Communication pursuant to Article 33 of 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

(2003/C 243/03)

(Text with EEA relevance)

The Commission invites all interested parties to send their comments on the draft Commission Regulation (EC) relating to proceedings by the Commission pursuant to Articles 81 and 82 of the EC 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 Brussels

Draft Commission Regulation relating to proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to the Agreement on the European Economic Area,

Having regard to 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(1), and in particular Article 33 thereof,

Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions,

Whereas:

(1) The adoption of Council Regulation (EC) No 1/2003 empowers the Commission to regulate certain aspects of proceedings for the application of Articles 81 and 82 of the Treaty. It is necessary to lay down rules concerning the initiation of proceedings by the Commission as well as the handling of complaints and the hearing of the parties concerned.

(2) According to Regulation No 1/2003, national courts are under an obligation to avoid taking decisions which could run counter decisions envisaged by the Commission. According to Article 11(6) of that Regulation, national competition authorities are relieved from their competence once the Commission has initiated proceedings. In this context, it is important that courts and competition authorities of the Member States are aware of the initiation of proceedings by the Commission. The Commission should therefore be able to publish its decisions to initiate proceedings.

(3) When the Commission takes oral statements from any natural or legal person, the persons interviewed should be informed of the purpose of the interview and of any record which may be made. In order to guarantee the accuracy of the statements, the person interviewed should also be given an opportunity to correct the statement recorded.

(4) Regulation No 1/2003 states that fines may be imposed on undertakings if they fail to rectify within the time limit fixed by the Commission an incorrect, incomplete or misleading answer given by a member of the staff to questions in the course of inspections. It is therefore necessary to provide the record of the statement to the undertaking and to establish a procedure enabling it to add any rectification to the answers given by its staff. The answers given by a member of staff should remain in the Commission file as recorded during the inspection.

(5) Complaints are an essential source of information for detecting infringements to competition rules. It is important to define clear and efficient procedures for handling complaints lodged with the Commission.

(6) In order to be admissible as a complaint pursuant to Article 7 of Regulation (EC) No 1/2003, a complaint must contain certain specified information.

(7) In order to assist complainants in submitting the necessary facts to the Commission, a form should be drawn up. The submission of the information listed in that form should be a condition for a complaint to be treated as a complaint pursuant to Article 7 of Regulation (EC) No 1/2003. Natural or legal persons having chosen that procedure should be given the possibility to be associated closely to the proceedings initiated by the Commission with a view to finding an infringement. However, they should not have access to business secrets or other confidential information belonging to other parties involved in the proceedings.

(8) Complainants should be granted the opportunity of expressing their views if the Commission considers that there are insufficient grounds for acting on the complaint. However, where the Commission rejects a complaint on the grounds that a competition authority of a Member State is dealing with it or has already done so, it should inform the complainant of the identity of that authority.

(9) In order to respect the rights of defence of undertakings, the Commission should give the undertakings and the associations of undertakings concerned the right to be heard before it takes a decision.

(10) Provision should also be made for the hearing of parties that are neither complainants pursuant to Article 7 of Regulation (EC) No 1/2003 nor parties to the proceeding but can nevertheless show a sufficient interest.

(11) To improve the effectiveness of oral hearings, the Hearing Officer should have the power to allow the parties, complainants, third parties invited to the hearing, the Commission services and the authorities of the Member States to ask questions during the hearing.

(12) When granting access to the file, the Commission should ensure the protection of business secrets and other confidential information. The Commission should be able to request undertakings that have submitted documents or statements to identify confidential information.

(13) Where business secrets and confidential information are necessary to prove an infringement, the Commission should balance the interest in the protection of such information and the public interest in having the infringement of the competition rules terminated. To that end, it should assess for each individual document whether the need to disclose is greater than the harm which might result from disclosure.

(14) In the interest of legal certainty, a minimum time-limit for the various submissions provided for in this Regulation should be laid down.

(15) This Regulation replaces Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty(2) which should therefore be repealed.

(16) This Regulation aligns the procedural rules in the transport sector with the general rules of procedure in all sectors. Commission Regulation (EC) No 2843/98 of 22 December 1998 on the form, content and other details of applications and notifications provided for in Council Regulations (EEC) No 1017/68(3), (EEC) No 4056/86(4) and (EEC) No 3975/87(5) applying the rules on competition to the transport sector(6) should therefore be repealed.

(17) Regulation (EC) No 1/2003 abolishes the notification and authorisation system. Commission Regulation (EC) No 3385/94 of 21 December 1994 on the form, content and other details of applications and notifications provided for in Council Regulation No 17(7) should be repealed,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SCOPE OF APPLICATION

Article 1

Subject-matter and scope

This regulation applies to proceedings conducted by the Commission pursuant to Articles 81 and 82 of the Treaty.

CHAPTER II

INITIATION OF PROCEEDINGS

Article 2

Initiation of proceedings

1. The Commission may decide to initiate proceedings with a view to adopting a decision pursuant to Articles 7 to 10 of Regulation (EC) No 1/2003 at any point in time but no later than the issuing of a statement of objections to the undertakings concerned or the publication of a notice pursuant to Article 27(4) of that Regulation.

2. The initiation of proceedings may be published in the Official Journal of the European Union or made public in any other appropriate way.

3. It is not necessary for the Commission to initiate proceedings before exercising its powers of investigation pursuant to Chapter V of Regulation (EC) No 1/2003.

4. It is not necessary for the Commission to initiate proceedings in order to reject a complaint pursuant to Article 7 of Regulation (EC) No 1/2003.

CHAPTER III

INVESTIGATIONS BY THE COMMISSION

Article 3

Power to take statements

1. Where the Commission interviews a person with his/her consent in accordance with Article 19 of Regulation (EC) No 1/2003, it shall, at the beginning of the interview, state the legal basis and the purpose of the interview. It shall also inform the person interviewed of its intention to make a record of the interview. The interview may be conducted by any means including by telephone or electronic means.

2. The Commission may record the statements made by the persons interviewed in any form.

3. A copy of any recording shall be made available to the person interviewed. The Commission shall set a time-limit within which the person interviewed may communicate to it any correction to be made to the statement.

Article 4

Oral questions during inspections

1. When, pursuant to Article 20(2)(e) of Regulation (EC) No 1/2003, officials or other accompanying persons authorised by the Commission ask representatives or members of staff of an undertaking or of an association of undertakings for explanations, the explanations given may be recorded in any form.

2. A copy of any recording made pursuant to paragraph 1 shall be made available to the undertaking or association of undertakings concerned after the inspection.

3. In cases where a member of staff of an undertaking or of an association of undertakings who is not or was not authorised by the undertaking or by the association of undertakings to make statements on behalf of the undertaking has been interviewed, the Commission shall set a time-limit within which the undertaking or the association of undertakings can communicate to the Commission any rectification to be added to the statement made by such member of staff.

CHAPTER IV

HANDLING OF COMPLAINTS

Article 5

Admissibility of complaints

1. Natural and legal persons shall show a legitimate interest in order to be entitled to lodge a complaint pursuant to Article 7 of Regulation (EC) No 1/2003.

2. Complaints lodged by natural or legal persons pursuant to Article 7 of Regulation (EC) No 1/2003 shall contain the information required by form C. The Commission may dispense with the obligation to provide part of the information, including documents, required by form C where the Commission considers that such information is not necessary for the examination of the case.

3. Three paper copies as well as, if possible, an electronic copy of the complaint shall be submitted to the Commission. The complainant shall also submit a non-confidential version of the complaint.

4. Complaints shall be submitted in one of the official languages of the Union.

Article 6

Participation of complainants in proceedings pursuant to Article 7 of Regulation (EC) No 1/2003

1. Where the Commission issues a statement of objections relating to a matter in respect of which it has received a complaint, it shall provide the complainant with a copy of the non-confidential version of the statement of objections and set a time-limit within which the complainant may make known its views in writing.

2. The Commission may, where appropriate, afford complainants the opportunity of expressing their views at the oral hearing of the parties to which a statement of objections has been issued, if complainants so request in their written comments.

Article 7

Rejection of complaints

1. Where the Commission, having received a complaint, considers that on the basis of the information in its possession there are insufficient grounds for acting on the complaint, it shall inform the complainant of its reasons and set a time-limit within which the complainant may make known its views in writing. The Commission shall not be obliged to take into account any further written submission received after that date.

2. If the complainant makes known its views within the time-limit set by the Commission and the written submissions made by the complainant do not lead to a different assessment of the complaint, the Commission shall reject the complaint by decision.

3. If the complainant fails to make known its views within the time-limit set by the Commission, the complaint shall be deemed to have been withdrawn.

Article 8

Rejections of complaints pursuant to Article 13 of Regulation (EC) No 1/2003

Where the Commission, having received a complaint made under Article 7 of Regulation (EC) No 1/2003, rejects it pursuant to Article 13 of the Council Regulation (EC) No 1/2003, it shall inform the complainant without delay of the national competition authority which is dealing or has already dealt with the case.

Article 9

Access to information

1. Where the Commission has informed the complainant of its intention to reject a complaint the complainant may request access to the documents on which the Commission bases its provisional assessment. The complainant may however not have access to business secrets and other confidential information belonging to other parties involved in the proceedings.

2. The documents to which the complainant has had access in the context of proceedings conducted by the Commission under Articles 81 and 82 of the Treaty may only be used by the complainant for the application of those Treaty provisions.

CHAPTER V

EXERCISE OF THE RIGHT TO BE HEARD

Article 10

Statement of objections and replies from the undertakings and associations of undertakings

1. The Commission shall inform the undertakings and/or associations of undertakings concerned in writing of the objections raised against them. The statement of objections shall be notified to each of them.

2. The Commission shall, when notifying the statement of objections to the undertakings and/or associations of undertakings, set a time-limit within which the undertakings and/or associations of undertakings may inform it in writing of their views. The Commission shall not be obliged to take into account written submissions received after that date.

3. The parties may in their written submissions set out all facts known to them which are relevant to their defence against the objections raised by the Commission. They shall attach any relevant documents as proof of the facts set out. They shall provide three paper copies as well as, if possible, an electronic copy of their submission and of the documents attached to it. They may propose that the Commission hear persons who may corroborate the facts set out in their submission.

Article 11

Right to be heard

1. The Commission shall give the parties to whom it has addressed a statement of objections the opportunity to be heard before consulting the Advisory Committee referred to in Article 14(1) of Regulation (EC) No 1/2003.

2. The Commission shall in its decisions deal only with objections in respect of which the undertakings and/or associations of undertakings have been afforded the opportunity of making their views known.

Article 12

Right to an oral hearing

The Commission shall afford undertakings and/or associations of undertakings to whom a statement of objections has been addressed the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions.

Article 13

Hearing of third parties

1. If parties other than those referred to in Articles 5 and 11 apply to be heard and show a sufficient interest, the Commission shall inform them in writing of the nature and subject matter of the procedure and shall set a date by which they may make known their views in writing.

2. The Commission may, where appropriate, invite parties referred to in paragraph 1, to develop their arguments at the oral hearing of the undertakings and/or associations of undertakings against whom objections have been raised, if they so request in their written comments.

3. The Commission may afford to any other third party which shows a sufficient interest the opportunity of orally expressing their views at the oral hearing of the parties against whom objections have been raised.

4. The Commission may invite any other person to express its views in writing and/or at the oral hearing of the parties against whom objections have been raised.

Article 14

Conduct of oral hearings

1. Hearings shall be conducted by a Hearing Officer in full independence.

2. The Commission shall invite the persons to be heard to attend the oral hearing on such date as it shall determine.

3. The Commission shall invite the competition authorities of the Member States to take part in the oral hearing. It may likewise invite officials and civil servants of other authorities of the Member States.

4. Persons invited to attend shall either appear in person or be represented by legal representatives or by representatives authorised by their constitution as appropriate. Undertakings and associations of undertakings may also be represented by a duly authorised agent appointed from among their permanent staff.

5. Persons heard by the Commission may be assisted by their lawyers or other qualified persons admitted by the Hearing Officer.

6. Oral hearings shall not be public. Each person may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information.

7. The Hearing Officer may allow the parties, the complainants, third parties invited to the hearing, the Commission services and the authorities of the Member States to ask questions during the hearing.

8. The statements made by each person heard shall be recorded. Upon request, the recording of the hearing shall be made available to the persons who attended the hearing. Regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information.

CHAPTER VI

ACCESS TO THE FILE AND TREATMENT OF CONFIDENTIAL INFORMATION

Article 15

Access to the file and use of documents

1. If so requested, the Commission shall grant access to the file to the undertakings and/or associations of undertakings to whom the Commission has addressed a statement of objections. Access shall be granted after the notification of the statement of objections.

2. The right of access to the file shall not extend to internal documents of the Commission or of the competition authorities of the Member States. The right of access to the file shall equally not extend to correspondence between the Commission and the competition authorities of the Member States or between the latter where such correspondence is contained in the file of the Commission.

3. Nothing in this Regulation prevents the Commission from disclosing and using information necessary to prove an infringement of Articles 81 or 82 of the Treaty.

4. Documents obtained through access to the file pursuant to this Article may only be used for the application of Articles 81 and 82 of the Treaty.

Article 16

Identification and protection of confidential information

1. Information, including documents, shall not be communicated or made accessible by the Commission in so far as it contains business secrets or other confidential information of any person.

2. The Commission may request undertakings and associations of undertakings which have produced documents or statements pursuant to Regulation (EC) No 1/2003 to identify the documents or parts of documents which they consider to contain business secrets or other confidential information belonging to them and to identify the undertakings with regard to which such documents are to be considered confidential. The Commission may also request undertakings or associations of undertakings to identify any part of a statement of objections, a case summary drawn up pursuant to Article 27(4) of Regulation (EC) No 1/2003 or a decision adopted by the Commission which in their view contains business secrets.

3. The Commission may set a time-limit within which the undertakings and associations of undertakings shall:

(a) substantiate their claim for confidentiality with regard to each individual document or part of document, statement or part of statement;

(b) provide the Commission with a non-confidential version of the documents or statements, in which the confidential passages are deleted;

(c) provide a concise description of each piece of deleted information.

4. If the undertakings or associations of undertakings fail to comply with the requests referred to in paragraphs 2 and 3, the documents or statements concerned shall be deemed not to contain confidential information.

Article 17

Settlement of disagreements on confidential information

Without prejudice to Article 15(3), where the Commission intends to disclose information provided by an undertaking or by an association of undertakings, which the undertaking and/or association of undertakings considers to be confidential, it shall inform them in writing of its intention and of its reasons. The Commission shall set a time-limit within which the undertaking may inform it in writing of its views. If the undertaking and/or association of undertakings continues to object to the disclosure, the Commission shall adopt a decision on the disclosure of the given piece of information which shall be notified to the undertaking concerned.

CHAPTER VII

GENERAL AND FINAL PROVISIONS

Article 18

Time-limits

1. In setting the time-limits provided for in Articles 3(3), 4(3), 6(1), 7(1), 10(2), 16(3) and 17, the Commission shall have regard both to the time required for preparation of the submission and to the urgency of the case.

2. The time-limit referred to in Articles 6(1), 7(1) and 10(2) shall be at least four weeks. However, for proceedings initiated with a view to adopting interim measures pursuant to Article 8 of Regulation (EC) No 1/2003, this time-limit may be shortened to one week.

3. The time-limit referred to in Articles 3(3), 4(3), 16(3) and 17 shall be at least two weeks.

Article 19

Repeals

1. Regulations (EC) No 2842/98, (EC) No 2843/98 and (EC) No 3385/94 are repealed.

2. References to the repealed regulations shall be construed as references to this Regulation.

Article 20

Transitional provisions

Procedural steps taken under Regulations (EC) No 2842/98 and (EC) No 2843/98 shall continue to have effect for the purpose of applying this Regulation.

Article 21

Entry into force

This Regulation shall enter into force on 1 May 2004.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, ...

(1) OJ L 1, 4.1.2003, p. 1.

(2) OJ L 354, 30.12.1998, p. 18.

(3) Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ L 175, 23.7.1968, p. 1). Regulation as last amended by the Act of Accession of 1994.

(4) Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 81 and 82 of the Treaty to maritime transport (OJ L 378, 31.12.1986, p. 4). Regulation as last amended by the Act of Accession of 1994.

(5) Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ L 374, 31.12.1987, p. 1). Regulation as last amended by Regulation (EEC) No 2410/92 (OJ L 240, 24.8.1992, p. 18).

(6) OJ L 354, 30.12.1998, p. 22.

(7) OJ L 377, 31.12.1994, p. 28.

ANNEX

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