Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty (Text with EEA relevance)
Date: 2004-04-27
Institutions: European Commission
Subjects: competition law, complaint to the Commission

27.4.2004

EN

Official Journal of the European Union

C 101/65

Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of
the EC Treaty

(2004/C 101/05)

(Text with EEA relevance)

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Regulation 1/2003 (1) establishes a system of parallel
competence for the application of Articles 81 and 82 of
the EC Treaty by the Commission and the Member States'
competition authorities
and courts. The Regulation
recognises in particular the complementary functions of
the Commission and Member States' competition auth-
orities acting as public enforcers and the Member States'
courts that rule on private lawsuits in order to safeguard
the rights of individuals deriving from Articles 81 and
82 (2).

2. Under Regulation 1/2003, the public enforcers may focus
their action on the investigation of serious infringements
of Articles 81 and 82 which are often difficult to detect.
For
from
information supplied by undertakings and by consumers
in the market.

enforcement

activity,

benefit

their

they

3. The Commission therefore wishes to encourage citizens
and undertakings to address themselves to the public
enforcers to inform them about suspected infringements
of the competition rules. At the level of the Commission,
there are two ways to do this, one is by lodging a
complaint pursuant to Article 7(2) of Regulation 1/2003.
Under Articles 5 to 9 of Regulation 773/2004 (3), such
complaints must fulfil certain requirements.

4. The other way is the provision of market information that
does not have to comply with the requirements
for
complaints pursuant
to Article 7(2) of Regulation
1/2003. For this purpose, the Commission has created a
special website to collect information from citizens and
undertakings and their associations who wish to inform
the Commission about suspected infringements of Articles
81 and 82. Such information can be the starting point for
an investigation by the Commission (4). Information about
suspected infringements can be supplied to the following
address:

http://europa.eu.int/dgcomp/info-on-anti-competitive-
practices

or to:

Commission européenne/Europese Commissie
Competition DG
B-1049 Bruxelles/Brussel

5. Without prejudice to the interpretation of Regulation
1/2003 and of Commission Regulation 773/2004 by the

Community Courts, the present Notice intends to provide
guidance to citizens and undertakings that are seeking
the competition
relief
rules. The Notice contains two main parts:

from suspected infringements of

— Part

II gives indications about

the choice between
complaining to the Commission or bringing a lawsuit
before a national court. Moreover, it recalls the prin-
ciples
related to the work-sharing between the
Commission and the national competition authorities
in the enforcement system established by Regulation
1/2003 that are explained in the Notice on coop-
eration within the network of competition auth-
orities (5).

— Part III explains the procedure for the treatment of
to Article 7(2) of Regulation

complaints pursuant
1/2003 by the Commission.

6. This Notice does not address the following situations:

— complaints

lodged by Member States pursuant

to

Article 7(2) of Regulation 1/2003,

— complaints that ask the Commission to take action
against a Member State pursuant to Article 86(3) in
conjunction with Articles 81 or 82 of the Treaty,

— complaints relating to Article 87 of the Treaty on state

aids,

— complaints relating to infringements by Member States
that the Commission may pursue in the framework of
Article 226 of the Treaty (6).

II. DIFFERENT POSSIBILITIES FOR LODGING COMPLAINTS
ABOUT SUSPECTED INFRINGEMENTS OF ARTICLES 81 OR 82

A. COMPLAINTS IN THE NEW ENFORCEMENT SYSTEM ESTAB-
LISHED BY REGULATION 1/2003

7. Depending on the nature of the complaint, a complainant
may bring his complaint either to a national court or to a
competition authority that acts as public enforcer. The
present chapter of this Notice intends to help potential
complainants to make an informed choice about whether
to address themselves to the Commission, to one of the
Member States' competition authorities or to a national
court.

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8. While national courts are called upon to safeguard the
rights of individuals and are thus bound to rule on cases
brought before them, public enforcers cannot investigate
all complaints, but must set priorities in their treatment of
cases. The Court of Justice has held that the Commission,
entrusted by Article 85(1) of the EC Treaty with the task of
ensuring application of the principles laid down in Articles
81 and 82 of the Treaty, is responsible for defining and
implementing the orientation of Community competition
policy and that, in order to perform that task effectively, it
is entitled to give differing degrees of priority to the
complaints brought before it (7).

9. Regulation 1/2003 empowers Member States' courts and
Member States' competition authorities to apply Articles
81 and 82 in their entirety alongside the Commission.
Regulation 1/2003 pursues as one principal objective
that Member States' courts and competition authorities
should participate
enforcement of
Articles 81 and 82 (8).

effectively in the

13. National courts can decide upon the nullity or validity of
contracts and only national courts can grant damages to
an individual in case of an infringement of Articles 81 and
82. Under the case law of the Court of Justice, any indi-
vidual can claim damages for loss caused to him by a
contract or by conduct which restricts or distorts
in order to ensure the full effectiveness of
competition,
the Community competition rules. Such actions
for
damages before the national courts can make a significant
contribution to the maintenance of effective competition
in the Community as they discourage undertakings from
concluding
or
practices (12).

agreements

restrictive

applying

or

14. Regulation 1/2003 takes express account of the fact that
national courts have an essential part to play in applying
the EC competition rules (13). By extending the power to
apply Article 81(3) to national courts it removes the possi-
bility for undertakings to delay national court proceedings
by a notification to the Commission and thus eliminates
an obstacle for private litigation that existed under Regu-
lation No 17 (14).

10. Moreover, Article 3 of Regulation 1/2003 provides that
Member States' courts and competition authorities have
to apply Articles 81 and 82 to all cases of agreements
or conduct that are capable of affecting trade between
Member States
to which they apply their national
competition laws. In addition, Articles 11 and 15 of the
Regulation create a range of mechanisms by which
competition authorities
and
Member
cooperate with the Commission in the enforcement of
Articles 81 and 82.

States'

courts

15. Without prejudice to the right or obligation of national
courts to address a preliminary question to the Court of
Justice in accordance with Article 234 EC, Article 15(1) of
Regulation 1/2003 provides expressly that national courts
information from the
may
or
facilitating the
Commission. This provision aims
application of Articles 81 and 82 by national courts (15).

opinions

ask

for

at

11. In this new legislative framework, the Commission intends
to refocus its enforcement resources along the following
lines:

— enforce the EC competition rules in cases for which it
is well placed to act (9), concentrating its resources on
the most serious infringements (10);

— handle cases in relation to which the Commission
view to define Community
coherent
ensure
and/or

should act with a
competition
policy
application of Articles 81 or 82.

to

B. THE COMPLEMENTARY ROLES OF PRIVATE AND PUBLIC
ENFORCEMENT

12. It has been consistently held by the Community Courts
that national courts are called upon to safeguard the
rights of
individuals created by the direct effect of
Articles 81(1) and 82 (11).

16. Action before national courts has the following advantages

for complainants:

— National courts may award damages for loss suffered as

a result of an infringement of Article 81 or 82.

— National courts may rule on claims for payment or
contractual obligations based on an agreement
that
they examine under Article 81.

— It is for the national courts to apply the civil sanction
of nullity of Article 81(2) in contractual relationships
between individuals (16). They can in particular assess,
in the light of the applicable national law, the scope
and consequences of the nullity of certain contractual
provisions under Article 81(2), with particular regard
to all the other matters covered by the agreement (17).

— National courts are usually better placed than the

Commission to adopt interim measures (18).

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— Before national courts, it is possible to combine a claim
under Community competition law with other claims
under national law.

22. The Notice on cooperation within the Network of

Competition Authorities states in particular (21):

— Courts normally have the power to award legal costs to
the successful applicant. This is never possible in an
administrative procedure before the Commission.

17. The fact that a complainant can secure the protection of
his rights by an action before a national court,
is an
important element that the Commission may take into
account
the Community interest
in its examination of
for investigating a complaint (19).

18. The Commission holds the view that the new enforcement
system established by Regulation 1/2003 strengthens the
possibilities for complainants to seek and obtain effective
relief before national courts.

C. WORK-SHARING BETWEEN THE PUBLIC ENFORCERS IN THE
EUROPEAN COMMUNITY

19. Regulation 1/2003 creates a system of parallel competence
for the application of Articles 81 and 82 by empowering
Member States' competition authorities to apply Articles
81 and 82 in their entirety (Article 5). Decentralised
enforcement by Member States' competition authorities is
further
to exchange
information (Article 12) and to provide each other
assistance with investigations (Article 22).

encouraged by

the possibility

20. The Regulation does not

regulate

the work-sharing
States'
between the Commission and the Member
leaves the division of case
competition authorities but
the Commission and the
work to the cooperation of
Member
the
competition
European Competition Network (ECN). The Regulation
pursues the objective of ensuring effective enforcement
of Articles 81 and 82 through a flexible division of case
work between the public enforcers in the Community.

authorities

States'

inside

21. Orientations

for

sharing

between

the work

the
Commission and the Member States' competition auth-
orities are laid down in a separate Notice (20). The
guidance contained in that Notice, which concerns the
relations between the public enforcers, will be of interest
to complainants as it permits them to address a complaint
to the authority most likely to be well placed to deal with
their case.

‘An authority can be considered to be well placed to
deal with a case if
the following three cumulative
conditions are met:

— the agreement or practice has substantial direct
actual or
effects on competition
within its territory, is implemented within or orig-
inates from its territory;

foreseeable

— the authority is able effectively to bring to an end
the entire infringement, i.e. it can adopt a cease-and
desist order, the effect of which will be sufficient to
bring an end to the infringement and it can, where
appropriate, sanction the infringement adequately;

— it can gather, possibly with the assistance of other
the evidence required to prove the

authorities,
infringement.

The above criteria indicate that a material link between
the infringement and the territory of a Member State
must exist in order for that Member State's competition
authority to be considered well placed.
It can be
expected that in most cases the authorities of those
substantially
Member States where
affected by an infringement will be well placed
provided they are capable of effectively bringing the
infringement
single or
parallel action unless the Commission is better placed
to act (see below [. . .]).

to an end through either

competition is

It follows that a single NCA is usually well placed to
deal with agreements or practices that substantially
affect competition mainly within its territory [. . .].

Furthermore single action of an NCA might also be
appropriate where, although more than one NCA can
be regarded as well placed, the action of a single NCA is
sufficient to bring the entire infringement to an end
[. . .].

Parallel action by two or three NCAs may be appro-
priate where an agreement or practice has substantial
effects on competition mainly in their respective terri-
tories and the action of only one NCA would not be
sufficient to bring the entire infringement to an end
and/or to sanction it adequately [. . .].

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The authorities dealing with a case in parallel action
will endeavour
to coordinate their action to the
extent possible. To that effect, they may find it useful
to designate one of them as a lead authority and to
for
delegate tasks
example the coordination of
investigative measures,
while each authority remains responsible for conducting
its own proceedings.

to the lead authority such as

The Commission is particularly well placed if one or
several agreement(s) or practice(s),
including networks
of similar agreements or practices, have effects on
competition in more than three Member States (cross-
border markets covering more than three Member
States or several national markets) [. . .].

it

Moreover, the Commission is particularly well placed to
is closely linked to other
deal with a case if
Community provisions which may be exclusively or
the
more effectively applied by the Commission,
requires
Community
a
Commission
Community
to
competition policy when a new competition issue
arises or to ensure effective enforcement.’.

the
develop

adoption of

decision

interest

if

23. Within the European Competition Network,

that

are being

investigated

information
on cases
a
following
complaint will be made available to the other members
of the network before or without delay after commencing
the first formal investigative measure (22). Where the same
complaint has been lodged with several authorities or
where a case has not been lodged with an authority that
is well placed, the members of the network will endeavour
to determine within an indicative time-limit of two months
which authority or authorities should be in charge of the
case.

24. Complainants themselves have an important role to play in
further reducing the potential need for reallocation of a
case originating from their complaint by referring to the
orientations on work sharing in the network set out in the
present chapter when deciding on where to lodge their
complaint. If nonetheless a case is reallocated within the
network,
the
complainant(s) are informed as soon as possible by the
competition authorities involved (23).

undertakings

concerned

and

the

25. The Commission may reject a complaint in accordance
with Article 13 of Regulation 1/2003, on the grounds
that a Member State competition authority is dealing or
has dealt with the case. When doing so, the Commission
in accordance with Article 9 of Regulation
must,

773/2004, inform the complainant without delay of the
national competition authority which is dealing or has
already dealt with the case.

III. THE COMMISSION'S HANDLING OF COMPLAINTS
PURSUANT TO ARTICLE 7(2) OF REGULATION 1/2003

A. GENERAL

26. According to Article 7(2) of Regulation 1/2003 natural or
legal persons that can show a legitimate interest (24) are
entitled to lodge a complaint to ask the Commission to
find an infringement of Articles 81 and 82 EC and to
require that the infringement be brought to an end in
accordance with Article 7(1) of Regulation 1/2003. The
present part of
this Notice explains the requirements
applicable to complaints based on Article 7(2) of Regu-
lation 1/2003,
and the procedure
assessment
followed by the Commission.

their

27. The Commission, unlike civil courts, whose task is to
safeguard the individual rights of private persons,
is an
in the public
administrative authority that must act
interest.
the Commission's
task as public enforcer that it has a margin of discretion
to set priorities in its enforcement activity (25).

is an inherent

feature of

It

28. The Commission is entitled to give different degrees of
priority to complaints made to it and may refer to the
Community interest presented by a case as a criterion of
priority (26). The Commission may reject a complaint when
it considers that the case does not display a sufficient
investigation.
Community
to justify
the
Where
complainant
the
Commission (27) without prejudice to Article 7(3) of Regu-
lation 773/2004.

interest
the Commission
entitled

further
a
decision

complaint,
of

rejects
a
to

is

B. MAKING A COMPLAINT PURSUANT TO ARTICLE 7(2) OF
REGULATION 1/2003

(a) Complaint form

29. A complaint pursuant to Article 7(2) of Regulation 1/2003
can only be made about an alleged infringement of
Articles 81 or 82 with a view to the Commission taking
action under Article 7(1) of Regulation 1/2003. A
complaint under Article 7(2) of Regulation 1/2003 has
to comply with Form C mentioned in Article 5(1) of
Regulation 773/2004 and annexed to that Regulation.

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30. Form C is

available

if possible, an electronic copy.

at http://europa.eu.int/dgcomp/
complaints-form and is also annexed to this Notice. The
complaint must be submitted in three paper copies as well
as,
the
complainant must provide a non-confidential version of
the complaint (Article 5(2) of Regulation 773/2004). Elec-
tronic transmission to the Commission is possible via the
website indicated, the paper copies should be sent to the
following address:

In addition,

Commission européenne/Europese Commissie
Competition DG
B-1049 Bruxelles/Brussel

31. Form C requires complainants to submit comprehensive
information in relation to their complaint. They should
also provide copies of relevant supporting documentation
reasonably available to them and, to the extent possible,
provide indications as to where relevant information and
documents that are unavailable to them could be obtained
by the Commission. In particular cases, the Commission
may dispense with the obligation to provide information
in relation to part of the information required by Form C
(Article 5(1) of Regulation 773/2004). The Commission
holds the view that this possibility can in particular play
a role to facilitate complaints by consumer associations
where they, in the context of an otherwise substantiated
to specific pieces of
complaint, do not have access
information from the
the undertakings
complained of.

sphere of

32. Correspondence to the Commission that does not comply
with the requirements of Article 5 of Regulation 773/2004
and therefore does not constitute a complaint within the
meaning of Article 7(2) of Regulation 1/2003 will be
considered by the Commission as general
information
that, where it
is useful, may lead to an own-initiative
investigation (cf. point 4 above).

(b) Legitimate interest

33. The status of formal complainant under Article 7(2) of
Regulation 1/2003 is
reserved to legal and natural
persons who can show a legitimate interest (28). Member
States are deemed to have a legitimate interest
for all
complaints they choose to lodge.

34. In the past practice of the Commission, the condition of
legitimate interest was not often a matter of doubt as most
complainants were in a position of being directly and
adversely affected by the alleged infringement. However,
there are situations where the condition of a ‘legitimate
interest’
to
conclude that it is fulfilled. Useful guidance can best be
provided by a non-exhaustive set of examples.

in Article 7(2)

further analysis

requires

35. The Court of First Instance has held that an association of
undertakings may claim a legitimate interest in lodging a

relevant market, by the

regarding conduct concerning its members,
complaint
even if it is not directly concerned, as an undertaking
operating in the
conduct
complained of, provided that,
is entitled to
represent the interests of its members and secondly, the
conduct complained of is liable to adversely affect the
interests of its members (29). Conversely, the Commission
has been found to be entitled not to pursue the complaint
of an association of undertakings whose members were
transactions
not
complained of (30).

type of business

involved in the

first,

it

36. From this case law, it can be inferred that undertakings
(themselves or through associations that are entitled to
represent their interests) can claim a legitimate interest
where they are operating in the relevant market or
where the conduct complained of
is liable to directly
and adversely affect their interests. This confirms the estab-
lished practice of the Commission which has accepted that
a legitimate interest can, for instance, be claimed by the
parties to the agreement or practice which is the subject of
the complaint, by competitors whose interests have
allegedly been damaged by the behaviour complained of
or by undertakings excluded from a distribution system.

37. Consumer associations can equally lodge complaints with
the Commission (31). The Commission moreover holds the
view that individual consumers whose economic interests
are directly and adversely affected insofar as they are the
buyers of goods or services that are the object of an
infringement can be in a position to show a legitimate
interest (32).

38. However,

consider

the Commission does not

a
legitimate interest within the meaning of Article 7(2) the
interest of persons or organisations that wish to come
considerations without
interest
forward on general
showing that
they or their members are liable to be
directly and adversely affected by the infringement (pro
bono publico).

as

39. Local or regional public authorities may be able to show a
legitimate interest in their capacity as buyers or users of
goods or services affected by the conduct complained of.
they cannot be considered as showing a
Conversely,
legitimate interest within the meaning of Article 7(2) of
Regulation 1/2003 to the extent that they bring to the
attention of
the Commission alleged infringements pro
bono publico.

to

40. Complainants have to demonstrate their legitimate interest.
Where a natural or legal person lodging a complaint is
unable
the
a
Commission is entitled, without prejudice to its right to
initiate proceedings of its own initiative, not to pursue the
complaint. The Commission may ascertain whether this
condition is met at any stage of the investigation (33).

demonstrate

legitimate

interest,

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C. ASSESSMENT OF COMPLAINTS

(a) Community interest

41. Under the settled case law of the Community Courts, the
Commission is not required to conduct an investigation in
each case (34) or, a fortiori, to take a decision within the
meaning of Article 249 EC on the
existence or
non-existence of an infringement of Articles 81 or
82 (35), but is entitled to give differing degrees of priority
to the complaints brought before it and refer to the
Community interest in order to determine the degree of
it
priority to be applied to the various complaints
receives (36). The position is different only
the
complaint falls within the exclusive competence of the
Commission (37).

if

42. The Commission must however examine carefully the
factual and legal elements brought to its attention by the
complainant in order to assess the Community interest in
further investigation of a case (38).

43. The assessment of the Community interest raised by a
complaint depends on the circumstances of each individual
case. Accordingly, the number of criteria of assessment to
which the Commission may refer is not limited, nor is the
Commission required to have recourse exclusively to
certain criteria. As the factual and legal circumstances
may differ considerably from case to case, it is permissible
to apply new criteria which had not before been
considered (39). Where appropriate, the Commission may
give priority to a single criterion for assessing the
Community interest (40).

44. Among the criteria which have been held relevant in the
case law for the assessment of the Community interest in
the (further) investigation of a case are the following:

— The Commission can reject a complaint on the ground
that the complainant can bring an action to assert its
rights before national courts (41).

— The Commission may not regard certain situations as
excluded in principle from its purview under the task
entrusted to it by the Treaty but is required to assess in
each case how serious the alleged infringements are
consequences are. This
and how persistent
take into account
means in particular that
it must
the duration and the extent of
the infringements
complained of and their effect on the competition
situation in the Community (42).

their

— The Commission may have to balance the significance
of the alleged infringement as regards the functioning
of the common market, the probability of establishing

the existence of the infringement and the scope of the
investigation required in order to fulfil
its task of
ensuring that Articles 81 and 82 of the Treaty are
complied with (43).

— While the Commission's discretion does not depend on
how advanced the investigation of a case is, the stage
of the investigation forms part of the circumstances of
the case which the Commission may have to take into
consideration (44).

— The Commission may decide that it is not appropriate
to investigate a complaint where the practices
in
question have ceased. However, for this purpose, the
Commission will have to ascertain whether anti-
competitive effects persist and if
the seriousness of
the infringements or the persistence of their effects
does not give the complaint a Community interest (45).

— The Commission may also decide that it is not appro-
priate to investigate a complaint where the under-
takings concerned agree to change their conduct in
such a way that
there is no
longer a sufficient Community interest to intervene (46).

it can consider that

the Commission may reject

45. Where it forms the view that a case does not display
investi-
sufficient Community interest to justify (further)
gation,
the complaint on
that ground. Such a decision can be taken either before
commencing an investigation or after taking investigative
measures (47). However, the Commission is not obliged to
set aside a complaint for lack of Community interest (48).

(b) Assessment under Articles 81 and 82

46. The examination of a complaint under Articles 81 and 82
involves two aspects, one relating to the facts to be estab-
lished to prove an infringement of Articles 81 or 82 and
the other relating to the legal assessment of the conduct
complained of.

47. Where

the

complying with

complaint, while

to reject a complaint on the ground that

the
requirements of Article 5 of Regulation 773/2004 and
Form C, does not sufficiently substantiate the allegations
it may be rejected on that ground (49). In
put forward,
the
order
the EC
conduct
competition rules or does not fall within their scope of
application, the Commission is not obliged to take into
account circumstances that have not been brought to its
attention by the complainant and that it could only have
uncovered by the investigation of the case (50).

complained of does not

infringe

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48. The criteria for the legal assessment of agreements or
practices under Articles 81 and 82 cannot be dealt with
exhaustively in the present Notice. However, potential
to the extensive guidance
complainants
available from the Commission (51),
in addition to other
sources and in particular the case law of the Community
Courts and the case practice of the Commission. Four
specific issues are mentioned in the following points
with indications on where to find further guidance.

should refer

indicate conduct which is liable to infringe Articles 81
and 82 (56).

54. In

the Commission's procedure

for

dealing with

complaints, different stages can be distinguished (57).

49. Agreements

and practices

fall within the

scope of
application of Articles 81 and 82 where they are capable
of affecting trade between Member States. Where an
fulfil
agreement or practice does not
this condition,
national
apply, but not EC
competition law may
competition law. Extensive guidance on this subject can
be found in the Notice on the effect on trade concept (52).

50. Agreements falling within the scope of Article 81 may be
agreements of minor importance which are deemed not to
restrict competition appreciably. Guidance on this issue
can be found in the Commission's de minimis Notice (53).

51. Agreements that fulfil the conditions of a block exemption
regulation are deemed to satisfy the conditions of Article
81(3) (54). For the Commission to withdraw the benefit of
the block exemption pursuant to Article 29 of Regulation
1/2003, it must find that upon individual assessment an
agreement to which the exemption regulation applies has
certain effects which are incompatible with Article 81(3).

52. Agreements that restrict competition within the meaning
of Article 81(1) EC may fulfil the conditions of Article
81(3) EC. Pursuant to Article 1(2) of Regulation 1/2003
and without a prior administrative decision being required,
such agreements are not prohibited. Guidance on the
conditions to be fulfilled by an agreement pursuant to
Article 81(3) can be found in the Notice on Article
81(3) (55).

D. THE COMMISSION'S PROCEDURES WHEN DEALING WITH
COMPLAINTS

(a) Overview

53. As recalled above, the Commission is not obliged to carry
out an investigation on the basis of every complaint
an
submitted with a view to establishing whether
infringement
the
Commission is under a duty to consider carefully the
issues brought to its attention by the
factual and legal
those issues
complainant,

committed. However,

to assess whether

in order

been

has

55. During the first stage, following the submission of the
complaint, the Commission examines the complaint and
may collect further information in order to decide what
take on the complaint. That stage may
action it will
include an informal exchange of views between the
Commission and the complainant with a view to clarifying
the factual and legal issues with which the complaint is
In this stage, the Commission may give an
concerned.
the
complainant
initial
complainant an opportunity to expand on his allegations
in the light of that initial reaction.

allowing

reaction

the

to

56. In the second stage, the Commission may investigate the
case further with a view to initiating proceedings pursuant
to Article 7(1) of Regulation 1/2003 against the under-
takings complained of. Where the Commission considers
there are insufficient grounds for acting on the
that
complaint, it will
inform the complainant of its reasons
and offer the complainant the opportunity to submit any
further comments within a time-limit which it
fixes
(Article 7(1) of Regulation 773/2004).

57. If the complainant fails to make known its views within
the time-limit set by the Commission, the complaint is
deemed to have been withdrawn (Article 7(3) of Regu-
lation 773/2004). In all other cases, in the third stage of
the procedure, the Commission takes cognisance of the
observations submitted by the complainant and either
initiates a procedure against the subject of the complaint
or adopts a decision rejecting the complaint (58).

58. Where the Commission rejects a complaint pursuant to
Article 13 of Regulation 1/2003 on the grounds that
another authority is dealing or has dealt with the case,
the Commission proceeds in accordance with Article 9
of Regulation 773/2004.

59. Throughout the procedure, complainants benefit from a
range of rights as provided in particular in Articles 6 to
8 of Regulation 773/2004. However, proceedings of the
Commission in competition cases do not constitute adver-
sarial proceedings between the complainant on the one
hand and the companies which are the subject of the
investigation on the other hand. Accordingly,
the
procedural rights of complainants are less far-reaching
than the right to a fair hearing of the companies which
are the subject of an infringement procedure (59).

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(b) Indicative time limit for informing the complainant of

the Commission's proposed action

60. The Commission is under an obligation to decide on
complaints within a reasonable time (60). What
is a
reasonable duration depends on the circumstances of
the various
each case and in particular,
procedural
the
steps
conduct of the parties in the course of the procedure,
the complexity of the case and its importance for the
various parties involved (61).

followed by the Commission,

its context,

61. The Commission will

in principle endeavour to inform
complainants of the action that it proposes to take on a
complaint within an indicative time frame of four months
from the reception of the complaint. Thus, subject to the
circumstances of the individual case and in particular the
possible need to request complementary information from
the complainant or third parties, the Commission will in
principle inform the complainant within four months
whether or not it intends to investigate its case further.
This time-limit does not constitute a binding statutory
term.

62. Accordingly, within

this

period,

four month

the
Commission may communicate its proposed course of
action to the complainant as an initial reaction within
the first phase of the procedure (see point 55 above).
The Commission may also, where the examination of the
complaint has progressed to the second stage (see point 56
above), directly proceed to informing the complainant
about its provisional assessment by a letter pursuant to
Article 7(1) of Regulation 773/2004.

63. To ensure
complaint,
diligently
informing the Commission of new developments.

their
is desirable that complainants cooperate
the
by

the most
it
in

procedures (62),

treatment of

expeditious

example

for

(c) Procedural rights of the complainant

64. Where the Commission addresses a statement of objections
to the companies complained of pursuant to Article 10(1)
of Regulation 773/2004, the complainant is entitled to
receive a copy of this document from which business
secrets
the
confidential
companies concerned have been removed (non-confi-
dential version of the statement of objections; cf. Article
6(1) of Regulation 773/2004). The complainant is invited
to comment in writing on the statement of objections. A
time-limit will be set for such written comments.

information of

and other

the oral hearing of

views at
statement of objections has been addressed,
complainants so request in their written comments (63).

the parties to which a
the

if

66. Complainants may submit, of

16

to Article 6(1)

information will be protected by

their own initiative or
following a request by the Commission, documents that
contain business secrets or other confidential information.
Confidential
the
Commission (64). Under Article
of Regulation
773/2004, complainants are obliged to identify confi-
dential information, give reasons why the information is
considered confidential and submit a separate non-confi-
dential version when they make their views known
pursuant
and 7(1) of Regulation
773/2004, as well as when they subsequently submit
further information in the course of the same procedure.
Moreover, the Commission may, in all other cases, request
complainants which produce documents or statements to
identify the documents or parts of
the documents or
statements which they consider to be confidential. It may
in particular set a deadline for the complainant to specify
why it considers a piece of information to be confidential
and to provide a non-confidential version,
including a
concise description or non-confidential version of each
piece of information deleted.

67. The qualification of information as confidential does not
the Commission from disclosing and using
prevent
information where
an
is necessary
infringement of Articles 81 or 82 (65). Where business
secrets and confidential
information are necessary to
prove an infringement, the Commission must assess for
each individual document whether the need to disclose is
greater than the harm which might result from disclosure.

to prove

that

it will

in pursuing the

68. Where the Commission takes the view that a complaint
should not be further examined, because there is no
case
sufficient Community interest
further or on other
inform the
grounds,
complainant in the form of a letter which indicates its
legal basis (Article 7(1) of Regulation 773/2004), sets
out
led the Commission to
the
and
in the
provisionally
provides the complainant with the opportunity to submit
supplementary information or observations within a
time-limit set by the Commission. The Commission will
also indicate the consequences of not replying pursuant to
Article 7(3) of Regulation 773/2004, as explained below.

that have

indicated

conclude

reasons

sense

65. Furthermore,

the Commission may, where appropriate,
afford complainants the opportunity of expressing their

69. Pursuant

to Article 8(1) of Regulation 773/2004,

the
complainant has the right to access the information on
which the Commission bases its preliminary view. Such
access is normally provided by annexing to the letter a
copy of the relevant documents.

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70. The time-limit for observations by the complainant on the
letter pursuant to Article 7(1) of Regulation 773/2004 will
be set in accordance with the circumstances of the case. It
will not be shorter than four weeks (Article 17(2) of Regu-
lation 773/2004). If the complainant does not respond
within the time-limit set,
is deemed to
have been withdrawn pursuant to Article 7(3) of Regu-
lation 773/2004. Complainants are
also entitled to
withdraw their complaint at any time if they so wish.

the complaint

refer to that other decision adopted on the basis of the
provisions mentioned.

77. A decision to reject a complaint is subject to appeal before

the Community Courts (68).

71. The

complainant may request

the
time-limit for the provision of comments. Depending on
the circumstances of the case, the Commission may grant
such an extension.

an extension of

72. In

the

case, where

complainant
the Commission

submits
that
observations,
takes
supplementary
cognisance of
those observations. Where they are of
such a nature as to make the Commission change its
previous course of action,
it may initiate a procedure
against the companies complained of. In this procedure,
the complainant has the procedural rights explained above.

73. Where the observations of the complainant do not alter
the Commission's proposed course of action, it rejects the
complaint by decision (66).

(d) The Commission decision rejecting a complaint

74. Where the Commission rejects a complaint by decision
pursuant to Article 7(2) of Regulation 773/2004, it must
state the reasons in accordance with Article 253 EC, i.e. in
a way that is appropriate to the act at issue and takes into
account the circumstances of each case.

fashion the

75. The statement of reasons must disclose in a clear and
unequivocal
reasoning followed by the
Commission in such a way as to enable the complainant
to ascertain the reasons for the decision and to enable the
competent Community Court
to exercise its power of
review. However,
the Commission is not obliged to
adopt a position on all the arguments relied on by the
complainant in support of its complaint. It only needs to
set out the facts and legal considerations which are of
decisive importance in the context of the decision (67).

76. Where the Commission rejects a complaint in a case that
also gives rise to a decision pursuant to Article 10 of
Regulation 1/2003 (Finding of inapplicability of Articles
81 or 82)
or Article 9 of Regulation 1/2003
(Commitments), the decision rejecting a complaint may

78. A decision rejecting a complaint prevents complainants
from requiring the reopening of the investigation unless
they put forward significant new evidence. Accordingly,
further correspondence on the same alleged infringement
by former complainants cannot be regarded as a new
complaint unless significant new evidence is brought to
the
the
Commission may re-open a file under appropriate circum-
stances.

the Commission. However,

attention

of

79. A decision to reject a complaint does not definitively rule
on the question of whether or not there is an infringement
of Articles 81 or 82, even where the Commission has
assessed the facts on the basis of Articles 81 and 82.
The assessments made by the Commission in a decision
rejecting a complaint therefore do not prevent a Member
State
competition authority from applying
Articles 81 and 82 to agreements and practices brought
before it. The assessments made by the Commission in a
decision rejecting a complaint constitute facts which
Member States' courts or competition authorities may
take into account in examining whether the agreements
or conduct in question are in conformity with Articles 81
and 82 (69).

court or

(e) Specific situations

80. According to Article 8 of Regulation 1/2003 the
Commission may on its own initiative order
interim
measures where there is the risk of serious and irreparable
damage to competition. Article 8 of Regulation 1/2003
makes it clear that interim measures cannot be applied
for by complainants under Article 7(2) of Regulation
1/2003. Requests for interim measures by undertakings
can be brought before Member States' courts which are
well placed to decide on such measures (70).

their

81. Some persons may wish to inform the Commission about
suspected infringements of Articles 81 or 82 without
having
revealed to the undertakings
concerned by the allegations. These persons are welcome
to contact the Commission. The Commission is bound to
respect an informant's request for anonymity (71), unless
the request to remain anonymous is manifestly unjustified.

identity

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___________
(1) 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 (OJ L 1, 4.1.2003, pages 1-25).

(2) Cf. in particular Recitals 3-7 and 35 of Regulation 1/2003.

(3) 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 (OJ 123, 27.4.2004).

(4) The Commission handles correspondence from informants in accordance with its principles of good administrative practice.

(5) Notice on cooperation within the Network of competition authorities (p. 43).

(6) For the handling of such complaints, cf. Commission communication of 10 October 2002, COM(2002) 141.

(7) Case C-344/98, Masterfoods v HB Ice Cream, [2000] ECR I-11369, para 46; Case C-119/97 P, Union française de l'express (Ufex) and Others v
Commission of the European Communities, [1999] ECR I-1341, para 88; Case T-24/90, Automec v Commission of the European Communities,
[1992] ECR II-2223, paras 73-77.

(8) Cf. in particular Articles 5, 6, 11, 12, 15, 22, 29, 35 and Recitals 2 to 4 and 6 to 8 of Regulation 1/2003.

(9) Cf. Notice on cooperation within the network of competition authorities . . ., points 5 ss.

(10) Cf. Recital 3 of Regulation 1/2003.

(11) Settled case law, cf. Case 127/73, Belgische Radio en Televisie (BRT) v SABAM and Fonior, [1974] ECR 51, para 16; Case C-282/95 P, Guérin
automobiles v Commission of the European Communities, [1997] ECR I-1503, para 39; Case C-453/99, Courage v Bernhard Crehan, [2001] ECR
I-6297, para 23.

(12) Case C-453/99, Courage v Bernhard Crehan, [2001] ECR I-6297, paras 26 and 27; the power of national courts to grant damages is also

underlined in Recital 7 of Regulation 1/2003.

(13) Cf. Articles 1, 6 and 15 as well as Recital 7 of Regulation 1/2003.

(14) Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty; OJ P 13 of 21 February 1962, p. 204-211; English special
edition: Series I Chapter 1959-1962 p. 87. Regulation No 17 is repealed by Article 43 of Regulation 1/2003 with effect from 1 May 2004.

(15) For more detailed explanations of this mechanism, cf. Notice on the co-operation between the Commission and the courts of the EU Member

States in the application of Articles 81 and 82 EC . . .

(16) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 93.

(17) Case C-230/96, Cabour and Nord Distribution Automobile v Arnor ‘SOCO’, [1998] ECR I-2055, para 51; Joined Cases T-185/96, T-189/96 and

T-190/96, Dalmasso and Others v Commission of the European Communities, [1999] ECR II-93, para 50.

(18) Cf. Article 8 of Regulation 1/2003 and para 80 below. Depending on the case, Member States' competition authorities may equally be well placed

to adopt interim measures.

(19) Cf. points 41 ss. below.

(20) Notice on cooperation within the Network of competition authorities (p. 43).

(21) Notice on cooperation within the Network of competition authorities . . ., points 8-15.

(22) Article 11(2) and (3) of Regulation 1/2003; Notice on cooperation within the Network of Competition Authorities . . ., points 16/17.

(23) Notice on cooperation within the Network of Competition Authorities, . . ., point 34.

(24) For more extensive explanations on this notion in particular, cf. points 33 ss. below.

(25) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 88; Case

T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paras 73-77 and 85.

(26) Settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 85.

(27) Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para 36.

(28) Cf. Article 5(1) of Regulation 773/2004.

(29) Case T-114/92, Bureau Européen des Médias et de l'Industrie Musicale (BEMIM) v Commission of the European Communities, [1995] ECR II-147,
para 28. Associations of undertakings were also the complainants in the cases underlying the judgments in Case 298/83, Comité des industries
cinématographiques des Communautés européennes (CICCE) v Commission of the European Communities, [1985] ECR 1105 and Case T-319/99,
Federacion Nacional de Empresas (FENIN) v Commission of the European Communities, not yet published in [2003] ECR.

(30) Joined Cases T-133/95 and T-204/95, International Express Carriers Conference (IECC) v Commission of the European Communities, [1998] ECR

II-3645, paras 79-83.

(31) Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, para

36.

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(32) This question is currently raised in a pending procedure before the Court of First Instance (Joined cases T-213 and 214/01). The Commission has
also accepted as complainant an individual consumer in its Decision of 9 December 1998 in Case IV/D-2/34.466, Greek Ferries, OJ L 109/24 of
27 April 1999, para 1.

(33) Joined Cases T-133/95 and T-204/95, International Express Carriers Conference (IECC) v Commission of the European Communities, [1998] ECR

II-3645, para 79.

(34) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 76; Case C-91/95 P, Roger Tremblay and Others

v Commission of the European Communities, [1996] ECR I-5547, para 30.

(35) Case 125/78, GEMA v Commission of the European Communities, [1979] ECR 3173, para 17; Case C-119/97/P, Union française de l'express

(Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 87.

(36) Settled case law since the Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paras 77 and 85; Recital 18

of Regulation 1/2003 expressly confirms this possibility.

(37) Settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 75. Under Regulation

1/2003, this principle may only be relevant in the context of Article 29 of that Regulation.

(38) Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR 3045, para 19; Case
C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 86.

(39) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, paras 79-80.

(40) Case C-450/98 P, International Express Carriers Conference (IECC) v Commission of the European Communities, [2001] ECR I-3947, paras 57-59.

(41) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paras 88ss.; Case T-5/93, Roger Tremblay and Others
v Commission of the European Communities, [1995] ECR II-185, paras 65ss.; Case T-575/93, Casper Koelman v Commission of the European
Communities, [1996] ECR II-1, paras 75-80; see also part II above where more detailed explanations concerning this situation are given.

(42) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, paras 92/93.

(43) Settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 86.

(44) Case C-449/98 P, International Express Carriers Conference (IECC) v Commission of the European Communities [2001] ECR I-3875, para 37.

(45) Case T-77/95, Syndicat français de l'Express International and Others v Commission of the European Communities [1997] ECR II-1, para 57; Case
C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 95. Cf. also
Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, para
113, where an unwritten commitment between a Member State and a third county outside the common commercial policy was held not to
suffice to establish that the conduct complained of had ceased.

(46) Case T-110/95, International Express Carriers (IECC) v Commission of the European Communities and Others, [1998] ECR II-3605, para 57,
upheld by Case 449/98 P, International Express Carriers (IECC) v Commission of the European Communities and Others, [2001] ECR I-3875,
paras 44-47.

(47) Case C-449/98 P, International Express Carriers (IECC) v Commission of the European Communities e.a. [2001] ECR I-3875, para 37.

(48) Cf. Case T-77/92, Parker Pen v Commission of the European Communities, [1994] ECR II-549, paras 64/65.

(49) Case 298/83, Comité des industries cinématographiques des Communautés européennes (CICCE) v Commission of the European Communities,
[1985] ECR 1105, paras 21-24; Case T-198/98, Micro Leader Business v Commission of the European Communities, [1999] ECR II-3989, paras
32-39.

(50) Case T-319/99, Federación Nacional de Empresas (FENIN) v Commission of the European Communities, not yet published in [2003] ECR, para

43.

(51) Extensive guidance can be found on the Commission's website at http://europa.eu.int/comm/competition/index_en.html

(52) Notice on the effect on trade concept contained in Articles 81 and 82 of the Treaty (p. 81).

(53) Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty

establishing the European Community (de minimis), OJ C 368 of 22 December 2002, p. 13.

(54) The texts of all block exemption regulations are available on the Commission's website at http://europa.eu.int/comm/competition/index_en.html

(55) Commission Notice — Guidelines on the application of Article 81(3) of the Treaty (p. 97).

(56) Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR 3045, para 19; Case

T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 79.

(57) Cf. Case T-64/89, Automec v Commission of the European Communities, [1990] ECR II-367, paras 45-47; Case T-37/92, Bureau Européen des

Unions des Consommateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, para 29.

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(58) Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para 36.

(59) Joined Cases 142 and 156/84, British American Tobacco Company and R. J. Reynolds Industries v Commission of the European Communities

[1987] ECR 249, paras 19/20.

(60) Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para 37.

(61) Joined Cases T-213/95 and T-18/96, Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van Nederlandse Kraanbedrijven (FNK) v

Commission of the European Communities, [1997] ECR 1739, para 57.

(62) The notion of ‘diligence’ on the part of the complainant is used by the Court of First Instance in Case T-77/94, Vereniging van Groothandelaren in

Bloemkwekerijprodukten and Others v Commission of the European Communities, [1997] ECR II-759, para 75.

(63) Article 6(2) of Commission Regulation 773/2004.

(64) Article 287 EC, Article 28 of Regulation 1/2003 and Articles 15 and 16 of Regulation 773/2004.

(65) Article 27(2) of Regulation 1/2003.

(66) Article 7(2) of Regulation 773/2004; Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503,

para 36.

(67) Settled case law, cf.

i.a. Case T-114/92, Bureau Européen des Médias et de l'Industrie Musicale (BEMIM) v Commission of the European

Communities, [1995] ECR II-147, para 41.

(68) Settled case law since Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR

3045.

(69) Case T-575/93, Casper Koelman v Commission of the European Communities, [1996] ECR II-1, paras 41-43.

(70) Depending on the case, Member States' competition authorities may equally be well placed to adopt interim measures.

(71) Case 145/83, Stanley George Adams v Commission of the European Communities, [1985] ECR 3539.

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ANNEX