Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (Text with EEA relevance)
Date: 2004-04-07
Institutions: European Commission
Subjects: access to EU information, competition law, complaint to the Commission, inter-company agreement

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COMMISSION REGULATION (EC) No 773/2004

of 7 April 2004

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

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to the Treaty establishing the European Com-
munity,

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 compe-
tition laid down in Articles 81 and 82 of the Treaty (1), and in
particular Article 33 thereof,

After consulting the Advisory Committee on Restrictive Prac-
tices and Dominant Positions,

Whereas:

(1)

(2)

(3)

Regulation (EC) No 1/2003 empowers the Commission
to regulate certain aspects of proceedings for the applica-
tion of Articles 81 and 82 of the Treaty. It is necessary
to lay down rules concerning the initiation of proceed-
ings by the Commission as well as the handling of
complaints and the hearing of the parties concerned.

According to Regulation (EC) No 1/2003, national
courts are under an obligation to avoid taking decisions
which could run counter to decisions envisaged by the
Commission in the same case. According to Article
11(6) of that Regulation, national competition authori-
ties are relieved from their competence once the
Commission has initiated proceedings for the adoption
of a decision under Chapter III of Regulation (EC) No 1/
2003. In this context,
it is important that courts and
competition authorities of the Member States are aware
of the initiation of proceedings by the Commission. The
Commission should therefore be able to make public its
decisions to initiate proceedings.

Before taking oral statements from natural or legal
persons who consent to be interviewed, the Commission
should inform those persons of the legal basis of the
interview and its voluntary nature. The persons inter-
viewed should also be informed of the purpose of the
interview and of any record which may be made. In
order to enhance the accuracy of the statements, the
persons interviewed should also be given an opportunity
to correct the statements recorded. Where information
gathered from oral statements is exchanged pursuant to
Article 12 of Regulation (EC) No 1/2003, that informa-
tion should only be used in evidence to impose sanc-
tions on natural persons where the conditions set out in
that Article are fulfilled.

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC)

No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(5)

(6)

(7)

(8)

(9)

necessary

Pursuant to Article 23(1)(d) of Regulation (EC) No 1/
2003 fines may be imposed on undertakings and asso-
ciations of undertakings where they fail to rectify within
the time limit fixed by the Commission an incorrect,
incomplete or misleading answer given by a member of
their staff to questions in the course of inspections. It is
therefore
undertaking
concerned with a record of any explanations given and
to establish a procedure enabling it to add any rectifica-
tion, amendment or supplement
to the explanations
given by the member of staff who is not or was not
authorised to provide explanations on behalf of
the
undertaking. The explanations given by a member of
staff should remain in the Commission file as recorded
during the inspection.

provide

the

to

Complaints are an essential source of information for
detecting infringements of competition rules. It is impor-
tant to define clear and efficient procedures for handling
complaints lodged with the Commission.

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

In order to assist complainants in submitting the neces-
sary 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 as referred to in Article 7 of Regulation
(EC) No 1/2003.

Natural or legal persons having chosen to lodge a
complaint should be given the possibility to be asso-
ciated closely with the proceedings initiated by the
Commission with a view to finding an infringement.
However, they should not have access to business secrets
or other confidential
information belonging to other
parties involved in the proceedings.

are

insufficient grounds

Complainants should be granted the opportunity of
expressing their views if the Commission considers that
there
acting on the
complaint. 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.

for

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(10)

In order to respect the rights of defence of undertakings,
the Commission should give the parties concerned the
right to be heard before it takes a decision.

(17)

(11)

Provision should also be made for
the hearing of
persons who have not submitted a complaint as referred
to in Article 7 of Regulation (EC) No 1/2003 and who
are not parties to whom a statement of objections has
been addressed but who can nevertheless show a suffi-
cient interest. Consumer associations that apply to be
heard should generally be regarded as having a sufficient
interest, where the proceedings concern products or
services used by the end-consumer or products or
services that constitute a direct input into such products
or services. Where it considers this to be useful for the
proceedings,
the Commission should also be able to
invite other persons to express their views in writing
and to attend the oral hearing of the parties to whom a
statement of objections has been addressed. Where
appropriate, it should also be able to invite such persons
to express their views at that oral hearing.

(12)

To improve the effectiveness of oral hearings,
the
Hearing Officer should have the power to allow the
parties concerned, complainants, other persons invited
to the hearing, the Commission services and the authori-
ties of the Member States to ask questions during the
hearing.

(13) When granting access to the file, the Commission should
ensure the protection of business secrets and other confi-
dential information. The category of ‘other confidential
includes information other than business
information’
secrets, which may be considered as confidential, insofar
as its disclosure would significantly harm an undertaking
or person. The Commission should be able to request
undertakings or associations of undertakings that submit
or have submitted documents or statements to identify
confidential information.

(14) Where business secrets or other confidential information
are necessary to prove an infringement, the Commission
should assess for each individual document whether the
need to disclose is greater than the harm which might
result from disclosure.

(15)

In the interest of legal certainty, a minimum time-limit
for the various submissions provided for in this Regu-
lation should be laid down.

This Regulation aligns the procedural rules in the trans-
port 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, (EEC) No 4056/86 and
(EEC) No 3975/87 applying the rules on competition to
the transport sector (2) should therefore be repealed.

(18)

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 other details of applications and notifica-
tions provided for in Council Regulation No 17 (3)
should therefore be repealed,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SCOPE

Article 1

Subject-matter and scope

regulation applies

This
to proceedings conducted by the
Commission for the application of Articles 81 and 82 of the
Treaty.

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 Chapter III of Regu-
lation (EC) No 1/2003 at any point in time, but no later than
the date on which it issues a preliminary assessment as referred
to in Article 9(1) of that Regulation or a statement of objec-
tions or the date on which a notice pursuant to Article 27(4) of
that Regulation is published, whichever is the earlier.

(16)

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.

2.
The Commission may make public the initiation of
proceedings, in any appropriate way. Before doing so, it shall
inform the parties concerned.

(1) OJ L 354, 30.12.1998, p. 18.

(2) OJ L 354, 30.12.1998, p. 22.
(3) OJ L 377, 31.12.1994, p. 28.

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The Commission may exercise its powers of investigation
3.
pursuant to Chapter V of Regulation (EC) No 1/2003 before
initiating proceedings.

The Commission may reject a complaint pursuant

4.
Article 7 of Regulation (EC) No 1/2003 without
proceedings.

to
initiating

CHAPTER IV

HANDLING OF COMPLAINTS

Article 5

Admissibility of complaints

CHAPTER III

INVESTIGATIONS BY THE COMMISSION

Article 3

Power to take statements

1. Where the Commission interviews a person with his
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, and recall its voluntary
nature. It shall also inform the person interviewed of its inten-
tion to make a record of the interview.

The interview may be conducted by any means including

2.
by telephone or electronic means.

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

Such complaints shall contain the information required by
in the Annex. The Commission may
Form C, as set out
dispense with this obligation as regards part of the information,
including documents, required by Form C.

2.
Three paper copies as well as, if possible, an electronic
copy of the complaint shall be submitted to the Commission.
The complainant shall also submit a non-confidential version
of the complaint, if confidentiality is claimed for any part of
the complaint.

Complaints shall be submitted in one of

3.
languages of the Community.

the official

Article 6

Participation of complainants in proceedings

3.
The Commission may record the statements made by the
persons interviewed in any form. A copy of any recording shall
be made available to the person interviewed for approval.
Where necessary, the Commission shall set a time-limit within
which the person interviewed may communicate to it any
correction to be made to the statement.

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.

Article 4

Oral questions during inspections

2.
The Commission may, where appropriate, afford complai-
nants the opportunity of expressing their views at the oral
hearing of the parties to which a statement of objections has
in their written
been issued,
comments.

if complainants

so request

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 explana-
tions, 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.

In cases where a member of staff of an undertaking or of
3.
an association of undertakings who is not or was not
authorised by the undertaking or by the association of under-
takings to provide explanations on behalf of the undertaking or
association of undertakings has been asked for explanations,
the Commission shall set a time-limit within which the under-
taking or the association of undertakings may communicate to
the Commission any rectification, amendment or supplement
to the explanations given by such member of staff. The rectifi-
cation, amendment or supplement shall be added to the expla-
nations as recorded pursuant to paragraph 1.

Article 7

Rejection of complaints

1. Where the Commission considers that on the basis of the
information in its possession there are insufficient grounds for
acting on a 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 the expiry of that time-limit.

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.

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Article 8

Access to information

Article 11

Right to be heard

1. Where the Commission has informed the complainant of
its intention to reject a complaint pursuant to Article 7(1) the
complainant may request access to the documents on which
the Commission bases its provisional assessment. For this
purpose, the complainant may however not have access to
business secrets and other confidential information belonging
to other parties involved in the proceedings.

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 purposes of judicial or administrative
proceedings for the application of those Treaty provisions.

Article 9

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

Where the Commission rejects a complaint pursuant to Article
13 of Regulation (EC) No 1/2003, it shall inform the complai-
nant without delay of the national competition authority which
is dealing or has already dealt with the case.

CHAPTER V

EXERCISE OF THE RIGHT TO BE HEARD

Article 10

Statement of objections and reply

The Commission shall

inform the parties concerned in
1.
writing of the objections raised against them. The statement of
objections shall be notified to each of them.

2.
The Commission shall, when notifying the statement of
objections to the parties concerned, set a time-limit within
which these parties may inform it in writing of their views. The
Commission shall not be obliged to take into account written
submissions received after the expiry of that time-limit.

The parties may, in their written submissions, set out all
3.
facts known to them which are relevant
to their defence
against the objections raised by the Commission. They shall
attach any relevant documents as proof of the facts set out.
They shall provide a paper original as well as an electronic
copy or, where they do not provide an electronic copy, 28
paper copies of
the documents
attached to it. They may propose that the Commission hear
persons who may corroborate the facts set out in their submis-
sion.

submission and of

their

The Commission shall give the parties to whom it has
1.
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 parties referred to in para-
graph 1 have been able to comment.

Article 12

Right to an oral hearing

The Commission shall give the parties
to whom it has
addressed a statement of objections the opportunity to develop
their arguments at an oral hearing, if they so request in their
written submissions.

Article 13

Hearing of other persons

1.
If natural or legal persons other than those referred to in
Articles 5 and 11 apply to be heard and show a sufficient
interest, the Commission shall inform them in writing of the
nature and subject matter of the procedure and shall set a time-
limit within which they may make known their views in
writing.

2.
The Commission may, where appropriate, invite persons
referred to in paragraph 1 to develop their arguments at the
oral hearing of the parties to whom a statement of objections
has been addressed, if the persons referred to in paragraph 1 so
request in their written comments.

3.
The Commission may invite any other person to express
its views in writing and to attend the oral hearing of the parties
to whom a statement of objections has been addressed. The
Commission may also invite such persons to express their
views at that oral hearing.

Article 14

Conduct of oral hearings

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.

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.

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Persons invited to attend shall either appear in person or
4.
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 undertak-
ings in the protection of their business secrets and other confi-
dential information.

7.
The Hearing Officer may allow the parties to whom a
statement of objections has been addressed, the complainants,
other persons invited to the hearing, the Commission services
and the authorities of the Member States to ask questions
during the hearing.

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 parties 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 parties to whom it has addressed a statement of
objections. Access shall be granted after the notification of the
statement of objections.

2.
The right of access to the file shall not extend to business
secrets, other confidential information and internal documents
of the Commission or of the competition authorities of the
Member States. The right of access to the file shall also 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.
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.
Documents obtained through access to the file pursuant
to this Article shall only be used for the purposes of judicial or
administrative proceedings for the application of Articles 81
and 82 of the Treaty.

Article 16

Identification and protection of confidential information

Information, including documents, shall not be communi-
1.
cated or made accessible by the Commission in so far as it
contains business secrets or other confidential information of
any person.

Any person which makes known its views pursuant to
2.
Article 6(1), Article 7(1), Article 10(2) and Article 13(1) and (3)
or subsequently submits further information to the Commis-
sion in the course of the same procedure, shall clearly identify
any material which it considers to be confidential, giving
reasons, and provide a separate non-confidential version by the
date set by the Commission for making its views known.

3. Without prejudice to paragraph 2 of this Article, the
Commission may require undertakings and associations of
undertakings which produce 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 likewise require undertakings or associations of undertak-
ings 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.

The Commission may set a time-limit within which the under-
takings and associations of undertakings are to:

(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 infor-

mation.

4.
If undertakings or associations of undertakings fail to
comply with paragraphs 2 and 3, the Commission may assume
that the documents or statements concerned do not contain
confidential information.

CHAPTER VII

GENERAL AND FINAL PROVISIONS

Article 17

Time-limits

1.
In setting the time-limits provided for in Article 3(3),
Article 4(3), Article 6(1), Article 7(1), Article 10(2) and Article
16(3), the Commission shall have regard both to the time
required for preparation of the submission and to the urgency
of the case.

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The time-limits referred to in Article 6(1), Article 7(1)
2.
and Article 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, the time-
limit may be shortened to one week.

The time-limits referred to in Article 3(3), Article 4(3)

3.
and Article 16(3) shall be at least two weeks.

4. Where appropriate and upon reasoned request made
before the expiry of the original time-limit, time-limits may be
extended.

References to the repealed regulations shall be construed as
references to this regulation.

Article 19

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 18

Repeals

Article 20

Entry into force

Regulations (EC) No 2842/98, (EC) No 2843/98 and (EC) No
3385/94 are repealed.

This Regulation shall enter into force on 1 May 2004.

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

Done at Brussels, 7 April 2004.

For the Commission

Mario MONTI

Member of the Commission

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ANNEX

FORM C

COMPLAINT PURSUANT TO ARTICLE 7 OF REGULATION (EC) No 1/2003

I. Information regarding the complainant and the undertaking(s) or association of undertakings giving rise
to the complaint

1. Give full details on the identity of the legal or natural person submitting the complaint. Where the complainant is
an undertaking, identify the corporate group to which it belongs and provide a concise overview of the nature and
scope of its business activities. Provide a contact person (with telephone number, postal and e-mail-address) from
which supplementary explanations can be obtained.

2. Identify the undertaking(s) or association of undertakings whose conduct the complaint relates to,

including,
where applicable, all available information on the corporate group to which the undertaking(s) complained of
belong and the nature and scope of the business activities pursued by them. Indicate the position of the complai-
nant vis-à-vis the undertaking(s) or association of undertakings complained of (e.g. customer, competitor).

II. Details of the alleged infringement and evidence

3. Set out in detail the facts from which, in your opinion, it appears that there exists an infringement of Article 81
or 82 of the Treaty and/or Article 53 or 54 of the EEA agreement. Indicate in particular the nature of the products
(goods or services) affected by the alleged infringements and explain, where necessary, the commercial relation-
ships concerning these products. Provide all available details on the agreements or practices of the undertakings or
associations of undertakings to which this complaint relates. Indicate, to the extent possible, the relative market
positions of the undertakings concerned by the complaint.

4. Submit all documentation in your possession relating to or directly connected with the facts set out in the
complaint (for example, texts of agreements, minutes of negotiations or meetings, terms of transactions, business
documents, circulars, correspondence, notes of telephone conversations…). State the names and address of the
persons able to testify to the facts set out in the complaint, and in particular of persons affected by the alleged
infringement. Submit statistics or other data in your possession which relate to the facts set out, in particular
where they show developments in the marketplace (for example information relating to prices and price trends,
barriers to entry to the market for new suppliers etc.).

5. Set out your view about the geographical scope of the alleged infringement and explain, where that is not
obvious, to what extent trade between Member States or between the Community and one or more EFTA States
that are contracting parties of the EEA Agreement may be affected by the conduct complained of.

III. Finding sought from the Commission and legitimate interest

6. Explain what finding or action you are seeking as a result of proceedings brought by the Commission.

7. Set out the grounds on which you claim a legitimate interest as complainant pursuant to Article 7 of Regulation
(EC) No 1/2003. State in particular how the conduct complained of affects you and explain how, in your view,
intervention by the Commission would be liable to remedy the alleged grievance.

IV. Proceedings before national competition authorities or national courts

8. Provide full information about whether you have approached, concerning the same or closely related subject-
matters, any other competition authority and/or whether a lawsuit has been brought before a national court. If so,
provide full details about the administrative or judicial authority contacted and your submissions to such
authority.

Declaration that the information given in this form and in the Annexes thereto is given entirely in good faith.

Date and signature.