EN    EN EN 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 29.4.2009 
SEC(2009) 574 final 
  
COMMISSION STAFF WORKING PAPER  
accompanying the  
COMMUNICATION FROM THE CO MMISSION TO THE EUROPEAN 
PARLIAMENT AND COUNCIL 
Report on the functioning of Regulation 1/2003 
  
{COM(2009)206 final} 
EN 2   EN TABLE OF CONTENTS 
1. Introduction................................................................................................................ .. 6 
2. System change: from the notification system  to direct applicati on of Article 81(3) EC
............................................................................................................................... ....... 8 
2.1. Background ................................................................................................................ .. 8 
2.2. The change in system after 5 year s experience with Regulation 1/2003 ..................... 9 
2.2.1. The Commission’s enhanced priority setting............................................................... 9 2.2.2. Case practice under Article 81(3) EC ........................................................................ 11 2.2.3. Application of Article 81(3) EC by national comp etition authorities........................ 14 
2.2.4. Case practice of national courts ................................................................................. 15 2.3. Legal certainty debate and guidance practice ............................................................ 16 2.4. The rule on burden of proof in Article 2.................................................................... 18 3. Commission procedures – how the Co mmission has used its tools under the 
Regulation for effective enforcement......................................................................... 20 
3.1. Background ................................................................................................................ 20 
3.2. The Commission's increased investigative powers.................................................... 21 3.2.1. Introduction............................................................................................................ .... 21 
3.2.2. Sector inquiries........................................................................................................ ... 21 
3.2.3. Inspections in business premises................................................................................ 25 3.2.4. Commission inspections in  non-business premises ................................................... 26 
3.2.5. Legal professional privilege....................................................................................... 26 3.2.6. Inspections by national competition authoriti es at the request of the Commission... 27 
3.2.7. Requests for information............................................................................................ 28 3.2.8. Voluntary Interviews.................................................................................................. 28  
3.3. Types of Commission Decisions in  the new enforcement system............................. 28 
3.3.1. Prohibition decisions  (Article 7) ................................................................................ 29 
3.3.2. Commitment decisions (Article 9)............................................................................. 31 3.3.3. Effects of commitment decisions............................................................................... 34 3.3.4. Interim Measures (Article 8)...................................................................................... 35 3.3.5. Finding of inapplicabil ity (Article 10) ....................................................................... 36 
3.4. Handling of complaints.............................................................................................. 37 
EN 3   EN 3.4.1. General ................................................................................................................. ...... 37 
3.4.2. Non-priority complaints............................................................................................. 37 3.4.3. Involvement of complainants in priority cases .......................................................... 38 3.5. Fines and periodic penalty payments ......................................................................... 39 3.5.1. The Commission's power to impose fines.................................................................. 39 3.5.2. New developments..................................................................................................... 40 3.5.3. The Guidelines on fines ............................................................................................. 40 3.5.4. The 2006 Leniency Notice......................................................................................... 41 3.5.5. Settlement procedure.................................................................................................. 42  
3.5.6. Recovery of fines from members of associations of undertakings ............................ 42 
3.5.7. Fines for procedural infringements – seals case ........................................................ 43 3.5.8. Periodic penalty payments to enforce prohibition decisions...................................... 43 
4. Application of EC competition law in accordance with Article 3 of Regulation 
1/2003......................................................................................................................... 44 
4.1. Introduction.............................................................................................................. .. 44 
4.2. Obligation to apply Articles 81 and 82 EC ................................................................ 45 4.2.1. Effect on trade criterion and case record.................................................................... 45 4.2.2. Experience with parallel application.......................................................................... 47 4.3. The convergence rule ................................................................................................. 48 4.4. Exception from the convergence rule for unilateral conduct..................................... 49 4.4.1. National rules concerning economic dependence and similar situations................... 49 
4.4.2. Prohibition of resale be low cost or at loss ................................................................. 52 
4.4.3. Stricter national rules concerning do minance and dominant undertakings ............... 53 
4.4.4. Evaluation and feedback ............................................................................................ 54 4.5. Questions relating to the scope of Article 3............................................................... 55 5. Effective and coherent enforcement by mo re enforcers – the contribution of the 
Member States' competition authorities and the European Competition network 
(ECN) ......................................................................................................................... 5 6 
5.1. National competition authorities as enfo rcers of the EU competition rules .............. 56 
5.1.1. Enforcement record of the authorities in the ECN..................................................... 56 5.1.2. Evolving Structure of Nationa l Competition Authorities .......................................... 58 
5.1.3. Powers of the National Competition Aut horities to apply Articles 81 and 82 EC .... 60 
EN 4   EN 5.1.4. Powers of the National Competition Au thorities pursuant to Article 5..................... 60 
5.1.5. Convergence and Divergence of national competition authorities' powers............... 61 5.2. Cooperation between enforcers.................................................................................. 63 5.2.1. Work sharing in the network – principles.................................................................. 63 5.2.2. Work sharing – practical experience.......................................................................... 65 5.3. ECN cooperation in the field of leniency................................................................... 67 5.3.1. The ECN Model Leniency Programme...................................................................... 67 5.3.2. Way forward............................................................................................................. .. 69 
5.3.3. Safeguards for leniency information within the ECN................................................ 69 5.4. Cooperation for fact-finding purposes ....................................................................... 70 5.4.1. Information exchange pursuant to  Article 12 of Regulation 1/2003.......................... 70 
5.4.2. Assistance pursuant to Ar ticle 22 of Regulation 1/2003............................................ 72 
5.5. The ECN as a forum to prom ote coherent application............................................... 72 
5.5.1. Horizontal work in the ECN ...................................................................................... 72 5.5.2. Work on individual cases and envisaged decisions ................................................... 74 5.5.3. Article 11(6)........................................................................................................... .... 76 
5.6. Confidentiality of information ................................................................................... 77 5.6.1. The principle of professiona l secrecy in the network ................................................ 77 
5.6.2. Confidentiality of exchanges of views in the network............................................... 77 
5.7. Concluding remark..................................................................................................... 78 6. Interaction with national courts.................................................................................. 78 6.1. Application of Articles 81 and 82 EC by national courts .......................................... 78 
6.2. Application of Article 15 of Regulation 1/2003 ........................................................ 80 
6.2.1. Opinions ................................................................................................................ ..... 80 
6.2.2. "Amicus curiae" observations .................................................................................... 81 6.2.3. Transmission of judgments ........................................................................................ 83 
6.2.4. Training of judges ...................................................................................................... 84 
7. Interface with third country enforcement................................................................... 84 7.1. Private litigation in third jurisdictions........................................................................ 84 
7.2. Third country public authorities................................................................................. 87 7.2.1. Enforcement cooperation ........................................................................................... 87 
EN 5   EN 7.2.2. Disclosure to third country public authorities............................................................ 88 
8. Conclusion.................................................................................................................. 89 
ANNEX.......................................................................................................................... .......... 90 
EN 6   EN 1. INTRODUCTION  
1. Regulation 1/20031, the keystone of the modernisation of the European Union's 
antitrust enforcement rules and procedures, entered into  application on 1 May 2004. 
Article 44 of Regulation 1/2003 provides th at the Commission shall by 1 May 2009, 
i.e. after five years of application, report to the European Parliament and the Council 
on its functioning. 
2. Regulation 1/2003 was the result of the mo st comprehensive reform of antitrust 
procedures since 1962.2 It modernised the procedural rules embodied in Council 
Regulation 17 of 19623, which govern how the EC Treaty's provisions on anti-
competitive agreements (Article 81 EC) and abuses of dominant position (Article 82 EC) are enforced.
4 Its key objectives are effective and coherent enforcement of the 
EC antitrust rules in the interests of c onsumers and businesses, while bringing about 
a more level playing field and reducing red tape for companies operating in Europe.  
3. The main features of Regulation 1/2003 are:  
– The abolition of the practice of no tifying business agreements to the 
Commission, enabling the Commission to focus its resources on the important fight against cartels and othe r serious violations  of the antitrust 
rules. 
– The empowerment of national competiti on authorities and courts to apply 
EC antitrust rules in their entirety, so that there are multiple enforcers and 
therefore wider application of  the EC antitrust rules.  
                                                
 
1 Council Regulation (EC) No 1/2003 of 16 Decembe r 2002 on the implementation of the rules on 
competition laid down in Articles 81 and 82 of th e Treaty (OJ L 1, 04.01.200 3, p.1), as amended by 
Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport 
between the Community and third countries (OJ L 68, 6.3.2004, p.1) and Council Regulation (EC) No 
1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Tr eaty to maritime transport,  and amending Regulation 
(EC) No 1/2003 as regards the extension of its sc ope to include cabotage and international tramp 
services (OJ L 269, 28.09.2006, p. 1), hereinafter "Regulation 1/2003". Articles quoted in the text without specific references relate to articles of Regulation 1/2003. 
2 See the White Paper on Modernisation of the Rules implementing Articles 85 and 86 of the EC Treaty 
of 28.04.1999, OJ C 132 of 12.05.1999, p. 1, and the proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and amending 
Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87  of 
27.9.2000, OJ C 365 E, 19.12.2000, p.284. 
3 Council Regulation No 17 (EEC): First Regulation implementing Articles 85 and 86 of the Treaty (OJ P 
13, 21.02.1962, p.204), hereinafter "Regulation 17". 
4 To the extent that the Commission applies Articles 53 and 54 of the EEA Agreement (if trade between 
one or more EU Member States and one or more  EFTA Member States which have ratified the 
Agreement is affected) it does so in  accordance with its existing proc edural rules, namely Regulation 
1/2003, on the basis of Article 5 of Council Regulation 2894/94 concerning arrangements for 
implementing the Agreement on the European Economic Area, OJ L 305, 30.11.1994, p. 6–8 .To this 
end, see Decision of the EEA Joint Committee of 24.09.2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of competition rules applicable to undertakings) and Protocol 23 
(Concerning the cooperation between the surveillance authorities) to the EEA Agreement, OJ L 64, of 
10.03.2005, p.57. 
EN 7   EN – More level playing field for busin esses operating cross-border as all 
competition enforcers, including the national competition authorities and national courts, are obliged to apply EC  antitrust rules to cases that affect 
trade between Member States.  
– Close cooperation between the Commission and national competition 
authorities in the European Co mpetition Network (the "ECN"). 
– Enhanced enforcement tools for the Commission so that it is better 
equipped to detect and address breac hes of the EC antitrust rules. 
4. In the context of Regulation 1/2003, the Commission further adopted the 
implementing Regulation 773/2004
5 as well as guidance on the cooperation of public 
enforcers in the ECN, the Commission's mechanisms for cooperation with national 
courts, the instrument of guidance letter s and the handling of complaints by the 
Commission and guidelines on the criterion of  effect on trade and the application of 
Article 81(3) EC.6  
5. The preparation of the Report has invol ved a fact-finding phase in which the 
experience of stakeholders has been so licited. A public consultation was launched on 
24 July 2008, which consisted of specific ques tions on the different features of the 
Regulation and sought substantiated input. This questionnaire was made public on 
the Commission's website7 and was also sent to individua l consumer associations and 
judges' associations in order to maximi se its reach. The Commission received 45 
submissions from businesses and business associations, law firms, lawyers' associations and academia.
8 The Member States' competition authorities ("national 
competition authorities") have been closely associated with the preparation of this 
Report and have provided detailed input.  
6. This Staff Working Paper, which accompanies the Report, follows the same structure 
and is divided into six main sections that  address the principal facets of Regulation 
1/2003 and its functioning in prac tice: part 2 deals with th e system change from the 
notification system to direct  application of Article 81(3)  EC; part 3 reports on how 
the Commission has used the tools pr ovided by the Regulation for effective 
enforcement in its enforcement procedures ; part 4 examines how  the Regulation has 
led to more level playing field through th e application of EC competition law in 
                                                 
5 Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by 
the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.04.2004, p.18), as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 
773/2004, as regards the conduct of settlement proced ures in cartel cases (OJ L 171, 01.07.2008, p. 3). 
6 The Modernisation Package, cf. Commission Notice on Cooperation within the Network of 
Competition Authorities (OJ C 101, 27.04.2004, p.43), Commission Notice on Cooperation between the 
Commission and the Courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 
101, 27.04.2004, p.54), Commission Notice on Informal Guidance relating to Novel Questions concerning Articles 81 and 82 of the EC Treaty that arise in Individual Cases (Guidance Letters) (OJ C 
101, 27.04.2004, p.78), Commission Notice on the Handling of Complaints by the Commission under 
Articles 81 and 82 of the EC Treaty, (OJ C 101, 27.04.2004, p.65), Guidelines on the effect on trade 
concept contained in Articles 81 and 82 of the Treaty (OJ C 101, 27.04.2004, p.81) and Guidelines on 
the application of Article 81(3) of the Treaty (OJ C 101, 27.04.2004, p.97). 
7 http://ec.europa.eu/comm/competition/an titrust/consultations/consultation_1_2003.pdf. 
8 The (non-confidential) replies are available at 
http://ec.europa.eu/competition/consultations/2008_regulation_1_2003/index.html 
EN 8   EN accordance with Article 3 of Regulation 1/2003; part 5 looks into the enforcement of 
Articles 81 and 82 EC by national competitio n authorities and cooperation in the 
ECN; part 6 addresses the interaction of  the Commission with national courts and 
part 7 raises certain aspects of the in terface with third country enforcement.  
7. The aim of the Report is to understand an d assess how modernisation of the EC 
antitrust enforcement during the first five  years has worked. The Report is a stock-
taking exercise and therefore it leaves ope n the question of whether any amendment 
to the existing rules or practice is required. It will serve as a basis for the Commission to assess, in  a further stage, whether it is  appropriate to propose any 
revision of the Regulation. 
2. S
YSTEM CHANGE : FROM THE NOTIFICATION SYSTEM TO DIRECT APPLICATION OF 
ARTICLE 81(3)  EC 
2.1. Background 
8. Regulation 1/2003 introduced a fundamental change in the framework for applying 
Articles 81 and 82 EC. It replaced the cen tralised notification and authorisation 
system which was created by Regulation 17 by an enforcement system based on the direct application of Articles  81 and 82 in their entirety.  
9. Under Regulation 17, undertakings had to notify agreements to the Commission in 
order to benefit from the exception contai ned in Article 81(3) EC. The Commission 
had exclusive competence to apply this  provision by way of formal exemption 
decisions, with national competition authori ties and courts not being empowered to 
grant exemptions. The Commission's monopol y on the application of Article 81(3) 
EC and the system of prior notification and administrative authoris ation resulted in a 
significant backlog of notifica tions, the closure of 90% of  notifications informally 
and a diversion of resources away from th e investigation and pr osecution of serious 
antitrust infringements.  
10. Under Regulation 1/2003, the Commission, national competition authorities and 
courts have the power to appl y Articles 81 and 82 EC in full.
9 In particular, 
agreements which are caught by Article 81(1) EC but which satisfy the conditions of Article 81(3) EC are now directly valid a nd enforceable, no prior decision to that 
effect being required.
10 Undertakings can now invoke th e exception rule contained in 
Article 81(3) EC as a defence in proceedings conducted by the Commission, national competition authorities and courts. At the sa me time, agreements or practices which 
are caught by Article 81(1) EC  and do not fulfil the condi tions of Article 81(3) EC 
are prohibited and void ab initio,  without the need for prior administrative or judicial 
intervention.
11 
11. The change from a system of notification and administrative aut horisation to one of 
direct application has been remarkably smoot h in practice. Overall, neither the case 
                                                 
9 Articles 5 and 6 of Regulation 1/2003 state that th e competition authorities of the Member States and 
the national courts have the power to apply Articles 81 and 82 EC. 
10 Article 1(2) of Regulation 1/2003. 
11 Article 1(1) of Regulation 1/2003. 
EN 9   EN practice of the Commission and the nationa l enforcers, nor the experience reported 
by the business and legal community indicate major difficulties with the direct application of Article 81(3) EC. The system  change has supported a shift in priorities 
of public enforcers.  
12. The elimination of the notification system and the Commission's exclusive power to 
apply Article 81(3) EC also removed an important obstacle to private enforcement of 
the Community competition rules. Under Re gulation 17, the private enforcement of 
Articles 81 and 82 EC could effectively be blocked by a notification of the 
agreement to the Commission and if it were  not clear whether Article 81(3) EC was 
applicable, the national court would have to suspend proceedings.
12 Regulation 
1/2003 has served as a first step to open the way for the increased private enforcement of Articles 81 and 82 EC, the importance of which has been explicitly recognised by the European Court of Justice.
13 The Commission has launched a 
further policy initiative in this area with a view to foster private damages claims.14  
2.2. The change in system after 5 year s experience with Regulation 1/2003 
2.2.1.  The Commission’s enhanced priority setting  
13. One of the objectives of the modernisati on reform was to allow the Commission to 
better focus its resources on areas where they  make a significant contribution to the 
enforcement of Articles 81 and 82 EC. In th e run-up to the entry into application of 
Regulation 1/2003, the Commission had already started to shift the focus of its case-
handling priorities from the follow-up of no tifications to a more pro-active emphasis 
on pursuing serious infringements.15 Since May 2004, it has been able to implement 
the new enforcement system without any majo r interruption and to complete the shift 
in its enforcement priorities during the first years of application of Regulation 1/2003. 
14. Modernisation has clearly en abled the Commission to be more proactive. This is 
illustrated by the identification of sectors for priority action in the form of large scale 
sector inquiries in key s ectors of the EU economy, which represent an important 
share of EU GDP and are of key concer n for consumers. Since the entry into 
application of Regulation 1/2003, the Comm ission has undertaken inquiries in the 
media
16, energy, retail banking, business insu rance and pharmaceuticals sectors.17  
15. The electricity and gas sectors constitute a key input to the overall economy and are 
fundamental services for citizen s: together they represent a value of total retail sales 
                                                 
12 Case C-234/89 Stergios Delimitis v Henninger Braü [1991] ECR I-935, para 50. 
13 Case C-453/99 Courage v Crehan [2001] ECR I-6297, paras 26 and 27, as confirmed by Joined Cases 
C-295/04 to C-298/04 Manfredi  [2006] ECR I-6619. 
14 See Commission White Paper on Damages Actions for Breach of the EC Antitrus t Rules (COM (2008) 
165, 2.4.2008). 
15 The last exemption decisions were adopted as follows: UEFA (Commission Decision 2003/778/EC of 
23 July 2003 (COMP/C.2-37.398 Joint selling of the commercial rights of the UEFA Champions 
League), OJ L 291, 08.11.2003, p.25) and Air France/Alitalia (Commission Decision 2004/841/EC) of 
7 April 2004 (COMP/A.38284/D2 – Société Air France/ Alitalia Linee Aeree Italiane SpA), OJ L 362, 
09.12.2004.  
16 3 G – Sale of sports rights and third generation mobile phone services. This sector inquiry was started 
already under Regulation 17 (in January 2004) but then continued under Regulation 1/2003. 
17 See part 3.  
EN 10   EN before tax of more than € 500 billion per ye ar. Retail banking – defi ned as services to 
consumers and small and medium-sized enterprises – remains the most important sub-sector of banking, repres enting over 50% of total EU activity in terms of gross 
income. The Commission estimated that in 2004 retail banking activity in the European Union generated gross income of € 250-275 billion, equivalent to approximately 2% of total EU GDP. Business insurance is of vital importance for both large and small businesses, given that the ability to insure a given risk may 
make or break a particular business model. It  is estimated that EU insurers collect € 
375 billion in non-life premiums every y ear. In 2008, the Commission launched an 
inquiry into the market for prescription and non-prescription me dicines, which is 
worth over € 138 billion ex factory and € 214 b illion at retail prices. This translates 
into a retail expenditure of approximate ly € 430 for each EU citizen in 2007.  
16. The more pro-active stance of the Commissi on is further illustrated in its decision-
making practice. Today, the Commission is concentrating considerable resources on 
addressing infringements in economically highl y important sectors, such as financial 
services, energy, IT, media and pharmaceutical s, which directly impact consumers. 
In addition, the Commission has consistent ly further increased the depth of its 
analysis over the last years. The inve stigation and examination of cases is 
characterised by increasing complexity and the use of greater sophisticated 
methodology in the context of the more effects-based approach applied by the 
Commission outside anti-cartel enforcement.  Since the late 1990s, the Commission 
has used this approach in its analysis of restrictive horizontal and vertical agreements 
under Article 81 EC. Guidance has now been given as to how the Commission uses 
an effects-based approach to establish it s enforcement priorities under Article 82 EC 
in relation to exclusionary conduct.
18 
17. The increasingly complexity of many cases is reflected in the ever greater role played 
by inspections in the investigation of cases, including outside the area of cartels. It is 
also illustrated by the steep increase in inspection days used for the investigation of non-cartel antitrust cases.
19 
18. The greater effectiveness of the Commission is also reflected by an increase in the 
number of enforcement decisions adopted. Wh ile it is difficult to isolate the impact 
of the reform from other contemporaneous developments,20 a comparison can be 
made with two previ ous distinct periods: 
(i) the approximately comparable peri od in time from 1 January 2000 until the 
entry into application of Regulatio n 1/2003 during which the Commission's 
enforcement action was already increas ingly oriented by the pending reform; 
(ii) the preceding decade during which th e Commission's antitrust enforcement 
was still largely dominated by the notification system.  
                                                 
18 OJ C 45, 24.02.2009, p. 7. 
19 The overall amount of man days for inspections in  2008 was 773.5 compared with a total of 213 man 
days in 2005. 
20 E.g. the impact of the expansion of the EU in 2004 and 2007 and developments in the Commission's 
leniency policy which was initiated in 1996 and reviewed in 2002 and 2006. 
EN 11   EN 19. By adopting 34 decisions imposing fines in cartel cases since the entry into 
application of Regulation 1/2003 until 31 March 2009, compared with 27 in the 
period from 1 January 2000 to 30 April 2004, the Commission has sustained and 
further boosted its focus on enforcement against cartels despite the heightened 
awareness of infringing undertakings a nd the ensuing increased difficulty of 
investigations. In contrast, during th e entire decade from 1 January 1990 until 31 
December 1999, the Commission had only a dopted 18 decisions against cartels.21  
20. Moreover, the Commission a dopted 27 decisions enforci ng Articles 81 and 82 (final 
decisions on substance) outside the field of cartels in the period since 1 May 2004.22 
By comparison, in the period from 1 January 2000 until 30 April 2004, only 17 
prohibition decisions were adopted.  
21. The Commission’s more pro-activ e stance is also reflected in the fact that broadly 
50% of decisions taken since 1 May 2004 resu lted from ex officio investigations not 
based on leniency information, one third were  triggered by leniency applications and 
one tenth was based on complaints. By  comparison, in the 1990s, own-initiative 
procedures accounted for only about 15% of new cases registered, with most 
procedures being triggered as the result of  notifications. The effects of enhanced 
priority setting are also vi sible from the decrease in number of open cases (e.g. 943 
in 2000 decreasing to 225 in 2007). 
22. Enhanced priority-setting is also reflected in the choice of inst rument in individual 
cases and notably in the use by th e Commission of the power of making 
commitments offered by undertakings bindi ng and enforceable to address an 
identified competition problem. Since the entry into application of the Regulation, the Commission has adopted 13 decisions under Article 9.
23 
23. The huge increase in the enforcement of  Articles 81 and 82 EC by the national 
competition authorities has meant that the en forcement of the EC competition rules is 
now commonplace throughout the EU.24 This allows the Commission to focus on 
cases and areas in accordance with its own priority setting. The Commission also 
contributes to effective and coherent enforcement by the national competition authorities through coop eration in the ECN. 
2.2.2.  Case practice under Article 81(3) EC 
24. Under Regulation 1/2003, agreements that fu lfil the cumulative c onditions of Article 
81(3) EC are legal without th e need for an affirmative decision by an authority. In 
the enforcement system established by Re gulation 1/2003, the vast majority of 
agreements thus do not call for the interven tion of any authority or enforcement body 
and are naturally not the subj ect of any decision or other act by such authorities. 
25. Moreover, Regulation 1/2003 did not change  the instrument of block exemption 
regulations which confers lega lity under Article 81(3) EC on agreements that fulfil 
                                                
 
21 See table in the annex. 
22 See table in the annex. 
23 See part 3. 
24 See part 5. 
EN 12   EN the requirements set out in the relevant Commission regulation.25 To the extent that 
an agreement fulfils the requirements of a block exemption regulation, no individual 
assessment under Article 81(3) EC is warranted. 
26. In the enforcement system of Regulati on 1/2003, Article 81(3) EC operates as a 
defence that undertakings may invoke in re gard of agreements that are caught by 
Article 81(1) EC and ar e not block-exempted.26 In the framework of the 
Commission’s enforcement action during the reporting period, the conditions of 
Article 81(3) EC have been routinely considered in enforcement cases.27 If parties 
can provide a valid justificati on for their conduct, i.e. if Ar ticle 81(3) EC is likely to 
be fulfilled, the case is often not pursued further under the Commission's system of 
priority setting. Cases in which Article 81( 3) EC aspects have been considered may 
also result in commitment decisions.  
27. Extensive reasoning reflecting the analysis under Article 81(3) EC is thus naturally 
contained in prohibition decisi ons in cases that called fo r an in-depth examination 
under Article 81(3) EC, including in light of the evidence and argument put forward 
by the parties concerned to substantiate their claim that Article 81(3) EC was fulfilled.
28 
28. For example, in MasterCard29, the Commission found that an association of banks 
restricted competition by deciding on multilateral interchange fees (‘MIFs’).30 
MasterCard invoked Article 81(3) EC claiming that a revenue transf er (the MIF) was 
needed from the acquiring side  to the issuing side to correct an asymmetry of costs 
between them and that it generated efficienci es in the form of in creased output of the 
system. In its analysis unde r the first condition of Article  81(3) EC, the Commission 
                                                 
25 This is without prejudice to the right of the Co mmission or national competiti on authorities to withdraw 
the benefit of block exemption regulations in individual cases, pursuant to Article 29 of Reg. 1/2003. The following block exemptions have been adopted by the Commission: Commission Regulation 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. 21-25), Commission Regulation 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, 05.12.2000, p.3), Commission Regulation No 2659/2000 of 29 
November 2000 on the application of Article 81(3) to categories of research and development agreements (OJ L 304, 05.12.2000. p.7), Commission Regulation No. 1400/2002 of 31 July 2002 on the 
application of Article 81(3) to categories of verti cal agreements and concerted practices in the motor 
vehicle sector (OJ L 203, 01.08.2002, p.30-41), Commission Regulation No. 358/2003 of 27 February 2004 on the application of Article 81(3) of the Treat y to certain categories of agreements, decisions and 
concerted practices in the insurance sector (OJ L 53, 28.2.2003, p.8-16), Commission Regulation No. 
772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements (OJ L 123, 27.04.2004, p.11-17)  and Council Regulation (EC) No 246/2009 of 26 
February 2009 on the application of Article 81(3) of  the Treaty to certain cat egories of agreements, 
decisions and concerted practices between liner shipping companies (consortia), OJ L 79, 25.03.2009, p.1. 
26 Recital 5 of Regulation 1/2003. 
27 Severe restrictions of competition are unlikely to fu lfil the conditions of Article 81(3) EC as is noted in 
para 46 of the Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.04.2004, p.97). 
Accordingly, in such cases extensive reasoning as to the applicability of Article 81(3) EC is not 
required. 
28 Parties which claim the benefit of Article 81(3) EC bear the burden of provin g that its conditions are 
fulfilled in accordance with Art. 2 of Regul ation 1/2003. See also part 2.4 below.  
29 Case COMP/34.579, http://ec.europa.eu/competition/antitrus t/cases/decisions/34579/remarks.pdf . 
30 MIFs are defined as fees paid by acquiring  banks – banks of merchants accepting payment cards - to 
issuing  banks – banks issuing cards to cardholders. 
EN 13   EN notably verified whether the model underl ying MasterCard's MIF was founded on 
realistic assumptions, whether the methodol ogy used to implement that model could 
be considered objective and reasonable a nd whether the MIF had indeed led to the 
positive effects claimed. However, MasterCard failed to submit empirical evidence to demonstrate positive effects of its MIF on the market.  
29. The Commission further concluded that Ma sterCard's MIF also did not fulfil the 
second condition of Article 81(3) EC. In this context, the Commission attributed particular importance to the question whether in setting a MIF, MasterCard used a 
methodology that guarantees from the outset that all consumers and, in particular, 
merchants obtain a fair share of the benef its. However, the cost benchmarks used by 
MasterCard were found to be largely arbitrary and inflat ed. Hence, without further 
evidence - which MasterCard did not subm it - it was not proven that MasterCard's 
MIF had created efficiencies that benefit all customers, including merchants. Finally, 
MasterCard did not provide a ny empirical evidence on the ac tual effect of this MIF 
in the market although ECB statistics in dicate that card schemes without a MIF 
display the highest card usage per capita in the EU. MasterCard had therefore not proven to the requisite standard that its MIF was indispensable to achieve a 
maximised system output or any claimed related efficiencies. 
30. Further cases involving an extensive analysis  under Article 81(3) EC in the financial 
services sector include Morgan Stanley/Visa
31 and Groupement des Cartes 
Bancaires.32 
31. In CISAC, the Commission adopted a prohibition decision against  24 European 
collecting societies for restricting compe tition by limiting their abili ty to offer their 
services to authors and commercial users out side their domestic territory resulting in 
a strict segmentation of the market on a national basis.33 The parties did not bring 
forward arguments which specifically addres sed the application of Article 81(3) EC. 
However, it was argued that the territorial restrictions constitute a pre-requisite for 
the mutual exchange of repertoires and, th erefore, for collecting societies to offer 
multi-repertoire licences. The Commission did not dispute that the network of bilateral reciprocal represen tation agreements between co llecting societies provides a 
                                                
 
31 Case COMP/37860: The Commission fined Visa €10,200,000 for refusing to admit Morgan Stanley as 
a member without an objective justification. Visa relied on Article 81(3) EC arguing that Visa (as a system and as a whole) generated efficiencies. However, the Commission concluded that such 
arguments did not show that the first condition of Artic le 81(3) EC of the Treaty is fulfilled with respect 
to the application of the exclusionary rule which was at issue in the case (" the Rule"). The Commission 
did not find any indication that the Rule as it was applied to Morgan Stanley generated pro-competitive 
effects. Its negative effects on the offer of acquiring  services to merchants, innovation in the relevant 
market, and on Morgan Stanley itself, were therefor e not outweighed by effi ciencies. The Commission 
also held that VISA had not succeeded in demonstra ting that the application of  the Rule was necessary 
to prevent free riding. See http://ec.europa.eu/competition/antitrust/cases. 
32 Case COMP/38.606: The Commission prohibited several measures by Groupement des Cartes 
Bancaires ("GCB") which hindered the issuing of cards  in France at competitive rates, thereby keeping 
the price of payment cards artificially high to the benefit of the major French banks (in particular 
charges which were imposed on new entrants in a discriminatory way, thereby hindering the issuing of 
cards by other banks at a price lower than that of the large banks). Relying on Article 81(3) EC, GCB 
argued that the measures were necessary to pr omote economic and technical  progress. The Commission 
concluded, however, that the arguments presented by  GCB were contradictory and that the measures 
had an effect opposite to the effect claimed.  See http://ec.europa.eu/competition/antitrust/cases. 
33 Case COMP/38.698. See http://ec.europa.eu/competition/antitrust/cases. 
EN 14   EN national one-stop shop for a worldwide manage ment of rights. However, it concluded 
that even without the restrictions, the alle ged benefits, in particular the national one-
stop-shops can still be provided. The restrict ions are consequently not indispensable 
within the meaning of Artic le 81(3) EC. In addition, they eliminate competition on 
the markets for the administration of repe rtoires for other EEA CISAC members and 
the licensing of rights and therefore do not fulfil the forth of the cumulative 
conditions of Article 81(3) EC. 
2.2.3.  Application of Article 81(3) EC by  national competition authorities  
32. Regulation 1/2003 enables national competitio n authorities and courts to apply 
Articles 81 and 82 EC in full34 and obliges them to apply EC competition law in all 
cases that fall within its scope of application.35 The change in legal framework has 
resulted in a huge increase in enforcem ent of Articles 81 and 82 EC by the national 
competition authorities as from 2004.36 In general, national competition authorities 
are putting emphasis on pro-actively pursuing serious infringements. 
33. As regards the application of Article 81(3) EC , the impact of the reform is similar to 
its effects in Commission cases, with the addi tional aspect of numerous national laws 
following the example of the Regulation by  removing notification systems for the 
application of national competition laws.  
34. Similar to the case practice of the Commission and in line with the basic scheme of 
the Regulation, Article 81(3) EC is nor mally invoked as a defence in cases 
investigated by national competition author ities in view of a possible prohibition 
decision. The vast majority of national co mpetition authorities now have direct 
experience of applying Article 81(3) EC. At  least half of the national competition 
authorities have adopted decisions in wh ich it was found that the conditions of 
Article 81(3) EC were not fulfilled. The conclusion of cases in which the national authority considered the conditions of Article 81(3) EC to be fulfilled, depends on 
national procedural rules and practices. Numerous national competition authorities 
are – like the Commission – able to close such cases without adopting a reasoned 
decision and indeed regularly do so if they consider that  the conditions of Article 
81(3) EC are likely to be fulfilled. To the extent that a decision by the authority is formally required, it has to comply with the last sentence of Article 5, according to 
which the national competition authorities may decide that there are no grounds for 
action on their part. Such decisions do not bind other enforcers or national courts. 
Cases that involve an analysis of the c onditions of Article 81( 3) EC may also be 
concluded by commitment decisions. 
35. National competition authorities have carried out analyses of the application of 
Article 81(3) EC in a wide variety of sectors, including transport, food, energy, 
media and financial services. Many of these cases involved vertical restraints, and in 
particular, the application of the Vertical Restraints  Block Exemption Regulation.
37 
                                                 
34 Articles 5 and 6 of Regulation 1/2003. 
35 Article 3 of Regulation 1/2003. 
36 See parts 3 and 5. 
37 Commission Regulation No 2790/1999 of 22 December 1999 on the app lication of Article 81(3) of the 
Treaty to categories of vertical ag reements and concerted practices (OJ L 336, 29.12.1999, p. 21-25). 
EN 15   EN 36. Regulation 1/2003 does not oblige Member St ates to remove notification systems 
and exemption decisions in respect of national competition law. Nonetheless, a large majority of Member States have fo llowed the model of Regulation 1/2003 by 
abolishing notification systems in the context of national competition law. In addition to not adopting clearance or exemp tion decisions in regard of Articles 81/82, 
most national competition authorities are th ereby relieved of th e obligation to deal 
with notifications in regard of national competition law, freeing up resources to focus on serious infringements. To date, the na tional competition laws of more than 20 
Member States operate without notifications.  
37. To the extent that notifications under nationa l law persist and the parallel application 
of EC law pursuant to Article 3 of the Regulation is required in notified cases, 
national competition authorities cannot adopt  exemption decisions in respect of 
Article 81 EC, pursuant to Arti cle 5, last sentence. They on ly have the possibility to 
combine an exemption or clearance decisi on under national law with the “no grounds 
for action” conclusion envisaged by the la st sentence of Article 5. Given the phase-
out of notifications in a la rge number of national laws, th is issue has played a minor 
role in practice. Notwithstanding this, th e maintenance of notification systems in 
national law may represent a drain on the scarce resources of the national 
competition authorities concerned. 
38. Overall, no particular problems have been reported by the national competition 
authorities in terms of appl ying Article 81(3) EC and it se ems that the vast majority 
of decisions which have involved an in-dep th analysis under Article 81(3) EC and 
which were scrutinised by revi ew courts have been upheld. 
2.2.4.  Case practice of national courts 
39. National courts have applied Ar ticle 81(3) EC in a wide va riety of sectors, including 
transport, energy, pharmaceuticals, financial services, cosmetics and media. Many of 
these cases involved vertical restraints, in particular, selective distribution, franchise 
agreements and resale price maintenance.  In many rulings by national courts, the 
application of the Vertical Restraints Bloc k Exemptions (old and new) is assessed. 
For example, in Spain, there have been numerous judgments concerning the possible 
nullity of exclusive purchase agreements be tween oil companies and petrol stations, 
several of which involved the application of the Vertical Restraints Block 
Exemption. Similar proceedings have been  brought in The Ne therlands, where the 
validity of exclusive purchas e agreements, and in particular, of non-compete clauses 
in these contracts between oil companies a nd petrol stations ha ve been reviewed by 
several national courts on the basis of the Vertical Restra ints Block Exemption. In a 
number of Member States (France, Germa ny and The Netherlands),  there have been 
a variety of judgments relating to the ap plication of the Motor Vehicles Block 
Exemption (old and new).  
40. Judgments in the Member States that joined the EU in 2004 and 2007 involving the 
application of Article 81(3) EC are still relatively infrequent which can to a certain extent be attributed to the fact that EC  competition law became applicable as of the 
EN 16   EN date of accession only, with the effect that  judicial proceedings under Article 81 EC 
are naturally less numerous and/or may not have reached the state of judgment yet.38 
41. Overall, the relative scarcity of judgments involving Article 81(3) EC seems in the 
first place to stem from what appears to be a relatively low level of enforcement of EC competition law in general by national c ourts in the EU. This corresponds to the 
criticism made by some stakeholders that not all national courts have sufficient experience and/or expertise to apply Articles 81 and 82 EC. However, it is not 
evident that national courts face particular  difficulties in appl ying Article 81(3) EC 
over and above the complexities involved w ith applying Article 81(1) and Article 82 
EC which have always been directly applicable.  
2.3. Legal certainty debate and guidance practice 
42. By granting validity and enforceability to al l agreements that fulfil the conditions of 
Article 81(3) EC, Regulation 1/2003 remove d uncertainty for a large number of 
agreements that remained in legal lim bo under the old system inasmuch as only a 
very small number of agreements were covered by a formal exemption decision of the Commission. 
43. The reform of the antitrust rules entailed a shift from giving comfort to individual 
agreements to a system in which the emphasis is on general guidance that can be helpful to numerous undertak ings and other enforcers. Th is was a process which the 
Commission had already started prior to 2004 fo r vertical restraints
39 and horizontal 
cooperation agreements.40 The 2004 Modernisation pa ckage included general 
guidelines on the application of Article 81(3) EC setting out  the analytical 
framework for its application.41 Moreover, the Transfer of Technology Block 
Exemption and guideline s were adopted in 2004.42 The Commission regularly 
reviews its guidance, for example, it will  review the Vertical and Horizontal 
Agreements Block Exemption Regulations by 2010. Such guidance is complemented 
by the ever-growing body of d ecision practice and case law.43 On 9 February 2009, 
                                                 
38 See further: http://ec.europa.eu/competition/elojade/antitrust/nationalcourts/ . Listed herein is a 
compilation of the summaries prepared annually by most national competition authorities of the judgments rendered by their national courts involvi ng the application of Articles 81 and 82 EC, in 
addition to the database of written judgments of nati onal courts deciding on whether Articles 81 or 82 
EC are applicable, received by the Commission pursuant to Art. 15(2) of Reg. 1/2003.
 Neither of these 
sources appears to provide a complete overview of the application of the Articles 81 and 82 by national 
courts, but may be used to complement each other. 
39 Commission Regulation No 2790/1999 of 22 December 1999 on the app lication of Article 81(3) of the 
Treaty to categories of vertical ag reements and concerted practices (OJ L 336, 29.12.1999, p. 21-25) 
and Commission Notice on Guidelines on Vertical Restraints (OJ C 291, 13.10.2000, p.1). 
40 Commission Regulation 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, 05.12.2000, p.3), Commission Regulation 
No 2659/2000 of 29 November 2000 on the application of Articles 81(3) to categories of research and 
development agreements (OJ L 304, 05 .12.2000. p.7) and the Guidelines  on the applicability of Article 
81 of the EC Treaty to horizontal cooperation agreements (OJ C 3, 06.01.2001, p.2). 
41 Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.04.2004, p.97). 
42 Commission Regulation No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty 
to categories of technology transfer agr eements (OJ L 123, 27.04.2004, p. 11-17). 
43 The Commission has also provided specific sectoral  guidance regarding the application of the EC 
competition rules to information sharing in the context of the application of the REACH Regulation, see 
Corrigendum to Regulation (EC) No 1907/2006 of  the European Parliament and Council of 18 
December 2006 concerning the Regist ration, Evaluation, Au thorisation and Restriction of Chemicals 
EN 17   EN the Commission published guidance on its enfo rcement priorities in applying Article 
82 EC to abusive exclusiona ry conduct by dominant undert akings, in response to a 
strong demand from many stakeholders.44 This paper outlines for the first time the 
analytical framework that the Commissi on employs when assessing the most 
commonly encountered forms of exclusionary  conduct, such as exclusive dealing, 
rebates, tying and bundling, predatory pr actices, refusal to supply and margin 
squeeze.  
44. In view of possible cases that may arise which are not covered by existing sources of 
orientation, the Commission issued  a Notice on guidance letters.45 In essence, the 
Notice enables undertakings to request for a guidance letter by the Commission when 
a case gives rise to genuine uncertainty  because it presents novel or unresolved 
questions concerning the applic ation of Articles 81 and 82 EC.46 The Notice takes 
account of the rationale of the Regulation that  the Commission is to give priority to 
enforcement tasks by pursuing serious in fringements of Articles 81 and 82 EC.47  
45. During the reporting period, very few a pproaches have been made to the 
Commission for "informal guidance" as se t out in the Notice on guidance letters. 
None of these approaches came close to fulfilling the conditions for making such a request, which must be made about novel or unresolved questions that give rise to 
genuine uncertainty, as opposed to provi ding what would amount to individual 
comfort letters as existed prior to modernisation.
48  
46. Stakeholder feedback after 5 years of a pplication of Regulation 1/2003 is nuanced 
and there is currently no ev idence of real problems that have materialised.  
47. A certain number of respondents to the public consultation reiterate that the 
Commission should provide more guidance, in cluding in the form of inapplicability 
decisions.49 Some stakeholders claim that a lack of legal certainty deters companies 
from pursuing certain invest ments that they would have  contemplated with the 
protection of notification, or that certain tran sactions would be restructured so as to 
                                                                                                                                                         
(REACH), establishing a European Chemicals Agen cy, amending Directive 1999/45/EC and repealing 
Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/76/EEC, 93/105/EC and 
2000/21/EC (OJ L 396, 30.12.2006). It has also adopted Guidelines on the application of Article 81 of 
the Treaty to Maritime Transport Services, SEC (2008) 2151 final, 01.07.2008. 
44 OJ C 45, 24.02.2009, p.7 . 
45 Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of 
the EC Treaty that arise in individual cases (guidance letters) (OJ C 101, 27.04.2004, p.78). 
46 Regulation 1/2003 expressly refers to the possibility for the Commission to provide guidance in Recital 
38. According to para 8 of the Commission Notice ( ibid), a novel or unresolved question is raised where 
the substantive assessment of an agreement or practi ce poses a question of application of Articles 81 or 
82 EC for which there is no clarification in the existing EC legal framework. 
47 See para 7 of the Commission Notice on guidance letters ( ibid), which stipulates that the Commission 
will only provide informal guidance to undertakings insofar as this is compatible with its enforcement 
priorities. 
48 It is the practice of the Commission to impose more than symbolic fines only where it is established, 
either in horizontal instruments or in the case law and practice, that certain behaviour constitutes an 
infringement. See para. 4 of the Commission Notice on guidance letters ( ibid) and para 36 of the 
Guidelines on the method of setting fines imposed pursuant to Article 23 (2)(a) of Regulation No 
1/2003, OJ C 210, 01.09.2006, p.2. As a result, companies engaging in activities about which there 
exists genuine legal uncertainty are not at risk of being subject to a fine. 
49 On Article 10, see further part 3. 
EN 18   EN fall under the Merger Regulation (or national equivalents) w ith a loss of efficiencies. 
Similarly, some stakeholders have commented that the conditions for fulfilling the Notice are too tightly drawn. While the criterion of novel or unresolved questions is 
largely uncontroversial, some stakeholders  have called for guidance letters to be 
made also available in cases involving complex products or complex market conditions. However, no concrete examples ha ve been provided in support of this.  
48. Other respondents have advanced more limite d ideas, e.g. calling for more dialogue 
with the Commission services on novel issues  or commercial transactions involving 
significant investments or en couraging Commission case team s to more often set out 
their thinking in publications of the EC Competition Policy Newsletters type. These 
submissions are made in a context where the vast majority of respondents have commended the direct application of Artic le 81(3) EC as a more efficient and 
rational system of enforcement. For th e most part, undertakings seem to be 
comfortable with assessing for themselves whether their agreements are likely to be 
caught by Article 81 EC and have welcomed  the abolition of the administrative 
burden and long timescales that was part and parcel of notifications made under 
Regulation 17. A number of lawy ers have indicated that they have not been asked for 
many more formal opinions on the applicabil ity of Article 81(3) EC than was the 
case prior to modernisation. Businesses have also expressed that they have not felt 
the need for formal guidance from the Commission in the period since Regulation 
1/2003 entered into application. The Commissi on therefore concludes that it is now 
standard practice for undertak ings to verify that their behaviour complies with the 
applicable legal requirements in many area s of law and that it is usually more 
effective and efficient for it to provide general guidance. Nonetheless, the Commission remains firmly committed to  giving guidance on new or unresolved 
policy issues of general application which fulfil the conditions of the Notice on 
guidance letters.  
2.4. The rule on burden of proof in Article 2 
49. Regulation 1/2003 did not affect the substan ce of Article 81 EC, which is composed 
of a prohibition rule requiring an assessment of the anti-competitive object or an analysis of likely anti-competitive effects, and a defence, requiring an analysis of 
likely pro-competitive effects and the weighing up of those pro-competitive and anti-competitive effects.  
50. Article 2 contains the ground -rule on the allocation of th e burden of proof in EC 
competition law. It clarifies that the burden of proving an infringement rests with the 
authority, while undertakings claiming the benefit of Article 81(3) EC have the 
burden of proving that its c onditions are fulfilled. This allocation of the burden of 
proof has been confirmed by the Court of Justice
50 and is in accordance with general 
principles of law that the party claiming a defence has to prove that the conditions 
attached to that defence are satisfied and corresponds to the case law of the Community Courts.
51 No concrete examples of this  rule having posed a particular 
problem in practice have been brough t to the Commission's attention.  
                                                 
50 Joined Cases C-204/00 and others Aalborg Portland [2004] ECR I-124, para 78. 
51 See e.g. Cases 56/64 and 58/64 Etablissements Consten SàRL and Grundig-Verkaufs-GmbH 
v Commission [1965] ECR 299, at 347; Case T-34/92 Fiatagri and New Holland Ford v Commission 
EN 19   EN 51. The Community Courts are providing additiona l refinement to the rule in Article 2. 
In terms of the Commission's enforcement pr actice, they have clarified that in the 
course of the examination of a case the apportionment of the burden of proof may 
vary inasmuch as evidence presented by one side may require the other to provide an 
explanation or justification, failing which it is permissible to conclude that the 
burden of proof has been discharged.52  
52. Article 2 of Regulation 1/2003 does not determ ine the standard of proof. Recital 5 of 
Regulation 1/2003 stipulates that nationa l rules on the standard of proof are 
unaffected by the Regulation, although they mu st of course be compatible with 
general principles of Community law, and in particular cannot jeopardise the effet 
utile of Articles 81 and 82 EC, in particular, by raising the standa rd so high that the 
application of Article 81(1) EC becomes impossible or unduly difficult. A reference 
for a preliminary ruling has been made to the European Court of  Justice asking if a 
national court applies Article 81 EC, is th e evidence of a causal connection between 
concerted practice and market conduct to be adduced and appraised in accordance 
with the rules of national law, subjec t to the Community law principles of 
effectiveness and equivalence.53  
53. In relation to Commission proceedings, th e Community Courts have developed an 
abundant body of case law concerning the assessment of evidence, including the 
admissibility of evidence and the evidentiar y value of a given item of information. 
For instance, the Court of Ju stice recently confirmed in Dalmine  that the prevailing 
principle regarding the admissibility of evidence in Community law is " the unfettered 
evaluation of evidence  and the only relevant criteri on for the purpose of assessing 
the evidence adduced relates to its credibility ."54 Nonetheless, this principle must be 
balanced in particular by respect for genera l principles of Community law such as the 
right to a fair legal process. Accordingly, th e Court has for example held that the fact 
that certain information contained in an incriminating document must remain 
confidential (including the orig in of the document) does not mean that the rest of the 
document cannot be used in evidence.55 However the anonymous origin of an 
incriminating document shall be taken into account in assessing the credibility of the 
document and thus has a direct impact on its evidentiary value. Within the context of 
the Leniency Notice, the Commission has al so addressed evidenti ary issues through 
the concept of "added value", i.e. the exte nt to which evidence by its very nature 
                                                                                                                                                         
[1994] ECR II-905, para 99, Case T-112/99 Métropole Télévision (M6) et al v Commission [2001] 
ECR II-2459, paras 130-131. See Case C-49/92 P Commission v Anic [1999] ECR I-4125, para 86 and the case law listed therein, wher e the Court of Justice ruled that "[…] it is incumbent on the 
Commission to prove the infringements which it has found and to adduce evidence capable of 
demonstrating to the requisite legal standard the existence of the circumstances constituting the infringement".. 
52 Aalborg Portland and Others v Commission , ibid, para 79, Case T-48/98, Acerinox v Commission 
[2001] ECR II-3859 paras 29-30, Case T-120/04 Organicos Peroxydos v Commission [2006] ECR 
II-4421, paras. 53 and para 71 and Case T-36/05 Coats Holding and J&P Coats v Commission, [2007] 
ECR II-110, para 122. See also above, part 2, fo r the Commission's assessment of MasterCard's claim. 
53 C-8/08 – request for a preliminary ruling by the College van Beroep voor het Bedrijfsleven / 
Netherlands (Administrative Court for Trade and Industry) T-Mobile Netherlands BV and others. 
54 Case C-407/04 P Dalmine v Commission [2007] ECR I-829, para. 63. 
55 Case C-411/04 P Salzgitter Mannesmann GmbH v Commission, [2007] ECR I-959 paras 40-47. 
EN 20   EN and/or its level of detail strengthens th e Commission's ability to prove the alleged 
cartel.56 
3. COMMISSION PROCEDURES – HOW THE COMMISSION HAS USED ITS TOOLS UNDER 
THE REGULATION FOR EFFECTIVE ENFORCEMENT  
3.1. Background 
54. Under the EC Treaty, the Commission has responsibility for implementing the 
competition rules in Articles 81 and 82 EC.57 The Community enforcement system is 
that of an integrated public authority th at has power to order infringements to be 
brought to an end and to impose sancti ons for past behavi our. The Community 
system corresponds to the in stitutional choice of a majority of Member States.58 
55. Such systems imply that the same institutio n investigates and takes decisions on the 
cases handled, which has raised queries from  a number of stakeholders. However, as 
far as decisions adopted are subject to inde pendent judicial control, such systems are 
fully compatible with established case law of both the Community Courts as well as 
the European Court of Human Rights. To  this regard, besides the checks and 
balances that exist within the Commission procedures59, the decisions adopted by the 
Commission are subject to the judicial scrutiny by the Cour t of First Instance and the 
Court of Justice. In particular, the Comm unity Courts have unlimited jurisdiction to 
review decisions whereby the Commission has fixed a fine or periodic penalty 
payment.60  
56. Issues relating to the compatibility of th e Community enforcement system with the 
rights of defence of the parties in competiti on proceedings were raised in the context 
of appeals against Commission decisions be fore the Community Courts and were 
rejected by the latter.61 The Community enforcement system also satisfies the 
requirements of the European Conventi on on Human Rights ("ECHR"). Under the 
case law of the European Court of Human Rights, administrative adjudication even 
of certain matters qualified 'criminal' within  the meaning of Article 6 of the ECHR is 
                                                 
56 Point 24 of the Commission Notice on the non-imposition or reduction of fines in cartel cases, OJ C 
207, 18.07.1996, p. 4-6. 
57 Article 85 EC, Case C-344/98 Masterfoods [2000] ECR I-11369, para 46. In the absence of an 
implementing regulation, the Commission can rely on Article 85 EC directly to adopt decisions; this 
tool is however not very effective in practice. When  Regulation 1/2003 was adopted, it took over certain 
'lacunae' from the earlier enforcement re gulations in the transport sector (Article 32); in these areas the 
Commission could consequently only act on the basis of Article 85 EC directly; the relevant provision 
has been removed by Regulations 411/2004 of 26 February 2006 and 1419/2006 of 25 September 2006. 
58 See part 5 below. 
59 Commission enforcement decisions ar e taken by the College of the Commission; the services of the 
Directorate General for Competition merely prepar e such decisions. The decision-making process 
involves the Commission Legal Service and other as sociated services. Furthermore, the Hearing 
Officers are in charge of supervising compliance with  the right to be heard in  competition proceedings 
(see Commission Decision of 23 May 2001 on the terms of reference of hearing officers in certain 
competition proceedings; OJ  L 162/21 of 19.6.2001). 
60 Article 230 EC and Article 31 of Regulation 1/2003. 
61 Cf. Cases 209-215 and 218/78, Heintz van Landewyck SARL and others v Commission (FEDETAB), 
[1980] ECR 3125, para 81; Cases 100-103/80, Musique Diffusion Française and others v Commission, 
[1983] ECR 1825, para 7; Case T-11/89, Shell International Chemical Company v Commission, [1992] 
ECR II-757, para 39. 
EN 21   EN not incompatible with the C onvention so long as the pa rty concerned can bring any 
such decision affecting it before a judici al body that has full jurisdiction, including 
the power to quash in all respects, on ques tions of fact and law, the challenged 
decision.62 
57. Notwithstanding the legality and efficiency of the current procedure, the Commission 
notes that in this contex t various respondents have discussed the possibility of 
strengthening the role of the Hearing Offi cer with a view to ensure procedural 
fairness, transparency and indepe ndent (peer) review of evidence. 
58. Regulation 1/2003 provides the Commission with  a set of specific powers to ensure 
effective enforcement action. The procedur al tools have to a large extent been 
developed from the earlier Regulation 17 and the case law ba sed thereon. This 
concerns in particular the Commission's investigation and fining powers. The types 
of decisions were revised in light of the direct application of Article 81(3) EC. The 
Commission continuously refines its policy and develops new ways of enhancing 
enforcement within the framework of the Regulation.63  
59. The present chapter is intended to reflect  how the Commission has used the new or 
more developed instruments of the Regul ation, taking into account that some 
instruments have been used more often than others. The Report identifies certain 
limited areas in which there appear to be e fficiency reserves that the current legal 
framework and/or practice do not fully expl oit and that may merit further reflection.  
3.2. The Commission's increase d investigative powers 
3.2.1.  Introduction 
60. Chapter V of Regulation 1/2003 lays dow n the Commission's formal powers of 
investigation. As in Regulation 17, the prin cipal powers are requests for information 
and inspections. Regulation 1/2003 esse ntially reinforced both of them, by 
introducing the power to adopt decisions im mediately pursuant to Article 18(3), the 
power to carry out inspections in non-busines s premises, the power to affix seals in 
business premises and the power to ask oral  questions on facts or documents relating 
to the subject-matter and purpose of an inspection and to record the answers. 
Moreover, Regulation 1/2003 provides for th e possibility to impose fines if seals 
have been broken or incorrect or misleadi ng answers have been given. In addition to 
these compulsory measures, the Regulation also introduced the power to interview 
legal and natural persons w ith their consent. In th e framework of pro-active 
enforcement, the powers of investigat ion have gained in importance.  
3.2.2.  Sector inquiries 
61. Article 17 of Regulation 1/2003 has substi tuted Article 12 of  Regulation 17. It 
enables the Commission to undertake inquiri es into sectors of the economy where 
there are indications to suggest  that competition is being rest ricted or distorted in an 
                                                 
62 See in this context Bendenoun v France, Judgment of the ECtHR of 24 February 1994, para 46; 
Janosevic v Sweden, Judgment of the ECtHR of 23 July 2002, para 81.  
63 National competition authorities apply the procedures  and powers provided by national law even when 
the investigation relates to the enforcement of Articles 81 and 82 EC, subject to the Community 
principles of equivalence and effectiveness. See below, part 5. 
EN 22   EN economic sector of the common market. It also empowers the Commission to carry 
out inquiries into types of agreements.64 
62. Since the entry into force of  Regulation 1/2003, sector inqu iries have become one of 
the key investigative tools for the Comm ission, reflecting an increased scope for 
taking action in priority areas that are v ital to Europe's citizens and where market 
information suggests that competition doe s not work as it should. The Commission 
uses this instrument to improve its in-depth  knowledge about a sector with a view to 
better identifying its main shortcomings cause d by market participan ts. It is therefore 
an 'upstream' exercise to potential antitru st proceedings in specific cases which may 
follow. A sector inquiry can in addition provide empirical evidence that may be 
useful in reviewing the regulator y framework governing a sector.  
63. The Commission's experience of the sector  inquiries conducted during the reporting 
period, into the media65, gas and electricity66, retail banking67, business insurance68 
and pharmaceutical sectors69 is very positive. Sector inquiries have enabled the 
Commission to identify shortcomings in the competitive process of the respective sectors under investig ation and provided a wealth of factual material that have 
supported the Commission in carrying out mo re detailed assessments in individual 
cases.  
64. In the energy sector, the inquiry responde d to concerns voiced by consumers and 
new entrants in the sector about the deve lopment of wholesale gas and electricity 
markets and limited choice for consumers. After nearly two years of intensive investigation, the Commission identified in its final report
70 serious shortcomings in 
the electricity and gas markets, e.g. too mu ch market concentration in most national 
markets, a lack of liquidity preventing su ccessful new entry, too little integration 
between Member States’ markets, an absence of transparent, available market information leading to distrust in the pric ing mechanisms, an inadequate current level 
of unbundling between network and s upply interests which has negative 
repercussions on market functioning and inve stment incentives, customers being tied 
to suppliers through long-term downstream c ontracts, and current balancing markets 
and small balancing zones which limit competition and thereby ease costs for the final consumer. As a follow- up, the Commission launched a nu mber of investigations 
under the EC Treaty rules, notab ly Article 82 EC, in the electricity and gas markets. 
Whereas several cases are still ongoing, the Commission has already adopted a 
landmark decision concerning two cas es in the electricity sector.
71 On the basis of 
                                                 
64 No such inquiry into types of agreements has been conducted in the reporting period. 
65 3G – Sale of sports rights and third generation mobile phone services, Sector inquiry launched on 30 
January 2004. See http://ec.europa.eu/competiti on/sectors/media/inquiries. 
66 Gas and electricity Sector inquiry launched in 2005; Final report presented on 10 January 2007. See 
http://ec.europa.eu/competition/sectors/energy/inquiry. 
67 Sector inquiry launched on 13 June 2005; Final report presented on 31 January 2007. See 
http://ec.europa.eu/competition/sectors/financial _services/inquiries/retail.html.  
68 Sector inquiry launched on 13 June 2005; Final report presented on 25 September 2007. See 
http://ec.europa.eu/competition/sectors/financial_services/inquiries/business.html. 
69 Launched on 15 January 2008; Preliminary findings were presented on 28 November 2008; final 
resultsare due in summer 2009. 
70 The Directorate General for Competition report on energy sector inquiry (SEC(2006) 1724, 10 January 
2007). See http://ec.europa.eu/competition/sectors/energy/inquiry. 
71 Commission Decision of 26 November 2008 making binding the commitments by E.ON to divest 
respectively 5000MW of generation capacity (about one fifth of its portfolio) and its transmission 
EN 23   EN unprecedented structural commitments addres sing horizontal and vertical concerns, 
this decision is expected to open two sepa rate markets to competition. In another key 
case in the gas sector72, an undertaking has also provided structural commitments to 
bring the investigation to an end. The in-depth knowledge of the energy market 
which the Commission gained in the course of  the sector inquiry has also served for 
reviewing the regulatory framew ork for energy liberalisation.73  
65. The sector inquiry into the retail ba nking sector found a number of competition 
concerns in the markets for payment car ds, payment systems and retail banking 
products, e.g. highly concentrat ed markets in many Member States, large variations 
in merchant fees across the EU, large vari ations in interchange fees between banks 
across the EU, high and sustained profitabi lity particularly in card issuing and 
divergent techni cal standards.74 The impact of the inquiry on the retail banking 
market is multifaceted: the sector inquiry findings lent support to existing enforcement cases, in particular in the payment cards area. New areas of investigation have emerged, both for the Commission and for national competition authorities. Already after th e publication of its interim report on payment cards and 
systems, the Commission met banks in some Member States
75 to discuss where self 
regulation could address competition concerns and several market players have taken steps to address the Commission’s concer ns. Several of the market barriers 
highlighted by the sector inquiry are addres sed in the context of the discussions on 
SEPA (Single Euro Payments Area).
76 Moreover, the knowledge of the market 
obtained in the course of the sector i nquiry contributes to  other Commission 
initiatives than competition law enforcement.77  
66. The business insurance sector inquiry iden tified concerns about the operation of two 
areas of business in surance. Firstly, it highlighted  long-standing and widespread 
industry practices in the reinsurance and coinsurance markets involving the 
alignment of premiums, which may lead to higher prices for large risk commercial 
insurance. The report left open the question of whether these constitute infringements 
of the prohibition on restrictive business practices (Article 81 EC), but invited 
industry either to justify the business pract ices concerned under the competition rules 
or to reform them. Secondly, the Commissi on also confirmed its concerns as to 
transparency of remuneration and conflicts of interest in  insurance brokerage which 
may inflate prices and reduce choice, in particular for SMEs. This issue will be 
further explored in the context of the re view of the Insuran ce Mediation Directive 
2002/92/EC. Finally, the sector inquiry has al so provided useful data which will be 
                                                                                                                                                         
network (including the system operation activities) in order to bring to an end two investigations 
respectively in the German wholesale electricity market and in the German balancing market. See 
http://ec.europa.eu/competition/antitrust/cases. 
72 RWE Gas Foreclosure, see Commission Pr ess Release IP/09/410 of 18/03/2009. 
73 The EU Electricity & Gas markets: thir d legislative package, September 2007; 
http://ec.europa.eu/energy/e lectricity/package_2007. 
74 Final Report, COM(2007)33 final, 31 January 2007. 
 http://ec.europa.eu/competition/sectors/financial_services/inquiries/retail.html   
75 Austria, Finland and Portugal. 
76 See Commission Press Release, IP/07/114 of 31 January 2007. 
77 Green Paper on Retail Financial Services of 30.04.2007, COM 2007 226 final. 
EN 24   EN fed into the review of the Insu rance Block Exemption Regulation78, a report on the 
functioning of which was adopted by the Commission on 24 March 2009.79 
67. The most recent sector inquiry was launched on 15 January 2008 into the 
pharmaceutical sector rela ting to the introduction of innovative and generic 
medicines for human consumption onto the market. The inquiry was launched in response to indications that fewer new me dicines were brought to market and the 
entry of generic medicines seemed to be delayed. The preliminary findings presented 
on 28 November 2008
80 suggest that there is evidence that originator companies have 
engaged in practices with the objective of  delaying or blocking market entry of 
competing medicines. It seems that such practices vis-à-vis generic companies include multiple patent applications for the same medicine (so-called patent clusters), initiation of disputes and litigation, conclusi on of patent settlements which constrain 
market entry of generic companies and interventions before national authorities when generic companies ask for regulatory approvals. The preliminary findings also indicate that, where successful, these practi ces result in significant additional costs 
for public health budgets – and ultimatel y taxpayers and patients – and reduce 
incentives to innovate.
81 The preliminary findings al so suggest that companies 
applied defensive patenting strategies, primarily aimed at blocking competitors in the development of new medicines. The Co mmission will publish a final report in 
summer 2009. 
68. Article 17 of Regulation 1/2003 enables the Commission to exercise its investigative 
powers under Articles 18, 19, 20 and 22 of Re gulation 1/2003 in the context of a 
sector inquiry. The pharmaceutical sector inquiry is the first Commission sector 
inquiry that has been started with unannounc ed inspections at the premises of a 
number of originator and generic pharmaceutical companies. Unannounced inspections are organised not ably to prevent the risk of documentation relating to 
possible anti-competitive practices being conc ealed, withheld or destroyed if other 
investigative means are used. In this part icular inquiry, the ki nd of information the 
Commission examined, notably concerning th e use of intellectua l property rights, 
litigation and settlement agreements cove ring the EU, is by its nature highly 
confidential. Such information may also be  easily withheld, conc ealed or destroyed. 
For these reasons, the Commission decided that immediate access to all such 
information was necessary. The knowledge  acquired by the Commission during the 
sector inquiry has allowed the Commission to identify various competition concerns 
and to launch individual investigati ons. On this basis further unannounced 
inspections were organised at several pharmaceutical companies on 24 November 
2008.
82  
                                                 
78 Commission 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). 
79 See Commission Press Re lease, IP/09/470 and 
http://ec.europa.eu/competition/sectors/financial_services/insurance.html 
80 See Commission Press Release, IP/08/1829; Report published on 
http://ec.europa.eu/comm/competition/s ectors/pharmaceuticals /inquiry/index.html. 
81 The preliminary report takes a sample of medicines th at faced loss of exclusivity  in the period 2000 to 
2007 in 17 Member States and estimates that additional savings of around € 3 billion would have been 
possible on that sample over this period if generic medicines had entered the market without delay. 
82 See Commission Press Release, IP/08/734 of 24 November 2008. 
EN 25   EN 69. Respondents to the stakeholder consultation ha ve criticised the use of inspections in 
the context of a sector inquiry. However, th e power to conduct sect or inquiries in the 
Regulation is a genuine investigation power  aimed at effective enforcement. It 
therefore includes the right  to conduct inspections und er Article 20 which are 
necessary for carrying out the sector inquiry  concerned. The use of inspections in a 
particular sector inquiry is carefully assessed by the Commission and depends on the 
circumstances of the individual inquiry a nd notably on the type of information the 
Commission needs for its investigation. Simila rly, stakeholders have raised the scope 
of questionnaires addressed to  undertakings in the contex t of sector inquiries. The 
Commission recognises that re plies to information requests can be resource and time-
intensive, however, it considers that it does not go beyond what is  necessary to fully 
understand the markets concerned and the re lationships between th e market players. 
Without this key data, the findings of the sector inquiries would be less robust and 
could lead to erroneous or dist orted conclusions by the Commission. 
3.2.3.  Inspections in business premises 
70. Unannounced inspections in business premises have always been the Commission’s 
most important tool in its fight against cartels and other anticompetitive behaviour. 
Already provided for by Regulation 17, these powers have been reinforced by Regulation 1/2003 and further enhanced by ne w provisions which are set out in more 
detail below. Between 1 May 2004 a nd the end of 2008, the Commission conducted 
29 inspections in cartel cases. It also undert ook inspections in the framework of the 
pharmaceutical sector inquiry and other antitrust cases. 
71. The Community Courts in Hoechst
83, Roquette84, and more recently in France 
Télécom85, have confirmed the powers of invest igation conferred on the Commission 
by Regulation 17 and now by Regulation 1/2003. 
72. Article 20(2)(d) of Regulat ion 1/2003 confers on Commi ssion inspectors the power 
to seal premises, books and records insofar as it is necessary for the inspection. It 
permits a more extensive inspection to be conducted without the risk that documents 
will be removed. Seals have been regularl y used during inspections since 2004. They 
are particularly useful when a considerable  number of offices need to be inspected, 
numerous documents are found which cannot al l be copied and registered in one day 
and when Forensic IT is used which often requires overnight sc anning of IT files. 
Pursuant to Article 23(1)(e) of the Re gulation breaching the seals affixed by the 
Commission may lead to a fine of up to 1% of the annual turnover of the 
undertaking.86  
73. Article 20(2)(e) empowers the Commission dur ing inspections in business premises 
to "ask any representative or member of staff of the undertaking or association of 
undertakings for explanations of facts or doc uments relating to the subject-matter and 
purpose of the inspection and to record the answers". Failure to comply can attract fines and/or periodic penalty  payments on the company in accordance with Articles 
23 and 24. The power to ask questions has been a successful instrument in 
                                                
 
83 Joined Cases 46/87 and 227/88 Hoechst AG [1989] ECR 2859, para 26. 
84 Case C-94/00 Roquette Frères SA [2002] ECR I-9011, para 42. 
85 Cases T- 339/04 and T-340/04 France Télécom v. Commission [2007] ECR II-521, paras 49-53. 
86 See in this context below , the E.ON seals case, part 3.5.6. 
EN 26   EN Commission inspections in the last five year s. In particular, in complex cartel cases 
where cartel members acted in a very sophist icated way to hide any traces of their 
unlawful conduct, factual questions to sta ff members have enab led the Commission 
to obtain access to relevant information.87  
3.2.4.  Commission inspections in non-business premises 
74. The most significant extension of the Commission investigation powers was 
introduced by Article 21 of Regulation 1/2003 in the form of inspections in other than business premises, includi ng for instance the homes of  directors, managers and 
other members of staff of  the undertakings and asso ciations of undertakings 
concerned. This power can only be exerci sed by Commission d ecision and requires a 
reasonable suspicion that books or other r ecords relating to the business and to the 
subject-matter of the inspection, which may be  relevant to prove a serious violation 
of Article 81 EC or Article 82 EC, are kept  there. Given the serious intrusion into 
private life, such inspections can only be executed with prior j udicial authorisation.
88 
75. The first inspection of private premises t ook place in the contex t of the marine hose 
cartel investigation. In Ma y 2007, Commission inspectors carried out an inspection 
of the premises of several marine hose producers in France, Italy and the United 
Kingdom.89 Simultaneously a Commission team inspected the private premises of a 
director of one of the undertakings con cerned in the UK. The evidence found in the 
course of these inspections and in particular in the private premises enabled the 
Commission to fine the marine hose pr oducers involved € 131 million for market 
sharing and price-fixi ng cartel in January 2009.90 This first successful experience has 
proven that the new investigation tool intr oduced by Article 21 is very important for 
the Commission in its fight against carte ls which have become more and more 
complex and where efforts to hide evidence of forbidden activitie s have significantly 
increased during the last years. Another inspection in private premises has taken 
place in 2008.91 
3.2.5.  Legal professional privilege 
76. The principle of legal privilege as an unw ritten limitation of the Commission's power 
to inspect was recognised by the Court of Justice in the AM&S92 case. The question 
of an extension of legal privilege to in-house lawyers had been argued by certain 
proponents at the time of the adoption of Re gulation 1/2003 and was raised anew in 
the public consultation for the Report.  
                                                 
87 For instance in case COMP/F/38.899 "Gas insulate d switchgear" – GIS, Commission Decision of 24 
January 2007, http://ec.europa.eu/competition/cartels/cases. 
88 See Article 21(3) of Regulation 1/2003.  
89 See Commission Press Release, IP/07/163 of 3 May 2007. 
90 See Commission Press Release, IP/09/137 of 28.1.2009; see also OFT Press release 70/07 
(http://www.oft.gov.uk/news/press/2007/70-07). 
91 The case is still pending. 
92 Case 155/79 AM& S [1982] ECR 1575; see also  Case T-30-89 Hilti [1990] ECR II-163, para 18. 
EN 27   EN 77. In Akzo93 the Court of First Instance recently confirmed the AM&S  jurisprudence, up-
holding a uniform European standard for le gal privilege in Commission inspections 
and providing clarifications about the materi al and personal scope  of the privilege 
rule and about the procedure to be followe d when dealing with contested claims of 
legal privilege dur ing inspections.94  
78. The Court of First Instance rejected legal privilege for lawyers who are in a 
relationship of employment with a co mpany other than a law firm (in-house 
lawyers), relying notably on the lack of st ructural independence inherent to their 
position. It expressly rejected the argumen t that the abolition of the notification 
system and the ensuing extended need for self-assessment pleaded for an extension 
of legal privilege.95 Moreover, the Court of First Instance held that the evolution of 
national legislation which ha d been alleged by the applicants does not support a 
general finding that in-house lawyers should be covered by legal privilege.96 The 
question of legal privilege for in-house lawyer s is further pending before the Court of 
Justice following the appeal of the Akzo  judgment.97 
3.2.6.  Inspections by national competition author ities at the request of the Commission 
79. Article 22 of Regulation 1/2003 is based on former Article 13 of Regulation 17 and 
has been adapted to the new enforcement system. It enables national competition authorities to carry out insp ections or other fact-finding measures on their territory 
on behalf and for the account of anothe r competition authority (paragraph 1)
98 and 
inspections upon request by the Commission (p aragraph 2). In both cases, Article 22 
inspections are carried out in accordance w ith the national law of the Member State 
where the inspection or fact-finding measure takes place. The assisting authority may 
use all investigative tools at its disposal i ndependently of the fact  that they may differ 
from the investigative tools at the disposal of the requesting authority. 
80. As was the case in Regulation 17, national competition authorities are obliged to 
carry out an inspection where the Commissi on requests it. The Commission has used 
this provision in the context of the Flat glass  investigation in France and in Germany 
in February 2005.99 It is potentially useful, in part icular in investigations where a 
rather large number of site s need to be inspected simultaneously and the Commission 
would otherwise not be able to cover all in spection sites. Nevertheless, practical and 
legal issues have so far prevented extensiv e use of this provisi on. Inter alia, Article 
22(2) tends to import the differences in procedures in the Member States into Commission procedures. Uncertain ties have occasionally also  arisen with regard to 
                                                
 
93 Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akzo Chemicals v. Commission, 
[2007] ECR II-3523. The President of the Court of First Instance had issued an order granting interim 
measures (Order of 30.10.2003) which was then reversed by the Court of Justice (Order of 27.9.2004). 
94 Legal professional privilege covers also preparatory documents even if they were not exchanged with a 
lawyer or were not created for the purpose of being sent physically to a lawyer, provided that they were 
drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of defence. The mere fact that a document has been discussed with a lawyer is not sufficient to give it such 
protection (para 123 of the judgment). 
95 Ibid., para 172. 
96 Ibid., para 170. 
97 Case C-97/08 P, OJ C128 of 24.05.2008, p.22. 
98 See below, part 5.4.2. 
99 See Commission Press Release IP/05/63 of 24 February 2005; see also Decision COMP/39.165 of 
28.11.2007, http://ec.europa.eu/competition/cartels/cases. 
EN 28   EN whether the transfer of ev idence should take place on th e basis of Ar ticle 12 or 
Article 22, but to date this has been satis factorily resolved. Further reflection on a 
possible clarification of the provision may be appropriate with a view to improve the 
effectiveness of this tool. 
3.2.7.  Requests for information  
81. Article 18 of Regulation 1/2003 gives th e Commission the power to obtain all 
necessary information from undertakings. This  power can be used at any stage in the 
Commission's procedure and is not limited to the fact-finding stage. It continues to 
be of high importance to the Commission, as obtaining such information enables it to 
develop a full analysis of the markets con cerned. Article 11 of Regulation 17 foresaw 
a two-stage procedure whereby failure to respond to a simple request was a prerequisite to a request by decision wh ich obliges the addressee to reply. Under 
Article 18 of Regulation 1/2003, the Commis sion has the choice to issue either a 
simple request or to proceed immediately to  a decision requiring that information be 
provided.  
82. Articles 23(1) and 24(1) provide for fine s and periodic penalty payments in the 
context of requests for information
100 and the availability of these measures has 
improved the effectiveness of requests for information. Nonetheless, experience of 
the last years has shown that in many in stances replies to simple requests were 
incomplete and/or were provided late. In the context of certain sector inquiries 
especially this was a mass phenomenon. Against this background, the Commission 
may consider more often using decisions pu rsuant to Article 18(3), as foreseen in 
Regulation 1/2003. 
3.2.8.  Voluntary Interviews 
83. Article 19 empowers the Commission to inte rview any natural or legal person who 
consents to be interviewed for the purpose of collecting information relating to the 
subject-matter of an investigation. Artic le 3 of Commission Regulation 773/2004 sets 
out further detail in this re gard The possibility to condu ct an interview pursuant to 
Article 19 has to be disti nguished from the right of the Commission to ask oral 
questions during on-site inspections pursu ant to Article 20(2)(e) and to impose 
sanctions on the undertaking concerned in cas e of incorrect or misleading answers.  
84. Interviews pursuant to Article 19 can be carri ed out in all investigations relating to a 
possible violation of Ar ticles 81 and 82 EC. The Commission has used this 
instrument regularly in the last years. Experience has shown that the absence of 
penalties for misleading or false replies ma y be a disincentive to provide correct and 
complete statements. It should be further re flected whether the effectiveness of this 
tool can be improved. 
3.3. Types of Commission Decisions in the new enforcement system  
85. Regulation 1/2003 equipped the Commission with a renewed set of types of decision 
that is geared towards the principal obj ectives of the Regul ation, effective and 
coherent enforcement. Chapter III of the Regulation provide s for Commission 
                                                 
100 See below, parts 3.5.6 and 3.5.7. 
EN 29   EN decisions concerning the finding and termina tion of an infringement (Article 7), 
interim measures (Article 8), commit ments (Article 9) and a finding of 
inapplicability (Article 10). In the Comm ission's decision making practice during the 
reporting period, prohibition decisions pur suant to Article 7 and commitment 
decisions pursuant to Article 9 have been the most relevant tools.101  
3.3.1.  Prohibition decisions (Article 7) 
86. Article 7(1) of Regulation 1/2003 in the fi rst place empowers the Commission to find 
an infringement and order the undertakings co ncerned to bring it to an end. Article 7 
has been developed from Article 3 of th e now superseded Regulation 17. During the 
first five years of Regulation 1/2003, the Commission has adopted prohibition 
decisions with or without fines102 in a series of high-profile cases in sectors identified 
for priority enforcement. Several of thes e decisions – besides their impact on the 
conduct of the undertakings concerned – clar ified the conditions for prohibition and 
thereby gave a signal to other unde rtakings and other enforcers.  
87. Already shortly before the entry into e ffect of Regulation 1/2003, the Commission 
had adopted its decision impos ing a fine of € 497 million on Microsoft103 for abuse of 
dominant position in the PC operating system market by refusing to disclose interoperability information that would enable its competitors to fully interoperate with Windows PCs and servers and by tying Windows Media Player with its 
dominant Windows PC operating system. 
88. Throughout the reporting period, a number of  Commission decisions have addressed 
complex cases in important sectors. Many of these decisions at the same time 
provided significant precedential value fo r national competition authorities' 
enforcement activity in various sectors. For instance, the Commission Decision of 4 
July 2007 imposing fines on the Spanish incumbent telecoms operator Telefónica
104 
for abuse of its dominant position in the Spanish broadband market confirmed the 
Commission's methodology for the analysis  of margin squeeze and provided 
guidance to national competition authorities in similar scenarios. In MasterCard105 
the Commission addressed the complex area of multilateral interchange fees (MIFs) 
for cross-border payment card transacti ons with MasterCard and Maestro branded 
debit and consumer credit cards. The Commission case is at the centre of a cluster of enforcement actions by national competiti on authorities dealing with domestic 
payment transactions.
106 Similarly, already in 2004, the Commission adopted its 
                                                 
101 See Annex. 
102 See below, part 3.5. 
103 Commission Decision of 24 March 2004 relating to a proceeding pursuant to Article 82 of the EC 
Treaty and Article 54 of the EEA Agreement against Microsoft Corporation, OJ L 32, 06.02.2007, p. 23-28. Court of First Instance upheld the Commission decision in Case T-201/04, 17 September 
2007, ECR II-3601. 
104 Commission Decision of 04.07.2007 relating to proceedings under Ar ticle 82 of the EC Treaty (Case 
COMP/38.784 – Wanadoo España vs. Telefónica), OJ C 83, 2.4.2008, p. 6-9, 
http://ec.europa.eu/competition/antitrust/cases. 
105 Commission Decision of 19.12.2007 (COMP/34.579 MasterCard COMP/36.518 EuroCommerce and 
COMP/38.580 Commercial Cards). http:// ec.europa.eu/competition/antitrust/cases. 
106 See below, part 5.5.1. 
EN 30   EN decision in the Belgian Architects107 case which – together with further horizontal 
work in the context of the ECN – has gi ven an impulse for enforcement action by 
national competition authorities in numerous cases in the field of professional services.
108  
89. Cartels are the largest categ ory of infringements in which decisions have been 
adopted under Article 7. Within the re porting period many important cartels have 
been investigated and fined. High pr ofile cases were, for instance, the Car glass  
cartel109 where the Commission imposed the highest fines ever110, both for an 
individual company and for a cartel as a whole, on four producers of car glass for 
illegal market-sharing  and exchange of commercially sensitive information. In the 
Paraffin wax case111 nine big producers of paraffin waxes used in a variety of 
products such as candles were fined for their participation in a price-fixing and 
market-sharing cartel which had lasted from 1992 until 2005. Another decision of major importance concerned the Elevators and Escalators cartel
112 where four 
companies had run an illegal bid-rigging, price-fixing and market-sharing cartel in 
Belgium, Germany, Luxembourg and The Netherlands between 1995 and 2004. 
90. The Commission's policy of addressing deci sions to both the entities actively 
involved in the cartel activ ities and their parent or other companies exercising 
decisive influence over them has been largely confirmed by the Court of First 
Instance.113 Moreover, in AC Treuhand114 the CFI confirmed the Commission's 
decision to pursue and fine for the first tim e ever a third party, the consultancy AC 
Treuhand, which was found to have contribu ted actively and inte ntionally to the 
cartel in the sector of  organic peroxides. 
91. Already in the context of Article 3 of Re gulation 17, the European Court of Justice 
had confirmed that the Commission has the power to order the parties to take positive measures to bring an infringement to an end.
115 Article 7(1) of Regulation 
1/2003 now explicitly provides that the Co mmission may impose any behavioural or 
structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effec tively to an end. Structural remedies can 
only be imposed either where there is no  equally effective behavioural remedy or 
where any equally effective behavioural remedy would be more burdensome for the 
undertaking concerned than the structural remedy. Recital 12 further specifies that 
changes to the structure of an undertaki ng ("break-ups") would only be proportionate 
                                                
 
107 See Commission Press Release IP/04/800 of 24/06/2004 and Commission Decision in Case 
COMP/38.549. The Commission concluded that the scale of recommended minimum fees of the Belgian Architects Association was in breach of the EC competition rules. 
108 See below, part 5.5.1. 
109 Case COMP/39.125; Decision of 12 November 2008, see Commission Press Release IP/08/1685. 
110 Over € 1.3 billion. 
111 Case COMP/39.181; Decision of 1st October 2008, see Commission Press Release IP/08/1434. 
112 Case COMP/38.823; Decision of 21 February 2007, see Commission Press Release IP/07/209; 
published on http://ec.europa.eu/competition/cartels/cases/cases.html. 
113 Case T-85/06, Judgment of the Court of First Instance of 18.12.2008, General Quimica, not yet 
published; Case T-314/01, Avebe v. Commission, [2006] ECR II-3085; Case T-112/05, Akzo Nobel 
NV and Others [2007] ECR- II-5049. 
114 Case T-99/04, AC – Treuhand AG, Judgment of the Court of First Instance of 08.07.2008, not yet 
published. 
115 Cases 6-7/73, Istituto Chemiorerapico Italiano Spa and Commerical Solvents Corp. v Commission 
[1974] ECR 223. 
EN 31   EN where there is a substantial risk of a las ting or repeated infringement that derives 
from the very structure of the undertaking. 
92. The Commission has not so far imposed stru ctural remedies in prohibition decisions 
under Article 7(1). The power to impose stru ctural remedies under Article 7(1) has, 
nevertheless, positively contributed to the obtaining of structural changes as commitments under Article 9.
116 
93. Regulation 1/2003 also codified the case la w of the Court in GVL117 according to 
which the Commission, where it has a legitimate  interest, may, in principle, find that 
an infringement has been committed in the past, i.e. where such infringement has already come to an end, and without thus issuing a cease and desist order. The Court 
of First Instance gave a strict interpretati on to the notion of "legitimate interest" in 
Sumitomo
118, implying that the Commission must subs tantiate, in light of the facts of 
each individual case, the reasons why it c onsiders that the condition of legitimate 
interest is satisfied (e.g. a sp ecific risk of recidivism on the part of the undertakings 
concerned). In the reporting period, the Commission considered this possibility only 
in a few cases119, as its priorities are focused on pursuing the most serious on-going 
infringements. 
3.3.2.  Commitment decisions (Article 9) 
94. Article 9 of Regulation 1/2003 empowers th e Commission to adopt  a new type of 
decision by which it may make commitmen ts offered by undertakings binding and 
enforceable on them ("commitment decisi ons"). Commitment decisions are based on 
commitments voluntarily offered by the party or parties concerned and thus allow the 
Commission and the parties to conclude  cases in a more consensual mode. 
Commitment decisions do not make a findi ng of an infringement, nor do they 
conclude that an infringement would be  terminated as a consequence of the 
commitments. Article 9 adds considerable  value in comparison to Regulation 17, 
under which no enforcement possibility was available for cases concluded by 
informal commitments. The primary purpose of commitment decisions is to preserve effective competition and to obtain faster changes in the market for the future.  It is 
therefore used in cases in which the Comm ission considers that the commitments, if 
subsequently fully respected by the undertaking, sufficiently address its competition concerns.  
95. According to Recital 13 of Regulation 1/ 2003, commitment decisions are not, in 
principle, appropriate in cases in which th e Commission intends to impose a fine. For 
instance, in hard-core cartel cases fi nes are necessary, as the emphasis of 
enforcement is on punishing past behaviour and deterring anti-competitive practices. 
In other cases, the Commission has a margin of discretion in the choice offered to it 
under Regulation 1/2003, i.e. to make comm itments binding through the adoption of 
                                                
 
116 See below, part 3.3.2. 
117 Case 7/82, Gesellschaft zur Verwertung von Leistungsschutzrechten (GVL) v Commission, [1983] ECR 
483. 
118 Joined Cases T-22/02 and T-23/02 Sumitomo Chemical v Commission, [2005] ECR II-4065, para 138.  
119 Decisions COMP/38.662 – GDF/ENEL and GDF/ENI of 26.10.2004, see 
http://ec.europa.eu/competition/antitrust/cases. 
EN 32   EN a decision under Article 9 or to pursue the case under Article 7, involving a finding 
of an infringement.120 
96. The Commission has so far adopted 13 decisi ons under Article 9, rela ting to a variety 
of matters about which competition concer ns were expressed under both Articles 81 
and 82 EC.121 
97. The Coca-Cola, De Beers Distrigaz , and  RWE  involved concerns relating to possible 
exclusionary abuses of dominant positio n under Article 82 EC, the two E.ON cases 
involved concerns relating to possible ex ploitative abuses of a dominant position 
under Article 82 EC, and the DFB, FA Premier League, Repsol, Cannes Extension 
Agreement, Opel, Toyota, Fiat  and Daimler Chrysler  cases raised concerns under 
Article 81 EC. Whilst most Article 81 cases  involved vertical agreements with 
exclusivity clauses or conditions of supply to third parties, the cases DFB, FA 
Premier League  and the Cannes Extension Agreement  concerned horizontal 
agreements. Except for E.ON and RWE , in which the Commission made structural 
commitments binding on the undertaking, all the commitments have been 
behavioural in nature. In se ctors where a number of infringements derive from the 
very complex nature of business decisions (e.g. decisions taken on an hourly or finer 
basis for a large portfolio of assets and/ or using a large number of non-programmable 
parameters) and from the structure (e.g. ve rtical integration)  of the operators, 
structural measures may indeed be necessary. 
98. On 11 October 2007, the Commission accepted commitments offered by Distrigaz to 
open the Belgian gas market by reducing the gas volumes tied in long-term contracts and thus allowing other gas suppliers to compete with Distrigaz and to build up a 
portfolio of customers.
122 On 26th November 2008, the Commission accepted the 
commitments offered by E.ON to open the German electricity markets to 
competition and bring to an end two separate investigations.123 In the first case, the 
Commission had concerns that E.ON may have withdrawn available generation 
capacity from the German wholesale electric ity markets in order to raise prices, and 
may have deterred investments in energy generation by competitors. In the second case, the Commission had concerns that the transmission subsidiary of E.ON may 
have favoured its production affiliate for providing balancing serv ices, while passing 
the resulting costs on to final consumers,  and may have prevented power producers 
from other Member States from exporti ng balancing energy into its transmission 
zone. Subsequently, E.ON offered to di vest around 5 000 MW of its generation 
capacity to address the concerns rega rding the wholesale market. E.ON also 
committed to divest its extra-high voltage network to meet the concerns on the electricity balancing market. The Commissi on has also recently accepted structural 
commitments proposed by RWE in the German gas market
124 The Commission had 
concerns that RWE may have abused its  dominant position on the gas transmission 
market, notably by means of its refusal to supply gas transmission services to third 
                                                 
120 Case T-170/06, Alrosa v. Commission [2007] ECR II-2601. 
121 See table in the Annex. 
122 Decision COMP/B-1/37.966 of 11 October 2007; see Commission Press Release IP/07/1487, 
 http://ec.europa.eu/competition/antitrust/cases. 
123 Decision COMP/B-/39.388 and 39.389 of 26th November 2008; Commission Press Release IP/08/1774; 
 http://ec.europa.eu/competition/antitrust/cases. 
124 See Commission Press Release IP/09/410 of 18/03/2009. 
EN 33   EN parties and by trying to lower the profit margins of its downstream competitors in gas 
supply. To address these concerns, RWE co mmitted to divest its existing Western 
German high-pressure transmission networ k to an independent purchaser, the 
acquisition by whom would not give rise to prima facie competition concerns. The Commission will closely monitor comp liance with these commitments. 
99. Article 9 pursues the objectiv e of enhancing efficiency an d effectiveness in dealing 
with competition concerns identified by the Commission where the undertaking(s) concerned voluntarily offer commitments with  a view to address these concerns. The 
choice of an Article 9 proceeding is t hus often guided by considerations of 
expediency, as the procedure normally allo ws saving administrative and investigative 
resources that would be required in an Artic le 7 procedure, as well as considerations 
about the effectiveness of commitments proposed for solving market problems expeditiously.  
100. Article 9 requires that the Commission ex presses its competition concerns in a 
preliminary assessment vis-à-vis the unde rtaking(s) concerned. The preliminary 
assessment principally creates the opport unity for the Commission to make its 
competition concerns known to the parties at an earlier stage of the proceedings with 
a view to open commitment discussions. The preliminary assessment does therefore 
not need to have the level of detail required for a st atement of objections, which 
produces procedural efficiencies. 
101. Article 27 (4) of Regulation 1/2003 provide s for a market test inviting interested 
third parties to submit their observations within a fixed time limit, before the commitments can be finally accepted. To this end, the Commission is obliged to 
publish in the Official Journa l a concise summary of the cas e and the main content of 
the commitments. 
125  
102. Experience so far indicates that the in strument of commitm ent decisions has 
functioned well and has in several cases serv ed as an effective means to address the 
competition problems at issue. As commitment decisions result from the parties' initiative and willingness to offer commitments, the same parties tend to be more readily inclined to implement their own voluntary commitments. Commitment 
decisions are also less likely to be ch allenged before the Community Courts than 
prohibition decisions. Indeed, thus far few commitment decisions adopted by the 
Commission have been subject to appeal at the Court of First Instance by third 
parties directly affected by the decision.
126 Consequently, Article 9 decisions have 
helped to expedite market changes. Th rough the lesser litigation burden and other 
procedural economies, Article 9 has theref ore also contributed favourably to the 
resource allocation within the Directorate General for Competition, freeing resources 
for the prosecution and punishment of the most serious infringements.  
103. Notwithstanding, in Alrosa , the Court of First Instan ce annulled the Commission 
Decision 2006/520/EC of 22 February 2006 (De Beers), for breach of the principle of 
proportionality and the right to be heard. Th e Court in particular considered that, 
according to the principle of proportionalit y, commitments made binding on the basis 
                                                 
125 In this regard, see also Case T-170/06, Alrosa v. Commission [2007] ECR II-2601, para 196. 
126 In Case T-170/06, Alrosa v. Commission the Court of First Instance annulled the Commission Decision 
2006/520/EC of 22 February 2006 (De Beers).  
EN 34   EN of Article 9 must be strictly aligned on remedies that the Commission could have 
imposed in a proceeding under Article 7, thereby requiring a parallel analysis 
independent of the commitments offered by the party/ies concer ned. The judgment of 
the Court of First Instance  is currently under appeal to the Court of Justice.127 
104. Furthermore, there is a perception that the overall duration of the administrative 
proceedings in certain cases decided under Article 9 was relatively long and did thus 
not fully yield the efficiencies pursued by th e Regulation. In this context, it can be 
highlighted that the majority of cases deci ded under Article 9 so far had been started 
under Regulation 17 and thus entered the commitment route after May 2004 (i.e. cases DFB, Distrigaz, De Beers, Coca-Col a, FA Premier League, Repsol, Cannes 
Extension Agreement ). This case experience illustrates generally that a late switch 
from the prohibition to the commitment route may entail significant delays in the procedure, ranging from nearly four years ( De Beers, Cannes Extension Agreement ) 
to around seven years ( DFB, Distrigaz ). Even though in cases in which a statement 
of objections has been issued, from a proced ural perspective, the requirement of the 
preliminary assessment is fulfilled, a ma rket test under Article 27(4) is still 
necessary. In most of these cases, the diffi culty in arriving at a satisfactory outcome 
on substance has led to relatively prolonged discussions with parties before it was 
possible for the Commission to accept co mmitments. The procedure has generally 
been shorter in cases which followed the entry into force of Regulation 1/2003. The 
car cases took less than three years each, wh ereas the E.ON cases were concluded in 
a comparatively limited time-span of less than two years.  
105. It is also noted that the commitment pr ocedures, as retained by some of the 
legislators of the Member States for the national competition authorities, differ from the Commission procedure.  
3.3.3.  Effects of commitment decisions 
106. Feedback from the legal and business comm unities pointed to a certain number of 
queries about the effects of commitment decisions, including notably the issue of 
enforcement action by national competition authorities in relation to competition concerns covered by a Commission commitment decision. The Commission's 
experience has also shown that the possibil ity for the national authorities to bring 
cases relating to the same subject matter may complicate negotiations on commitments in some cases.  
107. Recitals 13 and 22 specify that commitment decisions are without prejudice to the 
powers of national competiti on authorities and courts to find an infringement and 
decide upon the case. Nationa l authorities may thus in principle adop t a prohibition 
decision regardless of the Commission's commitment decision concerning the same 
subject matter. Moreover, Article 16 of  Regulation 1/2003, according to which 
national competition authorities and courts mu st not adopt decisions that run counter 
to those adopted by the Commission, does no t appear to preclude such a finding.
128 
                                                 
127 Case C-441/07 P, OJ C 283 of 24.11.2007, p.22. 
128 The position could arguably be different where a national competition authority or a national court 
requires an undertaking to carry out actions that conflict with the commitments made binding by the 
Commission decision, i.e. where the undertaking could not implement the obligations imposed by 
national authorities without breaching its  commitments. It has been argued in doctrine that this scenario 
EN 35   EN The finding of an infringement is not in  conflict with a Commission decision that 
limits itself to concluding that there ar e no longer grounds for action on the part of 
the Commission.129 This corresponds to the overall thrust of the Regulation which 
expressly differentiates commitment decisi ons from the former exemption decisions 
which had a blocking effect on national competition authorities and courts.  
108. In the context of public enforcement, th e matter has, however, rarely arisen in 
practice. One such instance arose in the Coca-Cola case , where certain national 
competition authorities conducted parallel pr oceedings which were closed after the 
Commission's commitment decision of 2005.130 The Greek competition authority, in 
turn, had adopted a prohibition decision against Coca Cola under Greek competition 
law in 2002 and imposed periodic penalty payments for non-compliance with that 
decision in 2006131, i.e. after the Commission had adopted its commitment decision. 
The approach of the national competition authority did not conflict with the 
Commission's commitment de cision and could be impl emented by the undertaking 
concerned on the local market. Generall y, the Commission stri ves in commitment 
cases to address the competition concerns in  such a way that parallel enforcement 
action by the national competition authorities within the territorial  coverage of the 
Commission decision should in principle not be needed.  
109. A different question is to which extent commitment decisions, notwithstanding their 
limited legal effects on other enforcers, can  serve as a model for addressing similar 
situations. The Commission's commitment pr actice has been seen as acting in this 
way in several instances. In Distrigaz , for instance, the decision under Article 9 set 
out guidance on the Commissi on's approach toward fo reclosure by long term 
contracts. Similarly, following the co mmitment decisions adopted by the 
Commission in the four car cases (see table in the annex), Citroën offered 
commitments in the context of a French pr ocedure which also related to technical 
information.132 Moreover, in the area of marketing of media rights for sports events, 
the Commission has, after adopting co mmitment decisions in the cases DFB  and FA 
Premier League , considered that further action in this field should not be a priority 
for it as the existing commitment decisions appeared to provide sufficient orientation to operators and national competition authorities to deal with domestic media markets effectively and consistently.  
3.3.4.  Interim Measures (Article 8) 
110. Article 8(1) of Regulation 1/ 2003 provides that in cases of urgency due to the risk of 
serious and irreparable harm to comp etition, the Commission, acting on its own 
initiative, may order interim meas ures by decision, on the basis of a prima facie 
                                                                                                                                                        
 
would attract the application of Article 16. See e.g. Gippini-Fournier, E. The Modernisation of 
European Competition Law: First Experiences with Regulation 1/2003, in FIDE XXIII Congress Linz 
2008, Congress Publications Vol. 2, p. 404. Article  16 codifies the judgment of the Court of Justice in 
Case C-344/98 Masterfoods [2000] ECR I-11369, in which the Court of Justice held that the national 
competition authorities and courts cannot adopt decision s that run counter to decisions adopted by the 
Commission. 
129 The position is different for Article 10 decisions which foresee a formal fi nding of inapplicability.  
130 The Spanish competition authority closed its proceedings on 15 July 2005.   
131 See Decisions of the Hellenic Competition Co mmission 207/III/2002 and 309/V/2006, and Press 
Release of 14.06.2006, available at: http://www.e pant.gr/news_details.php?Lang=en&id=89&nid=59. 
132 Décision du Conseil de la Concurrence 07-D-31 of 9 October 2007. 
EN 36   EN finding of infringement. While Regulation 17 did not explicitly provide for interim 
measures, the European Cour t of Justice had held that  the Commission had the power 
to impose such measures.133 
111. Interim measures can only be adopted where there is a risk of serious and irreparable 
harm to competition, not only to an individual undertaking or a competitor. The purpose of Articles 81 and 82 EC  is indeed to protect comp etition in the market, and 
the Commission, as a competitio n authority, acts in the public interest to protect 
competition, whereas national courts are co nsidered better placed to protect the 
interests of indi vidual companies.
134Against this background, the Commission has 
not made use of Article 8 in its deci sional practice during the reporting period.  
3.3.5.  Finding of inapplicability (Article 10) 
112. Another new type of decision is introdu ced by Article 10 of Regulation 1/2003 which 
empowers the Commission to adopt decisions  finding that an ag reement or practice 
does not infringe Article 81 or 82 EC, wh ere the Community public interest so 
requires. The Commission, acting on its ow n initiative, may by decision find that 
Article 81 EC is not applicab le in a certain case, either  because the conditions of 
Article 81(1) EC are not fulfilled or because  the conditions of Article 81(3) EC are 
satisfied. The Commission may likewise make such a finding with reference to Article 82 EC. The Commission has the excl usive power to adopt such decisions 
which are binding on national competiti on authorities and national courts. 
113. The Commission has not, to date, adopted a ny decisions under Arti cle 10. It has been 
stated by some stakeholders that greater legal certainty would be guaranteed if the 
Commission were to adopt decisions  under Article 10 of Regulation 1/2003. 
However, this view disregards the purpose of Article 10 as defined by the 
Regulation. The use of the te rm "Community public intere st" in Article 10 excludes 
the adoption of such decisions in the interest s of individual companies, to avoid this 
instrument being used as a replacement for the exemption decision under the old 
system. The terms of application of Article 10 have been clearly defined so that its 
use is confined to "exceptional cases"
135 to clarify the law and ensure its consistent 
application throughout the Community, namely : (i) to "correct" the approach of a 
national competition authority; or (ii) to  send a signal to the ECN about how to 
approach a certain case. 
114. In practice, however, such an ex ante mean s of ensuring consistency has largely been 
overtaken by the extensive efforts of the EC N in promoting the coherent application 
of the EC antitrust rules. The extent to which the ECN has proven to be a successful 
forum to discuss general policy issues was not anticipated at th e time of the adoption 
of Regulation 1/2003. Horizontal working gr oups and sector-speci fic subgroups have 
been set up where the case-handlers of the different authorities have been extremely 
proactive in exchanging views and learning from each others’ experiences with 
                                                 
133 Case 792/79 R, Camera Care v Commission [1980] ECR 119, paras 17-18. 
134 See para 16 of the Commission Notice on the handling of complaints under Articles 81 and 82 EC (OJ 
C 101, 27.4.2004, p.65-77). 
135 Recital 14 of Regulation 1/2003 states: " In exceptional cases where th e public interest of the 
Community so requires… ". 
EN 37   EN particular issues or with particular s ectors. Against this background, the Commission 
has had no reasons to proceed under Article 10 to date. 
3.4. Handling of complaints 
3.4.1.  General  
115. Regulation 1/2003 has taken over from Regulat ion 17 the possibility for persons that 
are able to show a legitimate interest to be (formal) complainants that enjoy certain 
procedural rights.136 The details of the procedure to be followed are set out in 
Commission Regulation 773/2004137 and in the Commission Notice on the handling 
of complaints by the Commission under Articles 81 and 82 EC.138 The handling of 
complaints is further governed by ca se law of the Community Courts. 
116. Complaints are an important tool to tr igger cases. Complainants often provide 
information which is indispensable for the investigation of an anti-competitive conduct as they are close to the facts. E xperience has shown that, in particular in 
non-cartel cases for which leniency is not avai lable, complaints are an important tool 
to discover anti-competitive conduct. Most  prominent examples in the field of 
Article 82 EC are the Microsoft  and Telefonica  investigations.
139 In the area of 
Article 81 EC complainants have al so provided valuable information.140 
3.4.2.  Non-priority complaints 
117. A large number of complaints are not about competition i ssues that are enforcement 
priorities for the Commission and they ar e consequently not followed up by the 
Commission by an in-depth investigation. Under the current legal framework, these 
complaints nonetheless trigger an  administrative procedure.  
118. The entry into application of Regulation 1/2003 introduced the possibility to re-
allocate cases to Member States' competition authorities and to reject complaints in a simplified procedure on the gr ound that one or seve ral of the la tter is or are dealing 
with a case.
141 This mechanism is now well established within the ECN. Several 
cases have been re-allocated from the Commission to national competition 
authorities. It is applied to complaints that – while not a priority for the Commission – are prima facie worthwhile investigating by a national competition authority and that a national competition authority is in terested in pursuing. Since 1 May 2004, the 
Commission rejected 29 complaints pur suant to Article 13 of Regulation 1/2003.
142 
                                                 
136 See in particular Article 7(2) of Regulation 1/2003. 
137 OJ L 123, 27.4.2004, p. 18-24. 
138 OJ C 101, 27.4.2004, p.65-77. 
139 Commission Decision of 24.3.2004, Microsoft, COMP/C-3/37.792, Complaint by Sun Microsystems, 
Inc.; New proceedings initiated against Microsoft on the basis of a complaint by ECIS in January 2008 
– Case COMP/C-3/39.294; Commission Decision of 4.7.2007, Wanadoo Espana vs. Telefonica, Case 
COMP/38.784. 
140 For instance in the field of financial services in  the context of the Single European Payments Area 
("SEPA"); see on this subject for instance Commission Press Release IP/09/468 of 24 March 2009 with 
further references.  
141 Article 13 of Regulation 1/2003 and Article 9 of Regulation 773/2004. 
142 See Case T-153/06. The case was later withdrawn. S ee in this context also Case C-53/03, Syfait, [2005] 
ECR I-4609.  
EN 38   EN However, the majority of incoming complaints  are complaints that do not give rise to 
any priority case, neither by the Commission nor by a national competition authority.  
119. Besides Article 13 of Regulation 1/2003, th e Commission may reject an antitrust 
complaint on substance or for lack of Community interest. The Community Courts143 
have recognised that the Comm ission is entitled to give differing degrees of priority 
to the complaints that it receives and that  it may rely on this concept for rejecting 
complaints. Since Regulation 1/2003 was intended to enable the Commission to focus on prosecuting the most serious in fringements, complaints have been 
increasingly rejected for lack of Community interest.  
120. The Commission has made public a list of criteria which it in tends to use when 
examining whether or not complaints s how sufficient Community interest. The 
criteria were published in the Annual Report on Competition Policy 2005 adopted in June 2006.
144 Experience gained during the last years has shown that these measures 
have contributed to better focusing the en forcement resources of the Commission on 
priority case investigations.  
3.4.3.  Involvement of complainants in priority cases 
121. Where the Commission is acting on the basis of a complaint in view of the adoption 
of a prohibition decision145, complainants are associated closely with the 
proceedings.146 The precise procedural rights are set out in Article 6 of Regulation 
773/2004 which notably foresees that the co mplainant shall be provided with a copy 
of the non-confidential version of the st atement of objections. The procedure is 
different in case of a settlement procedure.147 
122. In many cases, complaints received in th e course of an already ongoing procedure 
can be very useful for the investig ation. The outcome a nd duration of an 
investigation may depend on the well-s ubstantiated information provided by a 
complainant. In only a limited number of cases where complainants come forward at 
a very late stage of already advanced proceedings, the handling of such late 
complaints can lead to certain delays in the proceedings. In such cases, the 
Commission may suggest to potential complain ants to consider ra ther the status of 
interested third person pursuant to Article 13 of Regulation 773/2004. 
123. To conclude, the Commission considers that substantiated complaints are an 
important tool for the detection of anti-co mpetitive conduct and have given rise to a 
number of priority cases. Ho wever, with regard to complaints that do not reveal 
priority case investigations, the Comm ission needs to examine further how the 
procedure may be streamlined. 
                                                 
143 Cf. in particular Case T-24/90, Automec II, [1992] ECR II-2223 and Case C-119/97 P, Ufex, [1999], 
ECR I-1341. 
144 Published on the Website of the Directorate General for Competition; Chapter 3.2, pt.26. 
145 Article 7 of Regulation 1/2003. 
146 Article 27(1) of Regulation 1/2003. 
147 Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions 
pursuant to Article 7 and Article 23 of Council Regulation (EC) N°1/2003 in Cartel cases, OJ C 167 of 2.7.2008, p.1-6; Commission Regulation N°622/2008 of 30 June 2008 amending Regulation (EC) 
N°773/2004, as regards the conduct of settlement proc edures in cartel cases, OJ  L 171 of 1.7.2008, p.3-
5. 
EN 39   EN 3.5. Fines and periodic penalty payments 
3.5.1.  The Commission's power to impose fines 
124. Regulation 1/2003 essentially took over fr om Regulation 17 the legal basis for 
imposing fines for breaches of the substant ive competition rules. In accordance with 
Article 23(2), the Commission may impos e fines on infringing undertakings and 
associations of undertakings that do not exceed 10% of their to tal turnover in the 
preceding business year. Fines with suffici ent deterrent effect, coupled with an 
effective leniency program, constitute the most efficient weapon in the Commission's 
armoury to fight cartels. In particular, deterrent fines prevent companies from 
entering into cartel agreements and entice cartelists to blow the whistle on existing cartels in return for immunity or a re duced fine under the leniency notice.  
125. The Commission's practice with regard to fine s has been extensively raised in replies 
to the stakeholder consultation, mostly pointing to legal questi ons of principle. In this 
context, it is noteworthy that the Commun ity Courts have reviewed a great number 
of fines imposed by the Commission and di d not find the level of fines to be 
disproportionate or excessive. The Courts have  also confirmed the legality of Article 
15(2) of Regulation 17 as th e legal basis for the Commi ssion to impose fines for 
infringements of Community competition rules and have rejected objections of 
illegality raised by parties to proceedings in a constant series of rulings. In the recent 
Degussa  case, the Court of First Instance and th e Court of Justice confirmed that the 
absence of further precision as to the am ount or method of calculation of fines in 
Article 15(2) of Regulation 17 (which set forth a ceiling on fines and criteria which 
allow to take into account the degree of illegality, namely the gravity and duration of the infringement) is not contrary to the principle of legality of penalties.
148 The case-
law which concerns Article 15(2) of Regula tion 17 is also pertinent for Article 23(2) 
of Regulation 1/2003 which replaced the fo rmer provision wit hout any substantial 
changes. The Community Courts have al so confirmed on va rious occasions the 
legality of the Commission's 1998 guideline s on the method of setting of fines.149 
Moreover, according to settled case-law, the proper application of the Community 
competition rules requires that the Commissi on may at any time adjust the level of 
fines to the needs of the Community compe tition policy, including an increase in the 
level of fines in individual cases  or by adopting fining guidelines.150 The Community 
Courts, while emphasising a wide discretion of the Commission in setting fines, have 
                                                 
148 See Case T-279/02, Degussa v Commission (Methionine), [2006] ECR II-897, para 66-98; the 
Judgment of the Court of Justice of 22 May 2008, Case C-266/06 P, Degussa v Commission, para 36-63 (not yet published); see also Case T-43/02, Jungbunzlauer v Commission (Citric Acid), [2006] ECR II-
3435, paras 69-92. 
149 Guidelines on the method of setting fines imposed pu rsuant to Article 15 (2) of Regulation No 17 and 
Article 65 (5) of the ECSC Treaty (98/C 9/03), OJ C 009, 14.01.1998, p. 3–5. See, for example, Case T-
23/99 LR AF 1998 v. Commission [2002] ECR II-1705, Case T-9/99 HFB and Others v. Commission 
[2002] ECR II-1487, Case T-15/99 Brugg Rohrsysteme v. Commission [2002] ECR II-1613, Case T-16/99 Lögstör Rörv. Commission [2002] ECR II-1633, Case T-17/99 KE Kelit v. Commission [2002] 
ECR II-1647, Case T-21/99 Dansk Rørindustri v. Commission [2002] ECR II-1681 and Case T-31/99 
ABB Asea Brown Boveri v. Commission [2002] ECR II-1881 (Pre-insulated pipes cartel), confirmed in 
Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P Dansk Rørindustri et al. 
v Commission, [2005] ECR I-5425. 
150 See, for example, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P 
Dansk Rørindustri et al. v Commission, [2005] ECR I-5425, para 227-232; see also Case T-279/02, 
Degussa v. Commission (Methionine), [2006] ECR II-897, para 81. 
EN 40   EN held that the Commission di d not have an unlimited discretion. Article 15(2) of 
Regulation 17 (now Article 23(2) of Regulation 1/2003) itself limits the 
Commission's discretion and, in addition, the Commission is bound to comply with 
the general principles of law, in particul ar the principles of equal treatment and 
proportionality.151 Moreover, the Community Courts have unlimited jurisdiction to 
review Commission decisions, whereby it im poses fines (Article 229 EC and Article 
31 of Regulation 1/2003).  
3.5.2.  New developments 
126. During the reported period, the Commission ha s revised certain existing tools and 
searched for new instruments in order to improve the enforcement of competition rules, in particular for a more efficient a nd swifter fight against cartels. Existing tools 
were further developed taki ng into account experience in the past years, with the 
view of increasing transparency and provi ding more guidance to undertakings as well 
as to respond to realities. The aim of ach ieving procedural economies in order to be 
able to use resources for other cases also played a vital role in this development. 
These tools include, in particular, a revise d Leniency Notice, revised Guidelines for 
setting fines and a new settlement procedure in  cartel cases. They have to be seen in 
the overall framework of instruments under Regulation 1/2003, for they derive their 
legal basis from the Regulation and contribute to the implementation of competition rules.  
3.5.3.  The Guidelines on fines 
127. On 28 June 2006, the Commissi on adopted new Guidelines
152 on the method of 
setting fines to be imposed on companies that infringe Articl es 81 and/or 82 EC. 
These Guidelines revise those adopted in 1998153, with a view to increasing the 
deterrent effect of fines. The ceiling of  10% of the undertaking's total annual 
turnover remained unchanged in the reform from Regulation 17 to Regulation 
1/2003. Within this limit, the revised Guide lines provide that fines may be based on 
up to 30% of the company’ s annual sales to which the infringement relates, 
multiplied by the number of years of participation in the infringement. In addition, a part of the fine, the so-called “entry fee”, may be imposed irrespective of the 
duration of the infringement in order to increase deterrence. An additional increase for deterrence (the so-calle d "multiplier") may be applied to take into account a 
particularly large turnove r of the undertaking beyond th e sales related to the 
infringement.  
                                                
 
151 Judgment of the Court of First Instance of 5 April 2006, Case T-279/02, Degussa v. Commission 
(Methionine), [2006] ECR II-897, para 77; the Judgment of the Court of Justice of 22 May 2008, Case 
C-266/06 P, Degussa v Commission, para 36-63 (not yet reported), para. 51. 
152 Guidelines on the method of setting fines impos ed pursuant to Article 23(2)(a) of Regulation 
No 1/2003, OJ C 210, 1.09.2006, p. 2-5, available at 
 http://ec.europa.eu/competition/antitrust/legislation/fines.html. 
153 Guidelines on the method of setting fines imposed pu rsuant to Article 15 (2) of Regulation No 17 and 
Article 65 (5) of the ECSC Treaty (98/C 9/03), OJ C 009, 14.01.1998, p. 3–5. 
EN 41   EN 3.5.4.  The 2006 Leniency Notice 
128. On 6 December 2006, the Commission adopted  a revised Notice on immunity from 
fines and reduction of fines in cartel cases154 (the "2006 Leniency Notice"). It is the 
third Commission leniency notice155 and sets out the framework for rewarding 
cooperation in the Commission investigation by undertakings which are or have been 
party to secret cartels affecting the Co mmunity. It is a revised version of the 
preceding 2002 Leniency Notice, a successful  instrument, which greatly contributed 
to detecting and putting an end to numerous cartels. It takes into account practice implementing the 2002 Leniency Notice and focuses on providing more guidance and increasing transparency.  
129. In particular, the 2006  Leniency Notice clarifies what information and evidence an 
applicant needs to provide to the Commission to  benefit from immunity from fines. It 
also clarifies the conditions for immunity and reduction of fines. Moreover, the 2006 Leniency Notice introduced a so-called marker system for immunity applicants. A marker protects an immunity applicant's pl ace in the queue for a specified period in 
order to allow for the gather ing of the necessary information and evidence required 
to meet the threshold for immunity from fines. The marker system is  discretionary 
(the Commission services may gran t a marker, where justified).  
130. Since the 2006 Leniency Notice entered into  force, the Commissi on has received, on 
average, two applications for immunity per month. 
131. The leniency policy enhances investigative effectiveness by the voluntary 
collaboration of undertakings involved in  cartels. As a reward, collaborating 
undertakings are granted immunity from fi nes (the first one to submit information 
and evidence about an alle ged cartel, provided all re quirements are met) or a 
reduction of a fine (for other undertaki ngs that provide the Commission with 
evidence which has significant added valu e and meet other requirements). The 
Community Courts have acknowledged th at cooperation with  the Commission 
investigation may be rewarded.
156 The leniency policy must  be understood within the 
framework of Commission's discretionary power s to set fines, in accordance with the 
limits set forth by Article 23 of Regulat ion 1/2003. The Community Courts have 
stated that the Commission's discretion to adju st the level of fines also applies to the 
leniency policy.157 This policy is inter alia  driven by the objectives of general 
prevention of infringements and of effective enforcement of the EC competition rules. Moreover, the Community Courts  have recognised the Commission's 
discretion to set conditions fo r leniency and have stated that its leniency programmes 
may create legitimate expectations for companies.
158 However, the legitimate 
expectations that undertakings are able to derive from the Leniency Notice is limited 
                                                 
154 OJ C  298, 08.12.2006, p. 17-22. 
155 The first notice was adopted in 1996  (Commission Notice on the non-imposition or reduction of fines in 
cartel cases, OJ C 207, 18.07.1996, p. 4-6), (the "1996 Leniency Notice").. On 19 February 2002, the 
1996 Notice was replaced by the 2002 Leniency Notice (OJ C 45, 19.02.2002, p. 3-5). 
156 See, for example, Case T-31/99 ABB Asea Brown Boveri v. Commission [2002] ECR II-1881, para 
238. 
157 See Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P, Dansk Rørindustri 
A/S et al. v Commission, [2005] ECR I-5425, para 456 and paragraphs referred therein.  
158 See for example Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P, Dansk 
Rørindustri A/S et al. v Commission, [2005] ECR I-5425, para. 394-396, 187-188 and 456. 
EN 42   EN to an assurance that their fines will be reduced by a certain percentage. The notice 
does not extend to the method of calculating fines or, a fortiori , to a specific level of 
the fine capable of being calculated at the time when the undertaking decides to 
implement his intention to cooperate with the Commission.159 Therefore, a 
Commission notice constitutes a proper le gal basis for the leniency policy.  
3.5.5.  Settlement procedure  
132. On 30 June 2008, the Commission introduced a settlement procedure in cartel 
cases.160 This new instrument allows the Commission to adopt a final decision in 
cartel cases through a simplified and quicker  procedure, freeing up resources to 
handle more cases. The Commission retain s a broad margin of discretion to 
determine which cases may be suitable for settlement. Parties have neither the duty 
nor the right to settle.  
133. In the settlement procedure, parties may choose to acknowledge their involvement in 
a cartel and their liability for it, in exch ange for a reduction of their fines by 10%. 
The Commission does not negotia te or bargain the use of evidence or the appropriate 
sanctions. However, the Commission effectiv ely hears the parties and gives them an 
opportunity to argue their ca se. This form of cooperati on is different from the 
voluntary production of information and ev idence under the Leniency Notice (see 
above). It is not aimed at collecting evid ence, but is a simplified procedure where 
parties acknowledge their involvement in a cartel and liability for it, having seen the evidence on which the Commission bases its envisaged objections. Where both a 
settlement reduction and a leniency reduc tion are applicable, they are applied 
cumulatively. In contrast to the commitme nt procedure under Article 9 of Regulation 
1/2003, the administrative proceedings al ways end with a decision finding an 
infringement and imposing fines, irrespectiv e of whether the standard procedure or 
the settlement procedure applies.  
3.5.6.  Recovery of fines from members of  associations of undertakings 
134. Article 23(4) of Regulation 1/2003 intr oduced a novel provision concerning the 
recovery of fines imposed on an associati on of undertakings taki ng account of the 
turnover of its members. It provides that in case the association is  not solvent, it is 
obliged to call for contributions from its members to cover the amount of the fine. 
Where such contributions have not been  made within a time-limit fixed by the 
Commission, the Commission may require payment of the fine directly by 
undertakings involved in the association according to the order set forth by that Article. By virtue of these provisions, members of an association are not fined 
themselves but may bear financial liability in order to ensure effective recovery of 
the fine when an infringement is committed by the association. However, such recovery shall not apply to undertakings which s how that they have not implemented 
                                                
 
159 See the Judgment of the Court of Justice in Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 
208/02 P and C-213/02 P, Dansk Rørindustri A/S et al. v Commission, [2005] ECR I-5425, para. 188. 
160 Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, 
as regards the conduct of settleme nt procedures in cartel cases, OJ  L 171, 1.7.2008, p. 3–5; Commission 
Notice on the conduct of settlement procedures in view  of the adoption of Decisions pursuant to Article 
7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases, OJ C 167, 2.7.2008, p. 1–6. See 
http://ec.europa.eu/comm/competition/cartels/legislation/settlements.html . 
EN 43   EN the infringing decision of the association and either were not aware of its existence or 
have actively distanced themselves from it before the Commission started investigating the case. The burden of proof  of these two cumulative conditions rests 
on undertakings. The Commission has not appl ied Article 23(4) dur ing the reporting 
period. 
3.5.7.  Fines for procedural infr ingements – seals case 
135. Regulation 1/2003 introduced more effec tive sanctions for non-compliance with 
obligations incumbent on undert akings in the context of investigations (Article 
23(1)).
161 In January 2008, the Commission made use of this provision for the first 
time and imposed a fine of € 38 million on the German energy company, E.ON Energie AG for the breach of a seal.
162 The Commission had f ound a seal broken on 
a door of E.ON’s premises during an inspection in May 2006. The breach of the seal occurred, at the very least, as a re sult of negligence, since it was E.ON’s 
responsibility to organise its own business sphere in such a way as to ensure that the 
instruction not to break the seal was complied with.
163 When setting the fine, the 
Commission considered that breaches of se als must, as a matter of principle, be 
regarded as a serious infringement. Accordingly, the level of the fine had to ensure that it had a sufficiently deterrent effect for E.ON, which is a large subsidiary of a major European energy company.
164 
3.5.8.  Periodic penalty payments to en force prohibition decisions  
136. Another important improvement introduced  by Regulation 1/2003 concerns periodic 
penalty payments that can be imposed fo r failure to comply with a Commission 
decision. In order to better ensure compliance with enforcement decisions, Article 
24(1) increased substantially the ceilings for these payments from those provided for in Regulation 17. The limit for periodic pena lties is now 5 % of the average daily 
turnover in the preceding business year per day. One main objective of the revised 
framework was to ensure effective compliance with Commission decisions. 
137. The Commission has had to use this provisi on notably in the case  of Microsoft for 
failure to comply with its obligation to make  interoperability information available to 
third parties on reasonable terms. In this case, the Commission had to adopt two decisions against Microsoft pursuant to Article 24(2) fixing the amount of the 
penalty payment for non-compliance w ith its obligations. These decisions
 were 
preceded by a separate decision165 under Article 24(1) imposing daily periodic 
penalty payments. The first decision fixed an amount of €280.5 million166 and the 
                                                 
161 The fines available under Regulation 17  had become highly ineffective.  
162 A non-confidential version of the decision is available under 
http://ec.europa.eu/competition/antitrust/cases/index/by_nr_78.html#i39_326. 
163 In this respect, the Commission also noted that E.ON had not informed all personnel authorised to enter 
the E.ON building, e.g. its cleaner, about the ex istence of the seal and the need to respect it. 
164 For more details see Oliver Koch and Dominik Schnichels, The E.ON seals case - € 38 million for 
tampering with Commission seals, in Competition Policy Newsletter 2/2008. 
165 See Commission Decision of 10.11.2005 imposing a periodic penalty payment on Microsoft 
Corporation (Case COMP/C-3/37.792 Microsoft). 
166 Commission Decision of 12 July 2006 fixing the definitive amount of the periodic penalty payment 
imposed on Microsoft Corporation by Decision C(2005)4420 final and amending that Decision as 
regards the amount of the periodic penalty payment (Case COMP/C-3/37.792 Microsoft). 
EN 44   EN second decision imposed a €899 million penalty on Microsoft.167 The case revealed 
that the multi-stage procedure foreseen in  Article 24 can prove relatively lengthy and 
cumbersome, requiring successive statemen ts of objections, oral hearings and 
decisions168, and may thus not be optimally designe d in view of th e objective pursued 
by the Regulation. The potential room for improvement in this area should be 
examined.  
138. In MasterCard169, the Commission used Article 24 in a simpler procedure, 
announcing directly in the Article 7 d ecision a penalty payment of 3.5 % of 
MasterCard's daily turnover for each day of non-compliance after the period of six 
months given to comply with the decisi on. Accordingly, there was no need for a 
separate decision under Ar ticle 24(1), but the failure  to comply with the 
Commission's decision before the fixed deadli ne would lead to the imposition of the 
definitive amount of the penalty paym ent in an Article 24(2) decision.  In June 2008, 
MasterCard temporarily repealed its cross- border MIF for consumer cards, while it 
continued to engage in discussions with the Commission.170 On 1 April 2009, the 
Commission took note of three undertakings  given by MasterCard regarding the 
calculation of its cross-borde r MIF for consumer cards, the repeal of scheme fee 
increases announced in 2008 and the introducti on of certain transparency enhancing 
measures.171 
4. APPLICATION OF EC COMPETITION LAW IN ACCORDANCE WITH ARTICLE 3 OF 
REGULATION 1/2003 
4.1. Introduction 
139. Article 3 of Regulation 1/2003 regulated fo r the first time the relationship between 
national competition law and the EC competition rules. It represents a major step forward in ensuring a more  level playing field for undertakings that are doing 
business in the internal market. Article 3 consists of two main elements: the 
                                                
 
167 Commission Decision of 27 November 2008 fixi ng the definitive amount of the periodic penalty 
payment imposed on Microsoft Corporation by Decision C(2005)4420 (Case COMP/C-3/37.792 
Microsoft. This decision concerns the period of non-compliance not covered by the penalty payment 
decision of 12 July 2006 (see Commission Press Release IP/06/979 ) covering the period between 21 
June 2006 and 21 October 2007. 
168 A complete set of the documents relating to the Microsoft procedure are found at: 
http://ec.europa.eu/competition/antitrust/cases/microsoft/index.html. For the implementation, see in particular: http://ec.europa.eu/competition/antitrus t/cases/microsoft/implementation.html, including 
IP/05/673 of 06/06/2005 (market test for new proposals from Microsoft on interoperability); 
Commission Decision of 10.11.2005 imposing a periodic penalty payment pursuant to Article 24(1) of Regulation No 1 ⁄2003 on Microsoft Corporation (Case COMP/C-3/37.792 Microsoft); Commission 
Press Release IP/05/499 of 22/12/2005 (Statement of Objections for non-compliance with March 2004 
Decision); Commission Decision of 12 July 2006 fi xing the definitive amount of the periodic penalty 
payment imposed on Microsoft Corporation by Decision C(2005)4420 final and amending that 
Decision as regards the amount of the periodic penalty payment (Case COMP/C-3/37.792 Microsoft); 
Commission Press Release IP/07/269 Date: 01/03/2007 (S O for failure to comply with certain of its 
obligations under the March 2004 Commission decision); Commission Decision of 27 November 2008 
(op.cit). 
169 See above, part 3.3.1. 
170 See Commission Press Release  IP/08/397 of 12/06/2008 . 
171 See Commission Press Release IP/09/525 of 01/04/2009. 
EN 45   EN obligation to apply contained in paragra ph 1 and the convergence rule set out in 
paragraph 2. Both elements have central functions in the Regulation. 
140. Article 3(1) obliges national competition auth orities and courts to apply Articles 81 
EC and 82 EC to agreements or conduct cap able of affecting trade between Member 
States. The obligation to apply EC competition law is intended to ensure that the EC competition rules are applied to all cases wi thin their scope. Compliance also entails 
that the cooperation mechanisms involvi ng the Commission and national competition 
authorities and courts, as set forth in Articles 11 to 13 and 15, are fully applicable in 
such cases and are not avoided by applying only national law.  
141. The convergence rule contained in paragraph 2, seeks to cr eate a level playing field 
by providing for a single standard of assessm ent which allows undertakings to design 
EU-wide business strategies without having to check them agains t all the relevant 
national sets of competiti on rules. In its current wording, the obligation of 
convergence covers only the application of national competition law to agreements, concerted practices and decisions by asso ciations of undertakings. Member States 
remain free to enact and maintain stricter national competition laws than Article 82 
EC to prohibit or sanction unilateral conduct.  
142. Overall, Article 3 can be characterised as one of the major successes of Regulation 
1/2003. Stakeholders from the legal and business communities have largely confirmed that Regulation 1/2003 has positivel y contributed to the creation of a level 
playing field, along with the substantive c onvergence of national laws with the EC 
competition rules. On the other hand, the divergence of standards regarding unilateral conduct was commented on critically by the business and legal communities.  
4.2. Obligation to apply Articles 81 and 82 EC 
4.2.1.  Effect on trade criterion and case record 
143. While Articles 81(1) and 82 EC could be  applied at Member State level under 
Regulation 17, there was no obligation to do so and many national competition 
authorities principally applied national comp etition law to the cases that they were 
dealing with. The obligation to apply the EC competition rules in Article 3(1) has led 
to a very significant increase in the appl ication of Articles 81 and 82 EC, thereby 
making the cooperation mechanisms of the Regulation fully applicable.  
144.  The jurisdictional criterion that delineates the scope of application of Articles 81 and 
82 EC, and thus the scope of the obligation to apply in Article 3, is the notion of 
effect on trade between Member States. This  concept has been clarified in extensive 
case law of the Community Courts. In or der to provide additional guidance, the 
Commission issued Guidelines  concerning the concept of effect on trade which set 
out a methodology for the application of the effect on trade concept and includes 
guidance on frequently occurring situations.172  
145. The Guidelines remain relevant to this  date as no significant change could be 
observed in the case law of the Community Courts. In particular, during the reporting 
                                                 
172 See Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, OJ C 101 of 
27.04.2004, p.81, with extensive references to case law. 
EN 46   EN period, the Court of First In stance confirmed, in a cartel case covering the territory of 
Austria, the established case law according to which horizontal ca rtels covering the 
whole of a Member State are normally capab le of affecting trade between Member 
States even where the members of the car tel had not taken specific measures to 
exclude foreign competitors from the market. 173  
146. The choice of the correct legal basis is the responsibility of the national competition 
authorities and courts in the in dividual case, in light of th e facts at hand. The rule in 
Article 3(1) is directly a pplicable and imposes unconditi onal and precise obligations 
on the enforcers concerned. Compliance with Article 3(1) ensures that cases come 
under the mechanisms of Regulation 1/2003. Unde rtakings can rely on Article 3(1) in 
proceedings before both national competition authorities and courts, including at the judicial review stage, to invoke the a pplication of EC competition law and of 
Regulation 1/2003.  
147. Based on the available information, it appears that there is generally a high degree of 
awareness on the part of national competition authorities and courts of the obligation to apply Articles 81 and 82 EC. After 1 May 2004, national competition authorities massively migrated to the application of the EC competition rules where trade may be affected. By the end of 2004, they had already informed the Commission of 200 
cases which they were handling on the ba sis of the EC competition rules.  
148. Moreover, for a large number of national co mpetition authorities, cases in which they 
applied the EC competition rules amounted to a significant share of their overall 
antitrust caseload. For inst ance, roughly one half of the enforcement decisions 
adopted by the Italian competition authorit y during the reporting period were based 
on Community law. The French competition authority applied EC competition law in 
nearly 40% and the Belgian, Danish and Du tch authorities in ar ound 30% of all cases 
dealt with in the antitrust field. In Po rtugal and Greece this ratio was approximately 
25 %, whereas Hungary and Sl ovenia were close to 20%.  
149. Insofar as certain national co mpetition authorities dealt wi th lower ratios of cases 
based on EC competition law, this can be due to a range of factors. Notably, the ratio will be crucially influenced by the priority setting applied by the respective national competition authorities. For instance, an authority that investigates numerous agreements or alleged abuses of local scope will have a lower percentage of cases based on EC competition law.
174 For the Member States th at joined the EU in 2004 
and 2007, and in particular Romania and Bulgar ia, the rate of app lication of Articles 
81 and 82 EC is also influenced by the peri od of applicability of those rules in their 
territories. Moreover, for some authorities,  the overall number of formal enforcement 
decisions is too small to make meaningful  conclusions about th e ratio of EC law 
cases decided. 
150. Feedback from stakeholders largely confirms that national competition authorities 
and courts in general appear to comply with their obligation to apply Articles 81 and/or 82 EC. Stakeholders raised few exam ples of alleged deviations. Moreover, in 
some Member States national courts have in  certain cases constr ued the criterion of 
                                                
 
173 Joined Cases T-259/02 to T-264/02 and T-271/02, Raiffeisen Zentralbank Österreich AG and others,  
ECR II-5169; the judgment is currently under appeal, Case C-125/07 P, OJ C 117 of 26.05.2007, p.7, 
174 Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, op cit., para 91. 
EN 47   EN effect on trade more narrowly than the national competition authority. In Germany, 
for instance, the Higher Regional Cour t of Düsseldorf rejected the national 
competition authority's analysis in two decisi ons for the lack of sufficient evidence of 
foreclosure and any appr eciable effect on trade.175 In Italy, where national rules are 
not applied in parallel with Articles 81 and 82 EC, the Italian Supreme Administrative Court overturned a decision of the competition authority criticizing, inter alia, the lack of rigor ous and concrete examination of  the condition of effect on 
trade.
176 The French Court of Cassation, in turn, concluded in the Bausch and Lomb v 
Medint  case177 that the Court of Appeal's decision was not well founded as it had 
failed to establish whether the agreement concerning exclusive dealing between Chauvin and BL was liable to affect trade appreciably between Member States. 
151. In sum, the obligation to apply the EC comp etition rules to cases capable of affecting 
trade has been broadly followed, making a si ngle legal standard a reality on a very 
large scale. Given the central importance of  the rule in Article 3(1) for ensuring a 
level playing field, the question merits the co ntinued close attenti on of all enforcers. 
Parties are well placed to enforce the respect of the rule in Article 3(1) in any given 
individual case, including before the comp etent review courts which have the power 
and/or obligation to refer to the Court of  Justice under Article 234 EC in appropriate 
cases. A persistent disregard for the rule in Article 3(1) and/or misconception about 
the effect on trade criterion in a Member St ate could also attract the attention of the 
Commission in view of its pow ers pursuant to Article 226 EC.
178  
4.2.2.  Experience with parallel application 
152. Whilst Article 3(1) of Regulation 1/2003 require s the application of Articles 81 or 82 
EC to cases capable of affecting trade be tween Member States, it does not impose an 
obligation to apply national law in parallel to such cases. The parallel application of 
national rules is thus optional and depends on the respective national system.179 
Certain Member States, such  as Italy and Luxembourg, ha ve indeed opted for the 
exclusive application of EC competition law to cases falling with in its scope. Most 
Member States have, however, chosen the possibility to rely on a double legal base, 
and parallel application of the EC and national rules has become a well-established 
practice.  
153. The primary interest of parallel application is that it protects enforcement decisions 
by national competition authorities against legal challenges based on the question whether there is effect on trade. In other words, if the EC law base is not upheld, the case would still stand for the infringement of national competition law.
180  
                                                 
175 Judgments in cases VI -Kart, 14/06(V) and VI-2 Kart 12/04 (V). 
176 Italian Supreme Administrative Court, 2 October 2007, judgment No 5085/07. 
177 Cours de Cassation, 12 December 2006, Case Bausch and Lomb v Medint. 
178 See Case C-129/2000, Commission v Italy, [2003], ECR I-14637, para. 32, on the conditions under 
which jurisprudence by national courts may amount to a state infringement.  
179 SEC(2002)219 of 22.2.2002 - Commission Staff Working Paper, Article 3 – The relationship between 
EC law and national law, parallel application, convergence and other issues; paras 7 to 9. 
180 See e.g. the Portuguese salt cartel case (Case No . 965/06.9TYLSB, Decision of the Lisbon Commercial 
Court, 2 May 2007) in which a Portuguese court cons idered that the trade effect test was not met and 
annulled the part of the decision applying Article 81 EC but upheld the infringement of national 
competition law.  
EN 48   EN 154. The parallel application of Articles 81 a nd 82 EC and their national counterparts has 
not been reported to have caused major di fficulties. In a small number of cases, 
national enforcers have dealt with infringements that were  punishable under national 
competition law, for which however no legal ba sis for penalties existed in relation to 
Articles 81 and 82 EC at the re levant point in time. In these cases, sanctions could 
only be imposed on the basis of national competition law in accordance with the 
principle nullum crimen sine lege.   
155. Certain national review courts have explic itly confirmed the principle of parallel 
application.181 In 2007, the Czech review court overruled the national competition 
authority’s decisions in two cases182 on the ground that the application of EC and 
national competition law regarding the same infringement in the same decision would violate the principle of  ne bis in idem . The Czech Supreme Administrative 
Court
183 later overturned the lower court's judg ment and held that that court had 
misinterpreted the principle. The Commi ssion considers that the finding of an 
infringement of both EC and national comp etition law and the sanctioning of such 
infringement in one single decision does not fall within the scope of ne bis in idem, 
as interpreted by the Community Courts184 and the European Court of Human Rights 
(ECtHR).185 This case law sets out the differen ce between, on the one hand, a single 
decision finding that one conduct br eached several legal provisions ( 'concurrence 
ideale ') as opposed to the scenario of a  second  trial or punishment  imposed for the 
same behaviour that could come under the principle of  ne bis in idem .  
4.3. The convergence rule 
156. The parallel application of national competition law to agreements, concerted 
practices and decisions by asso ciations of undertakings is subject to an obligation of 
convergence with Article 81 EC under Arti cle 3(2) of Regulation 1/2003. Where 
such conduct is capable of affecting tr ade between Member States but does not 
restrict competition within the meaning of  Article 81(1) EC or falls within the 
exception rule of Article 81(3) EC, it cannot  be prohibited under national law. The 
rule in Article 3(2) is to be seen in the context of the principle of primacy of 
Community law. It flows from that prin ciple that national competition law cannot 
                                                 
181 See e.g. Portuguese cases concerning professional associations for Veterinarians (Case No 8638/06-9, 
Decision of the Lisbon Appeals Court, 5 July 2007), Dentists (Case No 1372/06-9, Decision of the 
Lisbon Appeals Court, 19 June 2008) and Medical Doctors (Case No 5352/07-9, Decision of the Lisbon 
Appeals Court, 22 November 2007).  
182 Case No. 62 Ca 8/2007-171, RWE Transgas, Decision of the Regional Court Brno, 22 October 2007; 
Case No. 62 Ca 4/2007-115, Tupperware, Decision of the Regional Court Brno, 1 November 2007. 
183 Case 5 Afs 8/2008 – 328, RWE Transgas, Decision of the Supreme Administrative Court, 31 October 
2008; Case 7 Afs 7/2008-200, Tupper ware, Decision of the Supreme Administrative Court, 3 December 
2008. 
184 See, e.g., Case 7/72 Boehringer v Commission, [1972] ECR 1281, para. 3; Case T-224/00 Archer 
Daniel Midland and Archer Daniel Midlands Ingredients v. Commission [2003] ECR II-2597, para. 86. 
See also Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and 
C-254/99 P, Limburgse Vinyl Maatschappij (LVM) an d Others v Commission [2002] ECR I-8375, para 
59. 
185 In essence, the principle of ne bis in idem  - developed in the context of criminal law - constitutes the 
right not to be tried or punished again for an offence for which he has already been finally acquitted or 
convicted; see Article 4 of Protocol No 7 ECHR and Article 50 European Charter of Fundamental 
Rights as well as e.g. ECtHR, Sergey Zolotukhin v. Russia, Judgment of 10 February 2009 ECtHR. 
EN 49   EN authorise an agreement or practice, whic h is prohibited by Articles 81 and/or 82 
EC.186  
157. The objective of Article 3(2) is to create a level playing field within the internal 
market by prescribing a common competition law standard within the scope of application of the EC competition rules. Article  3(2) is a directly applicable rule that 
can be relied on before national courts, which implies that any measure adopted in 
breach of that rule would be inapplicable and unenforceable. 
158. The convergence rule applies to agreements, concerted practices and decisions by 
associations of undertakings, whereas Me mber States are not precluded from 
enacting and applying stricter national la ws which prohibit or sanction unilateral 
conduct.  
159. No major difficulties with the application of the convergence rule have been 
reported. In view of some stakeholder subm issions, it is worthw hile recalling that 
Article 3(2) does not apply to agreements or  practices outside the jurisdictional scope 
of the EC competition rules. Accordingly, stricter national competition laws are not 
as such objectionable, as long as they are not applied to agreements, concerted 
practices and decisions of associations of undertakings that  fall within the 
jurisdictional scope of the EC competiti on rules, in breach of Article 3(2).  
4.4. Exception from the convergen ce rule for unilateral conduct 
160. According to the last sentence of Article 3( 2), Member States are not precluded from 
adopting and applying strict er national laws which prohi bit or sanction unilateral 
conduct. Unilateral behaviour capable of affecting trade between Member States can 
thus be prohibited by national law, even if  it occurs below the level of dominance or 
is not considered abusive within the meaning of Artic le 82. Article 3(2), last 
sentence, thus contains an exception from the level playing field and implies that 
undertakings doing cross-border business in th e internal market may be subjected to 
a variety of standards as to  their unilateral behaviour.  
161. Provisions of the type referred to in Article 3(2) exist in a number of Member States. 
While such rules take different shapes, it is possible to identify certain categories which are described hereafter.  
4.4.1.  National rules concerning economic dependence and similar situations 
162. As an example of stricter national rules concerning unilateral c onduct, Recital 8 of 
Regulation 1/2003 explicitly mentions nati onal provisions which prohibit or impose 
sanctions on abusive behaviour toward  economically dependent undertakings. 
Besides rules concerning specifically th e abuse of economic dependence, some 
national provisions regulate behaviour labelled as 'abus e of superior bargaining 
power' or 'abuse of significant influence' . The aim of these kinds of rules is 
essentially to regulate disparities of barg aining power in distri bution relationships, 
including where neither the supplier nor th e distributor holds a dominant position on 
a specific market.  
                                                
 
186 See Recital 8 of Regulation 1/2003. See also Case 14/68 Walt Wilhelm [1969] ECR, p. 1. 
EN 50   EN 163. In 2004, the Member States with specific provisions concerning the abuse of 
economic dependence or superior bargai ning power included notably France, 
Germany, Italy, Portugal and Spain, as well as Ireland and Slovakia which had 
measures with a more limited scope coveri ng groceries and retail  trade, respectively. 
In Spain, these provisions were removed from competition law in 2007 but the abuse of economic dependence remains an infri ngement of the "Ley de Competencia 
Desleal", which concerns essentially unf air competition and trading practices, and 
the new competition law allows the compe tition authority to pursue such conduct 
where the distortion of free competition aff ects the public interest . Hungary, in turn, 
introduced provisions to prohi bit abuses of significan t market power in 2006 and 
Latvia did the same in 2008¸ both vesting th e enforcement of these provisions to the 
competition authority. In Greece, the prohibi tion of the abuse of a relationship of 
economic dependence was reintroduced in 2005, after having been abolished in 2000.
187  
164. The French, German, Greek and Portuguese laws concerning the abuse of "economic 
dependence" apply to various types of exclusionary conduct on both the demand and 
supply sides and normally require that there is no reasonable alte rnative source of 
supply or demand of the produc t or service in question.  
165. For instance, in French law, the abuse of economic dependence is, along with the 
abuse of dominant position, one of the tw o forms of unilateral conduct prohibited by 
Article L.420-2 of the French Code de comm erce. It prohibits, where the functioning 
or the structure of competition may be affected, the abusive exploitation of the 
condition of economic dependence in relation to a customer company or a supplier by non-dominant firms that have a powerful pos ition with regard to  their commercial 
partners. Such abuses may consist, inter alia , of the refusal to deal, tied sales or 
discriminatory practices. Due to the strict conditions of application
188, this provision 
has been rarely enforced, and since 2004 no sanction has been imposed on this legal 
basis. In 2007, in three out of four decisions a pplying Article L.420-2, the 
Competition Council concluded that there wa s either no dependence or insufficient 
evidence thereof.189 In practice, the parties concer ned seem to prefer relying on 
overlapping and more detailed provisions on pratiques commerciales déloyales.190  
                                                 
187 Law 3373/2005 amending Law 703/1977. Since the entry into force of Law 3373/2005, the Greek 
competition authority has not issued any decisions applying this prohibition. 
188 The conditions include inter alia: (i) the notoriety of the trading partner, (ii) significance of its market 
share, and (iii) importance of the part of turnover achiev ed with this trading partner in the total turnover.  
189 Décision n°07-D-14 relative au s ecteur du tourisme, décision n°07-D -18 relative au secteur agricole, 
décision n°07-D-25 relative à la distribution de motocycles et décision n°07-D-30. http://www.conseil-
concurrence.fr/pdf/avis/06d10.pdf ; http://www.conseil-concurrence.fr/pdf/avis/06d16.pdf ; 
http://www.conseil-concurrence.fr/pdf/avis/06d17pdf. 
190 Often suppliers of large supermarket chains opt for civil proceedings and invoke the detailed rules of 
Article L.442-6 of Code de commerce concerning unfair  trade practices instead of Article L-420-2. In 
contrast to the abuse of economic dependence, wh ich is considered an anticompetitive practice in 
French Law (i.e. with reference to an abuse on a give n relevant market), unfair trade practices relate to 
restrictive trade practices in a bilateral contractual or tort perspective and the rules relating thereto are 
enforced by civil courts, not by the Competition Council. As amended by Loi n°2008-3 du 3 janvier  
2008 - art. 8 ; see 
http://www.legifrance.gouv.fr/./affichCodeArtic le.do?idArticle=LEGIARTI000018047923&cidTexte=
LEGITEXT000005634379&dateTexte=20080723&fast Pos=1&fastReqId=2063796063&oldAction=rec
hCodeArticle . Prosecution of a practice under Article 442-6 does not necessarily ru le out a prosecution 
for abuse of dominant position or economic dependence. 
EN 51   EN 166. In German law, Sections 20(2) and 20(4) of the German Competition Act set forth 
specific provisions protecting small and medium-sized enterprises (SMEs) from 
"unfair hindrance" and discriminati on, without objective justification, by 
undertakings with "superior market power ". Section 20(2) relates to vertical 
dependence, whereas Section 20(4) is co ncerned with horizontal dependence and 
resale below cost (see below).191 SMEs can be qualified as dependent if they, as 
suppliers or purchasers of certain kinds of goods or services, depend on undertakings 
having superior market power to such an  extent that sufficient and reasonable 
possibilities of resorting to ot her undertakings do not exist .192 The primary objective 
of these provisions is, hence, to ensure dive rsity of suppliers and to prevent the abuse 
of buyer power to gain additional discounts from suppliers. In practice, Section 20 
has an important function for private enfor cement, as private pl aintiffs often invoke 
Section 20, instead of Article 82 EC and/ or its counterpart in  Section 19 of the 
German Competition Act.  
167. The Latvian and Hungarian laws, in turn, which prohibit the abuse of "significant 
influence" or "significant market pow er", focus on the buyer power side by 
protecting local suppliers and di stributors from being prejud iced by their relative lack 
of bargaining power as compared to the large retailers and supermarket chains. Under Hungarian law, buyer pow er is assessed on the basis of  the retailer's turnover, 
regardless of its strength on the downstream  market or on the si ze or countervailing 
seller power of large supp liers. In Latvia, further to  a turnover threshold, a 25% 
market share threshold is applied to determine the condition of "significant influence". Certain other laws are yet more  limited in scope, including for instance 
the Austrian statute for protecting local suppliers in rural areas,
193 and the Irish law 
concerning discriminatory and coercive  conduct by grocery goods undertakings.194  
168. In most jurisdictions, including Germa ny, France, Greece, Ireland, Latvia and 
Portugal, the provisions in question are part  of competition statutes and enforced by 
competition authorities but they may also em erge from a different legal context. In 
Italy, for instance, unlawful exploitation of a situation of inequali ty of market power 
can be addressed through a private ci vil action for inj unctive relief and 
                                                 
191 Nearly all decisions based on Section 20(4) have dealt with resale below cost. See Federal Cartel 
Office, decision of 5.5.1983, WuW/E 2029 "Coop Bremen"; Bavarian Cartel Authority, decision of 
14.5.1982, WuW/E 223 "Kaufmarkt" and the following court decisions by the Munich Higher Regional 
Court, judgment of 28.7.1983, WuW/E 2942 "Kaufmarkt"; Federal Court of Justice, judgment of 28.3.1984, WuW/E 2073 "Kaufmarkt"; Federal Court of Justice, judgment of 4.5.1995, WuW/E 2977 
"Hitlisten-Platten". 
192 Section 20(2) was indeed introduced in 1973 in reaction to the oil cris is to prevent oil companies from 
discriminating against independent petrol sta tions. Another underlying concern was to oblige 
manufacturers of banded goods to supply retailers where the branded goods were necessary to enable 
retailers to compete. See Reasoning of the 2nd Amendment to the Competition Act, WRP 1973, p. 385 et 
seq. 
193 The Federal Law for the Improvement of Local Supplies and the Competitive Conditions 
(“Nahversorgungs-Gesetz”) prohibits a number of practices, including discrimination and demanding 
payments or services without equivalent. 
194 See the Irish Competition Act of 2002 and the Competition (Amendment) Act of 2006, Section 15. 
EN 52   EN compensation, which prevents firms from  exploiting a situation of ‘economic 
dependence’ of their customers or supp liers in business-t o-business relations.195 
169. Since 2004, some Member States have chosen to withdraw their regulation 
concerning economic dependence and sim ilar forms of unequal bargaining power, 
others have introduced such regulation. Ther e thus does not appear  to be any general 
tendency in one direction or the other in the laws of the Member States. 
4.4.2.  Prohibition of resale be low cost or at loss 
170. Legal provisions concerning resale below co st or at loss are another type of 
regulation on unilateral market conduct.196 These provisions normally outlaw resale 
prices that fall below the price the reseller paid for the product. They are often based on a similar economic rationale as provisi ons concerning predatory pricing but do 
typically not require proof of dominance.  
171. Several Member States have, in recent year s, removed their rule s concerning resale 
below cost or at loss, including Ireland, Italy, and th e United Kingdom. The Member 
States currently prohibiting resale below cost or at loss include notably France, 
Germany, Spain and Portugal. In  the latter tw o, resale at loss is  regulated outside 
competition law, in particular in statutes concerning unfair competition and trading practices.
197 
172. In France, Article L.420-5198 of the Code de Commerce  contains a prohibition on 
offers or "abusively low" pricing practices wh ere the object or effect of such offers or 
practices is to exclude an undertaking from  the market. The cond itions of application 
of this provision are otherwise similar to  those concerning pr edatory pricing (cost 
test), but its scope is limited to sales to c onsumers, not to commercial customers, and 
it does not require proof of a dominant pos ition. The Competition Council has never 
imposed sanctions for the infringement of th is provision and it ha s been very rarely 
invoked in practice. The last  decisions concerning the a pplication of L.420-5 were 
taken in 2004, both rejecting the allega tions regarding abusively low prices.199 Whilst 
                                                 
195 Section 9 of Law 192 of 18 June 1998. The Italian Competition Authority has authority to intervene in 
this field only if the alleged abuse of economic dependence also has an impact on the protection of 
competition and the market. 
196 The resale-below-cost laws (“RBC” laws) were th e subject of an OECD roundtable in 2005, see 
Roundtable on resale below cost laws and regulations , Note by the OECD Secretariat, 22 September 
2005. In Joined Cases C-267/91 and C-268/91, Keck and Mithouard  (ECR I-6097), the Court of Justice 
confirmed that the EC competition rules do not precl ude Member States from prohibiting sales below 
the purchase price. 
197 For the Portuguese law, see Decree-Law No 371/93 of 29 October 1993, Article 3, as amended by 
Decree-Law No 140/98 of 16 May 1998; for Spanis h law, see Ley de Competencia Desleal and Ley de 
Ordenacion de Comercio Minorista. 
198 http://www.legifrance.gouv.fr/affichCode.d o?cidTexte=LEGITEX T000005634379&dateTexte=20080718 . The 
"Loi Galland" of 1996 prohibited selling at a loss, defined as a price less than the invoice price plus transportation costs and taxes, expanding the prohibition in order to control the use of “marges 
arrières”, i.e. devices which had the effect of chan ging the prices effectively paid from those shown on 
the invoice at time of delivery. 
199 Décisions n° 04-D-10, relative à une offre d’abonne ment permettant un nombre illimité d’entrées dans 
les salles de cinéma exploitées par la société UGC Cité-Ciné, et n°04-D-33, relative à des pratiques mises en œuvre sur les marchés de produits d’électronique grand public; found respectively at 
http://www.conseil-concurrence.fr/pdf/avis/04d10.pdf
;  
 http://www.conseil-concurrence.fr/pdf/avis/04d33.pdf .  
EN 53   EN retail trade has traditionally b een highly regulated in France200, this Member State 
has recently taken some steps to reduce re gulation concerning distribution and retail 
trade.201 One of these measures was the lowering of the threshold for resale at loss, 
which allows deeper discounting by resellers so  that they can sell at lower prices than 
previously without br eaching Article L.420-5.202  
173. In Germany, resale below cost price is one of the forms of "unfair hindrance" by 
undertakings with "superior market power " prohibited by Section 20(4) of the 
German Competition Act.203 The provision generally requi res that sales below cost 
price take place in a certain market 'not merely occasionally'. The ban was tightened 
in 2007 in relation to the groc eries retail market, by extend ing it also to occasional 
offers of foodstuffs below cost price unless there is an objective justification. 204  
4.4.3.  Stricter national rules concerning dominance and dominant undertakings  
174. Besides the rules applicable to unilateral behaviour by firms that expressly extend to 
undertakings that do not have a dominant pos ition in the market within the meaning 
of Article 82 EC, national laws may also foresee different standards for assessing 
dominance as well as stricter national provisions governing the conduct of dominant 
undertakings.  
175. Stakeholders pointed to a degree of divers ity in the national law counterparts of 
Article 82 EC or their application. This relates inter alia to the fact that certain 
                                                 
200 See OECD, Predatory Forecl osure Roundtable Background Note, Section 2.4; and OECD Reviews of 
Regulatory Reform , Germany: Consolidating Economic and Social Renewal  (2004), pp. 47 and 94.  
201 The "Loi de modernisation de l'économie"  removed some administrative hurdles constraining the entry 
and expansion of large sales surfaces (e.g. maxi disc ount stores) inter alia by  rising the threshold of 
application for administrative authorisation and by limiting the requirement of authorisation to ensuring that the projects respect the new criteria of territorial planning and durable development.  
202 Source: Attali report (www.liberalisationdelacroissance.fr ), p. 144-154. The Attali report proposed a 
total removal of the current rules prohibiting resale at loss, but the Loi Chatel, which entered into force in March 2008, retained the prohibition while lowering the threshold so that resale at loss can onlybe 
found in stricter conditions and thus less frequently. 
203 See www.bundeskartellamt.de;  Section 20 (4) provides that undertakings with superior market power in 
relation to small and medium-sized competitors shall not use their market position directly or indirectly 
to hinder such competitors in an unfair manner. An unfair hindrance within the meaning of sentence 1 
exists in particular if an undertaking: 1) offers foodstuffs within the meaning of Section 2 (2) of the 
Law on Foodstuffs and Feedstuffs below its cost price or; 2) offers other goods or commercial services 
not merely occasionally below its cost price or; 3)  demands from small or medium-sized undertakings 
competing with it in the downstream market in the sale  of goods or provision of  commercial services a 
higher price for its supplies than it otherwise offers in  this market, unless this is objectively justified. 
The offer of foodstuffs below cost price is objec tively justified if this is  likely to prevent their 
deterioration or impending unsaleability by the retailer through their timely sale.; see also Case Wal-Mart in 2002, WuW/E DER 1042, upholding the D ecision by the Federal Cartel Office, WuW/E DEV 
316 and the Judgment by the Düsseldorf Higher Regional Court, WuW/E DER 781. 
204 8th Amendment to the Act against Restraints of Competition of 18 December 2007 (Federal Official 
Journal 2007, Part I, pp. 2966 et  seqq.), in force since 22 Decembe r 2007. The government considered 
that small and medium-sized retailers were being s queezed out of the market b ecause of their relatively 
disadvantaged purchase conditions, which prevented them from standing up to the competitive pressure 
caused by the large chains. See Gove rnment Reasoning to the Act to Co mbat Price Abuse in the Energy 
Sector and the Grocery Retail Market, Official Records of the German Bundestag 16/5847 of 27 June 
2007, pp. 1, 9 et seq. The Monopolies Commission obj ected to the amendment, rejecting the underlying 
rationale and proposing a total abolition of Secti on 20(4). Monopolies Commission, Special Report No. 
47 of March 2007, available only in German on www.monopolkommission.de . 
EN 54   EN national laws foresee different standards for finding dominance, even where those 
rules are otherwise modelled on Article 82 EC. An example is found in Austrian 
law205, according to which an undertaking is deemed to be dominant if it has a 
superior position in relation to its customer s or suppliers, in particular where the 
latter are dependent on the maintenance of the business relationship if they want to 
avoid severe business disa dvantages. Dominance is presumed, shifting thus the 
burden of proof, when an undertaking holds: (i) at least 30% shar e in the relevant 
market; or (ii) in excess of 5% and is exposed to competition of no more than two 
undertakings; or (iii) a share in excess of  5% and belongs to the four largest 
entrepreneurs in this market, which hold a combined share of at least 80% of sales on the relevant market. In those cases the burde n of proof shifts to the alleged dominant 
undertaking to show that it is not dominant.
206 Similar laws exist in other Member 
States. 
176. Furthermore, the exception entails that Memb er States laws may impose stricter rules 
on dominant undertakings. For example, dur ing the reporting period, Section 29 of 
the German Competition Act was amended to include a specific provision against the 
abuse of market power in the energy sector , enacted due to concerns over the energy 
price levels and the lack of competi tion in the energy networks' upstream and 
downstream markets.207 The purpose of this sector-spe cific provision is to prevent 
excessive pricing in the energy sector.208 It allows finding an abuse where a 
dominant supply undertaking demands, w ithout objective justification, payment 
which is higher than those de manded by other supply undertakings.209  
4.4.4.  Evaluation and feedback 
177. The business and legal communities have called for an extension of the convergence 
rule to national laws covering unilateral conduct. Feedback from stakeholders 
suggests that diverging sta ndards fragment business stra tegies that are typically 
formulated on a pan-European or global basis. This is not a priori  contradicted by the 
fact that some of the national provisions on unilateral conduct a ppear to be rarely 
applied in the practice of national competitio n authorities. This does not mean that 
the existence of these provisi ons would be without effect from the perspective of 
market participants, since firms have to ma ke sure that their practices comply with 
all the legal standards in those Member States in which they have activities. 
178. Concepts such as the abuse of economic de pendency exist in the competition laws of 
some Member States, as seen above. Yet, it is not clear whether competition law is 
                                                 
205 Sec.4-6 of Austrian Cartel Act 2005. 
206 Legal assumption laid down in Section 4 subsection 2 of the Austrian Cartel Act 2005.  
207 See Government Reasoning to the Act to Combat Price Abuse in the Energy  Sector and the Grocery 
Retail Market, Official Records of the German Bundestag 16/5847 of 27 June 2007, p. 1. 
208 See Government Reasoning to the Act to Combat Price Abuse in the Energy  Sector and the Grocery 
Retail Market, Official Records of  the German Bundestag 16/5847 of 27 June 2007, pp. 9 et seq. 
209 The Monopolies Commission objected to the introduction of this provision, inter alia , because it had 
doubts over its effects on competition. In partic ular, a dominant supplier has to adjust its prices 
immediately, if its competitors reduce their prices, which may lead to parallel conduct and collusion by 
the firms. Moreover, customers are not likely to chan ge suppliers in case of identical prices; a price 
reduction by competitors will consequently stay with out effect, as new market entry is not likely to 
occur to increase competition. See Monopolies Commission, Special Report No. 47 of March 2007, 
available only in German on www.monopolkommission.de . 
EN 55   EN the appropriate instrument to address c oncerns arising from e.g. disparities in 
bargaining power (see paragraph 181 below).210 As regards specifically the laws 
concerning resale below cost or  at loss, certain studies have suggested that this kind 
of regulation results in price incr eases and loss of consumer welfare.211  
179. Against this background, the exclusion of unilateral conduct from the scope of the 
convergence rule is a matter which should be further examined, both in terms of evaluating the extent of any potential prob lems and assessing the need for action at 
European level. 
4.5. Questions relating to the scope of Article 3 
180. Article 3(3) specifies that paragraphs 1 and 2 do not preclude the application of 
national provisions that pre dominantly pursue an objective different from that 
pursued by Articles 81 and 82 EC. Article 3 thus applies to national laws that aim at 
protecting or promoting competition, not to state measures pursuing predominantly other legitimate objectives, such as thos e prohibiting or sanc tioning unfair trading 
practices, the application of which does not depend on the " actual or presumed 
effects of such acts on co mpetition on the market"
212. As an example of this kind of 
legislation falling within Ar ticle 3(3), Recital 9 of Re gulation 1/2003 mentions those 
prohibiting undertakings from imposing on their trading partners terms and 
conditions that are unjustified, dispropor tionate or without consideration.  
181. Drawing the borderline appears particularly difficult in relation to laws concerning 
stricter competition rules for unilateral conduct, on the one hand, and laws covering 
unfair trading practices, on the other hand, bot h of which currently  fall outside the 
scope of the convergence rule. If the objective of the nati onal rules is to regulate 
contractual relationships between undert akings by stipulat ing the terms and 
conditions that for instance suppliers must offer to distributors (rather than their 
competitive behaviour on the market), the proper classification appears to be that of 
laws concerning unfair trading practices. On  the other hand, national rules combating 
excessive market power or protecting smalle r undertakings in a market against their 
larger competitors appear more likely to be considered competition law provisions.213  
                                                 
210 See ICN Special Program for Kyoto Annual Conference, Report on Abuse of Superior Bargaining 
Position , prepared by Task Force for Abuse of Superior Bargaining Position, ICN 7th Annual 
Conference, Kyoto, Japan, April 14-16, 2008. 
211 For instance, in the UK the Office of Fair Trading concluded that the removal of the prohibition of 
resale below cost has generally proven beneficial to  consumers with lower prices, more choices and no 
decline in quality. See U.K. Offi ce of Fair Trading, “Supermarkets: The Code of Practice and Other 
Competition Issues, Conclusions” (August 2005). In France, certain studies also suggest that resale prices increased as a result of the Loi Galland of 1 996, with the largest increases being for well-known 
brands. See also OECD Roundtable on Resale Below Cost Laws and Regulations, Note by the 
Secretariat, Directorate for Financial and Enterpri se Affairs, Competition Committee, 22 September 
2005 (concluding that predatory fo reclosure could be more accurately  analysed and addressed in the 
context of rules concerning the abuse of dominant position through predatory pricing, rather than by 
laws regulating resale below cost). 
212 See Recital 9 of Regulation 1/2003.  
213 It has been submitted that the main distinctive feature is whether the aim of the provision is limited to 
regulating a contractual relationship with a view to protecting a weaker party against a stronger party or 
whether competition on the market is taken into account either in the elaboration of the rule or its 
application. Each individual provision of national law should be examined, rather than the overall 
EN 56   EN 5. EFFECTIVE AND COHERENT ENFORCEMENT BY MORE ENFORCERS – THE 
CONTRIBUTION OF THE MEMBER STATES ' COMPETITION AUTHORITIES AND THE 
EUROPEAN COMPETITION NETWORK (ECN)   
182. Regulation 1/2003 has entrusted the Member States’ competition authorities with a 
key role in ensuring that the EU competition rules are applied effectively and consistently, in conjunction with the Commission. This has presented both an 
opportunity and a challenge. After five years, it is apparent that the key challenge in this respect, to boost enforcement results while ensuring the cons istent and coherent 
application of EC competition ru les, has been largely achieved.  
183. During the reporting period, the Commission and the Member States’ competition 
authorities have worked together towa rds the aim of making Europe an open 
business environment with a level play ing field. Cooperation in the ECN has 
surpassed expectations and has given a more ‘ structural impetus’  to the enforcement 
of the EC competition rules.
214 The possibility to (re-) allo cate cases to a another well 
placed authority and the co-operation mechanisms provided by Regulation 1/2003 have been used reasonably and largely su ccessfully and have significantly enhanced 
the enforcement activities within the ECN. Informal exchanges and cooperation in various multilateral fora have contribut ed towards building a common competition 
culture.  
5.1. National competition authorities as en forcers of the EU competition rules 
5.1.1.  Enforcement record of the authorities in the ECN 
184. Since the entry into force of Regulati on 1/2003, the enforcement of EC competition 
rules has vastly increased. The results of enforcement actions within the ECN are impressive.
215 More than 1000216 cases have been pursued over the last five years on 
the basis of the Community competition rules. Within this time period the Commission has been informed of more than 300 envisaged decisions submitted by 
the national competition authorities pursuant to Article 11(4) of Regulation 1/2003. 
These figures compared to the situation before the entry into force of Regulation 1/2003
217 clearly demonstrate a significant increase of enforcement activities in the 
EU since 2004. 
185. Not only the Commission218, but also the Member States' competition authorities 
launched major sector inquiries in important sectors such as energy219, financial 
                                                                                                                                                         
statute in which it is contained. See e.g. De Smijter E. and Kjoelbye, L. The Enforcement system under 
Regulation 1/2003, in Faull & Nikpay: The EC law of competition, part 2.59.  
214 See Emil Paulis and Eddy De Smijter, Enhanced enforcement of the EC competition rules since 1 May 
2004 by the Commission and the NCAs. The Commission's view, Paper for the IBA Conference on the 
Antitrust Reform in Europe, 9-11 March 2005 para 8. 
215 Updated figures and information are regularly published on the ECN Website which was set up in April 
2006 in order to provide information to the legal and business community and to the citizens. For 
further information see http://ec.europa.eu/comm/Competition/ecn/index_en.html. 
216 All figures cover the period from 1 May 2004 until 31 March 2009. 
217 See Annual Reports on the application of  competition rules in the EU (part V.B); 
http://europa.eu.int/comm/competition/annual_reports. 
218 See above, part 3. 
219 Austria (Electricity and Gas), Bulgaria (Thermal en ergy and electricity), Germ any (Petrol and Diesel), 
Greece (Petrol), Finland (Electricity),  France (Electricity), Hungary (E lectricity), Italy (Electricity, 
EN 57   EN services220, media221, pharmaceuticals222 and food223. Other areas as for example 
motor vehicles224, taxis225, air transport226, construction227, healthcare228, 
environment229 and telecoms230 were also investigated. S ector inquiries have become 
a frequently used and highly valuable enfo rcement tool within the ECN. They have 
led to investigations in individual cases and have served to identify (wider) competition problems on particular markets and provided information on how these could be best addressed.  
186. Enforcement by national competition authori ties demonstrates a strong emphasis on 
the liberalised sectors (e.g. energy, telecoms, post), where the high number of 
envisaged decisions confirms the importance of  antitrust vigilance in  this field. In the 
energy sector for instance, the Commission has been informed of more than 30 
envisaged decisions since January 2007. Othe r key sectors were financial services, 
transport, food, pharmaceuticals and construction. Member States' competition authorities also pro-actively deal with cases that did not previously attract antitrust 
attention, for example in the fi eld of professional services.
231 
187. Approximately 55% of the envisaged decisions about which the Commission has 
been informed pursuant to Article 11(4) c oncerned an infringement of Article 81 EC, 
approximately 30% an infringement of  Article 82 EC and the remainder an 
infringement of both provisions. Most of these decisions are prohibition decisions 
imposing fines.232 
188. Cartels, the most pernicious infringements of the EC competition rules, were pursued 
in some 90 cases by the ECN members since May 2004. The Commission has adopted 33 cartel decisions over this period, with the national competition authorities 
taking more than 50 such decisions.
233 Close cooperation in a nu mber of cartel cases, 
                                                                                                                                                         
Gas), Latvia (Fuel), Poland (Electricity, Coal), Portugal (Fuel prices, Electricity and Gas), Slovak 
Republic (Electricity, Gas), UK. 
220 Bulgaria (Retail banking), Denmark (banks), Finland (Retail banking), France (Bank and Insurance 
Services), Hungary (Retail banking), Ireland (Non- life Insurance, Private Health Insurance, Non-
investment Banking), Italy (Switching costs in retail banking), Netherlands, Portugal (Payment cards), 
Slovenia, Slovak Republic (Retail banking), UK. 
221 Germany, Hungary. 
222 Bulgaria, Denmark, Portugal. 
223 Austria (Food retail), Bulgaria (Wheat, wheat flour and wheat bread), Cech Republic (Beer), Germany 
(Milk), Finland, Denmark (Nordic Food market), France (Fruit and vegetables, Wine), Italy (Food delivery), Lithuania (Bread, Milk, Meat), Latvia (M ilk, Eggs, Poultry), Netherlands (Fruit, Vegetables, 
Flour), Poland (Spices, Salt), Portugal, Romania (G rains), Slovenia (Daily consumer goods), UK 
(Groceries). 
224 Czech Republic, France, Latvia. 
225 Denmark. 
226 Finland, France, Italy, Spain. 
227 Denmark, Finland, Latvia. 
228 Denmark, France, Italy, Latvia, Netherlands. 
229 France (Waste), Italy (Packaging Wast e), Slovak Republic (Packaging Waste). 
230 Denmark, Finland (Broadband Market), Italy (Television, Mobile Phone), Latvia, Portugal (Fixed 
telephony, Broadband Internet Access), Slovak Republic. 
231 The Hungarian competition authority for instance ha s adopted over the last years several decisions 
relating to various aspects of the self-regulation rule s of national and local liberal profession bodies 
(e.g. advertising, prices ). See http://www.gvh.hu. 
232 In 2008, 38 prohibition decisions with fines, 20 commitment decisions, 16 prohibition decisions without 
fines and 11 fines only decisions were communicated pursuant to Article 11(4) to the Commission. 
233 Most of the cartel decisions were adopted by the Fr ench, German, Dutch, Italian and Greek authorities.  
EN 58   EN such as the Flat Glass case234 where several competition authorities provided 
information that was crucial to start the Commission's inve stigation, or the Elevators 
case235 where the Commission's investigation triggered investigations at national 
level236, has significantly contri buted to this record. 
189. A large number of Member States intr oduced the power to adopt commitment 
decisions in line with Ar ticle 9 of Regulation 1/2003.237 As a consequence, a 
significant increase in such decisions could be observed, in particular as from 2007 
onwards.238 
5.1.2.  Evolving Structure of National  Competition Authorities 
190. Regulation 1/2003 does not compel  Member States to adopt a specific institutional 
framework for the implementation of EC  competition rules. The prerequisite 
established by Article 35 of Regulation 1/2003 is that “Member States shall 
designate the competition authority or author ities responsible for the application of 
Articles 81 and 82 EC in such a way that  the provisions of this regulation are 
effectively complied with”. It is the respons ibility of the Member States to decide on 
the structure and organisation of their re spective competition authorities. Member 
States may allocate different powers and f unctions to the different authorities and 
they may also decide on the administrative or  judicial nature of the authority, subject 
to the general Community law principles  of equivalence a nd effectiveness.  
191. Paragraph 2 of the Commission Notice on cooperation within the Network of 
Competition Authorities (the "Network Notice")239 identifies basic types of 
authorities present in the ne twork. During the first five years of application of the 
Regulation, a significant degree of evolution in Member States' enforcement 
structures could be observed, with Member St ates generally striving to have effective 
enforcement structures in place.  
192. By the end of the reporting period, most Member States have a system of one 
administrative authority inve stigating and deciding cases.240 Several Member States' 
systems migrated from dual administrati ve authority systems towards a single 
authority. In Spain, for example, the two former competition bodies were replaced by 
a single independent authority – the Na tional Competition Commission (NCC) by the 
Competition Act 15/2007.241 Most recently Estonia242 has changed its initially dual 
                                                 
234 Commission Decision of 28.11.2007, OJ C 127, 24.05.2008. 
235 Commission Decision of 21.02.2007, OJ C 75, 26.03.2008. 
236 Austria, Decision of Cartel Court of 18.12.2007. 
237 Austria, Belgium, Bulgaria, Cyprus, Czech Repu blic, Denmark, Finland, France, Germany, Greece, 
Hungary, Italy, Latvia, Lithuania,  Netherlands, Poland, Slovakia, Sweden, UK. In Spain, the possibility 
to adopt commitment decisions existed already under its now superseded competition law of 1989; the 
Spanish competition law of 2007 confirmed the procedure. 
238 In 2007, 29 commitment decisions, and in 2008, 20 commitment decisions have been communicated to 
the Commission pursuant to Article 11(4) of Regulation 1/2003, as compared to 7 commitment 
decisions in 2006. 
239 OJ C 101 of 27.04.2004, p. 43-53. 
240 Bulgaria, Czech Republic, Denmark,  Germany, Estonia, Greece, Ital y, Cyprus, Latvia, Lithuania, 
Hungary, Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden, UK. 
241 "Ley de Defensa de la Competencia 15/2007" of 3 July 2007. 
242 Since January 2008 the previous Competition Boar d, Communications Board and the Energy Regulator 
have been merged into one single competition authority. 
EN 59   EN system into one single authority. The Fren ch system has also been subject to 
significant changes in 2008/2009243, in particular providing the new Autorité de la 
Concurrence  with extended powers in  antitrust and mergers.244 
193. Belgium245 and Luxembourg246 currently still opt for a tr aditional dual administrative 
system. In Ireland and Austria the investig ations are carried out by the respective 
competition authorities247, with the decision-making powers having been transferred 
to courts.248 In Malta, the Office of Fair Compet ition is part of the Ministry of 
Finance. In Greece249, Ireland250 and the United Kingdom251, sectoral regulators are 
empowered to enforce the EC competition rules in specific sectors, e.g. telecommunications, postal se rvices, energy. In a ll Member States the decisions of 
the national competition authorities are subject to judicial review. 
194. In general, the differences in the institu tional structure of the national competition 
authorities have not raised any particular i ssues in the application of Articles 81 and 
82 EC.
252 Certain criticism has been expre ssed in the course  of the public 
consultation for this Report as to the limited resources of some national competition authorities and its possible impact on competition proceedings, e.g. limited capacities 
for investigations, longer duration of proceedings. 
                                                
 
243 Loi n°2008-776 du 4 août 2008 de modernisation de l'économie, published in the French official journal 
of 5 August 2008. 
244 The Autorité de la Concurrence  replaces the Conseil de la Concurrence  and has investigatory powers in 
antitrust cases, right to own-initiative opinions on an ti-competitive effects of legislative/administrative 
measures, stronger focus on priority cases an d exclusive competence for merger control. 
245 The Conseil de la Concurrence/Raad voor Mededinging  is the decision-making body and the Direction 
Générale de la Concurrence  is the investigating body. With regard to the interpretation of Articles 2, 
15, 35 of Regulation 1/2003 and the involvement of the Belgian competition authorities in the appeal 
proceedings see Case C-439/08, VEBIC , pending at the Court of Justice, OJ C 313 of 06.12.2008, p.19. 
246 The Conseil de la Concurrence  is the decision-making body and the Inspection de la Concurrence  is 
the investigating body. 
247 In Austria the Federal Competition Authority, “ Bundeswettbewerbsbehörde ”, has mainly investigatory 
powers and is one of the two official parties in proceedings to the Cartel Court. The Federal cartel Attorney, “ Bundeskartellanwalt ”, is entrusted with the represen tation of the public interests in 
competition matters and is the other of ficial party in proceedings to th e Cartel Court. In Ireland, the 
Competition Authority enforces all competition law. The Commission for Communications Regulations enforces competition law together with the Compe tition Authority in the area of telecommunications. 
248 In Austria, the Cartel Court, " Oberlandesgericht Wien als Kartellgericht ", has exclusive jurisdiction to 
decide whether a certain agreement or behaviour viol ates competition law. In  Ireland, decisions in 
competition matters are made by courts, either in th e course of a criminal prosecution, or in civil 
proceedings brought by the Competition Authority or by the Commission for Communications 
Regulation. 
249 National Telecommunications and Post Commission. 
250 Commission for Communications Regulation. 
251 Office of Communication (Ofcom), Office of Gas an d Electricity Markets (Ofgem), Office of Water 
Services (Ofwat), Office of Rail Regulatio n (ORR), Civil Aviation Authority (CAA). 
252 However, see further Case C-439/08 VEBIC, where an Article 234 EC reference has been made to the 
European Court of Justice on the interpretation of Articles 2, 15(3) and 35(1) of Regulation 1/2003 with 
regard to the involvement of th e Belgian competition authorities in the appeal proceedings. The 
reference for a preliminary ruling was from the Hof va n Beroep te Brussel and was lodged on 6 October 
2008 – VZW Vlaamse Federatie van Vereniging van Brood-en Banketbakkers, Ijsbereiders en 
Chocoladebewerkers 'VEBIC', the other parties being Raad voor de Mededinging and the Minister van 
Economie, OJ C 313 of 06.12.2008, p. 19. 
EN 60   EN 5.1.3.  Powers of the National Competition Au thorities to apply Articles 81 and 82 EC 
195. As mentioned, Article 35, in c onjunction with Article 5, requires that Member States 
designate a competition authority to enforce Articles 81 and 82 EC. A clear empowerment is the prerequisite for effective enforcement. During the reporting period, three situations attract ed the attention of the Commission in this regard. In 
2006, the Commission for the Protection of Competition of Cyprus decided
253 that it 
lacked the power to apply Articles 81 and 82 EC, because national law made no 
provision to this effect, and it had not been designated as competition authority pursuant to Article 35 of Regulation 1/ 2003. The issue was later addressed by 
legislative amendments and government m easures. In 2007, the Commission initiated 
infringement proceedings against the Czech Republic following an amendment to the Competition Act in 2005. The amendment excluded the application of the Competition Act in relation to behaviour in  breach of the regulatory framework for 
electronic communications. Th e Commission closed the case after these provisions 
had been repealed.
254 Recently, infringement proceedings were initiated against the 
Slovak Republic in a similar case255. It appears that Sec tion 2(6) of the Slovak 
Competition Act limits the ability of the Slovak Competition Authority to effectively apply Articles 81 and 82 EC to anticompe titive behaviour which falls under the 
competence of a regulatory authority, such as the Slovak Telecommunications Office. The Commission is ther efore seeking clarification from the Slovak authorities 
on whether the Slovak Republic is respecti ng its obligations under Article 10 EC in 
combination with Articles 35 and 5 of Regulation 1/2003.  
5.1.4.  Powers of the National Competition Authorities pursuant to Article 5 
196. Article 5 of Regulation 1/2003 sets out th e national competition authorities' powers 
to apply Article 81 and 82 EC in  individual cases. In essenc e, Article 5 lists the types 
of decisions which national competition authorities can take, i.e. those finding an 
infringement, ordering interim measures , accepting commitments and imposing fines 
and other penalties. It concl udes that "(w)here on the basis of the information in their 
possession the conditions for prohibition are not met they may likewise decide that 
there are no grounds for action on their part." 
197. During the reporting period, the interpretation of Article 5 has given rise to certain 
queries. Firstly, the questi on has arisen whether Ar ticle 5 is capable of direct effect , 
i.e. if the powers listed in that provision are immediately and directly available to all national competition authorities even if not expressly provided for by national law. Absent any guidance from case law, this que stion is still subjec t to discussion. Its 
practical relevance has declined insofar as  national competition authorities gradually 
obtained additional powers pursuant to national laws.
256 
198. Moreover, the question has come up whet her national competi tion authorities may 
adopt declaratory decisions in relation to past infringements. Given that Article 5 
does not contain a provision equivalent to the last paragraph of Article 7(1) of 
                                                 
253 Case Lumiere TV Public Company Ltd./Multichoice (national file reference 11.17.14/2006), See 
http://www.competition.gov.cy. 
254 See Commission Press Release IP/07/956 of 28.06.2007. 
255 See Commission press Release IP/09/200 of 02.02.2009. 
256 See below, part 5.1.5. 
EN 61   EN Regulation 1/2003, there remains a question mark about whether the lack of an 
express provision may prevent national competition authorities from taking a 
decision on the basis of Articles 81 and 82 EC in relation to past infringements where 
they do not intend to impose a fine. 
199. In conclusion, the first practical experi ences with Article 5 of Regulation 1/2003 
have shown that some uncertainties remain in this context.  
5.1.5.  Convergence and Divergence of nati onal competition authorities' powers 
200. Crucially, Article 5 is a very rudimentar y rule. Regulation 1/2003 does not formally 
regulate or harmonise the procedures of national competition authorities over and above Article 5 and the rules applicable to cooperation mechanisms. This implies that European competition authorities appl y the same substantive rules according to 
divergent procedures and they ma y impose a variety of sanctions.
257 In important 
respects, the Regulation reconciled the requirements of substantive coherence with the existing procedural diversity amongs t European Competition authorities.
258 
201. Nevertheless, the entry into force of  Regulation 1/2003 has generated an 
unprecedented degree of voluntary convergence of  the procedural rules dedicated to 
the implementation of Articles 81 and 82 EC.259  
202. An area where considerable convergence has taken place is leniency where 25 
Member States now operate a leniency pr ogramme and have la rgely aligned their 
programmes to the ECN Model Programme adopted in September 2006.260 An 
alignment of investigative powers of the national competition authorities has taken place over the last years concerning insp ections in business premises (e.g. powers 
related to on the spot inves tigations – power to seal pr emises, books and records, to 
ask for oral explanations). The majority of the national competition authorities themselves see no significant differences  with regard to the Commission powers 
under Articles 19 and 20 of Regulation 1/2003.
261 Many Member States have also 
introduced the power to inspect priv ate premises, although several national 
competition authorities have however indicated that they do not yet have any practical experience in this regard.
262 Finally, considerable convergence has also 
taken place with regard to fines263, the power to adopt interim measures, commitment 
decisions and the power to carry out sector inquiries.264 
                                                 
257 Pecuniary and/or custodial sanctions on individuals and undertakings. 
258 Articles 11 and 12 of Regulation 1/2003. 
259 In this sense, Christophe Lemaire and Jérôme Gstalter, The Silent Revolution Beyond Regulation 
1/2003, Global Competition Policy, 2008. 
260 See below, part 5.3. 
261 E.g. Belgium, Cyprus, CZ Republic, Denmark, Es tonia, Greece, Finland, It aly, Latvia, Lithuania, 
Luxembourg, Netherlands, Poland, Romania, Slovenia, Slovak Republic, Spain, UK (civil cases). In several Member States, judicial authorisation for inspections of business premises is required: Austria, 
Bulgaria, Germany (fines pro cedure), France, Hungary, Ir eland, Portugal, Sweden. 
262 Cyprus, CZ Republic, Estonia, Greece, Spain, Hungary, Luxembourg, Malta , Romania, Slovenia, 
Slovak Republic, Sweden. The power to inspect private premises is not foreseen in Bulgaria, Denmark, 
Finland, Italy, Portugal. 
263 All Member States provide for pecuniary sanctions on undertakings. It should however be noted that 
there still exist considerable differences as regards th e level of fines and the calculation of fines. Recent 
efforts within ECA (European Competition Authorities, founded in 2001, a forum of discussion for 
EN 62   EN 203. However, this remarkable level of converg ence should not lead to  an underestimation 
of the still existing divergences on important procedural issues that may influence the 
outcome of individual cases, e.g. fines, cr iminal sanctions, liab ility of undertakings 
or associations of undertakings, successi on of undertakings, pr escription periods, 
standard of proof and the power to impose structural remedies. Moreover, the ability of national competition authorities to set pr iorities is greatly divergent insofar as a 
large number of authorities are obliged to i nvestigate and/or rule on complaints that 
they are seized with
265, while others are legally empo wered to set priorities in one 
form or another. 
204. With regard to fines, for example, there is a consistent trend towards ensuring that 
antitrust fines have a sufficient deterrent effect. The vast majority of competition agencies take into account the same or similar elements when setting the appropriate level of antitrust fines. However, the le gislative and administrative frameworks are 
not identical. These differences can result in appreciable divergences in the calculation of fines. Moreover, compe tition law and the guidelines adopted by 
several authorities do  not quantify in detail the rela tive weight of the fundamental 
criteria and/or the adjustment factors wh ich concur to the quantification of the 
antitrust fines. This has led to significant divergences in the practical application of even largely corresponding provisions. 
205. In other areas too, where a high level of convergence is observed in the sense that 
numerous Member States broa dly aligned their laws on th e model of the Regulation, 
a considerable degree of (micro-) divergence remains in relation to the exact features 
of the procedures applied. This is for instance the case for procedures leading to commitment decisions as well as the procedures available for follow-up of commitment decisions. In this context, it appeared that many authorities do not 
follow the scheme of Regulation 1/2003 in  terms of preparing a preliminary 
assessment and market testing. Conversel y, certain national systems foresee 
procedural constraints unknown to the Co mmission, e.g. a cut-off date for the 
submission of commitments. At least one authority does not ha ve the power to 
impose fines directly in case of non- compliance with a commitment decision. 
206. Stakeholders in the context of the public  consultation for this  Report have called 
strongly for further harmonisati on of procedures within th e ECN. They particularly 
emphasised different national rules on sancti ons/fines for violati ons of Articles 81 
and 82 EC, leniency, settlements, commit ments, complaints, rules governing the 
admissibility of evidence (e.g. Legal Profes sional Privilege – L PP) and procedural 
rules (e.g. limitations, deadlines, procedural fines etc.). According to stakeholders, 
these differences in national rules may lead to discrepancies in the outcome of a case 
depending on the jurisdiction in which it is  reviewed and could therefore harm the 
rights of undertakings.  
                                                                                                                                                        
 
Competition Authorities in the EEA) have led to the adoption of the " Principles for convergence on 
pecuniary sanctions imposed on undertakings for infringements of antitrust law ", in May 2008;  
 see http://ec.europa.eu/comm/c ompetition/publications/eca/ . 
264 See above, part 5.1.1. 
265 Belgium, Bulgaria, Cyprus, Czech Republic, Greece, Spain, Finland (rat her flexible system), France , 
Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, Netherlands, Romania, UK. 
EN 63   EN 207. The subject of divergences in national pro cedures for the enforcement of Articles 81 
and 82 EC should be further reflected upon. In  order to optimise the efficiency of 
procedures within the ECN, areas need to  be identified where further convergence 
should be promoted. Such a policy discus sion should also explore the means by 
which procedural convergence could best be achieved, e.g. soft harmonisation or the 
adoption of certain minimum sta ndards through legislative rules. 
5.2. Cooperation between enforcers  
5.2.1.  Work sharing in the network – principles 
208. The work-sharing arrangement within th e ECN, i.e. the system of parallel 
competences266 and flexible case-allocation rule s, means that any "well-placed" 
authority can take action in a case. Indica tive, non-binding principles are set out in 
the Network Notice, which explain when a Network member is well-placed to act.267 
The case allocation principles do not crea te individual rights for the companies 
involved in, or affected by, an infringement to have a case dealt with by a particular 
authority.268 
209. A competition authority which is well placed  and willing to investigate and sanction 
an infringement informs the Network of its intentions at an early stage of the investigation
269 by inserting some basic informa tion in the ECN database. This 
allows the network members to detect rapidly multiple proceedings and ensures 
efficient work- sharing within the ECN. Othe r authorities may signal their interest to 
also act in the case, either in parallel with  the first authority (in the case of national 
competition authorities) or solely (in the case of the Commission). In the rare case that authorities disagree on the most suit able allocation of the case, bilateral 
discussions take place between  the concerned authorities. 
210. The Commission is in principle always well placed to deal  with any infringement of 
the Treaty capable of having an effect on trade between Member States. It is 
particularly well-placed to act where the infr ingement has effects in more than three 
Member States or where there is a link to  other priority acti ons of the Community.
270 
On the other hand, the Commission is never obliged to act, even if a given case has 
effects in more than three Member States. Cases may also be re-allocated within the 
network members if efficient enforcement so requires.271 
                                                 
266 Articles 4 and 5 of Regulation 1/2003 give the Commission and the national competition authorities full 
parallel competences to appl y Articles 81 and 82 EC. 
267 Notice on cooperation within the Network of Co mpetition Authorities OJ C 101 of 27.04.2004 (the 
"Network Notice"), p. 43-53, paras 8-13.  
268 The Network Notice, para 31. This question was raised in Cases T-339/04 and T-340/04, France 
Télécom [2007] ECR II-521. 
269 Pursuant to Article 11(3) of Regulation 1/2003, national competition authorities inform the Commission 
when they are acting under Articles 81 and 82 EC, before or without delay after commencing the first 
formal investigative measure. It has been agreed  amongst the members of the ECN that the national 
competition authorities will also get this information (see the Network Notice, Point 17). Similarly, the 
Commission will inform the other ECN members when it starts investigating a case (Article 11(2) of Regulation 1/2003). 
270 The Network Notice, paras 14-15. 
271 The Network Notice, paras 6 and 7. 
EN 64   EN 211. The principles of work sharing as in troduced by Regulation 1/2003 and the Network 
Notice have been fully endorsed by th e Court of First Instance in the France Télécom  
judgments of 8 March 2007.272 The cases concerned an action for the annulment of a 
decision by the Commission to conduct an inspection targeted at France Télécom  
and its subsidiaries ( Wanadoo  was at the time a subsidiary of France Télécom ) and 
aimed at finding evidence of a suspected violation of Article 82 EC by predatory 
pricing and margin squeeze in the mark et for high-speed Internet access for 
residential customers in France.273 Prior to the Commission's inspection decision, a 
competitor of Wanadoo  had filed a complaint and an application for interim 
measures with the French Conseil de la Concurrence . The application for interim 
measures was rejected by the latter for la ck of urgency one week before the adoption 
of the Commission's inspection decision. Th e inspection decision was appealed by 
both Wanadoo and France Télécom.274 The applications for annulment invoked a 
broad range of pleas, concerning notab ly the reasoning of the Commission's 
inspection decision and the exte nt of its obligation to coope rate with national courts 
called upon to authorise coercive measures in case of opposition.  
212. In its judgment in Case T-339/ 04, the Court of First Instan ce rejected the arguments 
of the applicant(s) in their entirety. It  held in particular that Regulation 1/2003 has, in 
conformity with the principl e of subsidiarity, provided fo r a wider association of the 
national competition authorities with the a pplication of the EC competition rules. 
The Regulation has, however, not changed the general competence of the Commission recognised by the case la w of the Court of Justice ( Masterfoods ).
275 
213. Moreover, the Court of First Instance held that Regulat ion 1/2003 has not established 
a 'division of competences' that could pr eclude the Commission fr om carrying out an 
inspection where a national competition aut hority is already dealing with the same 
case. On the contrary, Article 11(6) provi des that the Commission is empowered – 
upon simple consultation of the national auth ority – to initiate proceedings with a 
view to adopt a decision itself. A fortiori, it  is able to conduct an inspection in such 
case. Neither the Network Notice – as evidenced by its contents and wording – nor the Joint Statement establish binding criteria  that could lead to the conclusion that 
solely the Conseil de la Concurrence  could deal with the case and that the 
Commission was prevented from doing so. Furt hermore, the Court of First Instance 
held that the obligation of  close cooperation in Articl e 11(1) does not support the 
conclusion that the Commission could not  investigate a case when a national 
competition authority is already dealing with it. The opposite can be derived from Article 11(6). The principle of subsid iarity does not put into question the 
competences conferred on the Commission by the EC Treaty, which include the enforcement of the EC competition rules.  In Case T-340/04, the Court of First 
Instance further stated that Article 11(6) leaves scope fo r parallel investigations by 
the Commission and national competition author ities in the early stages of a case.  
                                                
 
272 Case T-339/04 and Case T-340/04, France Télécom v. Commission, [2007] ECR II-521. 
273 At the time, there were indications suggesting that  Wanadoo repeated or continued practices found to 
violate Article 82 EC by the Commission in its Decision of 16 July 2003 in Case COMP/38.233 – 
Wanadoo Interactive. The case as such was later closed. 
274 During the judicial proceedings, Wanadoo and its parent merged. France Telecom thus became the 
applicant in both court cases. 
275 Case C-344/98, Masterfoods, [2000] ECR I-11369. 
EN 65   EN 5.2.2.  Work sharing – practical experience 
214. Five years of experience of work-sharing within the ECN have clearly demonstrated 
and confirmed the well-functioning of the flexible and pragmatic approach 
introduced by Regulation 1/2003 and the Netw ork Notice. Contrary to the various 
concerns raised at the time of the adopti on of the modernisation package, discussions 
on case-allocation came up only in a few cases and actual re-allocation of cases took place even less, i.e. cases mostly remain with the competition authority that started 
the investigation. Also the public consulta tion has shown that the legal and business 
community has dropped its initial fears and ha s only rarely called fo r more clarity in 
this respect. Claims for binding case-allocation criteria remain isolated. 
215. Case-allocation and re-allocation have played a role mainly in cartel cases or in 
investigations started by a complaint.  
216. In several cartel cases, notably in which parallel leniency applications had been 
received, the Commission and na tional competition authoritie s cooperated at an early 
stage. In the Flat Glass  cartel case
276, for example, the Commission started its 
investigation in 2005 on the basis of information provided by several national 
competition authorities277 which had received complaints or leads from customers or 
other third parties that suspected the a cartel existed. In the Power Transformers 
case278 the German Bundeskartellamt dealt with a separate, but related case. 
217. Furthermore, a certain number of comp laints received by the Commission or a 
Member State competition authority or both have been passed on within the 
Network. Important examples are the Deutsche Post  cases where the Commission 
and the German competition authority were seized with similar complaints referring to Article 82 EC concerning the same practic e of Deutsche Post AG with regard to 
discounts for pre-sorted mail. Deutsche Post's practice wa s based on a provision of 
the German postal legislation which was the subject of a Co mmission procedure 
under Article 86 EC. In this case, the Commission whose e xperts were preparing the 
Article 86 decision, considered that the mo st effective and efficient way forward 
would be the investigation of the complaint by the Bundeskartellamt. The complainant agreed to w ithdraw the complaint with the Commission. The work 
sharing proved successful inasmuch as both proceedings have now been concluded by decisions.
279 Both decisions have been appeal ed. These cases are a remarkable 
example of how the action of the Comm ission and that of a Member State 
competition authority can effectively complement each other in practice. 
218. The issue of work sharing was also addressed in the Wanadoo case  the details of 
which are already described above.280 In the so called iTunes  case concerning on-line 
delivery of music, the Commission was approached by the UK Office of Fair 
                                                 
276 Commission Decision of 28 November 2007, See Commission Press Release IP/07/1781. 
277 German, French, Swedish and British competition authorities; the BKartA had already asked the 
complainant for information when re-allocation took place. 
278 See Commission Press Release IP/08/783 of 11.12.2008. 
279 Commission Decision of 20 October 2004 on the German postal legislation relating to mail preparation 
services (COMP/38.745); BKA, Decision of 11 February 2005 (B 9-55/03); See also Martinez Lopez/Obst, The BdKEP decision, the application of competition law to the partially liberalised postal 
sector, Competition Policy Newsletter 2005, N°1, 31. 
280 See above, part 5.2.1. 
EN 66   EN Trading, which had been seized with a complaint from a consumer organisation. The 
Commission agreed to take up the case wh ich concerned several Member States and 
opened proceedings in April 2007.281 After Apple's announcemen t to equalise prices 
for music downloads from iTunes in Europe in January 2008282, the case was closed.  
219. More recent examples of re-allocati on of cases which took place from the 
Commission to national competition authorities  concern an investigation related to a 
triple play offer (TV, telephone and broadband) jointly commercialised by 
Telefonica and Sogecable283 and investigations into the joint selling of football 
rights284. 
220. Re-allocation of cases between national comp etition authorities has been very rare. 
The Commission has been informed only of three cases. These re-allocations were 
mainly due to the fact that the locations of the companies concerned by the investigations were situated  in another Member State.
285 
221. The cases mentioned generally illustrate  how work-sharing in the Network takes 
place in practice. As is well known, Regulation 1/2003 does not provide for a 
"transfer" of cases as such. "Re-allocation"  involves one author ity going ahead with 
the investigation of a case wh ile another authority abstains  from acting or closes its 
file either on the basis of its discretion (not ) to act or on the basi s of Article 13 of the 
Regulation.  
222. One issue which has given rise to certain discussions in the Network relates to the 
situation where a national competition authority  is seized by a complainant but is not 
particularly well placed to deal with the cas e, as it requires extensive investigations 
in other Member States. However, the Commission or another national competition authority does not consider the ca se to be a priority. Such a " negative conflict of 
allocation " scenario has occurred in very limited instances. It is in the first place 
linked to the afore-mentioned issue that so me authorities in th e network are bound to 
deal with cases, even where they are not an  enforcement priority, whereas others are 
not. Still, the subject may merit further obs ervation in the practi ce of the network, 
with a view to determine if  the mechanisms for assistance should be enhanced in 
order to further improve the ability of na tional competition authorities to deal with 
cases requiring fact-finding in other Member States. 
223. Parallel proceedings between network member s are also very rare. The vast majority 
of national competition authorities have not acted in parallel to other national competition authorities or to the Commissi on. One single case of parallel action in 
relation to a single infringement can be reported upon: the Germ an and the Belgian 
competition authorities received a leniency application relating to a European wide 
price-fixing cartel for the chemical product Benzyl-Buthyl-Phtalat. Both authorities 
investigated the case and imposed fines.
286 The Belgian authority which imposed the 
                                                 
281 See Commission Press Release IP/07/126 of 03.04.2007. 
282 See Commission Press Release IP/08/22 of 09.01.2008. 
283 Re-allocation to the Spanish competition authority. 
284 For instance re-allocation to German competition authority and the Danish competition authority.  
285 Two re-allocation of cases took place toward s the UK OFT, both cases were closed. 
286 Decision of the German Bundeskartellamt in case B 11-23/05. Decision of Belgian Competition 
Council of 4 April 2008, 
EN 67   EN second fine notably contemplated the issue of " ne bis in idem ". It considered inter 
alia that it was able to impose a fine in regard of the effects of the cartel in the 
Belgian territory and based on the turnover in Belgium inso far as the first fine had 
been imposed by the German authority in view  of the effects in the German territory 
only. The case might prima facie have pr esented the opportunity  for the Community 
Courts (pursuant to an Artic le 234 EC reference) to clar ify questions relating to the 
principle of ne bis in idem and in particul ar the definition of 'idem'. However, neither 
of the decisions was appealed. 
224. In conclusion, work sharing within the ECN has worked very well. The ECN is well 
equipped to avoid unnecessary duplication of work and to ensure efficient 
enforcement. The ECN members have dem onstrated their readiness to solve case-
allocation issues in a manner that  ensures efficient work-sharing.  
5.3. ECN cooperation in the field of leniency 
5.3.1.  The ECN Model Leniency Programme 
225. Since 2004, significant developments have taken place in the field of leniency 
programmes within the ECN. Regulation 1/ 2003 is built on a syst em of parallel 
competences in which national competiti on authorities are active enforcers of 
Articles 81 and 82 EC alongsid e the Commission. A logical consequence of such a 
system is that a leniency applicant may need to protect its position with all the 
authorities that may impose sanctions for the cartel activity, i.e. it entails a need for multiple filings in different jurisdictions. 
226. The co-existence of several leniency progr ams within the European Union has been 
addressed as from the entry into force of Regulation 1/2003. In the Commission 
Notice on Cooperation within the Network of  Competition Authorit ies (the "Network 
Notice"), potential applicants were advised that they might have an interest in protecting their position in  several jurisdictions.
287 Moreover, safeguards concerning 
the transmission of leniency related inform ation within the ECN were put in place.288  
227. As from 2005, a dedicated ECN Lenien cy Working Group prepared further 
measures, considering that certain discrepa ncies indeed may have  adverse effects on 
the effectiveness of the programmes and on th e incentives of undertak ings to disclose 
their cartel activit ies throughout the EU. To address th ese concerns, the heads of all 
ECN members endorsed the ECN Model Leniency Programme289 (the "Model 
Programme") on 29 September 2006. The aim of this Programme is to remove certain discrepancies between the policies of the ECN Members and to facilitate multiple filings within the EU.  
228. The Model Programme was drafted as a cohe rent document setting out the essential 
procedural and substantive elements that  the ECN members believe every leniency 
programme should contain. It concerns only secret cartel s, which are difficult to 
                                                                                                                                                        
 
 http://www.economie.fgov.be/organisation_market/competition/iurisprudence/13200813_Bayer_Ferro_
Solutia_Lonza.pdf. 
287 See Commission Notice on cooperation within the Network of Competition Authorities OJ  C 101, 
27/04/2004, p. 43, para 38. 
288 The Network Notice, paras 40 and 41.  
289 Available at http://ec.europa.eu/competition/ecn/model_leniency_en.pdf .  
EN 68   EN detect by other means.290 Its purpose is to harmonise the key elements of leniency 
policies, including inter alia  the conditions for immunity from fines and the 
exclusion of certain appli cants from the protection, marker system, information 
required for immunity and markers, c onditions for reduction of fines and the 
maximum percentage for reduction of fines.291 It foresees that co ercers of the cartel 
are excluded from immunity.292 The Model Programme al so introduces a uniform 
summary application system that facilitates the procedure when an applicant wants to protect its position with one or more nati onal competition authorities in addition to 
the Commission.
293 
229. Insofar as multiple filings are concerned, various alternative options were examined 
within the ECN in connection with the ela boration of the Model Programme but were 
rejected as unworkable in practice.294 A mutual recognition system, for instance, 
could, absent a high degree of harmonisa tion, invite forum shopping. In turn, the 
option that the Commission would act as a central decision-maker for immunity 
applications, besides being a heavy admini strative task for the Commission, would 
entail disincentives for applicants and for national competition authorities. For cartels 
of smaller territorial scope, parties may be  reluctant to appro ach the Commission. 
Moreover, a national competition authority th at would deal with a case would be cut 
off from the early contacts with the app licant which are normally essential for the 
competition authority to target its investiga tion in an optimal way. Both options have 
in common that they would require that, in order to decide with effect for the whole 
Community, the approached authority would have to check that no other authority 
had sufficient information to launch an ex officio  investigation. Th is would require 
extensive contacts at a very early stage of the case. 
230. In the light of these considerations, the Model Programme opted for a summary 
application system for cases in which th e Commission is “particularly well placed” 
to deal with the case (i.e. cases concer ning more than three Member States).295 
Where a full application has been made with the Commission, national competition 
authorities can accept temporarily to prot ect the applicant’s position on the basis of 
very limited information foreseen in the Model Programme. This information is broadly equivalent to information needed for a marker. Such information can be given orally.
296 Should a national competition author ity act on the case, it will grant 
the applicant a period of time to  complete its application.  
                                                 
290 See paras 1-2 of the Explanatory Notes. 
291 See the Explanatory Notes. For instance, reductions of  fines should not exceed 50% of the fine in order 
to ensure that there is a significant difference between immunity and reductions, so that it will be 
significantly more attractive to  apply for immunity than wait to be the second in line.  
292 Para 8 of the Model Programme sets out that an undertaking which took steps to coerce another 
undertaking to participate in the cartel will not be eligible for immunity from fines. In general, the Model Programme does not prevent ECN members from adopting a more favourable approach. 
However, some programmes of ECN Members set out  that they are not ap plicable to the sole 
ringleaders (see also footnote 4 of the Model Programme). 
293 See paras 22-25 of the Model Programme and para 14 of the Network Notice.  
294 For a further discussion of these options, see Gauer, C. and Jaspers, M.: Designing A European Solution 
For A "One Stop Leniency Shop", E.C.L.R. 2006, 27(12), p. 685-692. 
295 See para 14 of the Network Notice. 
296 See in particular para 48 of the Explanatory Notes. 
EN 69   EN 231. In this system, summary applications fac ilitate multiple filings and their processing 
by competition authorities where it is likely  that the Commission will deal with the 
case. Undertakings that take part in cross-border cartels expose themselves to 
penalties in several jurisdictions. It is fo r the applicant to take the steps which it 
considers appropriate to protect its positio n with respect to possible proceedings by 
the relevant authorities.297  
5.3.2.  Way forward 
232. In the stakeholder consultation, the legal and business community stated a strong 
preference for a more centralis ed approach for leniency in the European Union, some 
expressing a desire to see the matter dealt wi th by regulation. At  the same time, 
practical experience suggests that potential  applicants are generally aware of the 
system and undertake the necessary to protect their interests. 
233. Whilst the Model Programme is not a lega lly binding document and does not prevent 
members from adopting a more favourable approach towards a pplicants, the ECN 
members have committed to use their best efforts to align their respective programmes with it.
298  
234. The work within the ECN has been a major catalyst in encourag ing Member States 
and/or national competition authorities to  introduce and develop their own leniency 
policies and in promoting convergence between them. The adoption of leniency programmes by the ECN members and th eir harmonisation with the Model 
Programme has progressed considerably during the reported period. Today, only 
Malta and Slovenia do not have any ki nd of leniency policy in place.  
235. The Model Programme foresees that the ECN will evaluate the stat us of convergence 
of the leniency programmes as at the end of 2008. The assessment will form the basis for a reflection on whether further ac tion is needed in this field.  
5.3.3.  Safeguards for leniency information within the ECN 
236. In order not to discourage potential app licants from voluntarily reporting cartels, the 
Network Notice sets out special safeguards for the exchange and use of leniency related information. In particular, accordi ng to paragraph 39 of the Network Notice, 
leniency related information submitted pur suant to Article 11 of Regulation 1/2003 
cannot be used by other authorities to star t an investigation. According to paragraph 
41, information submitted by a leniency applicant or collected on that basis, may only be exchanged between two authorities in the following circumstances: (i) the 
applicant consents to the exchange; or (ii) the applicant has applied for leniency with 
both authorities in the same case; or (iii ) the receiving authority provides a written 
commitment not to use the information tr ansmitted or any information it may obtain 
after the date of the transmission to impose sanctions on the applicant, its subsidiaries or its employees. In accord ance with the Regulation, information so 
exchanged between the Commission and nationa l authorities shall only be used in 
                                                
 
297 See also para 38 of  the Network Notice.  
298 The Model Programme explicitly recognises that not all competition authorities have the power to 
implement changes in their national leniency programmes as this power is held by other bodies, see 
para 9 of the Explanatory Notes.  
EN 70   EN evidence for the purpose of applying Articl e 81 EC. It cannot be used for applying 
national laws, unless applied in parallel with Article 81 EC.299 
237. In order to limit any negative consequen ces for leniency programmes by risk of 
disclosure of leniency information and documents, the Model Leniency Programme 
allows for oral applications in all cases wh ere this would appear to be justified and 
proportionate.300 The Model Leniency Programme also foresees that no access will 
be granted to any records of any oral stat ements before the statement of objections 
has been issued. Moreover,  the Model Leniency Programme foresees that the 
exchange of records of oral statements be tween authorities is limited to cases where 
the protections afforded to such records by the receiving authority are equivalent to 
those afforded by the transmitting authority.  
5.4. Cooperation for fact-finding purposes 
5.4.1.  Information exchange pursuant to Article 12 of Regulation 1/2003 
238. In contrast to Regulation 17, which contained only little provision for the exchange 
of information between the Commission an d national competition authorities and 
none at all for the exchange of information between the national competition authorities, Regulation 1/2003 introduced an explicit provision concerning the 
exchange of information between all European competition authorities, including confidential information, and the use of  such information as evidence.  
239. Article 12(1) of Regulation 1/2003 empowers  competition authorities to exchange 
information as intelligence  irrespective of the (criminal or administrative) nature of 
the underlying proceedings and irrespectiv e of whether sanctions are imposed on 
individuals, provided that th e exchange occurs for the purpose of applying Articles 
81 and 82 EC. Conversely, the use in evidence  of information received from another 
competition authority is subject to certain additional conditions, as laid down in paragraphs 2 and 3 of Article 12.  
240. As far as proceedings against undertakings are concerned, Article 12(2) of 
Regulation 1/2003 assumes a sufficient degr ee of equivalence of the rights of 
defence in the different enforcement systems.
301 Information collected in one system 
can therefore be used in evidence in a nother system, provided that the general 
conditions of Article 12(2) are fulfilled, notably that the information may be used only for the purpose of applying Article 81 or  82 EC and in respect of the ‘subject-
matter’ for which it was collected.  
241. As far as proceedings against individuals are concerned, Article 12(3) of Regulation 
1/2003 subjects the use in evidence of info rmation received from other competition 
authorities to certain additional conditions.  
– The use in evidence is possible under the first indent of Article 12(3) if the 
transmitting system also targets individuals and provides for sanctions of a similar 
                                                
 
299 Article 12 (2). 
300 According to para 14 of the Network Notice, oral ap plications are always justified and proportionate in 
cases where the Commission is “particularly well placed" to act. 
301 See recital 16. 
EN 71   EN kind (financial, custodial or other) in which case the Regulation presumes that 
there are sufficiently equivalent standard s of rights of defence. The qualification 
of the sanctions or procedures at nationa l level as administrative or criminal is 
irrelevant.  
– Where the types of sanctions  on individuals are material ly different, information 
may only be exchanged for use in evidence if the information has been collected in a way that respects the same level of pr otection of the rights  of the defence as 
provided for under the rules of the rece iving authority (second indent, first 
sentence of Article 12(3)). A comparis on regarding the level of protection is 
therefore required. However, Article 12(3), second indent  last sentence provides 
that in this case information collected in  a jurisdiction that does not provide for 
custodial sanctions cannot be used in evidence  in another jurisdiction to seek the 
imposition of custodial sanctions. 
242. The possibility to exchange and use information gathered by another competition 
authority has proven to be one of the cornerstones of the modernisation package, 
given that it greatly e nhances the overall efficiency with in the network an d that it is a 
pre-condition for a flexible case-allocation system. Since the entry into force of Regulation 1/2003, information exchanges pursu ant to Article 12 ha ve taken place to 
and from the Commission and between the national competition authorities, notably in the following three scenarios:  
– In the context of inspections, information exchange may enable several authorities 
that have received different pieces of information to obtain a more complete 
picture of a suspected infringement. Su ch exchanges strengthen the individual 
ECN members' ability to detect infringe ments. They occur normally at a very 
early stage of an investigation (prior to  inspections) and are highly confidential. 
– In the context of Article 22 inspections, th e information collected on behalf of the 
requesting authority is transfe rred on the basis of Article 12. 
– If a case is allocated between authorities or re-allocated to another authority, the 
information is passed on pursuant to Article 12.  
243. The cases where information was not only ex changed but also used in evidence are 
more limited, and most of them are stil l ongoing. The majority of these cases are 
related to the Article 22 scenario (e.g. Flat Glass
302, Sanitary fittings ). In this 
context, it was reported by national competition authorities that some difficulties were encountered in using the documents collected by another national competition authority due to different legislation on the confidentiality requirements.  
244. As regards the conditions provided for by Article 12(3) and the use of evidence in 
case of sanctions on individuals, experience is very limited. No network member has 
reported any particular case wh ere it had to carry out an an alysis of the conditions of 
Article 12(3) in view of using informa tion received from another network member, 
nor where it abstained from re questing potentially relevant  information, nor where it 
was unable to use in evidence information relevant to a case for the imposition of 
custodial sanctions received from another network member. 
                                                
 
302 See above, part 3.2.6. 
EN 72   EN 245. In this context, a discussion has however arisen whether the ban on the use of 
information for the imposition of custodi al sanctions where the law of the 
transmitting authority does not foresee such sanctions, as provided for by the last sentence of the second indent of Article 12 (3), is too far-reaching and constitutes an 
obstacle to effective enforcement. In this regard, alternative c oncepts, such as the 
"double barrier " approach
303 have been proposed. These c onsiderations could also be 
relevant for future discussi ons concerning international c ooperation agreements with 
selected jurisdictions.304 
5.4.2.  Assistance pursuant to Artic le 22 of Regulation 1/2003 
246. Article 22(1) of Regulation 1/2003 gives Me mber States' competition authorities the 
power to carry out inspections or other f act-finding measures on behalf of another 
Member States' competition authority. The fact-finding measures are governed by the 
law of the Member State where they take place. That means th at the investigation 
authority acts on the basis of its investig atory powers, as provided by national law, 
and has to respect the procedural rights of  the undertakings under investigation, as 
provided by national law. The results of  the investigatory measures may be 
exchanged on the basis of Article 12. Assi stance pursuant to Article 22(1) has been 
successfully used within the network during the last five years. In the vast majority of cases, requests were followed up on by the requested authority a nd results have in 
particular fed into cartel investigati ons in the receiving national competition 
authorities. Assistance wa s requested and provided ma inly in the context of 
inspections, witness interviews and requests for information.  
247. Whereas generally this tool has proven to be very usef ul, some practical and legal 
issues have arisen in the last years. Th e practical issues are mainly linked to the 
partly limited resources of some nati onal competition authorities and language 
issues. Legal issues arose primarily as a result of divergent national procedural 
frameworks and concerned for instance the acquisition of evidence, due to 
divergences in national legislation con cerning the requirements to conduct an 
inspection or proceed with a request for information and with regard to varying 
powers to conduct Forensic IT searches.  
5.5. The ECN as a forum to promote coherent application 
5.5.1.  Horizontal work in the ECN 
248. Five years of experience ha ve shown that the ECN is a successful forum to discuss 
general policy issues. The means of coopera tion and the subjects of discussion have 
been manifold and have developed over tim e. Currently, policy work is organised at 
four different levels of organisation: the ye arly meetings of the Directors General of 
the European Competition Authorities, the Plenary meetings, the horizontal working groups and the sector-specific subgroups. Di scussions in the different fora have 
promoted a coherent approach and the coherent  application of the EC antitrust rules.  
                                                
 
303 According to the proposed concept of a " double barrier ": (i) the transmitting authority would have to 
verify that the information transmit ted can be used in conformity with  its rules; and (ii) the receiving 
authority would have to verify that  the information received can be used  in conformity with its rules. 
304 See below, part 7.2. 
EN 73   EN – The Director General’s meeting is the fo rum for discussing major policy issues 
within the Network and constitutes the to p level of the ECN framework. It takes 
place once per year and discussions ha ve, for example, taken place on major 
topics such as the review of the Co mmission's policy on Article 82 EC, the ECN 
Leniency Model Programme, in creases in food and energy prices and the financial 
crisis.305 
– Another central forum is the "ECN Plenary"  where horizontal antitrust issues of 
common interest policy are discussed, e .g. the ability of national competition 
authorities to disapply State measures in  their application of the EC competition 
rules in combination with Article 10 EC, following the CIF ruling306 of the 
European Court of Justice. Cases undert aken by national competition authorities 
on this basis are typically complex and a debate was held on the conditions that 
must be met for the disapplication of anti-competitive State measures. Such exchange of experience and know-how ha s proved extremely beneficial in terms 
of further developing a common co mpetition culture within the Network. 
Participants are normally officials of the national competition authorities responsible for ECN matters  and officials of the ECN unit of the Directorate 
General for Competition. 
– Under the "umbrella" of the Plenary, ther e is a varying number of working groups 
that deal with horizontal  questions of legal, econom ic or procedural nature 
situated at the interface between Comm unity law and diverse national laws (e.g. 
Cooperation issues, Leniency, Sanctions and ne bis in idem, Information and 
Communication, Article 82 EC, Competition Chief Economists, Vertical 
Restraints and Horizontal Agreements).  For example, the Cooperation issues 
working group has addressed the implem entation, and further refinement, of 
cooperation mechanisms within the ECN, such as cooperation on sector inquiries 
and requests for assistance from national competition authorities pursuant to 
Article 22 of Regulation 1/2003. Two worki ng groups were create d in the context 
of the review of the Commission's policy on horizontal agreements and vertical 
restraints. These working groups are tasked  with exploring the case experience of 
enforcers in these fields and will f eed into the Commission's review of the 
existing Block Exemption Regulations, a nd accompanying Guidelines, which are 
due to expire in 2010. 
– In addition to the horizontal working groups, the ECN also encompasses 15 
subgroups that deal with particular sect ors (e.g. Banking; Securities; Insurance; 
Food; Pharmaceuticals; Professional Serv ices; Healthcare; Environment; Energy; 
Railways; Motor Vehicles; Telecommunications; Media; Sports; Maritime transport). In these subgroups, expert officials of the national competition 
authorities and the Directorate General fo r Competition exchange views and best 
practices. They mainly deal with substa ntial questions, thus  promoting a common 
culture in their sectors. Particularly active subgr oups have been the subgroups on 
Energy, Banking and Pharmaceuticals and more recently the subgroup on Food. 
For example, the Energy subgroup group brought together national competition 
authorities and national regulators fo r high-level Energy Days in 2004, 2005, 
                                                
 
305 See above, part 5.3.1. 
306 Case C-198/01 Consorzio Industrie Fiammiferi (CIF) and Autorità Garante della Concorrenza e del 
Mercato [2003] ECR I-8055. 
EN 74   EN 2006, 2007 at which, inter alia, the ener gy sector inquiry undertaken by the 
Commission was discussed. The Banki ng subgroup has engaged in detailed 
discussions on the MasterCard Deci sion and its follow-up, multilateral 
interchange fees ("MIFs") and the Si ngle European Payment Area ("SEPA").307 
The work in the ECN subgroups has also resulted in or contributed to some 
sectoral guidance on the appl ication of Articles 81 and 82 EC, e.g. in the area of 
sport308 and waste management systems.309 Moreover, the Pharmaceuticals 
subgroup has been closely associated with the sector inquiry into pharmaceuticals. 
The Food subgroup became very active in 2008 in response to the sharp increase in some food prices. Experience was sh ared on the different actions taken by 
enforcers to address this issue (inve stigations, advocacy and inquiries).  
249. This constant dialogue between the network members on all levels over the last years 
has significantly contributed to a coherent approach and coherent  application of the 
EC competition rules. The permanent exchange of experiences and views, very often in an informal manner, has established confidence and trust between network members, increased the expertise and pr omoted convergence. It has led to the 
creation of a space to think that allows fr uitful discussions in a spirit of close 
cooperation and with the final objective of  promoting a common competition culture 
in Europe. This development over the last  five years is highly appreciated by all 
network members and is certainly one of  the major successes of the ECN. This 
achievement is widely recognised by the legal and business community which calls, 
however, for more transparency abou t ongoing discussions in the network. 
5.5.2.  Work on individual cases and envisaged decisions 
250. The three main mechanisms to ensure cohe rent application of the EC competition 
rules provided for by Regulation 1/2003 are th e following: (1) the obligation to apply 
Community law whenever there is an e ffect on trade in a manner that ensures 
convergence between national and Community law (Article 3(1)); (2) the obligation 
for national competition authorities to in form the Commission at the latest 30 
calendar days before an envisaged deci sion is adopted (Article 11(4); (3) the 
possibility for the Commission to intervene if there is a serious risk of incoherence, by relieving the national competition authority of its competence to act (Article 11(6)). 
251. These formal mechanisms form the bac kbone of close and ex tensive cooperation 
within the ECN. In practice, the extent a nd intensity of this c ooperation surpass by 
far what is strictly legally required. 
252. Notably, Article 11(4) of Regulation 1/2003 is one of the key instruments to ensure 
consistent application of EC competition rules. Pursuant to Article 11(4) national 
competition authorities must inform the Co mmission at least 30 days prior to the 
adoption of a decision requiring that an in fringement be brought to an end, accepting 
commitments or withdrawing the benef it of a block exemption regulation. The 
                                                
 
307 See above, part 2.2.2. 
308 Annex I to the Commission White Paper on Sport of 11 July 2007: sport and EU competition rules, 
available at http://ec.europa.eu/sport/white-paper/whitepaper112_en.htm. 
309 The Directorate General for Competition Paper relating to issues of competition in waste management 
systems, available at http://ec.europa.e u/competition/antitrust/others/waste.pdf. 
EN 75   EN information supplied to the Commission ma y be shared with the other network 
members in order to improve horizontal cooperation and to stimulate European 
competition policy.  
253. The purpose of Article 11(4) is to en able the Commission and the national 
competition authorities to ensure that Articles 81 and 82 EC are applied in a 
consistent manner within the network. Th e Commission has the possibility to make 
written observations on cases about which it is  informed pursuant to Article 11(4) to 
the national competition authority in question.310 In case of a major divergence, the 
Commission may decide to initiate formal  proceedings in the same case, thus 
relieving the national competition authority of its competence to deal with this case pursuant to Article 11(6).  
254. This information obligation applies to all types of envisaged decision referred to in 
Article 11(4) since the entry into app lication of Regulation 1/2003. The national 
competition authorities must submit the text of the envisaged decision and a summary of the case. Instead of a draft decision, the national competition authorities can also submit any other document which indi cates the proposed course of action, in 
particular a statement of objections or ot her documents foreseen by national laws.  
255. The Directorate General for Competition acknowledges receipt of information on 
envisaged decisions pursuant to Article 11(4), permitting undertakings to verify compliance with the obligations provided fo r by Article 11(4) in  the proceedings of 
the national competition authority or, where they deem it appropriate, in appeal proceedings in the Member States.  
256. So far, the Commission has been informed  of more than 300 envisaged decisions 
submitted by the national competition authorities on the basis of Article 11(4). In none of these cases, proceedings have been  initiated by the Commission pursuant to 
Article 11(6) with a view to relieving a national competition authority from its 
competence for reasons of coherent application.  
257. The Directorate General for Competition has developed a practice over the last years 
of submitting observations to the national competition authorities in many cases.
311 
These observations have been provided mostly  in an oral form but also in writing.312 
These observations have been multi-faceted. They have covered minor comments or 
were related to particular aspects of the envisaged decisions in order to promote a 
uniform approach on these aspects conc erned (e.g. product market definition); 
coordination with on-going Commission case s; or to case-law of the Community 
Courts. It should however be underlined th at these observations did not contain any 
new evidence of any other information that  would be exculpatory or incriminating 
for the parties of the proceedings. 
                                                 
310 The Commission Notice on cooperation within the Network of Competition Authorities, OJ C 101, 
27.04.2004, p.43, para 46. 
311 See further part 5.6 on the confidentiality of communications between the Commission and national 
competition authorities. 
312 In about 10% of the cases the observations of the Directorate General for Competition are provided in 
writing.  
EN 76   EN 258. It should be underlined that any observ ations from the Comm ission's Directorate 
General for Competition313 to national competition authorities, can only attempt to 
draw their attention to cert ain issues and point out matte rs that they may want to 
consider. It is for the Member States' competition authorities to take account of these observations as they consider appropriate . Every case is investigated and decided 
under the full and sole responsibility of the authority dealing with the case. However, 
the Commission has a special responsibility to  ensure that the rules are applied in a 
coherent and uniform manner. If there is a risk of incoherence, the Commission shall 
take the necessary steps to avoid such an outcome. 
259. These observations are normally taken very  seriously and are carefully reflected 
upon by the national competition authorities. According to their views expressed in 
the context of the preparation of this re port, the national competition authorities did 
not take into account the observations of  the Commission in only a few cases, 
normally due to specific circumstances of the case.
314 
260. Overall, it clearly results from the f eedback received by the Commission in the 
context of the consultation for this Re port that the mechanisms provided for by 
Article 11 of Regulation 1/2003 function very well and have led to the largely coherent and consistent app lication of EC competition ru les in the ECN over the last 
five years. The concerns related to a ma jor risk of incoherent and inconsistent 
application of EC competition law in a decentralised system that have been raised at 
the time of the adoption of  the modernisation package have certainly not been 
realised. Only in respect of few individual cases have inconsistencies been alleged by 
stakeholders.  
261. Nevertheless, from stakeholders’ side th ere is a certain call  on the Commission to 
explore further means to promote consistenc y within the network, such as a further 
strengthening of the mechanisms provided for in Ar ticle 11 (e.g. consultation instead 
of information, more systematic follow- up of observations and check of final 
decisions or appeal proc edure to the Commission). 
5.5.3.  Article 11(6) 
262. Article 11(6) of Regulation 1/2003 gives the Commission the possibility to intervene 
if there is a serious risk of incohe rence. The initiation by the Commission of 
proceedings relieves the national compe tition authorities of their competence to 
apply Articles 81 and 82 EC. In substance,  Article 11(6) has taken over Article 9(3) 
of Regulation 17, although its wording has changed. However, contrary to Regulation 17, the Commission is now obliged to consult the national competition authority already dealing with a cas e before initiating proceedings.  
263. Article 11(6) has gained a new role in Regulation 1/2003 inso far as it gives the 
Commission the possibility, in principle,  to take up any case from a national 
competition authority, even at a very late stage and after the submission of a draft decision, with a view to ensure coherent a pplication. This scenario of a possible use 
                                                
 
313 Observations submitted by the Directorate General for Competition within this context only reflect the 
views of the services and cannot be regarded as  stating an official position of the European 
Commission. 
314 E.g. specific market knowledge. 
EN 77   EN of Article 11(6) has to be distinguished from the regula r use of Article 11(6) by the 
Commission to open proceedings in a case th at the Commission intends to deal with. 
264. The actual initiation of proceedings by the Commission with a view to 'correct' the 
approach taken by a Member State competitio n authority in an envisaged decision 
should be reserved to the severest problems of coherent application where they arise 
in a case that presents sufficient Commun ity interest for the Commission to conduct 
its own procedure in the matter.315 The Network Notice provides guidance as to the 
circumstances in which this may be envisaged.316 Until now, the Commission has not 
seen the necessity of taking this step. As mentioned above, this may be attributed to 
various factors including notably the commitment of national competition authorities towards coherent application, extensive hor izontal exchanges in the ECN including 
in dedicated sectoral subgroups, as well  as informal exchanges between the 
Commission services and the national compe tition authorities in the context of the 
Article 11(4) submissions.  
5.6. Confidentiality of information 
5.6.1.  The principle of professional secrecy in the network 
265. The creation of the ECN was surrounde d by concerns about safeguarding 
confidential information among a plurality  of enforcers. However, pursuant to 
Article 28 of Regulation 1/2003 the Commi ssion and the Member States' competition 
authorities shall not disclose any informa tion which is covered by the principle of 
professional secrecy.
317 Article 28 applies to all network members and thus sets a 
common standard which needs to be protected throughout the EU.  
266. The standard of Article 28 is inherited from Article 20 of Regulation 17. In the 
context of the latter, its main significance for Member States' competition authorities related to the documents that they recei ved from the Commission in view of the 
meeting of the Advisory Committee. This aspect remained unchanged. Under Article 
11(2) of Regulation 1/2003, the Commission is still obliged to provide Member 
States ' competition authorities with copies  of the most important documents that it 
has collected with a view to taking decisions pursuant to Articles 7 to 10 and 29. This means that Member States' competition author ities are well aware of, and are used to, 
protecting case related confidential docum ents emanating from another authority. 
The standard of protection that has always  been applied to Commission documents is 
now extended to documents received from other Member State competition authorities. 
5.6.2.  Confidentiality of exchanges of views in the network 
267. The other side of the coin is preserving the common space to think that has been 
fostered within the ECN. The ability to have a free and constructive exchange of 
                                                
 
315 See the Joint Statement of the Council and the Commission on the functioning of the Network of 
Competition Authorities, available at: http://reg ister.consilium.europa.eu/pdf/en/02/st15/15435-
a1en2.pdf., para 21. 
316 Network Notice, para 54. 
317 An exception applies if the disclosure of confidentia l information is required to prove the infringement 
(point 28(a) of the Network Notice). For the Comm ission the exception is explicitly confirmed in 
Article 27(2) of Council Regulation 1/2003 and Article 15(3) of Commission Regulation 773/2004. 
EN 78   EN views between the competiti on authorities within the ECN is a key component for 
the success of the Network and for the e ffective enforcement of Articles 81 and 82 
EC. Experience has shown that the authorities are ready to engage in such fruitful 
discussions, provided that the views they share in that c ontext are kept confidential. 
Granting access to documents that have b een created solely for this purpose to 
anyone outside the Network will inevitably have a negative impact on the way the system functions today. For this reason obs ervations submitted in an Article 11(4) 
procedure are treated as ne twork internal documents.
318  
5.7. Concluding remark 
268. The sharing of knowledge and experience in the network has triggered a very open 
and constructive dialogue with the nationa l competition authorities which fosters the 
coherent application of Artic les 81 and 82 EC and thereby contributes to one of the 
central objectives of Regulation 1/2003.  
6. INTERACTION WITH NATIONAL COURTS  
6.1. Application of Articles 81 and 82 EC by national courts 
269. National courts play a key role in the en forcement of European competition law and, 
since the entry into appli cation of Regulation 1/2003, have  the power to apply both 
Articles 81 and 82 EC in full. National cour ts may be called upon to apply Article 81 
and 82 EC in a variety of scenarios: so me national courts have jurisdiction for 
lawsuits between private parties, such as actions relating to contracts or actions for 
damages; some national courts act as public  enforcers (e.g. in Austria, Finland and 
Ireland); and some national courts act as review courts, hearing appeals which are 
brought against decisions of the na tional competition authorities.  
270. Stakeholders have pointed to what they perceive as uneven enforcement of the EC 
competition rules by national courts. Neverthele ss, it is apparent that national courts 
have applied Articles 81 and 82 EC in a va riety of sectors and have tackled a range 
of issues.319 For example, national courts have  dealt under Article 82 EC with 
exclusionary behaviour (refusal of access,  rebates, long-term supply agreements, 
refusal to deal) of former incumbents in liberalising sectors, such as energy, postal 
services and telecoms. Exclusionary beha viour was also assessed by national courts 
in relation to e.g. port services, tele vision advertising a nd ice cream freezer 
exclusivity agreements. National courts have  also addressed expl oitative behaviour 
under Article 82 EC, with most cases involvi ng allegations of ex cessive pricing. In 
                                                 
318 Article 27(2) of Regulation 1/2003 states that the Commission regards correspondence between ECN 
members as internal documents that are not accessi ble. In addition, Article 28 of Regulation 1/2003 
extends the principle of professional secrecy that ap plies to the Commission and its services also to 
national competition authorities. See in this context also the Judgment of the Stockholm Administrative Court of Appeal, no. 7300/05
 of 23.05.2006 (Kammarrättens dom den 23 maj 2006 i mål nr 7300-05 ), 
by which the Court upheld a deci sion of the Swedish Competition Au thority denying a party access to 
the Directorate General for Competition's observations submitted in the context of an Article 11(4) 
procedure. The Court relied on the professional secrecy clause in Article 28 of Regulation 1/2003 and 
found that the public interest of ensuring a continued cooperation and exchange of information between national and EU authorities overruled the parties' interest to obtain access.  
319 For details of the sources of information about national court judgments available to the Commission, 
see part 6.2.3 below. 
EN 79   EN terms of the application of Article 81 EC , as noted above many cases involved the 
application of the Block Exemption Regulations.320 A number of cases also related to 
the setting of minimum fees by professional associations by e.g. la wyers, dentists and 
veterinarians.  
271. Particular responsibility is incumbent on nati onal courts exercising judicial review of 
decisions of national competition authorities. Whereas the national competition authorities and the Commission cooperate  in the ECN, a similar degree of 
cooperation and exchange of ideas cannot be  achieved for review courts. They may 
therefore want to consider the available cooperation mechanisms.  
272. An important way in which national courts contribute to the further development of 
Community competition law is by using the possibility to make references for preliminary rulings under Article 234 EC . While Regulation 1/2003 has not so far 
given rise to a large number of references, certain inte resting cases can be cited. 
273. In 2008, the European Court of Justice rule d on a reference for a preliminary ruling 
from the Supreme Court of Ireland in re lation to a scheme of the Beef Industry 
Development Society Ltd ("BI DS"), whose members sold approximately 93% of the 
beef sold in Ireland.
321 Under this scheme, some beef  processors undertook to leave 
the processing industry, decommission their pr ocessing plants and respect a two year 
non-compete clause in retu rn for compensation from the remaining members of 
BIDS. The Irish Competition Authority chal lenged the BIDS scheme and made an 
application to the Irish High Court, but the Irish High Court dismissed its application, 
having found that Article 81(1) EC had not been breached. The Irish Competition 
Authority appealed this decision to the Irish Supreme Court, which referred to the Court of Justice a question asking whether the BIDS arrangement should regarded as 
being restrictive of competition by object and prohibited under Article 81(1) EC or, 
alternatively, whether it is necessary, in order to reach this conclusion, to 
demonstrate first that this arrangement had anti-competitive effects. The Court of 
Justice, in an important ruling, confirmed that such agreements between competitors 
to restrict capacity or production are rest rictions of competiti on by object within the 
meaning of Article 81(1) EC. 
274. Another interesting reference for a prelimin ary ruling, which relates to the evidence 
which must be adduced before national c ourts when proving an infringement of 
Article 81 EC, is referred to above.
322 
275. Moreover, in VEBIC , the European Court of Justice is asked to rule on questions 
referred to it by the Belgian review court on the interpretation of Articles 2, 15(3) and 35(1) of Regulation 1/2003 with regard  to the involvemen t of the Belgian 
competition authorities in the appeal proceedings.
323  
                                                 
320 See part 2.2.4 above. 
321 Case C-209/07 Competition Authority v. Beef Industry Development Society Ltd and Barry Brother 
(Carrigmore) Meats Ltd, judgment of 20.11.2008, not yet reported. 
322 See part 2.3 above. 
323 Case C-439/08, Reference for a preliminary ruling from the Hof van Beroep te Brussel lodged on 6 
October 2008 – VZW Vlaamse Federatie van Vereniging van Brood-en Banketbakkers, Ijsbereiders en 
Chocoladebewerkers 'VEBIC', the other parties being Raad voor de Mededinging and the Minister van 
Economie, OJ C 313 of 06.12.2008, p. 19. 
EN 80   EN 6.2. Application of Article 15 of Regulation 1/2003 
276. A network involving the national courts sim ilar to the ECN would sit uneasily with 
the independent position of the judiciary. Nevertheless, Regulation 1/2003 provides 
for a number of devices to promote cohe rency, building on the mutual duty of loyal 
cooperation provided for by Article 10 EC.324 
6.2.1.  Opinions 
277. Under Article 15(1), national courts can as k the Commission for information or its 
opinion on questions concerni ng the application of Artic les 81 and 82 EC. As of 31 
March 2009, the Commission has issued opini ons on 18 occasions to  national courts 
in Belgium (5), Spain (9), Lithuania (1),  The Netherlands (1) and Sweden (2).  
278. The opinions issued to Spanish courts all concerned litigation between service station 
operators and wholesale supplie rs of petroleum products. In  most cases, the service 
station operators were seeking a declaration of nullity of the contract they have concluded with the wholesaler on the grounds  that it infringed EC competition law.  
279. The other opinions issued by the Commission relate to a wide variety of matters. The 
Commission has given opini ons to Belgian courts on: exclusive purchasing 
agreements for beer and non-beer beverage s; the application of Articles 81 and 82 
EC to exhibitions; the app lication of Article 82 EC to favourable conditions and 
rebates granted by collecting societies; the conformity of the general conditions in a 
pilotage contract, including an exoneration of  responsibility and an indemnity clause, 
with Article 82 EC; and the applicability of  Articles 81 and 82 EC to the exclusion of 
one of the members of a st andards setting organisation.  
280. Two opinions were given to Swedish courts, the first of which c oncerned the issue of 
whether a municipality can be concerned to be as "undertaking" under Articles 81 
and 82 EC with a "legitimate interest" to complain pursuant to Article 7(2) of 
Regulation 1/2003. The second related to the de finition of the relevant market in a 
case where a port was alleged to have abused its dominant position as the provider of 
port services by charging exce ssive fees to a Danish stated-owned ferry operator.  
281. In an opinion given to a Dutch national court, the Commission provided guidance on 
whether quota allocations for mussel seed s in The Netherlands which set by an 
association of mussel farmers for its memb ers, fell to be assessed under Articles 81 
and 82 EC or whether it came within the scope of Regulation 26/62 on the 
application of competition rules to agricultural products. Finally, the Commission 
provided an opinion to a Lit huanian court on whether it wa s compatible with Article 
86(1) EC, in conjunction with  Article 82 EC, for a municipa lity to carry out a tender 
procedure for the award of an exclusiv e right to collect waste for 15 years. 
282. Some stakeholders have highlighted what th ey perceive as reluctance on the part of 
some national judges to seek opinions fr om the Commission under Article 15(1). To 
try to address this issue, the Commission has published examples of opinions given 
to national courts on the Directorate Gene ral for Competition's website so that 
                                                
 
324 Further details of this cooperation are set out in  the Notice on cooperation with courts of the EU 
Member States in the application of Articles 81 and 82 EC, OJ C 101 of 27.04.2004, p.54. 
EN 81   EN national courts can get an idea of what an opinion can provide.325 Guidance is also 
given on the Directorate General for Competition's website detailing what requests for opinions should contain. 
6.2.2.  "Amicus curiae" observations 
283. Both the Commission and the national comp etition authorities have the power to 
make observations in proceedings befo re national courts under Article 15(3). 
Whereas the Commission has the power to intervene pursuant to Article 15(3) 
"where the coherent application of Article 81 or Article 82 of the Treaty so requires ", 
national competition authorities have broader scope to do so on any "issues relating to the application" of Article 81 or 82 EC. In addition, Artic le 15 established a 
minimum standard and certain national la ws provide for wider powers for national 
competition authorities.
326 Indeed, this is a tool which is  well used by several national 
competition authorities. The Commission on its part, has decided to submit amicus observations on two occasions during the re porting period, where it considered that 
there was an imminent threat to the coherent application of  the EC competition rules.  
284. In 2006, the Commission for the first time ma de use of Article 15(3) by presenting 
written observations to the Cour d'appel de Paris in the "Garage Gremeau" case 
concerning the interpretation of the concept of quantitative selec tive distribution in 
Commission Regulation No. 1400/2002 (the "Motor Vehicle Block Exemption 
Regulation").
327 The question of whether a car distri bution system is selective and if 
so, whether the selection criteria are qua ntitative or qualitative in nature, has 
important legal and practical implicati ons. Subject to compliance with other 
conditions, distribution agreements of car  suppliers with a market share not 
exceeding 30% benefit from the block exemption under Regulation 1400/2002. This threshold rises to 40% for quantitative selective distribution agreements and qualitative selective distribution agreem ents benefit from the block exemption 
irrespective of the market share of the s upplier. Article 1(1)(f )-(h) of the Motor 
Vehicle Block Exemption Regulation defi nes a selective dist ribution as being 
qualitative where the supplier selects dist ributors according to uniformly applicable 
and non-discriminatory criteria that are onl y qualitative in nature , are required by the 
nature of the goods (e.g. to preserve its qua lity and ensure its proper use) and do not 
directly limit the number of authorised dist ributors. By contrast, in a quantitative 
selective distribution system, the supplier uses selection criteria that directly limit the number of authorised distributors. 
285. The case at issue was brought by Garage Gr emeau against DaimlerChrysler France 
which had terminated all of its existing distribution contract s with a view to 
restructuring its distribution system of the ba sis of quantitative selection, in light of 
Regulation 1400/2002. It refused to conclude a new distri bution agreement with its 
                                                
 
325 This is only done once the judgment in the court case concerned has been rendered and is subject to 
conformity with national procedural rules: h ttp://ec.europa.eu/competition/court/requests.html. 
326 For example, in Germany, the law goes further than Art. 15(3) of Reg. 1/2003. The national competition 
authority has the power to appoint a representativ e authorised to submit written statements, attend 
hearings, give evidence and address questions to the parties, witnesses and experts, (s 90(2) Gesetz 
gegen Wettbewerbsbeschränkungen (GWB)). 
327 Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the 
Treaty to categories of vertical ag reements and concerted practices in the motor vehicles sector, OJ 
2002 L 203 of 01.08.2002p.30. 
EN 82   EN former agreed distributor Garage Gremeau  on the basis that it would exceed the 
number of distributors foreseen as it had a ppointed another distributor for the area in 
question. Garage Gremeau requested by way of remedy that it should be admitted to DaimlerChrysler’s network. This was refuse d at first instance and on appeal. The 
Cour de Cassation subsequently affirm ed the appeal court's finding that 
DaimlerChrysler's criterion of nominating a certain number of authorised distributors 
for different sales territories was objective and precise, but held that the lower court should have examined both the objectivity of its other selection criteria and how 
these were implemented, in particular b ecause the new authorised distributor in 
Burgundy did not fulfil these at the tim e of its appointment. These judgments 
generated considerable interest in the sector, including in other Member States. 
286. The Commission intervened to clarify that quantitative selective distribution systems 
do not have to fulfil the same requirements as those applicable for qualitative selective distribution systems, meaning th at it is not necessary to assess the 
objectivity of the selection criteria other than those fo r determining the number of 
distributors. If that were the case, the categories of quantit ative and qualitative 
selective distribution would be confla ted, contrary to Regulation 1400/2002. With 
regard to any assessment of the implem entation of the selection criteria, the 
Commission observed that there does not appear to be any basis on Regulation 
1400/2002 for preventing a supplier from foreseeing a transitional period for 
fulfilling its requirements if it considers that a given candidate has the financial and technical potential. Otherwis e, this would tend to limit acce ss to existing authorised 
distributors who have alread y made the necessary invest ments, foreclosing more 
competitive newcomers. This case is currently subject to a stay of proceedings. Stakeholders have noted that the Commission's intervention was very useful in that it 
could be invoked in similar proceedings before other national courts. 
287. The Commission also decided to make obser vations pursuant to  Article 15(3) of 
Regulation 1/2003 in a case in The Netherlands  concerning the tax deductibility of 
Commission competition fines. In the initia l judgment of 22 May 2006 on this issue, 
the Dutch Rechtbank van Haarlem (Court of Fi rst Instance in Haarlem, notably in tax 
matters) ruled that fines imposed by the Commission for infringement of the EC 
competition rules are partially deductible from income tax. The court found that although Dutch law provides that administ rative fines cannot be deducted from 
income tax, fines imposed by the Commissi on cannot be understood according to the 
national definition of "fine" as, unlike fine s imposed under Dutch law, they consist of 
punitive elements and elements intended to skim off illegal gains. 
288. This judgment was appealed to the Ger echtshof van Amsterdam (Belastingkamer) 
(Court of Appeal of Amsterdam, tax cham ber). The Commission moved to intervene 
as amicus curiae to highlight that Commun ity fines for breach of the EC competition 
rules are not intended to skim off illegal ga ins and that the principle of equivalence 
would be breached if fines imposed under EC competition law could be deducted in 
contrast to fines under national law. Moreove r, it would go against the principle of 
effectiveness, as the impact of Commissi on decisions would necessarily be reduced 
if companies fined for the violation of Artic les 81 and 82 EC could (at least partially) 
deduct the amount from national income tax. 
289. In an intermediary judgme nt of 12 September 2007, the Gerechtshof van Amsterdam 
decided to ask for a preliminary ruling to the European Court of Justice under Article 
EN 83   EN 234 EC regarding the possibility for the Commission to intervene on the basis of 
Article 15(3) in such  national (tax) litigation. The ru ling of the Cour t should provide 
useful clarification regarding the scop e of Article 15(3) of Regulation 1/2003.328 
290. In sum, the Commission's role as amicus curiae pursuant to Article 15(3) of 
Regulation 1/2003 is to interven e in cases that have importa nt policy implications for 
the application of Articl es 81 and 82 EC. Stakeholders have called on the 
Commission to have greater recourse to th is instrument and it  should be reflected 
upon how this practice should further develop. 
6.2.3.  Transmission of judgments 
291. Article 15(2) of Regulation 1/2003 require s Member States to forward to the 
Commission a copy of any written judgmen t of national courts deciding on the 
application of Articles 81 or 82 EC. These judgments must be sent "without delay 
after the full written judgment is notified to the parties". The Commission publishes a database of the judgments it receives from  the Member States pursuant to Article 
15(2). This database, although welcomed as potentially being a va luable source of 
case practice, is cri ticised by several stakeholders on the grounds that it is far from 
complete.
329 Some stakeholders have provide d suggestions for improving the 
functioning of Article 15(2). For example,  it has been proposed that the national 
competition authorities should be given the duty of assembling the relevant judgments in their respectiv e territories and transmitting them to the Commission, as 
is currently done in several Member States. It  is further proposed that this could be 
combined with a procedural duty on litigan ts to serve their initial pleadings on the 
Commission and/or national competition author ity concerned, so that the latter could 
be alerted to the litigation at an early stage.
330 Overall, options for ensuring a more 
                                                 
328 Case C-429/07, Reference for a preliminary ruling from the Gerechtshof Amsterdam (The Netherlands) 
lodged on 22 May 2006 Inspecteur van de Belastingdienst v X BV, OJ C-429/07 of 08.12.2007, p.23 and the Opinion of Advocate-General Mengozzi of 05.03.2009, not yet reported. 
329 There are approximately 175 judgments in this database (12 Member States have not sent judgments). 
Numerous stakeholders have highlighted that they are aware of judgments taken by national courts in which Articles 81 or 82 EC have been applied that do not appear in the database. The database of 
judgments transmitted by the Member States is cu rrently complemented by a compilation of judgments 
handed down by national courts from 2006 onwards which is prepared by most national competition authorities for their respective jurisdictions and is made available on the Directorate General for 
Competition's website at http://ec.europa.eu/competition/elojade/antitrust/nationalcourts/
. Parts 3 of the 
2004 and 2005 Annual Reports on Competition Policy, available at: http://ec.europa.eu/competition/annual_reports/
, also contain sections on the application of the EC 
competition rules by national courts. 
330 This is the practice for instance in the UK where an y party whose statement of case raises or deals with 
an issue relating to the application of Articles 81 an d 82 EC or the equivalent national provisions must 
serve a copy of the statement of the case on the Office of Fair Trading as the sa me time as it is served 
on the other parties to the claim. See Practice Direction – Competition Law – Claims Relating to the Application of Articles 81 and 82 of the EC Treaty an d Chapters I and II of Part 1 of the Competition 
Act 1998, para. 3. The same duty of notification is imposed on appellants. See Practice Direction 52 – 
Appeals, para. 21.10A. By contrast, Hungarian law entr usts courts with this duty as opposed to litigants, 
providing that the court shall notify without de lay the European Commission and the Hungarian 
Competition Authority of lawsuits before it which are to be assessed under Articles 81 and 82 EC (Article 91/H of the Hungarian Competition Act). This obligation applies over and above the duty of 
national courts to forward final judgments deciding on the application of Articles 81 and 82 to the 
Hungarian Ministry of Justice. 
EN 84   EN efficient and effective way of providing acce ss to national court judgments should be 
contemplated.  
6.2.4.  Training of judges 
292. There is a perception among some that national judges may have limited knowledge 
of Community law and/or ha ve difficulties in accessi ng up-to-date information.331 
Stakeholders have also calle d for national judges to be more proactive in raising 
potential EC competition law issues.332 Continuous training and education of national 
judges in EC competition law is therefore cruc ial in order to ensure the effective and 
coherent application of those rules and to raise awareness of the mechanisms for cooperation with the Commission which are available. Since 2002, the Commission 
has co-financed 35 training projects, which have prov ided for the training of 
approximately 3,500 judges by the end of 2007. In 2008, 15 grant agreements were concluded for new projects for the traini ng of judges. A call for new proposals was 
also launched in October 2008. 
7. I
NTERFACE WITH THIRD COUNTRY ENFORCEMENT  
293. The Commission attaches great importanc e to fostering cons tructive cooperation 
with third country authoritie s, in particular as concer ns infringements with an 
international dimension. The effectiven ess of internati onal cooperation is 
interdependent on the effectiveness of Commission's own investigations for the 
enforcement of Articles 81 and 82 EC. Du ring the reported period, issues of 
disclosure of information from the Commi ssion's file in third jurisdictions arose. 
Such issues were encountered in the context of private litigation in third jurisdictions 
and, to a lesser extent, with respect to third country public authorities.  
7.1. Private litigation in third jurisdictions 
294. The Commission is a strong proponent of eff ective damages actions so that victims 
of infringements of EC competition law can be fully compensated for the harm they 
have suffered.333 However, in certain circumstances there is a balance to be struck 
between public enforcement interests in the EU and the interests of private litigants 
in third country jurisdictions. Disclosure of information from the Commission's file in the context of private litig ation in third jurisdictions, in particular of leniency 
statements submitted during the investigation, may seriously undermine the effectiveness of public antitrust enforcement. The Commission has a particular interest to ensure that its investigations  and the effectiveness of its enforcement 
programmes
334 are not undermined by disclosure.  
                                                 
331 See the European Parliament resolution of 9 July 2008 on the role of the national judge in the European 
judicial system, P6_TA(2008)0382 . 
332 Joined cases C-430/93 and C-431/93 van Schijndel [1995] ECR I-4705, paras 13-15, 19 and 22 sets out 
the extent of the duty of national courts to raise bi nding EC rules, such as the EC competition rules, of 
their own motion. 
333 See Commission White Paper on Damages Actions for Breach of the EC Antitrus t Rules (COM (2008) 
165, 2.4.2008). 
334 See the Commission Notice on immunity from fines and reduction of fines in cartel cases, OJ C 298, 
08.12.2006, p. 17 ("2006 Leniency Notice"), points 6-7 and 32-35; see also the Commission Notice on 
the conduct of settlement procedures in view of th e adoption of Decisions pursuant to Article 7 and 
EN 85   EN 295. Article 15(4) of Regulation 773/2004 pr ovides that documents obtained through 
access to the file shall only be used for th e purposes of judicial or administrative 
proceedings for the application of Articles 81 and 82 EC.335 Accordingly, they shall 
not be disclosed for any other purpose.  
296. The Commission's statement of objections and the full confidential version of the 
decision are documents prepared specifica lly for the antitrust proceedings and 
contain confidential information rece ived through investigative measures.336 
Therefore, they and the information containe d therein shall also be used only for the 
purpose of proceedings concerning the application of Articles 81 and 82 EC.337  
297. The Commission has taken further initiative s to safeguard its administrative file. 
Specific protection has been gi ven to voluntary statements made in the context of its 
Leniency Policy338, in particular, the oral procedure was formally introduced for 
leniency applications. Equivalent sa feguards are foreseen for settlement 
submissions.339 Access to such statements is granted only to the addressees of the 
statement of objections provided they comm it not to make any copies by mechanical 
or electronic means of any information c ontained therein and to use information 
obtained from such statements only for th e purpose stated in the Commission Notice 
on the rules for access to the Commission file.  
298. Undertakings which fail to comply with the obligations set out in the preceding 
paragraphs may face negative consequences . A breach of the obligation not to use 
information obtained through access to f ile for any other purpose during the 
proceeding by leniency applicants may be regarded as lack of cooperation under the 
Leniency Notice. Pursuant to the Guidelines on the method of setting fines340, refusal 
to cooperate with or obstruc tion of the Commission in carry ing out its investigations 
may be considered as an aggravating circumstance in any Commission prohibition 
decision. If any such use is made afte r the Commission has already adopted a 
prohibition decision in the proceedi ng, the Commission may, in any legal 
proceedings before the Community Courts, ask the Court to increase the fine in 
respect of the responsible undertaking. The Access to the Commission file Notice (paragraph 48), the 2006 Leni ency Notice (point 34) and the Settlement Procedure 
                                                                                                                                                        
 
Article 23 of Council Regulation (EC) No 1/2003 in  cartel cases, OJ C 167, 2.7.2008, p. 1 (“Settlement 
Procedure Notice”), points 35-40.  
335 See para 48 of the Commission Notice on the rules fo r access to the Commission file in cases pursuant 
to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council 
Regulation (EC) No 139/2004, OJ C 325, 22.12.2005, p. 7 (“Access to the Commission file Notice”); 
see also Article 8 (2) of Regulation 773/2004 concerning complainants. 
336 The same considerations apply to the disclosure of  replies to statements of objections, requests for 
information and other documents depending on the individual procedure. 
337 See Case T-353/94 Postbank v. Commission  [1996] ECR II-921, para 89 concerning provisions on 
professional secrecy which were provided in Regulation 17 and, in particular, statements of objections: 
"[t]hese provisions, even if they prevent undertakings from transm itting such documents to third parties , 
do not in any way prevent their disclosure to the national courts [of Member States for the purpose of 
application of Articles 81 and 82 of the Treaty]" (emphasis added). 
338 See the 2006 Leniency No tice, points 33-34 and 37. Leniency app licants are also ex pected to comply 
with the obligation not to use information obtained through access to file for any other purpose (see 
point 34). 
339 See the 2006 Leniency Notice, points 32-35 and 6- 7 and the Settlement Procedure Notice points 35-40. 
340 Guidelines on the method of setting fines imposed  pursuant to Article 23(2)(a) of Regulation No 
1/2003, OJ C 210, 1.09.2006, p. 2, para 28. 
EN 86   EN Notice (point 36) explicitly provide that should the information be used for a 
different purpose, at any point  in time, with the involveme nt of an outside counsel, 
the Commission may report the incident to th e bar of that counsel, with a view to 
disciplinary action. 
299. The Commission has intervened through amicus curiae briefs before courts of the 
US, where US legislation and its application by US courts allows discovery that is 
exceptionally broad and relatively uncertain as to its outcome341, to highlight the 
threat of discovery to its investigative processes. Such briefs were submitted in the Vitamins  case
342, and the Methionine  litigation.343 The Directorate General for 
Competition has also submitted letters to litig ants in a number of proceedings in the 
US against the discoverability of informati on that has been prepared solely for the 
purpose of its investigati on, either by the parties or by the Commission itself, 
including the recent Rubber Chemicals  litigation.344  
300. On 4 April 2006, the Directorate General for Competition made a submission to the 
US Antitrust Modernisation Commission concerning the impact of discovery rules in antitrust civil damages actions in the United States on the Commission's antitrust enforcement. It explained why it believes that the disclosure of statements and 
submissions, especially corporate statem ents, which are specifically prepared by 
undertakings within the context of the Co mmission's antitrust proceedings should not 
be deemed discoverable to third parties. The disclosure of such information submitted on a voluntary basis during th e Commission’s investigation could 
seriously undermine the effectiveness of  the Commission's and other authorities' 
antitrust enforcement actions . In particular, undertakings  which voluntarily cooperate 
with the Commission in reveali ng cartels cannot be put in a worse position in respect 
of civil claims than other cartel members which refuse cooperation. The ordered production, or uncertainty in th is regard, of submissions th at a company has prepared 
and produced exclusively for the European  Commission's antitrust proceedings in 
civil proceedings for damages could seri ously undermine the e ffectiveness of the 
Leniency Programme and jeopardise the Co mmission's investiga tion of cartels. In 
contrast, the Commission does not have an  interest in generally protecting pre-
existing documents from discovery.
345 Nevertheless, when the investigation is 
                                                 
341 Rule 26 of the Federal Rules of Civil Procedure.  Although the Rules of Civil Procedure allow for a 
range of exemptions, information prepared for the benefit of foreign enforcement agencies is not 
covered by those exemptions. 
342 United States District Court of the District of Columbia, in Re. Vitamins Antitrust Litigation – Misc. 
No. 99-197. This case concerned disclosure of cor porate statements, where the investigation which was 
still on-going. The defendant, however, did not contes t production of its corporate statements and the 
court ordered the production of these documents. 
343 United States District Court of No rthern District of California, In Re: Methionine Antitrust Litigation, 
case No. C-99-3491 CRB MDL no. 1311. The Commission expressed opposition to the production of 
corporate statements. The plaintiff's motion to comp el the production of these documents was denied. 
344 In Re: Rubber Chemicals Antitrust Litigation, Case No. C04-1648 MJJ (BZ).The plaintiff requested 
discovery of the documents provided by the defendant to the Commission in the context of the 
Leniency Programme. The defendant submitted to th e US Court a letter from the Directorate General 
for Competition, which expressed opposition to di scovery of those documents. The court denied 
discovery of the documents requested.  
345 Documents that were in the possession of leniency applicants before and independently of any 
submission to the Commission. The leniency programme and other forms of voluntary cooperation 
should not act as a shield for companies seeking to conceal information that would otherwise be subject 
to disclosure/discoverable. 
EN 87   EN ongoing, pre-existing documents should be shie lded from discovery, insofar as it 
could reveal the Commission's investigative strategy. 
301. In conclusion, the Commission attaches pa rticular importance to the protection of 
information and documents against disclosure  in private litigation in third countries 
insofar as this would operate to the detrimen t of its enforcement tools. It should be 
examined how the legal framework can be cl arified and reinforced  to further enhance 
existing levels of protection.  
7.2. Third country public authorities 
7.2.1.  Enforcement cooperation 
302. The Commission enhances effective enfo rcement of competition rules through 
international cooperation with third c ountry authorities. Such cooperation may 
include sharing experience, coordination of  enforcement actions and exchange of 
information to facilitate enforcement activities.  
303. Cooperation with third country enforcement authorities is agreed by bi-lateral or 
multi-lateral agreements or is arranged through regular contacts. The European Union has agreements concerning compe tition matters with a number of countries 
and regions.
346 Cooperation between the European Commission and the EFTA 
Surveillance Authority in antitrust matters  is governed by the terms of Protocol 23 
concerning the cooperation betw een surveillance authorities.347  
304. So-called dedicated cooperation agreemen ts on competition policy were signed with 
the United States, Canada and Japan.348 Under these agreements, competition 
authorities exchange non-confidential inform ation and co-ordinate their enforcement 
activities. Furthermore, each side may as k the other to take enforcement action 
(positive comity); and each side must take  account of the other's significant interests 
when enforcing competition rules (traditional comity).  
305. Cooperation with competition authoriti es of other OECD member countries  is based 
on the 1995 OECD recommendation.349  
306. Regulation 1/2003 does not specifi cally regulate exchange of information with third 
country enforcement authorities. Article 12 of the Regulation is applicable only to 
the exchange of information between the Co mmission and the Member States for the 
purpose of application of Article 81 a nd 82 EC. Under the agreements with the 
United States, Canada and Japan, the Eu ropean Commission and each respective 
competition authority exchange information. However, the existing cooperation agreements expressly exclude the exchange of protected or conf idential information. 
                                                
 
346 A list of countries and regions with which the European Union has signed a bilateral or multilateral 
agreement concerning  competition matters is available at 
http://ec.europa.eu/competition/international/bilateral/ .  
347 See at http://www.efta.int/content/legal-text s/eea/protocols/prot ocol23.pdf/view .  
348 1991 EU/US Competition Cooperation Agreement, OJ 95, 27.4.1995, p. 47; Agreement between the 
European Communities and the Government of Canada regarding the application of their competition laws OJ L 175, 10.7.1999, p. 50; Agreement between the European Community and the Government of 
Japan concerning cooperation on anti-compe titive activities, OJ L183, 22.7.2003, p. 12. 
349 See at http://ec.europa.eu/competition/international/bilateral/oecd_recommendation_1995.pdf .  
EN 88   EN This means in practice that no information obtained through the formal investigative 
tools can be shared with the other authorit y without the specific consent ("waivers") 
of the companies involved.350  
307. International cooperation with  third country enforcers ma y involve cooperating with 
third countries which have a criminal enforcement system for cartels, in which both undertakings and individuals can be pros ecuted. The possibility of exchanging 
evidence between competition authorities is an essential element of efficient cooperation in the enforcement of the co mpetition rules in an ever increasing 
globalised world. The Report on Cooperatio n between Competition Agencies in 
Cartel Investigations for the ICN Annual conf erence in Moscow states that the 
limitations to exchange of information ar e a major problem for efficient cooperation 
in the fight against interna tional cartels: "Insufficient cooperation between agencies 
may allow some cartels to escape detecti on completely, if the evidence required for 
their conviction is sc attered in different jurisdictions which ca nnot share it for legal 
reasons."
 351 
308. However, the conclusion of an internati onal cooperation agreement which allows for 
the exchange of evidence with enforcers in selected third countries with a criminal 
enforcement system comes up against the ob stacle that inside the EU, Article 12(3), 
last sentence of Regulati on 1/2003 prohibits the use of information collected by one 
authority by the receiving authority to im pose custodial sanctions , insofar as the law 
of the transmitting authority does not provide for sanctions of a similar kind for the infringement of Articles 81 or 82 EC. This raises the difficulty that it would be 
awkward for the EU to go further in term s of information exchange with third 
country enforcers than is currently the cas e for enforcers inside the Union. As noted 
above
352, it may be appropriate to reflect upon the limitation on authorities using 
information they received to impose custodial  sanctions set out in Article 12(3), last 
sentence of Regulation 1/2003 and to examin e if other options are available, while 
fully preserving parties' rights of defence.  
7.2.2.  Disclosure to third c ountry public authorities 
309. The Commission attaches great importanc e to fostering cons tructive cooperation 
with third country public authorities. The effectiveness of inte rnational cooperation 
is, however, interdependent on the effectiv eness of Commission's own investigations 
and its Leniency Programme, in particul ar as concerns infringements with an 
international dimension. Disclosure of docum ents from the Commission's file to third 
country public authorities is theref ore subject to certain limitations. 
310. In this context, the lega l requirements set out in s ection 7.1 above are equally 
applicable. These considerations do not, in general, preclude the submission to third 
country public authorities of documents th at exist independently of the Commission's 
investigation and which are in possession of undertakings inde pendently of their 
access to the Commission file or of other in formation received fr om the Commission 
                                                 
350 See the Opinion of Advocate General Mengozzi in case C-511/06 P Archer Daniels Midland Co. v. 
Commission (pending case; the Opinion not yet reported), para. 105.  
351 Cooperation between Competition Agencies in Cartel Investigations, Report to the ICN Annual 
conference, Moscow, May 2007, p. 5. 
352 See part 5.4.1. 
EN 89   EN in the course of proceedings. Neverthele ss, when the Commission investigation is 
still on-going, protection from disclosure ma y be needed in order to safeguard the 
investigation.  
311. The issue of disclosure to third count ry public authoritie s merits further 
consideration, in particular in light of deepening and enhancing cooperation with 
third country authorities. It  should be further examined in the context of the 
reflection suggested above.353 
8. CONCLUSION  
312. Regulation 1/2003 has brought ab out a landmark change in the way the European 
competition law is enforced. The Regulation has significantly improved the Commission's enforcement of Articles 81 and 82 EC. The Commission has been able 
to become more proactive, tackling weakne sses in the competiveness of key sectors 
of the economy in a focussed way. Moreover the Regulation has entrusted the Member States’ competition authorities and courts with the role of ensuring that the EU competition rules are applied efficiently and effectively, in conjunction with the Commission. 
313. The EC competition rules have to a large extent become the “ law of the land ” for the 
whole of the EU. Cooperation in the ECN has contributed towards ensuring their 
coherent application. The network is an innovative model of governance for the implementation of Community law by the Commission and Member State 
authorities. 
314. In a limited number of areas, the Report which is accompanied by the present Staff 
Working Paper highlights aspects which mer it further evaluation, but leaves open the 
question of whether any amendment to the existing rules or practice is required. It 
will serve as a basis for the Commission to assess, in a further stage, whether it is appropriate to take fu rther policy initiatives. 
                                                
 
353 See part 7.1. 
EN 90   EN ANNEX  
From 1 May 2004     
    Name
 Date  Type  Reference  
    
Article 7     
    
2004     
    Souris Bleue/Topps (COMP/37.980) 26.05.2004 AT OJ L 353, 13.12.2006, p. 5–6 
Clearstream  
(COMP/38.096) 02.06.2004 AT IP/04/705, 02.06.2004 
not yet published  
Architectes belges 
(COMP/38.549) 24.06.2004 AT OJ L 4, 6.1.2005, p. 10–11 
Copper plumbing tubes 
(COMP/38.069) 03.09.2004 C OJ L 192, 13.7.2006, p. 21–29 
Sodium gluconate  
(COMP/36.756) 29.09.2004 C not yet published  
French beer 
(COMP/37.750) 29.09.2004 C OJ L 184, 15.7.2005, p. 57-59 
Spanish Raw Tobacco 
(COMP/38.238) 20.10.2004 C OJ L 102, 19.4.2007, p. 14 
Hard haberdashery (needles) 
(COMP/38.338) 26.10.2004 C IP/04/1313, 26.10.2004 
MEMO/07/353, 12.09.2007 
not yet published  
GdF/ENI 26.10.2004 AT IP/04/1310, 26.10.2004 
EN 91   EN (COMP/38.662) not yet published  
GdF/ENEL 
(COMP/38.662) 26.10.2004 AT IP/04/1310, 26.10.2004 
not yet published  
    
2005     
    
MCAA (COMP/37.773) 19.01.2005 C OJ L 353, 13.12.2006, p. 12–15 
AstraZeneca 
(COMP/37.507) 15.06.2005 AT OJ L 332, 30.11.2006, p. 24–25 
PO/Thread 
(COMP/38.337) 14.09.2005 C OJ C 21, 26.1.2008, p. 10–14 
Peugeot SA 
(COMP/37.275) 05.10.2005 AT OJ L 173, 27.6.2006, p. 20–24 
Raw Tobacco Italy 
(COMP/38.281) 20.10.2005 C OJ L 353, 13.12.2006, p. 45–49 
Industrial Bags 
(COMP/38.354) 30.11.2005 C OJ L 282, 26.10.2007, p. 41–46 
Rubber Chemicals 
(COMP/38.443) 21.12.2005 C OJ L 353, 13.12.2006, p. 50–53 
    
2006
    
    
Prokent/Tomra (COMP/38.113) 29.03.2006 AT OJ C 219, 28.8.2008, p. 11–15 
Hydrogen Peroxide 
(COMP/38.620) 03.05.2006 C OJ L 353, 13.12.2006, p. 54–59 
EN 92   EN Methacrylates 
(COMP/38.645) 31.05.2006 C OJ L 322, 22.11.2006, p. 20–23 
Bitumen Netherlands 
(COMP/38.456) 13.09.2006 C OJ L 196, 28.7.2007, p. 40–44 
Fittings 
(COMP/38.121) 20.09.2006 C OJ L 283, 27.10.2007, p. 63–68 
Steel beams re-adoption 
(COMP/38.907) 08.11.2006 C OJ C 235, 13.9.2008, p. 4–6 
Butadiene Rubber/Emulsion 
Styrene 
(COMP/38.638) 29.11.2006 C OJ C 7, 12.1.2008, p. 11–14 
Alloy Surcharge re-adoption 
(COMP/39.234) 20.12.2006 C OJ L 182, 12.7.2007, p. 31–32 
    
2007     
    
Gas insulated switchgear (COMP/38.899) 24.01.2007 C OJ C 5, 10.1.2008, p. 7–10 
Elevators and escalators 
(COMP/38.823) 21.02.2007 C OJ C 75, 26.3.2008, p. 19–24 
Netherlands beer market 
(COMP/37.766) 18.04.2007 C OJ C 122, 20.5.2008, p. 1–3 
Telefónica SA 
(COMP/38.784) 04.07.2007 AT OJ C 83, 2.4.2008, p. 6–9 
Fasteners 
(COMP/39.168) 19.09.2007 C  
OJ C 47, 26.06.2009, p.8-12. 
Bitumen Spain 03.10.2007 C IP/07/1438, 03.10.2007 
EN 93   EN (COMP/38.710) not yet published  
Morgan Stanley Dean Witter 
(COMP/37.860) 03.10.2007 AT IP/07/1436, 03.10.2007 
not yet published  
Groupement Cartes Bancaires 
(COMP/38.606) 17.10.2007 AT IP/07/1522, 17.10.2007 
not yet published  
Professional videotapes 
(COMP/38.432) 20.11.2007 C OJ C 57, 1.3.2008, p. 10–12 
Flat Glass 
(COMP/39.165) 28.11.2007 C OJ C 127, 24.5.2008, p. 9–11 
Chloroprene Rubber 
(COMP/38.629) 05.12.2007 C OJ C 251, 3.10.2008, p. 11–13 
Europay (Eurocard-MasterCard) 
(COMP/34.579) 19.12.2007 AT IP/07/1959, 19.12.2007 
not yet published  
    
2008     
    
Synthetic Rubber (NBR) (COMP/38.628) 23.01.2008 C IP/08/78, 23.01.2008 
not yet published  
International removal services 
(COMP/38.543) 11.03.2008 C IP/08/415, 11.03.2008 
not yet published  
Sodium Chlorate 
(COMP/38.695) 11.06.2008 C IP/08/917, 11.06.2008 
not yet published  
Aluminium Fluoride 
(COMP/39.180) 25.06.2008 C IP/08/1007, 25.06.2008 
not yet published  
CISAC 
(COMP/38.698) 16.07.2008 AT OJ C 323, 18.12.2008, p. 12–13 
Candle waxes 01.10.2008 C IP/08/1434, 01.10.2008 
EN 94   EN (COMP/39.181) not yet published  
Bananas 
(COMP/39.188) 15.10.2008 C IP/08/1509, 15.10.2008 
not yet published  
Carglass 
(COMP/39.125) 12.11.2008 C IP/08/1685, 12.11.2008 
not yet published  
    
2009     
    
Marine hoses (COMP/39.406) 28.01.2009 C IP/09/137, 28.01.2009 
not yet published  
    
Article 9
    
    
2005     
    Bundesliga (COMP/37.214) 19.01.2005 AT OJ L 134, 27.5.2005, p. 46 
Coca-Cola 
(COMP/39.116) 22.06.2005 AT OJ L 253, 29.9.2005, p. 21 
    
2006
    
    De Beers (COMP/38.381) 22.02.2006 AT OJ L 205, 27.7.2006, p. 24–25 
FAPL 
(COMP/38.173) 22.03.2006 AT OJ C 7, 12.1.2008, p. 18 
Repsol 12.04.2006 AT OJ L 176, 30.6.2006, p. 104 
EN 95   EN (COMP/38.348) 
Cannes Agreement (COMP/38.681) 04.10.2006 AT OJ L 296, 15.11.2007, p. 27-28 
    
2007
    
    DaimlerChrysler (COMP/39.140) 13.09.2007 AT OJ L 317, 5.12.2007, p. 76–78 
Fiat 
(COMP/39.141) 13.09.2007 AT OJ L 332, 18.12.2007, p. 77–79 
Opel 
(COMP/39.143) 13.09.2007 AT OJ L 330, 15.12.2007, p. 44–47 
Toyota Motor Europe 
(COMP/39.142) 13.09.2007 AT OJ L 329, 14.12.2007, p. 52–55 
Distrigaz 
(COMP/37.966) 11.10.2007 AT OJ C 9, 15.1.2008, p. 8 
    
2008
    
    E.ON German electricity market (COMP/39.388, COMP/39.389) 26.11.2008 AT OJ C 36, 13.2.2009, p. 8 
not yet published  
    
2009
    
    
RWE Gas Foreclosure (COMP/39.402) 18.03.2009 AT OJ C 310, 05.12.2008, p. 23 
not yet published 
    
EN 96   EN Article 23(1)     
        E.ON (breach of seals) (COMP/39.326) 30.01.2008 AT OJ C 240, 19.9.2008, p. 6–7 
    
Article 24
    
    
    
Microsoft (penalty payment) (COMP/37.792) 10.11.2005 AT(PP) not yet published  
    
    
Microsoft (penalty payment) (COMP/37.792) 12.07.2006 AT(PP) OJ C 138, 5.6.2008, p. 10–14 
    
    Microsoft (penalty payment) (COMP/37.792)  27.02.2008 AT(PP) IP/08/318, 27.02.2008 
MEMO/08/125, 27.02.2008 
not yet published