Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (Text with EEA relevance)
Date: 2008-06-30
Institutions: European Commission
Subjects: competition law, complaint to the Commission, infringement procedure (EU), restrictive trade practice

1.7.2008

EN

Official Journal of the European Union

L 171/3

COMMISSION REGULATION (EC) No 622/2008

of 30 June 2008

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

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

forward their views on the objections which the
Commission intends to raise against them as well as
on their potential liability.

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),

consulting the Advisory Committee on Restrictive

After
Practices and Dominant Positions,

Whereas:

(1)

(2)

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.

Parties
to the proceedings may be prepared to
acknowledge their participation in a cartel violating
Article 81 of the Treaty and their liability in respect of
such participation, if they can reasonably anticipate the
Commission's envisaged findings as regards their partici-
pation in the infringement and the level of potential fines
and agree with those findings. It should be possible for
the Commission to disclose to those parties, where
appropriate,
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

the objections which it

(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 50, 27.10.2007, 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).

(3) When the Commission reflects the parties’ settlement
submissions in the statement of objections and the
parties’ replies confirm that the statement of objections
settlement
corresponds
submissions,
to
able
to
proceed to the adoption of a Decision pursuant
Article 7 and Article 23 of Regulation (EC) No 1/2003
after
the Advisory Committee on
Restrictive Practices and Dominant Positions pursuant
to Article 14 of Regulation (EC) No 1/2003.

to the
contents of
the Commission should be

consultation of

their

(4)

(5)

the

procedure

discontinue

A settlement procedure should therefore be established in
order to enable the Commission to handle faster and
more efficiently cartel cases. The Commission retains a
broad margin of discretion to determine which cases may
be suitable to explore the parties’ interest to engage in
settlement discussions, as well as to decide to engage in
them or discontinue
to definitely settle.
them or
the Commission may decide at any time
Therefore,
during
settlement
to
discussions altogether in a specific case or with respect
to one or more of the parties. In this regard, account
may be taken of the probability of reaching a common
the potential
understanding regarding the scope of
objections with the parties involved within a reasonable
timeframe, in view of factors such as number of parties
involved, foreseeable conflicting positions on the attri-
bution of liability, extent of contestation of the facts.
The prospect of achieving procedural efficiencies
in
view of
in the settlement
procedure,
including any unreasonable delays, such as
delays associated with the resources required to provide
access to non-confidential versions of documents from
the file, will be considered. Other concerns such as the
possibility of setting a precedent may also be considered.

the progress made overall

Complainants will be closely associated with settlement
proceedings and be duly informed of the nature and
the procedure in writing to enable
subject matter of
them to provide
thereon and thereby
their views
cooperate with the Commission investigation. However,
settlement proceedings,
in the particular context of
providing systematically a non-confidential version of
the statement of objections to complainants would not
always serve the purpose of enabling complainants to
cooperate with the Commission's investigation and may
occasionally discourage the parties to the proceedings
from cooperating with the Commission. To this end,
the Commission should not be obliged to provide a
non-confidential version of the statement of objections
to complainants.

L 171/4

EN

Official Journal of the European Union

1.7.2008

(6)

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

submissions. The Commission shall not be obliged to take
into account replies received after the expiry of that time
limit.

HAS ADOPTED THIS REGULATION:

Article 1

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

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

to engage

to the first subparagraph,

If two or more parties within the same undertaking indicate
in settlement discussions
their willingness
pursuant
they shall appoint a
representation to engage in discussions with the
joint
Commission on their behalf. When setting the time limit
referred to in the first subparagraph, the Commission shall
indicate to the relevant parties that they are identified within
the same undertaking, for the sole purpose of enabling them
to comply with this provision.

than the date on which it

‘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
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 notice pursuant to Article 27(4) of
that Regulation is published, whichever is the earlier.’

Parties taking part in settlement discussions may be

2.
informed by the Commission of:

(a)

the objections it envisages to raise against them;

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

(b) the evidence used to determine the envisaged objections;

a

the Commission issues

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

(c) non-confidential versions of any specified accessible
document listed in the case file at that point in time,
in so far as a request by the party is justified for the
purpose of enabling the party to ascertain its position
regarding a time period or any other particular aspect of
the cartel; and

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

(d) the range of potential fines.

The Commission shall inform the parties concerned of
statement of
the

‘1.
the objections
objections
parties against whom objections are raised.’

shall be notified in writing to each of

raised against

them. The

This information shall be confidential vis-à-vis third parties,
save where the Commission has given a prior explicit auth-
orisation for disclosure.

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
discussions with a view to possibly introducing settlement

of

the

the

results

reflecting

Should settlement discussions progress, the Commission may
set a time limit within which the parties may commit to
follow the settlement procedure by introducing settlement
settlement
submissions
discussions and acknowledging their participation in an
infringement of Article 81 of the Treaty as well as their
to
liability. Before the Commission sets a time limit
parties
introduce
the
concerned shall be
information
specified in Article 10a(2), first subparagraph disclosed to
them, upon request, in a timely manner. The Commission
shall not be obliged to take into account
settlement
submissions received after the expiry of that time limit.

entitled to have

submissions,

settlement

their

the

1.7.2008

EN

Official Journal of the European Union

L 171/5

3. When the statement of objections notified to the
parties reflects the contents of their 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
addressed to them reflects the contents of their settlement
submissions. The Commission may then proceed to the
adoption of
to Article 7 and
Article 23 of Regulation (EC) No 1/2003 after consultation
the Advisory Committee on Restrictive Practices and
of
Dominant Positions pursuant to Article 14 of Regulation
(EC) No 1/2003.

a Decision pursuant

4.
The Commission may decide at any time during the
procedure to discontinue settlement discussions altogether in
a specific case or with respect to one or more of the parties
involved, if it considers that procedural efficiencies are not
likely to be achieved.’

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

‘1.
The Commission shall give the parties to whom it
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:

‘Article 12

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

if

when

However,

introducing

2.
settlement
submissions the parties shall confirm to the Commission
they would only require having the opportunity to
that
develop their
the
arguments
statement of objections does not reflect
the contents of
their settlement submissions.’

an oral hearing,

their

at

if

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

the

After

initiation of proceedings pursuant

‘1a.
to
Article 11(6) of Regulation (EC) No 1/2003 and in order
settlement
the parties willing to introduce
to enable
the Commission shall disclose to
submissions to do so,
them the
in
and
evidence
Article 10a(2) upon request and subject to the conditions
established in the relevant subparagraphs. 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 reflect
the contents of their settlement submissions.’

documents

described

8. Article 17 is amended as follows:

(a) paragraph 1 is replaced by the following:

time

In setting the

limits provided for

‘1.
in
Article 3(3), Article 4(3), Article 6(1), Article 7(1),
10a(2),
Article
Article 10a(3) 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

Article

10(2),

(b) paragraph 3 is replaced by the following:

The

least

time

limits

two weeks. The time limit

‘3.
referred to in Article 4(3),
Article 10a(1), Article 10a(2) and Article 16(3) shall be
referred to in
at
Article 3(3) shall be at
for
least
settlement submissions, for which corrections shall be
made within one week. The time limit referred to in
Article 10a(3) shall be at least two weeks.’

two weeks, except

Article 2

This Regulation shall enter into force on 1 July 2008.

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

Done at Brussels, 30 June 2008.

For the Commission

Neelie KROES
Member of the Commission