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 ("Regulation implementing Articles 81 and 82 of the Treaty")
Date: 2000-09-27
Institutions: European Commission
Subjects: application of EU law, competition law, competition policy, international competition, international economic law

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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 ()Regulation implementing Articles 81 and 82 of the
Treaty*)

(2000/C 365 E/28)

(Text with EEA relevance)

COM(2000) 582 final (cid:15) 2000/0243(CNS)

(Submitted by the Commission on 28 September 2000)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 83 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of
Committee,

the Economic and Social

Whereas:

(1) If a system is to be established which ensures that
is not distorted,
competition in the common market
Articles 81 and 82 must be applied effectively and
uniformly in the Community. Council Regulation No 17
of 6 February 1962, First Regulation implementing
the Treaty (1), has allowed a
Articles 85 and 86 of
Community competition policy to develop that has
helped to disseminate a competition culture within the
that
Community.
Regulation should now be
legislation
designed to meet the challenges of an integrated market
and a future enlargement of the Community.

In the light of experience, however,

replaced by

(2) In particular, there is a need to rethink the arrangements
for applying the exception from the prohibition on
agreements, which restrict competition,
laid down in
Article 81(3). Under Article 83(2)(b), account must be
taken in this regard of the need to ensure effective super-
vision, on the one hand, and to simplify administration to
the greatest possible extent, on the other.

by the courts and competition authorities of the Member
States, and the system of notification it involves prevents
the Commission from concentrating its
resources on
curbing the most serious infringements. It also imposes
considerable costs on undertakings.

applicable

(4) The present system should therefore be replaced by a
directly
exception system in which the
competition authorities and courts of the Member States
have the power to apply not only Articles 81(1) and 82,
which have direct applicability by virtue of the case-law of
the Court of Justice of the European Communities, but
also Article 81(3).

(5) It should be specified here that, in line with the case-law
developed in the framework of Regulation No 17, the
burden of proving that the conditions of Article 81(3)
are fulfilled rests on the party seeking to rely on that
provision. That party is usually best placed to prove
that the conditions of that paragraph are fulfilled.

(6) In order to ensure that the Community competition rules
are applied effectively, the competition authorities of the
Member States must be associated more closely with their
application. To this end,
they must be empowered to
apply Community law.

(7) National courts have an essential part to play in applying
competition rules. When deciding
the Community
disputes between private individuals,
the
subjective rights under Community law, for example by
awarding damages to the victims of infringements. The
role of the national courts here complements that of the
competition authorities of the Member States. They must
therefore be allowed to apply Articles 81 and 82 of the
Treaty in full.

they protect

(3) The centralised scheme set up by Regulation No 17 no
longer secures a balance between those two objectives. It
hampers application of the Community competition rules

(1) OJ 13, 21.2.1962, p. 204/62; Regulation as last amended by Regu-

lation (EC) No 1216/1999 (OJ L 148, 15.6.1999, p. 5).

(8) In order to ensure that the same competition rules apply
to businesses throughout the Community, provision must
be made pursuant
to regulate the
relationship between Articles 81 and 82 and national
competition law by excluding the application of national
law to agreements, decisions and practices within the
scope of Articles 81 and 82.

to Article 83(2)(e)

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(9) Although, in the new system, application of the rules will
be decentralised,
the uniformity of Community law
requires that the rules be laid down centrally. To this
end, the Commission must be given a general power to
adopt block exemption regulations in order to enable it to
adapt and clarify the legislative framework. This power
cooperation with the
must be
competition authorities of
It must
be without prejudice to the existing rules in Council
Regulations (EEC) No 1017/68 (1), (EEC) No 4056/86 (2)
and (EEC) No 3975/87 (3).

exercised in close

the Member States.

(10) As the system of notification will now come to an end, it
may be expedient, in order to improve transparency, to
require registration of certain types of agreement. The
Commission should
to
require registration of certain types of agreement. If any
such requirement is introduced,
it must not confer any
entitlement to a decision on the compatibility with the
Treaty of
the agreement registered, and must not be
prejudicial to effective action against infringements.

accordingly be

empowered

(11) For it to ensure that the provisions of the Treaty are
to address
the Commission must be able
applied,
decisions to undertakings or associations of undertakings
for the purpose of bringing to an end infringements of
Articles 81 and 82. Provided there is a legitimate interest
in doing so, the Commission must also be able to adopt
decisions which find that an infringement has been
committed in the past even if it does not impose a fine.
This Regulation should also make explicit provision for
the Commission’s power
to adopt decisions ordering
interim measures, which has been acknowledged by the
Court of Justice.

(12) Where, in the course of proceedings which might lead to
an agreement being prohibited, undertakings offer the
Commission commitments such as to meet its objections,
the Commission should be able to adopt decisions which
make those commitments binding on the undertakings
concerned, without settling the question of the applica-
bility of Article 81 or Article 82, so that the commitments
can be relied upon by third parties before national courts
and failure to comply with them can be punished by the
imposition of fines and periodic penalty payments.

(1) OJ L 175, 23.7.1968, p. 1; Regulation as last amended by the Act of

Accession of Austria, Finland and Sweden.

(2) OJ L 378, 31.12.1986, p. 4; Regulation as amended by the Act of

Accession of Austria, Finland and Sweden.

(3) OJ L 374, 31.12.1987, p. 1; Regulation as last amended by Regu-

lation (EC) No 2410/92 (OJ L 240, 24.8.1992, p. 18).

(13) In exceptional cases where the public interest of
it may also be expedient

the
Community so requires,
for
the Commission to adopt a decision of a declaratory
nature finding that
the prohibition in Article 81 or
Article 82 does not apply, with a view to clarifying the
law and ensuring its consistent application throughout the
Community.

(14) If the Commission and the competition authorities of the
Member States are to form together a network of public
authorities applying the Community competition rules in
close cooperation, arrangements
information and
consultation must be set up and the exchange of
information must be allowed between the members of
the network even where the information is confidential,
subject to appropriate guarantees for undertakings.

for

(15) If the competition rules are to be applied consistently and,
at the same time, the network is to be managed in the
best possible way, it is essential to retain the rule that the
competition authorities of the Member States are auto-
matically relieved of their competence if the Commission
initiates its own proceedings.

(16) To ensure that cases are dealt with by the most appro-
priate authorities within the network, a general provision
should be laid down allowing a competition authority to
suspend or close a case on the ground that another
authority is dealing with it or has already dealt with it,
the objective being that each case should be handled by a
the
single authority. This provision must not prevent
Commission from rejecting a complaint
lack of
Community interest, as the case-law of
the Court of
Justice has acknowledged it may do, even if no other
intention of
competition authority has
dealing with the case.

indicated its

for

(17) The Advisory Committee on Restrictive Practices and
Dominant Positions set up by Regulation No 17 has func-
tioned in a very satisfactory manner. It will fit perfectly
It is
into the new system of decentralised application.
necessary, therefore, to build upon the rules laid down
by Regulation No 17, while improving the effectiveness
of
it
the organisational arrangements. To this end,
would be expedient to allow opinions to be delivered by
written procedure. The Advisory Committee should also
be able to act as a forum for discussing cases handled by
the competition authorities of the Member States, so as to
help
the
consistent
Community competition rules.

application

safeguard

the

of

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In particular,

it will be useful

(18) Consistency in the application of the competition rules
also requires that arrangements be established for coop-
eration between the courts of the Member States and the
Commission.
to allow
national courts to ask the Commission for information
or for its opinion on points concerning the application
of Community competition law. The Commission and the
competition authorities of the Member States must also be
able to submit written or oral observations to courts
called upon to apply Article 81 or Article 82. Steps
must therefore be taken to ensure that the Commission
and the competition authorities of the Member States are
kept sufficiently well
informed of proceedings before
national courts.

in a

(19) In order to ensure compliance with the principles of legal
certainty and the uniform application of the Community
system of parallel powers,
competition rules
avoided. When the
conflicting decisions must be
Commission has
the
therefore,
competition authorities and courts of the Member States
must use every effort to avoid contradicting it. In this
context, it should be recalled that the courts may refer
questions to the Court of Justice for a preliminary ruling.

adopted a decision,

(20) The Commission must be empowered throughout

the
Community to require such information to be supplied
and to undertake such inspections as are necessary to
detect any agreement, decision or concerted practice
prohibited by Article 81 or any abuse of a dominant
position prohibited by Article 82. The competition auth-
orities of the Member States must cooperate actively in
the exercise of these powers.

(21) The detection of infringements of the competition rules is
growing ever more difficult, and,
in order to protect
competition effectively, the Commission’s powers of inves-
tigation need to be supplemented. The Commission must
in particular be empowered to interview any persons who
may be in possession of useful information and to record
the statements made. In the course of an inspection, auth-
orised Commission officials must be empowered to affix
seals and to ask for any information relevant
to the
subject matter and purpose of the inspection.

(23) Experience has shown that business records are often kept
in the homes of directors or other people working for an
In order to safeguard the effectiveness of
undertaking.
inspections,
therefore, authorised Commission officials
should be empowered to enter any premises where
business records may be kept, including private homes.
However, the exercise of this latter power must be subject
to the authorisation of the judicial authority.

(24) In order

to help the competition authorities of

the
Member States to apply Articles 81 and 82 effectively, it
to enable them to assist one another by
is expedient
carrying out fact-finding measures.

(25) Compliance with Articles 81 and 82 and the fulfilment of
the obligations imposed on undertakings and associations
of undertakings under this Regulation must be enforceable
by means of fines and periodic penalty payments. To that
end, appropriate levels of fine should also be laid down
for infringements of the procedural rules.

(26) The rules on periods of limitation for the imposition of
fines and periodic penalty payments were laid down in
Council Regulation (EEC) No 2988/74 (1), which also
concerns penalties in the field of transport. In a system
of parallel powers, the acts, which may interrupt a limi-
tation period, should include procedural steps taken inde-
pendently by the competition authority of a Member
State. To clarify the legal framework, Regulation (EEC)
No 2988/74 should therefore be amended to prevent it
applying to matters covered by this Regulation, and this
Regulation should include provisions on periods of limi-
tation.

opportunity

(27) The undertakings concerned must be accorded the right
to be heard by the Commission,
third parties whose
interests may be affected by a decision must be given
the
observations
beforehand, and the decisions taken must be widely
publicised. While ensuring the rights of defence of the
undertakings concerned, in particular, the right of access
to the file, it is essential that business secrets be protected.
The confidentiality of
information exchanged in the
network must likewise be safeguarded.

submitting

their

of

(22) It is expedient to clarify, in keeping with the case-law of
the Court of Justice, the limits to the power of review that
the national courts may exercise when asked, under
national law, to order measures allowing assistance from
law enforcement
to overcome
opposition on the part of an undertaking to an inspection
ordered by decision.

authorities

in order

(28) Since all decisions taken by the Commission under this
Regulation are subject to review by the Court of Justice in
accordance with the Treaty, the Court of Justice should, in
accordance with Article 229 thereof be given unlimited
jurisdiction in respect of decisions by which the
Commission imposes fines or periodic penalty payments.

(1) OJ L 319, 29.11.1974, p. 1.

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(29) The principles laid down in Articles 81 and 82 of the
Treaty, as they have been applied by Regulation No 17,
have given a central role to the Community bodies.

HAS ADOPTED THIS REGULATION:

This central role should be retained, whilst associating the
Member States more closely with the application of the
Community competition rules.
In accordance with the
principles of subsidiarity and proportionality as set out
in Article 5 of the Treaty, this Regulation confines itself
to the minimum required in order to achieve its objective,
which is to allow the Community competition rules to be
applied effectively, and does not go beyond what
is
necessary for that purpose.

(30) As the case-law has made it clear that the competition
rules apply to transport,
that sector should be made
subject to the procedural provisions of this Regulation.
Regulations (EEC) No 1017/68,
(EEC) No 4056/86 and
(EEC) No 3975/87 should therefore be amended in order
to delete the specific procedural provisions they contain.

agreements

(31) In order to take account of the new arrangements estab-
lished by this Regulation, the following Regulations should
be repealed: Council Regulation No 141 of 26 November
1962 exempting transport from the application of Regu-
lation No 17 (1), Council Regulation No 19/65/EEC of 2
March 1965 on application of Article 85(3) of the Treaty
to certain categories of
and concerted
practices (2), Council Regulation (EEC) No 2821/71 of
20 December 1971 on application of Article 85(3) of
the Treaty to categories of agreements, decisions and
concerted practices (3), Council Regulation (EEC) No
3976/87 of 14 December 1987 on the application of
Article 85(3) of
the Treaty to certain categories of
agreements and concerted practices in the air transport
sector (4), Council Regulation (EEC) No 1534/91 of 31
May 1991 on the application of Article 85(3) of
the
Treaty to certain categories of agreements, decisions and
concerted practices in the insurance sector (5), and Council
Regulation (EEC) No 479/92 of 25 February 1992 on the
the Treaty to certain
application of Article 85(3) of
categories
concerted
practices between liner shipping companies (consortia) (6),

agreements,

decisions

and

of

(1) OJ 124, 28.11.1962, p. 2751/62; Regulation as last amended by

Regulation No 1002/67/EEC (OJ 306, 16.12.1967, p. 1).

(2) OJ 36, 6.3.1965, p. 533/65; Regulation as last amended by Regu-

lation (EC) No 1215/1999 (OJ L 148, 15.6.1999, p. 1).

(3) OJ L 285, 29.12.1971, p. 46; Regulation as last amended by the Act

of Accession of Austria, Finland and Sweden.

(4) OJ L 374, 31.12.1987, p. 9; Regulation as last amended by the Act

of Accession of Austria, Finland and Sweden.

(5) OJ L 143, 7.6.1991, p. 1.
(6) OJ L 55, 29.2.1992, p. 3; Regulation as amended by the Act of

Accession of Austria, Finland and Sweden.

CHAPTER I

PRINCIPLES

Article 1

Direct applicability

Agreements, decisions and concerted practices caught by
Article 81(1) of the Treaty which do not satisfy the conditions
of Article 81(3), and the abuse of a dominant position referred
to in Article 82, shall be prohibited, no prior decision to that
effect being required.

Article 2

Burden of proof

In any national or Community proceedings for the application
the Treaty, the burden of
of Article 81 and Article 82 of
proving an infringement of Article 81(1) or of Article 82
shall rest on the party alleging the infringement. A party
claiming the benefit of Article 81(3) shall bear the burden of
proving that the conditions of that paragraph are fulfilled.

Article 3

Relationship between Articles 81 and 82 and national
competition laws

Where an agreement, a decision by an association of under-
takings or a concerted practice within the meaning of Article
81 of the Treaty or the abuse of a dominant position within
the meaning of Article 82 may affect trade between Member
States, Community competition law shall apply to the exclusion
of national competition laws.

CHAPTER II

POWERS

Article 4

Powers of the Commission

1.
For the purpose of applying Articles 81 and 82 of the
Treaty, the Commission shall have the powers provided for by
this Regulation.

2.
The Commission may, by regulation, determine types of
agreements, decisions of associations of undertakings and
the Treaty
concerted practices caught by Article 81(1) of
which must be registered by undertakings. In that event,
it
shall also determine the procedures for such registration and
the penalties applicable in the event of failure to comply with
the obligation. Registration of an agreement, a decision of an
association or a concerted practice shall confer no entitlement

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on the registering undertakings or associations of undertakings
and shall not form an obstacle to the application of this Regu-
lation.

A decision under paragraph 1 shall apply for a maximum

2.
of one year but shall be renewable.

Article 5

Powers of the competition authorities of the Member
States

The competition authorities of the Member States shall have
the power in individual cases to apply the prohibition in
Article 81(1) of the Treaty where the conditions of Article
81(3) are not fulfilled, and the prohibition in Article 82. For
this purpose, acting on their own initiative or on a complaint,
they may take any decision requiring that an infringement be
brought
to an end, adopting interim measures, accepting
commitments or imposing fines, periodic penalty payments
law.
or any other penalty provided for
Where 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.

in their national

Article 6

Powers of the national courts

National courts before which the prohibition in Article 81(1) of
the Treaty is invoked shall also have jurisdiction to apply
Article 81(3).

CHAPTER III

COMMISSION DECISIONS

Article 7

Article 9

Commitments

1. Where the Commission intends to adopt a decision
requiring that an infringement be brought to an end and the
undertakings concerned offer commitments such as to meet the
Commission’s objections,
the Commission may by decision
make those commitments binding on the undertakings. Such
a decision shall be adopted for a specified period.

2.
Irrespective of whether or not there has been or still is an
infringement of Article 81 or Article 82 of the Treaty, such a
decision shall terminate the proceedings.

3.

The Commission may reopen the proceedings:

(a) where there has been a material change in any of the facts

on which the decision was based;

(b) where the undertakings concerned act contrary to their

commitments; or

(c) where the decision was based on incomplete, incorrect or

misleading information.

Article 10

Finding of inapplicability

Finding and termination of infringement

1. Where the Commission, acting on a complaint or on its
own initiative, finds that there is an infringement of Article 81
or of Article 82 of the Treaty, it may by decision require the
undertakings and associations of undertakings concerned to
bring such infringement to an end. For this purpose, it may
impose on them any obligations necessary, including remedies
of a structural nature. If it has a legitimate interest in doing so,
it may also find that an infringement has been committed in
the past.

For reasons of the Community public interest, the Commission,
acting on its own initiative, may by decision find that, on the
basis of the information in its possession, Article 81 of the
Treaty is not applicable to an agreement, a decision of an
association of undertakings or a concerted practice, either
because the conditions of Article 81(1) are not fulfilled, or
because the conditions of Article 81(3) are satisfied.

The Commission may likewise make such a finding with
reference to Article 82 of the Treaty.

2.
Those entitled to lodge a complaint for the purposes of
paragraph 1 are Member States and natural or legal persons
who can show a legitimate interest.

Article 8

Interim measures

1.
In cases of urgency due to the risk of serious and irrep-
arable damage to competition, the Commission, acting on its
own initiative, may, on the basis of a prima facie finding of
infringement, by decision order interim measures.

CHAPTER IV

COOPERATION WITH NATIONAL AUTHORITIES AND
COURTS

Article 11

Cooperation between the Commission and the
competition authorities of the Member States

1.
The Commission and the competition authorities of the
Member States shall apply the Community competition rules in
close cooperation.

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The Commission shall

to the
2.
competition authorities of the Member States copies of the
most important documents it has collected with a view to
applying Articles 7 to 10.

forthwith transmit

3. Where a matter involving the application of Article 81 or
Article 82 of the Treaty is referred to the competition auth-
orities of the Member States or where they act on their own
inform the
initiative to apply those Articles,
Commission accordingly
own
their
the
proceedings.

they shall
of
outset

at

4. Where competition authorities of Member States intend
to adopt a decision under Article 81 or Article 82 of the Treaty
requiring that an infringement be brought to an end, accepting
commitments or withdrawing the benefit of a block exemption
regulation, they shall first consult the Commission. For that
purpose, they shall no later than one month before adopting
the decision provide the Commission with a summary of the
case and with copies of the most important documents drawn
up in the
the
Commission’s request, they shall provide it with a copy of
any other document relating to the case.

their own proceedings. At

course of

The competition authorities of the Member States may
the Commission on any other case involving the

5.
consult
application of Community law.

6.
The initiation by the Commission of proceedings for the
adoption of a decision under this Regulation shall relieve the
competition authorities of
their
the Member States of
competence to apply Articles 81 and 82 of the Treaty.

Article 12

Exchange of information

Notwithstanding any national provision to the contrary,
1.
the Commission and the competition authorities of
the
Member States may provide one another with and use in
evidence any matter of fact or of law, including confidential
information.

2.
Information provided under paragraph 1 may be used
only for the purpose of applying Community competition
law. Only financial penalties may be imposed on the basis of
information provided.

Article 13

Suspension or termination of proceedings

1. Where competition authorities of two or more Member
States have received a complaint or are acting on their own
initiative under Article 81 or Article 82 of the Treaty against
the same agreement, decision of an association or practice, the
fact
that one authority is dealing with the case shall be
sufficient grounds for the others to suspend the proceedings
before them or to reject the complaint. The Commission may

likewise reject a complaint on the ground that the competition
authority of a Member State is dealing with the case.

2. Where the competition authority of a Member State or
an
received a
the Commission has
agreement, decision of an association or practice which has
already been dealt with by another competition authority, it
may reject it.

complaint

against

Article 14

Advisory Committee

An Advisory Committee on Restrictive Practices and
1.
Dominant Positions shall be consulted prior to the taking of
any decision under Articles 7, 9, 10, 22 and 23(2).

The Advisory Committee shall be composed of represen-
2.
tatives of the competition authorities of the Member States.
Each Member State shall appoint a representative who,
if
prevented from attending, may be replaced by another
representative.

than fourteen days after dispatch of

3.
The consultation may take place at a meeting convened
by the Commission, which shall supply the chairman, not
earlier
the notice
convening it. The Member States may accept a period of
less than fourteen days. The Commission shall
notice of
attach to the notice convening the meeting a summary of
the case, together with an indication of the most important
documents, and a preliminary draft decision. The Advisory
Committee shall deliver an opinion on the Commission’s
preliminary draft decision. It may deliver an opinion even if
some members are absent and are not represented.

4.
Consultation may also take place by written procedure. In
that case, the Commission shall determine a date by which the
Member States are to put forward their observations. However,
if any Member State so requests, the Commission shall convene
a meeting.

The opinion of

the Advisory Committee

5.
shall be
delivered in writing and appended to the draft decision. The
Advisory Committee may recommend publication of
the
opinion. The Commission may carry out such publication.
The decision to publish shall take account of the legitimate
interest of undertakings in the protection of
their business
secrets.

Acting on its own initiative or at the request of a Member
6.
State, the Commission may include a case being dealt with by
the competition authority of a Member State on the agenda of
the Advisory Committee for discussion before the final decision
is adopted.

Article 15

Cooperation with national courts

1.
In proceedings for the application of Article 81 or Article
82 of the Treaty, courts of the Member States may ask the
Commission for information in its possession or for its opinion
on questions concerning the application of the Community
competition rules.

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Courts of the Member States shall send the Commission
2.
copies of any judgments applying Article 81 or Article 82 of
the Treaty within one month of
the date on which the
judgment is delivered.

of the Member States and from undertakings and associations
of undertakings.

For

reasons of

the Community public interest,

3.
the
Commission may, on its own initiative, submit written or
oral observations to courts of
the Member States on the
subject of proceedings in which questions concerning the
application of Article 81 or Article 82 of the Treaty arise. It
may have itself
represented by competition authorities of
Member States. Acting on their own initiative, competition
authorities of Member States may likewise submit written or
oral observations to the national courts of their Member State.

To this end, the Commission and the competition authorities of
the Member States may request the national courts to transmit
to them any documents necessary.

Article 16

Uniform application of Community competition law

In accordance with Article 10 of the Treaty and the principle of
the uniform application of Community law, national courts and
the competition authorities of the Member States shall use
conflicts with
to avoid any decision that
every effort
decisions adopted by the Commission.

CHAPTER V

POWERS OF INVESTIGATION

Article 17

Inquiries into sectors of the economy

If,

the trend of

the economy,

in any sector of

1.
trade
between Member States, the rigidity of prices or other circum-
stances suggest that competition is being restricted or distorted
within the common market, the Commission may conduct a
general
in the course of that
inquiry, may request undertakings in the sector concerned to
supply the information necessary for giving effect to Articles
81 and 82 of the Treaty and may carry out any inspections
necessary for that purpose.

inquiry into that sector and,

The Commission may in particular request any undertaking or
association of undertakings
concerned to
communicate to it all agreements, decisions and concerted
practices.

in the

sector

In its request for information the Commission shall state
2.
the legal bases of the request, the time-limit within which the
information is to be provided, the purpose of the request, and
the penalties provided for in Articles 22 and 23 for supplying
incorrect, incomplete or misleading information.

The owners of the undertakings or their representatives
3.
legal persons, companies or firms, or
in the case of
and,
associations having no legal personality, the persons authorised
to represent them by law or by their constitution shall supply
the information requested. Lawyers duly authorised to act may
supply the information on behalf of their clients. The latter
shall remain fully responsible if the information supplied is
incomplete, incorrect or misleading.

supplies

incomplete

information,

supply the
fixed or

4. Where an undertaking or association of undertakings
information requested within the
does not
time-limit
the
Commission shall by decision require the information to be
information is
supplied. The decision shall
required and fix an appropriate time-limit within which it is
to be supplied. It shall indicate the penalties provided for in
Article 22(1)(a), and indicate or impose the penalties provided
for in Article 23(1)(d). It shall also indicate the right to have
the decision reviewed by the Court of Justice of the European
Communities.

specify what

Article 19

Power to take statements

In order to carry out the duties assigned to it by this Regu-
lation, the Commission may interview any natural or legal
person that may be in possession of useful
in
order to ask questions relating to the subject matter of an
investigation and recording the answers.

information,

Article 20

The Commission’s powers of inspection

In order to carry out the duties assigned to it by this
1.
Regulation,
all necessary
inspections of undertakings and associations of undertakings.

the Commission may conduct

2.

Articles 18 to 23 shall apply by analogy.

Article 18

Requests for information

The officials authorised by the Commission to conduct an

2.
inspection are empowered:

In order to carry out the duties assigned to it by this
1.
Regulation,
all necessary
information from the governments and competition authorities

the Commission may

request

(a) to enter any premises, land and means of transport of the
undertakings and associations of undertakings concerned;

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(b) to enter any other premises,

including the homes of
directors, managers and other members of staff of
the
undertakings and associations of undertakings concerned,
in so far as it may be suspected that business records are
being kept there;

7. Where the officials authorised by the Commission wish to
exercise the power provided for by paragraph 2(b), author-
isation from the
authority must be obtained
beforehand.

judicial

(c) to examine the books and other business records,
pective of the medium on which they are stored;

irres-

(d) to take copies of or extracts from the documents examined;

(e) to seal any premises or business

records during the

inspection;

(f)

to ask any representative or member of staff of the under-
information
taking or association of undertakings
relating to the subject matter and purpose of the inspection
and to record the answers.

for

subject matter

3.
The officials authorised by the Commission to conduct an
inspection shall exercise their powers upon production of a
written authorisation specifying the
and
purpose of the inspection and the penalties provided for in
Article 22 in cases where production of the required books
or other business records is incomplete or where the answers
to questions asked under paragraph 2 of
this Article are
incorrect, incomplete or misleading. In good time before the
inspection, the Commission shall give notice of the inspection
to the competition authority of the Member State in whose
territory it is to be conducted.

Undertakings

and associations of undertakings

4.
are
required to submit to inspections ordered by decision of the
Commission. The decision shall specify the subject matter and
purpose of the inspection, appoint the date on which it is to
begin and indicate the penalties provided for in Articles 22 and
23 and the right to have the decision reviewed by the Court of
Justice. The Commission shall
take such decisions after
consulting the competition authority of the Member State in
whose territory the inspection is to be conducted.

Officials of

the competition authority of

5.
the Member
State in whose territory the inspection is to be conducted
shall, at the request of that authority or of the Commission,
actively assist the officials of the Commission. To this end, they
shall enjoy the powers specified in paragraph 2.

6. Where the officials authorised by the Commission find
that an undertaking opposes an inspection ordered pursuant to
this Article, the Member State concerned shall afford them the
necessary
the
assistance of
the police, so as to enable them to conduct
their inspection.

requesting where

appropriate

assistance,

The lawfulness of

8.
the Commission decision shall be
subject to review only by the Court of Justice. The power of
review of the national court shall extend only to establishing
the
the Commission decision is authentic and that
that
enforcement measures envisaged are neither arbitrary nor
excessive having regard to the subject matter of the inspection.
The national court may not review the necessity for the
inspection or require information other than that set out in
the Commission decision.

Article 21

Investigations by competition authorities of Member
States

The competition authority of a Member State may in its
1.
own territory carry out any fact-finding measure under its
national law on behalf and for the account of the competition
authority of another Member State in order
to establish
whether there has been an infringement of Article 81 or
the information
It shall
Article 82 of
collected to the requesting authority in accordance with
Article 12 of this Regulation.

the Treaty.

transmit

2.
At the request of the Commission, the competition auth-
orities of the Member States shall undertake the inspections
which the Commission considers
to be necessary under
Article 20(1) or which it has ordered by decision pursuant to
Article 20(4). The officials of the competition authorities of the
Member States who are responsible for conducting these
inspections shall exercise their powers upon production of a
written authorisation issued by the competition authority of
the Member State in whose territory the inspection is to be
conducted. Such authorisation shall specify the subject matter
and purpose of the inspection.

If so requested by the Commission or by the competition
authority of the Member State in whose territory the inspection
is to be conducted, the officials of the Commission may assist
the officials of the authority concerned.

CHAPTER VI

PENALTIES

Article 22

Fines

law requires authorisation from the

judicial
If national
authority before the assistance of
the police can be called
upon, such authorisation may be applied for as a precautionary
measure.

1.
The Commission may by decision impose on under-
takings and associations of undertakings fines not exceeding
1 % of
turnover in the preceding business year
where, intentionally or negligently:

the total

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(a) they

supply

incorrect,

incomplete

or misleading
information in response to a request made pursuant to
Article 17 or Article 18(1) or (4), or do not supply
information within the time-limit
fixed by a decision
adopted pursuant to Article 18(4);

(b) they produce the required books or other business records
in incomplete form during inspections under Article 20 or
Article 21(2), or refuse to submit to inspections ordered by
a decision adopted pursuant to Article 20(4);

(c) they refuse to answer a question asked in accordance with
incomplete or

an incorrect,

Article 20(2)(f) or give
misleading answer;

(d) seals affixed by authorised officials of the Commission in

accordance with Article 20(2)(e) have been broken.

The Commission may by decision impose on under-
2.
takings and associations of undertakings fines not exceeding
10 % of the total turnover in the preceding business year of
each of
the undertakings participating in the infringement
where, either intentionally or negligently:

(a) they infringe Article 81 or Article 82 of the Treaty; or

(b) they contravene a decision ordering interim measures under

Article 8 of this Regulation; or

the preceding business year per day and calculated from the
date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Article 81 or Article
in accordance with a decision taken

82 of
pursuant to Article 7 of this Regulation;

the Treaty,

(b) to comply with a decision ordering interim measures taken

pursuant to Article 8;

(c) to comply with a commitment made binding by a decision

pursuant to Article 9;

(d) to supply complete and correct information which it has
requested by decision taken pursuant to Article 18(4);

(e) to submit to an inspection which it has ordered by decision

taken pursuant to Article 20.

2. Where the undertakings or associations of undertakings
have satisfied the obligation which the periodic penalty
payment was intended to enforce, the Commission may fix
the definitive amount of the periodic penalty payment at a
figure lower than that which would arise under the original
decision. Article 22(4) shall apply by analogy.

CHAPTER VII

LIMITATION PERIODS

Article 24

(c) they fail to comply with a commitment made binding by a

decision pursuant to Article 9 of this Regulation.

The powers conferred on the Commission by Articles 22

1.
and 23 shall be subject to the following limitation periods:

Limitation periods for the imposition of penalties

In fixing the amount of the fine, regard shall be had both

3.
to the gravity and to the duration of the infringement.

(a) three years in the case of

infringements of provisions
concerning requests for information or the conduct of
inspections;

4. Where a fine is imposed on an association of under-
this Regulation and the association is not
takings under
solvent, the Commission may require payment of the fine by
any of
the
association at the time the infringement was committed. The
amount required to be paid by each individual member cannot
exceed 10 % of its total turnover in the preceding business year.

the undertakings which were members of

Decisions taken pursuant to paragraphs 1 and 2 shall not

5.
be of a criminal law nature.

Article 23

Periodic penalty payments

(b) five years in the case of all other infringements.

2.
Time shall begin to run on the day on which the
infringement is committed. However, in the case of continuing
or repeated infringements, time shall begin to run on the day
on which the infringement ceases.

3.
Any action taken by the Commission or by the
competition authority of a Member State for the purpose of
the investigation or proceedings in respect of an infringement
shall interrupt the limitation period for the imposition of fines
or periodic penalty payments. The limitation period shall be
interrupted with effect from the date on which the action is
notified to at least one undertaking or association of under-
takings which has participated in the infringement. Actions
include in
which interrupt the running of the period shall
particular the following:

The Commission may, by decision,

1.
impose on under-
takings or associations of undertakings periodic penalty
payments not exceeding 5 % of the average daily turnover in

(a) written requests for information by the Commission or by

the competition authority of a Member State;

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(b) written authorisations to conduct inspections issued to its
competition

officials by the Commission or by the
authority of a Member State;

(b) enforcement of payment

is

suspended pursuant

to a

decision of the Court of Justice.

(c) the initiation of proceedings by the Commission or by the

competition authority of a Member State;

(d) notification of

the
Commission or of the competition authority of a Member
State.

statement of objections of

the

The interruption of the limitation period shall apply for
4.
all the undertakings or associations of undertakings which have
participated in the infringement.

start

time

Each interruption shall

running afresh.
5.
However, the limitation period shall expire at the latest on
the day on which a period equal
to twice the limitation
period has elapsed without the Commission having imposed
a fine or a periodic penalty payment. That period shall be
extended by the time during which limitation is suspended
pursuant to paragraph 6.

The limitation period for the imposition of

6.
fines or
periodic penalty payments shall be suspended for as long as
the decision of the Commission is the subject of proceedings
pending before the Court of Justice.

CHAPTER VIII

HEARINGS AND PROFESSIONAL SECRECY

Article 26

Hearing of the parties, complainants and others

Before taking decisions as provided for in Articles 7, 8, 22
1.
the Commission shall give the undertakings or
and 23(2),
associations of undertakings which are the subject of
the
proceedings the opportunity of being heard on the matters
to which the Commission has
taken objection. The
Commission shall base its decisions only on objections on
which the parties concerned have been able to comment.
Complainants shall be associated closely with the proceedings.

2.
The rights of defence of the parties concerned shall be
fully respected in the proceedings. They shall be entitled to
have access to the file, subject to the legitimate interest of
undertakings in the protection of their business secrets. That
legitimate interest may not constitute an obstacle to the
disclosure
information
and use by the Commission of
necessary to prove an infringement.

Article 25

Limitation period for the enforcement of penalties

The power of the Commission to enforce decisions taken
1.
pursuant to Articles 22 and 23 shall be subject to a limitation
period of five years.

The right of access to the file shall not extend to confidential
information and internal documents of the Commission or the
competition authorities of the Member States. In particular, any
correspondence between the Commission and the Competition
Authority of the Member States, or between the latter, inter
alia, documents drawn up pursuant to Articles 8 and 11 are
excluded.

Time shall begin to run on the day on which the decision

2.
becomes final.

The limitation period for the enforcement of penalties

3.
shall be interrupted:

(a) by notification of a decision varying the original amount of
refusing an

the fine or periodic penalty payment or
application for variation;

(b) by any action of the Commission or of a Member State,
acting at
the Commission, designed to
enforce payment of the fine or periodic penalty payment.

the request of

4.

Each interruption shall start time running afresh.

The limitation period for the enforcement of penalties

5.
shall be suspended for so long as:

(a) time to pay is allowed;

3.
If the Commission or the competition authorities of the
Member States consider it necessary, they may also hear other
natural or legal persons. Applications to be heard on the part
of such persons shall, where they show sufficient interest, be
granted.

Article 27

Professional secrecy

1. Without prejudice to Articles 12 and 15,
information
collected pursuant to Articles 17 to 21 shall be used only for
the purpose for which it was acquired.

2. Without prejudice to Articles 11, 12, 14, 15 and 26, the
Commission and the competition authorities of the Member
States,
their officials and other servants shall not disclose
information acquired or exchanged by them pursuant to this
Regulation and of
the kind covered by the obligation of
professional secrecy.

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CHAPTER IX

BLOCK EXEMPTIONS

Article 28

Adoption of block exemption regulations

In accordance with Article 81(3) of

1.
the
Commission may, by regulation, declare that Article 81(1) is
not applicable to categories of agreements, decisions by
associations of undertakings or concerted practices, subject to
the conditions in paragraphs 2 to 5 of this Article.

the Treaty,

2.
Exemption regulations must define the categories of
agreements, decisions or concerted practices to which they
apply and specify in particular the restrictions, which are not
exempted, and any conditions that must be fulfilled.

3.

Exemption regulations must be limited in time.

an

Before

exemption

the
regulation,
4.
adopting
Commission must publish a draft
thereof and invite all
interested parties concerned to submit their comments within
the time-limit it lays down, which may not be less than one
month.

5.
Before publishing a draft exemption regulation and before
adopting such a regulation, the Commission shall consult the
Advisory Committee on Restrictive Practices and Dominant
Positions.

Article 29

Withdrawal in individual cases

1. Where, in any particular case, the Commission, acting on
its own initiative or on a complaint, finds that agreements,
decisions or concerted practices to which a block exemption
regulation applies nevertheless have certain effects which are
incompatible with Article 81(3) of the Treaty, it may withdraw
the benefit of the regulation.

2. Where in any particular case agreements, decisions or
concerted practices to which a block exemption regulation
applies have effects which are incompatible with Article
81(3) of the Treaty in the territory of a Member State, or in
a part thereof, which has all the characteristics of a distinct
geographic market, the competition authority of that Member
State may withdraw the benefit of the regulation in question in
respect of that territory.

from its scope of certain types of agreement, decision or
concerted practice that are applied on a particular market.
Where those circumstances obtain,
the Commission may
establish this by way of regulation, and fix a period on the
expiry of which the block exemption regulation will no longer
be
agreements, decisions or
concerted practices on that market. That period must not be
less than six months. Article 28(4) and (5) shall apply by
analogy.

applicable

relevant

to the

CHAPTER X

GENERAL PROVISIONS

Article 31

Publication of decisions

The Commission shall publish the decisions, which it

1.
takes pursuant to Articles 7 to 10, 22 and 23.

The publication shall state the names of the parties and
2.
the main content of
including any penalties
the decision,
imposed. It shall have regard to the legitimate interest of under-
takings in the protection of their business secrets.

Article 32

Review by the Court of Justice

The Court of Justice shall have unlimited jurisdiction to review
decisions whereby the Commission has fixed a fine or periodic
penalty payment. It may cancel, reduce or increase the fine or
periodic penalty payment imposed.

Article 33

Exclusions

This Regulation shall not apply to agreements, decisions and
concerted practices or to the abuse of a dominant position
the Treaty in the
within the meaning of Article 82 of
following areas:

(a) international sea transport of the tramp service type;

(b) sea transport between ports in the same Member State;

(c) air transport between the Community and third countries.

Article 30

Article 34

Implementing provisions

Regulations ending the application of a block exemption

A block exemption regulation adopted pursuant to Article 28
may specify the circumstances which may lead to the exclusion

The Commission shall be authorised to take such measures as
may be appropriate in order to apply this Regulation. The
measures may concern inter alia:

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(a) the introduction of a registration requirement for certain

3. Articles 5 to 29 are deleted.

types of agreement;

(b) the form, content and other details of complaints lodged
to Article 7 and the procedure for rejecting

pursuant
complaints;

(c) the practical arrangements for the exchange of information

and consultations provided for in Article 11;

(d) the practical arrangements for the hearings provided for in

Article 26.

CHAPTER XI

TRANSITIONAL AND FINAL PROVISIONS

4. In Article 30, paragraphs 2 and 3 are deleted.

Article 38

Amendment of Regulation (EEC) No 2988/74

In Regulation (EEC) No 2988/74, the following Article 7a is
inserted:

DArticle 7a

Exclusion

This Regulation shall not apply to measures taken under
Council Regulation (EC) No . . . (*)

Article 35

Transitional provisions

___________
(*) OJ L . . .E

1.
Applications made to the Commission under Article 2 of
Regulation No 17, notifications made under Articles 4 and 5 of
that Regulation and the corresponding applications and notifi-
cations made under Regulations (EEC) No 1017/68, (EEC) No
4056/86 and (EEC) No 3975/87 shall lapse as from the date of
application of this Regulation.

The validity of decisions applying Article 81(3) of the Treaty
adopted by the Commission under those Regulations shall
come to an end no later than the date of application of this
Regulation.

2.
Procedural steps taken under Regulation No 17 and Regu-
lations (EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No
3975/87 shall continue to have effect
for the purposes of
applying this Regulation.

Article 39

Amendment of Regulation (EEC) No 4056/86

Regulation (EEC) No 4056/86 is amended as follows:

1. Article 7 is amended as follows:

(a) Paragraph 1 is replaced by the following:

)1. Breach of an obligation

exemption provided for

Where the persons concerned are in breach of an
obligation which, pursuant to Article 5, attaches to
the
the
in order to put an end to such
Commission may,
laid down in
the conditions
breach and under
Council Regulation (EC) No . . . (*):

in Article 3,

Designation of competition authorities of Member States

concerned;

Article 36

H address

recommendations

to

the

persons

The Member States shall designate the competition authorities
responsible for the application of Articles 81 and 82 of the
Treaty, and shall take the measures necessary to empower those
authorities to apply those Articles before . . ..

Article 37

H in the event of failure by such persons to observe
those recommendations and depending on the
adopt
gravity of
a
the breach concerned,
them from
decision
carrying out or
them to perform
requires
certain specific acts, or withdraws the benefit of
the block exemption which they enjoyed.

prohibits

either

that

Amendment of Regulation (EEC) No 1017/68

Regulation (EEC) No 1017/68 is amended as follows:

___________
(*) OJ L . . . .E

1. Article 2 is deleted.

(b) Paragraph 2 is amended as follows:

2. In Article 3(1), the words DThe prohibition laid down in
Article 2E are replaced by the words DThe prohibition in
Article 81(1) of the TreatyE.

(i) In point (a), the words Dunder the conditions laid
down in Section IIE are replaced by the words
Dunder the conditions laid down in Regulation (EC)
No . . ./. . .E;

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(ii) The second sentence of the second subparagraph of

point (c)(i) is replaced by the following:

DAt the same time it shall decide, in accordance with
Article 9 of Regulation (EC) No. . ./. . ., whether it
accepts commitments offered by the undertakings
concerned with a view,
to obtaining
access to the market for non-conference lines.E

inter alia,

2. In Article 8, paragraph 1 is deleted.

3. Article 9 is amended as follows:

(a) In paragraph 1, the words DAdvisory Committee referred
to in Article 15E are replaced by the words DAdvisory
Committee referred to in Article 14 of Regulation (EC)
No . . ./. . .E;

(b) In paragraph 2,

the words DAdvisory Committee as
referred to in Article 15E are replaced by the words
Dthe Advisory Committee referred to in Article 14 of
Regulation (EC) No . . ./. . .E.

4. Articles 10 to 25 are deleted.

5. In Article 26, the words Dthe form, content and other details
of complaints pursuant to Article 10, applications pursuant
to Article 12 and the hearings provided for in Article 23(1)
and (2)E are deleted.

Article 40

Amendment of Regulation (EEC) No 3975/87

Articles 3 to 19 of Regulation (EEC) No 3975/87 are deleted.

Article 41

Repeals

Regulations No 17, No 141, No 19/65/EEC, (EEC) No 2821/71,
(EEC) No 3976/87, (EEC) No 1534/91 and (EEC) No 479/92 are
hereby repealed.

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

Article 42

Entry into force

This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

It shall apply from . . .

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