Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) (Text with EEA relevance)
Date: 2004-04-27
Institutions: European Commission
Subjects: application of EU law, competition law

C 101/78

EN

Official Journal of the European Union

27.4.2004

Commission Notice on informal guidance relating to novel questions concerning Articles 81 and
82 of the EC Treaty that arise in individual cases (guidance letters)

(2004/C 101/06)

(Text with EEA relevance)

I. REGULATION 1/2003

the

1. Regulation 1/2003 (1) sets up a new enforcement system
for Articles 81 and 82 of the Treaty. While designed to
focus on the primary task of effective
restore
enforcement of
the Regulation
the competition rules,
also creates legal certainty inasmuch as it provides that
agreements (2) which fall under Article 81(1) but
fulfil
the conditions
in Article 81(3) are valid and fully
enforceable ab initio without a prior decision by a
competition authority (Article 1 of Regulation 1/2003).

2. The framework of Regulation 1/2003, while introducing
parallel competence of the Commission, Member States'
competition authorities and Member States' courts to
apply Article 81 and 82 in their entirety, limits risks of
inconsistent application by a range of measures, thereby
certainty for
ensuring the primary aspect of
companies as reflected in the case law of the Court of
Justice,
i.e. that the competition rules are applied in a
consistent way throughout the Community.

legal

3. Undertakings are generally well placed to assess the legality
of their actions in such a way as to enable them to take an
informed decision on whether
to go ahead with an
agreement or practice and in what form. They are close
to the facts and have at their disposal the framework of
block exemption regulations, case law and case practice as
well as extensive guidance in Commission guidelines and
notices (3).

4. Alongside the reform of the rules implementing Articles
the
81 and 82 brought about by Regulation 1/2003,
Commission has conducted a review of block exemption
regulations, Commission notices and guidelines, with a
view to further
economic
operators. The Commission has also produced guidelines

self-assessment by

assist

(2) In this Notice,

(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).
the term ‘agreement’

is used for agreements,
decisions by associations of undertakings and concerted practices.
The term ‘practices’ refers to the conduct of dominant undertakings.
The term ‘undertakings’ equally covers ‘associations of under-
takings’.

on the application of Article 81(3) (4). This allows under-
takings in the vast majority of cases to reliably assess their
it is
agreements with regard to Article 81. Furthermore,
the practice of
the Commission to impose more than
symbolic fines (5) only in cases where it is established,
instruments or in the case law and
either in horizontal
practice
an
certain
that
infringement.

constitutes

behaviour

a

5. Where cases, despite the above elements, give rise to
genuine uncertainty because they present novel or unre-
solved questions for the application of Articles 81 and 82,
individual undertakings may wish to seek informal
guidance from the Commission. (6) Where it considers it
appropriate and subject to its enforcement priorities, the
Commission may provide
such guidance on novel
questions concerning the interpretation of Articles 81
and/or 82 in a written statement (guidance letter). The
present Notice sets out details of this instrument.

II. FRAMEWORK FOR ASSESSING WHETHER TO ISSUE A
GUIDANCE LETTER

6. Regulation 1/2003 confers powers on the Commission to
effectively prosecute infringements of Articles 81 and 82
and to impose sanctions (7). One major objective of the
Regulation is to ensure efficient enforcement of the EC
competition rules by removing the former notification
system and thus allowing the Commission to focus its
enforcement policy on the most serious infringements (8).

7. While Regulation 1/2003 is without prejudice to the
ability of the Commission to issue informal guidance to
individual undertakings (9), as set out in this Notice, this
ability should not interfere with the primary objective of
the Regulation, which is to ensure effective enforcement.
The Commission may therefore only provide informal
guidance to individual undertakings in so far as this is
compatible with its enforcement priorities.

(4) Commission Notice – Guidelines on the application of Article 81(3)

of the Treaty (p. 97).

(5) Symbolic fines are normally set at 1 000 EUR, cf. Commission
Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty, (OJ C 9, 14.1.1998).

(6) Cf. Recital 38 of Regulation 1/2003.
(7) Cf.

in particular Articles 7 to 9, 12, 17-24, 29 of Regulation

1/2003.

(3) All

texts mentioned are available at: http://europa.eu.int/comm/

competition/index_en.html

(8) Cf. in particular Recital 3 of Regulation 1/2003.
(9) Cf. Recital 38 of Regulation 1/2003.

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Official Journal of the European Union

C 101/79

8. Subject to point 7, the Commission, seized of a request for
a guidance letter, will consider whether it is appropriate to
process
letter may only be
considered if
the following cumulative conditions are
fulfilled:

Issuing a guidance

it.

(a) The substantive assessment of an agreement or practice
with regard to Articles 81 and/or 82 of the Treaty,
poses a question of application of the law for which
there is no clarification in the existing EC legal
framework including the case law of the Community
Courts, nor publicly available general guidance or
precedent
in decision-making practice or previous
guidance letters.

(b) A prima facie evaluation of the specificities and back-
ground of the case suggests that the clarification of the
novel question through a guidance letter is useful,
taking into account the following elements:

— the economic importance from the point of view
of the consumer of the goods or services concerned
by the agreement or practice, and/or

— the extent

to which the agreement or practice
corresponds or is liable to correspond to more
widely spread economic usage in the marketplace
and/or

— the extent of the investments linked to the trans-
action in relation to the size of the companies
concerned and the extent to which the transaction
relates
the
to a structural operation such as
creation of a non-full function joint venture.

practices that are no longer being implemented by the
parties. Undertakings may however present a request for
a guidance letter
to the Commission in relation to
questions raised by an agreement or practice that they
that
envisage,
agreement or practice. In this case the transaction must
have reached a sufficiently advanced stage for a request to
be considered.

implementation

before

the

i.e.

of

11. A request for a guidance letter is without prejudice to the
power of
in
accordance with Regulation 1/2003 with regard to the
facts presented in the request.

the Commission to open proceedings

III. INDICATIONS ON HOW TO REQUEST GUIDANCE

12. A request can be presented by an undertaking or under-
takings which have entered into or intend to enter into an
agreement or practice that could fall within the scope of
Articles 81 and/or 82 of
the Treaty with regard to
questions of interpretation raised by such agreement or
practice.

13. A request for a guidance letter should be addressed to the

following address:

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

14. There is no form. A memorandum should be presented

which clearly states:

(c)

It is possible to issue a guidance letter on the basis of
the information provided, i.e. no further fact-finding is
required.

— the identity of all undertakings concerned as well as a
single address for contacts with the Commission;

9. Furthermore, the Commission will not consider a request
for a guidance letter in either of the following circum-
stances:

— the questions raised in the request are identical or
similar to issues raised in a case pending before the
European Court of First
Instance or the European
Court of Justice;

— the agreement or practice to which the request refers is
subject to proceedings pending with the Commission, a
Member State court or Member State competition
authority.

10. The Commission will not consider hypothetical questions
issue guidance letters on agreements or

and will not

— the specific questions on which guidance is sought;

— full and exhaustive information on all points relevant
for an informed evaluation of the questions raised,
including pertinent documentation;

— a detailed reasoning, having regard to point 8 a), why

the request presents (a) novel question(s);

this Notice,

— all other information that permits an evaluation of the
request in the light of the aspects explained in points
8-10 of
a
declaration that the agreement or practice to which
the request
to proceedings
pending before a Member State court or competition
authority;

in particular

including

is not

subject

refers

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Official Journal of the European Union

27.4.2004

— where

the

request

are
contains
considered business secrets, a clear identification of
these elements;

elements

that

legal reasoning underlying the under-
— the principal
standing of
the Commission on novel questions
relating to Articles 81 and/or 82 raised by the request.

— any other information or documentation relevant to

the individual case.

20. A guidance letter may be limited to part of the questions
raised in the request. It may also include additional aspects
to those set out in the request.

IV. PROCESSING OF THE REQUEST

8 c),

the Commission may

15. The Commission will in principle evaluate the request on
the basis of the information provided. Notwithstanding
point
additional
information at its disposal from public sources, former
source and may ask the
proceedings or any other
to provide supplementary information. The
applicant(s)
normal
secrecy apply to the
rules on professional
information supplied by the applicant(s).

use

16. The Commission may share the information submitted to
it with the Member States' competition authorities and
receive input from them. It may discuss the substance of
the request with the Member States' competition auth-
orities before issuing a guidance letter.

17. Where no guidance letter is issued, the Commission shall

inform the applicant(s) accordingly.

18. An undertaking can withdraw its request at any point in
time. In any case, information supplied in the context of a
request for guidance remains with the Commission and
can be used in subsequent procedures under Regulation
1/2003 (cf. point 11 above).

V. GUIDANCE LETTERS

19. A guidance letter sets out:

— a summary description of the facts on which it is

based;

21. Guidance letters will be posted on the Commission's
webb-site, having regard to the legitimate interest of
undertakings in the protection of their business secrets.
Before issuing a guidance letter,
the Commission will
agree with the applicants on a public version.

VI. THE EFFECTS OF GUIDANCE LETTERS

22. Guidance letters are in the first place intended to help
undertakings carry out themselves an informed assessment
of their agreements and practices.

23. A guidance letter cannot prejudge the assessment of the

same question by the Community Courts.

examining

from subsequently

for a guidance letter,

24. Where an agreement or practice has formed the factual
the Commission is not
basis
precluded
same
agreement or practice in a procedure under Regulation
1/2003, in particular following a complaint. In that case,
the Commission will take the previous guidance letter into
account, subject in particular to changes in the underlying
facts, to any new aspects raised by a complaint, to devel-
opments in the case law of the European Courts or wider
changes of the Commission's policy.

that

25. Guidance letters are not Commission decisions and do not
bind Member States' competition authorities or courts that
have the power to apply Articles 81 and 82. However, it is
open to Member States' competition authorities and courts
to take
issued by the
Commission as they see fit in the context of a case.

account of guidance

letters