Proposal for a Commission Regulation (EC) No …/… of […] amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (Text with EEA relevance)
Date: 2007-10-27
Institutions: European Commission
Subjects: competition law, complaint to the Commission, infringement procedure (EU), restrictive trade practice

C 255/48

EN

Official Journal of the European Union

27.10.2007

PROPOSAL FOR A COMMISSION REGULATION (EC) No …/…

of […]

amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel
cases

(Text with EEA relevance)

(2007/C 255/19)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

Having regard to the Agreement on the European Economic
Area,

Having regard to Council Regulation (EC) No 1/2003 of
16 December 2002 on the implementation of the rules on
competition laid down in Articles 81 and 82 of the Treaty (1),
and in particular Article 33 thereof,

Having published a draft of this Regulation (2),

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

Whereas:

(4)

(5)

A settlement procedure should therefore be established in
order to enable the Commission to handle cartel cases
faster by reaching an agreement with the parties.

shown that

to cooperate with

Experience has
systematically providing
the
complainants with a non-confidential version of
statement of objections can have negative consequences
as regards the willingness of the parties to the proceed-
ings
the Commission. While
complainants should continue to be closely associated
with the proceedings and be informed of and able to
provide their views on the nature and subject matter of
the procedure in writing, it should be for the Commis-
sion to determine how such written information should
be given in a particular case.

(6)

Regulation (EC) No 773/2004 should therefore be
amended accordingly,

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 (3) lays down rules concerning the participation of
the parties concerned in such proceedings.

HAS ADOPTED THIS REGULATION:

(1)

(2)

Parties to the proceedings may be prepared to acknowl-
edge their participation in a cartel violating Article 81 of
the Treaty and their liability in respect of such participa-
tion, if they can reasonably anticipate the Commission's
envisaged findings as regards their participation in the
infringement and the level of potential fines and agree
with those findings.
the
Commission to disclose to those parties, where appro-
priate, the objections which it intends to raise against
them on the basis of the evidence in the file and the fines
that they are likely to incur. Such early disclosure should
enable the parties concerned to put forward their views
on the objections which the Commission intends to raise
against them as well as on their potential liability.

should be possible for

It

(3) When the Commission endorses the parties' written
settlement submissions in the statement of objections
and, in their replies, the parties confirm that the state-
ment of objections corresponds to the contents of their
written submissions, the Commission should be able to
proceed immediately to the adoption of a decision
pursuant to Article 7 and Article 23 of Regulation (EC)
No 1/2003 after consultation of the Advisory Committee
on Restrictive Practices and Dominant Positions pursuant
to Article 14 of Regulation (EC) No 1/2003.

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

No 1419/2006 (OJ L 269, 28.9.2006, p. 1).

(2) OJ C 255, 30.10.2007, p. 48.
(3) OJ L 123, 27.4.2004, p. 18. Regulation as amended by Regulation (EC)

No 1792/2006 (OJ L 362, 20.12.2006, p. 1).

Article 1

Regulation (EC) No 773/2004 is amended as follows:

1. Article 2, paragraph 1 is replaced by the following

‘1.
The Commission may decide to initiate proceedings
with a view to adopting a decision pursuant to Chapter III of
Regulation (EC) No 1/2003 at any point in time, but no later
than the date on which it issues a preliminary assessment as
referred to in Article 9(1) of that Regulation, a statement of
objections or a request for the parties to express their interest
in engaging in settlement discussions, or the date on which a
that Regulation is
notice pursuant
published, whichever is the earlier.’

to Article 27(4) of

2. In Article 6, paragraph 1 is replaced by the following:

‘1. Where the Commission issues a statement of objec-
tions relating to a matter in respect of which it has received
a complaint, it shall inform the complainant in writing of
the nature and subject matter of the procedure and set a
time-limit within which the complainant may make known
its views in writing. The Commission may also provide the
complainant with a copy of the non-confidential version of
the statement of objections.’

27.10.2007

EN

Official Journal of the European Union

C 255/49

3. In Article 10, paragraph 1 is replaced by the following:

The Commission shall inform the parties concerned of
‘1.
the objections raised against them. The statement of objec-
tions shall be notified in writing to each of
the parties
against whom objections are raised.’

4. The following Article 10a is inserted:

‘Article 10a

Settlement procedure in cartel cases

the

After

initiation of proceedings pursuant

1.
to
Article 11(6) of Regulation (EC) No 1/2003, the Commission
may set a time-limit within which the parties may indicate in
writing that they are prepared to engage in settlement discus-
sions with a view to possibly introducing settlement submis-
sions. The Commission shall not be obliged to take into
account replies received after the expiry of that time-limit.

If two or more parties belonging to the same undertaking
indicate that they are willing to engage in settlement discus-
sions pursuant to the first subparagraph, those parties shall
appoint a joint representation to engage in discussions with
the Commission on their behalf.

The Commission may inform the parties willing to

2.
introduce settlement submissions of:

(a) the objections it envisages to raise against them;

(b) the evidence supporting them, and

(c) the potential fines.

Should settlement discussions progress to a stage in which
the above mentioned information has been disclosed upon
request or made available to the parties otherwise,
the
Commission may set a time-limit within which the parties
may commit to follow the settlement procedure by intro-
ducing written settlement submissions reflecting the results
of the settlement discussions and acknowledging their parti-
cipation in an infringement of Article 81 of the Treaty as
well as their liability. The Commission shall not be obliged
to take into account written settlement submissions received
after the expiry of that time-limit.

3. When the statement of objections notified to the
parties endorses the contents of
their written settlement
submissions, the written reply to the statement of objections
by the parties concerned shall, within a time-limit set by the
the statement of objections
Commission, confirm that
their
addressed to them corresponds to the contents of
written settlement submissions. The Commission may then
proceed immediately to the adoption of a decision pursuant
to Article 7 and Article 23 of Regulation (EC) No 1/2003

after consultation of the Advisory Committee on Restrictive
Practices and Dominant Positions pursuant to Article 14 of
Regulation (EC) No 1/2003.’

5. Article 11(1) is replaced by the following:

The Commission shall give the parties to whom it
‘1.
addresses a statement of objections the opportunity to be
heard before consulting the Advisory Committee referred to
in Article 14(1) of Regulation (EC) No 1/2003’

6. Article 12 is replaced by the following:

‘1.
The Commission shall give the parties to whom it
addresses a statement of objections the opportunity to
develop their arguments at an oral hearing, if they so request
in their written submissions.’

‘2.
However, when introducing their written settlement
submissions the parties shall confirm to the Commission
that
they would only require having the opportunity to
develop their arguments at an oral hearing, if the statement
of objections does not endorse the contents of their written
settlement submissions.’

7. In Article 15, the following paragraph 1a is added:

the

After

initiation of proceedings pursuant

‘1a.
to
Article 11(6) of Regulation (EC) No 1/2003, the Commission
shall disclose, where appropriate, the evidence supporting
the envisaged objections to parties willing to introduce settle-
ment submissions in order to enable them to do so. In view
thereof, when introducing their settlement submissions the
parties shall confirm to the Commission that they will only
require access to the file after the receipt of the statement of
objections, if the statement of objections does not endorse
the contents of their written settlement submissions.’

8. Article 17(1) and Article 17(3) are replaced by the following:

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

10a(1), Article

10a(2), Article

10a(3)

‘3.
The time-limits referred to in Article 3(3), Article 4(3),
Article 10a(1), Article 10a(2) and Article 16(3) shall be at
least two weeks. The time-limit referred to in Article 10a(3)
shall be at least one week.’

Article 2

This Regulation shall enter into force on [date].

C 255/50

EN

Official Journal of the European Union

27.10.2007

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

Done at Brussels, […]

For the Commission

Neelie KROES

Member of the Commission