Opinion of the European Economic and Social Committee on:the Commission Regulation relating to proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty and on draft Commission Notices, andthe Draft Commission Notice on cooperation within the Network of Competition Authorities
Date: 2003-12-11
Institutions: European Economic and Social Committee
Subjects: ESC opinion, European Commission, competition law, drafting of EU law

C 80/24

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Official Journal of the European Union

30.3.2004

Opinion of the European Economic and Social Committee on:

— the ‘Commission Regulation relating to proceedings by the Commission pursuant to

Articles 81 and 82 of the EC Treaty and on draft Commission Notices’ (1), and

— the ‘Draft Commission Notice on cooperation within the Network of Competition

Authorities’ (2)

(2004/C 80/08)

On 26 September 2003, the European Commission decided to consult the European Economic and
Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-
mentioned regulation and notice.

The Section for the Single Market, Production and Consumption was responsible for the Committee’s
work on the subject.

Due to the urgency of the work, the European Economic and Social Committee, at its 404th plenary on
10 and 11 December 2003 (meeting of 11 December), appointed Mr Metzler as rapporteur-general and
adopted the following opinion by 45 votes in favour with four abstentions.

1.

Introduction

2. Proceedings Regulation

1.1.
In accordance with 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 (hereinafter ‘R 1/2003’), the Commission is author-
ised to establish such rules as are relevant to the implemen-
tation of this Regulation. The above-mentioned drafts of the
Commission Regulation (EC) relating to proceedings by the
Commission pursuant to Articles 81 and 82 of the EC Treaty
and of Commission Notices refer to the new R 1/2003, the
application of which they are intended to explain.

1.2.
The Committee will base its comments on two prem-
ises, which are of decisive importance when assessing the
package as a whole. Firstly, the modernisation package should
make a significant contribution to clarifying what action is
required of those affected by the various proposals, such that
competition law can develop uniformly in the individual
leading in the long term to a common
Member States,
competition culture without regional differences. Secondly,
these principles should be put into practice without any loss
of legal rights for undertakings affected by the proposed
legislation. Simplification of proceedings must not lead to a
substantive loss of businesses’ legal rights.

There follows a brief overview of the main points of
1.3.
the draft Regulation relating to proceedings by the Commission
pursuant to Articles 81 and 82 of the EC Treaty (hereinafter
Proceedings Regulation) and of the six Notices.

(1) OJ C 243, 10.10.2003, p. 3.
(2) OJ C 243, 10.10.2003, p. 10.

2.1. Gist

2.1.1.
The Proceedings Regulation regulates the initiation
of proceedings by the Commission pursuant to Articles 81
and 82 of the EC Treaty, gives more detailed information on
investigations by the Commission and regulates the handling
of complaints, for which a new Form C is to be introduced. It
also sets out rules concerning the right of affected undertakings
to be heard, access to information and the use of confidential
information.

2.2. Comments

2.2.1.
The Committee welcomes the Commission’s pro-
posal to subject itself to conditions protecting those being
interviewed as part of an investigation by informing them of
the purpose of the interview and of any record that is made,
and by giving them — or, in the case of inspections, the
undertaking — the opportunity to correct the records.

The Commission ought, however, further to amend
2.2.2.
Article 3 (Power to take statements) such that the Commission
is also obliged to supply the person giving the statement with
appropriate information about the voluntary nature of that
statement, of their right to remain silent where applicable, and
of the right to have a lawyer present. In addition, it should also
give information about any sanctions that may be connected
with the statement. Similar rules should apply to oral questions
during inspections (Article 4). This is in line with the principles
of due process. Care should also be taken to ensure that

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C 80/25

the

second indent of
contradict
Article 4 does not
Article 23(1)(d) of R 1/2003, whereby representatives of an
undertaking may rectify statements made by any member of
staff. Article 4(2) should therefore make it clear that not only
the statements of unauthorised members of staff (and company
representatives), but also those of staff members and company
representatives with the relevant authority may be corrected.
In addition, company representatives and members of staff
should themselves have the right to check their own state-
ments.

2.2.3.
According to the Commission’s proposal, the right
of undertakings to submit a defence should be limited to a
certain time period following notification of the objections;
once this time period has elapsed, any further submission is to
be precluded (Article 10(2)). The Committee takes the view
that this new arrangement goes unnecessarily far in curtailing
undertakings’ rights of defence; this is not in line with current
practice. In addition, this will not allow facts that come to light
after the deadline has expired to be taken into consideration.
This would be unjust. Further recourse to the courts should
not be ruled out either.

2.2.4.
Article 15(1) states that access to the file shall only
be granted after the notification of the statement of objections.
In practice, however, experience has shown that it makes sense
to allow access to the file even before the notification of the
statement of objections, as long as this does not impede the
investigation. The procedure could be tightened up in this
way.

The main purpose of the network is to facilitate the
3.1.2.
exchange of information. Therefore, every NCA should supply
such material to other NCAs as is useful for applying EU
competition rules. However, commercial confidentiality must
be respected, and the information must only be used for a
specific purpose. The rights of defence of natural persons must
also be respected where information ends up in a country
where infringements of competition law can lead to penalties
under criminal law. In addition, any NCA can request assistance
from another in gathering evidence needed to prosecute
infringements of competition law. This also applies to relations
between the Commission and the NCAs.

3.1.3.
A request for treatment according to a leniency
programme should be applied for with each authority that
may have competence in the particular case individually
and, where possible, simultaneously. Acceptance of such
application by one authority does not imply acceptance by
another. If other NCAs are informed of such an application,
they are not permitted to use the enclosed information
to begin proceedings of their own. Furthermore, evidence
submitted by the applicant may only be passed on with his
permission, unless the undertaking has also submitted a
principal witness application to the receiving authority or the
receiving authority undertakes not to use the information to
impose sanctions on the applicant (or persons covered by the
application).

The Commission should also consider amending
2.2.5.
Article 18 (Time limits) to allow undertakings to apply for
time limits to be extended on reasonable grounds.

3.2. Comments

3. Notice on Cooperation within the Network of Com-

petition Authorities

3.1. Gist

3.1.1.
R 1/2003 states the principle of parallel competence.
Violations of competition law can be prosecuted either by the
national competition authorities (NCA) or by the Commission.
Cases should be dealt with by a ‘well-placed authority’, i.e. one
within whose jurisdiction the consequences of the infringe-
ment are felt, insofar as it is able to bring an end to the
infringement and gather the necessary evidence. This may
apply to several NCAs. If more than three NCAs are involved
in (or have jurisdiction over) a particular case, the Commission
is ‘particularly well placed’. In addition, the Commission can
also take on a case that has particular importance for the
further development of competition policy; where this is
necessary to ensure effective implementation of competition
rules; or if the case is closely connected with other areas of
Community law. For the purpose of allocating cases, the
authorities should exchange information, either before or
without delay after commencing the first formal investigative
measure. Furthermore, Article 13 of R 1/2003 gives a NCA
the authority to suspend or abandon proceedings if another
NCA is dealing with the case. However, no NCA is required to
exercise that right.

The Committee approves of close cooperation
3.2.1.
between the Commission and the NCAs, as this will encourage
consistent decisions in the individual Member States and could
lead to a uniform European competition culture. However, it
would like to see the one-stop-shop principle more firmly
established to exclude the possibility of companies being
the subject of antitrust proceedings, and hence of multiple
penalties,
in more than one Member State at once. It is
doubtful that, by merely calling for cases to be handled by
one authority wherever possible, the Notice offers sufficient
protection to companies. The Committee therefore rec-
ommends that detailed criteria for clear, unambiguous case
allocation be drawn up.

3.2.2.
The fact that a company’s application for leniency in
accordance with one country’s arrangements is not considered
to be an application for similar treatment under other
countries’ competition laws does not take sufficient account of
companies’ need for legal certainty. From the point of view of
efficiency, one application within the network should be
sufficient to fulfil the application requirements in all Member
States. When companies are racing to be the first to ‘blow the
whistle’, making a later application in another Member State
could have unfair consequences for the company. It would
also make sense to list, in a footnote to the Notice, places
where the rules of other NCAs covering leniency arrangements
for principal witnesses can be found.

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4. Notice on the cooperation between the Commission
and the courts of EU Member States in the application
of Articles 81 and 82 of the EC Treaty

national courts provided for by Article 15 of R 1/2003 will
help to bring about stronger, more effective legal protection
of private individuals and businesses in the Member States. In
particular, the Commission can provide valuable advice and
assistance to the national courts of the accession countries,
who are not yet entirely familiar with Community law.

4.1. Gist

4.1.1.
The application of Articles 81 and 82 of the EC
Treaty is not only incumbent on the Commission and the
NCAs, but also — in particular with regard to civil claims for
breach of contract and compensation (and often in cases of
temporary legal protection) and in matters of enforcement —
on national courts. According to the EC Treaty system, the
interpretation of Articles 81 and 82 of the EC Treaty by the
Commission does not as a rule take precedence over their
interpretation by national courts; rather, both are competent
to interpret Articles 81 and 82 of the EC Treaty; only the ECJ
has the right to overrule either of them. The danger of
divergent decisions resulting from parallel competence is
addressed in Article 16(1) of R 1/2003, which states that
national courts cannot
take decisions based on Treaty
Articles 81 and 82 which run counter to a decision already
adopted by the Commission, or contemplated by the Com-
mission in proceedings it has initiated, in the same matter.

4.1.2.
In order to a) enable national courts to comply with
Article 16(1) of R 1/2003, b) avoid divergences between the
Commission and national courts even in cases where the
Commission has not (yet) initiated proceedings, and c) to make
best use of the Commission’s expertise, Article 15 of R 1/2003
provides for wide-ranging cooperation between national courts
and the Commission. The Notice explains — after an introduc-
tory summary of the duties of national courts in applying
Articles 81 and 82 of the EC Treaty as provided for by the
jurisprudence of the ECJ and by Article 16(1) of R 1/2003 —
the cooperation between national courts and the Commission
in accordance with Article 15 of R 1/2003. As the Commission
clearly states in Point 42 of the Notice, the latter is issued in
order to assist national courts and is not binding upon them.
In addition, the cooperation is to take place according to the
procedural regulations of the Member State whose national
court is involved in the particular case while nevertheless
observing the basic legal principles laid down by the ECJ.

5. Notice on informal guidance relating to novel ques-
tions concerning Articles 81 and 82 of the EC Treaty
that arise in individual cases (guidance letters)

5.1. Gist

5.1.1.
R 1/2003 abolished the notification system so that
the Commission can focus its enforcement policy on serious
infringements of competition law. As a general rule, it is up to
businesses to assess the legality of their practices or their
behaviour for themselves. In the case of new or unresolved
questions, they can ask the Commission for informal advice;
however, they have no absolute right to such advice. They will
then receive a guidance letter. The Commission emphasises
that it will only issue such guidance insofar as this is compatible
with its enforcement priorities. It ‘considers’ whether it is
‘appropriate’ to issue a guidance letter according to three
criteria: the novel nature of the question; the usefulness of
issuing a guidance letter; and the presence of sufficient
information. Requests for guidance letters will not be con-
sidered where the questions are hypothetical or are pending
before a national court or a NCA.

5.1.2.
Guidance letters are not binding on national courts
and NCAs. Similarly, the Commission is not bound, but is
willing to ‘take’ the letter ‘into account’ when considering a
complaint concerning the same facts.

5.2. Comments

4.2. Comments

The Committee agrees with the aim of R 1/2003
4.2.1.
to strengthen the ability of private individuals to enforce
competition law through national courts. Local, case-by-case
enforcement of competition law is in line with the free-market
principles of the Common Market and is thus, alongside the
administrative enforcement by the Commission and NCAs,
indispensable. The Committee
the
additional transparency that the Commission’s Notice creates
for national courts. The Committee hopes that the specific,
case-by-case cooperation between the Commission and

therefore welcomes

5.2.1.
The legal exception system relieves businesses of an
unnecessary bureaucratic burden. However, the legal uncer-
tainty for companies which nevertheless goes along with this
change could be further mitigated in the Notice if businesses
were given the right to apply for a reasoned opinion from the
Commission in specific, difficult cases instead of leaving them
to rely on informal advice which the Commission is not
obliged to give out. The Commission should always be willing
to give businesses a binding opinion on new questions of law
and of fact; otherwise, it is not entirely clear what value a
guidance letter would have. In the light of the further tightening
of already severe sanctions, information from the Commission
that is purely advisory in nature does not give sufficient legal
protection.

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6. Notice on the handling of complaints by the Com-
mission under Articles 81 and 82 of the EU Treaty

6.1. Gist

6.1.1.
First, the Notice explains that a complainant has the
choice of going to a national court or to the Commission.
The complaint is subject to the parallel competence of the
Commission and the NCA. The Commission is entitled to give
differing degrees of priority to the complaints brought before
it, according to the degree to which the case affects the
Community interest.
the complaint must be
submitted on Form C. The Commission then examines whether
the complainant can show a legitimate interest.

In addition,

6.1.2.
The Commission will assess the Community interest
required for an investigation by the Commission according to
the following criteria: whether the complainant can pursue his
claim before national courts; how significant the reported
infringements are; what effect they have on competition within
the Community as a whole; how strong the evidence is; and
the scope of the investigation that will be required. It will also
look at whether the conduct that is being complained about
has, in the meantime, ceased and/or whether the undertaking
being complained about is willing to change its conduct.

the interpretation of the effect on trade concept contained in
Articles 81 and 82 of the EC Treaty. They also contain a new
rule drawn up by the Commission (known as the NAAT rule)
indicating when agreements in general are unlikely to be
capable of appreciably affecting trade between Member States.

After setting out basic principles and explaining the
7.1.2.
individual parts of the effect on trade clause, the guidelines set
out the NAAT rule from the point of view of appreciability.
Under this rule, agreements should not generally come under
the effect on trade clause if a) the aggregate market share of
the parties on any relevant market within the Community
affected by the agreement does not exceed 5 % and b) the
aggregate annual Community turnover of the undertakings
concerned in the products covered by the agreement does not
exceed Euro 40 million. The guidelines then set out the
application of these principles and of the NAAT rule to the
most common types of agreements and abuses, namely
import and export agreements; cartels; horizontal cooperation
agreements; vertical agreements; and the abuse of dominant
market positions in several Member States. In each case, a
distinction is made between agreements and practices that
affect several Member States and those that are limited to one
Member State or part thereof.

6.2. Comments

7.2. Comments

6.2.1. With the directly applicable exception system now
in force, agreements that infringe competition law are, in some
cases, no longer so easy for the Commission or the NCAs to
detect. Consequently, complaints have an important role to
play in exposing infringements; the conditions for accepting
them should not, therefore, be too stringent. However, because
of the large degree of discretion the Commission has, it is not
clear to the complainant at the outset whether the Commission
will actually follow up a complaint. This could discourage
potential complainants,
for whom Form C means extra
bureaucratic effort, from filing a complaint. Clearer rules,
predictable in their application, on the Commission’s dis-
cretionary powers to act would be desirable, as would an
unambiguous definition of the Community interest require-
ment for handling of complaints by the Commission.

7.2.1.
The Committee welcomes the detailed description of
the application of the effect on trade clause by the Commission,
in particular the listing of particular types of cases, since the
questions that are raised in each of these cases are quite
different. However, the Committee questions whether the
NAAT rule developed by the Commission can, in a mere
Notice, create the intended legal certainty for the affected
undertakings. Against the background of the traditionally
broad interpretation of the effect on trade clause by the
Community courts, the legal certainty would be increased if
the Commission were to enshrine the rule in a Regulation.

7. Guidelines on the effect on trade concept contained

in Articles 81 and 82 of the EC Treaty

7.1. Gist

7.1.1.
The guidelines contain a comprehensive summary of
the principles that the Community courts have developed for

7.2.2.
In addition, the Committee wonders whether rolling
back Community law in favour of national competition law,
as is clearly intended by the introduction of the NAAT rule, is
sensible. Since by now virtually all Member States have
national competition laws, whose uniform interpretation in
cases where the effect on trade clause does not apply can be
ensured neither by the Commission nor by the Community
courts, there is a risk, particularly in the case of cross-border
agreements between SMEs, that several different pieces of
legislation may apply, which may be interpreted more strictly
than Community law.

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8. Guidelines on the

application of EC Treaty

8.2. Comments

Article 81(3)

8.1. Gist

8.1.1.
The move from the exemption system to a directly
applicable exception system effected by R 1/2003 means that
undertakings now not only have to check for themselves
whether the conditions of Article 81(1) of the EC Treaty are
fulfilled, but also whether the exception set out in Treaty
Article 81(3) applies. In order to make this easier for undertak-
ings, the Commission has set out guidelines on Article 81(3),
which complement the existing guidelines on the applicability
of Article 81 of the EC Treaty to horizontal cooperation
agreements (OJ 2001 C 3/2) and guidelines on vertical
restraints (OJ 2000 C 291/1).

8.1.2.
The guidelines first explain the general framework of
Article 81 of the EC Treaty and, in particular, the application
of Article 81(1), as Article 81(3) can only be meaningfully
interpreted against this background. The guidelines then go
into detail on each of the four conditions of Article 81(3). This
consists mainly of a summary of the Commission’s past
practice in decision-making and the jurisprudence of the
courts. However, there is some clear and detailed explanation
of the criteria, clearly with the aim of achieving concrete
econometric verifiability.

Brussels, 11 December 2003.

8.2.1.
The Committee welcomes the Commission’s efforts
to make the wording of the criteria for the applicability of
Article 81(3) EC clear. However, it is doubtful whether all the
exemption rulings of the past would live up to this new,
detailed, quantitative catalogue of requirements. In the opinion
of the Committee, the reason for this is not that the quality of
the Commission’s past decisions was poor; rather, it lies in the
fundamental methodological problem — also mentioned in
the guidelines — of quantifying efficiency gains. Even in
large companies with highly detailed accounting systems,
investment decisions are not based purely on detailed forecasts,
but also — indeed primarily — on the basis of ‘strategic
vision’, as forecast models cannot always predict exactly how
all
interact with
market parameters.

the relevant microeconomic factors will

The Committee is not calling into question the
8.2.2.
Commission’s basic economic approach, but would call upon
the Commission, when making judgements according to
Treaty Article 81(3), to take into consideration the ‘good
business sense’ of a (real or hypothetical) entrepreneur in the
relevant market. Article 81(3) should not apply only when it
is almost certain that there is a net benefit to the consumer,
but should come into play whenever the Commission can be
sufficiently certain that the intention of the parties to an
agreement is not to eliminate the competition, but rather to
improve their own competitiveness. Only in this way can it be
ensured that desirable, innovative competition does not fall
foul of the antitrust rule of Article 81 of the EC Treaty.

The President

of the European Economic and Social Committee

Roger BRIESCH