Keywords

Summary



Keywords

1 . COMPETITION - ADMINISTRATIVE PROCEDURE - INVESTIGATING POWERS OF THE COMMISSION - DECISION ORDERING AN INVESTIGATION NOT PRECEDED BY AN INVESTIGATION BY MERE AUTHORIZATION - PERMISSIBLE - REQUEST FOR INFORMATION - DIFFERENT PROCEDURE

( REGULATION NO 17/62 OF THE COUNCIL , ARTS 11 , 13 AND 14 )

2 . COMPETITION - ADMINISTRATIVE PROCEDURE - INFORMATION REQUESTED DURING AN INVESTIGATION - INVESTIGATION CANNOT BE TREATED AS A REQUEST FOR INFORMATION

( REGULATION NO 17/62 OF THE COUNCIL , ARTS 11 , AND 14 )

3 . COMMUNITY LAW - GENERAL PRINCIPLES OF LAW - OBSERVANCE OF FUNDAMENTAL RIGHTS ENSURED BY THE COURT OF JUSTICE

4 . COMPETITION - ADMINISTRATIVE PROCEDURE - AIM OF THE INVESTIGATING POWERS OF THE COMMISSION - NO INFRINGEMENT OF THE FUNDAMENTAL RIGHTS OF UNDERTAKINGS

( REGULATION NO 17/62 OF THE COUNCIL , ART . 14 )

5 . COMPETITION - ADMINISTRATIVE PROCEDURE - SCOPE OF THE RIGHT OF UNDERTAKINGS TO BE HEARD - NO SUCH RIGHT IN THE CASE OF AN INVESTIGATION PROCEDURE

( REGULATION NO 17/62 OF THE COUNCIL , ARTS 14 ( 3 ) AND 19 ( 1 ); REGULATION NO 99/63/EEC OF THE COMMISSION )

Summary

1 . ALTHOUGH ARTICLE 11 OF REGULATION NO 17 MAKES THE EXERCISE OF THE COMMISSION ' S POWER TO REQUEST INFORMATION FROM AN UNDERTAKING OR ASSOCIATION OF UNDERTAKINGS SUBJECT TO A TWO-STAGE PROCEDURE , THE SECOND STAGE OF WHICH , INVOLVING THE ADOPTION BY THE COMMISSION OF A DECISION WHICH SPECIFIES WHAT INFORMATION IS REQUIRED , MAY ONLY BE INITIATED IF THE FIRST STAGE , IN WHICH A REQUEST FOR INFORMATION IS SENT , HAS BEEN CARRIED OUT WITHOUT SUCCESS , ARTICLE 14 OF THE SAME REGULATION ON THE ' ' INVESTIGATING ' ' POWERS OF THE COMMISSION CONTAINS NOTHING TO INDICATE THAT IT MAY ONLY ADOPT A DECISION ORDERING AN INVESTIGATION WITHIN THE MEANING OF ARTICLE 14 ( 3 ) IF IT HAS PREVIOUSLY ATTEMPTED TO CARRY OUT AN INVESTIGATION BY MERE AUTHORIZATION .

MOREOVER , ARTICLE 13 ( 1 ) OF THE SAME REGULATION WHICH PROVIDES THAT , AT THE REQUEST OF THE COMMISSION , THE NATIONAL AUTHORITIES MUST UNDERTAKE THE INVESTIGATIONS WHICH THE COMMISSION CONSIDERS TO BE NECESSARY UNDER ARTICLE 14 ( 1 ) OR WHICH IT HAS ORDERED BY DECISION PURSUANT TO ARTICLE 14 ( 3 ) CLEARLY SHOWS BY THE USE OF THE WORD ' ' OR ' ' THAT THOSE TWO PROCEDURES DO NOT NECESSARILY OVERLAP BUT CONSTITUTE TWO ALTERNATIVE CHECKS THE CHOICE OF WHICH DEPENDS UPON THE SPECIAL FEATURES OF EACH CASE .

2 . THE FACT THAT THE OFFICIALS AUTHORIZED BY THE COMMISSION , IN CARRYING OUT THE ' ' INVESTIGATION ' ' REFERRED TO IN ARTICLE 14 OF REGULATION NO 17 , HAVE THE POWER TO REQUEST DURING THAT INVESTIGATION INFORMATION ON SPECIFIC QUESTIONS ARISING FROM THE BOOKS AND BUSINESS RECORDS WHICH THEY EXAMINE IS NOT SUFFICIENT TO CONCLUDE THAT AN INVESTIGATION IS IDENTICAL TO A PROCEDURE INTENDED ONLY TO OBTAIN INFORMATION WITHIN THE MEANING OF ARTICLE 11 OF THE SAME REGULATION .

3 . FUNDAMENTAL RIGHTS FORM AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF LAW , THE OBSERVANCE OF WHICH THE COURT OF JUSTICE ENSURES , IN ACCORDANCE WITH CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES AND WITH INTERNATIONAL TREATIES ON WHICH THE MEMBER STATES HAVE COLLABORATED OR OF WHICH THEY ARE SIGNATORIES .

4 . THE AIM OF THE POWERS GIVEN TO THE COMMISSION BY ARTICLE 14 OF REGULATION NO 17 IS TO ENABLE IT TO CARRY OUT ITS DUTY UNDER THE EEC TREATY OF ENSURING THAT THE RULES ON COMPETITION ARE APPLIED IN THE COMMON MARKET . THE FUNCTION OF THESE RULES IS TO PREVENT COMPETITION FROM BEING DISTORTED TO THE DETRIMENT OF THE PUBLIC INTEREST , INDIVIDUAL UNDERTAKINGS AND CONSUMERS . IT DOES NOT THEREFORE APPEAR THAT REGULATION NO 17 , BY GIVING THE COMMISSION THE POWERS TO CARRY OUT INVESTIGATIONS WITHOUT PREVIOUS NOTIFICATION , INFRINGES THE FUNDAMENTAL RIGHTS OF UNDERTAKINGS .

5 . THE EXERCISE OF THE RIGHT OF AN UNDERTAKING TO BE HEARD BEFORE A DECISION IS TAKEN REGARDING IT UNDER COMMUNITY COMPETITION LAW IS CHIEFLY INCORPORATED IN LEGAL OR ADMINISTRATIVE PROCEDURES FOR THE TERMINATION OF AN INFRINGEMENT OR FOR A DECLARATION THAT AN AGREEMENT , DECISION OR CONCERTED PRACTICE IS INCOMPATIBLE WITH ARTICLE 85 , SUCH AS THE PROCEDURES REFERRED TO BY REGULATION NO 99/63/EEC OF THE COMMISSION . ON THE OTHER HAND , THE INVESTIGATION PROCEDURE REFERRED TO IN ARTICLE 14 OF REGULATION NO 17 DOES NOT AIM AT TERMINATING AN INFRINGEMENT OR DECLARING THAT AN AGREEMENT , DECISION OR CONCERTED PRACTICE IS INCOMPATIBLE WITH ARTICLE 85 ; ITS SOLE OBJECTIVE IS TO ENABLE THE COMMISSION TO GATHER THE NECESSARY INFORMATION TO CHECK THE ACTUAL EXISTENCE AND SCOPE OF A GIVEN FACTUAL AND LEGAL SITUATION . IN ADDITION , A DECISION ORDERING AN INVESTIGATION WITHIN THE MEANING OF ARTICLE 14 ( 3 ) OF REGULATION NO 17 IS NOT LISTED AMONG THE DECISIONS WHICH , PURSUANT TO ARTICLE 19 ( 1 ) OF REGULATION NO 99/63/EEC , THE COMMISSION CANNOT TAKE BEFORE GIVING THOSE CONCERNED THE OPPORTUNITY OF EXERCISING THEIR RIGHT OF DEFENCE .