Communication pursuant to Article 33 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance)
Date: 2003-10-10
Institutions: European Commission
Subjects: access to information, competition law, complaint to the Commission, infringement of EU law, infringement procedure (EU)

10.10.2003

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Official Journal of the European Union

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Communication pursuant to Article 33 of Council Regulation (EC) No 1/2003 of 16 December
2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the
Treaty

(2003/C 243/03)

(Text with EEA relevance)

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

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

COMP-MODERNISATION-PACKAGE@cec.eu.int

Or in writing to:

European Commission
Directorate-General for Competition
Unit A 3 — European Competition Network
Modernisation package
B-1049 Brussels

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

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to the Agreement on the European Economic
Area,

Having regard to Council Regulation (EC) No 1/2003 of 16
December 2002 on the implementation of
the rules on
competition laid down in Articles 81 and 82 of the Treaty (1),
and in particular Article 33 thereof,

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

Whereas:

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

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

the handling of complaints and the hearing of the parties
concerned.

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

authorities
the
once

relieved

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

statements,

the

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

inspections.

It

(5) Complaints are an essential source of

information for
is
to define clear and efficient procedures for

detecting infringements
important
handling complaints lodged with the Commission.

to competition rules.

It

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

(7) In order

to assist

in submitting the
complainants
necessary facts to the Commission, a form should be
drawn up. The submission of the information listed in
that form should be a condition for a complaint to be
treated as a complaint pursuant to Article 7 of Regulation
(EC) No 1/2003. Natural or legal persons having chosen
that procedure should be given the possibility to be
associated closely to the proceedings initiated by the
Commission with a view to finding an infringement.
to business
However,
secrets or other confidential
information belonging to
other parties involved in the proceedings.

they should not have access

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

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

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

interest

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

(15) This Regulation replaces Commission Regulation (EC) No
2842/98 of 22 December 1998 on the hearing of parties
in certain proceedings under Articles 85 and 86 of the EC
Treaty (1) which should therefore be repealed.

(16) This Regulation aligns

rules

the procedural

in the
transport sector with the general rules of procedure in
all sectors. Commission Regulation (EC) No 2843/98 of
22 December 1998 on the form, content and other details
of applications and notifications provided for in Council
Regulations (EEC) No 1017/68 (2), (EEC) No 4056/86 (3)
and (EEC) No 3975/87 (4)
rules on
competition to the transport sector (5) should therefore
be repealed.

applying

the

(8) Complainants

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

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

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

(17) Regulation (EC) No 1/2003 abolishes the notification and
authorisation system. Commission Regulation (EC) No
3385/94 of 21 December 1994 on the form, content
and notifications
and other details of
provided for in Council Regulation No 17 (6) should be
repealed,

applications

(1) OJ L 354, 30.12.1998, p. 18.
(2) Council Regulation (EEC) No 1017/68 of 19 July 1968 applying
rules of competition to transport by rail, road and inland waterway
(OJ L 175, 23.7.1968, p. 1). Regulation as last amended by the Act
of Accession of 1994.

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

(4) Council Regulation (EEC) No 3975/87 of 14 December 1987 laying
down the procedure for the application of the rules on competition
to undertakings in the air transport sector (OJ L 374, 31.12.1987,
p. 1). Regulation as last amended by Regulation (EEC) No 2410/92
(OJ L 240, 24.8.1992, p. 18).
(5) OJ L 354, 30.12.1998, p. 22.
(6) OJ L 377, 31.12.1994, p. 28.

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HAS ADOPTED THIS REGULATION:

CHAPTER I

SCOPE OF APPLICATION

Article 1

Subject-matter and scope

regulation applies

This
Commission pursuant to Articles 81 and 82 of the Treaty.

to proceedings conducted by the

CHAPTER II

INITIATION OF PROCEEDINGS

Article 2

Initiation of proceedings

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

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

It

is not necessary for

3.
proceedings before exercising its powers of
pursuant to Chapter V of Regulation (EC) No 1/2003.

the Commission to initiate
investigation

is not necessary for

4.
It
proceedings
Article 7 of Regulation (EC) No 1/2003.

to reject a complaint pursuant

the Commission to initiate
to

in order

CHAPTER III

INVESTIGATIONS BY THE COMMISSION

Article 3

Power to take statements

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

The Commission may record the statements made by the

2.
persons interviewed in any form.

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

Article 4

Oral questions during inspections

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

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

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

CHAPTER IV

HANDLING OF COMPLAINTS

Article 5

Admissibility of complaints

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

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

form C where

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

Complaints shall be submitted in one of

4.
languages of the Union.

the official

Article 6

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

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

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The Commission may, where

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

appropriate,

Article 7

Rejection of complaints

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

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

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

Article 8

Rejections of complaints pursuant to Article 13 of Regu-
lation (EC) No 1/2003

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

Article 9

Access to information

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

and other

secrets

access

CHAPTER V

EXERCISE OF THE RIGHT TO BE HEARD

Article 10

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

The Commission shall

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

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

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

their submission and of

Article 11

Right to be heard

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

The Commission shall

in its decisions deal only with
2.
objections
in respect of which the undertakings and/or
associations of undertakings have been afforded the oppor-
tunity of making their views known.

Article 12

Right to an oral hearing

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

Article 13

Hearing of third parties

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

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

interest,

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

The Commission may afford to any other third party
the opportunity of orally
the parties

3.
which shows a sufficient interest
expressing their views at
against whom objections have been raised.

the oral hearing of

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

Article 14

Conduct of oral hearings

takings in the protection of their business secrets and other
confidential information.

CHAPTER VI

ACCESS TO THE FILE AND TREATMENT OF CONFIDENTIAL
INFORMATION

Article 15

Access to the file and use of documents

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

addressed a

Hearings shall be conducted by a Hearing Officer in full

1.
independence.

The Commission shall invite the persons to be heard to

2.
attend the oral hearing on such date as it shall determine.

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

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

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

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

Persons heard by the Commission may be assisted by
lawyers or other qualified persons admitted by the

5.
their
Hearing Officer.

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

The Hearing Officer may

7.
complainants,
Commission services and the authorities of
States to ask questions during the hearing.

allow the parties,
invited to the hearing,

the
the
the Member

third parties

8.
The statements made by each person heard shall be
recorded. Upon request, the recording of the hearing shall be
made available to the persons who attended the hearing.
Regard shall be had to the legitimate interest of the under-

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

Article 16

Identification and protection of confidential information

including

Information,

be
1.
communicated or made accessible by the Commission in so
far as
secrets or other confidential
information of any person.

it contains business

documents,

shall

not

request

undertakings

The Commission may

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

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The Commission may set a time-limit within which the

3.
undertakings and associations of undertakings shall:

have regard both to the time required for preparation of the
submission and to the urgency of the case.

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

(b) provide the Commission with a non-confidential version of
in which the confidential

the documents or statements,
passages are deleted;

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

information.

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

Article 17

Settlement of disagreements on confidential information

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

to the disclosure,

CHAPTER VII

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

this

The time-limit referred to in Articles 3(3), 4(3), 16(3) and

3.
17 shall be at least two weeks.

Article 19

Repeals

Regulations (EC) No 2842/98, (EC) No 2843/98 and (EC)

1.
No 3385/94 are repealed.

References to the repealed regulations shall be construed

2.
as references to this Regulation.

Article 20

Transitional provisions

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

Article 21

Entry into force

GENERAL AND FINAL PROVISIONS

This Regulation shall enter into force on 1 May 2004.

Article 18

Time-limits

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

1.
In setting the time-limits provided for in Articles 3(3),
4(3), 6(1), 7(1), 10(2), 16(3) and 17, the Commission shall

Done at Brussels, . . .

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ANNEX