Commission 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 (Text with EEA relevance)
Date: 2004-04-27
Institutions: European Commission
Subjects: administrative cooperation, competition law, competition policy, judicial cooperation in criminal matters in the EU

C 101/54

EN

Official Journal of the European Union

27.4.2004

Commission 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

(2004/C 101/04)

(Text with EEA relevance)

I. THE SCOPE OF THE NOTICE

1. The present notice addresses the co-operation between the
Commission and the courts of the EU Member States,
when the latter apply Articles 81 and 82 EC. For the
purpose of this notice,
the ‘courts of the EU Member
States’ (hereinafter ‘national courts’) are those courts and
tribunals within an EU Member State that can apply
Articles 81 and 82 EC and that are authorised to ask a
preliminary question to the Court of
the
European Communities pursuant to Article 234 EC (1).

Justice of

apply the EC competition rules, even when the party with
an interest in application of those provisions has not relied
on them, where domestic law allows such application by
the national court. However, Community law does not
require national courts to raise of their own motion an
issue concerning the breach of provisions of Community
law where examination of that issue would oblige them to
abandon the passive role assigned to them by going
beyond the ambit of the dispute defined by the parties
themselves and relying on facts and circumstances other
than those on which the party with an interest
in
application of those provisions bases his claim (7).

2. The national courts may be called upon to apply Articles
81 or 82 EC in lawsuits between private parties, such as
actions relating to contracts or actions for damages. They
may also act as public enforcer or as review court. A
national court may indeed be designated as a competition
authority of a Member State (hereinafter ‘the national
competition authority’) pursuant to Article 35(1) of Regu-
lation (EC) No 1/2003 (hereinafter ‘the regulation’) (2). In
that case, the co-operation between the national courts
and the Commission is not only covered by the present
notice, but also by the notice on the co-operation within
the network of competition authorities (3).

4. Depending on the functions attributed to them under
national
law, national courts may be called upon to
apply Articles 81 and 82 EC in administrative, civil or
criminal proceedings (8). In particular, where a natural or
legal person asks the national court to safeguard his indi-
vidual rights, national courts play a specific role in the
enforcement of Articles 81 and 82 EC, which is different
from the enforcement
in the public interest by the
Commission or by national competition authorities (9).
Indeed, national courts can give effect to Articles 81 and
82 EC by finding contracts to be void or by awards of
damages.

II. THE APPLICATION OF EC COMPETITION RULES BY
NATIONAL COURTS

A. THE COMPETENCE OF NATIONAL COURTS TO APPLY EC
COMPETITION RULES

3. To the extent that national courts have jurisdiction to deal
with a case (4), they have the power to apply Articles 81
and 82 EC (5). Moreover,
it should be remembered that
Articles 81 and 82 EC are a matter of public policy and
are essential to the accomplishment of the tasks entrusted
to the Community, and, in particular, for the functioning
the internal market (6). According to the Court of
of
Justice, where, by virtue of domestic law, national courts
must raise of their own motion points of law based on
binding domestic rules which have not been raised by the
parties, such an obligation also exists where binding
Community rules, such as the EC competition rules, are
concerned. The position is the same if domestic law
confers on national courts a discretion to apply of their
own motion binding rules of law: national courts must

5. National courts can apply Articles 81 and 82 EC, without
it being necessary to apply national competition law in
parallel. However, where
applies
national competition law to agreements, decisions by
associations of undertakings or concerted practices which
may affect
trade between Member States within the
meaning of Article 81(1) EC (10) or to any abuse prohibited
by Article 82 EC, they also have to apply EC competition
rules to those agreements, decisions or practices (11).

a national

court

6. The regulation does not only empower the national courts
to apply EC competition law. The parallel application of
national competition law to agreements, decisions of
associations of undertakings
and concerted practices
which affect trade between Member States may not lead
to a different outcome from that of EC competition law.
Article 3(2) of the regulation provides that agreements,
decisions or concerted practices which do not infringe

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C 101/55

law (13). As

to the parallel

Article 81(1) EC or which fulfil the conditions of Article
81(3) EC cannot be prohibited either under national
competition law (12). On the other hand, the Court of
Justice has ruled that agreements, decisions or concerted
practices that violate Article 81(1) and do not fulfil the
conditions of Article 81(3) EC cannot be upheld under
application of
national
national competition law and Article 82 EC in the case
of unilateral conduct, Article 3 of the regulation does not
provide for a similar convergence obligation. However, in
case of conflicting provisions,
the general principle of
primacy of Community law requires national courts to
disapply any provision of national law which contravenes
a Community rule, regardless of whether that national law
provision was adopted before or after the Community
rule (14).

B. PROCEDURAL ASPECTS OF

THE APPLICATION OF

EC

COMPETITION RULES BY NATIONAL COURTS

extent, Community

law also determines

9. The procedural conditions for the enforcement of EC
competition rules by national courts and the sanctions
they can impose in case of an infringement of
those
law. However, to
rules, are largely covered by national
some
the
conditions in which EC competition rules are enforced.
Those Community law provisions may provide for the
faculty of national courts to avail themselves of certain
instruments, e.g. to ask for the Commission's opinion on
questions concerning the application of EC competition
rules (22) or they may create rules that have an obligatory
impact on proceedings before them, e.g. allowing the
Commission and national
to
submit written observations (23). These Community law
provisions prevail over national rules. Therefore, national
courts have to set aside national rules which, if applied,
would conflict with these Community law provisions.
Where
such Community law provisions are directly
applicable, they are a direct source of rights and duties
for all those affected, and must be fully and uniformly
applied in all the Member States from the date of their
entry into force (24).

competition authorities

to the extent

7. Apart from the application of Articles 81 and 82 EC,
national courts are also competent to apply acts adopted
by EU institutions in accordance with the EC Treaty or in
accordance with the measures adopted to give the Treaty
effect,
these acts have direct effect.
National courts may thus have to enforce Commission
decisions (15) or regulations applying Article 81(3) EC to
certain categories of agreements, decisions or concerted
practices. When applying these EC competition rules,
national courts act within the framework of Community
law and are consequently bound to observe the general
principles of Community law (16).

that

decisions

concerted

8. The application of Articles 81 and 82 EC by national
courts often depends on complex economic and legal
assessments (17). When applying EC competition rules,
national courts are bound by the case law of
the
Community courts as well as by Commission regulations
applying Article 81(3) EC to certain categories of
practices (18).
agreements,
or
Furthermore, the application of Articles 81 and 82 EC
by the Commission in a specific case binds the national
courts when they apply EC competition rules in the same
case in parallel with or subsequent to the Commission (19).
Finally, and without prejudice to the ultimate interpre-
tation of the EC Treaty by the Court of Justice, national
courts may find guidance in Commission regulations and
decisions which present elements of analogy with the case
they are dealing with, as well as in Commission notices
and guidelines relating to the application of Articles 81
and 82 EC (20) and in the annual report on competition
policy (21).

10. In the

absence of Community

law provisions on
procedures and sanctions related to the enforcement of
EC competition rules by national courts, the latter apply
national procedural law and — to the extent that they are
competent to do so — impose sanctions provided for
under national
these
national provisions must be compatible with the general
principles of Community law. In this regard, it is useful to
recall the case law of the Court of Justice, according to
which:

the application of

law. However,

(a) where there is an infringement of Community law,
law must provide for sanctions which are

national
effective, proportionate and dissuasive (25);

(b) where the infringement of Community law causes
harm to an individual, the latter should under certain
conditions be able to ask the national court
for
damages (26);

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(c) the rules on procedures and sanctions which national

courts apply to enforce Community law

Commission for the information mentioned above or to
await the Commission's decision.

— must not make

excessively
difficult or practically impossible (the principle of
effectiveness) (27) and they

such enforcement

— must not be
applicable
national law (the principle of equivalence) (28).

favourable
enforcement of

less
to the

than the

rules
equivalent

On the basis of the principle of primacy of Community
law, a national court may not apply national rules that are
incompatible with these principles.

OR

C. PARALLEL
EC
COMPETITION RULES BY THE COMMISSION AND BY NATIONAL
COURTS

CONSECUTIVE

APPLICATION

OF

the legality of

if a national court

the Commission's decision,

13. Where the Commission reaches a decision in a particular
case before the national court, the latter cannot take a
decision running counter to that of the Commission. The
binding effect of the Commission's decision is of course
without prejudice to the interpretation of Community law
if the national court
by the Court of Justice. Therefore,
doubts
it
cannot avoid the binding effects of that decision without
Justice (34).
a ruling to the contrary by the Court of
Consequently,
to take a
intends
decision that runs counter to that of the Commission, it
must refer a question to the Court of
Justice for a
preliminary ruling (Article 234 EC). The latter will then
decide on the compatibility of the Commission's decision
with Community law. However,
the Commission's
decision is challenged before the Community courts
pursuant
the
dispute before the national court depends on the validity
of the Commission's decision, the national court should
stay its proceedings pending final judgment in the action
for annulment by the Community courts unless
it
considers
the case, a
reference to the Court of Justice for a preliminary ruling
on
is
the
warranted (35).

to Article 230 EC and the outcome of

in the circumstances of

the Commission

decision

validity

that,

of

if

11. A national court may be applying EC competition law to
an agreement, decision, concerted practice or unilateral
behaviour affecting trade between Member States at the
same time as the Commission or subsequent
to the
Commission (29). The following points outline some of
the obligations national courts have to respect in those
circumstances.

12. Where a national court comes to a decision before the
Commission does, it must avoid adopting a decision that
would conflict with a decision contemplated by the
Commission (30). To that effect, the national court may
ask the Commission whether it has initiated proceedings
regarding the same agreements, decisions or practices (31)
and if so, about the progress of proceedings and the like-
lihood of a decision in that case (32). The national court
may, for reasons of legal certainty, also consider staying its
reached
proceedings
a
decision (33).
part, will
endeavour to give priority to cases for which it has
decided to initiate proceedings within the meaning of
Article 2(1) of Commission Regulation (EC) No 773/2004
and that are the subject of national proceedings stayed in
this way, in particular when the outcome of a civil dispute
depends on them. However, where the national court
cannot reasonably doubt the Commission's contemplated
decision or where the Commission has already decided on
a similar case, the national court may decide on the case
pending before it in accordance with that contemplated or
it being necessary to ask the
earlier decision without

the Commission has
its

until
The Commission,

for

14. When a national court stays proceedings, e.g. awaiting the
Commission's decision (situation described in point 12 of
this notice) or pending final judgement by the Community
courts in an action for annulment or in a preliminary
ruling procedure (situation described in point 13),
it is
incumbent on it to examine whether it is necessary to
order
to safeguard the
interim measures
interests of the parties (36).

in order

III. THE CO-OPERATION BETWEEN THE COMMISSION AND
NATIONAL COURTS

15. Other

courts

than the co-operation mechanism between the
national courts and the Court of
Justice under Article
234 EC, the EC Treaty does not explicitly provide for
co-operation between the national
and the
Commission. However, in its interpretation of Article 10
EC, which obliges the Member States to facilitate the
achievement of the Community's tasks, the Community
courts found that this Treaty provision imposes on the
European institutions and the Member States mutual
duties of loyal co-operation with a view to attaining the
objectives of the EC Treaty. Article 10 EC thus implies that
the Commission must assist national courts when they
apply Community law (37). Equally, national courts may
be obliged to assist the Commission in the fulfilment of
its tasks (38).

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16. It is also appropriate to recall the co-operation between
in particular
national courts and national authorities,
national competition authorities,
for the application of
Articles 81 and 82 EC. While the co-operation between
these national authorities is primarily governed by national
rules, Article 15(3) of the regulation provides for the possi-
bility for national competition authorities to submit obser-
vations before the national courts of their Member State.
Points 31 and 33 to 35 of this notice are mutatis mutandis
applicable to those submissions.

A. THE COMMISSION AS AMICUS CURIAE

17. In order to assist national courts in the application of EC
competition rules, the Commission is committed to help
national courts where the latter find such help necessary to
be able to decide on a case. Article 15 of the regulation
refers to the most frequent types of such assistance: the
transmission of information (points 21 to 26) and the
Commission's opinions (points 27 to 30), both at
the
request of a national court and the possibility for the
Commission to submit observations (points 31 to 35).
Since the regulation provides for these types of assistance,
it cannot be limited by any Member States' rule. However,
in the absence of Community procedural rules to this
effect and to the extent that they are necessary to facilitate
these forms of assistance, Member States must adopt the
appropriate procedural rules to allow both the national
courts and the Commission to make full use of the possi-
bilities the regulation offers (39).

18. The national court may send its request for assistance in

writing to

European Commission
Directorate General for Competition
B-1049 Brussels
Belgium

it
it respects its duty of professional secrecy and that
safeguards its own functioning and independence (40). In
fulfilling its duty under Article 10 EC, of assisting
national courts in the application of EC competition
rules, the Commission is committed to remaining neutral
and objective in its assistance. Indeed, the Commission's
assistance to national courts is part of its duty to defend
the public interest. It has therefore no intention to serve
the private interests of the parties involved in the case
pending before the national court. As a consequence, the
Commission will not hear any of the parties about its
assistance to the national court. In case the Commission
has been contacted by any of
the parties in the case
pending before the court on issues which are raised
inform the national
before the national court,
court
these contacts
independent of whether
took place before or after the national court's request for
co-operation.

thereof,

it will

20. The Commission will publish a summary concerning its
co-operation with national courts pursuant to this notice
in its annual Report on Competition Policy. It may also
make its opinions and observations available on its
website.

1. The Commission's duty to transmit

information to

national courts

21. The duty for the Commission to assist national courts in
the application of EC competition law is mainly reflected
in the obligation for
the Commission to transmit
information it holds to national courts. A national court
may, e.g., ask the Commission for documents in its
possession or for information of a procedural nature to
enable it to discover whether a certain case is pending
before the Commission, whether
the Commission has
initiated a procedure or whether it has already taken a
position. A national court may also ask the Commission
when a decision is likely to be taken, so as to be able to
determine
any decision to stay
the
proceedings or whether
interim measures need to be
adopted (41).

conditions

for

or send it electronically to comp-amicus@cec.eu.int

19. It should be recalled that whatever form the co-operation
with national courts takes, the Commission will respect the
independence of national courts. As a consequence, the
assistance offered by the Commission does not bind the
national court. The Commission has also to make sure that

22. In order to ensure the efficiency of the co-operation with
national courts, the Commission will endeavour to provide
the national court with the requested information within
one month from the date it receives the request. Where
the Commission has to ask the national court for further
clarification of its request or where the Commission has to
consult those who are directly affected by the transmission
of the information, that period starts to run from the
moment that it receives the required information.

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23. In transmitting information to national

courts,

the
Commission has
to uphold the guarantees given to
natural and legal persons by Article 287 EC (42). Article
287 EC prevents members, officials and other servants of
the Commission from disclosing information covered by
the obligation of professional secrecy. The information
covered by professional secrecy may be both confidential
information and business secrets. Business secrets are
information of which not only disclosure to the public
but also mere transmission to a person other than the
one that provided the information might seriously harm
the latter's interests (43).

24. The combined reading of Articles 10 and 287 EC does not
lead to an absolute prohibition for the Commission to
transmit information which is covered by the obligation
of professional secrecy to national courts. The case law of
the Community courts confirms that the duty of loyal
the Commission to provide the
co-operation requires
national court with whatever information the latter asks
for, even information covered by professional secrecy.
However,
in offering its co-operation to the national
courts, the Commission may not in any circumstances
undermine the guarantees laid down in Article 287 EC.

25. Consequently, before transmitting information covered by
professional secrecy to a national court, the Commission
will remind the court of its obligation under Community
law to uphold the rights which Article 287 EC confers on
natural and legal persons and it will ask the court whether
it can and will guarantee protection of confidential
the national court
information and business secrets.
cannot offer such guarantee, the Commission shall not
transmit the information covered by professional secrecy
to the national court (44). Only when the national court
has offered a guarantee that it will protect the confidential
the Commission
information and business secrets, will
transmit the information requested, indicating those parts
which are covered by professional secrecy and which parts
are not and can therefore be disclosed.

If

26. There

are

further

exceptions

to the disclosure of
courts.
information by the Commission to national
Particularly,
the Commission may refuse to transmit
information to national courts for overriding reasons
relating to the need to safeguard the interests of
the
Community or to avoid any interference with its func-
in particular by jeopardising
tioning and independence,
the tasks entrusted to it (45).
the accomplishment of
Therefore, the Commission will not transmit to national

courts information voluntarily submitted by a leniency
applicant without the consent of that applicant.

2. Request for an opinion on questions concerning the
application of EC competition rules

case

law of

the Community courts or

27. When called upon to apply EC competition rules to a case
pending before it, a national court may first seek guidance
in the
in
Commission regulations, decisions, notices and guidelines
applying Articles 81 and 82 EC (46). Where these tools do
not offer sufficient guidance, the national court may ask
the Commission for its opinion on questions concerning
the application of EC competition rules. The national court
may ask the Commission for its opinion on economic,
factual and legal matters (47). The latter
is of course
without prejudice to the possibility or the obligation for
the national court
Justice for a
the
preliminary ruling regarding the interpretation or
validity of Community law in accordance with Article
234 EC.

to ask the Court of

28. In order to enable the Commission to provide the national
court with a useful opinion, it may request the national
court for further information (48). In order to ensure the
efficiency of the co-operation with national courts, the
Commission will endeavour to provide the national court
with the requested opinion within four months from the
date it receives the request. Where the Commission has
requested the national court for further information in
order to enable it to formulate its opinion, that period
starts to run from the moment
the
additional information.

receives

that

it

the national

court with the

29. When giving its opinion, the Commission will limit itself
to providing
factual
information or the economic or legal clarification asked
for, without considering the merits of the case pending
before the national court. Moreover, unlike the authori-
tative
the
Community courts, the opinion of the Commission does
not legally bind the national court.

of Community

interpretation

law by

30. In line with what has been said in point 19 of this notice,
the Commission will not hear the parties before formul-
ating its opinion to the national court. The latter will have
to deal with the Commission's opinion in accordance with
the relevant national procedural
rules, which have to
respect the general principles of Community law.

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3. The Commission's submission of observations to the
national court

(b) cannot make the submission of such observations
excessively difficult or practically impossible
(the
principle of effectiveness) (51); and

31. According to Article 15(3) of the regulation, the national
competition authorities and the Commission may submit
observations on issues
relating to the application of
Articles 81 or 82 EC to a national court which is called
upon to apply those provisions. The regulation distin-
guishes between written observations, which the national
competition authorities and the Commission may submit
on their own initiative, and oral observations, which can
only be submitted with the permission of the national
court (49).

32. The regulation specifies that the Commission will only
submit observations when the coherent application of
Articles 81 or 82 EC so requires. That being the
objective of its submission, the Commission will limit its
observations to an economic and legal analysis of the facts
underlying the case pending before the national court.

33. In order to enable the Commission to submit useful obser-
vations, national courts may be asked to transmit or
ensure the transmission to the Commission of a copy of
all documents that are necessary for the assessment of the
case. In line with Article 15(3), second subparagraph, of
the regulation,
the Commission will only use those
documents for the preparation of its observations (50).

34. Since the regulation does not provide for a procedural
framework within which the observations are to be
submitted, Member States' procedural rules and practices
framework. Where a
determine the relevant procedural
relevant
Member State has not yet
procedural
to
has
determine which procedural rules are appropriate for the
submission of observations in the case pending before it.

established the
court

the national

framework,

35. The procedural framework should respect the principles
set out in point 10 of this notice. That implies amongst
others that the procedural framework for the submission
of observations on issues relating to the application of
Articles 81 or 82 EC

(a) has to be compatible with the general principles of
Community law, in particular the fundamental rights
of the parties involved in the case;

(c) cannot make the submission of such observations
more difficult than the submission of observations in
court proceedings where equivalent national
law is
applied (the principle of equivalence).

B. THE NATIONAL COURTS FACILITATING THE ROLE OF THE
COMMISSION IN THE ENFORCEMENT OF EC COMPETITION RULES

36. Since the duty of

loyal co-operation also implies that
Member States' authorities assist the European institutions
the EC
with a view to attaining the objectives of
Treaty (52), the regulation provides for three examples of
such assistance:
transmission of documents
necessary for the assessment of a case in which the
Commission would like to submit observations (see point
33), (2) the transmission of judgements applying Articles
81 or 82 EC); and (3) the role of national courts in the
context of a Commission inspection.

the

(1)

1. The transmission of

judgements of national courts

applying Articles 81 or 82 EC

37. According to Article 15(2) of

the regulation, Member
States shall send to the Commission a copy of any
written judgement of national courts applying Articles
81 or 82 EC without delay after
the full written
judgement is notified to the parties. The transmission of
national judgements on the application of Articles 81 or
82 EC and the resulting information on proceedings before
national courts primarily enable the Commission to
become aware in a timely fashion of cases for which it
might be appropriate to submit observations where one of
the parties lodges an appeal against the judgement.

2. The role of national courts in the context of a
Commission inspection

38. Finally, national courts may play a role in the context of a
Commission inspection of undertakings and associations of
undertakings. The role of the national courts depends on
whether
conducted in business
are
premises or in non-business premises.

inspections

the

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39. With regard to the inspection of business premises,
national
legislation may require authorisation from a
national court to allow a national enforcement authority
to assist the Commission in case of opposition of the
undertaking concerned. Such authorisation may also be
sought as a precautionary measure. When dealing with
the request, the national court has the power to control
that the Commission's inspection decision is authentic and
that the coercive measures envisaged are neither arbitrary
nor excessive having regard to the subject matter of the
In its control of the proportionality of the
inspection.
coercive measures,
court may ask the
the national
Commission, directly or through the national competition
authority, for detailed explanations in particular on the
grounds the Commission has for suspecting infringement
of Articles 81 and 82 EC, as well as on the seriousness of
the suspected infringement and on the nature of
the
involvement of the undertaking concerned (53).

In that case,
the Commission's

40. With regard to the inspection of non-business premises,
the regulation requires the authorisation from a national
court before a Commission decision ordering such an
the national
inspection can be executed.
court may control
inspection
decision is authentic and that
the coercive measures
envisaged are neither arbitrary nor excessive having
regard in particular to the seriousness of the suspected
infringement, to the importance of the evidence sought,
to the involvement of the undertaking concerned and to
the reasonable likelihood that business books and records
relating to the subject matter of the inspection are kept in

that

the premises for which the authorisation is requested. The
national court may ask the Commission, directly or
through the national competition authority, for detailed
explanations on those elements that are necessary to
allow its control of the proportionality of the coercive
measures envisaged (54).

41. In both cases referred to in points 39 and 40, the national
into question the lawfulness of the
court may not call
Commission's decision or the necessity for the inspection
nor can it demand that it be provided with information in
the Commission's file (55). Furthermore, the duty of loyal
co-operation requires
to take its
decision within an appropriate timeframe that allows the
Commission to effectively conduct its inspection (56).

the national court

IV. FINAL PROVISIONS

42. This notice is issued in order to assist national courts in
the application of Articles 81 and 82 EC. It does not bind
the national courts, nor does it affect the rights and obli-
gations of the EU Member States and natural or legal
persons under Community law.

43. This notice replaces the 1993 notice on co-operation
between national courts and the Commission in applying
Articles 85 and 86 of the EEC Treaty (57).

(1) For the criteria to determine which entities can be regarded as courts or tribunals within the meaning of Article 234 EC, see e.g. case C-516/99
Schmid [2002] ECR I-4573, 34: ‘The Court takes account of a number of factors, such as whether the body is established by law, whether it is
permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is
independent’.

(2) 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, p. 1).

(3) Notice on the co-operation within the network of competition authorities (OJ C 101, 27.4.2004, p. 43). For the purpose of this notice, a ‘national

competition authority’ is the authority designated by a Member State in accordance with Article 35(1) of the regulation.

(4) The jurisdiction of a national court depends on national, European and international rules of jurisdiction. In this context, it may be recalled that
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and
commercial matters (OJ L 12, 16.1.2001, p. 1) is applicable to all competition cases of a civil or commercial nature.

(5) See Article 6 of the regulation.

(6) See Articles 2 and 3 EC, case C-126/97 Eco Swiss [1999] ECR I-3055, 36; case T-34/92 Fiatagri UK and New Holland Ford [1994] ECR II-905,

39 and case T-128/98 Aéroports de Paris [2000] ECR II-3929, 241.

(7) Joined cases C-430/93 and C-431/93 van Schijndel [1995] ECR I-4705, 13 to 15 and 22.

(8) According to the last sentence of recital 8 of Regulation (EC) No 1/2003, the regulation does not apply to national laws which impose criminal
sanctions on natural persons except to the extent that such sanctions are the means whereby competition rules applying to undertakings are
enforced.

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(9) Case T-24/90 Automec [1992] ECR II-2223, 85.

(10) For further clarification of the effect on trade concept, see the notice on this issue (OJ L 101, 27.4.2004, p. 81).

(11) Article 3(1) of the regulation.

(12) See also the notice on the application of Article 81(3) EC (OJ L 101, 27.4.2004, p. 2).

(13) Case 14/68 Walt Wilhelm [1969] ECR 1 and joined cases 253/78 and 1 to 3/79 Giry and Guerlain [1980] ECR 2327, 15 to 17.

(14) Case 106/77 Simmenthal [1978] ECR 629, 21 and case C-198/01, Consorzio Industrie Fiammiferi (CIF) [2003] 49.

(15) E.g. a national court may be asked to enforce a Commission decision taken pursuant to Articles 7 to 10, 23 and 24 of the regulation.

(16) See e.g. case 5/88 Wachauf [1989] ECR 2609, 19.

(17) Joined cases C-215/96 and C-216/96 Bagnasco [1999] ECR I-135, 50.

(18) Case 63/75 Fonderies Roubaix [1976] ECR 111, 9 to 11 and case C-234/89 Delimitis [1991] ECR I-935, 46.

(19) On the parallel or consecutive application of EC competition rules by national courts and the Commission, see also points 11 to 14.

(20) Case 66/86 Ahmed Saeed Flugreisen [1989] ECR 803, 27 and case C-234/89 Delimitis [1991] ECR I-935, 50. A list of Commission guidelines,
in particular the regulations applying Article 81(3) EC to certain categories of
notices and regulations in the field of competition policy,
agreements, decisions or concerted practices, are annexed to this notice. For the decisions of the Commission applying Articles 81 and 82 EC
(since 1964), see http://www.europa.eu.int/comm/competition/antitrust/cases/.

(21) Joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 32.

(22) On the possibility for national courts to ask the Commission for an opinion, see further in points 27 to 30.

(23) On the submission of observations, see further in points 31 to 35.

(24) Case 106/77 Simmenthal [1978] ECR 629, 14 and 15.

(25) Case 68/88 Commission v Greece [1989] ECR 2965, 23 to 25.

(26) On damages in case of an infringement by an undertaking, see case C-453/99 Courage and Crehan [2001] ECR 6297, 26 and 27. On damages in
case of an infringement by a Member State or by an authority which is an emanation of the State and on the conditions of such state liability, see
e.g.
joined cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, 33 to 36; case C-271/91 Marshall v Southampton and South West
Hampshire Area Health Authority [1993] ECR I-4367, 30 and 34 to 35; joined cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame
[1996] ECR I-1029; case C-392/93 British Telecommunications [1996] ECR I-1631, 39 to 46 and joined cases C-178/94, C-179/94 and
C-188/94 to 190/94 Dillenkofer [1996] ECR I-4845, 22 to 26 and 72.

(27) See e.g. case 33/76 Rewe [1976] ECR 1989, 5; case 45/76 Comet [1976] ECR 2043, 12 and case 79/83 Harz [1984] ECR 1921, 18 and 23.

(28) See e.g. case 33/76 Rewe [1976] ECR 1989, 5; case 158/80 Rewe [1981] ECR 1805, 44; case 199/82 San Giorgio [1983] ECR 3595, 12 and

case C-231/96 Edis [1998] ECR I-4951, 36 and 37.

(29) Article 11(6), juncto Article 35(3) and (4) of the regulation prevents a parallel application of Articles 81 or 82 EC by the Commission and a

national court only when the latter has been designated as a national competition authority.

(30) Article 16(1) of the regulation.

(31) The Commission makes the initiation of its proceedings with a view to adopting a decision pursuant to Article 7 to 10 of the regulation public
(see Article 2(2) of Commission Regulation (EC) No 773/2004 of 7 April relating to proceedings pursuant to Articles 81 and 82 of the EC Treaty
(OJ C 101, 27.4.2004). According to the Court of Justice, the initiation of proceedings implies an authoritative act of the Commission, evidencing
its intention of taking a decision (case 48/72 Brasserie de Haecht [1973] ECR 77, 16).

(32) Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34. See further

on this issue point 21 of this notice.

(33) See Article 16(1) of the regulation and case C-234/89 Delimitis [1991] ECR I-935, 47 and case C-344/98 Masterfoods [2000] ECR I-11369, 51.

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(34) Case 314/85 Foto-Frost [1987] ECR 4199, 12 to 20.

(35) See Article 16(1) of the regulation and case C-344/98 Masterfoods [2000] ECR I-11369, 52 to 59.

(36) Case C-344/98 Masterfoods [2000] ECR, I-11369, 58.

(37) Case C-2/88 Imm Zwartveld [1990] ECR I-3365, 16 to 22 and case C-234/89 Delimitis [1991] I-935, 53.

(38) C-94/00 Roquette Frères [2002] ECR 9011, 31.

(39) On the compatibility of such national procedural rules with the general principles of Community law, see points 9 and 10 of this notice.

(40) On these duties, see e.g. points 23 to 26 of this notice.

(41) Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34.

(42) Case C-234/89 Delimitis [1991] I-935, 53.

(43) Case T-353/94 Postbank [1996] ECR II-921, 86 and 87 and case 145/83 Adams [1985] ECR 3539, 34.

(44) Case C-2/88 Zwartveld [1990] ECR I-4405, 10 and 11 and case T-353/94 Postbank [1996] ECR II-921, 93.

(45) Case C-2/88 Zwartveld [1990] ECR I-4405, 10 and 11; case C-275/00 First and Franex [2002] ECR I-10943, 49 and case T-353/94 Postbank

[1996] ECR II-921, 93.

(46) See point 8 of this notice.

(47) Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34.

(48) Compare with case 96/81 Commission v the Netherlands [1982] ECR 1791, 7 and case 272/86 Commission v Greece [1988] ECR 4875, 30.

(49) According to Article 15(4) of the regulation, this is without prejudice to wider powers to make observations before courts conferred on national

competition authorities under national law.

(50) See also Article 28(2) of the regulation, which prevents the Commission from disclosing the information it has acquired and which is covered by

the obligation of professional secrecy.

(51) Joined cases 46/87 and 227/88 Hoechst [1989] ECR, 2859, 33. See also Article 15(3) of the regulation.

(52) Case C-69/90 Commission v Italy [1991] ECR 6011, 15.

(53) Article 20(6) to (8) of the regulation and case C-94/00 Roquette Frères [2002] ECR 9011.

(54) Article 21(3) of the regulation.

(55) Case C-94/00 Roquette Frères [2002] ECR 9011, 39 and 62 to 66.

(56) See also ibidem, 91 and 92.

(57) OJ C 39, 13.2.93, p. 6.

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COMMISSION BLOCK EXEMPTION REGULATIONS, NOTICES AND GUIDELINES

ANNEX

This list is also available and updated on the website of the Directorate General for Competition of the European
Commission:

http://europa.eu.int/comm/competition/antitrust/legislation/

1. Notices of a general nature

A. Non-sector specific rules

— Notice on the definition of the relevant market for the purposes of Community competition law (OJ C 372,

9.12.1997, p. 5)

— 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, 22.12.2001, p. 13)

— Notice on the effect on trade concept contained in Articles 81 and 82 of the Treaty (OJ C 101, 27.4.2004, p. 81)

— Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.4.2004, p. 2)

2. Vertical agreements

— Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to

categories of vertical agreements and concerted practices (OJ L 336, 29.12.1999, p. 21)

— Guidelines on Vertical Restraints (OJ C 291, 13.10.2000, p. 1)

3. Horizontal co-operation agreements

— Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to

categories of specialisation agreements (OJ L 304, 5.12.2000, p. 3)

— Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to

categories of research and development agreements (OJ L 304, 5.12.2000, p. 7)

— Guidelines on the applicability of Article 81 to horizontal co-operation agreements (OJ C 3, 6.1.2001, p. 2)

4. Licensing agreements for the transfer of technology

— Regulation (EC) No 773/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of

technology transfer agreements (OJ L 123, 27.4.2004)

— Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements (OJ C 101,

27.4.2004, p. 2)

1. Insurance

B. Sector specific rules

— Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain
categories of agreements, decisions and concerted practices in the insurance sector (OJ L 53, 28.2.2003, p. 8)

2. Motor vehicles

— Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of

vertical agreements and concerted practices in the motor vehicle sector (OJ L 203, 1.8.2002, p. 30)

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3. Telecommunications and postal services

— Guidelines on the application of EEC competition rules in the telecommunications sector (OJ C 233, 6.9.1991,

p. 2)

— Notice on the application of the competition rules to the postal sector and on the assessment of certain State

measures relating to postal services (OJ C 39, 6.2.1998, p. 2)

— Notice on the application of the competition rules to access agreements in the telecommunications sector —

Framework, relevant markets and principles (OJ C 265, 22.8.1998, p. 2)

— Guidelines on market analysis and the assessment of significant market power under the Community regulatory

framework for electronic communications networks and services (OJ C 165, 11.7.2002, p. 6)

4. Transport

— Regulation (EEC) No 1617/93 on the application of Article 81(3) of the Treaty to certain categories of
agreements and concerted practices concerning joint planning and co-ordination of schedules, joint operations,
consultations on passenger and cargo tariffs on scheduled air services and slot allocation at airports (OJ L 155,
26.6.1993, p. 18)

— Communication on clarification of the Commission recommendations on the application of the competition

rules to new transport infrastructure projects (OJ C 298, 30.9.1997, p. 5)

— Regulation (EC) No 823/2000 of 19 April 2000 on the application of Article 81(3) of the Treaty to certain
categories of agreements, decisions and concerted practices between liner shipping companies (consortia)
(OJ L 100, 20.4.2000, p. 24)