rules by national courts and the sanctions they can impose in case of an infringement of those rules, are largely covered by national law. However, to some extent, also Community law determines the conditions in which EC competition rules are enforced. Those Community law provisions may offer certain facilities to national courts, e.g. to ask the Commission's opinion on questions concerning the application of EC competition rules(23) or they may impose obligations on them, e.g. to allow the Commission and national competition authorities to submit written observations in proceedings pending before them(24). These Community law provisions prevail over national rules. As a consequence, national courts have to set aside national rules that prevent them from respecting Community law obligations or from using the facilities offered by Community law.

10. In the absence of Community law provisions on procedures and sanctions related to the enforcement of EC competition rules by national courts, the latter apply national procedural law and - to the extent that they are competent to do so - impose sanctions provided for under national law. However, the application of these national provisions must be compatible with the general principles of Community law. In this regard, it is useful to recall the case law of the Court of Justice, according to which:

(a) where there is an infringement of Community law, national law must provide for sanctions which are effective, proportionate and dissuasive(25);

(b) where the infringement of Community law causes harm to an individual, the latter should be able to ask the national court for damages(26);

(c) the rules on procedures and sanctions which national courts apply to enforce Community law

- must not make such enforcement excessively difficult or practically impossible (the principle of effectiveness)(27) and they

- must not be less favourable than the rules applicable to the enforcement of equivalent national law (the principle of equivalence)(28).

Because of the primacy of Community law, a national court may not apply national rules that are incompatible with these principles.

C. Parallel or consecutive application of EC competition rules by the Commission and by national courts

11. A national court may be applying EC competition law to an agreement, decision, concerted practice or unilateral behaviour affecting trade between Member States at the same time as the Commission or subsequent to the Commission(29). The following points outline some of the obligations national courts have to respect in those circumstances.

12. Where a national court comes to a decision before the Commission does, it must avoid adopting a decision that would conflict with a decision contemplated by the Commission(30). To that effect, the national court may ask the Commission whether it has initiated proceedings regarding the same agreements, decisions or practices(31) and if so, on the progress of proceedings and on the likelihood of a decision in that case(32). The national court may, for reasons of legal certainty, also consider staying its proceedings until the Commission has reached a decision(33). The Commission, for its part, will endeavour to give priority to cases for which it has decided to initiate proceedings within the meaning of Article 2(1) of Commission Regulation (EC) No ... and that are the subject of national proceedings stayed in this way, in particular when the outcome of a civil dispute depends on them. However, where the national court cannot reasonably doubt the Commission's contemplated decision or where the Commission has already decided on a similar case, the national court may decide on the case pending before it in accordance with that contemplated or earlier decision without it being necessary to ask the Commission the information mentioned above or to await the Commission's decision.

13. Where the Commission reaches a decision before the national court, the latter cannot take a decision running counter to that of the Commission. The binding effect of the Commission's decision is of course without prejudice to the interpretation of Community law by the Court of Justice. Therefore, if the national court doubts the legality of the Commission's decision, it cannot avoid the binding effects of that decision without a ruling to the contrary by the Court of Justice(34). Consequently, if a national court wants to take a decision that runs counter to that of the Commission, it must refer a question to the Court of Justice for a preliminary ruling (Article 234 EC). The latter will then decide on the compatibility of the Commission's decision with Community law. However, if the Commission's decision is challenged before the Community courts pursuant to Article 230 EC and the outcome of the dispute before the national court depends on the validity of the Commission's decision, the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings until the Community courts have adopted a definitive decision in the action for annulment against the Commission decision(35).

14. When a national court stays proceedings, e.g. awaiting the Commission's decision (situation described in point 12 of this notice) or pending final judgement by the Community courts in an action for annulment or in a preliminary ruling procedure (situation described in point 13), it is incumbent on it to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties(36).

III. THE CO-OPERATION BETWEEN THE COMMISSION AND NATIONAL COURTS

15. Different from the co-operation mechanism between the national courts and the Court of Justice under Article 234 EC, the EC Treaty does not explicitly provide for a co-operation between the national courts and the Commission. However, in its interpretation of Article 10 EC, which obliges the Member States to facilitate the achievement of the Community's tasks, the Community courts found that this Treaty provision imposes on the European institutions and the Member States mutual duties of loyal co-operation with a view to attaining the objectives of the EC Treaty. Article 10 EC thus implies that the Commission must assist national courts when they apply Community law(37). Equally, national courts may be obliged to assist the Commission in the fulfilment of its tasks.

16. It is also appropriate to recall the co-operation between national courts and national authorities, in particular national competition authorities, for the application of Articles 81 and 82 EC. While the co-operation between these national authorities is primarily governed by national rules, Article 15(3) of the regulation provides for the possibility for national competition authorities to submit observations before the national courts of their Member State. Points 31 and 33 to 35 of this notice are mutatis mutandis applicable to those submissions.

A. The Commission as amicus curiae

17. In order to assist national courts in the application of EC competition rules, the Commission is committed to help national courts where the latter find such help necessary to be able to decide on a case. Article 15 of the regulation refers to the most frequent types of such assistance: the transmission of information (points 21 to 25) and the Commission's opinions (points 27 to 30), both at the request of a national court and the possibility for the Commission to submit observations (points 31 to 35). Since the regulation provides for these types of assistance, it cannot be limited by any Member States' rule. However, in the absence of Community procedural rules to this effect and to the extent that they are necessary to facilitate these forms of assistance, Member States must adopt the appropriate procedural rules to allow both the national courts and the Commission to make full use of the possibilities the regulation offers(38).

18. The national court may send its request for assistance in writing to

European Commission Directorate General for Competition B - 1049 Brussels

or send it electronically to comp-amicus@cec.eu.int.

19. It should be recalled that whatever form the co-operation with national courts takes, the Commission will respect the independence of national courts. As a consequence, the assistance offered by the Commission does not bind the national court. The Commission has also to make sure that it respects its duty of professional secrecy and that it safeguards its own functioning and independence(39). Since Article 10 EC is aimed at assisting national courts in the application of EC competition rules, the Commission is committed to remaining neutral and objective in its assistance. Indeed, the Commission's assistance to national courts is part of its duty to defend the public interest. It has therefore no intention to serve the private interests of the parties involved in the case pending before the national court. As a consequence, the Commission will not hear any of the parties about its assistance to the national court. In case the Commission has been contacted by any of the parties in the case pending before the court on issues which are raised before the national court, it will inform the national court thereof, independent of whether these contacts took place before or after the national court's request for co-operation.

20. The Commission will publish a summary concerning its co-operation with national courts pursuant to this notice in its annual Report on Competition Policy.

1. The Commission's duty to transmit information to national courts

21. The duty for the Commission to assist national courts in the application of EC competition law is mainly reflected in the obligation for the Commission to transmit information it holds to national courts. A national court may, e.g., ask the Commission for documents in its possession or for information of a procedural nature to enable it to discover whether a certain case is pending before the Commission, whether the Commission has initiated a procedure or whether it has already taken a position. A national court may also ask the Commission when a decision is likely to be taken, so as to be able to determine the conditions for any decision to stay proceedings or whether interim measures need to be adopted(40).

22. In order to ensure the efficiency of the co-operation with national courts, the Commission will endeavour to provide the national court with the requested information within one month from the date it receives the request. Where the Commission has to ask the national court for further clarification of its request or where the Commission has to consult those who are directly affected by the transmission of the information, that period starts to run from the moment that it receives the required information.

23. In transmitting information to national courts, the Commission has to uphold the guarantees given to natural and legal persons by Article 287 EC(41). Article 287 EC prevents members, officials and other servants of the Commission from disclosing information covered by the obligation of professional secrecy. The information covered by professional secrecy may be both confidential information and business secrets. Business secrets are information of which not only disclosure to the public but also mere transmission to a person other than the one that provided the information might seriously harm the latter's interests(42).

24. The combined reading of Articles 10 and 287 EC does not lead to an absolute prohibition for the Commission to transmit information which is covered by the obligation of professional secrecy to national courts. The case law of the Community courts confirms that the duty of loyal co-operation requires the Commission to provide the national court with whatever information the latter asks for, even information covered by professional secrecy. However, in offering its co-operation to the national courts, the Commission may not in any circumstances undermine the guarantees laid down in Article 287 EC.

25. Consequently, before transmitting information covered by professional secrecy to a national court, the Commission will remind the court of the latter's obligation under Community law to uphold the rights which Article 287 EC confers on natural and legal persons and it will ask the court whether it can and will guarantee protection of confidential information and business secrets. If the national court cannot offer such guarantee, the Commission shall not transmit the information covered by professional secrecy to the national court(43). Only when the national court has offered a guarantee that it will protect the confidential information and business secrets, the Commission will transmit the information requested, indicating those parts which are covered by professional secrecy and which parts are not and can therefore be disclosed.

26. There are further exceptions to the disclosure of information by the Commission to national courts. Particularly, the Commission may refuse to transmit information to national courts for reasons relating to the need to safeguard the interests of the Community or to avoid any interference with its functioning and independence, in particular by jeopardising the accomplishment of the tasks entrusted to it(44).

2. Request for an opinion on questions concerning the application of EC competition rules

27. When called upon to apply EC competition rules to a case pending before it, a national court may first seek guidance in the case law of the Community courts or in Commission regulations, decisions, notices and guidelines applying Articles 81 and 82 EC(45). Where these tools do not offer sufficient guidance, the national court may ask the Commission for its opinion on questions concerning the application of EC competition rules. In order to ensure the efficiency of the co-operation with national courts, the Commission will endeavour to provide the national court with the requested opinion within four months from the date it receives the request. Where the Commission has to request the national court for further information in order to enable it to formulate its opinion, that period starts to run from the moment that it receives the additional information.

28. The national court may ask the Commission for its opinion on economic, factual and legal matters(46). The latter is of course without prejudice to the possibility or the obligation for the national court to ask the Court of Justice for a preliminary ruling regarding the interpretation or the validity of Community law in accordance with Article 234 EC.

29. When giving its opinion, the Commission will limit itself to providing the national court with the factual information or the economic or legal clarification asked for, without considering the merits of the case pending before the national court. Moreover, different from the authoritative interpretation of Community law by the Community courts, the opinion of the Commission does not legally bind the national court.

30. In line with what has been said in point 19 of this notice, the Commission will not hear the parties before formulating its opinion to the national court. The latter will have to deal with the Commission's opinion in accordance with the relevant national procedural rules, which have to respect the general principles of Community law.

3. The Commission's submission of observations to the national court

31. According to Article 15(3) of the regulation, the national competition authorities and the Commission may submit observations on issues relating to the application of Articles 81 or 82 EC to a national court, which is called upon to apply those provisions. The regulation distinguishes between written observations, which the national competition authorities and the Commission may submit on their own initiative, and oral observations, which can only be submitted with the permission of the national court(47).

32. The regulation specifies that the Commission will only submit observations when the coherent application of Articles 81 or 82 EC so requires. That being the objective of its submission, the Commission will limit its observations to an economic and legal analysis of the facts underlying the case pending before the national court.

33. In order to enable the Commission to submit useful observations, national courts may be asked to transmit or ensure the transmission to the Commission of a copy of all documents that are necessary for the assessment of the case(48). In line with Article 15(3), second subparagraph, of the regulation, the Commission will only use those documents for the preparation of its observations(49).

34. Since the regulation does not provide for a procedural framework within which the observations are to be submitted, Member States' procedural rules and practices determine the relevant procedural framework. Where a Member State has not yet established the relevant procedural framework, the national court has to determine which procedural rules are appropriate for the submission of observations in the case pending before it.

35. The procedural framework should respect the principles set out in point 10 of this notice. That implies amongst others that the procedural framework for the submission of observations on issues relating to the application of Articles 81 or 82 EC

(a) has to be compatible with the general principles of Community law, in particular the fundamental rights of the parties involved in the case;

(b) cannot make the submission of such observations excessively difficult or practically impossible (the principle of effectiveness)(50) and

(c) cannot make the submission of such observations more difficult than the submission of observations in court proceedings where equivalent national law is applied (the principle of equivalence).

B. The national courts facilitating the role of the Commission in the enforcement of EC competition rules

36. Since the duty of loyal co-operation also implies that Member States' authorities assist the European institutions with a view to attaining the objectives of the EC Treaty(51), the regulation provides for three examples of such assistance: (1) the transmission of documents necessary for the assessment of a case in which the Commission would like to submit observations (see point 33), (2) the transmission of judgements applying Articles 81 or 82 EC and (3) the role of national courts in the context of a Commission inspection.

1. The transmission of judgements of national courts applying Articles 81 or 82 EC

37. According to Article 15(2) of the regulation, Member States shall send to the Commission a copy of any written judgement of national courts applying Articles 81 or 82 EC without delay after the full written judgement is notified to the parties. The transmission of national judgements on the application of Articles 81 or 82 EC and the resulting information on proceedings before national courts primarily enable the Commission to become aware in a timely fashion of cases for which it might be appropriate to submit observations where one of the parties lodges an appeal against the judgement.

2. The role of national courts in the context of a Commission inspection

38. Finally, national courts may play a role in the context of a Commission inspection of undertakings and associations of undertakings. The role of the national courts depends on whether the inspections are conducted in business premises or in non-business premises.

39. With regard to the inspection of business premises, national legislation may require authorisation from a national court to allow a national enforcement authority to assist the Commission in case of opposition of the undertaking concerned. Such authorisation may also be sought as a precautionary measure. When dealing with the request, the national court has the power to control that the Commission's inspection decision 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 coercive measures, the national court may ask the Commission, directly or through the national competition authority, for detailed explanations in particular on the grounds the Commission has for suspecting infringement of Articles 81 and 82 EC, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned(52).

40. With regard to the inspection of non-business premises, the regulation requires the authorisation from a national court before a Commission decision ordering such an inspection can be executed. In that case, the national court may control that the Commission's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard in particular to the seriousness of the suspected infringement, to the importance of the evidence sought, to the involvement of the undertaking concerned and to the reasonable likelihood that business books and records relating to the subject matter of the inspection are kept in the premises for which the authorisation is requested. The national court may ask the Commission, directly or through the national competition authority, for detailed explanations on those elements that are necessary to allow its control of the proportionality of the coercive measures envisaged(53).

41. In both cases referred to in points 39 and 40 the national court may not call into question the lawfulness of the Commission's decision or the necessity for the inspection nor demand that it be provided with information in the Commission's file(54). Furthermore, the duty of loyal co-operation requires the national court to take its decision within an appropriate timeframe that allows the Commission to effectively conduct its inspection(55).

IV. FINAL PROVISIONS

42. This notice is issued in order to assist national courts in the application of Articles 81 and 82 EC. It does not bind the national courts, nor does it affect the rights and obligations of the EU Member States and natural or legal persons under Community law.

43. This notice replaces the 1993 notice on co-operation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty(56).

(1) For the criteria to determine which entities can be regarded as courts or tribunals within the meaning of Article 234 EC, see e.g. case C-516/99 Schmid [2002] ECR 4573, 34: "The Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent".

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(3) Notice on the co-operation within the network of competition authorities (OJ C ...). For the purpose of this notice, a "national competition authority" is the authority designated by a Member State in accordance with Article 35(1) of the regulation.

(4) The jurisdiction of a national court depends on national, European and international rules of jurisdiction. In this context, it may be recalled that Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (OJ L 12, 16.1.2001, p. 1) is applicable to all competition cases of a civil or commercial nature.

(5) See Article 6 of the regulation.

(6) See Articles 2 and 3 EC.

(7) Case C-126/97 Eco Swiss [1999] ECR I-3055, 35 to 40.

(8) Joined cases C-430/93 and C-431/93 van Schijndel [1995] ECR I-4705, 13 to 22.

(9) According to the last sentence of recital 8 of Regulation (EC) No 1/2003, the regulation only applies to national laws which impose criminal sanctions on natural persons to the extent that such sanctions are the means whereby competition rules applying to undertakings are enforced.

(10) Case T-24/90 Automec [1992] ECR II-2223, 85.

(11) For further clarification of the effect on trade concept, see the notice on this issue (OJ C ...).

(12) Article 3(1) of the regulation.

(13) See also the notice on the application of Article 81(3) EC (OJ C ...).

(14) Case 14/68 Walt Wilhelm [1969] ECR 1 and joined cases 253/78 and 1 to 3/79 Giry and Guerlain [1980] ECR 2327, 15 to 17.

(15) Case 106/77 Simmenthal [1978] ECR 629, 21 and case C-198/01 Consorzio Industrie Fiammiferi (CIF) [2003] ECR, 49.

(16) E.g. a national court may be asked to enforce a Commission decision taken pursuant to Articles 7 to 10, 23 and 24 of the regulation.

(17) See e.g. case 5/88 Wachauf [1989] ECR 2609, 19.

(18) Joined cases C-215/96 and C-216/96 Bagnasco [1999] ECR I-135, 50.

(19) Case 63/75 Fonderies Roubaix [1976] ECR 111, 9 to 11 and case C-234/89 Delimitis [1991] ECR I-935, 46.

(20) On the parallel or consecutive application of EC competition rules by national courts and the Commission, see also points 11 to 14.

(21) Case 66/86 Ahmed Saeed Flugreisen [1989] ECR 803, 27 and case C-234/89 Delimitis [1991] ECR I-935, 50. A list of Commission guidelines, notices and regulations in the field of competition policy, in particular the regulations applying Article 81(3) EC to certain categories of agreements, decisions or concerted practices, are annexed to this notice. For the decisions of the Commission making application of Articles 81 and 82 EC (since 1964), see http://www.europa.eu.int/comm/ competition/antitrust/cases/.

(22) Joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 32.

(23) On the possibility for national courts to ask the Commission for an opinion, see further in points 27 to 29.

(24) On the submission of observations, see further in points 31 to 35.

(25) Case 68/88 Commission v Greece [1989] ECR 2965, 23 to 25.

(26) On damages in case of an infringement by an undertaking, see case C-453/99 Courage and Crehan [2001] ECR 6297, 26 and 27. On damages in case of an infringement by a Member State or by an authority which is an emanation of the State and on the conditions of such state liability, see e.g. joined cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, 33 to 36; case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority [1993] ECR I-4367, 30 and 34 to 35; joined cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029; case C-392/93 British Telecommunications [1996] ECR I-1631, 39 to 46 and joined cases C-178/94, C-179/94 and C-188/94 to 190/94 Dillenkofer [1996] ECR I-4845, 22 to 26 and 72.

(27) See e.g. case 33/76 Rewe [1976] ECR 1989, 5; case 45/76 Comet [1976] ECR 2043, 12 and case 79/83 Harz [1984] ECR 1921, 18 and 23.

(28) See e.g. case 33/76 Rewe [1976] ECR 1989, 5; case 158/80 Rewe [1981] ECR 1805, 44; case 199/82 San Giorgio [1983] ECR 3595, 12 and case C-231/96 Edis [1998] ECR I-4951, 36 and 37.

(29) Article 11(6), juncto Article 35(3) and (4) of the regulation prevents a parallel application of Articles 81 or 82 EC by the Commission and a national court only when the latter has been designated as a national competition authority.

(30) Article 16(1) of the regulation.

(31) The Commission may publish in the Official Journal of the European Union the initiation of its proceedings with a view to adopting a decision pursuant to Article 7 to 10 of the regulation (see Article 2(2) of Commission Regulation (EC) No ... relating to proceedings pursuant to Articles 81 and 82 of the EC Treaty (OJ L ...)). According to the Court of Justice, the initiation of proceedings implies an authoritative act of the Commission, evidencing its intention of taking a decision (case 48/72 Brasserie de Haecht [1973] ECR 77, 16).

(32) Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34. See further on this issue in point 21 of this notice.

(33) See Article 16(1) of the regulation and case C-234/89 Delimitis [1991] ECR I-935, 47 and case C-344/98 Masterfoods [2000] ECR I-11369, 51.

(34) Case 314/85 Foto-Frost [1987] ECR 4199, 12 to 20.

(35) See Article 16(1) of the regulation and case C-344/98 Masterfoods [2000] ECR I-11369, 52 and 57.

(36) Case C-344/98 Masterfoods [2000] ECR, I-11369, 58.

(37) Case C-2/88 Imm Zwartveld [1990] ECR I-3365, 16 to 22 and case C-234/89 Delimitis [1991] I-935, 53.

(38) On the compatibility of such national procedural rules with the general principles of Community law, see points 9 and 10 of this notice.

(39) On these duties, see e.g. points 22 to 25 of this notice.

(40) Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34.

(41) Case C-234/89 Delimitis [1991] I-935, 53.

(42) Case T-353/94 Postbank [1996] ECR II-921, 86 and 87 and case 145/83 Adams [1985] ECR 3539, 34.

(43) Case C-2/88 Zwartveld [1990] ECR I-4405, 10 and 11 and case T-353/94 Postbank [1996] ECR II-921, 93.

(44) Case C-2/88 Zwartveld [1990] ECR I-4405, 10 and 11 and case C-275/00 First and Franex [2002] ECR I-10943, 49 and case T-353/94 Postbank [1996] ECR II-921, 93.

(45) See point 8 of this notice.

(46) Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34.

(47) According to Article 15(4) of the regulation, this is without prejudice to wider powers to make observations before courts conferred on national competition authorities under national law.

(48) Compare with case 96/81 Commission v the Netherlands [1982] ECR 1791, 7 and case 272/86 Commission v Greece [1988] ECR 4875, 30.

(49) See also Article 28(2) of the regulation, which prevents the Commission from disclosing the information it has acquired and which is covered by the obligation of professional secrecy.

(50) Joined cases 46/87 and 227/88 Hoechst [1989] ECR, 2859, 33. See also Article 15(3) of the regulation.

(51) Case C-69/90 Commission v Italy [1991] ECR 6011, 15.

(52) Article 20(6) to (8) of the regulation and case C-94/00 Roquette Frères [2002] ECR 9011.

(53) Article 21(3) of the regulation.

(54) Case C-94/00 Roquette Frères [2002] ECR 9011, 39 and 62 to 66.

(55) See also ibidem, 91 and 92.

(56) OJ C 39, 13.2.93, p. 6.

ANNEX

COMMISSION BLOCK EXEMPTION REGULATIONS, NOTICES AND GUIDELINES

This list is also available and updated on the website of the Directorate General for Competition of the European Commission:

http://europa.eu.int/comm/ competition/antitrust/legislation/

A. Non-sector specific rules

1. Notices of a general nature

- Notice on the definition of the relevant market for the purposes of Community competition law (OJ C 372, 9.12.1997, p. 5)

- Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) (OJ C 368, 22.12.2001, p. 13)

- Notice on the effect on trade concept contained in Articles 81 and 82 of the Treaty (OJ C ...)

- Guidelines on the application of Article 81(3) of the Treaty (OJ C ...)

2. Vertical agreements

- Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 29.12.1999, p. 21)

- Guidelines on Vertical Restraints (OJ C 291, 13.10.2000, p. 1)

3. Horizontal co-operation agreements

- Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of specialisation agreements (OJ L 304, 5.12.2000, p. 3)

- Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements (OJ L 304, 5.12.2000, p. 7)

- Guidelines on the applicability of Article 81 to horizontal co-operation agreements (OJ C 3, 6.1.2001, p. 2)

4. Licensing agreements for the transfer of technology

- Regulation (EC) No ... 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements (OJ L ...)

- Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements (OJ L ...)

B. Sector specific rules

1. Insurance

- Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector (OJ L 53, 28.2.2003, p. 8)

2. Motor vehicles

- Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (OJ L 203, 1.8.2002, p. 30)

3. Telecommunications and postal services

- Guidelines on the application of EEC competition rules in the telecommunications sector (OJ C 233, 6.9.1991, p. 2)

- Notice on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services (OJ C 39, 6.2.1998, p. 2)

- Notice on the application of the competition rules to access agreements in the telecommunications sector - Framework, relevant markets and principles (OJ C 265, 22.8.1998, p. 2)

- Guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services (OJ C 165, 11.7.2002, p. 6)

4. Transport

- Regulation (EEC) No 1617/93 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices concerning joint planning and co-ordination of schedules, joint operations, consultations on passenger and cargo tariffs on scheduled air services and slot allocation at airports (OJ L 155, 26.6.1993, p. 18)

- Communication on clarification of the Commission recommendations on the application of the competition rules to new transport infrastructure projects (OJ C 298, 30.9.1997, p. 5)

- Regulation (EC) No 823/2000 of 19 April 2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) (OJ L 100, 20.4.2000, p. 24)

Draft Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Regulation (EC) No 1/2003(1) establishes a system of parallel competence for the application of Articles 81 and 82 of the EC Treaty by the Commission and the Member States competition authorities and courts. The Regulation recognises in particular the complementary functions of the Commission and Member States' competition authorities acting as public enforcers and the Member States' courts that rule on private lawsuits in order to safeguard the rights of individuals deriving from Articles 81 and 82(2).

2. Under Regulation (EC) No 1/2003, the public enforcers may focus their action on the investigation of serious infringements of Articles 81 and 82 which are often difficult to detect. For their enforcement activity, they depend on information supplied by operators and by consumers in the market.

3. The Commission therefore wishes to encourage citizens and undertakings to address themselves to the public enforcers to inform them about suspected infringements of the competition rules. At the level of the Commission, there are two ways to do this, one is by lodging a complaint pursuant to Article 7 paragraph 2 of Regulation (EC) No 1/2003. Under Articles 5 to 9 of Regulation No [...](3), such complaints must fulfil certain requirements.

4. The other way is the provision of market information that does not have to comply with the requirements for complaints pursuant to Article 7 paragraph 2 of Regulation (EC) No 1/2003. For this purpose, the Commission has created a special website to collect information from citizens and undertakings and their associations who wish to inform the Commission about suspected infringements of Articles 81 and 82. Such information can be the starting point for an investigation by the Commission(4). Information about suspected infringements can be supplied to the following address:

http://europa.eu.int/dgcomp/ info-on-anti-competitive-practices

or to: European Commission Competition DG B - 1049 Brussels.

5. Without prejudice to the interpretation of Regulation (EC) No 1/2003 and of Commission Regulation No [...] by the Community Courts, the present Notice intends to provide guidance to citizens and undertakings that are seeking relief from suspected infringements of the competition rules. The Notice contains two main parts:

- Part II gives indications about the choice between complaining to the Commission or bringing a lawsuit before a national court. Moreover, it recalls the principles related to the work-sharing between the Commission and the national competition authorities in the enforcement system established by Regulation (EC) No 1/2003 that are explained in the Notice on cooperation within the network of competition authorities(5).

- Part III explains the procedure for the treatment of complaints pursuant to Article 7(2) of Regulation (EC) No 1/2003 by the Commission.

6. This Notice does not address the following situations:

- complaints lodged by Member States pursuant to Article 7(2) of Regulation (EC) No 1/2003,

- complaints that ask the Commission to take action against a Member State pursuant to Article 86(3) in conjunction with Articles 81 or 82 of the Treaty,

- complaints relating to Article 87 of the Treaty on state aids,

- complaints relating to infringements by Member States that the Commission may pursue in the framework of Article 226 of the Treaty(6).

II. DIFFERENT POSSIBILITIES FOR LODGING COMPLAINTS ABOUT SUSPECTED INFRINGEMENTS OF ARTICLES 81 OR 82

A. Complaints in the new enforcement system established by Regulation (EC) No 1/2003

7. Depending on the nature of the complaint, a complainant may bring his complaint either to a national court or to a competition authority that acts as public enforcer. The present chapter of this Notice intends to help potential complainants to make an informed choice about whether to address themselves to the Commission, to one of the Member States' competition authorities or to a national court.

8. While national courts are called upon to safeguard the rights of individuals and are thus bound to rule on cases brought before them, public enforcers cannot investigate all complaints, but must set priorities in their treatment of cases. The Court of Justice has held that the Commission, entrusted by Article 85(1) of the EC Treaty with the task of ensuring application of the principles laid down in Articles 81 and 82 of the Treaty, is responsible for defining and implementing the orientation of Community competition policy and that, in order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it(7).

9. Regulation (EC) No 1/2003 empowers Member States' courts and Member States' competition authorities to apply Articles 81 and 82 in their entirety alongside the Commission. Regulation (EC) No 1/2003 pursues as one principal objective that Member States courts and competition authorities should participate effectively in the enforcement of Articles 81 and 82(8).

10. Moreover, Article 3 of Regulation (EC) No 1/2003 provides that Member States' courts and competition authorities have to apply Articles 81 and 82 to all cases of agreements or conduct that are capable of affecting trade between Member States to which they apply their national competition laws. In addition, Articles 11 and 15 of the Regulation create a range of mechanisms by which Member States' courts and competition authorities cooperate with the Commission in the enforcement of Articles 81 and 82.

11. In this new legislative framework, the Commission intends to refocus its enforcement resources along the following lines:

- enforce the EC competition rules in cases for which it is well placed to act(9), concentrating its resources on the most serious infringements(10);

- handle cases in relation to which the Commission should act with a view to define Community competition policy and/or to ensure coherent application of Articles 81 or 82.

B. The complementary roles of private and public enforcement

12. It has been consistently held by the Community Courts that national courts are called upon to safeguard the rights of individuals created by the direct effect of Articles 81(1) and 82(11).

13. Only national courts can decide upon the nullity or validity of contracts and only national courts can grant damages to an individual in case of an infringement of Articles 81 and 82. Under the case law of the Court of Justice, any individual can claim damages for loss caused to him by a contract or by conduct which restricts or distorts competition, in order to ensure the full effectiveness of the Community competition rules. Such actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community as they discourage undertakings from concluding or applying restrictive agreements or practices(12).

14. Regulation (EC) No 1/2003 takes express account of the fact that national courts have an essential part to play in applying the EC competition rules(13). By extending the power to apply Article 81(3) to national courts it removes the possibility for undertakings to delay national court proceedings by a notification to the Commission and thus eliminates an obstacle for private litigation that existed under Regulation No 17(14).

15. Without prejudice to the right or obligation of national courts to address a preliminary question to the Court of Justice in accordance with Article 234 EC, Article 15(1) of Regulation (EC) No 1/2003 provides expressly that national courts may ask for opinions or information from the Commission. This provision aims at facilitating the application of Articles 81 and 82 by national courts(15).

16. Action before national courts has the following advantages for complainants:

- National courts may award damages for loss suffered as a result of an infringement of Article 81 or 82.

- National courts may rule on claims for payment or contractual obligations based on an agreement that they examine under Article 81.

- It is for the national courts to apply the civil sanction of nullity of Article 81(2) in contractual relationships between individuals(16). They can in particular assess, in the light of the applicable national law, the scope and consequences of the nullity of certain contractual provisions under Article 81(2), with particular regard to all the other matters covered by the agreement(17);

- National courts are usually better placed than the Commission to adopt interim measures(18).

- Before national courts, it is possible to combine a claim under Community competition law with other claims under national law.

- Courts normally have the power to award legal costs to the successful applicant. This is never possible in an administrative procedure before the Commission.

17. The fact that a complainant can secure the protection of his rights by an action before a national court, is an important element that the Commission may take into account in its examination of the Community interest for investigating a complaint(19).

18. The Commission holds the view that the new enforcement system established by Regulation (EC) No 1/2003 strengthens the possibilities for complainants to seek and obtain effective relief before national courts.

C. Work-sharing between the public enforcers in the European Community

19. Regulation (EC) No 1/2003 creates a system of parallel competence for the application of Articles 81 and 82 by empowering Member States' competition authorities to apply Articles 81 and 82 in their entirety (Article 5). Decentralised enforcement by Member States' competition authorities is further encouraged by the possibility to exchange information (Article 12) and to provide each other assistance with investigations (Article 22).

20. The Regulation does not regulate the work-sharing between the Commission and the Member States' competition authorities but leaves the division of case work to the cooperation of the Commission and the Member States' competition authorities inside the European Competition Network (ECN). The Regulation pursues the objective of ensuring effective enforcement of Articles 81 and 82 through a flexible division of case work between the public enforcers in the Community.

21. Orientations for the work sharing between the Commission and the Member States' competition authorities are laid down in a separate Notice(20). The guidance contained in that Notice, which concerns the relations between the public enforcers, will be of interest to complainants as it permits them to address a complaint to the authority most likely to be well placed to deal with their case.

22. The Notice on cooperation within the Network of Competition Authorities states in particular(21):

"An authority can be considered to be well placed to deal with a case if the following three cumulative conditions are met:

- the agreement or practice has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory;

- the authority is able to effectively bring to an end the entire infringement i.e. it can adopt a cease and desist order the effect of which will be sufficient to bring an end to the infringement and it can, where appropriate, sanction the infringement adequately;

- it can gather, possibly with the assistance of other authorities, the evidence required to prove the infringement.

The above criteria indicate that a material link between the infringement and the territory of a Member State must exist in order for that Member State's competition authority to be considered well placed. It can be expected that in most cases the authorities of those Member States where competition is substantially affected by an infringement will be well placed provided they are capable of effectively bringing the infringement to an end through either single or parallel action unless the Commission is better placed to act (see below [...]).

It follows that a single NCA is usually well placed to deal with agreements or practices that substantially affect competition mainly within its territory. [...]

Furthermore single action of an NCA might also be appropriate where, although more than one NCA can be regarded as well placed, the action of a single NCA is sufficient to bring the entire infringement to an end. [...]

Parallel action by two or three NCAs may be appropriate where an agreement or practice has substantial effects on competition mainly in their respective territories and the action of only one NCA would not be sufficient to bring the entire infringement to an end and/or to sanction it adequately. [...]

The authorities dealing with a case in parallel action may find it useful to designate one of them as a lead authority and may agree to delegate tasks to the lead authority such as for example the coordination of investigative measures and the information of the parties involved.

The Commission is particularly well placed if one or several agreement(s) or practice(s), including networks of similar agreements or practices, have effects on competition in more than three Member States (cross-border markets covering more than three Member States or several national markets). [...]

Moreover, the Commission is to be considered particularly well placed if Community interest requires the adoption of a Community decision to develop Community competition policy or to ensure effective enforcement or if a case is closely linked to other Community provisions which are more efficiently applied by the Commission or for which the Commission has exclusive competence."

23. Within the European Competition Network, information on complaints will be made available to the other members of the network before or without delay after commencing the first formal investigative measure(22). Where the same complaint has been lodged with several authorities or where a case has not been lodged with an authority that is well placed, the members of the network endeavour to determine within an indicative time-limit of two months which authority or authorities should be in charge of the case.

24. Complainants themselves have an important role to play in further reducing the potential need for reallocation of a case originating from their complaint by referring to the orientations on work sharing in the network set out in the present chapter when deciding on where to lodge their complaint. If nonetheless a case is reallocated within the network, the undertakings concerned and the complainant(s) are informed as soon as possible by the competition authorities involved(23).

25. The Commission may reject a complaint in accordance with Article 13 of Regulation (EC) No 1/2003, on the grounds that a Member State