Commission staff working paper accompanying the Communication from the Commission to the European Parliament and Council - Report on the functioning of Regulation 1/2003 {COM(2009)206 final}
Date: 2009-04-29
Institutions: European Commission
Subjects: European Commission, agreement (EU), anti-trust legislation, competition law, trade agreement

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.4.2009 
SEC(2009) 574 final 

COMMISSION STAFF WORKING PAPER  
accompanying the  
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND COUNCIL 

Report on the functioning of Regulation 1/2003 

{COM(2009)206 final} 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

Introduction .................................................................................................................. 6 

System change: from the notification system to direct application of Article 81(3) EC
...................................................................................................................................... 8 

Background .................................................................................................................. 8 

The change in system after 5 years experience with Regulation 1/2003 ..................... 9 

2.2.1.  The Commission’s enhanced priority setting............................................................... 9 

2.2.2.  Case practice under Article 81(3) EC ........................................................................ 11 

2.2.3.  Application of Article 81(3) EC by national competition authorities........................ 14 

2.2.4.  Case practice of national courts ................................................................................. 15 

2.3. 

2.4. 

3. 

3.1. 

3.2. 

Legal certainty debate and guidance practice ............................................................ 16 

The rule on burden of proof in Article 2 .................................................................... 18 

Commission procedures – how the Commission has used its tools under the 
Regulation for effective enforcement......................................................................... 20 

Background ................................................................................................................ 20 

The Commission's increased investigative powers.................................................... 21 

3.2.1. 

Introduction ................................................................................................................ 21 

3.2.2.  Sector inquiries........................................................................................................... 21 

3.2.3. 

Inspections in business premises................................................................................ 25 

3.2.4.  Commission inspections in non-business premises ................................................... 26 

3.2.5.  Legal professional privilege....................................................................................... 26 

3.2.6. 

Inspections by national competition authorities at the request of the Commission... 27 

3.2.7.  Requests for information............................................................................................ 28 

3.2.8.  Voluntary Interviews.................................................................................................. 28 

3.3. 

Types of Commission Decisions in the new enforcement system............................. 28 

3.3.1.  Prohibition decisions (Article 7) ................................................................................ 29 

3.3.2.  Commitment decisions (Article 9) ............................................................................. 31 

3.3.3.  Effects of commitment decisions ............................................................................... 34 

3.3.4. 

Interim Measures (Article 8)...................................................................................... 35 

3.3.5.  Finding of inapplicability (Article 10) ....................................................................... 36 

3.4. 

Handling of complaints .............................................................................................. 37 

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3.4.1.  General ....................................................................................................................... 37 

3.4.2.  Non-priority complaints ............................................................................................. 37 

3.4.3. 

Involvement of complainants in priority cases .......................................................... 38 

3.5. 

Fines and periodic penalty payments ......................................................................... 39 

3.5.1.  The Commission's power to impose fines.................................................................. 39 

3.5.2.  New developments ..................................................................................................... 40 

3.5.3.  The Guidelines on fines ............................................................................................. 40 

3.5.4.  The 2006 Leniency Notice ......................................................................................... 41 

3.5.5.  Settlement procedure.................................................................................................. 42 

3.5.6.  Recovery of fines from members of associations of undertakings ............................ 42 

3.5.7.  Fines for procedural infringements – seals case ........................................................ 43 

3.5.8.  Periodic penalty payments to enforce prohibition decisions...................................... 43 

4. 

4.1. 

4.2. 

Application of EC competition law in accordance with Article 3 of Regulation 
1/2003......................................................................................................................... 44 

Introduction ................................................................................................................ 44 

Obligation to apply Articles 81 and 82 EC ................................................................ 45 

4.2.1.  Effect on trade criterion and case record.................................................................... 45 

4.2.2.  Experience with parallel application.......................................................................... 47 

4.3. 

4.4. 

The convergence rule ................................................................................................. 48 

Exception from the convergence rule for unilateral conduct ..................................... 49 

4.4.1.  National rules concerning economic dependence and similar situations................... 49 

4.4.2.  Prohibition of resale below cost or at loss ................................................................. 52 

4.4.3.  Stricter national rules concerning dominance and dominant undertakings ............... 53 

4.4.4.  Evaluation and feedback ............................................................................................ 54 

4.5. 

Questions relating to the scope of Article 3 ............................................................... 55 

5. 

Effective and coherent enforcement by more enforcers – the contribution of the 
Member States' competition authorities and the European Competition network 
(ECN) ......................................................................................................................... 56 

5.1. 

National competition authorities as enforcers of the EU competition rules .............. 56 

5.1.1.  Enforcement record of the authorities in the ECN..................................................... 56 

5.1.2.  Evolving Structure of National Competition Authorities .......................................... 58 

5.1.3.  Powers of the National Competition Authorities to apply Articles 81 and 82 EC .... 60 

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5.1.4.  Powers of the National Competition Authorities pursuant to Article 5 ..................... 60 

5.1.5.  Convergence and Divergence of national competition authorities' powers ............... 61 

5.2. 

Cooperation between enforcers.................................................................................. 63 

5.2.1.  Work sharing in the network – principles .................................................................. 63 

5.2.2.  Work sharing – practical experience.......................................................................... 65 

5.3. 

ECN cooperation in the field of leniency................................................................... 67 

5.3.1.  The ECN Model Leniency Programme...................................................................... 67 

5.3.2.  Way forward............................................................................................................... 69 

5.3.3.  Safeguards for leniency information within the ECN................................................ 69 

5.4. 

Cooperation for fact-finding purposes ....................................................................... 70 

5.4.1. 

Information exchange pursuant to Article 12 of Regulation 1/2003.......................... 70 

5.4.2.  Assistance pursuant to Article 22 of Regulation 1/2003............................................ 72 

5.5. 

The ECN as a forum to promote coherent application............................................... 72 

5.5.1.  Horizontal work in the ECN ...................................................................................... 72 

5.5.2.  Work on individual cases and envisaged decisions ................................................... 74 

5.5.3.  Article 11(6) ............................................................................................................... 76 

5.6. 

Confidentiality of information ................................................................................... 77 

5.6.1.  The principle of professional secrecy in the network ................................................ 77 

5.6.2.  Confidentiality of exchanges of views in the network............................................... 77 

5.7. 

Concluding remark..................................................................................................... 78 

6. 

6.1. 

6.2. 

Interaction with national courts.................................................................................. 78 

Application of Articles 81 and 82 EC by national courts .......................................... 78 

Application of Article 15 of Regulation 1/2003 ........................................................ 80 

6.2.1.  Opinions ..................................................................................................................... 80 

6.2.2. 

"Amicus curiae" observations .................................................................................... 81 

6.2.3.  Transmission of judgments ........................................................................................ 83 

6.2.4.  Training of judges ...................................................................................................... 84 

7. 

7.1. 

7.2. 

Interface with third country enforcement................................................................... 84 

Private litigation in third jurisdictions........................................................................ 84 

Third country public authorities................................................................................. 87 

7.2.1.  Enforcement cooperation ........................................................................................... 87 

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7.2.2.  Disclosure to third country public authorities............................................................ 88 

8. 

Conclusion.................................................................................................................. 89 

ANNEX.................................................................................................................................... 90 

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1. 

1. 

2. 

INTRODUCTION 

Regulation  1/20031,  the  keystone  of  the  modernisation  of  the  European  Union's 
antitrust enforcement rules and procedures, entered into application on 1 May 2004. 
Article 44 of Regulation 1/2003 provides that the Commission shall by 1 May 2009, 
i.e. after five years of application, report to the European Parliament and the Council 
on its functioning. 

Regulation  1/2003  was  the  result  of  the  most  comprehensive  reform  of  antitrust 
procedures  since  1962.2  It  modernised  the  procedural  rules  embodied  in  Council 
Regulation  17  of  19623,  which  govern  how  the  EC  Treaty's  provisions  on  anti-
competitive agreements (Article 81 EC) and abuses of dominant position (Article 82 
EC) are enforced.4 Its key objectives  are effective and  coherent enforcement of the 
EC antitrust rules in the interests of consumers and businesses, while bringing about 
a more level playing field and reducing red tape for companies operating in Europe.  

3. 

The main features of Regulation 1/2003 are:  

– 

– 

The  abolition  of  the  practice  of  notifying  business  agreements  to  the 
Commission,  enabling  the  Commission  to  focus  its  resources  on  the 
important fight against cartels and other serious violations of the antitrust 
rules. 

The empowerment of national competition authorities and courts to apply 
EC antitrust rules in their entirety, so that there are multiple enforcers and 
therefore wider application of the EC antitrust rules.  

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4 

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,  04.01.2003,  p.1), as  amended  by 
Council  Regulation  (EC)  No  411/2004  of  26  February  2004  repealing  Regulation  (EEC)  No  3975/87 
and  amending  Regulations  (EEC)  No  3976/87  and  (EC)  No  1/2003,  in  connection  with  air  transport 
between the Community and third countries (OJ L 68, 6.3.2004, p.1) and Council Regulation (EC) No 
1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules 
for the application of Articles 85 and 86 of the Treaty to maritime transport, and amending Regulation 
(EC)  No  1/2003  as  regards  the  extension  of  its  scope  to  include  cabotage  and  international  tramp 
services  (OJ  L  269,  28.09.2006,  p.  1),  hereinafter  "Regulation  1/2003".  Articles  quoted  in  the  text 
without specific references relate to articles of Regulation 1/2003. 
See the White Paper on Modernisation of the Rules implementing Articles 85 and 86 of the EC Treaty 
of  28.04.1999,  OJ  C  132  of  12.05.1999,  p.  1,  and  the  proposal  for  a  Council  Regulation  on  the 
implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and amending 
Regulations  (EEC)  No  1017/68,  (EEC)  No  2988/74,  (EEC)  No  4056/86  and  (EEC)  No  3975/87  of 
27.9.2000, OJ C 365 E, 19.12.2000, p.284. 
Council Regulation No 17 (EEC): First Regulation implementing Articles 85 and 86 of the Treaty (OJ P 
13, 21.02.1962, p.204), hereinafter "Regulation 17". 
To the extent that the Commission applies Articles 53 and 54 of the EEA Agreement (if trade between 
one  or  more  EU  Member  States  and  one  or  more  EFTA  Member  States  which  have  ratified  the 
Agreement is affected) it does so in accordance with its existing procedural rules, namely Regulation 
1/2003,  on  the  basis  of  Article  5  of  Council  Regulation  2894/94  concerning  arrangements  for 
implementing  the  Agreement  on  the European  Economic  Area, OJ  L 305,  30.11.1994,  p. 6–8.To  this 
end,  see  Decision  of  the  EEA  Joint  Committee  of  24.09.2004  amending  Annex  XIV  (Competition), 
Protocol 21 (On the implementation of competition rules applicable to undertakings) and Protocol 23 
(Concerning the cooperation between the surveillance authorities) to the EEA Agreement, OJ L 64, of 
10.03.2005, p.57. 

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–  More  level  playing  field  for  businesses  operating  cross-border  as  all 
competition enforcers, including the national competition authorities and 
national courts, are obliged to apply EC antitrust rules to cases that affect 
trade between Member States.  

– 

– 

Close  cooperation  between  the  Commission  and  national  competition 
authorities in the European Competition Network (the "ECN"). 

Enhanced  enforcement  tools  for  the  Commission  so  that  it  is  better 
equipped to detect and address breaches of the EC antitrust rules. 

In  the  context  of  Regulation  1/2003,  the  Commission  further  adopted  the 
implementing Regulation 773/20045 as well as guidance on the cooperation of public 
enforcers  in  the  ECN,  the  Commission's  mechanisms  for  cooperation  with  national 
courts,  the  instrument  of  guidance  letters  and  the  handling  of  complaints  by  the 
Commission and guidelines on the criterion of effect on trade and the application of 
Article 81(3) EC.6  

The  preparation  of  the  Report  has  involved  a  fact-finding  phase  in  which  the 
experience of stakeholders has been solicited. A public consultation was launched on 
24 July  2008,  which  consisted  of specific questions on the different  features of the 
Regulation  and  sought  substantiated  input.  This  questionnaire  was  made  public  on 
the Commission's website7 and was also sent to individual consumer associations and 
judges'  associations  in  order  to  maximise  its  reach.  The  Commission  received  45 
submissions  from  businesses  and  business  associations,  law  firms,  lawyers' 
associations  and  academia.8  The  Member  States'  competition  authorities  ("national 
competition  authorities")  have  been  closely  associated  with  the  preparation  of  this 
Report and have provided detailed input.  

This Staff Working Paper, which accompanies the Report, follows the same structure 
and is divided into six main sections that address the principal facets of Regulation 
1/2003 and its functioning in practice: part 2 deals with the system change from the 
notification system to direct application of Article 81(3) EC; part 3 reports on how 
the  Commission  has  used  the  tools  provided  by  the  Regulation  for  effective 
enforcement in its enforcement procedures; part 4 examines how the Regulation has 
led  to  more  level  playing  field  through  the  application  of  EC  competition  law  in 

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  L  123,  27.04.2004,  p.18),  as 
amended by 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 (OJ L 171, 01.07.2008, p. 3). 
The  Modernisation  Package,  cf.  Commission  Notice  on  Cooperation  within  the  Network  of 
Competition Authorities (OJ C 101, 27.04.2004, p.43), Commission Notice on Cooperation between the 
Commission and the Courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 
101,  27.04.2004,  p.54),  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) (OJ C 
101, 27.04.2004, p.78), Commission Notice on the Handling of Complaints by the Commission under 
Articles 81 and 82 of the EC Treaty, (OJ C 101, 27.04.2004, p.65), Guidelines on the effect on trade 
concept contained in Articles 81 and 82 of the Treaty (OJ C 101, 27.04.2004, p.81) and Guidelines on 
the application of Article 81(3) of the Treaty (OJ C 101, 27.04.2004, p.97). 
http://ec.europa.eu/comm/competition/antitrust/consultations/consultation_1_2003.pdf. 
The 
http://ec.europa.eu/competition/consultations/2008_regulation_1_2003/index.html 

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accordance with Article 3 of Regulation 1/2003; part 5 looks into the enforcement of 
Articles  81  and  82  EC  by  national  competition  authorities  and  cooperation  in  the 
ECN;  part  6  addresses  the  interaction  of  the  Commission  with  national  courts  and 
part 7 raises certain aspects of the interface with third country enforcement.  

7. 

The  aim  of  the  Report  is  to  understand  and  assess  how  modernisation  of  the  EC 
antitrust enforcement during the first five years has worked. The Report is a stock-
taking exercise and therefore it leaves open the question of whether any amendment 
to  the  existing  rules  or  practice  is  required.  It  will  serve  as  a  basis  for  the 
Commission  to  assess,  in  a  further  stage,  whether  it  is  appropriate  to  propose  any 
revision of the Regulation. 

2. 

SYSTEM  CHANGE:  FROM  THE  NOTIFICATION  SYSTEM  TO  DIRECT  APPLICATION  OF 
ARTICLE 81(3) EC 

2.1. 

Background 

8. 

9. 

10. 

Regulation 1/2003 introduced a fundamental change in the framework for applying 
Articles  81  and  82  EC.  It  replaced  the  centralised  notification  and  authorisation 
system which was created by Regulation 17 by an enforcement system based on the 
direct application of Articles 81 and 82 in their entirety.  

Under  Regulation  17,  undertakings  had  to  notify  agreements  to  the  Commission  in 
order to benefit from the exception contained in Article 81(3) EC. The Commission 
had  exclusive  competence  to  apply  this  provision  by  way  of  formal  exemption 
decisions, with national competition authorities and courts not being empowered to 
grant  exemptions.  The  Commission's  monopoly  on  the  application  of  Article  81(3) 
EC and the system of prior notification and administrative authorisation resulted in a 
significant  backlog  of  notifications,  the  closure  of  90%  of  notifications  informally 
and a diversion of resources away from the investigation and prosecution of serious 
antitrust infringements.  

Under  Regulation  1/2003,  the  Commission,  national  competition  authorities  and 
courts  have  the  power  to  apply  Articles  81  and  82  EC  in  full.9  In  particular, 
agreements which are caught by Article 81(1) EC but which satisfy the conditions of 
Article  81(3)  EC  are  now  directly  valid  and  enforceable,  no  prior  decision  to  that 
effect being required.10
 Undertakings can now invoke the exception rule contained in 
Article 81(3) EC as a defence in proceedings conducted by the Commission, national 
competition authorities and courts. At the same time, agreements or practices which 
are caught by Article 81(1) EC and do not fulfil the conditions of Article 81(3) EC 
are prohibited and void ab initio, without the need for prior administrative or judicial 
intervention.11 

11. 

The change from a system of notification and administrative authorisation to one of 
direct application has been remarkably smooth in practice. Overall, neither the case 

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Articles 5 and 6 of Regulation 1/2003 state that the competition authorities of the Member States and 
the national courts have the power to apply Articles 81 and 82 EC. 
Article 1(2) of Regulation 1/2003. 
Article 1(1) of Regulation 1/2003. 

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practice  of  the  Commission  and  the  national  enforcers,  nor  the  experience  reported 
by  the  business  and  legal  community  indicate  major  difficulties  with  the  direct 
application of Article 81(3) EC. The system change has supported a shift in priorities 
of public enforcers.  

12. 

The elimination of the notification system and the Commission's exclusive power to 
apply Article 81(3) EC also removed an important obstacle to private enforcement of 
the Community competition rules. Under Regulation 17, the private enforcement of 
Articles  81  and  82  EC  could  effectively  be  blocked  by  a  notification  of  the 
agreement to the Commission and if it were not clear whether Article 81(3) EC was 
applicable,  the  national  court  would  have  to  suspend  proceedings.12  Regulation 
1/2003  has  served  as  a  first  step  to  open  the  way  for  the  increased  private 
enforcement of Articles 81 and 82 EC, the importance of which has been explicitly 
recognised  by  the  European  Court  of  Justice.13  The  Commission  has  launched  a 
further policy initiative in this area with a view to foster private damages claims.14  

2.2. 

The change in system after 5 years experience with Regulation 1/2003 

2.2.1.  The Commission’s enhanced priority setting  

13. 

14. 

One of the objectives of the modernisation reform was to allow the Commission to 
better focus its resources on areas where they make a significant contribution to the 
enforcement of Articles 81 and 82 EC. In the run-up to the entry into application of 
Regulation 1/2003, the Commission had already started to shift the focus of its case-
handling priorities from the follow-up of notifications to a more pro-active emphasis 
on pursuing serious infringements.15 Since May 2004, it has been able to implement 
the new enforcement system without any major interruption and to complete the shift 
in  its  enforcement  priorities  during  the  first  years  of  application  of  Regulation 
1/2003. 

Modernisation  has  clearly  enabled  the  Commission  to  be  more  proactive.  This  is 
illustrated by the identification of sectors for priority action in the form of large scale 
sector  inquiries  in  key  sectors  of  the  EU  economy,  which  represent  an  important 
share  of  EU  GDP  and  are  of  key  concern  for  consumers.  Since  the  entry  into 
application  of  Regulation  1/2003,  the  Commission  has  undertaken  inquiries  in  the 
media16, energy, retail banking, business insurance and pharmaceuticals sectors.17  

15. 

The electricity and gas sectors constitute a key input to the overall economy and are 
fundamental services for citizens: together they represent a value of total retail sales 

12 
13 

14 

15 

16 

17 

Case C-234/89 Stergios Delimitis v Henninger Braü [1991] ECR I-935, para 50. 
Case C-453/99 Courage v Crehan [2001] ECR I-6297, paras 26 and 27, as confirmed by Joined Cases 
C-295/04 to C-298/04 Manfredi [2006] ECR I-6619. 
See Commission White Paper on Damages Actions for Breach of the EC Antitrust Rules (COM (2008) 
165, 2.4.2008). 
The last exemption decisions were adopted as follows: UEFA (Commission Decision 2003/778/EC of 
23  July  2003  (COMP/C.2-37.398  Joint  selling  of  the  commercial  rights  of  the  UEFA  Champions 
League), OJ L 291, 08.11.2003, p.25) and Air France/Alitalia (Commission Decision 2004/841/EC) of 
7 April 2004 (COMP/A.38284/D2 – Société Air France/Alitalia Linee Aeree Italiane SpA), OJ L 362, 
09.12.2004.  
3 G – Sale of sports rights and third generation mobile phone services. This sector inquiry was started 
already under Regulation 17 (in January 2004) but then continued under Regulation 1/2003. 
See part 3.  

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before tax of more than € 500 billion per ye ar. Retail banking – defined as services to 
consumers  and  small  and  medium-sized  enterprises  –  remains  the  most  important 
sub-sector of banking, representing over 50% of total EU activity in terms of gross 
income.  The  Commission  estimated  that  in  2004  retail  banking  activity  in  the 
European  Union  generated  gross  income  of  €  250-275  billion,  equivalent  to 
approximately  2%  of  total  EU  GDP.  Business  insurance  is  of  vital  importance  for 
both  large  and  small  businesses,  given  that  the  ability  to  insure  a  given  risk  may 
make or break a particular business model. It is estimated that EU insurers collect € 
375 billion in non-life premiums every year. In 2008, the Commission launched an 
inquiry  into  the  market  for  prescription  and  non-prescription  medicines,  which  is 
worth over € 138 billion ex factory and € 214 b
illion at retail prices. This translates 
into a retail expenditure of approximately € 430 for each EU citizen in 2007.  

The  more  pro-active  stance  of  the  Commission is further illustrated in its decision-
making practice. Today, the Commission is concentrating considerable resources on 
addressing infringements in economically highly important sectors, such as financial 
services,  energy,  IT,  media  and  pharmaceuticals,  which  directly  impact  consumers. 
In  addition,  the  Commission  has  consistently  further  increased  the  depth  of  its 
analysis  over  the  last  years.  The  investigation  and  examination  of  cases  is 
characterised  by  increasing  complexity  and  the  use  of  greater  sophisticated 
methodology  in  the  context  of  the  more  effects-based  approach  applied  by  the 
Commission  outside  anti-cartel  enforcement.  Since  the  late  1990s,  the  Commission 
has used this approach in its analysis of restrictive horizontal and vertical agreements 
under Article 81 EC. Guidance has now been given as to how the Commission uses 
an effects-based approach to establish its enforcement priorities under Article 82 EC 
in relation to exclusionary conduct.18 

The increasingly complexity of many cases is reflected in the ever greater role played 
by inspections in the investigation of cases, including outside the area of cartels. It is 
also illustrated by the steep increase in inspection days used for the investigation of 
non-cartel antitrust cases.19 

The  greater  effectiveness  of  the  Commission  is  also  reflected  by  an  increase  in  the 
number of enforcement decisions adopted. While it is difficult to isolate the impact 
of  the  reform  from  other  contemporaneous  developments,20  a  comparison  can  be 
made with two previous distinct periods: 

(i) 

the  approximately  comparable  period  in  time  from  1  January  2000  until  the 
entry  into  application  of  Regulation  1/2003  during  which  the  Commission's 
enforcement action was already increasingly oriented by the pending reform; 

(ii) 

the  preceding  decade  during  which  the  Commission's  antitrust  enforcement 
was still largely dominated by the notification system.  

16. 

17. 

18. 

18 
19 

20 

OJ C 45, 24.02.2009, p. 7. 
The overall amount of man days for inspections in 2008 was 773.5 compared with a total of 213 man 
days in 2005. 
E.g. the impact of the expansion of the EU in 2004 and 2007 and developments in the Commission's 
leniency policy which was initiated in 1996 and reviewed in 2002 and 2006. 

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19. 

20. 

21. 

22. 

23. 

By  adopting  34  decisions  imposing  fines  in  cartel  cases  since  the  entry  into 
application  of  Regulation  1/2003  until  31  March  2009,  compared  with  27  in  the 
period  from  1  January  2000  to  30  April  2004,  the  Commission  has  sustained  and 
further  boosted  its  focus  on  enforcement  against  cartels  despite  the  heightened 
awareness  of  infringing  undertakings  and  the  ensuing  increased  difficulty  of 
investigations.  In  contrast,  during  the  entire  decade  from  1  January  1990  until  31 
December 1999, the Commission had only adopted 18 decisions against cartels.21  

Moreover, the Commission adopted 27 decisions enforcing Articles 81 and 82 (final 
decisions on substance) outside the field of cartels in the period since 1 May 2004.22 
By  comparison,  in  the  period  from  1  January  2000  until  30  April  2004,  only  17 
prohibition decisions were adopted.  

The  Commission’s  more  pro-active  stance  is  also  reflected  in  the  fact  that  broadly 
50% of decisions taken since 1 May 2004 resulted from ex officio investigations not 
based on leniency information, one third were triggered by leniency applications and 
one  tenth  was  based  on  complaints.  By  comparison,  in  the  1990s,  own-initiative 
procedures  accounted  for  only  about  15%  of  new  cases  registered,  with  most 
procedures  being  triggered  as  the  result  of  notifications.  The  effects  of  enhanced 
priority setting are also visible from the decrease in number of open cases (e.g. 943 
in 2000 decreasing to 225 in 2007). 

Enhanced  priority-setting  is  also  reflected  in  the  choice  of  instrument  in  individual 
cases  and  notably  in  the  use  by  the  Commission  of  the  power  of  making 
commitments  offered  by  undertakings  binding  and  enforceable  to  address  an 
identified  competition  problem.  Since  the  entry  into  application  of  the  Regulation, 
the Commission has adopted 13 decisions under Article 9.23 

The  huge  increase  in  the  enforcement  of  Articles  81  and  82  EC  by  the  national 
competition authorities has meant that the enforcement of the EC competition rules is 
now  commonplace  throughout  the  EU.24  This  allows  the  Commission  to  focus  on 
cases  and  areas  in  accordance  with  its  own  priority  setting.  The  Commission  also 
contributes  to  effective  and  coherent  enforcement  by  the  national  competition 
authorities through cooperation in the ECN. 

2.2.2.  Case practice under Article 81(3) EC 

24. 

Under Regulation 1/2003, agreements that fulfil the cumulative conditions of Article 
81(3)  EC  are  legal  without  the  need  for  an  affirmative  decision  by  an  authority.  In 
the  enforcement  system  established  by  Regulation  1/2003,  the  vast  majority  of 
agreements thus do not call for the intervention of any authority or enforcement body 
and are naturally not the subject of any decision or other act by such authorities. 

25. 

Moreover,  Regulation  1/2003  did  not  change  the  instrument  of  block  exemption 
regulations  which  confers  legality  under  Article  81(3)  EC  on  agreements  that  fulfil 

21 
22 
23 
24 

See table in the annex. 
See table in the annex. 
See part 3. 
See part 5. 

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the requirements set out in the relevant Commission regulation.25 To the extent that 
an agreement fulfils the requirements of a block exemption regulation, no individual 
assessment under Article 81(3) EC is warranted. 

In  the  enforcement  system  of  Regulation  1/2003,  Article  81(3)  EC  operates  as  a 
defence  that  undertakings  may  invoke  in  regard  of  agreements  that  are  caught  by 
Article  81(1)  EC  and  are  not  block-exempted.26  In  the  framework  of  the 
Commission’s  enforcement  action  during  the  reporting  period,  the  conditions  of 
Article  81(3)  EC  have  been  routinely  considered  in  enforcement  cases.27  If  parties 
can provide a valid justification for their conduct, i.e. if Article 81(3) EC is likely to 
be fulfilled, the case is often not pursued further under the Commission's system of 
priority setting. Cases in which Article 81(3) EC aspects have been considered may 
also result in commitment decisions.  

Extensive reasoning reflecting the analysis  under Article 81(3) EC is thus naturally 
contained  in  prohibition  decisions  in  cases  that  called  for  an  in-depth  examination 
under Article 81(3) EC, including in light of the evidence and argument put forward 
by  the  parties  concerned  to  substantiate  their  claim  that  Article  81(3)  EC  was 
fulfilled.28 

For  example,  in  MasterCard29,  the  Commission  found  that  an  association  of  banks 
restricted  competition  by  deciding  on  multilateral  interchange  fees  (‘MIFs’).30 
MasterCard invoked Article 81(3) EC claiming that a revenue transfer (the MIF) was 
needed from the acquiring side to the issuing side to correct an asymmetry of costs 
between them and that it generated efficiencies in the form of increased output of the 
system. In its analysis under the first condition of Article 81(3) EC, the Commission 

This is without prejudice to the right of the Commission or national competition authorities to withdraw 
the benefit of block exemption regulations in individual cases, pursuant to Article 29 of Reg. 1/2003. 
The following block exemptions have been adopted by the Commission: Commission Regulation 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. 21-25), Commission Regulation 
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,  05.12.2000,  p.3),  Commission  Regulation  No  2659/2000  of  29 
November  2000  on  the  application  of  Article  81(3)  to  categories  of  research  and  development 
agreements (OJ L 304, 05.12.2000. p.7), Commission Regulation No. 1400/2002 of 31 July 2002 on the 
application  of  Article  81(3)  to  categories  of  vertical  agreements  and  concerted  practices  in  the  motor 
vehicle sector (OJ L 203, 01.08.2002, p.30-41), Commission Regulation No. 358/2003 of 27 February 
2004 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.8-16), Commission Regulation No. 
772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology 
transfer agreements (OJ L 123, 27.04.2004, p.11-17) and Council Regulation (EC) No 246/2009 of 26 
February  2009  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 79, 25.03.2009, 
p.1. 
Recital 5 of Regulation 1/2003. 
Severe restrictions of competition are unlikely to fulfil the conditions of Article 81(3) EC as is noted in 
para 46 of the Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.04.2004, p.97). 
Accordingly,  in  such  cases  extensive  reasoning  as  to  the  applicability  of  Article  81(3)  EC  is  not 
required. 
Parties which claim the benefit of Article 81(3) EC bear the burden of proving that its conditions are 
fulfilled in accordance with Art. 2 of Regulation 1/2003. See also part 2.4 below.  
Case COMP/34.579, http://ec.europa.eu/competition/antitrust/cases/decisions/34579/remarks.pdf. 
MIFs are defined as fees paid by acquiring banks – banks of merchants accepting payment cards - to 
issuing banks – banks issuing cards to cardholders. 

26. 

27. 

28. 

25 

26 
27 

28 

29 
30 

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notably  verified  whether  the  model  underlying  MasterCard's  MIF  was  founded  on 
realistic assumptions, whether the methodology used to implement that model could 
be  considered  objective  and  reasonable  and  whether  the  MIF  had  indeed  led  to  the 
positive  effects  claimed.  However,  MasterCard  failed  to  submit  empirical  evidence 
to demonstrate positive effects of its MIF on the market.  

The  Commission  further  concluded  that  MasterCard's  MIF  also  did  not  fulfil  the 
second  condition  of  Article  81(3)  EC.  In  this  context,  the  Commission  attributed 
particular  importance  to  the  question  whether  in  setting  a  MIF,  MasterCard  used  a 
methodology  that  guarantees  from  the  outset  that  all  consumers  and,  in  particular, 
merchants obtain a fair share of the benefits. However, the cost benchmarks used by 
MasterCard  were  found  to  be  largely  arbitrary  and  inflated.  Hence,  without  further 
evidence  -  which  MasterCard  did  not  submit  -  it  was  not  proven  that  MasterCard's 
MIF had created efficiencies that benefit all customers, including merchants. Finally, 
MasterCard did not provide any empirical evidence on the actual effect of this MIF 
in  the  market  although  ECB  statistics  indicate  that  card  schemes  without  a  MIF 
display  the  highest  card  usage  per  capita  in  the  EU.  MasterCard  had  therefore  not 
proven  to  the  requisite  standard  that  its  MIF  was  indispensable  to  achieve  a 
maximised system output or any claimed related efficiencies. 

Further cases involving an extensive analysis under Article 81(3) EC in the financial 
services  sector  include  Morgan  Stanley/Visa31  and  Groupement  des  Cartes 
Bancaires.32 

In  CISAC,  the  Commission  adopted  a  prohibition  decision  against  24  European 
collecting societies for restricting competition by limiting their ability to offer their 
services to authors and commercial users outside their domestic territory resulting in 
a  strict  segmentation  of  the  market  on  a  national  basis.33  The  parties  did  not  bring 
forward arguments which specifically addressed the application of Article 81(3) EC. 
However,  it  was  argued  that  the  territorial  restrictions  constitute  a  pre-requisite  for 
the  mutual  exchange  of  repertoires  and,  therefore,  for  collecting  societies  to  offer 
multi-repertoire  licences.  The  Commission  did  not  dispute  that  the  network  of 
bilateral reciprocal representation agreements between collecting societies provides a 

Case COMP/37860: The Commission fined Visa €10,200,000 for refusing to admit Morgan Stanley as 
a  member  without  an  objective  justification.  Visa  relied  on  Article  81(3)  EC  arguing  that  Visa  (as  a 
system  and  as  a  whole)  generated  efficiencies.  However,  the  Commission  concluded  that  such 
arguments did not show that the first condition of Article 81(3) EC of the Treaty is fulfilled with respect 
to the application of the exclusionary rule which was at issue in the case ("the Rule"). The Commission 
did not find any indication that the Rule as it was applied to Morgan Stanley generated pro-competitive 
effects. Its negative effects on the offer of acquiring services to merchants, innovation in the relevant 
market, and on Morgan Stanley itself, were therefore not outweighed by efficiencies. The Commission 
also held that VISA had not succeeded in demonstrating that the application of the Rule was necessary 
to prevent free riding. See http://ec.europa.eu/competition/antitrust/cases. 
Case  COMP/38.606:  The  Commission  prohibited  several  measures  by  Groupement  des  Cartes 
Bancaires ("GCB") which hindered the issuing of cards in France at competitive rates, thereby keeping 
the  price  of  payment  cards  artificially  high  to  the  benefit  of  the  major  French  banks  (in  particular 
charges which were imposed on new entrants in a discriminatory way, thereby hindering the issuing of 
cards by other banks at a price lower than that of the large banks). Relying on Article 81(3) EC, GCB 
argued that the measures were necessary to promote economic and technical progress. The Commission 
concluded,  however,  that  the  arguments  presented  by  GCB  were  contradictory  and  that  the  measures 
had an effect opposite to the effect claimed. See http://ec.europa.eu/competition/antitrust/cases. 
Case COMP/38.698. See http://ec.europa.eu/competition/antitrust/cases. 

29. 

30. 

31. 

31 

32 

33 

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national one-stop shop for a worldwide management of rights. However, it concluded 
that even without the restrictions, the alleged benefits, in particular the national one-
stop-shops can still be provided. The restrictions are consequently not indispensable 
within the meaning of Article 81(3) EC. In addition, they eliminate competition on 
the markets for the administration of repertoires for other EEA CISAC members and 
the  licensing  of  rights  and  therefore  do  not  fulfil  the  forth  of  the  cumulative 
conditions of Article 81(3) EC. 

2.2.3.  Application of Article 81(3) EC by national competition authorities  

32. 

33. 

34. 

35. 

34 
35 
36 
37 

Regulation  1/2003  enables  national  competition  authorities  and  courts  to  apply 
Articles 81 and 82 EC in full34 and obliges them to apply EC competition law in all 
cases that fall within its scope of application.35 The change in  legal framework has 
resulted in a huge increase in enforcement of Articles 81 and 82 EC by the national 
competition  authorities  as  from  2004.36  In  general,  national  competition  authorities 
are putting emphasis on pro-actively pursuing serious infringements. 

As regards the application of Article 81(3) EC, the impact of the reform is similar to 
its effects in Commission cases, with the additional aspect of numerous national laws 
following  the  example  of  the  Regulation  by  removing  notification  systems  for  the 
application of national competition laws.  

Similar to the case practice of the Commission and in line with the basic scheme of 
the  Regulation,  Article  81(3)  EC  is  normally  invoked  as  a  defence  in  cases 
investigated  by  national  competition  authorities  in  view  of  a  possible  prohibition 
decision.  The  vast  majority  of  national  competition  authorities  now  have  direct 
experience  of  applying  Article  81(3)  EC.  At  least  half  of  the  national  competition 
authorities  have  adopted  decisions  in  which  it  was  found  that  the  conditions  of 
Article  81(3)  EC  were  not  fulfilled.  The  conclusion  of  cases  in  which  the  national 
authority  considered  the  conditions  of  Article  81(3)  EC  to  be  fulfilled,  depends  on 
national  procedural  rules  and  practices.  Numerous  national  competition  authorities 
are  –  like  the  Commission  –  able  to  close  such  cases  without  adopting  a  reasoned 
decision  and  indeed  regularly  do  so  if  they  consider  that  the  conditions  of  Article 
81(3) EC are likely to be fulfilled. To the extent that a decision by the authority is 
formally required, it has to comply with the last sentence of Article 5, according to 
which the national competition authorities may decide that there are no grounds for 
action  on  their  part.  Such  decisions  do  not  bind  other  enforcers  or  national  courts. 
Cases  that  involve  an  analysis  of  the  conditions  of  Article  81(3)  EC  may  also  be 
concluded by commitment decisions. 

National  competition  authorities  have  carried  out  analyses  of  the  application  of 
Article  81(3)  EC  in  a  wide  variety  of  sectors,  including  transport,  food,  energy, 
media and financial services. Many of these cases involved vertical restraints, and in 
particular, the application of the Vertical Restraints Block Exemption Regulation.37 

Articles 5 and 6 of Regulation 1/2003. 
Article 3 of Regulation 1/2003. 
See parts 3 and 5. 
Commission Regulation 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. 21-25). 

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36. 

37. 

Regulation  1/2003  does  not  oblige  Member  States  to  remove  notification  systems 
and exemption decisions in respect of national competition law. Nonetheless, a large 
majority  of  Member  States  have  followed  the  model  of  Regulation  1/2003  by 
abolishing  notification  systems  in  the  context  of  national  competition  law.  In 
addition to not adopting clearance or exemption decisions in regard of Articles 81/82, 
most  national  competition  authorities  are  thereby  relieved  of  the  obligation  to  deal 
with notifications in regard of national competition law, freeing up resources to focus 
on  serious  infringements.  To  date,  the  national  competition  laws  of  more  than  20 
Member States operate without notifications.  

To the extent that notifications under national law persist and the parallel application 
of  EC  law  pursuant  to  Article  3  of  the  Regulation  is  required  in  notified  cases, 
national  competition  authorities  cannot  adopt  exemption  decisions  in  respect  of 
Article 81 EC, pursuant to Article 5, last sentence. They only have the possibility to 
combine an exemption or clearance decision under national law with the “no grounds 
for action” conclusion envisaged by the last sentence of Article 5. Given the phase-
out of notifications in a large number of national laws, this issue has played a minor 
role  in  practice.  Notwithstanding  this,  the  maintenance  of  notification  systems  in 
national  law  may  represent  a  drain  on  the  scarce  resources  of  the  national 
competition authorities concerned. 

38. 

Overall,  no  particular  problems  have  been  reported  by  the  national  competition 
authorities in terms of applying Article 81(3) EC and it seems that the vast majority 
of  decisions  which  have  involved  an  in-depth  analysis  under  Article  81(3)  EC  and 
which were scrutinised by review courts have been upheld. 

2.2.4.  Case practice of national courts 

39. 

National courts have applied Article 81(3) EC in a wide variety of sectors, including 
transport, energy, pharmaceuticals, financial services, cosmetics and media. Many of 
these cases involved vertical restraints, in particular, selective distribution, franchise 
agreements  and  resale  price  maintenance.  In  many  rulings  by  national  courts,  the 
application  of  the  Vertical  Restraints  Block  Exemptions  (old  and  new)  is  assessed. 
For example, in Spain, there have been numerous judgments concerning the possible 
nullity of exclusive purchase agreements between oil companies and petrol stations, 
several  of  which  involved  the  application  of  the  Vertical  Restraints  Block 
Exemption.  Similar  proceedings  have  been  brought  in  The  Netherlands,  where  the 
validity of exclusive purchase agreements, and in particular, of non-compete clauses 
in these contracts between oil companies and petrol stations have been reviewed by 
several national courts on the basis of the Vertical Restraints Block Exemption. In a 
number of Member States (France, Germany and The Netherlands), there have been 
a  variety  of  judgments  relating  to  the  application  of  the  Motor  Vehicles  Block 
Exemption (old and new).  

40. 

Judgments in the Member States that joined the EU in 2004 and 2007 involving the 
application of Article 81(3) EC are still relatively infrequent which can to a certain 
extent be attributed to the fact that EC competition law became applicable as of the 

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date of accession only, with the effect that judicial proceedings under Article 81 EC 
are naturally less numerous and/or may not have reached the state of judgment yet.38 

41. 

Overall, the relative scarcity of judgments involving Article 81(3) EC seems in the 
first place to stem from what appears to be a relatively low level of enforcement of 
EC competition law in general by national courts in the EU. This corresponds to the 
criticism  made  by  some  stakeholders  that  not  all  national  courts  have  sufficient 
experience  and/or  expertise  to  apply  Articles  81  and  82  EC.  However,  it  is  not 
evident that national  courts face  particular difficulties in applying Article  81(3) EC 
over and above the complexities involved with applying Article 81(1) and Article 82 
EC which have always been directly applicable.  

2.3. 

Legal certainty debate and guidance practice 

42. 

43. 

38 

39 

40 

41 
42 

43 

By granting validity and enforceability to all agreements that fulfil the conditions of 
Article  81(3)  EC,  Regulation  1/2003  removed  uncertainty  for  a  large  number  of 
agreements  that  remained  in  legal  limbo  under  the  old  system  inasmuch  as  only  a 
very  small  number  of  agreements  were  covered  by  a  formal  exemption  decision  of 
the Commission. 

The  reform  of  the  antitrust  rules  entailed  a  shift  from  giving  comfort  to  individual 
agreements  to  a  system  in  which  the  emphasis  is  on  general  guidance  that  can  be 
helpful to numerous undertakings and other enforcers. This was a process which the 
Commission had already started prior to 2004 for vertical restraints39 and horizontal 
cooperation  agreements.40  The  2004  Modernisation  package  included  general 
guidelines  on  the  application  of  Article  81(3)  EC  setting  out  the  analytical 
framework  for  its  application.41  Moreover,  the  Transfer  of  Technology  Block 
Exemption  and  guidelines  were  adopted  in  2004.42  The  Commission  regularly 
reviews  its  guidance,  for  example,  it  will  review  the  Vertical  and  Horizontal 
Agreements Block Exemption Regulations by 2010. Such guidance is complemented 
by the ever-growing body of decision practice and case law.43 On 9 February 2009, 

See 
is  a 
further:  http://ec.europa.eu/competition/elojade/antitrust/nationalcourts/.  Listed  herein 
compilation  of  the  summaries  prepared  annually  by  most  national  competition  authorities  of  the 
judgments  rendered  by  their  national  courts  involving  the  application  of  Articles  81  and  82  EC,  in 
addition to the database of written judgments of national courts deciding on whether Articles 81 or 82 
EC are applicable, received by the Commission pursuant to Art. 15(2) of Reg. 1/2003. Neither of these 
sources appears to provide a complete overview of the application of the Articles 81 and 82 by national 
courts, but may be used to complement each other. 
Commission Regulation 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.  21-25) 
and Commission Notice on Guidelines on Vertical Restraints (OJ C 291, 13.10.2000, p.1). 
Commission Regulation 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, 05.12.2000, p.3), Commission Regulation 
No 2659/2000 of 29 November 2000 on the application of Articles 81(3) to categories of research and 
development agreements (OJ L 304, 05.12.2000. p.7) and the Guidelines on the applicability of Article 
81 of the EC Treaty to horizontal cooperation agreements (OJ C 3, 06.01.2001, p.2). 
Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.04.2004, p.97). 
Commission Regulation No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty 
to categories of technology transfer agreements (OJ L 123, 27.04.2004, p. 11-17). 
The  Commission  has  also  provided  specific  sectoral  guidance  regarding  the  application  of  the  EC 
competition rules to information sharing in the context of the application of the REACH Regulation, see 
Corrigendum  to  Regulation  (EC)  No  1907/2006  of  the  European  Parliament  and  Council  of  18 
December  2006  concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals 

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the Commission published guidance on its enforcement priorities in applying Article 
82 EC to abusive  exclusionary conduct by dominant undertakings, in response to a 
strong  demand  from  many  stakeholders.44  This  paper  outlines  for  the  first  time  the 
analytical  framework  that  the  Commission  employs  when  assessing  the  most 
commonly  encountered  forms  of  exclusionary  conduct,  such  as  exclusive  dealing, 
rebates,  tying  and  bundling,  predatory  practices,  refusal  to  supply  and  margin 
squeeze.  

In view of possible cases that may arise which are not covered by existing sources of 
orientation,  the  Commission  issued  a  Notice  on  guidance  letters.45  In  essence,  the 
Notice enables undertakings to request for a guidance letter by the Commission when 
a  case  gives  rise  to  genuine  uncertainty  because  it  presents  novel  or  unresolved 
questions  concerning  the  application  of  Articles  81  and  82  EC.46  The  Notice  takes 
account of the rationale of the Regulation that the Commission is to give priority to 
enforcement tasks by pursuing serious infringements of Articles 81 and 82 EC.47  

During  the  reporting  period,  very  few  approaches  have  been  made  to  the 
Commission  for  "informal  guidance"  as  set  out  in  the  Notice  on  guidance  letters. 
None of these approaches came close to fulfilling the conditions for making such a 
request,  which  must  be  made  about  novel  or  unresolved  questions  that  give  rise  to 
genuine  uncertainty,  as  opposed  to  providing  what  would  amount  to  individual 
comfort letters as existed prior to modernisation.48  

Stakeholder  feedback  after  5  years  of  application  of  Regulation  1/2003  is  nuanced 
and there is currently no evidence of real problems that have materialised.  

A  certain  number  of  respondents  to  the  public  consultation  reiterate  that  the 
Commission should provide more guidance, including in the form of inapplicability 
decisions.49 Some stakeholders claim that a lack of legal certainty deters companies 
from  pursuing  certain  investments  that  they  would  have  contemplated  with  the 
protection of notification, or that certain transactions would be restructured so as to 

(REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing 
Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council 
Directive  76/769/EEC  and  Commission  Directives  91/155/EEC,  93/76/EEC,  93/105/EC  and 
2000/21/EC (OJ L 396, 30.12.2006). It has also adopted Guidelines on the application of Article 81 of 
the Treaty to Maritime Transport Services, SEC (2008) 2151 final, 01.07.2008. 
OJ C 45, 24.02.2009, p.7. 
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) (OJ C 101, 27.04.2004, p.78). 
Regulation 1/2003 expressly refers to the possibility for the Commission to provide guidance in Recital 
38. According to para 8 of the Commission Notice (ibid), a novel or unresolved question is raised where 
the substantive assessment of an agreement or practice poses a question of application of Articles 81 or 
82 EC for which there is no clarification in the existing EC legal framework. 
See para 7 of the Commission Notice on guidance letters (ibid), which stipulates that the Commission 
will only provide informal guidance to undertakings insofar as this is compatible with its enforcement 
priorities. 
It is the practice of the Commission to impose more than symbolic fines only where it is established, 
either  in  horizontal  instruments  or  in  the  case  law  and  practice,  that  certain  behaviour  constitutes  an 
infringement.  See  para.  4  of  the  Commission  Notice  on  guidance  letters  (ibid)  and  para  36  of  the 
Guidelines  on  the  method  of  setting  fines  imposed  pursuant  to  Article  23  (2)(a)  of  Regulation  No 
1/2003,  OJ  C  210,  01.09.2006,  p.2.  As  a  result,  companies  engaging  in  activities  about  which  there 
exists genuine legal uncertainty are not at risk of being subject to a fine. 
On Article 10, see further part 3. 

44. 

45. 

46. 

47. 

44 
45 

46 

47 

48 

49 

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48. 

fall under the Merger Regulation (or national equivalents) with a loss of efficiencies. 
Similarly,  some  stakeholders  have  commented  that  the  conditions  for  fulfilling  the 
Notice are too tightly drawn. While the criterion of novel or unresolved questions is 
largely  uncontroversial,  some  stakeholders  have  called  for  guidance  letters  to  be 
made  also  available  in  cases  involving  complex  products  or  complex  market 
conditions. However, no concrete examples have been provided in support of this.  

Other respondents have advanced more limited ideas, e.g. calling for more dialogue 
with the Commission services on novel issues or commercial transactions involving 
significant investments or encouraging Commission case teams to more often set out 
their thinking in publications of the EC Competition Policy Newsletters type. These 
submissions  are  made  in  a  context  where  the  vast  majority  of  respondents  have 
commended  the  direct  application  of  Article  81(3)  EC  as  a  more  efficient  and 
rational  system  of  enforcement.  For  the  most  part,  undertakings  seem  to  be 
comfortable with assessing for themselves whether their agreements are likely to be 
caught  by  Article  81  EC  and  have  welcomed  the  abolition  of  the  administrative 
burden  and  long  timescales  that  was  part  and  parcel  of  notifications  made  under 
Regulation 17. A number of lawyers have indicated that they have not been asked for 
many  more  formal  opinions  on  the  applicability  of  Article  81(3)  EC  than  was  the 
case  prior  to  modernisation.  Businesses  have  also  expressed  that  they  have  not  felt 
the  need  for  formal  guidance  from  the  Commission  in  the  period  since  Regulation 
1/2003 entered into application. The Commission therefore concludes that it is now 
standard  practice  for  undertakings  to  verify  that  their  behaviour  complies  with  the 
applicable  legal  requirements  in  many  areas  of  law  and  that  it  is  usually  more 
effective  and  efficient  for  it  to  provide  general  guidance.  Nonetheless,  the 
Commission  remains  firmly  committed  to  giving  guidance  on  new  or  unresolved 
policy  issues  of  general  application  which  fulfil  the  conditions  of  the  Notice  on 
guidance letters.  

2.4. 

The rule on burden of proof in Article 2 

49. 

50. 

Regulation 1/2003 did not affect the substance of Article 81 EC, which is composed 
of  a  prohibition  rule  requiring  an  assessment  of  the  anti-competitive  object  or  an 
analysis  of  likely  anti-competitive  effects,  and  a  defence,  requiring  an  analysis  of 
likely pro-competitive effects and the weighing up of those pro-competitive and anti-
competitive effects.  

Article  2  contains  the  ground-rule  on  the  allocation  of  the  burden  of  proof  in  EC 
competition law. It clarifies that the burden of proving an infringement rests with the 
authority,  while  undertakings  claiming  the  benefit  of  Article  81(3)  EC  have  the 
burden  of  proving  that  its  conditions  are  fulfilled.  This  allocation  of  the  burden  of 
proof has been confirmed by the Court of Justice50 and is in accordance with general 
principles  of  law  that  the  party  claiming  a  defence  has  to  prove  that  the  conditions 
attached  to  that  defence  are  satisfied  and  corresponds  to  the  case  law  of  the 
Community  Courts.51  No  concrete  examples  of  this  rule  having  posed  a  particular 
problem in practice have been brought to the Commission's attention.  

50 
51 

Joined Cases C-204/00 and others Aalborg Portland [2004] ECR I-124, para 78. 
See  e.g.  Cases  56/64  and  58/64  Etablissements  Consten  SàRL  and  Grundig-Verkaufs-GmbH 
v Commission [1965] ECR 299, at 347; Case T-34/92 Fiatagri and New Holland Ford v Commission 

EN 

18 

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51. 

52. 

53. 

The Community Courts are providing additional refinement to the rule in Article 2. 
In  terms  of  the  Commission's  enforcement  practice,  they  have  clarified  that  in  the 
course  of  the  examination  of  a  case  the  apportionment  of  the  burden  of  proof  may 
vary inasmuch as evidence presented by one side may require the other to provide an 
explanation  or  justification,  failing  which  it  is  permissible  to  conclude  that  the 
burden of proof has been discharged.52  

Article 2 of Regulation 1/2003 does not determine the standard of proof. Recital 5 of 
Regulation  1/2003  stipulates  that  national  rules  on  the  standard  of  proof  are 
unaffected  by  the  Regulation,  although  they  must  of  course  be  compatible  with 
general  principles  of  Community  law,  and  in  particular  cannot  jeopardise  the  effet 
utile of Articles 81 and 82 EC, in particular, by raising the standard so high that the 
application of Article 81(1) EC becomes impossible or unduly difficult. A reference 
for a preliminary ruling has been made to the European Court of Justice asking if a 
national court applies Article 81 EC, is the evidence of a causal connection between 
concerted  practice  and  market  conduct  to  be  adduced  and  appraised  in  accordance 
with  the  rules  of  national  law,  subject  to  the  Community  law  principles  of 
effectiveness and equivalence.53  

In  relation  to  Commission  proceedings,  the  Community  Courts  have  developed  an 
abundant  body  of  case  law  concerning  the  assessment  of  evidence,  including  the 
admissibility  of  evidence  and  the  evidentiary  value  of  a  given  item  of  information. 
For instance, the Court of Justice recently confirmed in Dalmine that the prevailing 
principle regarding the admissibility of evidence in Community law is "the unfettered 
evaluation  of  evidence  and  the  only  relevant  criterion  for  the  purpose  of  assessing 
the evidence adduced relates to its credibility."54 Nonetheless, this principle must be 
balanced in particular by respect for general principles of Community law such as the 
right to a fair legal process. Accordingly, the Court has for example held that the fact 
that  certain  information  contained  in  an  incriminating  document  must  remain 
confidential (including the origin of the document) does not mean that the rest of the 
document  cannot  be  used  in  evidence.55  However  the  anonymous  origin  of  an 
incriminating document shall be taken into account in assessing the credibility of the 
document and thus has a direct impact on its evidentiary value. Within the context of 
the Leniency Notice, the Commission has also addressed evidentiary issues through 
the  concept  of  "added  value",  i.e.  the  extent  to  which  evidence  by  its  very  nature 

[1994]  ECR  II-905,  para  99,  Case  T-112/99  Métropole  Télévision  (M6)  et  al  v  Commission  [2001] 
ECR II-2459, paras 130-131. See Case C-49/92 P Commission v Anic [1999] ECR I-4125, para 86 and 
the  case  law  listed  therein,  where  the  Court  of  Justice  ruled  that  "[…]  it  is  incumbent  on  the 
Commission  to  prove  the  infringements  which  it  has  found  and  to  adduce  evidence  capable  of 
demonstrating  to  the  requisite  legal  standard  the  existence  of  the  circumstances  constituting  the 
infringement".. 
Aalborg  Portland  and  Others  v  Commission,  ibid,  para  79,  Case  T-48/98,  Acerinox  v  Commission 
[2001]  ECR  II-3859  paras  29-30,  Case  T-120/04  Organicos  Peroxydos  v  Commission  [2006]  ECR 
II-4421, paras. 53 and para 71 and Case T-36/05 Coats Holding and J&P Coats v Commission, [2007] 
ECR II-110, para 122. See also above, part 2, for the Commission's assessment of MasterCard's claim. 
C-8/08  –  request  for  a  preliminary  ruling  by  the  College  van  Beroep  voor  het  Bedrijfsleven  / 
Netherlands (Administrative Court for Trade and Industry) T-Mobile Netherlands BV and others. 
Case C-407/04 P Dalmine v Commission [2007] ECR I-829, para. 63. 
Case C-411/04 P Salzgitter Mannesmann GmbH v Commission, [2007] ECR I-959 paras 40-47. 

52 

53 

54 
55 

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19 

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and/or  its  level  of  detail  strengthens  the  Commission's  ability  to  prove  the  alleged 
cartel.56 

3. 

COMMISSION  PROCEDURES  –  HOW  THE  COMMISSION  HAS  USED  ITS  TOOLS  UNDER 
THE REGULATION FOR EFFECTIVE ENFORCEMENT  

3.1. 

Background 

54. 

55. 

56. 

56 

57 

58 
59 

60 
61 

Under  the  EC  Treaty,  the  Commission  has  responsibility  for  implementing  the 
competition rules in Articles 81 and 82 EC.57 The Community enforcement system is 
that  of  an  integrated  public  authority  that  has  power  to  order  infringements  to  be 
brought  to  an  end  and  to  impose  sanctions  for  past  behaviour.  The  Community 
system corresponds to the institutional choice of a majority of Member States.58 

Such systems imply that the same institution investigates and takes decisions on the 
cases handled, which has raised queries from a number of stakeholders. However, as 
far as decisions adopted are subject to independent judicial control, such systems are 
fully compatible with established case law of both the Community Courts as well as 
the  European  Court  of  Human  Rights.  To  this  regard,  besides  the  checks  and 
balances that exist within the Commission procedures59, the decisions adopted by the 
Commission are subject to the judicial scrutiny by the Court of First Instance and the 
Court of Justice. In particular, the Community Courts have unlimited jurisdiction to 
review  decisions  whereby  the  Commission  has  fixed  a  fine  or  periodic  penalty 
payment.60  

Issues relating to the compatibility of the Community enforcement system  with  the 
rights of defence of the parties in competition proceedings were raised in the context 
of  appeals  against  Commission  decisions  before  the  Community  Courts  and  were 
rejected  by  the  latter.61  The  Community  enforcement  system  also  satisfies  the 
requirements  of  the  European  Convention  on  Human  Rights  ("ECHR").  Under  the 
case law of the European Court of Human Rights, administrative adjudication even 
of certain matters qualified 'criminal' within the meaning of Article 6 of the ECHR is 

Point 24 of  the  Commission  Notice  on  the  non-imposition  or  reduction  of fines  in cartel  cases,  OJ C 
207, 18.07.1996, p. 4-6. 
Article  85  EC,  Case  C-344/98  Masterfoods  [2000]  ECR  I-11369,  para  46.  In  the  absence  of  an 
implementing  regulation,  the  Commission  can  rely  on  Article  85  EC  directly  to  adopt  decisions;  this 
tool is however not very effective in practice. When Regulation 1/2003 was adopted, it took over certain 
'lacunae' from the earlier enforcement regulations in the transport sector (Article 32); in these areas the 
Commission could consequently only act on the basis of Article 85 EC directly; the relevant provision 
has been removed by Regulations 411/2004 of 26 February 2006 and 1419/2006 of 25 September 2006. 
See part 5 below. 
Commission  enforcement  decisions  are  taken  by  the  College  of  the  Commission;  the  services  of  the 
Directorate  General  for  Competition  merely  prepare  such  decisions.  The  decision-making  process 
involves  the  Commission  Legal  Service  and  other  associated  services.  Furthermore,  the  Hearing 
Officers are in charge of supervising compliance with the right to be heard in competition proceedings 
(see  Commission  Decision  of  23  May  2001  on  the  terms  of  reference  of  hearing  officers  in  certain 
competition proceedings; OJ L 162/21 of 19.6.2001). 
Article 230 EC and Article 31 of Regulation 1/2003. 
Cf. Cases 209-215 and 218/78, Heintz van Landewyck SARL and others v Commission (FEDETAB), 
[1980] ECR 3125, para 81; Cases 100-103/80, Musique Diffusion Française and others v Commission, 
[1983] ECR 1825, para 7; Case T-11/89, Shell International Chemical Company v Commission, [1992] 
ECR II-757, para 39. 

EN 

20 

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57. 

58. 

59. 

not incompatible with the Convention so long as the party concerned can bring any 
such  decision  affecting it before a judicial body that has full jurisdiction, including 
the  power  to  quash  in  all  respects,  on  questions  of  fact  and  law,  the  challenged 
decision.62 

Notwithstanding the legality and efficiency of the current procedure, the Commission 
notes  that  in  this  context  various  respondents  have  discussed  the  possibility  of 
strengthening  the  role  of  the  Hearing  Officer  with  a  view  to  ensure  procedural 
fairness, transparency and independent (peer) review of evidence. 

Regulation 1/2003 provides the Commission with a set of specific powers to ensure 
effective  enforcement  action.  The  procedural  tools  have  to  a  large  extent  been 
developed  from  the  earlier  Regulation  17  and  the  case  law  based  thereon.  This 
concerns in particular the Commission's investigation and fining powers. The types 
of decisions were revised in light of the direct application of Article 81(3) EC. The 
Commission  continuously  refines  its  policy  and  develops  new  ways  of  enhancing 
enforcement within the framework of the Regulation.63  

The present chapter is intended to reflect how the Commission has used the new or 
more  developed  instruments  of  the  Regulation,  taking  into  account  that  some 
instruments  have  been  used  more  often  than  others.  The  Report  identifies  certain 
limited  areas  in  which  there  appear  to  be  efficiency  reserves  that  the  current  legal 
framework and/or practice do not fully exploit and that may merit further reflection.  

3.2. 

The Commission's increased investigative powers 

3.2.1. 

Introduction 

60. 

Chapter  V  of  Regulation  1/2003  lays  down  the  Commission's  formal  powers  of 
investigation. As in Regulation 17, the principal powers are requests for information 
and  inspections.  Regulation  1/2003  essentially  reinforced  both  of  them,  by 
introducing the power to adopt decisions immediately pursuant to Article 18(3), the 
power to carry out inspections in non-business premises, the power to affix seals in 
business premises and the power to ask oral questions on facts or documents relating 
to  the  subject-matter  and  purpose  of  an  inspection  and  to  record  the  answers. 
Moreover,  Regulation  1/2003  provides  for  the  possibility  to  impose  fines  if  seals 
have been broken or incorrect or misleading answers have been given. In addition to 
these  compulsory  measures,  the  Regulation  also  introduced  the  power  to  interview 
legal  and  natural  persons  with  their  consent.  In  the  framework  of  pro-active 
enforcement, the powers of investigation have gained in importance.  

3.2.2. 

Sector inquiries 

61. 

62 

63 

Article  17  of  Regulation  1/2003  has  substituted  Article  12  of  Regulation  17.  It 
enables  the  Commission  to  undertake  inquiries  into  sectors  of  the  economy  where 
there are indications to suggest that competition is being restricted or distorted in an 

See  in  this  context  Bendenoun  v  France,  Judgment  of  the  ECtHR  of  24  February  1994,  para  46; 
Janosevic v Sweden, Judgment of the ECtHR of 23 July 2002, para 81.  
National competition authorities apply the procedures and powers provided by national law even when 
the  investigation  relates  to  the  enforcement  of  Articles  81  and  82  EC,  subject  to  the  Community 
principles of equivalence and effectiveness. See below, part 5. 

EN 

21 

   EN 

                                                 
62. 

63. 

64. 

economic sector of the common market. It also empowers the Commission to carry 
out inquiries into types of agreements.64 

Since the entry into force of Regulation 1/2003, sector inquiries have become one of 
the  key  investigative  tools  for  the  Commission,  reflecting  an  increased  scope  for 
taking  action  in  priority  areas  that  are  vital  to  Europe's  citizens  and  where  market 
information suggests that competition does not work as it should. The Commission 
uses this instrument to improve its in-depth knowledge about a sector with a view to 
better identifying its main shortcomings caused by market participants. It is therefore 
an 'upstream' exercise to potential antitrust proceedings in specific cases which may 
follow.  A  sector  inquiry  can  in  addition  provide  empirical  evidence  that  may  be 
useful in reviewing the regulatory framework governing a sector.  

The Commission's experience of the sector inquiries conducted during the reporting 
period,  into  the  media65,  gas  and  electricity66,  retail  banking67,  business  insurance68 
and  pharmaceutical  sectors69  is  very  positive.  Sector  inquiries  have  enabled  the 
Commission  to  identify  shortcomings  in  the  competitive  process  of  the  respective 
sectors  under  investigation  and  provided  a  wealth  of  factual  material  that  have 
supported  the  Commission  in  carrying  out  more  detailed  assessments  in  individual 
cases.  

In  the  energy  sector,  the  inquiry  responded  to  concerns  voiced  by  consumers  and 
new  entrants  in  the  sector  about  the  development  of  wholesale  gas  and  electricity 
markets  and  limited  choice  for  consumers.  After  nearly  two  years  of  intensive 
investigation, the Commission identified in its final report70 serious shortcomings in 
the electricity and gas markets, e.g. too much market concentration in most national 
markets,  a  lack  of  liquidity  preventing  successful  new  entry,  too  little  integration 
between  Member  States’  markets,  an  absence  of  transparent,  available  market 
information leading to distrust in the pricing mechanisms, an inadequate current level 
of  unbundling  between  network  and  supply 
interests  which  has  negative 
repercussions on market functioning and investment incentives, customers being tied 
to suppliers through long-term downstream contracts, and current balancing markets 
and  small  balancing  zones  which  limit  competition  and  thereby  ease  costs  for  the 
final consumer. As a follow-up, the Commission launched a number of investigations 
under the EC Treaty rules, notably Article 82 EC, in the electricity and gas markets. 
Whereas  several  cases  are  still  ongoing,  the  Commission  has  already  adopted  a 
landmark  decision  concerning  two  cases  in  the  electricity  sector.71  On  the  basis  of 

64 
65 

66 

67 

68 

69 

70 

71 

No such inquiry into types of agreements has been conducted in the reporting period. 
3G – Sale of sports rights and third generation mobile phone services, Sector inquiry launched on 30 
January 2004. See http://ec.europa.eu/competition/sectors/media/inquiries. 
Gas  and  electricity  Sector  inquiry  launched  in  2005;  Final  report  presented  on  10  January  2007.  See 
http://ec.europa.eu/competition/sectors/energy/inquiry. 
Sector  inquiry  launched  on  13  June  2005;  Final  report  presented  on  31  January  2007.  See 
http://ec.europa.eu/competition/sectors/financial_services/inquiries/retail.html.  
Sector  inquiry  launched  on  13  June  2005;  Final  report  presented  on  25  September  2007.  See 
http://ec.europa.eu/competition/sectors/financial_services/inquiries/business.html. 
Launched  on  15  January  2008;  Preliminary  findings  were  presented  on  28  November  2008;  final 
resultsare due in summer 2009. 
The Directorate General for Competition report on energy sector inquiry (SEC(2006) 1724, 10 January 
2007). See http://ec.europa.eu/competition/sectors/energy/inquiry. 
Commission  Decision  of  26  November  2008  making  binding  the  commitments  by  E.ON  to  divest 
respectively  5000MW  of  generation  capacity  (about  one  fifth  of  its  portfolio)  and  its  transmission 

EN 

22 

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65. 

66. 

unprecedented  structural  commitments  addressing  horizontal  and  vertical  concerns, 
this decision is expected to open two separate markets to competition. In another key 
case in the gas sector72, an undertaking has also provided structural commitments to 
bring  the  investigation  to  an  end.  The  in-depth  knowledge  of  the  energy  market 
which the Commission gained in the course of the sector inquiry has also served for 
reviewing the regulatory framework for energy liberalisation.73  

The  sector  inquiry  into  the  retail  banking  sector  found  a  number  of  competition 
concerns  in  the  markets  for  payment  cards,  payment  systems  and  retail  banking 
products, e.g. highly concentrated markets in many Member States, large variations 
in merchant fees across the  EU, large variations in interchange fees between  banks 
across  the  EU,  high  and  sustained  profitability  particularly  in  card  issuing  and 
divergent  technical  standards.74  The  impact  of  the  inquiry  on  the  retail  banking 
market  is  multifaceted:  the  sector  inquiry  findings  lent  support  to  existing 
enforcement  cases,  in  particular  in  the  payment  cards  area.  New  areas  of 
investigation  have  emerged,  both  for  the  Commission  and  for  national  competition 
authorities. Already after the publication of its interim report on payment cards and 
systems, the Commission met banks in some Member States75 to discuss where self 
regulation could address competition concerns and several market players have taken 
steps  to  address  the  Commission’s  concerns.  Several  of  the  market  barriers 
highlighted by the sector inquiry are addressed in the context of the discussions on 
SEPA  (Single  Euro  Payments  Area).76  Moreover,  the  knowledge  of  the  market 
obtained  in  the  course  of  the  sector  inquiry  contributes  to  other  Commission 
initiatives than competition law enforcement.77  

The business insurance sector inquiry identified concerns about the operation of two 
areas  of  business  insurance.  Firstly,  it  highlighted  long-standing  and  widespread 
industry  practices  in  the  reinsurance  and  coinsurance  markets  involving  the 
alignment  of  premiums,  which  may  lead  to higher  prices  for  large  risk  commercial 
insurance. The report left open the question of whether these constitute infringements 
of  the  prohibition  on  restrictive  business  practices  (Article  81  EC),  but  invited 
industry either to justify the business practices concerned under the competition rules 
or  to  reform  them.  Secondly,  the  Commission  also  confirmed  its  concerns  as  to 
transparency of remuneration and conflicts of interest in insurance brokerage which 
may  inflate  prices  and  reduce  choice,  in  particular  for  SMEs.  This  issue  will  be 
further  explored  in  the  context  of  the  review  of  the  Insurance  Mediation  Directive 
2002/92/EC. Finally, the sector inquiry has also provided useful data which will be 

network  (including  the  system  operation  activities)  in  order  to  bring  to  an  end  two  investigations 
respectively  in  the  German  wholesale  electricity  market  and  in  the  German  balancing  market.  See 
http://ec.europa.eu/competition/antitrust/cases. 
RWE Gas Foreclosure, see Commission Press Release IP/09/410 of 18/03/2009. 
The  EU  Electricity  &  Gas  markets: 
http://ec.europa.eu/energy/electricity/package_2007. 
Final Report, COM(2007)33 final, 31 January 2007. 
http://ec.europa.eu/competition/sectors/financial_services/inquiries/retail.html  
Austria, Finland and Portugal. 
See Commission Press Release, IP/07/114 of 31 January 2007. 
Green Paper on Retail Financial Services of 30.04.2007, COM 2007 226 final. 

package,  September 

legislative 

2007; 

third 

23 

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72 
73 

74 

75 
76 
77 

EN 

                                                                                                                                                         
 
fed into the review of the Insurance Block Exemption Regulation78, a report on the 
functioning of which was adopted by the Commission on 24 March 2009.79 

The  most  recent  sector  inquiry  was  launched  on  15  January  2008  into  the 
pharmaceutical  sector  relating  to  the  introduction  of  innovative  and  generic 
medicines  for  human  consumption  onto  the  market.  The  inquiry  was  launched  in 
response  to  indications  that  fewer  new  medicines  were  brought  to  market  and  the 
entry of generic medicines seemed to be delayed. The preliminary findings presented 
on 28 November 200880 suggest that there is evidence that originator companies have 
engaged  in  practices  with  the  objective  of  delaying  or  blocking  market  entry  of 
competing  medicines.  It  seems  that  such  practices  vis-à-vis  generic  companies 
include multiple patent applications for the same medicine (so-called patent clusters), 
initiation of disputes and litigation, conclusion of patent settlements which constrain 
market entry of generic companies and interventions before national authorities when 
generic  companies  ask  for  regulatory  approvals.  The  preliminary  findings  also 
indicate  that,  where  successful,  these  practices  result  in  significant  additional  costs 
for  public  health  budgets  –  and  ultimately  taxpayers  and  patients  –  and  reduce 
incentives  to  innovate.81  The  preliminary  findings  also  suggest  that  companies 
applied defensive patenting strategies, primarily aimed at blocking competitors in the 
development  of  new  medicines.  The  Commission  will  publish  a  final  report  in 
summer 2009. 

Article 17 of Regulation 1/2003 enables the Commission to exercise its investigative 
powers  under  Articles  18,  19,  20  and  22  of  Regulation  1/2003  in  the  context  of  a 
sector  inquiry.  The  pharmaceutical  sector  inquiry  is  the  first  Commission  sector 
inquiry  that  has  been  started  with  unannounced  inspections  at  the  premises  of  a 
number  of  originator  and  generic  pharmaceutical  companies.  Unannounced 
inspections  are  organised  notably  to  prevent  the  risk  of  documentation  relating  to 
possible  anti-competitive  practices  being  concealed,  withheld  or  destroyed  if  other 
investigative  means  are  used.  In  this  particular  inquiry,  the  kind  of  information  the 
Commission  examined,  notably  concerning  the  use  of  intellectual  property  rights, 
litigation  and  settlement  agreements  covering  the  EU,  is  by  its  nature  highly 
confidential. Such information may also be easily withheld, concealed or destroyed. 
For  these  reasons,  the  Commission  decided  that  immediate  access  to  all  such 
information was necessary. The knowledge acquired by the Commission during the 
sector inquiry has allowed the Commission to identify various competition concerns 
and  to  launch  individual  investigations.  On  this  basis  further  unannounced 
inspections  were  organised  at  several  pharmaceutical  companies  on  24  November 
2008.82  

Commission 

Commission 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). 
See 
http://ec.europa.eu/competition/sectors/financial_services/insurance.html 
See 
http://ec.europa.eu/comm/competition/sectors/pharmaceuticals/inquiry/index.html. 
The preliminary report takes a sample of medicines that faced loss of exclusivity in the period 2000 to 
2007 in 17 Member States and estimates that additional savings of around € 3 billion would have been 
possible on that sample over this period if generic medicines had entered the market without delay. 
See Commission Press Release, IP/08/734 of 24 November 2008. 

Commission 

IP/08/1829; 

IP/09/470 

published 

Release, 

Release, 

Report 

Press 

Press 

and 

on 

67. 

68. 

78 

79 

80 

81 

82 

EN 

24 

   EN 

                                                 
69. 

Respondents to the stakeholder consultation have criticised the use of inspections in 
the context of a sector inquiry. However, the power to conduct sector inquiries in the 
Regulation  is  a  genuine  investigation  power  aimed  at  effective  enforcement.  It 
therefore  includes  the  right  to  conduct  inspections  under  Article  20  which  are 
necessary for carrying out the sector inquiry concerned. The use of inspections in a 
particular sector inquiry is carefully assessed by the Commission and depends on the 
circumstances  of  the  individual  inquiry  and  notably  on  the  type  of  information  the 
Commission needs for its investigation. Similarly, stakeholders have raised the scope 
of  questionnaires  addressed  to  undertakings  in  the  context  of  sector  inquiries.  The 
Commission recognises that replies to information requests can be resource and time-
intensive, however, it considers that it does not go beyond what is necessary to fully 
understand the markets concerned and the relationships between the market players. 
Without this key data, the findings of the sector inquiries would be less robust and 
could lead to erroneous or distorted conclusions by the Commission. 

3.2.3. 

Inspections in business premises 

70. 

71. 

72. 

73. 

Unannounced inspections in business premises have always been the Commission’s 
most important tool in its fight against cartels and other  anticompetitive  behaviour. 
Already  provided  for  by  Regulation  17,  these  powers  have  been  reinforced  by 
Regulation 1/2003 and further enhanced by new provisions which are set out in more 
detail below. Between 1 May 2004 and the end of 2008, the Commission conducted 
29 inspections in cartel cases. It also undertook inspections in the framework of the 
pharmaceutical sector inquiry and other antitrust cases. 

The  Community  Courts  in  Hoechst83,  Roquette84,  and  more  recently  in  France 
Télécom85, have confirmed the powers of investigation conferred on the Commission 
by Regulation 17 and now by Regulation 1/2003. 

Article 20(2)(d) of Regulation 1/2003 confers on Commission inspectors the power 
to  seal  premises,  books  and  records  insofar  as  it  is  necessary  for  the  inspection.  It 
permits a more extensive inspection to be conducted without the risk that documents 
will be removed. Seals have been regularly used during inspections since 2004. They 
are particularly useful when a considerable number of offices need to be inspected, 
numerous documents are found which cannot all be copied and registered in one day 
and  when  Forensic  IT  is  used  which  often  requires  overnight  scanning  of  IT  files. 
Pursuant  to  Article  23(1)(e)  of  the  Regulation  breaching  the  seals  affixed  by  the 
Commission  may  lead  to  a  fine  of  up  to  1%  of  the  annual  turnover  of  the 
undertaking.86  

Article 20(2)(e) empowers the Commission during inspections in business premises 
to  "ask  any  representative  or  member  of  staff  of  the  undertaking  or  association  of 
undertakings for explanations of facts or documents relating to the subject-matter and 
purpose  of  the  inspection  and  to  record  the  answers".  Failure  to  comply  can  attract 
fines and/or periodic penalty payments on the company in accordance with Articles 
23  and  24.  The  power  to  ask  questions  has  been  a  successful  instrument  in 

83 
84 
85 
86 

Joined Cases 46/87 and 227/88 Hoechst AG [1989] ECR 2859, para 26. 
Case C-94/00 Roquette Frères SA [2002] ECR I-9011, para 42. 
Cases T- 339/04 and T-340/04 France Télécom v. Commission [2007] ECR II-521, paras 49-53. 
See in this context below, the E.ON seals case, part 3.5.6. 

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25 

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Commission inspections in the last five years. In particular, in complex cartel cases 
where  cartel  members  acted  in  a  very  sophisticated  way  to  hide  any  traces  of  their 
unlawful conduct, factual questions to staff members have enabled the Commission 
to obtain access to relevant information.87  

3.2.4.  Commission inspections in non-business premises 

74. 

75. 

The  most  significant  extension  of  the  Commission  investigation  powers  was 
introduced  by  Article  21  of  Regulation  1/2003  in  the  form  of  inspections  in  other 
than business premises, including for instance the homes of directors, managers and 
other  members  of  staff  of  the  undertakings  and  associations  of  undertakings 
concerned. This power can only be exercised by Commission decision and requires a 
reasonable  suspicion  that  books  or  other  records  relating  to  the  business  and  to  the 
subject-matter of the inspection, which may be relevant to prove a serious violation 
of  Article  81  EC  or  Article  82  EC,  are  kept  there.  Given  the  serious  intrusion  into 
private life, such inspections can only be executed with prior judicial authorisation.88 

The first inspection of private premises took place in the context of the marine hose 
cartel investigation. In May 2007, Commission inspectors carried out an inspection 
of  the  premises  of  several  marine  hose  producers  in  France,  Italy  and  the  United 
Kingdom.89 Simultaneously a Commission team inspected the private premises of a 
director of one of the undertakings concerned in the UK. The evidence found in the 
course  of  these  inspections  and  in  particular  in  the  private  premises  enabled  the 
Commission  to  fine  the  marine  hose  producers  involved  €  131  million  for  market 
sharing and price-fixing cartel in January 2009.90 This first successful experience has 
proven that the new investigation tool introduced by Article 21 is very important for 
the  Commission  in  its  fight  against  cartels  which  have  become  more  and  more 
complex and where efforts to hide evidence of forbidden activities have significantly 
increased  during  the  last  years.  Another  inspection  in  private  premises  has  taken 
place in 2008.91 

3.2.5.  Legal professional privilege 

76. 

The principle of legal privilege as an unwritten limitation of the Commission's power 
to inspect was recognised by the Court of Justice in the AM&S92 case. The question 
of  an  extension  of  legal  privilege  to  in-house  lawyers  had  been  argued  by  certain 
proponents at the time of the adoption of Regulation 1/2003 and was raised anew in 
the public consultation for the Report.  

87 

88 
89 
90 

91 
92 

For  instance  in  case  COMP/F/38.899  "Gas  insulated  switchgear"  –  GIS,  Commission  Decision  of  24 
January 2007, http://ec.europa.eu/competition/cartels/cases. 
See Article 21(3) of Regulation 1/2003.  
See Commission Press Release, IP/07/163 of 3 May 2007. 
See  Commission  Press  Release,  IP/09/137  of  28.1.2009;  see  also  OFT  Press  release  70/07 
(http://www.oft.gov.uk/news/press/2007/70-07). 
The case is still pending. 
Case 155/79 AM& S [1982] ECR 1575; see also Case T-30-89 Hilti [1990] ECR II-163, para 18. 

EN 

26 

   EN 

                                                 
77. 

78. 

In Akzo93 the Court of First Instance recently confirmed the AM&S jurisprudence, up-
holding a uniform European standard for legal privilege in Commission inspections 
and  providing  clarifications  about  the  material  and  personal  scope  of  the  privilege 
rule and about the procedure to be followed when dealing with contested claims of 
legal privilege during inspections.94  

The  Court  of  First  Instance  rejected  legal  privilege  for  lawyers  who  are  in  a 
relationship  of  employment  with  a  company  other  than  a  law  firm  (in-house 
lawyers),  relying  notably  on  the  lack  of  structural  independence  inherent  to  their 
position.  It  expressly  rejected  the  argument  that  the  abolition  of  the  notification 
system and the ensuing extended need for self-assessment pleaded for an extension 
of legal privilege.95 Moreover, the Court of First Instance held that the evolution of 
national  legislation  which  had  been  alleged  by  the  applicants  does  not  support  a 
general  finding  that  in-house  lawyers  should  be  covered  by  legal  privilege.96  The 
question of legal privilege for in-house lawyers is further pending before the Court of 
Justice following the appeal of the Akzo judgment.97 

3.2.6. 

Inspections by national competition authorities at the request of the Commission 

79. 

80. 

93 

94 

95 
96 
97 
98 
99 

Article 22 of Regulation 1/2003 is based on former Article 13 of Regulation 17 and 
has  been  adapted  to  the  new  enforcement  system.  It  enables  national  competition 
authorities  to  carry  out  inspections  or  other  fact-finding  measures  on  their  territory 
on  behalf  and  for  the  account  of  another  competition  authority  (paragraph  1)98  and 
inspections upon request by the Commission (paragraph 2). In both cases, Article 22 
inspections are carried out in accordance with the national law of the Member State 
where the inspection or fact-finding measure takes place. The assisting authority may 
use all investigative tools at its disposal independently of the fact that they may differ 
from the investigative tools at the disposal of the requesting authority. 

As  was  the  case  in  Regulation  17,  national  competition  authorities  are  obliged  to 
carry out an inspection where the Commission requests it. The Commission has used 
this provision in the context of the Flat glass investigation in France and in Germany 
in  February  2005.99  It  is  potentially  useful,  in  particular  in  investigations  where  a 
rather large number of sites need to be inspected simultaneously and the Commission 
would otherwise not be able to cover all inspection sites. Nevertheless, practical and 
legal issues have so far prevented extensive use of this provision. Inter alia, Article 
22(2)  tends  to  import  the  differences  in  procedures  in  the  Member  States  into 
Commission  procedures.  Uncertainties  have  occasionally  also  arisen  with  regard  to 

Joined  Cases  T-125/03  and  T-253/03  Akzo  Nobel  Chemicals  and  Akzo  Chemicals  v.  Commission, 
[2007] ECR II-3523. The President of the Court of First Instance had issued an order granting interim 
measures (Order of 30.10.2003) which was then reversed by the Court of Justice (Order of 27.9.2004). 
Legal professional privilege covers also preparatory documents even if they were not exchanged with a 
lawyer or were not created for the purpose of being sent physically to a lawyer, provided that they were 
drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of 
defence. The mere fact that a document has been discussed with a lawyer is not sufficient to give it such 
protection (para 123 of the judgment). 
Ibid., para 172. 
Ibid., para 170. 
Case C-97/08 P, OJ C128 of 24.05.2008, p.22. 
See below, part 5.4.2. 
See  Commission  Press  Release  IP/05/63  of  24  February  2005;  see  also  Decision  COMP/39.165  of 
28.11.2007, http://ec.europa.eu/competition/cartels/cases. 

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27 

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whether  the  transfer  of  evidence  should  take  place  on  the  basis  of  Article  12  or 
Article  22,  but  to  date  this  has  been  satisfactorily  resolved.  Further  reflection  on  a 
possible clarification of the provision may be appropriate with a view to improve the 
effectiveness of this tool. 

3.2.7.  Requests for information  

81. 

82. 

Article  18  of  Regulation  1/2003  gives  the  Commission  the  power  to  obtain  all 
necessary information from undertakings. This power can be used at any stage in the 
Commission's procedure and is  not limited to the fact-finding stage. It continues to 
be of high importance to the Commission, as obtaining such information enables it to 
develop a full analysis of the markets concerned. Article 11 of Regulation 17 foresaw 
a  two-stage  procedure  whereby  failure  to  respond  to  a  simple  request  was  a 
prerequisite  to  a  request  by  decision  which  obliges  the  addressee  to  reply.  Under 
Article  18  of  Regulation  1/2003,  the  Commission  has  the  choice  to  issue  either  a 
simple request or to proceed immediately to a decision requiring that information be 
provided.  

Articles  23(1)  and  24(1)  provide  for  fines  and  periodic  penalty  payments  in  the 
context  of  requests  for  information100  and  the  availability  of  these  measures  has 
improved  the  effectiveness  of  requests  for  information.  Nonetheless,  experience  of 
the  last  years  has  shown  that  in  many  instances  replies  to  simple  requests  were 
incomplete  and/or  were  provided  late.  In  the  context  of  certain  sector  inquiries 
especially  this  was  a  mass  phenomenon.  Against  this  background,  the  Commission 
may  consider  more  often  using  decisions  pursuant  to  Article  18(3),  as  foreseen  in 
Regulation 1/2003. 

3.2.8.  Voluntary Interviews 

83. 

84. 

Article 19 empowers the Commission to interview any natural or legal person who 
consents  to  be  interviewed  for  the  purpose  of  collecting  information  relating  to  the 
subject-matter of an investigation. Article 3 of Commission Regulation 773/2004 sets 
out  further  detail  in  this  regard  The  possibility  to  conduct  an  interview  pursuant  to 
Article  19  has  to  be  distinguished  from  the  right  of  the  Commission  to  ask  oral 
questions  during  on-site  inspections  pursuant  to  Article  20(2)(e)  and  to  impose 
sanctions on the undertaking concerned in case of incorrect or misleading answers.  

Interviews pursuant to Article 19 can be carried out in all investigations relating to a 
possible  violation  of  Articles  81  and  82  EC.  The  Commission  has  used  this 
instrument  regularly  in  the  last  years.  Experience  has  shown  that  the  absence  of 
penalties for misleading or false replies may be a disincentive to provide correct and 
complete statements. It should be further reflected whether the effectiveness of this 
tool can be improved. 

3.3. 

Types of Commission Decisions in the new enforcement system  

85. 

Regulation 1/2003 equipped the Commission with a renewed set of types of decision 
that  is  geared  towards  the  principal  objectives  of  the  Regulation,  effective  and 
coherent  enforcement.  Chapter  III  of  the  Regulation  provides  for  Commission 

100 

See below, parts 3.5.6 and 3.5.7. 

EN 

28 

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decisions  concerning  the  finding  and  termination  of  an  infringement  (Article  7), 
interim  measures  (Article  8),  commitments  (Article  9)  and  a  finding  of 
inapplicability (Article 10). In the Commission's decision making practice during the 
reporting  period,  prohibition  decisions  pursuant  to  Article  7  and  commitment 
decisions pursuant to Article 9 have been the most relevant tools.101  

3.3.1.  Prohibition decisions (Article 7) 

86. 

87. 

88. 

Article 7(1) of Regulation 1/2003 in the first place empowers the Commission to find 
an infringement and order the undertakings concerned to bring it to an end. Article 7 
has been developed from Article 3 of the now superseded Regulation 17. During the 
first  five  years  of  Regulation  1/2003,  the  Commission  has  adopted  prohibition 
decisions with or without fines102 in a series of high-profile cases in sectors identified 
for  priority  enforcement.  Several  of  these  decisions  –  besides  their  impact  on  the 
conduct of the undertakings concerned – clarified the conditions for prohibition and 
thereby gave a signal to other undertakings and other enforcers.  

Already  shortly  before  the  entry  into  effect  of  Regulation  1/2003,  the  Commission 
had adopted its decision imposing a fine of € 497 million on  Microsoft103 for abuse of 
dominant  position  in  the  PC  operating  system  market  by  refusing  to  disclose 
interoperability  information  that  would  enable  its  competitors  to  fully  interoperate 
with  Windows  PCs  and  servers  and  by  tying  Windows  Media  Player  with  its 
dominant Windows PC operating system. 

Throughout the reporting period, a number of Commission decisions have addressed 
complex  cases  in  important  sectors.  Many  of  these  decisions  at  the  same  time 
provided  significant  precedential  value  for  national  competition  authorities' 
enforcement activity in various sectors. For instance, the Commission Decision of 4 
July 2007 imposing fines on the Spanish incumbent telecoms operator Telefónica104 
for  abuse  of  its  dominant  position  in  the  Spanish  broadband  market  confirmed  the 
Commission's  methodology  for  the  analysis  of  margin  squeeze  and  provided 
guidance  to  national  competition  authorities  in  similar  scenarios.  In  MasterCard105 
the Commission addressed the complex area of multilateral interchange fees (MIFs) 
for  cross-border  payment  card  transactions  with  MasterCard  and  Maestro  branded 
debit and consumer credit cards. The Commission case is at the centre of a cluster of 
enforcement  actions  by  national  competition  authorities  dealing  with  domestic 
payment  transactions.106  Similarly,  already  in  2004,  the  Commission  adopted  its 

101 
102 
103 

104 

105 

106 

See Annex. 
See below, part 3.5. 
Commission  Decision  of  24  March  2004  relating  to  a  proceeding  pursuant  to  Article  82  of  the  EC 
Treaty  and  Article  54  of  the  EEA  Agreement  against  Microsoft  Corporation,  OJ  L  32,  06.02.2007, 
p. 23-28.  Court  of  First  Instance  upheld  the  Commission  decision  in  Case  T-201/04,  17  September 
2007, ECR II-3601. 
Commission Decision of 04.07.2007 relating to proceedings under Article 82 of the EC Treaty (Case 
COMP/38.784  –  Wanadoo  España  vs.  Telefónica),  OJ  C  83,  2.4.2008,  p.  6-9, 
http://ec.europa.eu/competition/antitrust/cases. 
Commission  Decision  of  19.12.2007  (COMP/34.579  MasterCard  COMP/36.518  EuroCommerce  and 
COMP/38.580 Commercial Cards). http://ec.europa.eu/competition/antitrust/cases. 
See below, part 5.5.1. 

EN 

29 

   EN 

                                                 
decision  in  the  Belgian  Architects107  case  which  –  together  with  further  horizontal 
work  in  the  context  of  the  ECN  –  has  given  an  impulse  for  enforcement  action  by 
national  competition  authorities  in  numerous  cases  in  the  field  of  professional 
services.108  

Cartels  are  the  largest  category  of  infringements  in  which  decisions  have  been 
adopted  under  Article  7.  Within  the  reporting  period  many  important  cartels  have 
been  investigated  and  fined.  High  profile  cases  were,  for  instance,  the  Car  glass 
cartel109  where  the  Commission  imposed  the  highest  fines  ever110,  both  for  an 
individual  company  and  for  a  cartel  as  a  whole,  on  four  producers  of  car  glass  for 
illegal  market-sharing  and  exchange  of  commercially  sensitive  information.  In  the 
Paraffin  wax  case111  nine  big  producers  of  paraffin  waxes  used  in  a  variety  of 
products  such  as  candles  were  fined  for  their  participation  in  a  price-fixing  and 
market-sharing  cartel  which  had  lasted  from  1992  until  2005.  Another  decision  of 
major  importance  concerned  the  Elevators  and  Escalators  cartel112  where  four 
companies  had  run  an  illegal  bid-rigging,  price-fixing  and  market-sharing  cartel  in 
Belgium, Germany, Luxembourg and The Netherlands between 1995 and 2004. 

The  Commission's  policy  of  addressing  decisions  to  both  the  entities  actively 
involved  in  the  cartel  activities  and  their  parent  or  other  companies  exercising 
decisive  influence  over  them  has  been  largely  confirmed  by  the  Court  of  First 
Instance.113  Moreover,  in  AC  Treuhand114  the  CFI  confirmed  the  Commission's 
decision to pursue and fine for the first time ever a third party, the consultancy AC 
Treuhand,  which  was  found  to  have  contributed  actively  and  intentionally  to  the 
cartel in the sector of organic peroxides. 

Already in the context of Article 3 of Regulation 17, the European Court of Justice 
had  confirmed  that  the  Commission  has  the  power  to  order  the  parties  to  take 
positive  measures  to  bring  an  infringement  to  an  end.115  Article  7(1)  of  Regulation 
1/2003 now explicitly provides that the Commission may impose any behavioural or 
structural  remedies  which  are  proportionate  to  the  infringement  committed  and 
necessary  to  bring  the  infringement  effectively  to  an  end.  Structural  remedies  can 
only  be  imposed  either  where  there  is  no  equally  effective  behavioural  remedy  or 
where any equally effective behavioural remedy would be more burdensome for the 
undertaking  concerned  than  the  structural  remedy.  Recital  12  further  specifies  that 
changes to the structure of an undertaking ("break-ups") would only be proportionate 

See  Commission  Press  Release  IP/04/800 of  24/06/2004  and  Commission  Decision  in  Case 
COMP/38.549.  The  Commission  concluded  that  the  scale  of  recommended  minimum  fees  of  the 
Belgian Architects Association was in breach of the EC competition rules. 
See below, part 5.5.1. 
Case COMP/39.125; Decision of 12 November 2008, see Commission Press Release IP/08/1685. 
Over € 1.3 billion. 
Case COMP/39.181; Decision of 1st October 2008, see Commission Press Release IP/08/1434. 
Case  COMP/38.823;  Decision  of  21  February  2007,  see  Commission  Press  Release  IP/07/209; 
published on http://ec.europa.eu/competition/cartels/cases/cases.html. 
Case  T-85/06,  Judgment  of  the  Court  of  First  Instance  of  18.12.2008,  General  Quimica,  not  yet 
published;  Case  T-314/01,  Avebe  v.  Commission,  [2006]  ECR  II-3085;  Case  T-112/05,  Akzo  Nobel 
NV and Others [2007] ECR- II-5049. 
Case  T-99/04,  AC  –  Treuhand  AG,  Judgment  of  the  Court  of  First  Instance  of  08.07.2008,  not  yet 
published. 
Cases  6-7/73,  Istituto  Chemiorerapico  Italiano  Spa  and  Commerical  Solvents  Corp.  v  Commission 
[1974] ECR 223. 

89. 

90. 

91. 

107 

108 
109 
110 
111 
112 

113 

114 

115 

EN 

30 

   EN 

                                                 
92. 

93. 

where  there  is  a  substantial  risk  of  a  lasting  or  repeated  infringement  that  derives 
from the very structure of the undertaking. 

The Commission has not so far imposed structural remedies in prohibition decisions 
under Article 7(1). The power to impose structural remedies under Article 7(1) has, 
nevertheless,  positively  contributed  to  the  obtaining  of  structural  changes  as 
commitments under Article 9.116 

Regulation  1/2003  also  codified  the  case  law  of  the  Court  in  GVL117  according  to 
which the Commission, where it has a legitimate interest, may, in principle, find that 
an  infringement  has  been  committed  in  the  past,  i.e.  where  such  infringement  has 
already come to an end, and without thus issuing a cease and desist order. The Court 
of  First  Instance  gave  a  strict  interpretation  to  the  notion  of  "legitimate  interest"  in 
Sumitomo118, implying that the Commission must substantiate, in light of the facts of 
each  individual  case,  the  reasons  why  it  considers  that  the  condition  of  legitimate 
interest is satisfied (e.g. a specific risk of recidivism on the part of the undertakings 
concerned). In the reporting period, the Commission considered this possibility only 
in a few cases119, as its priorities are focused on pursuing the most serious on-going 
infringements. 

3.3.2.  Commitment decisions (Article 9) 

94. 

95. 

116 
117 

118 
119 

Article  9  of  Regulation  1/2003  empowers  the  Commission  to  adopt  a  new  type  of 
decision  by  which  it  may  make  commitments  offered  by  undertakings  binding  and 
enforceable on them ("commitment decisions"). Commitment decisions are based on 
commitments voluntarily offered by the party or parties concerned and thus allow the 
Commission  and  the  parties  to  conclude  cases  in  a  more  consensual  mode. 
Commitment  decisions  do  not  make  a  finding  of  an  infringement,  nor  do  they 
conclude  that  an  infringement  would  be  terminated  as  a  consequence  of  the 
commitments.  Article  9  adds  considerable  value  in  comparison  to  Regulation  17, 
under  which  no  enforcement  possibility  was  available  for  cases  concluded  by 
informal commitments. The primary purpose of commitment decisions is to preserve 
effective competition and to obtain faster changes in the market for the future. It is 
therefore used in cases in which the Commission considers that the commitments, if 
subsequently fully respected by the undertaking, sufficiently address its competition 
concerns.  

According  to  Recital  13  of  Regulation  1/2003,  commitment  decisions  are  not,  in 
principle, appropriate in cases in which the Commission intends to impose a fine. For 
instance,  in  hard-core  cartel  cases  fines  are  necessary,  as  the  emphasis  of 
enforcement is on punishing past behaviour and deterring anti-competitive practices. 
In other cases, the Commission has a margin of discretion in the choice offered to it 
under Regulation 1/2003, i.e. to make commitments binding through the adoption of 

See below, part 3.3.2. 
Case 7/82, Gesellschaft zur Verwertung von Leistungsschutzrechten (GVL) v Commission, [1983] ECR 
483. 
Joined Cases T-22/02 and T-23/02 Sumitomo Chemical v Commission, [2005] ECR II-4065, para 138.  
Decisions 
see 
http://ec.europa.eu/competition/antitrust/cases. 

COMP/38.662 

GDF/ENEL 

26.10.2004, 

GDF/ENI 

and 

of 

– 

EN 

31 

   EN 

                                                 
96. 

97. 

98. 

a decision under Article 9 or to pursue the case under Article 7, involving a finding 
of an infringement.120 

The Commission has so far adopted 13 decisions under Article 9, relating to a variety 
of matters about which competition concerns were expressed under both Articles 81 
and 82 EC.121 

The Coca-Cola, De Beers Distrigaz, and RWE involved concerns relating to possible 
exclusionary abuses of dominant position under Article 82 EC, the two E.ON cases 
involved  concerns  relating  to  possible  exploitative  abuses  of  a  dominant  position 
under Article 82 EC,  and  the DFB,  FA  Premier  League,  Repsol,  Cannes  Extension 
Agreement,  Opel,  Toyota,  Fiat  and  Daimler  Chrysler  cases  raised  concerns  under 
Article  81  EC.  Whilst  most  Article  81  cases  involved  vertical  agreements  with 
exclusivity  clauses  or  conditions  of  supply  to  third  parties,  the  cases  DFB,  FA 
Premier  League  and  the  Cannes  Extension  Agreement  concerned  horizontal 
agreements.  Except  for  E.ON  and  RWE,  in  which  the  Commission  made  structural 
commitments  binding  on  the  undertaking,  all  the  commitments  have  been 
behavioural  in  nature.  In  sectors  where  a  number  of  infringements  derive  from  the 
very complex nature of business decisions (e.g. decisions taken on an hourly or finer 
basis for a large portfolio of assets and/or using a large number of non-programmable 
parameters)  and  from  the  structure  (e.g.  vertical  integration)  of  the  operators, 
structural measures may indeed be necessary. 

On 11 October 2007, the Commission accepted commitments offered by Distrigaz to 
open the Belgian gas market by reducing the gas volumes tied in long-term contracts 
and  thus  allowing  other  gas  suppliers  to  compete  with  Distrigaz  and  to  build  up  a 
portfolio  of  customers.122  On  26th  November  2008,  the  Commission  accepted  the 
commitments  offered  by  E.ON  to  open  the  German  electricity  markets  to 
competition and bring to an end two separate investigations.123 In the first case, the 
Commission  had  concerns  that  E.ON  may  have  withdrawn  available  generation 
capacity from the German wholesale electricity markets in order to raise prices, and 
may  have  deterred  investments  in  energy  generation  by  competitors.  In  the  second 
case,  the  Commission  had  concerns  that  the  transmission  subsidiary  of  E.ON  may 
have favoured its production affiliate for providing balancing services, while passing 
the resulting costs on to final consumers, and may have prevented power producers 
from  other  Member  States  from  exporting  balancing  energy  into  its  transmission 
zone.  Subsequently,  E.ON  offered  to  divest  around  5  000  MW  of  its  generation 
capacity  to  address  the  concerns  regarding  the  wholesale  market.  E.ON  also 
committed  to  divest  its  extra-high  voltage  network  to  meet  the  concerns  on  the 
electricity  balancing  market.  The  Commission  has  also  recently  accepted  structural 
commitments proposed by RWE in the German gas market124 The Commission had 
concerns that RWE may have abused its dominant position on the gas transmission 
market, notably by means of its refusal to supply gas transmission services to third 

120 
121 
122 

123 

124 

Case T-170/06, Alrosa v. Commission [2007] ECR II-2601. 
See table in the Annex. 
Decision COMP/B-1/37.966 of 11 October 2007; see Commission Press Release IP/07/1487, 
http://ec.europa.eu/competition/antitrust/cases. 
Decision COMP/B-/39.388 and 39.389 of 26th November 2008; Commission Press Release IP/08/1774; 
http://ec.europa.eu/competition/antitrust/cases. 
See Commission Press Release IP/09/410 of 18/03/2009. 

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32 

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99. 

100. 

101. 

102. 

parties and by trying to lower the profit margins of its downstream competitors in gas 
supply.  To  address  these  concerns,  RWE  committed  to  divest  its  existing  Western 
German  high-pressure  transmission  network  to  an  independent  purchaser,  the 
acquisition  by  whom  would  not  give  rise  to  prima  facie  competition  concerns.  The 
Commission will closely monitor compliance with these commitments. 

Article 9 pursues the objective of enhancing efficiency and effectiveness in dealing 
with  competition  concerns  identified  by  the  Commission  where  the  undertaking(s) 
concerned voluntarily offer commitments with a view to address these concerns. The 
choice  of  an  Article  9  proceeding  is  thus  often  guided  by  considerations  of 
expediency, as the procedure normally allows saving administrative and investigative 
resources that would be required in an Article 7 procedure, as well as considerations 
about  the  effectiveness  of  commitments  proposed  for  solving  market  problems 
expeditiously.  

Article  9  requires  that  the  Commission  expresses  its  competition  concerns  in  a 
preliminary  assessment  vis-à-vis  the  undertaking(s)  concerned.  The  preliminary 
assessment  principally  creates  the  opportunity  for  the  Commission  to  make  its 
competition concerns known to the parties at an earlier stage of the proceedings with 
a view to open commitment discussions. The preliminary assessment does therefore 
not  need  to  have  the  level  of  detail  required  for  a  statement  of  objections,  which 
produces procedural efficiencies. 

Article  27  (4)  of  Regulation  1/2003  provides  for  a  market  test  inviting  interested 
third  parties  to  submit  their  observations  within  a  fixed  time  limit,  before  the 
commitments  can  be  finally  accepted.  To  this  end,  the  Commission  is  obliged  to 
publish in the Official Journal a concise summary of the case and the main content of 
the commitments. 125  

Experience  so  far  indicates  that  the  instrument  of  commitment  decisions  has 
functioned well and has in several cases served as an effective means to address the 
competition  problems  at  issue.  As  commitment  decisions  result  from  the  parties' 
initiative  and  willingness  to  offer  commitments,  the  same  parties  tend  to  be  more 
readily  inclined  to  implement  their  own  voluntary  commitments.  Commitment 
decisions  are  also  less  likely  to  be  challenged  before  the  Community  Courts  than 
prohibition  decisions.  Indeed,  thus  far  few  commitment  decisions  adopted  by  the 
Commission  have  been  subject  to  appeal  at  the  Court  of  First  Instance  by  third 
parties  directly  affected  by  the  decision.126  Consequently,  Article  9  decisions  have 
helped  to  expedite  market  changes.  Through  the  lesser  litigation  burden  and  other 
procedural  economies,  Article  9  has  therefore  also  contributed  favourably  to  the 
resource allocation within the Directorate General for Competition, freeing resources 
for the prosecution and punishment of the most serious infringements.  

103. 

Notwithstanding,  in  Alrosa,  the  Court  of  First  Instance  annulled  the  Commission 
Decision 2006/520/EC of 22 February 2006 (De Beers), for breach of the principle of 
proportionality  and  the  right  to  be  heard.  The  Court  in  particular  considered  that, 
according to the principle of proportionality, commitments made binding on the basis 

125 
126 

In this regard, see also Case T-170/06, Alrosa v. Commission [2007] ECR II-2601, para 196. 
In Case T-170/06, Alrosa v. Commission the Court of First Instance annulled the Commission Decision 
2006/520/EC of 22 February 2006 (De Beers).  

EN 

33 

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104. 

of  Article  9  must  be  strictly  aligned  on  remedies  that  the  Commission  could  have 
imposed  in  a  proceeding  under  Article  7,  thereby  requiring  a  parallel  analysis 
independent of the commitments offered by the party/ies concerned. The judgment of 
the Court of First Instance is currently under appeal to the Court of Justice.127 

Furthermore,  there  is  a  perception  that  the  overall  duration  of  the  administrative 
proceedings in certain cases decided under Article 9 was relatively long and did thus 
not fully yield  the efficiencies  pursued  by the Regulation. In  this context, it can be 
highlighted that the majority of cases decided under Article 9 so far had been started 
under  Regulation  17  and  thus  entered  the  commitment  route  after  May  2004  (i.e. 
cases  DFB,  Distrigaz,  De  Beers,  Coca-Cola,  FA  Premier  League,  Repsol,  Cannes 
Extension  Agreement).  This  case  experience  illustrates  generally  that  a  late  switch 
from  the  prohibition  to  the  commitment  route  may  entail  significant  delays  in  the 
procedure, ranging from nearly four years (De Beers, Cannes Extension Agreement) 
to around seven years (DFB, Distrigaz). Even though in cases in which a statement 
of objections has been issued, from a procedural perspective, the requirement of the 
preliminary  assessment  is  fulfilled,  a  market  test  under  Article  27(4)  is  still 
necessary. In most of these cases, the difficulty in arriving at a satisfactory outcome 
on  substance  has  led  to  relatively  prolonged  discussions  with  parties  before  it  was 
possible  for  the  Commission  to  accept  commitments.  The  procedure  has  generally 
been shorter in cases which followed the entry into force of Regulation 1/2003. The 
car cases took less than three years each, whereas the E.ON cases were concluded in 
a comparatively limited time-span of less than two years.  

105. 

It  is  also  noted  that  the  commitment  procedures,  as  retained  by  some  of  the 
legislators of the Member States for the national competition authorities, differ from 
the Commission procedure.  

3.3.3.  Effects of commitment decisions 

106. 

107. 

Feedback  from  the  legal  and  business  communities  pointed  to  a  certain  number  of 
queries  about  the  effects  of  commitment  decisions,  including  notably  the  issue  of 
enforcement  action  by  national  competition  authorities  in  relation  to  competition 
concerns  covered  by  a  Commission  commitment  decision.  The  Commission's 
experience  has  also  shown  that  the  possibility  for  the  national  authorities  to  bring 
cases  relating  to  the  same  subject  matter  may  complicate  negotiations  on 
commitments in some cases.  

Recitals  13  and  22  specify  that  commitment  decisions  are  without  prejudice  to  the 
powers  of  national  competition  authorities  and  courts  to  find  an  infringement  and 
decide upon the case. National authorities may thus in principle adopt a prohibition 
decision regardless of the Commission's commitment decision concerning the same 
subject  matter.  Moreover,  Article  16  of  Regulation  1/2003,  according  to  which 
national competition authorities and courts must not adopt decisions that run counter 
to those adopted by the Commission, does not appear to preclude such a finding.128 

127 
128 

Case C-441/07 P, OJ C 283 of 24.11.2007, p.22. 
The  position  could  arguably  be  different  where  a  national  competition  authority  or  a  national  court 
requires  an  undertaking  to  carry  out  actions  that  conflict  with  the  commitments  made  binding  by  the 
Commission  decision,  i.e.  where  the  undertaking  could  not  implement  the  obligations  imposed  by 
national authorities without breaching its commitments. It has been argued in doctrine that this scenario 

EN 

34 

   EN 

                                                 
108. 

109. 

The  finding  of  an  infringement  is  not  in  conflict  with  a  Commission  decision  that 
limits itself to concluding that there are no longer grounds for action on the part of 
the  Commission.129  This  corresponds  to  the  overall  thrust  of  the  Regulation  which 
expressly differentiates commitment decisions from the former exemption decisions 
which had a blocking effect on national competition authorities and courts.  

In  the  context  of  public  enforcement,  the  matter  has,  however,  rarely  arisen  in 
practice.  One  such  instance  arose  in  the  Coca-Cola  case,  where  certain  national 
competition  authorities  conducted  parallel  proceedings  which  were  closed  after  the 
Commission's commitment decision of 2005.130 The Greek competition authority, in 
turn, had adopted a prohibition decision against Coca Cola under Greek competition 
law  in  2002  and  imposed  periodic  penalty  payments  for  non-compliance  with  that 
decision in 2006131, i.e. after the Commission had adopted its commitment decision. 
The  approach  of  the  national  competition  authority  did  not  conflict  with  the 
Commission's  commitment  decision  and  could  be  implemented  by  the  undertaking 
concerned  on  the  local  market.  Generally,  the  Commission  strives  in  commitment 
cases  to  address  the  competition  concerns  in  such  a  way  that  parallel  enforcement 
action  by  the  national  competition  authorities  within  the  territorial  coverage  of  the 
Commission decision should in principle not be needed.  

A different question is to which extent commitment decisions, notwithstanding their 
limited legal effects on other enforcers, can serve as a model for addressing similar 
situations.  The  Commission's  commitment  practice  has  been  seen  as  acting  in  this 
way in several instances. In Distrigaz, for instance, the decision under Article 9 set 
out  guidance  on  the  Commission's  approach  toward  foreclosure  by  long  term 
contracts.  Similarly,  following 
the 
Commission  in  the  four  car  cases  (see  table  in  the  annex),  Citroën  offered 
commitments  in  the  context  of  a  French  procedure  which  also  related  to  technical 
information.132 Moreover, in the area of marketing of media rights for sports events, 
the Commission has, after adopting commitment decisions in the cases DFB and FA 
Premier League, considered that further action in this field should not be a priority 
for it as the existing commitment decisions appeared to provide sufficient orientation 
to  operators  and  national  competition  authorities  to  deal  with  domestic  media 
markets effectively and consistently.  

the  commitment  decisions  adopted  by 

3.3.4. 

Interim Measures (Article 8) 

110. 

Article 8(1) of Regulation 1/2003 provides that in cases of urgency due to the risk of 
serious  and  irreparable  harm  to  competition,  the  Commission,  acting  on  its  own 
initiative,  may  order  interim  measures  by  decision,  on  the  basis  of  a  prima  facie 

would  attract  the  application  of  Article  16.  See  e.g.  Gippini-Fournier,  E.  The  Modernisation  of 
European Competition Law: First Experiences with Regulation 1/2003, in FIDE XXIII Congress Linz 
2008, Congress Publications Vol. 2, p. 404. Article 16 codifies the judgment of the Court of Justice in 
Case C-344/98 Masterfoods [2000] ECR I-11369, in which the Court of Justice held that the national 
competition authorities and courts cannot adopt decisions that run counter to decisions adopted by the 
Commission. 
The position is different for Article 10 decisions which foresee a formal finding of inapplicability.  
The Spanish competition authority closed its proceedings on 15 July 2005.  
See  Decisions  of  the  Hellenic  Competition  Commission  207/III/2002  and  309/V/2006,  and  Press 
Release of 14.06.2006, available at: http://www.epant.gr/news_details.php?Lang=en&id=89&nid=59. 
Décision du Conseil de la Concurrence 07-D-31 of 9 October 2007. 

129 
130 
131 

132 

EN 

35 

   EN 

                                                                                                                                                         
finding  of  infringement.  While  Regulation  17 did not explicitly provide  for interim 
measures, the European Court of Justice had held that the Commission had the power 
to impose such measures.133 

111. 

Interim measures can only be adopted where there is a risk of serious and irreparable 
harm  to  competition,  not  only  to  an  individual  undertaking  or  a  competitor.  The 
purpose of Articles 81 and 82 EC is indeed to protect competition in the market, and 
the  Commission,  as  a  competition  authority,  acts  in  the  public  interest  to  protect 
competition,  whereas  national  courts  are  considered  better  placed  to  protect  the 
interests  of  individual  companies.134Against  this  background,  the  Commission  has 
not made use of Article 8 in its decisional practice during the reporting period.  

3.3.5.  Finding of inapplicability (Article 10) 

112. 

113. 

Another new type of decision is introduced by Article 10 of Regulation 1/2003 which 
empowers the Commission to adopt decisions finding that an agreement or practice 
does  not  infringe  Article  81  or  82  EC,  where  the  Community  public  interest  so 
requires.  The  Commission,  acting  on  its  own  initiative,  may  by  decision  find  that 
Article  81  EC  is  not  applicable  in  a  certain  case,  either  because  the  conditions  of 
Article 81(1) EC are not fulfilled or because the conditions of Article 81(3) EC are 
satisfied.  The  Commission  may  likewise  make  such  a  finding  with  reference  to 
Article  82  EC.  The  Commission  has  the  exclusive  power  to  adopt  such  decisions 
which are binding on national competition authorities and national courts. 

The Commission has not, to date, adopted any decisions under Article 10. It has been 
stated  by  some  stakeholders  that  greater  legal  certainty  would  be  guaranteed  if  the 
Commission  were  to  adopt  decisions  under  Article  10  of  Regulation  1/2003. 
However,  this  view  disregards  the  purpose  of  Article  10  as  defined  by  the 
Regulation. The use of the term "Community public interest" in Article 10 excludes 
the adoption of such decisions in the interests of individual companies, to avoid this 
instrument  being  used  as  a  replacement  for  the  exemption  decision  under  the  old 
system. The terms of application of Article 10 have been clearly defined so that its 
use is confined to "exceptional cases"135 to clarify the law and ensure its consistent 
application  throughout  the  Community,  namely:  (i)  to  "correct"  the  approach  of  a 
national  competition  authority;  or  (ii)  to  send  a  signal  to  the  ECN  about  how  to 
approach a certain case. 

114. 

In practice, however, such an ex ante means of ensuring consistency has largely been 
overtaken by the extensive efforts of the ECN in promoting the coherent application 
of the EC antitrust rules. The extent to which the ECN has proven to be a successful 
forum to discuss general policy issues was not anticipated at the time of the adoption 
of Regulation 1/2003. Horizontal working groups and sector-specific subgroups have 
been set up where the case-handlers of the different authorities have been extremely 
proactive  in  exchanging  views  and  learning  from  each  others’  experiences  with 

133 
134 

135 

Case 792/79 R, Camera Care v Commission [1980] ECR 119, paras 17-18. 
See para 16 of the Commission Notice on the handling of complaints under Articles 81 and 82 EC (OJ 
C 101, 27.4.2004, p.65-77). 
Recital  14  of  Regulation  1/2003  states:  "In  exceptional  cases  where  the  public  interest  of  the 
Community so requires…". 

EN 

36 

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particular issues or with particular sectors. Against this background, the Commission 
has had no reasons to proceed under Article 10 to date. 

3.4. 

Handling of complaints 

3.4.1.  General  

115. 

116. 

Regulation 1/2003 has taken over from Regulation 17 the possibility for persons that 
are able to show a legitimate interest to be (formal) complainants that enjoy certain 
procedural  rights.136  The  details  of  the  procedure  to  be  followed  are  set  out  in 
Commission Regulation 773/2004137 and in the Commission Notice on the handling 
of complaints by the Commission under Articles 81 and 82 EC.138 The handling of 
complaints is further governed by case law of the Community Courts. 

Complaints  are  an  important  tool  to  trigger  cases.  Complainants  often  provide 
information  which  is  indispensable  for  the  investigation  of  an  anti-competitive 
conduct  as  they  are  close  to  the  facts.  Experience  has  shown  that,  in  particular  in 
non-cartel cases for which leniency is not available, complaints are an important tool 
to  discover  anti-competitive  conduct.  Most  prominent  examples  in  the  field  of 
Article  82  EC  are  the  Microsoft  and  Telefonica  investigations.139  In  the  area  of 
Article 81 EC complainants have also provided valuable information.140 

3.4.2.  Non-priority complaints 

117. 

118. 

A large number of complaints are not about competition issues that are enforcement 
priorities  for  the  Commission  and  they  are  consequently  not  followed  up  by  the 
Commission by an in-depth investigation. Under the current legal framework, these 
complaints nonetheless trigger an administrative procedure.  

The  entry  into  application  of  Regulation  1/2003  introduced  the  possibility  to  re-
allocate cases to Member States' competition authorities and to reject complaints in a 
simplified procedure on the ground that one or several of the latter is or are dealing 
with  a  case.141  This  mechanism  is  now  well  established  within  the  ECN.  Several 
cases  have  been  re-allocated  from  the  Commission  to  national  competition 
authorities. It is applied to complaints that – while not a priority for the Commission 
–  are  prima  facie  worthwhile  investigating  by  a  national  competition  authority  and 
that a national competition authority is interested in pursuing. Since 1 May 2004, the 
Commission rejected 29 complaints pursuant to Article 13 of Regulation 1/2003.142 

136 
137 
138 
139 

140 

141 
142 

See in particular Article 7(2) of Regulation 1/2003. 
OJ L 123, 27.4.2004, p. 18-24. 
OJ C 101, 27.4.2004, p.65-77. 
Commission  Decision  of  24.3.2004,  Microsoft,  COMP/C-3/37.792,  Complaint  by  Sun  Microsystems, 
Inc.; New proceedings initiated against Microsoft on the basis of a complaint by ECIS in January 2008 
–  Case  COMP/C-3/39.294;  Commission  Decision of 4.7.2007, Wanadoo  Espana vs. Telefonica,  Case 
COMP/38.784. 
For  instance  in  the  field  of  financial  services  in  the  context  of  the  Single  European  Payments  Area 
("SEPA"); see on this subject for instance Commission Press Release IP/09/468 of 24 March 2009 with 
further references.  
Article 13 of Regulation 1/2003 and Article 9 of Regulation 773/2004. 
See Case T-153/06. The case was later withdrawn. See in this context also Case C-53/03, Syfait, [2005] 
ECR I-4609.  

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37 

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However, the majority of incoming complaints are complaints that do not give rise to 
any priority case, neither by the Commission nor by a national competition authority.  

119. 

120. 

Besides  Article  13  of  Regulation  1/2003,  the  Commission  may  reject  an  antitrust 
complaint on substance or for lack of Community interest. The Community Courts143 
have recognised that the Commission is entitled to give differing degrees of priority 
to  the  complaints  that  it  receives  and  that  it  may  rely  on  this  concept  for  rejecting 
complaints.  Since  Regulation  1/2003  was  intended  to  enable  the  Commission  to 
focus  on  prosecuting  the  most  serious  infringements,  complaints  have  been 
increasingly rejected for lack of Community interest.  

The  Commission  has  made  public  a  list  of  criteria  which  it  intends  to  use  when 
examining  whether  or  not  complaints  show  sufficient  Community  interest.  The 
criteria were published in the Annual Report on Competition Policy 2005 adopted in 
June 2006.144 Experience gained during the last years has shown that these measures 
have contributed to better focusing the enforcement resources of the Commission on 
priority case investigations.  

3.4.3. 

Involvement of complainants in priority cases 

121.  Where the Commission is acting on the basis of a complaint in view of the adoption 
of  a  prohibition  decision145,  complainants  are  associated  closely  with 
the 
proceedings.146  The  precise  procedural  rights  are  set  out  in  Article  6  of  Regulation 
773/2004 which notably foresees that the complainant shall be provided with a copy 
of  the  non-confidential  version  of  the  statement  of  objections.  The  procedure  is 
different in case of a settlement procedure.147 

122. 

In  many  cases,  complaints  received  in  the  course  of  an  already  ongoing  procedure 
can  be  very  useful  for  the  investigation.  The  outcome  and  duration  of  an 
investigation  may  depend  on  the  well-substantiated  information  provided  by  a 
complainant. In only a limited number of cases where complainants come forward at 
a  very  late  stage  of  already  advanced  proceedings,  the  handling  of  such  late 
complaints  can  lead  to  certain  delays  in  the  proceedings.  In  such  cases,  the 
Commission  may  suggest  to  potential  complainants  to  consider  rather  the  status  of 
interested third person pursuant to Article 13 of Regulation 773/2004. 

123. 

To  conclude,  the  Commission  considers  that  substantiated  complaints  are  an 
important tool for the detection of anti-competitive conduct and have given rise to a 
number  of  priority  cases.  However,  with  regard  to  complaints  that  do  not  reveal 
priority  case  investigations,  the  Commission  needs  to  examine  further  how  the 
procedure may be streamlined. 

143 

144 
145 
146 
147 

Cf. in particular Case T-24/90, Automec II, [1992] ECR II-2223 and Case C-119/97 P, Ufex, [1999], 
ECR I-1341. 
Published on the Website of the Directorate General for Competition; Chapter 3.2, pt.26. 
Article 7 of Regulation 1/2003. 
Article 27(1) of Regulation 1/2003. 
Commission  Notice  on  the  conduct  of  settlement  procedures  in  view  of  the  adoption  of  Decisions 
pursuant to Article 7 and Article 23 of Council Regulation (EC) N°1/2003 in Cartel cases, OJ C 167 of 
2.7.2008,  p.1-6;  Commission  Regulation  N°622/2008  of  30  June  2008  amending  Regulation  (EC) 
N°773/2004, as regards the conduct of settlement procedures in cartel cases, OJ L 171 of 1.7.2008, p.3-
5. 

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38 

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3.5. 

Fines and periodic penalty payments 

3.5.1.  The Commission's power to impose fines 

124. 

125. 

Regulation  1/2003  essentially  took  over  from  Regulation  17  the  legal  basis  for 
imposing fines for breaches of the substantive competition rules. In accordance with 
Article  23(2),  the  Commission  may  impose  fines  on  infringing  undertakings  and 
associations  of  undertakings  that  do  not  exceed  10%  of  their  total  turnover  in  the 
preceding  business  year.  Fines  with  sufficient  deterrent  effect,  coupled  with  an 
effective leniency program, constitute the most efficient weapon in the Commission's 
armoury  to  fight  cartels.  In  particular,  deterrent  fines  prevent  companies  from 
entering  into cartel  agreements  and entice  cartelists to blow  the whistle on  existing 
cartels in return for immunity or a reduced fine under the leniency notice.  

The Commission's practice with regard to fines has been extensively raised in replies 
to the stakeholder consultation, mostly pointing to legal questions of principle. In this 
context, it is noteworthy that the Community Courts have reviewed a great number 
of  fines  imposed  by  the  Commission  and  did  not  find  the  level  of  fines  to  be 
disproportionate or excessive. The Courts have also confirmed the legality of Article 
15(2)  of  Regulation  17  as  the  legal  basis  for  the  Commission  to  impose  fines  for 
infringements  of  Community  competition  rules  and  have  rejected  objections  of 
illegality raised by parties to proceedings in a constant series of rulings. In the recent 
Degussa case, the Court of First Instance and the Court of Justice confirmed that the 
absence  of  further  precision  as  to  the  amount  or  method  of  calculation  of  fines  in 
Article 15(2) of Regulation 17 (which set forth a ceiling on fines and criteria which 
allow to take into account the degree of illegality, namely the gravity and duration of 
the infringement) is not contrary to the principle of legality of penalties.148 The case-
law which concerns Article 15(2) of Regulation 17 is also pertinent for Article 23(2) 
of  Regulation  1/2003  which  replaced  the  former  provision  without  any  substantial 
changes.  The  Community  Courts  have  also  confirmed  on  various  occasions  the 
legality  of  the  Commission's  1998  guidelines  on  the  method  of  setting  of  fines.149 
Moreover,  according  to  settled  case-law,  the  proper  application  of  the  Community 
competition rules requires that the Commission may at any time adjust the level of 
fines to the needs of the Community competition policy, including an increase in the 
level of fines in individual cases or by adopting fining guidelines.150 The Community 
Courts, while emphasising a wide discretion of the Commission in setting fines, have 

148 

149 

150 

See  Case  T-279/02,  Degussa  v  Commission  (Methionine),  [2006]  ECR  II-897,  para  66-98;  the 
Judgment of the Court of Justice of 22 May 2008, Case C-266/06 P, Degussa v Commission, para 36-63 
(not yet published); see also Case T-43/02, Jungbunzlauer v Commission (Citric Acid), [2006] ECR II-
3435, paras 69-92. 
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 (98/C 9/03), OJ C 009, 14.01.1998, p. 3–5. See, for example, Case T-
23/99 LR AF 1998 v. Commission [2002] ECR II-1705, Case T-9/99 HFB and Others v. Commission 
[2002] ECR II-1487, Case T-15/99 Brugg Rohrsysteme v. Commission [2002] ECR II-1613, Case T-
16/99 Lögstör Rörv. Commission [2002] ECR II-1633, Case T-17/99 KE Kelit v. Commission [2002] 
ECR II-1647, Case T-21/99 Dansk Rørindustri v. Commission [2002] ECR II-1681 and Case T-31/99 
ABB Asea Brown Boveri v. Commission [2002] ECR II-1881 (Pre-insulated pipes cartel), confirmed in 
Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P Dansk Rørindustri et al. 
v Commission, [2005] ECR I-5425. 
See,  for  example,  Joined  Cases  C-189/02  P,  C-202/02  P,  C-205/02  P,  to  208/02  P  and  C-213/02  P 
Dansk  Rørindustri  et  al.  v  Commission,  [2005]  ECR  I-5425,  para  227-232;  see  also  Case  T-279/02, 
Degussa v. Commission (Methionine), [2006] ECR II-897, para 81. 

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held  that  the  Commission  did  not  have  an  unlimited  discretion.  Article  15(2)  of 
Regulation  17  (now  Article  23(2)  of  Regulation  1/2003)  itself  limits  the 
Commission's discretion and, in addition, the Commission is bound to comply with 
the  general  principles  of  law,  in  particular  the  principles  of  equal  treatment  and 
proportionality.151  Moreover,  the  Community  Courts  have  unlimited  jurisdiction  to 
review Commission decisions, whereby it imposes fines (Article 229 EC and Article 
31 of Regulation 1/2003).  

3.5.2.  New developments 

126. 

During  the  reported  period,  the  Commission  has  revised  certain  existing  tools  and 
searched  for  new  instruments  in  order  to  improve  the  enforcement  of  competition 
rules, in particular for a more efficient and swifter fight against cartels. Existing tools 
were  further  developed  taking  into  account  experience  in  the  past  years,  with  the 
view of increasing transparency and providing more guidance to undertakings as well 
as to respond to realities. The aim of achieving procedural economies in order to be 
able  to  use  resources  for  other  cases  also  played  a  vital  role  in  this  development. 
These tools include, in particular, a revised Leniency Notice, revised Guidelines for 
setting fines and a new settlement procedure in cartel cases. They have to be seen in 
the overall framework of instruments under Regulation 1/2003, for they derive their 
legal basis from the Regulation and contribute to the implementation of competition 
rules.  

3.5.3.  The Guidelines on fines 

127. 

On  28  June  2006,  the  Commission  adopted  new  Guidelines152  on  the  method  of 
setting  fines  to  be  imposed  on  companies  that  infringe  Articles  81  and/or  82  EC. 
These  Guidelines  revise  those  adopted  in  1998153,  with  a  view  to  increasing  the 
deterrent  effect  of  fines.  The  ceiling  of  10%  of  the  undertaking's  total  annual 
turnover  remained  unchanged  in  the  reform  from  Regulation  17  to  Regulation 
1/2003. Within this limit, the revised Guidelines provide that fines may be based on 
up  to  30%  of  the  company’s  annual  sales  to  which  the  infringement  relates, 
multiplied by the number of years of participation in the infringement. In addition, a 
part  of  the  fine,  the  so-called  “entry  fee”,  may  be  imposed  irrespective  of  the 
duration of  the  infringement in order to increase  deterrence. An additional  increase 
for  deterrence  (the  so-called  "multiplier")  may  be  applied  to  take  into  account  a 
particularly  large  turnover  of  the  undertaking  beyond  the  sales  related  to  the 
infringement.  

151 

152 

153 

Judgment  of  the  Court  of  First  Instance  of  5  April  2006,  Case  T-279/02,  Degussa  v.  Commission 
(Methionine), [2006] ECR II-897, para 77; the Judgment of the Court of Justice of 22 May 2008, Case 
C-266/06 P, Degussa v Commission, para 36-63 (not yet reported), para. 51. 
Guidelines  on  the  method  of  setting  fines  imposed  pursuant  to  Article  23(2)(a)  of  Regulation 
No 1/2003, OJ C 210, 1.09.2006, p. 2-5, available at 
http://ec.europa.eu/competition/antitrust/legislation/fines.html. 
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 (98/C 9/03), OJ C 009, 14.01.1998, p. 3–5. 

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3.5.4.  The 2006 Leniency Notice 

128. 

129. 

130. 

131. 

On 6 December 2006, the Commission adopted a revised Notice on immunity from 
fines and reduction of fines in cartel cases154 (the "2006 Leniency Notice"). It is the 
third  Commission  leniency  notice155  and  sets  out  the  framework  for  rewarding 
cooperation in the Commission investigation by undertakings which are or have been 
party  to  secret  cartels  affecting  the  Community.  It  is  a  revised  version  of  the 
preceding 2002 Leniency Notice, a successful instrument, which greatly contributed 
to  detecting  and  putting  an  end  to  numerous  cartels.  It  takes  into  account  practice 
implementing  the  2002  Leniency  Notice  and  focuses  on  providing  more  guidance 
and increasing transparency.  

In  particular,  the  2006  Leniency  Notice  clarifies  what  information  and  evidence  an 
applicant needs to provide to the Commission to benefit from immunity from fines. It 
also clarifies the conditions for immunity and reduction of fines. Moreover, the 2006 
Leniency  Notice  introduced  a  so-called  marker  system  for  immunity  applicants.  A 
marker protects an immunity applicant's place in the queue for a specified period in 
order to allow for the gathering of the necessary information and evidence required 
to  meet  the  threshold  for  immunity  from  fines.  The  marker  system  is  discretionary 
(the Commission services may grant a marker, where justified).  

Since the 2006 Leniency Notice entered into force, the Commission has received, on 
average, two applications for immunity per month. 

leniency  policy  enhances 

investigative  effectiveness  by 

The 
the  voluntary 
collaboration  of  undertakings  involved  in  cartels.  As  a  reward,  collaborating 
undertakings  are  granted  immunity  from  fines  (the  first  one  to  submit  information 
and  evidence  about  an  alleged  cartel,  provided  all  requirements  are  met)  or  a 
reduction  of  a  fine  (for  other  undertakings  that  provide  the  Commission  with 
evidence  which  has  significant  added  value  and  meet  other  requirements).  The 
Community  Courts  have  acknowledged  that  cooperation  with  the  Commission 
investigation may be rewarded.156 The leniency policy must be understood within the 
framework of Commission's discretionary powers to set fines, in accordance with the 
limits  set  forth  by  Article  23  of  Regulation  1/2003.  The  Community  Courts  have 
stated that the Commission's discretion to adjust the level of fines also applies to the 
leniency  policy.157  This  policy  is  inter  alia  driven  by  the  objectives  of  general 
prevention  of  infringements  and  of  effective  enforcement  of  the  EC  competition 
rules.  Moreover,  the  Community  Courts  have  recognised  the  Commission's 
discretion to set conditions for leniency and have stated that its leniency programmes 
may  create  legitimate  expectations  for  companies.158  However,  the  legitimate 
expectations that undertakings are able to derive from the Leniency Notice is limited 

154 
155 

156 

157 

158 

OJ C 298, 08.12.2006, p. 17-22. 
The first notice was adopted in 1996 (Commission Notice on the non-imposition or reduction of fines in 
cartel cases, OJ C 207, 18.07.1996, p. 4-6), (the "1996 Leniency Notice").. On 19 February 2002, the 
1996 Notice was replaced by the 2002 Leniency Notice (OJ C 45, 19.02.2002, p. 3-5). 
See,  for  example,  Case  T-31/99  ABB  Asea  Brown  Boveri  v.  Commission  [2002]  ECR  II-1881,  para 
238. 
See Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P, Dansk Rørindustri 
A/S et al. v Commission, [2005] ECR I-5425, para 456 and paragraphs referred therein.  
See for example Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, to 208/02 P and C-213/02 P, Dansk 
Rørindustri A/S et al. v Commission, [2005] ECR I-5425, para. 394-396, 187-188 and 456. 

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to  an  assurance  that  their  fines  will  be reduced  by  a  certain  percentage.  The  notice 
does not extend to the method of calculating fines or, a fortiori, to a specific level of 
the  fine  capable  of  being  calculated  at  the  time  when  the  undertaking  decides  to 
implement  his  intention  to  cooperate  with  the  Commission.159  Therefore,  a 
Commission notice constitutes a proper legal basis for the leniency policy.  

3.5.5. 

Settlement procedure  

132. 

133. 

On  30  June  2008,  the  Commission  introduced  a  settlement  procedure  in  cartel 
cases.160  This  new  instrument  allows  the  Commission  to  adopt  a  final  decision  in 
cartel  cases  through  a  simplified  and  quicker  procedure,  freeing  up  resources  to 
handle  more  cases.  The  Commission  retains  a  broad  margin  of  discretion  to 
determine which cases may be suitable for settlement. Parties have neither the duty 
nor the right to settle.  

In the settlement procedure, parties may choose to acknowledge their involvement in 
a cartel and their liability for it, in exchange for a reduction  of  their  fines  by 10%. 
The Commission does not negotiate or bargain the use of evidence or the appropriate 
sanctions. However, the Commission effectively hears the parties and gives them an 
opportunity  to  argue  their  case.  This  form  of  cooperation  is  different  from  the 
voluntary  production  of  information  and  evidence  under  the  Leniency  Notice  (see 
above).  It  is  not  aimed  at  collecting  evidence,  but  is  a  simplified  procedure  where 
parties acknowledge their involvement in a cartel and liability for it, having seen the 
evidence  on  which  the  Commission  bases  its  envisaged  objections.  Where  both  a 
settlement  reduction  and  a  leniency  reduction  are  applicable,  they  are  applied 
cumulatively. In contrast to the commitment procedure under Article 9 of Regulation 
1/2003,  the  administrative  proceedings  always  end  with  a  decision  finding  an 
infringement  and  imposing  fines,  irrespective  of  whether  the  standard  procedure  or 
the settlement procedure applies.  

3.5.6.  Recovery of fines from members of associations of undertakings 

134. 

Article  23(4)  of  Regulation  1/2003  introduced  a  novel  provision  concerning  the 
recovery  of  fines  imposed  on  an  association  of  undertakings  taking  account  of  the 
turnover of its members. It provides that in case the association is not solvent, it is 
obliged  to  call  for  contributions  from  its  members  to  cover  the  amount  of  the  fine. 
Where  such  contributions  have  not  been  made  within  a  time-limit  fixed  by  the 
Commission,  the  Commission  may  require  payment  of  the  fine  directly  by 
undertakings  involved  in  the  association  according  to  the  order  set  forth  by  that 
Article.  By  virtue  of  these  provisions,  members  of  an  association  are  not  fined 
themselves  but  may  bear  financial  liability  in  order  to  ensure  effective  recovery  of 
the  fine  when  an  infringement  is  committed  by  the  association.  However,  such 
recovery shall not apply to undertakings which show that they have not implemented 

159 

160 

See  the  Judgment  of  the  Court  of  Justice  in  Joined  Cases  C-189/02  P,  C-202/02  P,  C-205/02  P,  to 
208/02 P and C-213/02 P, Dansk Rørindustri A/S et al. v Commission, [2005] ECR I-5425, para. 188. 
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, OJ L 171, 1.7.2008, p. 3–5; Commission 
Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 
7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases, OJ C 167, 2.7.2008, p. 1–6. See 
http://ec.europa.eu/comm/competition/cartels/legislation/settlements.html. 

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42 

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the infringing decision of the association and either were not aware of its existence or 
have  actively  distanced  themselves  from  it  before  the  Commission  started 
investigating the case. The burden of proof of these two cumulative conditions rests 
on undertakings. The Commission has not applied Article 23(4) during the reporting 
period. 

3.5.7.  Fines for procedural infringements – seals case 

135. 

Regulation  1/2003  introduced  more  effective  sanctions  for  non-compliance  with 
obligations  incumbent  on  undertakings  in  the  context  of  investigations  (Article 
23(1)).161 In January 2008, the Commission made use of this provision for the first 
time  and  imposed  a  fine  of  €  38  million  on  the  German  energy  company,  E.ON 
Energie AG for the breach of a seal.162 The Commission had found a seal broken on 
a door of E.ON’s premises during an inspection in May 2006. The breach of the seal 
occurred,  at  the  very  least,  as  a  result  of  negligence,  since  it  was  E.ON’s 
responsibility to organise its own business sphere in such a way as to ensure that the 
instruction  not  to  break  the  seal  was  complied  with.163  When  setting  the  fine,  the 
Commission  considered  that  breaches  of  seals  must,  as  a  matter  of  principle,  be 
regarded as a serious infringement. Accordingly, the level of the fine had to ensure 
that  it  had  a  sufficiently deterrent effect for E.ON,  which  is a  large  subsidiary  of a 
major European energy company.164 

3.5.8.  Periodic penalty payments to enforce prohibition decisions  

136. 

137. 

161 
162 

163 

164 

165 

166 

Another important improvement introduced by Regulation 1/2003 concerns periodic 
penalty  payments  that  can  be  imposed  for  failure  to  comply  with  a  Commission 
decision.  In  order  to  better  ensure  compliance  with  enforcement  decisions,  Article 
24(1) increased substantially the ceilings for these payments from those provided for 
in  Regulation  17.  The  limit  for  periodic  penalties  is  now  5  %  of  the  average  daily 
turnover in the preceding business year per day.  One  main  objective  of  the  revised 
framework was to ensure effective compliance with Commission decisions. 

The Commission has had to use this  provision notably in the case of Microsoft for 
failure to comply with its obligation to make interoperability information available to 
third  parties  on  reasonable  terms.  In  this  case,  the  Commission  had  to  adopt  two 
decisions  against  Microsoft  pursuant  to  Article  24(2)  fixing  the  amount  of  the 
penalty  payment  for  non-compliance  with  its  obligations.  These  decisions  were 
preceded  by  a  separate  decision165  under  Article  24(1)  imposing  daily  periodic 
penalty  payments.  The  first  decision  fixed  an  amount  of  €280.5  million 166  and  the 

of 

the 

version 

decision 

non-confidential 

The fines available under Regulation 17 had become highly ineffective.  
A 
is 
http://ec.europa.eu/competition/antitrust/cases/index/by_nr_78.html#i39_326. 
In this respect, the Commission also noted that E.ON had not informed all personnel authorised to enter 
the E.ON building, e.g. its cleaner, about the existence of the seal and the need to respect it. 
For  more  details  see  Oliver  Koch  and  Dominik  Schnichels,  The  E.ON  seals  case  -  €  38  million  for 
tampering with Commission seals, in Competition Policy Newsletter 2/2008. 
See  Commission  Decision  of  10.11.2005  imposing  a  periodic  penalty  payment  on  Microsoft 
Corporation (Case COMP/C-3/37.792 Microsoft). 
Commission  Decision  of  12  July  2006  fixing  the  definitive  amount  of  the  periodic  penalty  payment 
imposed  on  Microsoft  Corporation  by  Decision  C(2005)4420  final  and  amending  that  Decision  as 
regards the amount of the periodic penalty payment (Case COMP/C-3/37.792 Microsoft). 

available 

under 

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138. 

second decision imposed a €899 million penalty on Microsoft. 167 The case revealed 
that the multi-stage procedure foreseen in Article 24 can prove relatively lengthy and 
cumbersome,  requiring  successive  statements  of  objections,  oral  hearings  and 
decisions168, and may thus not be optimally designed in view of the objective pursued 
by  the  Regulation.  The  potential  room  for  improvement  in  this  area  should  be 
examined.  

In  MasterCard169,  the  Commission  used  Article  24  in  a  simpler  procedure, 
announcing  directly  in  the  Article  7  decision  a  penalty  payment  of  3.5  %  of 
MasterCard's  daily  turnover  for  each  day  of  non-compliance  after  the  period  of  six 
months  given  to  comply  with  the  decision.  Accordingly,  there  was  no  need  for  a 
separate  decision  under  Article  24(1),  but  the  failure  to  comply  with  the 
Commission's decision before the fixed deadline would lead to the imposition of the 
definitive amount of the penalty payment in an Article 24(2) decision. In June 2008, 
MasterCard  temporarily  repealed  its  cross-border  MIF  for  consumer  cards,  while  it 
continued  to  engage  in  discussions  with  the  Commission.170  On  1  April  2009,  the 
Commission  took  note  of  three  undertakings  given  by  MasterCard  regarding  the 
calculation  of  its  cross-border  MIF  for  consumer  cards,  the  repeal  of  scheme  fee 
increases announced in 2008 and the introduction of certain transparency enhancing 
measures.171 

4. 

APPLICATION  OF  EC  COMPETITION  LAW  IN  ACCORDANCE  WITH  ARTICLE  3  OF 
REGULATION 1/2003 

4.1. 

Introduction 

139. 

Article 3 of Regulation 1/2003 regulated for the first time the relationship  between 
national  competition  law  and  the  EC  competition  rules.  It  represents  a  major  step 
forward  in  ensuring  a  more  level  playing  field  for  undertakings  that  are  doing 
business  in  the  internal  market.  Article  3  consists  of  two  main  elements:  the 

167 

168 

169 
170 
171 

to 

relating 

the  documents 

the  Microsoft  procedure  are 

Commission  Decision  of  27  November  2008  fixing  the  definitive  amount  of  the  periodic  penalty 
payment  imposed  on  Microsoft  Corporation  by  Decision  C(2005)4420  (Case  COMP/C-3/37.792 
Microsoft.  This  decision  concerns  the  period  of  non-compliance  not  covered  by  the  penalty  payment 
decision  of  12  July  2006  (see  Commission  Press  Release  IP/06/979)  covering  the  period  between  21 
June 2006 and 21 October 2007. 
found  at: 
A  complete  set  of 
http://ec.europa.eu/competition/antitrust/cases/microsoft/index.html.  For  the  implementation,  see  in 
particular:  http://ec.europa.eu/competition/antitrust/cases/microsoft/implementation.html, 
including 
IP/05/673  of  06/06/2005  (market  test  for  new  proposals  from  Microsoft  on  interoperability); 
Commission Decision of 10.11.2005 imposing a periodic penalty payment pursuant to Article 24(1) of 
Regulation  No  1⁄2003  on  Microsoft  Corporation  (Case  COMP/C-3/37.792  Microsoft);  Commission 
Press Release IP/05/499 of 22/12/2005 (Statement of Objections for non-compliance with March 2004 
Decision); Commission Decision of 12 July 2006 fixing the definitive amount of the periodic penalty 
payment  imposed  on  Microsoft  Corporation  by  Decision  C(2005)4420  final  and  amending  that 
Decision as regards the amount of the periodic penalty payment (Case COMP/C-3/37.792 Microsoft); 
Commission  Press  Release  IP/07/269  Date:  01/03/2007  (SO  for  failure  to  comply  with  certain  of  its 
obligations under the March 2004 Commission decision); Commission Decision of 27 November 2008 
(op.cit). 
See above, part 3.3.1. 
See Commission Press Release IP/08/397 of 12/06/2008. 
See Commission Press Release IP/09/525 of 01/04/2009. 

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44 

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140. 

141. 

142. 

obligation  to  apply  contained  in  paragraph  1  and  the  convergence  rule  set  out  in 
paragraph 2. Both elements have central functions in the Regulation. 

Article 3(1) obliges national competition authorities and courts to apply Articles 81 
EC and 82 EC to agreements or conduct capable of affecting trade between Member 
States. The obligation to apply EC competition law is intended to ensure that the EC 
competition rules are applied to all cases within their scope. Compliance also entails 
that the cooperation mechanisms involving the Commission and national competition 
authorities and courts, as set forth in Articles 11 to 13 and 15, are fully applicable in 
such cases and are not avoided by applying only national law.  

The convergence rule contained in paragraph 2, seeks to create a level playing field 
by providing for a single standard of assessment which allows undertakings to design 
EU-wide  business  strategies  without  having  to  check  them  against  all  the  relevant 
national  sets  of  competition  rules.  In  its  current  wording,  the  obligation  of 
convergence covers only the application of national competition law to agreements, 
concerted  practices  and  decisions  by  associations  of  undertakings.  Member  States 
remain free to enact and maintain stricter national competition laws than Article 82 
EC to prohibit or sanction unilateral conduct.  

Overall, Article 3 can be characterised as one of the major successes of Regulation 
1/2003.  Stakeholders  from  the  legal  and  business  communities  have  largely 
confirmed that Regulation 1/2003 has positively contributed to the creation of a level 
playing  field,  along  with  the  substantive  convergence  of  national  laws  with  the  EC 
competition rules. On the other hand, the divergence of standards regarding unilateral 
conduct was commented on critically by the business and legal communities.  

4.2. 

Obligation to apply Articles 81 and 82 EC 

4.2.1.  Effect on trade criterion and case record 

143.  While  Articles  81(1)  and  82  EC  could  be  applied  at  Member  State  level  under 
Regulation  17,  there  was  no  obligation  to  do  so  and  many  national  competition 
authorities  principally  applied  national  competition  law  to  the  cases  that  they  were 
dealing with. The obligation to apply the EC competition rules in Article 3(1) has led 
to  a  very  significant  increase  in  the  application  of  Articles  81  and  82  EC,  thereby 
making the cooperation mechanisms of the Regulation fully applicable.  

144. 

The jurisdictional criterion that delineates the scope of application of Articles 81 and 
82  EC,  and  thus  the  scope  of  the  obligation  to  apply  in  Article  3,  is  the  notion  of 
effect on trade between Member States. This concept has been clarified in extensive 
case  law  of  the  Community  Courts.  In  order  to  provide  additional  guidance,  the 
Commission  issued  Guidelines  concerning  the  concept  of  effect  on  trade  which  set 
out  a  methodology  for  the  application  of  the  effect  on  trade  concept  and  includes 
guidance on frequently occurring situations.172  

145. 

The  Guidelines  remain  relevant  to  this  date  as  no  significant  change  could  be 
observed in the case law of the Community Courts. In particular, during the reporting 

172 

See Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, OJ C 101 of 
27.04.2004, p.81, with extensive references to case law. 

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45 

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period, the Court of First Instance confirmed, in a cartel case covering the territory of 
Austria, the established case law according to which horizontal cartels covering the 
whole of a Member State are normally capable of affecting trade between Member 
States  even  where  the  members  of  the  cartel  had  not  taken  specific  measures  to 
exclude foreign competitors from the market. 173  

146. 

147. 

The choice of the correct legal basis is the responsibility of the national competition 
authorities and courts in the individual case, in light of the facts at hand. The rule in 
Article 3(1) is directly applicable and imposes unconditional and precise obligations 
on  the  enforcers  concerned.  Compliance  with  Article  3(1)  ensures  that  cases  come 
under the mechanisms of Regulation 1/2003. Undertakings can rely on Article 3(1) in 
proceedings before both national competition authorities and courts, including at the 
judicial  review  stage,  to  invoke  the  application  of  EC  competition  law  and  of 
Regulation 1/2003.  

Based on the available information, it appears that there is generally a high degree of 
awareness on the part of national competition authorities and courts of the obligation 
to apply Articles 81 and 82 EC. After 1 May 2004, national competition authorities 
massively migrated to the application of the EC competition rules where trade may 
be affected. By the end of 2004, they had already informed the Commission of 200 
cases which they were handling on the basis of the EC competition rules.  

148.  Moreover, for a large number of national competition authorities, cases in which they 
applied  the  EC  competition  rules  amounted  to  a  significant  share  of  their  overall 
antitrust  caseload.  For  instance,  roughly  one  half  of  the  enforcement  decisions 
adopted by the Italian competition authority during the reporting period were based 
on Community law. The French competition authority applied EC competition law in 
nearly 40% and the Belgian, Danish and Dutch authorities in around 30% of all cases 
dealt with in the antitrust field. In Portugal and Greece this ratio was approximately 
25 %, whereas Hungary and Slovenia were close to 20%.  

149. 

Insofar  as  certain  national  competition  authorities  dealt  with  lower  ratios  of  cases 
based on EC competition law, this can be due to a range of factors. Notably, the ratio 
will be crucially influenced by the priority setting applied by the respective national 
competition  authorities.  For  instance,  an  authority  that  investigates  numerous 
agreements  or  alleged  abuses  of  local  scope  will  have  a  lower  percentage  of  cases 
based on EC competition law.174 For the Member States that joined the EU in 2004 
and 2007, and in particular Romania and Bulgaria, the rate of application of Articles 
81 and 82 EC is also influenced by the period of applicability of those rules in their 
territories. Moreover, for some authorities, the overall number of formal enforcement 
decisions  is  too  small  to  make  meaningful  conclusions  about  the  ratio  of  EC  law 
cases decided. 

150. 

Feedback  from  stakeholders  largely  confirms  that  national  competition  authorities 
and  courts  in  general  appear  to  comply  with  their  obligation  to  apply  Articles  81 
and/or 82 EC. Stakeholders raised few examples of alleged deviations. Moreover, in 
some Member States national courts have in certain cases construed the criterion of 

173 

174 

Joined  Cases  T-259/02  to  T-264/02  and  T-271/02,  Raiffeisen  Zentralbank  Österreich  AG  and  others, 
ECR II-5169; the judgment is currently under appeal, Case C-125/07 P, OJ C 117 of 26.05.2007, p.7, 
Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, op cit., para 91. 

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effect on trade more narrowly than the national competition authority. In Germany, 
for  instance,  the  Higher  Regional  Court  of  Düsseldorf  rejected  the  national 
competition authority's analysis in two decisions for the lack of sufficient evidence of 
foreclosure and any appreciable effect on trade.175 In Italy, where national rules are 
not  applied  in  parallel  with  Articles  81  and  82  EC,  the  Italian  Supreme 
Administrative Court  overturned a decision of the  competition  authority criticizing, 
inter alia, the lack of rigorous and concrete examination of the condition of effect on 
trade.176
 The French Court of Cassation, in turn, concluded in the Bausch and Lomb v 
Medint  case177  that  the  Court  of  Appeal's  decision  was  not  well  founded  as  it  had 
failed  to  establish  whether  the  agreement  concerning  exclusive  dealing  between 
Chauvin and BL was liable to affect trade appreciably between Member States. 

151. 

In sum, the obligation to apply the EC competition rules to cases capable of affecting 
trade has been broadly followed, making a single legal standard a reality on a very 
large  scale.  Given  the  central  importance  of  the  rule  in  Article  3(1)  for  ensuring  a 
level playing field, the question merits the continued close attention of all enforcers. 
Parties are well placed to enforce the respect of the rule in Article 3(1) in any given 
individual case, including before the competent review courts which have the power 
and/or obligation to refer to the Court of Justice under Article 234 EC in appropriate 
cases. A persistent disregard for the rule in Article 3(1) and/or misconception about 
the effect on trade criterion in a Member State could also attract the attention of the 
Commission in view of its powers pursuant to Article 226 EC.178  

4.2.2.  Experience with parallel application 

152.  Whilst Article 3(1) of Regulation 1/2003 requires the application of Articles 81 or 82 
EC to cases capable of affecting trade between Member States, it does not impose an 
obligation to apply national law in parallel to such cases. The parallel application of 
national  rules  is  thus  optional  and  depends  on  the  respective  national  system.179 
Certain  Member  States,  such  as  Italy  and  Luxembourg,  have  indeed  opted  for  the 
exclusive application of EC competition law to cases falling within its scope. Most 
Member States have, however, chosen the possibility to rely on a double legal base, 
and parallel application of the EC and national rules has become a well-established 
practice.  

153. 

The primary interest of parallel application is that it protects enforcement decisions 
by  national  competition  authorities  against  legal  challenges  based  on  the  question 
whether there is effect on trade. In other words, if the EC law base is not upheld, the 
case would still stand for the infringement of national competition law.180  

175 
176 
177 
178 

179 

180 

Judgments in cases VI-Kart, 14/06(V) and VI-2 Kart 12/04 (V). 
Italian Supreme Administrative Court, 2 October 2007, judgment No 5085/07. 
Cours de Cassation, 12 December 2006, Case Bausch and Lomb v Medint. 
See  Case  C-129/2000,  Commission  v  Italy,  [2003],  ECR  I-14637,  para.  32,  on  the  conditions  under 
which jurisprudence by national courts may amount to a state infringement.  
SEC(2002)219 of 22.2.2002 - Commission Staff Working Paper, Article 3 – The relationship between 
EC law and national law, parallel application, convergence and other issues; paras 7 to 9. 
See e.g. the Portuguese salt cartel case (Case No. 965/06.9TYLSB, Decision of the Lisbon Commercial 
Court, 2 May 2007) in which a Portuguese court considered that the trade effect test was not met and 
annulled  the  part  of  the  decision  applying  Article  81  EC  but  upheld  the  infringement  of  national 
competition law.  

EN 

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154. 

155. 

The parallel application of Articles 81 and 82 EC and their national counterparts has 
not  been  reported  to  have  caused  major  difficulties.  In  a  small  number  of  cases, 
national enforcers have dealt with infringements that were punishable under national 
competition law, for which however no legal basis for penalties existed in relation to 
Articles 81 and 82 EC at the relevant point in time. In these cases, sanctions could 
only  be  imposed  on  the  basis  of  national  competition  law  in  accordance  with  the 
principle nullum crimen sine lege.  

Certain  national  review  courts  have  explicitly  confirmed  the  principle  of  parallel 
application.181  In  2007,  the  Czech  review  court  overruled  the  national  competition 
authority’s  decisions  in  two  cases182  on  the  ground  that  the  application  of  EC  and 
national  competition  law  regarding  the  same  infringement  in  the  same  decision 
would  violate  the  principle  of  ne  bis  in  idem.  The  Czech  Supreme  Administrative 
Court183  later  overturned  the  lower  court's  judgment  and  held  that  that  court  had 
misinterpreted  the  principle.  The  Commission  considers  that  the  finding  of  an 
infringement  of  both  EC  and  national  competition  law  and  the  sanctioning  of  such 
infringement in one single decision does not fall within the scope of ne bis in idem, 
as interpreted by the Community Courts184 and the European Court of Human Rights 
(ECtHR).185 This case law sets out the difference between, on the one hand, a single 
decision  finding  that  one  conduct  breached  several  legal  provisions  ('concurrence 
ideale') as  opposed to the scenario of a second trial or punishment imposed for the 
same behaviour that could come under the principle of ne bis in idem.  

4.3. 

The convergence rule 

156. 

The  parallel  application  of  national  competition  law  to  agreements,  concerted 
practices and decisions by associations of undertakings is subject to an obligation of 
convergence  with  Article  81  EC  under  Article 3(2)  of  Regulation  1/2003.  Where 
such  conduct  is  capable  of  affecting  trade  between  Member  States  but  does  not 
restrict  competition  within  the  meaning  of  Article  81(1)  EC  or  falls  within  the 
exception rule of Article 81(3) EC, it cannot be prohibited under national law. The 
rule  in  Article  3(2)  is  to  be  seen  in  the  context  of  the  principle  of  primacy  of 
Community  law.  It  flows  from  that  principle  that  national  competition  law  cannot 

181 

182 

183 

184 

185 

See e.g. Portuguese cases concerning professional associations for Veterinarians (Case No 8638/06-9, 
Decision  of  the  Lisbon  Appeals  Court,  5  July  2007),  Dentists  (Case  No  1372/06-9,  Decision  of  the 
Lisbon Appeals Court, 19 June 2008) and Medical Doctors (Case No 5352/07-9, Decision of the Lisbon 
Appeals Court, 22 November 2007).  
Case No. 62 Ca 8/2007-171, RWE Transgas, Decision of the Regional Court Brno, 22 October 2007; 
Case No. 62 Ca 4/2007-115, Tupperware, Decision of the Regional Court Brno, 1 November 2007. 
Case 5 Afs 8/2008 – 328, RWE Transgas, Decision of the Supreme Administrative Court, 31 October 
2008; Case 7 Afs 7/2008-200, Tupperware, Decision of the Supreme Administrative Court, 3 December 
2008. 
See,  e.g.,  Case  7/72  Boehringer  v  Commission,  [1972]  ECR  1281,  para.  3;  Case  T-224/00  Archer 
Daniel Midland and Archer Daniel Midlands Ingredients v. Commission [2003] ECR II-2597, para. 86. 
See also Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and 
C-254/99 P, Limburgse Vinyl Maatschappij (LVM) and Others v Commission [2002] ECR I-8375, para 
59. 
In essence, the principle of ne bis in idem - developed in the context of criminal law - constitutes the 
right not to be tried or punished again for an offence for which he has already been finally acquitted or 
convicted;  see  Article  4  of  Protocol  No  7  ECHR  and  Article  50  European  Charter  of  Fundamental 
Rights as well as e.g. ECtHR, Sergey Zolotukhin v. Russia, Judgment of 10 February 2009 ECtHR. 

EN 

48 

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157. 

158. 

159. 

authorise  an  agreement  or  practice,  which  is  prohibited  by  Articles  81  and/or  82 
EC.186  

The  objective  of  Article  3(2)  is  to  create  a  level  playing  field  within  the  internal 
market  by  prescribing  a  common  competition  law  standard  within  the  scope  of 
application of the EC competition rules. Article 3(2) is a directly applicable rule that 
can  be  relied  on  before  national  courts, which implies that any measure adopted in 
breach of that rule would be inapplicable and unenforceable. 

The  convergence  rule  applies  to  agreements,  concerted  practices  and  decisions  by 
associations  of  undertakings,  whereas  Member  States  are  not  precluded  from 
enacting  and  applying  stricter  national  laws  which  prohibit  or  sanction  unilateral 
conduct.  

No  major  difficulties  with  the  application  of  the  convergence  rule  have  been 
reported.  In  view  of  some  stakeholder  submissions,  it  is  worthwhile  recalling  that 
Article 3(2) does not apply to agreements or practices outside the jurisdictional scope 
of the EC competition rules. Accordingly, stricter national competition laws are not 
as  such  objectionable,  as  long  as  they  are  not  applied  to  agreements,  concerted 
practices  and  decisions  of  associations  of  undertakings  that  fall  within  the 
jurisdictional scope of the EC competition rules, in breach of Article 3(2).  

4.4. 

Exception from the convergence rule for unilateral conduct 

160. 

According to the last sentence of Article 3(2), Member States are not precluded from 
adopting  and  applying  stricter  national  laws  which  prohibit  or  sanction  unilateral 
conduct. Unilateral behaviour capable of affecting trade between Member States can 
thus be prohibited by national law, even if it occurs below the level of dominance or 
is  not  considered  abusive  within  the  meaning  of  Article  82.  Article  3(2),  last 
sentence,  thus  contains  an  exception  from  the  level  playing  field  and  implies  that 
undertakings doing cross-border business in the internal market may be subjected to 
a variety of standards as to their unilateral behaviour.  

161. 

Provisions of the type referred to in Article 3(2) exist in a number of Member States. 
While  such  rules  take  different  shapes,  it  is  possible  to  identify  certain  categories 
which are described hereafter.  

4.4.1.  National rules concerning economic dependence and similar situations 

162. 

As  an  example  of  stricter  national  rules concerning  unilateral  conduct,  Recital  8  of 
Regulation 1/2003 explicitly mentions national provisions which prohibit or impose 
sanctions  on  abusive  behaviour  toward  economically  dependent  undertakings. 
Besides  rules  concerning  specifically  the  abuse  of  economic  dependence,  some 
national  provisions  regulate  behaviour  labelled  as  'abuse  of  superior  bargaining 
power'  or  'abuse  of  significant  influence'.  The  aim  of  these  kinds  of  rules  is 
essentially  to  regulate  disparities  of  bargaining  power  in  distribution  relationships, 
including where neither the supplier nor the distributor holds a dominant position on 
a specific market.  

186 

See Recital 8 of Regulation 1/2003. See also Case 14/68 Walt Wilhelm [1969] ECR, p. 1. 

EN 

49 

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163. 

164. 

165. 

187 

188 

189 

190 

In  2004,  the  Member  States  with  specific  provisions  concerning  the  abuse  of 
economic  dependence  or  superior  bargaining  power  included  notably  France, 
Germany,  Italy,  Portugal  and  Spain,  as  well  as  Ireland  and  Slovakia  which  had 
measures with a more limited scope covering groceries and retail trade, respectively. 
In Spain, these provisions were removed from competition law in 2007 but the abuse 
of  economic  dependence  remains  an  infringement  of  the  "Ley  de  Competencia 
Desleal",  which  concerns  essentially  unfair  competition  and  trading  practices,  and 
the  new  competition  law  allows  the  competition  authority  to  pursue  such  conduct 
where the distortion of free competition affects the public interest. Hungary, in turn, 
introduced  provisions  to  prohibit  abuses  of  significant  market  power  in  2006  and 
Latvia did the same in 2008¸ both vesting the enforcement of these provisions to the 
competition  authority.  In  Greece,  the  prohibition  of  the  abuse  of  a  relationship  of 
economic  dependence  was  reintroduced  in  2005,  after  having  been  abolished  in 
2000.187  

The French, German, Greek and Portuguese laws concerning the abuse of "economic 
dependence" apply to various types of exclusionary conduct on both the demand and 
supply  sides  and  normally  require  that  there  is  no  reasonable  alternative  source  of 
supply or demand of the product or service in question.  

For  instance,  in  French  law,  the  abuse  of  economic  dependence  is,  along  with  the 
abuse of dominant position, one of the two forms of unilateral conduct prohibited by 
Article L.420-2 of the French Code de commerce. It prohibits, where the functioning 
or  the  structure  of  competition  may  be  affected,  the  abusive  exploitation  of  the 
condition of economic dependence in relation to a customer company or a supplier 
by non-dominant firms that have a powerful position with regard to their commercial 
partners.  Such  abuses  may  consist,  inter  alia,  of  the  refusal  to  deal,  tied  sales  or 
discriminatory practices. Due to the strict conditions of application188, this provision 
has been rarely enforced, and since 2004 no sanction has been imposed on this legal 
basis.  In  2007,  in  three  out  of  four  decisions  applying  Article  L.420-2,  the 
Competition  Council  concluded  that  there  was  either  no  dependence  or  insufficient 
evidence  thereof.189  In  practice,  the  parties  concerned  seem  to  prefer  relying  on 
overlapping and more detailed provisions on pratiques commerciales déloyales.190  

Law  3373/2005  amending  Law  703/1977.  Since  the  entry  into  force  of  Law  3373/2005,  the  Greek 
competition authority has not issued any decisions applying this prohibition. 
The conditions include inter alia: (i) the notoriety of the trading partner, (ii) significance of its market 
share, and (iii) importance of the part of turnover achieved with this trading partner in the total turnover.  
Décision  n°07-D-14  relative  au  secteur  du  tourisme,  décision  n°07-D-18  relative  au  secteur  agricole, 
décision n°07-D-25 relative à la distribution de motocycles et décision n°07-D-30. http://www.conseil-
concurrence.fr/pdf/avis/06d10.pdf; 
http://www.conseil-concurrence.fr/pdf/avis/06d16.pdf; 
http://www.conseil-concurrence.fr/pdf/avis/06d17pdf. 
Often suppliers of large supermarket chains opt for civil proceedings and invoke the detailed rules of 
Article L.442-6 of Code de commerce concerning unfair trade practices instead of Article L-420-2. In 
contrast  to  the  abuse  of  economic  dependence,  which  is  considered  an  anticompetitive  practice  in 
French Law (i.e. with reference to an abuse on a given relevant market), unfair trade practices relate to 
restrictive trade practices in a bilateral contractual or tort perspective and the rules relating thereto are 
enforced  by  civil  courts,  not  by  the  Competition  Council.  As  amended  by  Loi  n°2008-3  du  3  janvier 
2008 
art. 
see 
http://www.legifrance.gouv.fr/./affichCodeArticle.do?idArticle=LEGIARTI000018047923&cidTexte=
LEGITEXT000005634379&dateTexte=20080723&fastPos=1&fastReqId=2063796063&oldAction=rec
hCodeArticle. Prosecution of a practice under Article 442-6 does not necessarily rule out a prosecution 
for abuse of dominant position or economic dependence. 

8; 

- 

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166. 

167. 

In German law, Sections 20(2)  and 20(4)  of  the  German  Competition  Act  set forth 
specific  provisions  protecting  small  and  medium-sized  enterprises  (SMEs)  from 
"unfair  hindrance"  and  discrimination,  without  objective 
justification,  by 
undertakings  with  "superior  market  power".  Section  20(2)  relates  to  vertical 
dependence,  whereas  Section  20(4)  is  concerned  with  horizontal  dependence  and 
resale  below  cost  (see  below).191  SMEs  can  be  qualified  as  dependent  if  they,  as 
suppliers or purchasers of certain kinds of goods or services, depend on undertakings 
having  superior  market  power  to  such  an  extent  that  sufficient  and  reasonable 
possibilities of resorting to other undertakings do not exist.192 The primary objective 
of these provisions is, hence, to ensure diversity of suppliers and to prevent the abuse 
of  buyer  power  to  gain  additional  discounts  from  suppliers.  In  practice,  Section  20 
has an important function for private enforcement, as private plaintiffs often invoke 
Section  20,  instead  of  Article  82  EC  and/or  its  counterpart  in  Section  19  of  the 
German Competition Act.  

The  Latvian  and  Hungarian  laws,  in  turn,  which  prohibit  the  abuse  of  "significant 
influence"  or  "significant  market  power",  focus  on  the  buyer  power  side  by 
protecting local suppliers and distributors from being prejudiced by their relative lack 
of  bargaining  power  as  compared  to  the  large  retailers  and  supermarket  chains. 
Under Hungarian law, buyer power is assessed on the basis of the retailer's turnover, 
regardless of its strength on the downstream market or on the size or countervailing 
seller  power  of  large  suppliers.  In  Latvia,  further  to  a  turnover  threshold,  a  25% 
market  share  threshold  is  applied  to  determine  the  condition  of  "significant 
influence". Certain other laws are yet more limited in scope, including for instance 
the Austrian statute for protecting local suppliers in rural areas,193 and the Irish law 
concerning discriminatory and coercive conduct by grocery goods undertakings.194  

168. 

In  most  jurisdictions,  including  Germany,  France,  Greece,  Ireland,  Latvia  and 
Portugal, the provisions in question are part of competition statutes and enforced by 
competition authorities but they may also emerge from a different legal context. In 
Italy, for instance, unlawful exploitation of a situation of inequality of market power 
can  be  addressed  through  a  private  civil  action  for  injunctive  relief  and 

191 

192 

193 

194 

Nearly  all  decisions  based  on  Section  20(4)  have  dealt  with  resale  below  cost.  See  Federal  Cartel 
Office,  decision  of  5.5.1983,  WuW/E  2029  "Coop  Bremen";  Bavarian  Cartel  Authority,  decision  of 
14.5.1982, WuW/E 223 "Kaufmarkt" and the following court decisions by the Munich Higher Regional 
Court,  judgment  of  28.7.1983,  WuW/E  2942  "Kaufmarkt";  Federal  Court  of  Justice,  judgment  of 
28.3.1984, WuW/E 2073 "Kaufmarkt"; Federal Court of Justice, judgment of 4.5.1995, WuW/E 2977 
"Hitlisten-Platten". 
Section 20(2) was indeed introduced in 1973 in reaction to the oil crisis to prevent oil companies from 
discriminating  against  independent  petrol  stations.  Another  underlying  concern  was  to  oblige 
manufacturers of banded goods to supply retailers where the branded goods were necessary to enable 
retailers to compete. See Reasoning of the 2nd Amendment to the Competition Act, WRP 1973, p. 385 et 
seq. 
The  Federal  Law  for  the  Improvement  of  Local  Supplies  and  the  Competitive  Conditions 
(“Nahversorgungs-Gesetz”)  prohibits  a  number  of  practices,  including  discrimination  and  demanding 
payments or services without equivalent. 
See the Irish Competition Act of 2002 and the Competition (Amendment) Act of 2006, Section 15. 

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compensation,  which  prevents  firms  from  exploiting  a  situation  of  ‘economic 
dependence’ of their customers or suppliers in business-to-business relations.195 

169. 

Since  2004,  some  Member  States  have  chosen  to  withdraw  their  regulation 
concerning  economic  dependence  and  similar  forms  of  unequal  bargaining  power, 
others have introduced such regulation. There thus does not appear to be any general 
tendency in one direction or the other in the laws of the Member States. 

4.4.2.  Prohibition of resale below cost or at loss 

170. 

171. 

172. 

195 

196 

197 

198 

199 

Legal  provisions  concerning  resale  below  cost  or  at  loss  are  another  type  of 
regulation on unilateral market conduct.196 These provisions normally outlaw resale 
prices that fall below the price the reseller paid for the product. They are often based 
on  a  similar  economic  rationale  as  provisions  concerning  predatory  pricing  but  do 
typically not require proof of dominance.  

Several Member States have, in recent years, removed their rules concerning resale 
below cost or at loss, including Ireland, Italy, and the United Kingdom. The Member 
States  currently  prohibiting  resale  below  cost  or  at  loss  include  notably  France, 
Germany,  Spain  and  Portugal.  In  the  latter  two,  resale  at  loss  is  regulated  outside 
competition  law,  in particular  in statutes  concerning unfair  competition and trading 
practices.197 

In  France,  Article  L.420-5198  of  the  Code  de  Commerce  contains  a  prohibition  on 
offers or "abusively low" pricing practices where the object or effect of such offers or 
practices is to exclude an undertaking from the market. The conditions of application 
of  this  provision  are  otherwise  similar  to  those  concerning  predatory  pricing  (cost 
test), but its scope is limited to sales to consumers, not to commercial customers, and 
it does not require proof of a dominant position. The Competition Council has never 
imposed sanctions for the infringement of this provision and it has been very rarely 
invoked  in  practice.  The  last  decisions  concerning  the  application  of  L.420-5  were 
taken in 2004, both rejecting the allegations regarding abusively low prices.199 Whilst 

Section 9 of Law 192 of 18 June 1998. The Italian Competition Authority has authority to intervene in 
this  field  only  if  the  alleged  abuse  of  economic  dependence  also  has  an  impact  on  the  protection  of 
competition and the market. 
The  resale-below-cost  laws  (“RBC”  laws)  were  the  subject  of  an  OECD  roundtable  in  2005,  see 
Roundtable on resale below cost laws and regulations, Note by the OECD Secretariat, 22 September 
2005. In Joined Cases C-267/91 and C-268/91, Keck and Mithouard (ECR I-6097), the Court of Justice 
confirmed that the EC competition rules do not preclude Member States from prohibiting sales below 
the purchase price. 
For  the  Portuguese  law,  see  Decree-Law  No  371/93  of  29  October  1993,  Article  3,  as  amended  by 
Decree-Law No 140/98 of 16 May 1998; for Spanish law, see Ley de Competencia Desleal and Ley de 
Ordenacion de Comercio Minorista. 
The 
http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000005634379&dateTexte=20080718. 
"Loi  Galland"  of  1996  prohibited  selling  at  a  loss,  defined  as  a  price  less  than  the  invoice  price  plus 
transportation  costs  and  taxes,  expanding  the  prohibition  in  order  to  control  the  use  of  “marges 
arrières”, i.e. devices which had the effect of changing the prices effectively paid from those shown on 
the invoice at time of delivery. 
Décisions n° 04-D-10, relative à une offre d’abonnement permettant un nombre illimité d’entrées dans 
les  salles  de  cinéma  exploitées  par  la  société  UGC  Cité-Ciné,  et  n°04-D-33,  relative  à  des  pratiques 
mises  en  œuvre  sur  les  marchés  de  produits  d’électronique  grand  public;  found  respectively  at 
http://www.conseil-concurrence.fr/pdf/avis/04d10.pdf;  
http://www.conseil-concurrence.fr/pdf/avis/04d33.pdf.  

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retail  trade  has  traditionally  been  highly  regulated  in  France200,  this  Member  State 
has recently taken some steps to reduce regulation concerning distribution and retail 
trade.201 One of these measures was the lowering of the threshold for resale at loss, 
which allows deeper discounting by resellers so that they can sell at lower prices than 
previously without breaching Article L.420-5.202  

173. 

In  Germany,  resale  below  cost  price  is  one  of  the  forms  of  "unfair  hindrance"  by 
undertakings  with  "superior  market  power"  prohibited  by  Section  20(4)  of  the 
German  Competition  Act.203  The  provision  generally  requires  that  sales  below  cost 
price take place in a certain market 'not merely occasionally'. The ban was tightened 
in 2007 in relation to the groceries retail market, by extending it also to occasional 
offers of foodstuffs below cost price unless there is an objective justification. 204  

4.4.3. 

Stricter national rules concerning dominance and dominant undertakings  

174. 

Besides the rules applicable to unilateral behaviour by firms that expressly extend to 
undertakings that do not have a dominant position in the market within the meaning 
of  Article  82  EC,  national  laws  may  also  foresee  different  standards  for  assessing 
dominance as well as stricter national provisions governing the conduct of dominant 
undertakings.  

175. 

Stakeholders  pointed  to  a  degree  of  diversity  in  the  national  law  counterparts  of 
Article  82  EC  or  their  application.  This  relates  inter  alia  to  the  fact  that  certain 

200 

201 

202 

203 

204 

See  OECD,  Predatory  Foreclosure  Roundtable  Background  Note,  Section  2.4;  and OECD  Reviews  of 
Regulatory Reform, Germany: Consolidating Economic and Social Renewal (2004), pp. 47 and 94.  
The "Loi de modernisation de l'économie" removed some administrative hurdles constraining the entry 
and  expansion  of  large  sales  surfaces  (e.g.  maxi  discount  stores)  inter  alia  by  rising  the  threshold  of 
application for administrative authorisation and by limiting the requirement of authorisation to ensuring 
that the projects respect the new criteria of territorial planning and durable development.  
Source:  Attali  report  (www.liberalisationdelacroissance.fr),  p.  144-154.  The  Attali  report  proposed  a 
total removal of the current rules prohibiting resale at loss, but the Loi Chatel, which entered into force 
in March 2008, retained the prohibition while lowering the threshold so that resale at loss can onlybe 
found in stricter conditions and thus less frequently. 
See www.bundeskartellamt.de; Section 20 (4) provides that undertakings with superior market power in 
relation to small and medium-sized competitors shall not use their market position directly or indirectly 
to hinder such competitors in an unfair manner. An unfair hindrance within the meaning of sentence 1 
exists  in  particular  if  an  undertaking:  1)  offers  foodstuffs  within  the  meaning  of  Section  2  (2)  of  the 
Law on Foodstuffs and Feedstuffs below its cost price or; 2) offers other goods or commercial services 
not merely occasionally below its cost price or; 3) demands from small or medium-sized undertakings 
competing with it in the downstream market in the sale of goods or provision of commercial services a 
higher price for its supplies than it otherwise offers in this market, unless this is objectively justified. 
The  offer  of  foodstuffs  below  cost  price  is  objectively  justified  if  this  is  likely  to  prevent  their 
deterioration  or  impending unsaleability  by  the  retailer  through  their  timely  sale.;  see  also  Case Wal-
Mart in 2002, WuW/E DER 1042, upholding the Decision by the Federal Cartel Office, WuW/E DEV 
316 and the Judgment by the Düsseldorf Higher Regional Court, WuW/E DER 781. 
8th  Amendment  to  the  Act  against  Restraints  of  Competition  of  18  December  2007  (Federal  Official 
Journal 2007, Part I, pp. 2966 et seqq.), in force since 22 December 2007. The government considered 
that small and medium-sized retailers were being squeezed out of the market because of their relatively 
disadvantaged purchase conditions, which prevented them from standing up to the competitive pressure 
caused by the large chains. See Government Reasoning to the Act to Combat Price Abuse in the Energy 
Sector and the Grocery Retail Market, Official Records of the German Bundestag 16/5847 of 27 June 
2007, pp. 1, 9 et seq. The Monopolies Commission objected to the amendment, rejecting the underlying 
rationale and proposing a total abolition of Section 20(4). Monopolies Commission, Special Report No. 
47 of March 2007, available only in German on www.monopolkommission.de. 

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national  laws  foresee  different  standards  for  finding  dominance,  even  where  those 
rules  are  otherwise  modelled  on  Article  82  EC.  An  example  is  found  in  Austrian 
law205,  according  to  which  an  undertaking  is  deemed  to  be  dominant  if  it  has  a 
superior  position  in  relation  to  its  customers  or  suppliers,  in  particular  where  the 
latter are dependent on the maintenance of the business relationship if they want to 
avoid  severe  business  disadvantages.  Dominance  is  presumed,  shifting  thus  the 
burden  of  proof,  when  an  undertaking  holds:  (i)  at  least  30%  share  in  the  relevant 
market; or (ii) in excess of 5% and is exposed to competition of no more than two 
undertakings;  or  (iii)  a  share  in  excess  of  5%  and  belongs  to  the  four  largest 
entrepreneurs in this market, which hold a combined share of at least 80% of sales on 
the relevant market. In those cases the burden of proof shifts to the alleged dominant 
undertaking  to  show  that  it  is  not  dominant.206  Similar  laws  exist  in  other  Member 
States. 

176. 

Furthermore, the exception entails that Member States laws may impose stricter rules 
on  dominant  undertakings.  For  example,  during  the  reporting  period,  Section  29  of 
the German Competition Act was amended to include a specific provision against the 
abuse of market power in the energy sector, enacted due to concerns over the energy 
price  levels  and  the  lack  of  competition  in  the  energy  networks'  upstream  and 
downstream  markets.207  The  purpose  of  this  sector-specific  provision  is  to  prevent 
excessive  pricing  in  the  energy  sector.208  It  allows  finding  an  abuse  where  a 
dominant  supply  undertaking  demands,  without  objective  justification,  payment 
which is higher than those demanded by other supply undertakings.209  

4.4.4.  Evaluation and feedback 

177. 

The business and legal communities have called for an extension of the convergence 
rule  to  national  laws  covering  unilateral  conduct.  Feedback  from  stakeholders 
suggests  that  diverging  standards  fragment  business  strategies  that  are  typically 
formulated on a pan-European or global basis. This is not a priori contradicted by the 
fact  that  some  of  the  national  provisions  on  unilateral  conduct  appear  to  be  rarely 
applied  in  the  practice  of  national  competition  authorities.  This  does  not  mean  that 
the  existence  of  these  provisions  would  be  without  effect  from  the  perspective  of 
market  participants,  since  firms  have  to  make  sure  that  their  practices  comply  with 
all the legal standards in those Member States in which they have activities. 

178. 

Concepts such as the abuse of economic dependency exist in the competition laws of 
some Member States, as seen above. Yet, it is not clear whether competition law is 

205 
206 
207 

208 

209 

Sec.4-6 of Austrian Cartel Act 2005. 
Legal assumption laid down in Section 4 subsection 2 of the Austrian Cartel Act 2005.  
See  Government  Reasoning  to  the  Act  to  Combat  Price  Abuse  in  the  Energy  Sector  and  the  Grocery 
Retail Market, Official Records of the German Bundestag 16/5847 of 27 June 2007, p. 1. 
See  Government  Reasoning  to  the  Act  to  Combat  Price  Abuse  in  the  Energy  Sector  and  the  Grocery 
Retail Market, Official Records of the German Bundestag 16/5847 of 27 June 2007, pp. 9 et seq. 
The  Monopolies  Commission objected  to  the  introduction of  this  provision,  inter alia,  because  it had 
doubts  over  its  effects  on  competition.  In  particular,  a  dominant  supplier  has  to  adjust  its  prices 
immediately, if its competitors reduce their prices, which may lead to parallel conduct and collusion by 
the  firms.  Moreover,  customers  are  not  likely  to  change  suppliers  in  case  of  identical  prices;  a  price 
reduction  by  competitors  will  consequently  stay  without  effect,  as  new  market  entry  is  not  likely  to 
occur  to  increase  competition.  See  Monopolies  Commission,  Special  Report  No.  47  of  March  2007, 
available only in German on www.monopolkommission.de. 

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the  appropriate  instrument  to  address  concerns  arising  from  e.g.  disparities  in 
bargaining  power  (see  paragraph  181  below).210  As  regards  specifically  the  laws 
concerning resale below cost or at loss, certain studies have suggested that this kind 
of regulation results in price increases and loss of consumer welfare.211  

179. 

Against  this  background,  the  exclusion  of  unilateral  conduct  from  the  scope  of  the 
convergence  rule  is  a  matter  which  should  be  further  examined,  both  in  terms  of 
evaluating the extent of any potential problems and assessing the need for action at 
European level. 

4.5. 

Questions relating to the scope of Article 3 

180. 

181. 

Article  3(3)  specifies  that  paragraphs  1  and  2  do  not  preclude  the  application  of 
national  provisions  that  predominantly  pursue  an  objective  different  from  that 
pursued by Articles 81 and 82 EC. Article 3 thus applies to national laws that aim at 
protecting  or  promoting  competition,  not  to  state  measures  pursuing  predominantly 
other  legitimate  objectives,  such  as  those  prohibiting  or  sanctioning  unfair  trading 
practices,  the  application  of  which  does  not  depend  on  the  "actual  or  presumed 
effects of such acts on competition on the market"212. As an example of this kind of 
legislation falling within Article 3(3), Recital 9 of Regulation 1/2003 mentions those 
prohibiting  undertakings  from  imposing  on  their  trading  partners  terms  and 
conditions that are unjustified, disproportionate or without consideration.  

Drawing  the  borderline  appears  particularly  difficult  in  relation  to  laws  concerning 
stricter competition rules for unilateral conduct, on the one hand, and laws covering 
unfair  trading  practices,  on  the  other  hand,  both  of  which  currently  fall  outside  the 
scope  of  the  convergence  rule.  If  the  objective  of  the  national  rules  is  to  regulate 
contractual  relationships  between  undertakings  by  stipulating  the  terms  and 
conditions  that  for  instance  suppliers  must  offer  to  distributors  (rather  than  their 
competitive behaviour on the market), the proper classification appears to be that of 
laws concerning unfair trading practices. On the other hand, national rules combating 
excessive market power or protecting smaller undertakings in a market against their 
larger competitors appear more likely to be considered competition law provisions.213  

210 

211 

212 
213 

See  ICN  Special  Program  for  Kyoto  Annual  Conference,  Report  on  Abuse  of  Superior  Bargaining 
Position,  prepared  by  Task  Force  for  Abuse  of  Superior  Bargaining  Position,  ICN  7th  Annual 
Conference, Kyoto, Japan, April 14-16, 2008. 
For  instance,  in  the  UK  the  Office  of  Fair  Trading  concluded  that  the  removal  of  the  prohibition  of 
resale below cost has generally proven beneficial to consumers with lower prices, more choices and no 
decline  in  quality.  See  U.K.  Office  of  Fair  Trading,  “Supermarkets:  The  Code  of  Practice  and  Other 
Competition  Issues,  Conclusions”  (August  2005).  In  France,  certain  studies  also  suggest  that  resale 
prices increased as a result of the Loi Galland of 1996, with the largest increases being for well-known 
brands.  See  also  OECD  Roundtable  on  Resale  Below  Cost  Laws  and  Regulations,  Note  by  the 
Secretariat,  Directorate  for  Financial  and  Enterprise  Affairs,  Competition  Committee,  22  September 
2005  (concluding  that  predatory  foreclosure  could  be  more  accurately  analysed  and  addressed  in  the 
context  of  rules  concerning  the  abuse  of  dominant  position  through  predatory  pricing,  rather  than  by 
laws regulating resale below cost). 
See Recital 9 of Regulation 1/2003.  
It has been submitted that the main distinctive feature is whether the aim of the provision is limited to 
regulating a contractual relationship with a view to protecting a weaker party against a stronger party or 
whether  competition  on  the  market  is  taken  into  account  either  in  the  elaboration  of  the  rule  or  its 
application.  Each  individual  provision  of  national  law  should  be  examined,  rather  than  the  overall 

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5. 

182. 

183. 

EFFECTIVE  AND  COHERENT  ENFORCEMENT  BY  MORE  ENFORCERS  –  THE 
CONTRIBUTION  OF  THE  MEMBER  STATES'  COMPETITION  AUTHORITIES  AND  THE 
EUROPEAN COMPETITION NETWORK (ECN)  

Regulation  1/2003  has  entrusted  the  Member  States’  competition  authorities  with  a 
key  role  in  ensuring  that  the  EU  competition  rules  are  applied  effectively  and 
consistently,  in  conjunction  with  the  Commission.  This  has  presented  both  an 
opportunity and a challenge. After five years, it is apparent that the key challenge in 
this respect, to boost enforcement results while ensuring the consistent and coherent 
application of EC competition rules, has been largely achieved.  

During  the  reporting  period,  the  Commission  and  the  Member  States’  competition 
authorities  have  worked  together  towards  the  aim  of  making  Europe  an  open 
business  environment  with  a  level  playing  field.  Cooperation  in  the  ECN  has 
surpassed expectations and has given a more ‘structural impetus’ to the enforcement 
of the EC competition rules.214 The possibility to (re-) allocate cases to a another well 
placed  authority  and  the  co-operation  mechanisms  provided  by  Regulation  1/2003 
have been used reasonably and largely successfully and have significantly enhanced 
the  enforcement  activities  within  the  ECN.  Informal  exchanges  and  cooperation  in 
various  multilateral  fora  have  contributed  towards  building  a  common  competition 
culture.  

5.1. 

National competition authorities as enforcers of the EU competition rules 

5.1.1.  Enforcement record of the authorities in the ECN 

184. 

Since the entry into force of Regulation 1/2003, the enforcement of EC competition 
rules  has  vastly  increased.  The  results  of  enforcement  actions  within  the  ECN  are 
impressive.215 More than 1000216 cases have been pursued over the last five years on 
the  basis  of  the  Community  competition  rules.  Within  this  time  period  the 
Commission has been informed of more than 300 envisaged decisions submitted by 
the national competition authorities pursuant to Article 11(4) of Regulation 1/2003. 
These  figures  compared  to  the  situation  before  the  entry  into  force  of  Regulation 
1/2003217 clearly demonstrate a significant increase of enforcement activities in the 
EU since 2004. 

185. 

Not  only  the  Commission218,  but  also  the  Member  States'  competition  authorities 
launched  major  sector  inquiries  in  important  sectors  such  as  energy219,  financial 

214 

215 

216 
217 

218 
219 

statute in which it is contained. See e.g. De Smijter E. and Kjoelbye, L. The Enforcement system under 
Regulation 1/2003, in Faull & Nikpay: The EC law of competition, part 2.59.  
See Emil Paulis and Eddy De Smijter, Enhanced enforcement of the EC competition rules since 1 May 
2004 by the Commission and the NCAs. The Commission's view, Paper for the IBA Conference on the 
Antitrust Reform in Europe, 9-11 March 2005 para 8. 
Updated figures and information are regularly published on the ECN Website which was set up in April 
2006  in  order  to  provide  information  to  the  legal  and  business  community  and  to  the  citizens.  For 
further information see http://ec.europa.eu/comm/Competition/ecn/index_en.html. 
All figures cover the period from 1 May 2004 until 31 March 2009. 
See  Annual  Reports  on 
the  application  of  competition 
http://europa.eu.int/comm/competition/annual_reports. 
See above, part 3. 
Austria (Electricity and Gas), Bulgaria (Thermal energy and electricity), Germany (Petrol and Diesel), 
Greece  (Petrol),  Finland  (Electricity),  France  (Electricity),  Hungary  (Electricity),  Italy  (Electricity, 

(part  V.B); 

the  EU 

rules 

in 

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taxis225,  air 

services220,  media221,  pharmaceuticals222  and  food223.  Other  areas  as  for  example 
transport226,  construction227,  healthcare228, 
motor  vehicles224, 
environment229 and telecoms230 were also investigated. Sector inquiries have become 
a frequently used and highly valuable enforcement tool within the ECN. They have 
led  to  investigations  in  individual  cases  and  have  served  to  identify  (wider) 
competition problems on particular markets and provided information on how these 
could be best addressed.  

Enforcement by national competition authorities demonstrates a strong emphasis on 
the  liberalised  sectors  (e.g.  energy,  telecoms,  post),  where  the  high  number  of 
envisaged decisions confirms the importance of antitrust vigilance in this field. In the 
energy  sector  for  instance,  the  Commission  has  been  informed  of  more  than  30 
envisaged  decisions  since  January  2007.  Other  key  sectors  were  financial  services, 
transport,  food,  pharmaceuticals  and  construction.  Member  States'  competition 
authorities  also  pro-actively  deal  with  cases  that  did  not  previously  attract  antitrust 
attention, for example in the field of professional services.231 

Approximately  55%  of  the  envisaged  decisions  about  which  the  Commission  has 
been informed pursuant to Article 11(4) concerned an infringement of Article 81 EC, 
approximately  30%  an  infringement  of  Article  82  EC  and  the  remainder  an 
infringement  of  both  provisions.  Most  of  these  decisions  are  prohibition  decisions 
imposing fines.232 

Cartels, the most pernicious infringements of the EC competition rules, were pursued 
in  some  90  cases  by  the  ECN  members  since  May  2004.  The  Commission  has 
adopted 33 cartel decisions over this period, with the national competition authorities 
taking more than 50 such decisions.233 Close cooperation in a number of cartel cases, 

Gas),  Latvia  (Fuel),  Poland  (Electricity,  Coal),  Portugal  (Fuel  prices,  Electricity  and  Gas),  Slovak 
Republic (Electricity, Gas), UK. 
Bulgaria  (Retail  banking),  Denmark  (banks),  Finland  (Retail  banking),  France  (Bank  and  Insurance 
Services),  Hungary  (Retail  banking),  Ireland  (Non-life  Insurance,  Private  Health  Insurance,  Non-
investment Banking), Italy (Switching costs in retail banking), Netherlands, Portugal (Payment cards), 
Slovenia, Slovak Republic (Retail banking), UK. 
Germany, Hungary. 
Bulgaria, Denmark, Portugal. 
Austria (Food retail), Bulgaria (Wheat, wheat flour and wheat bread), Cech Republic (Beer), Germany 
(Milk),  Finland,  Denmark  (Nordic  Food  market),  France  (Fruit  and  vegetables,  Wine),  Italy  (Food 
delivery), Lithuania (Bread, Milk, Meat), Latvia (Milk, Eggs, Poultry), Netherlands (Fruit, Vegetables, 
Flour),  Poland  (Spices,  Salt),  Portugal,  Romania  (Grains),  Slovenia  (Daily  consumer  goods),  UK 
(Groceries). 
Czech Republic, France, Latvia. 
Denmark. 
Finland, France, Italy, Spain. 
Denmark, Finland, Latvia. 
Denmark, France, Italy, Latvia, Netherlands. 
France (Waste), Italy (Packaging Waste), Slovak Republic (Packaging Waste). 
Denmark,  Finland  (Broadband  Market),  Italy  (Television,  Mobile  Phone),  Latvia,  Portugal  (Fixed 
telephony, Broadband Internet Access), Slovak Republic. 
The  Hungarian  competition  authority  for  instance  has  adopted  over  the  last  years  several  decisions 
relating  to  various  aspects  of  the  self-regulation  rules  of  national  and  local  liberal  profession  bodies 
(e.g. advertising, prices). See http://www.gvh.hu. 
In 2008, 38 prohibition decisions with fines, 20 commitment decisions, 16 prohibition decisions without 
fines and 11 fines only decisions were communicated pursuant to Article 11(4) to the Commission. 
Most of the cartel decisions were adopted by the French, German, Dutch, Italian and Greek authorities.  

186. 

187. 

188. 

220 

221 
222 
223 

224 
225 
226 
227 
228 
229 
230 

231 

232 

233 

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such  as  the  Flat  Glass  case234  where  several  competition  authorities  provided 
information that was crucial to start the Commission's investigation, or the Elevators 
case235  where  the  Commission's  investigation  triggered  investigations  at  national 
level236, has significantly contributed to this record. 

189. 

A  large  number  of  Member  States  introduced  the  power  to  adopt  commitment 
decisions  in  line  with  Article  9  of  Regulation  1/2003.237  As  a  consequence,  a 
significant increase in such decisions could be observed, in particular as from 2007 
onwards.238 

5.1.2.  Evolving Structure of National Competition Authorities 

190. 

191. 

192. 

234 
235 
236 
237 

238 

239 
240 

241 
242 

Regulation  1/2003  does  not  compel  Member  States  to  adopt  a  specific  institutional 
framework  for  the  implementation  of  EC  competition  rules.  The  prerequisite 
established  by  Article  35  of  Regulation  1/2003  is  that  “Member  States  shall 
designate  the  competition  authority  or  authorities  responsible  for  the  application  of 
Articles  81  and  82  EC  in  such  a  way  that  the  provisions  of  this  regulation  are 
effectively complied with”. It is the responsibility of the Member States to decide on 
the  structure  and  organisation  of  their  respective  competition  authorities.  Member 
States  may  allocate  different  powers  and  functions  to  the  different  authorities  and 
they may also decide on the administrative or judicial nature of the authority, subject 
to the general Community law principles of equivalence and effectiveness.  

Paragraph  2  of  the  Commission  Notice  on  cooperation  within  the  Network  of 
Competition  Authorities  (the  "Network  Notice")239  identifies  basic  types  of 
authorities  present  in  the  network.  During  the  first  five  years  of  application  of  the 
Regulation,  a  significant  degree  of  evolution  in  Member  States'  enforcement 
structures could be observed, with Member States generally striving to have effective 
enforcement structures in place.  

By  the  end  of  the  reporting  period,  most  Member  States  have  a  system  of  one 
administrative authority investigating and deciding cases.240 Several Member States' 
systems  migrated  from  dual  administrative  authority  systems  towards  a  single 
authority. In Spain, for example, the two former competition bodies were replaced by 
a single independent authority – the National Competition Commission (NCC) by the 
Competition  Act  15/2007.241  Most  recently  Estonia242  has  changed  its  initially  dual 

Commission Decision of 28.11.2007, OJ C 127, 24.05.2008. 
Commission Decision of 21.02.2007, OJ C 75, 26.03.2008. 
Austria, Decision of Cartel Court of 18.12.2007. 
Austria,  Belgium,  Bulgaria,  Cyprus,  Czech  Republic,  Denmark,  Finland,  France,  Germany,  Greece, 
Hungary, Italy, Latvia, Lithuania, Netherlands, Poland, Slovakia, Sweden, UK. In Spain, the possibility 
to adopt commitment decisions existed already under its now superseded competition law of 1989; the 
Spanish competition law of 2007 confirmed the procedure. 
In 2007, 29 commitment decisions, and in 2008, 20 commitment decisions have been communicated to 
the  Commission  pursuant  to  Article  11(4)  of  Regulation  1/2003,  as  compared  to  7  commitment 
decisions in 2006. 
OJ C 101 of 27.04.2004, p. 43-53. 
Bulgaria,  Czech  Republic,  Denmark,  Germany,  Estonia,  Greece,  Italy,  Cyprus,  Latvia,  Lithuania, 
Hungary, Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden, UK. 
"Ley de Defensa de la Competencia 15/2007" of 3 July 2007. 
Since January 2008 the previous Competition Board, Communications Board and the Energy Regulator 
have been merged into one single competition authority. 

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193. 

194. 

243 

244 

245 

246 

247 

248 

249 
250 
251 

252 

system  into  one  single  authority.  The  French  system  has  also  been  subject  to 
significant  changes  in  2008/2009243,  in  particular  providing  the  new  Autorité  de  la 
Concurrence with extended powers in antitrust and mergers.244 

Belgium245 and Luxembourg246 currently still opt for a traditional dual administrative 
system.  In  Ireland  and  Austria  the  investigations  are  carried  out  by  the  respective 
competition authorities247, with the decision-making powers having been transferred 
to  courts.248  In  Malta,  the  Office  of  Fair  Competition  is  part  of  the  Ministry  of 
Finance.  In  Greece249,  Ireland250  and  the  United  Kingdom251,  sectoral  regulators  are 
empowered 
in  specific  sectors,  e.g. 
the  EC  competition  rules 
telecommunications,  postal  services,  energy.  In  all  Member  States  the  decisions  of 
the national competition authorities are subject to judicial review. 

to  enforce 

In  general,  the  differences  in  the  institutional  structure  of  the  national  competition 
authorities have not raised any particular issues in the application of Articles 81 and 
82  EC.252  Certain  criticism  has  been  expressed  in  the  course  of  the  public 
consultation for this Report as to the limited resources of some national competition 
authorities and its possible impact on competition proceedings, e.g. limited capacities 
for investigations, longer duration of proceedings. 

Loi n°2008-776 du 4 août 2008 de modernisation de l'économie, published in the French official journal 
of 5 August 2008. 
The Autorité de la Concurrence replaces the Conseil de la Concurrence and has investigatory powers in 
antitrust cases, right to own-initiative opinions on anti-competitive effects of legislative/administrative 
measures, stronger focus on priority cases and exclusive competence for merger control. 
The Conseil de la Concurrence/Raad voor Mededinging is the decision-making body and the Direction 
Générale de la Concurrence is the investigating body. With regard to the interpretation of Articles 2, 
15, 35 of Regulation 1/2003 and the involvement of the Belgian competition authorities in the appeal 
proceedings see Case C-439/08, VEBIC, pending at the Court of Justice, OJ C 313 of 06.12.2008, p.19. 
The Conseil de la Concurrence is the decision-making body and the Inspection de la Concurrence is 
the investigating body. 
In Austria the Federal Competition Authority, “Bundeswettbewerbsbehörde”, has mainly investigatory 
powers  and  is  one  of  the  two  official  parties  in  proceedings  to  the  Cartel  Court.  The  Federal  cartel 
Attorney,  “Bundeskartellanwalt”,  is  entrusted  with  the  representation  of  the  public  interests  in 
competition  matters  and  is  the  other  official  party  in  proceedings  to  the  Cartel  Court.  In  Ireland,  the 
Competition Authority enforces all competition law. The Commission for Communications Regulations 
enforces competition law together with the Competition Authority in the area of telecommunications. 
In Austria, the Cartel Court, "Oberlandesgericht Wien als Kartellgericht", has exclusive jurisdiction to 
decide  whether  a  certain  agreement  or  behaviour  violates  competition  law.  In  Ireland,  decisions  in 
competition  matters  are  made  by  courts,  either  in  the  course  of  a  criminal  prosecution,  or  in  civil 
proceedings  brought  by  the  Competition  Authority  or  by  the  Commission  for  Communications 
Regulation. 
National Telecommunications and Post Commission. 
Commission for Communications Regulation. 
Office  of  Communication  (Ofcom),  Office  of  Gas  and  Electricity  Markets  (Ofgem),  Office  of  Water 
Services (Ofwat), Office of Rail Regulation (ORR), Civil Aviation Authority (CAA). 
However, see further Case C-439/08 VEBIC, where an Article 234 EC reference has been made to the 
European Court of Justice on the interpretation of Articles 2, 15(3) and 35(1) of Regulation 1/2003 with 
regard  to  the  involvement  of  the  Belgian  competition  authorities  in  the  appeal  proceedings.  The 
reference for a preliminary ruling was from the Hof van Beroep te Brussel and was lodged on 6 October 
2008  –  VZW  Vlaamse  Federatie  van  Vereniging  van  Brood-en  Banketbakkers,  Ijsbereiders  en 
Chocoladebewerkers 'VEBIC', the other parties being Raad voor de Mededinging and the Minister van 
Economie, OJ C 313 of 06.12.2008, p. 19. 

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5.1.3.  Powers of the National Competition Authorities to apply Articles 81 and 82 EC 

195. 

As mentioned, Article 35, in conjunction with Article 5, requires that Member States 
designate  a  competition  authority  to  enforce  Articles  81  and  82  EC.  A  clear 
empowerment  is  the  prerequisite  for  effective  enforcement.  During  the  reporting 
period,  three  situations  attracted  the  attention  of  the  Commission  in  this  regard.  In 
2006, the Commission for the Protection of Competition of Cyprus decided253 that it 
lacked  the  power  to  apply  Articles  81  and  82  EC,  because  national  law  made  no 
provision  to  this  effect,  and  it  had  not  been  designated  as  competition  authority 
pursuant  to  Article  35  of  Regulation  1/2003.  The  issue  was  later  addressed  by 
legislative amendments and government measures. In 2007, the Commission initiated 
infringement proceedings against the Czech Republic following an amendment to the 
Competition  Act  in  2005.  The  amendment  excluded  the  application  of  the 
Competition Act in relation to behaviour in breach of the regulatory framework for 
electronic  communications.  The  Commission  closed  the  case  after  these  provisions 
had  been  repealed.254  Recently,  infringement  proceedings  were  initiated  against  the 
Slovak  Republic  in  a  similar  case255.  It  appears  that  Section  2(6)  of  the  Slovak 
Competition Act limits the ability of the Slovak Competition Authority to effectively 
apply  Articles  81  and  82  EC  to  anticompetitive  behaviour  which  falls  under  the 
competence  of  a  regulatory  authority,  such  as  the  Slovak  Telecommunications 
Office. The Commission is therefore seeking clarification from the Slovak authorities 
on whether the Slovak Republic is respecting its obligations under Article 10 EC in 
combination with Articles 35 and 5 of Regulation 1/2003.  

5.1.4.  Powers of the National Competition Authorities pursuant to Article 5 

196. 

197. 

Article 5 of Regulation 1/2003 sets out the national competition authorities' powers 
to apply Article 81 and 82 EC in individual cases. In essence, Article 5 lists the types 
of  decisions  which  national  competition  authorities  can  take,  i.e.  those  finding  an 
infringement, ordering interim measures, accepting commitments and imposing fines 
and other penalties. It concludes that "(w)here on the basis of the information in their 
possession the conditions for prohibition are not met they may likewise decide that 
there are no grounds for action on their part." 

During the  reporting period,  the interpretation of Article 5 has given rise to certain 
queries. Firstly, the question has arisen whether Article 5 is capable of direct effect, 
i.e. if the powers listed in that provision are immediately and directly available to all 
national competition authorities even if not expressly provided for by national law. 
Absent  any  guidance  from  case  law,  this  question  is  still  subject  to  discussion.  Its 
practical relevance has declined insofar as national competition authorities gradually 
obtained additional powers pursuant to national laws.256 

198.  Moreover,  the  question  has  come  up  whether  national  competition  authorities  may 
adopt  declaratory  decisions  in  relation  to  past  infringements.  Given  that  Article  5 
does  not  contain  a  provision  equivalent  to  the  last  paragraph  of  Article  7(1)  of 

253 

254 
255 
256 

Case  Lumiere  TV  Public  Company  Ltd./Multichoice  (national  file  reference  11.17.14/2006),  See 
http://www.competition.gov.cy. 
See Commission Press Release IP/07/956 of 28.06.2007. 
See Commission press Release IP/09/200 of 02.02.2009. 
See below, part 5.1.5. 

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Regulation  1/2003,  there  remains  a  question  mark  about  whether  the  lack  of  an 
express  provision  may  prevent  national  competition  authorities  from  taking  a 
decision on the basis of Articles 81 and 82 EC in relation to past infringements where 
they do not intend to impose a fine. 

199. 

In  conclusion,  the  first  practical  experiences  with  Article  5  of  Regulation  1/2003 
have shown that some uncertainties remain in this context.  

5.1.5.  Convergence and Divergence of national competition authorities' powers 

200. 

201. 

202. 

Crucially, Article 5 is a very rudimentary rule. Regulation 1/2003 does not formally 
regulate  or  harmonise  the  procedures  of  national  competition  authorities  over  and 
above  Article  5  and  the  rules  applicable  to  cooperation  mechanisms.  This  implies 
that European competition authorities apply the same substantive rules according to 
divergent  procedures  and  they  may  impose  a  variety  of  sanctions.257  In  important 
respects,  the  Regulation  reconciled  the  requirements  of  substantive  coherence  with 
the existing procedural diversity amongst European Competition authorities.258 

Nevertheless,  the  entry  into  force  of  Regulation  1/2003  has  generated  an 
unprecedented degree of voluntary convergence of the procedural rules dedicated to 
the implementation of Articles 81 and 82 EC.259  

An  area  where  considerable  convergence  has  taken  place  is  leniency  where  25 
Member  States  now  operate  a  leniency  programme  and  have  largely  aligned  their 
programmes  to  the  ECN  Model  Programme  adopted  in  September  2006.260  An 
alignment  of  investigative  powers  of  the  national  competition  authorities  has  taken 
place  over  the  last  years  concerning  inspections  in  business  premises  (e.g.  powers 
related to on the spot investigations – power to seal premises, books and records, to 
ask  for  oral  explanations).  The  majority  of  the  national  competition  authorities 
themselves  see  no  significant  differences  with  regard  to  the  Commission  powers 
under  Articles  19  and  20  of  Regulation  1/2003.261  Many  Member  States  have  also 
introduced  the  power  to  inspect  private  premises,  although  several  national 
competition  authorities  have  however  indicated  that  they  do  not  yet  have  any 
practical  experience  in  this  regard.262  Finally,  considerable  convergence  has  also 
taken place with regard to fines263, the power to adopt interim measures, commitment 
decisions and the power to carry out sector inquiries.264 

257 
258 
259 

260 
261 

262 

263 

Pecuniary and/or custodial sanctions on individuals and undertakings. 
Articles 11 and 12 of Regulation 1/2003. 
In  this  sense,  Christophe  Lemaire  and  Jérôme  Gstalter,  The  Silent  Revolution  Beyond  Regulation 
1/2003, Global Competition Policy, 2008. 
See below, part 5.3. 
E.g.  Belgium,  Cyprus,  CZ  Republic,  Denmark,  Estonia,  Greece,  Finland,  Italy,  Latvia,  Lithuania, 
Luxembourg,  Netherlands,  Poland,  Romania,  Slovenia,  Slovak  Republic,  Spain,  UK  (civil  cases).  In 
several Member States, judicial authorisation for inspections of business premises is required: Austria, 
Bulgaria, Germany (fines procedure), France, Hungary, Ireland, Portugal, Sweden. 
Cyprus,  CZ  Republic,  Estonia,  Greece,  Spain,  Hungary,  Luxembourg,  Malta,  Romania,  Slovenia, 
Slovak Republic, Sweden. The power to inspect private premises is not foreseen in Bulgaria, Denmark, 
Finland, Italy, Portugal. 
All  Member  States  provide  for  pecuniary  sanctions  on  undertakings.  It  should  however  be  noted  that 
there still exist considerable differences as regards the level of fines and the calculation of fines. Recent 
efforts  within  ECA  (European  Competition  Authorities,  founded  in  2001,  a  forum  of  discussion  for 

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203. 

However, this remarkable level of convergence should not lead to an underestimation 
of the still existing divergences on important procedural issues that may influence the 
outcome  of  individual  cases,  e.g.  fines,  criminal sanctions,  liability  of  undertakings 
or  associations  of  undertakings,  succession  of  undertakings,  prescription  periods, 
standard of proof and the power to impose structural remedies. Moreover, the ability 
of  national  competition  authorities  to  set  priorities  is  greatly  divergent  insofar  as  a 
large number of authorities are obliged to investigate and/or rule on complaints that 
they  are  seized  with265,  while  others  are  legally  empowered  to  set  priorities  in  one 
form or another. 

204.  With  regard  to  fines,  for  example,  there is  a  consistent  trend  towards  ensuring  that 
antitrust  fines  have  a  sufficient  deterrent  effect.  The  vast  majority  of  competition 
agencies take into account the same or similar elements when setting the appropriate 
level  of  antitrust  fines.  However,  the  legislative  and  administrative  frameworks  are 
not  identical.  These  differences  can  result  in  appreciable  divergences  in  the 
calculation  of  fines.  Moreover,  competition  law  and  the  guidelines  adopted  by 
several  authorities  do  not  quantify  in  detail  the  relative  weight  of  the  fundamental 
criteria  and/or  the  adjustment  factors  which  concur  to  the  quantification  of  the 
antitrust fines. This has led to significant divergences in the practical application of 
even largely corresponding provisions. 

205. 

206. 

In  other  areas  too,  where  a  high  level  of  convergence  is  observed  in  the  sense  that 
numerous Member States broadly aligned their laws on the model of the Regulation, 
a considerable degree of (micro-) divergence remains in relation to the exact features 
of  the  procedures  applied.  This  is  for  instance  the  case  for  procedures  leading  to 
commitment  decisions  as  well  as  the  procedures  available  for  follow-up  of 
commitment  decisions.  In  this  context,  it  appeared  that  many  authorities  do  not 
follow  the  scheme  of  Regulation  1/2003  in  terms  of  preparing  a  preliminary 
assessment  and  market  testing.  Conversely,  certain  national  systems  foresee 
procedural  constraints  unknown  to  the  Commission,  e.g.  a  cut-off  date  for  the 
submission  of  commitments.  At  least  one  authority  does  not  have  the  power  to 
impose fines directly in case of non-compliance with a commitment decision. 

Stakeholders  in  the  context  of  the  public  consultation  for  this  Report  have  called 
strongly for further harmonisation of procedures within the ECN. They particularly 
emphasised  different  national  rules  on  sanctions/fines  for  violations  of  Articles  81 
and  82  EC,  leniency,  settlements,  commitments,  complaints,  rules  governing  the 
admissibility  of  evidence  (e.g.  Legal  Professional  Privilege  –  LPP)  and  procedural 
rules  (e.g.  limitations,  deadlines,  procedural  fines  etc.).  According  to  stakeholders, 
these differences in national rules may lead to discrepancies in the outcome of a case 
depending  on  the  jurisdiction  in  which  it  is  reviewed  and  could  therefore  harm  the 
rights of undertakings.  

Competition  Authorities  in  the  EEA)  have  led  to  the  adoption  of  the  "Principles  for  convergence  on 
pecuniary sanctions imposed on undertakings for infringements of antitrust law", in May 2008;  
see http://ec.europa.eu/comm/competition/publications/eca/. 
See above, part 5.1.1. 
Belgium, Bulgaria, Cyprus, Czech Republic, Greece, Spain, Finland (rather flexible system), France , 
Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, Netherlands, Romania, UK. 

264 
265 

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207. 

The subject of divergences in national procedures for the enforcement of Articles 81 
and  82  EC  should  be  further  reflected  upon.  In  order  to  optimise  the  efficiency  of 
procedures  within  the  ECN,  areas  need  to  be  identified  where  further  convergence 
should  be  promoted.  Such  a  policy  discussion  should  also  explore  the  means  by 
which procedural convergence could best be achieved, e.g. soft harmonisation or the 
adoption of certain minimum standards through legislative rules. 

5.2. 

Cooperation between enforcers  

5.2.1.  Work sharing in the network – principles 

208. 

209. 

210. 

The  work-sharing  arrangement  within  the  ECN,  i.e.  the  system  of  parallel 
competences266  and  flexible  case-allocation  rules,  means  that  any  "well-placed" 
authority can take action in a case. Indicative, non-binding principles are set out in 
the Network Notice, which explain when a Network member is well-placed to act.267 
The  case  allocation  principles  do  not  create  individual  rights  for  the  companies 
involved in, or affected by, an infringement to have a case dealt with by a particular 
authority.268 

A competition authority which is well placed and willing to investigate and sanction 
an  infringement  informs  the  Network  of  its  intentions  at  an  early  stage  of  the 
investigation269  by  inserting  some  basic  information  in  the  ECN  database.  This 
allows  the  network  members  to  detect  rapidly  multiple  proceedings  and  ensures 
efficient work- sharing within the ECN. Other authorities may signal their interest to 
also act in the case, either in parallel with the first authority (in the case of national 
competition  authorities)  or  solely  (in  the  case  of  the  Commission).  In  the  rare  case 
that  authorities  disagree  on  the  most  suitable  allocation  of  the  case,  bilateral 
discussions take place between the concerned authorities. 

The Commission is in principle always well placed to deal with any infringement of 
the  Treaty  capable  of  having  an  effect  on  trade  between  Member  States.  It  is 
particularly well-placed to act where the infringement has effects in more than three 
Member States or where there is a link to other priority actions of the Community.270 
On the other hand, the Commission is never obliged to act, even if a given case has 
effects in more than three Member States. Cases may also be re-allocated within the 
network members if efficient enforcement so requires.271 

266 

267 

268 

269 

270 
271 

Articles 4 and 5 of Regulation 1/2003 give the Commission and the national competition authorities full 
parallel competences to apply Articles 81 and 82 EC. 
Notice  on  cooperation  within  the  Network  of  Competition  Authorities  OJ  C  101  of  27.04.2004  (the 
"Network Notice"), p. 43-53, paras 8-13.  
The  Network  Notice,  para  31.  This  question  was  raised  in  Cases  T-339/04  and  T-340/04,  France 
Télécom [2007] ECR II-521. 
Pursuant to Article 11(3) of Regulation 1/2003, national competition authorities inform the Commission 
when they are acting under Articles 81 and 82 EC, before or without delay after commencing the first 
formal  investigative  measure.  It  has  been  agreed  amongst  the  members  of  the  ECN  that  the  national 
competition authorities will also get this information (see the Network Notice, Point 17). Similarly, the 
Commission will inform the other ECN members when it starts investigating a case (Article 11(2) of 
Regulation 1/2003). 
The Network Notice, paras 14-15. 
The Network Notice, paras 6 and 7. 

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211. 

The principles of work sharing as introduced by Regulation 1/2003 and the Network 
Notice have been fully endorsed by the Court of First Instance in the France Télécom 
judgments of 8 March 2007.272 The cases concerned an action for the annulment of a 
decision  by  the  Commission  to  conduct  an  inspection  targeted  at  France  Télécom 
and its subsidiaries (Wanadoo was at the time a subsidiary of France Télécom) and 
aimed  at  finding  evidence  of  a  suspected  violation  of  Article  82  EC  by  predatory 
pricing  and  margin  squeeze  in  the  market  for  high-speed  Internet  access  for 
residential  customers  in  France.273  Prior  to  the  Commission's  inspection  decision,  a 
competitor  of  Wanadoo  had  filed  a  complaint  and  an  application  for  interim 
measures  with  the  French  Conseil  de  la  Concurrence.  The  application  for  interim 
measures was rejected by the latter for lack of urgency one week before the adoption 
of  the  Commission's  inspection  decision.  The  inspection  decision  was  appealed  by 
both  Wanadoo  and  France  Télécom.274  The  applications  for  annulment  invoked  a 
broad  range  of  pleas,  concerning  notably  the  reasoning  of  the  Commission's 
inspection decision and the extent of its obligation to cooperate with national courts 
called upon to authorise coercive measures in case of opposition.  

212. 

In its judgment in Case T-339/04, the Court of First Instance rejected the arguments 
of the applicant(s) in their entirety. It held in particular that Regulation 1/2003 has, in 
conformity with the principle of subsidiarity, provided for a wider association of the 
national  competition  authorities  with  the  application  of  the  EC  competition  rules. 
The  Regulation  has,  however,  not  changed  the  general  competence  of  the 
Commission recognised by the case law of the Court of Justice (Masterfoods).275 

213.  Moreover, the Court of First Instance held that Regulation 1/2003 has not established 
a 'division of competences' that could preclude the Commission from carrying out an 
inspection  where  a  national  competition  authority  is  already  dealing  with  the  same 
case.  On  the  contrary,  Article  11(6)  provides  that  the  Commission  is  empowered  – 
upon  simple  consultation  of  the  national  authority  –  to  initiate  proceedings  with  a 
view to adopt a decision itself. A fortiori, it is able to conduct an inspection in such 
case. Neither the Network Notice – as evidenced by its contents and wording – nor 
the  Joint  Statement  establish  binding  criteria  that  could  lead  to  the  conclusion  that 
solely  the  Conseil  de  la  Concurrence  could  deal  with  the  case  and  that  the 
Commission was prevented from doing so. Furthermore, the Court of First Instance 
held  that  the  obligation  of  close  cooperation  in  Article  11(1)  does  not  support  the 
conclusion  that  the  Commission  could  not  investigate  a  case  when  a  national 
competition  authority  is  already  dealing  with  it.  The  opposite  can  be  derived  from 
Article  11(6).  The  principle  of  subsidiarity  does  not  put  into  question  the 
competences  conferred  on  the  Commission  by  the  EC  Treaty,  which  include  the 
enforcement  of  the  EC  competition  rules.  In  Case  T-340/04,  the  Court  of  First 
Instance  further  stated  that  Article  11(6)  leaves  scope  for  parallel  investigations  by 
the Commission and national competition authorities in the early stages of a case.  

272 
273 

274 

275 

Case T-339/04 and Case T-340/04, France Télécom v. Commission, [2007] ECR II-521. 
At the time, there were indications suggesting that Wanadoo repeated or continued practices found to 
violate  Article  82  EC  by  the  Commission  in  its  Decision  of  16  July  2003  in  Case  COMP/38.233  – 
Wanadoo Interactive. The case as such was later closed. 
During  the  judicial  proceedings,  Wanadoo  and  its  parent  merged.  France  Telecom  thus  became  the 
applicant in both court cases. 
Case C-344/98, Masterfoods, [2000] ECR I-11369. 

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5.2.2.  Work sharing – practical experience 

214. 

215. 

216. 

217. 

Five years of experience of work-sharing within the ECN have clearly demonstrated 
and  confirmed  the  well-functioning  of  the  flexible  and  pragmatic  approach 
introduced  by  Regulation  1/2003  and  the  Network  Notice.  Contrary  to  the  various 
concerns raised at the time of the adoption of the modernisation package, discussions 
on case-allocation came up only in a few cases and actual re-allocation of cases took 
place even less, i.e. cases mostly remain with the competition authority that started 
the investigation. Also the public consultation has shown that the legal and business 
community has dropped its initial fears and has only rarely called for more clarity in 
this respect. Claims for binding case-allocation criteria remain isolated. 

Case-allocation  and  re-allocation  have  played  a  role  mainly  in  cartel  cases  or  in 
investigations started by a complaint.  

In  several  cartel  cases,  notably  in  which  parallel  leniency  applications  had  been 
received, the Commission and national competition authorities cooperated at an early 
stage.  In  the  Flat  Glass  cartel  case276,  for  example,  the  Commission  started  its 
investigation  in  2005  on  the  basis  of  information  provided  by  several  national 
competition authorities277 which had received complaints or leads from customers or 
other  third  parties  that  suspected  the  a  cartel  existed.  In  the  Power  Transformers 
case278 the German Bundeskartellamt dealt with a separate, but related case. 

Furthermore,  a  certain  number  of  complaints  received  by  the  Commission  or  a 
Member  State  competition  authority  or  both  have  been  passed  on  within  the 
Network.  Important  examples  are  the  Deutsche  Post  cases  where  the  Commission 
and the German competition authority were seized with similar complaints referring 
to Article 82 EC concerning the same practice of Deutsche Post AG with regard to 
discounts for pre-sorted mail.  Deutsche Post's practice was based on a provision of 
the  German  postal  legislation  which  was  the  subject  of  a  Commission  procedure 
under Article 86 EC. In this case, the Commission whose experts were preparing the 
Article  86  decision,  considered  that  the  most  effective  and  efficient  way  forward 
would  be  the  investigation  of  the  complaint  by  the  Bundeskartellamt.  The 
complainant  agreed  to  withdraw  the  complaint  with  the  Commission.  The  work 
sharing  proved  successful  inasmuch  as  both  proceedings  have  now  been  concluded 
by  decisions.279  Both  decisions  have  been  appealed.  These  cases  are  a  remarkable 
example  of  how  the  action  of  the  Commission  and  that  of  a  Member  State 
competition authority can effectively complement each other in practice. 

218. 

The  issue  of  work  sharing  was  also  addressed  in  the  Wanadoo  case  the  details  of 
which are already described above.280 In the so called iTunes case concerning on-line 
delivery  of  music,  the  Commission  was  approached  by  the  UK  Office  of  Fair 

276 
277 

278 
279 

280 

Commission Decision of 28 November 2007, See Commission Press Release IP/07/1781. 
German,  French,  Swedish  and  British  competition  authorities;  the  BKartA  had  already  asked  the 
complainant for information when re-allocation took place. 
See Commission Press Release IP/08/783 of 11.12.2008. 
Commission Decision of 20 October 2004 on the German postal legislation relating to mail preparation 
services  (COMP/38.745);  BKA,  Decision  of  11  February  2005  (B  9-55/03);  See  also  Martinez 
Lopez/Obst, The BdKEP decision, the application of competition law to the partially liberalised postal 
sector, Competition Policy Newsletter 2005, N°1, 31. 
See above, part 5.2.1. 

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Trading, which had been seized with a complaint from a consumer organisation. The 
Commission agreed to take up the case which concerned several Member States and 
opened proceedings in April 2007.281 After Apple's announcement to equalise prices 
for music downloads from iTunes in Europe in January 2008282, the case was closed.  

219.  More  recent  examples  of  re-allocation  of  cases  which  took  place  from  the 
Commission to national competition authorities concern an investigation related to a 
triple  play  offer  (TV,  telephone  and  broadband)  jointly  commercialised  by 
Telefonica  and  Sogecable283  and  investigations  into  the  joint  selling  of  football 
rights284. 

220. 

221. 

222. 

Re-allocation  of  cases  between  national  competition  authorities  has  been  very  rare. 
The  Commission  has  been  informed  only  of  three  cases.  These  re-allocations  were 
mainly  due  to  the  fact  that  the  locations  of  the  companies  concerned  by  the 
investigations were situated in another Member State.285 

The  cases  mentioned  generally  illustrate  how  work-sharing  in  the  Network  takes 
place  in  practice.  As  is  well  known,  Regulation  1/2003  does  not  provide  for  a 
"transfer" of cases as such. "Re-allocation" involves one authority going ahead with 
the investigation of a case while another authority abstains from acting or closes its 
file either on the basis of its discretion (not) to act or on the basis of Article 13 of the 
Regulation.  

One  issue  which  has  given  rise  to  certain  discussions  in  the  Network  relates  to  the 
situation where a national competition authority is seized by a complainant but is not 
particularly well placed to deal with the case, as it requires extensive investigations 
in other Member States. However, the Commission or another national competition 
authority  does  not  consider  the  case  to  be  a  priority.  Such  a  "negative  conflict  of 
allocation"  scenario  has  occurred  in  very  limited  instances.  It  is  in  the  first  place 
linked to the afore-mentioned issue that some authorities in the network are bound to 
deal with cases, even where they are not an enforcement priority, whereas others are 
not.  Still,  the  subject  may  merit  further  observation  in  the  practice  of  the  network, 
with  a  view  to  determine  if  the  mechanisms  for  assistance  should  be  enhanced  in 
order  to  further  improve  the  ability  of  national  competition  authorities  to  deal  with 
cases requiring fact-finding in other Member States. 

223. 

Parallel proceedings between network members are also very rare. The vast majority 
of  national  competition  authorities  have  not  acted  in  parallel  to  other  national 
competition  authorities  or  to  the  Commission.  One  single  case  of  parallel  action  in 
relation to a single infringement can be reported upon: the German and the Belgian 
competition  authorities  received  a  leniency application  relating  to  a  European  wide 
price-fixing  cartel  for  the  chemical  product Benzyl-Buthyl-Phtalat.  Both  authorities 
investigated the case and imposed fines.286 The Belgian authority which imposed the 

281 
282 
283 
284 
285 
286 

See Commission Press Release IP/07/126 of 03.04.2007. 
See Commission Press Release IP/08/22 of 09.01.2008. 
Re-allocation to the Spanish competition authority. 
For instance re-allocation to German competition authority and the Danish competition authority.  
Two re-allocation of cases took place towards the UK OFT, both cases were closed. 
Decision  of  the  German  Bundeskartellamt  in  case  B  11-23/05.  Decision  of  Belgian  Competition 
Council of 4 April 2008, 

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second  fine  notably  contemplated  the  issue  of  "ne  bis  in  idem".  It  considered  inter 
alia  that  it  was  able  to  impose  a  fine  in  regard  of  the  effects  of  the  cartel  in  the 
Belgian territory and based on the turnover in Belgium insofar  as the first  fine  had 
been imposed by the German authority in view of the effects in the German territory 
only. The case might prima facie have presented the opportunity for the Community 
Courts (pursuant to an Article 234 EC reference) to clarify questions relating to the 
principle of ne bis in idem and in particular the definition of 'idem'. However, neither 
of the decisions was appealed. 

224. 

In conclusion, work sharing within the ECN has worked very well. The ECN is well 
equipped  to  avoid  unnecessary  duplication  of  work  and  to  ensure  efficient 
enforcement.  The  ECN  members  have  demonstrated  their  readiness  to  solve  case-
allocation issues in a manner that ensures efficient work-sharing.  

5.3. 

ECN cooperation in the field of leniency 

5.3.1.  The ECN Model Leniency Programme 

225. 

226. 

227. 

Since  2004,  significant  developments  have  taken  place  in  the  field  of  leniency 
programmes  within  the  ECN.  Regulation  1/2003  is  built  on  a  system  of  parallel 
competences  in  which  national  competition  authorities  are  active  enforcers  of 
Articles 81 and 82 EC alongside the Commission. A logical consequence of such a 
system  is  that  a  leniency  applicant  may  need  to  protect  its  position  with  all  the 
authorities that may impose sanctions for the cartel activity, i.e. it entails a need for 
multiple filings in different jurisdictions. 

The co-existence of several leniency programs within the European Union has been 
addressed  as  from  the  entry  into  force  of  Regulation  1/2003.  In  the  Commission 
Notice on Cooperation within the Network of Competition Authorities (the "Network 
Notice"),  potential  applicants  were  advised  that  they  might  have  an  interest  in 
protecting their position in several jurisdictions.287 Moreover, safeguards concerning 
the transmission of leniency related information within the ECN were put in place.288  

As  from  2005,  a  dedicated  ECN  Leniency  Working  Group  prepared  further 
measures, considering that certain discrepancies indeed may have adverse effects on 
the effectiveness of the programmes and on the incentives of undertakings to disclose 
their cartel activities throughout the EU. To address these concerns, the heads of all 
ECN  members  endorsed  the  ECN  Model  Leniency  Programme289  (the  "Model 
Programme")  on  29  September  2006.  The  aim  of  this  Programme  is  to  remove 
certain  discrepancies  between  the  policies  of  the  ECN  Members  and  to  facilitate 
multiple filings within the EU.  

228. 

The Model Programme was drafted as a coherent document setting out the essential 
procedural  and  substantive  elements  that  the  ECN  members  believe  every  leniency 
programme  should  contain.  It  concerns  only  secret  cartels,  which  are  difficult  to 

http://www.economie.fgov.be/organisation_market/competition/iurisprudence/13200813_Bayer_Ferro_
Solutia_Lonza.pdf. 
See  Commission  Notice  on  cooperation  within  the  Network  of  Competition  Authorities  OJ  C  101, 
27/04/2004, p. 43, para 38. 
The Network Notice, paras 40 and 41.  
Available at http://ec.europa.eu/competition/ecn/model_leniency_en.pdf.  

287 

288 
289 

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229. 

detect  by  other  means.290  Its  purpose  is  to  harmonise  the  key  elements  of  leniency 
policies,  including  inter  alia  the  conditions  for  immunity  from  fines  and  the 
exclusion  of  certain  applicants  from  the  protection,  marker  system,  information 
required  for  immunity  and  markers,  conditions  for  reduction  of  fines  and  the 
maximum percentage for reduction of fines.291 It foresees that coercers of the cartel 
are  excluded  from  immunity.292  The  Model  Programme  also  introduces  a  uniform 
summary application system that facilitates the procedure when an applicant wants to 
protect its position with one or more national competition authorities in addition to 
the Commission.293 

Insofar as multiple filings are concerned, various alternative options were examined 
within the ECN in connection with the elaboration of the Model Programme but were 
rejected  as  unworkable  in  practice.294  A  mutual  recognition  system,  for  instance, 
could,  absent  a  high  degree  of  harmonisation,  invite  forum  shopping.  In  turn,  the 
option  that  the  Commission  would  act  as  a  central  decision-maker  for  immunity 
applications,  besides  being  a  heavy  administrative  task  for  the  Commission,  would 
entail disincentives for applicants and for national competition authorities. For cartels 
of  smaller  territorial  scope,  parties  may  be  reluctant  to  approach  the  Commission. 
Moreover, a national competition authority that would deal with a case would be cut 
off  from  the  early  contacts  with  the  applicant  which  are  normally  essential  for  the 
competition authority to target its investigation in an optimal way. Both options have 
in common that they would require that, in order to decide with effect for the whole 
Community,  the  approached  authority  would  have  to  check  that  no  other  authority 
had  sufficient  information  to  launch  an  ex  officio  investigation.  This  would  require 
extensive contacts at a very early stage of the case. 

230. 

In  the  light  of  these  considerations,  the  Model  Programme  opted  for  a  summary 
application system for cases in which the Commission is “particularly well placed” 
to  deal  with  the  case  (i.e.  cases  concerning  more  than  three  Member  States).295 
Where a full application has been made with the Commission, national competition 
authorities can accept temporarily to protect the applicant’s position on the basis of 
very  limited  information  foreseen  in  the  Model  Programme.  This  information  is 
broadly  equivalent  to  information  needed  for  a  marker.  Such  information  can  be 
given orally.296 Should a national competition authority act on the case, it will grant 
the applicant a period of time to complete its application.  

290 
291 

292 

293 
294 

295 
296 

See paras 1-2 of the Explanatory Notes. 
See the Explanatory Notes. For instance, reductions of fines should not exceed 50% of the fine in order 
to  ensure  that  there  is  a  significant  difference  between  immunity  and  reductions,  so  that  it  will  be 
significantly more attractive to apply for immunity than wait to be the second in line.  
Para  8  of  the  Model  Programme  sets  out  that  an  undertaking  which  took  steps  to  coerce  another 
undertaking  to  participate  in  the  cartel  will  not  be  eligible  for  immunity  from  fines.  In  general,  the 
Model  Programme  does  not  prevent  ECN  members  from  adopting  a  more  favourable  approach. 
However,  some  programmes  of  ECN  Members  set  out  that  they  are  not  applicable  to  the  sole 
ringleaders (see also footnote 4 of the Model Programme). 
See paras 22-25 of the Model Programme and para 14 of the Network Notice.  
For a further discussion of these options, see Gauer, C. and Jaspers, M.: Designing A European Solution 
For A "One Stop Leniency Shop", E.C.L.R. 2006, 27(12), p. 685-692. 
See para 14 of the Network Notice. 
See in particular para 48 of the Explanatory Notes. 

EN 

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231. 

In this system, summary applications facilitate multiple filings and their processing 
by competition authorities where it is likely that the Commission will deal with the 
case.  Undertakings  that  take  part  in  cross-border  cartels  expose  themselves  to 
penalties  in  several  jurisdictions.  It  is  for  the  applicant  to  take  the  steps  which  it 
considers appropriate to protect its position with respect to possible proceedings by 
the relevant authorities.297  

5.3.2.  Way forward 

232. 

In  the  stakeholder  consultation,  the  legal  and  business  community  stated  a  strong 
preference for a more centralised approach for leniency in the European Union, some 
expressing  a  desire  to  see  the  matter  dealt  with  by  regulation.  At  the  same  time, 
practical  experience  suggests  that  potential  applicants  are  generally  aware  of  the 
system and undertake the necessary to protect their interests. 

233.  Whilst the Model Programme is not a legally binding document and does not prevent 
members  from  adopting  a  more  favourable  approach  towards  applicants,  the  ECN 
members  have  committed  to  use  their  best  efforts  to  align  their  respective 
programmes with it.298  

234. 

The work within the ECN has been a major catalyst in encouraging Member States 
and/or national competition authorities to introduce and develop their own leniency 
policies  and  in  promoting  convergence  between  them.  The  adoption  of  leniency 
programmes  by  the  ECN  members  and  their  harmonisation  with  the  Model 
Programme  has  progressed  considerably  during  the  reported  period.  Today,  only 
Malta and Slovenia do not have any kind of leniency policy in place.  

235. 

The Model Programme foresees that the ECN will evaluate the status of convergence 
of the leniency programmes as at the end of 2008. The assessment will form the basis 
for a reflection on whether further action is needed in this field.  

5.3.3. 

Safeguards for leniency information within the ECN 

236. 

In order not to discourage potential applicants from voluntarily reporting cartels, the 
Network  Notice  sets  out  special  safeguards  for  the  exchange  and  use  of  leniency 
related information. In particular, according to paragraph 39 of the Network Notice, 
leniency related information  submitted pursuant to Article 11 of  Regulation  1/2003 
cannot be used by other authorities to start an investigation. According to paragraph 
41,  information  submitted  by  a  leniency  applicant  or  collected  on  that  basis,  may 
only  be  exchanged  between  two  authorities  in  the  following  circumstances:  (i)  the 
applicant consents to the exchange; or (ii) the applicant has applied for leniency with 
both  authorities  in  the  same  case;  or  (iii)  the  receiving  authority  provides  a  written 
commitment not to use the information transmitted or any information it may obtain 
after  the  date  of  the  transmission  to  impose  sanctions  on  the  applicant,  its 
subsidiaries  or  its  employees.  In  accordance  with  the  Regulation,  information  so 
exchanged  between  the  Commission  and  national  authorities  shall  only  be  used  in 

297 
298 

See also para 38 of the Network Notice.  
The  Model  Programme  explicitly  recognises  that  not  all  competition  authorities  have  the  power  to 
implement  changes  in  their  national  leniency  programmes  as  this  power  is  held  by  other  bodies,  see 
para 9 of the Explanatory Notes.  

EN 

69 

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evidence for the purpose of applying Article 81 EC. It cannot be used for applying 
national laws, unless applied in parallel with Article 81 EC.299 

237. 

In  order  to  limit  any  negative  consequences  for  leniency  programmes  by  risk  of 
disclosure of leniency information and documents, the Model Leniency Programme 
allows for oral applications in all cases where this would appear to be justified and 
proportionate.300  The  Model  Leniency  Programme  also  foresees  that  no  access  will 
be granted  to any records  of any oral statements  before  the statement of objections 
has  been  issued.  Moreover,  the  Model  Leniency  Programme  foresees  that  the 
exchange of records of oral statements between authorities is limited to cases where 
the protections afforded to such records by the receiving authority are equivalent to 
those afforded by the transmitting authority.  

5.4. 

Cooperation for fact-finding purposes 

5.4.1. 

Information exchange pursuant to Article 12 of Regulation 1/2003 

238. 

239. 

240. 

In contrast to Regulation 17, which contained only little provision for the exchange 
of  information  between  the  Commission  and  national  competition  authorities  and 
none  at  all  for  the  exchange  of  information  between  the  national  competition 
authorities,  Regulation  1/2003  introduced  an  explicit  provision  concerning  the 
exchange  of  information  between  all  European  competition  authorities,  including 
confidential information, and the use of such information as evidence.  

Article  12(1)  of  Regulation  1/2003  empowers  competition  authorities  to  exchange 
information as intelligence irrespective of the (criminal or administrative) nature of 
the  underlying  proceedings  and  irrespective  of  whether  sanctions  are  imposed  on 
individuals, provided that the  exchange occurs for the purpose of applying Articles 
81 and 82 EC. Conversely, the use in evidence of information received from another 
competition  authority  is  subject  to  certain  additional  conditions,  as  laid  down  in 
paragraphs 2 and 3 of Article 12.  

As  far  as  proceedings  against  undertakings  are  concerned,  Article  12(2)  of 
Regulation  1/2003  assumes  a  sufficient  degree  of  equivalence  of  the  rights  of 
defence in the different enforcement systems.301 Information collected in one system 
can  therefore  be  used  in  evidence  in  another  system,  provided  that  the  general 
conditions  of  Article  12(2)  are  fulfilled,  notably  that  the  information  may  be  used 
only for the purpose of applying Article 81 or 82 EC and in respect of the ‘subject-
matter’ for which it was collected.  

241. 

As far as proceedings against individuals are concerned, Article 12(3) of Regulation 
1/2003 subjects the use in evidence of information received from other competition 
authorities to certain additional conditions.  

–  The  use  in  evidence  is  possible  under  the  first  indent  of  Article  12(3)  if  the 
transmitting system also targets individuals and provides for sanctions of a similar 

299 
300 

301 

Article 12 (2). 
According to para 14 of the Network Notice, oral applications are always justified and proportionate in 
cases where the Commission is “particularly well placed" to act. 
See recital 16. 

EN 

70 

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kind  (financial,  custodial  or  other)  in  which  case  the  Regulation  presumes  that 
there are sufficiently equivalent standards of rights of defence. The qualification 
of  the  sanctions  or  procedures  at  national  level  as  administrative  or  criminal  is 
irrelevant.  

–  Where the types of sanctions on individuals are materially different, information 
may only be exchanged for use in evidence if the information has been collected 
in a way that respects the same level of protection of the rights of the defence as 
provided  for  under  the  rules  of  the  receiving  authority  (second  indent,  first 
sentence  of  Article  12(3)).  A  comparison  regarding  the  level  of  protection  is 
therefore  required.  However,  Article  12(3),  second  indent  last  sentence  provides 
that  in  this  case  information  collected  in  a  jurisdiction  that  does  not  provide  for 
custodial sanctions cannot be used in evidence in another jurisdiction to seek the 
imposition of custodial sanctions. 

242. 

The  possibility  to  exchange  and  use  information  gathered  by  another  competition 
authority  has  proven  to  be  one  of  the  cornerstones  of  the  modernisation  package, 
given that it greatly enhances the overall efficiency within the network and that it is a 
pre-condition  for  a  flexible  case-allocation  system.  Since  the  entry  into  force  of 
Regulation 1/2003, information exchanges pursuant to Article 12 have taken place to 
and from the Commission and between the national competition authorities, notably 
in the following three scenarios:  

–  In the context of inspections, information exchange may enable several authorities 
that  have  received  different  pieces  of  information  to  obtain  a  more  complete 
picture  of  a  suspected  infringement.  Such  exchanges  strengthen  the  individual 
ECN  members'  ability  to  detect  infringements.  They  occur  normally  at  a  very 
early stage of an investigation (prior to inspections) and are highly confidential. 

–  In the context of Article 22 inspections, the information collected on behalf of the 

requesting authority is transferred on the basis of Article 12. 

–  If a case is allocated between authorities or re-allocated to another authority, the 

information is passed on pursuant to Article 12.  

243. 

244. 

The cases where information was not only exchanged but also used in evidence are 
more  limited,  and  most  of  them  are  still  ongoing.  The  majority  of  these  cases  are 
related  to  the  Article  22  scenario  (e.g.  Flat  Glass302,  Sanitary  fittings).  In  this 
context,  it  was  reported  by  national  competition  authorities  that  some  difficulties 
were encountered in using the documents collected by another national competition 
authority due to different legislation on the confidentiality requirements.  

As  regards  the  conditions  provided  for  by  Article  12(3)  and  the  use  of  evidence  in 
case of sanctions on individuals, experience is very limited. No network member has 
reported any particular case where it had to carry out an analysis of the conditions of 
Article 12(3) in view of using information received from another network member, 
nor where it abstained from requesting potentially relevant information, nor where it 
was  unable  to  use  in  evidence  information  relevant  to  a  case  for  the  imposition  of 
custodial sanctions received from another network member. 

302 

See above, part 3.2.6. 

EN 

71 

   EN 

                                                 
245. 

In  this  context,  a  discussion  has  however  arisen  whether  the  ban  on  the  use  of 
information  for  the  imposition  of  custodial  sanctions  where  the  law  of  the 
transmitting  authority  does  not  foresee  such  sanctions,  as  provided  for  by  the  last 
sentence of the second indent of Article 12(3), is too far-reaching and constitutes an 
obstacle  to  effective  enforcement.  In  this  regard,  alternative  concepts,  such  as  the 
"double barrier" approach303 have been proposed. These considerations could also be 
relevant for future discussions concerning international cooperation agreements with 
selected jurisdictions.304 

5.4.2.  Assistance pursuant to Article 22 of Regulation 1/2003 

246. 

Article 22(1) of Regulation 1/2003 gives Member States' competition authorities the 
power  to  carry  out  inspections  or  other  fact-finding  measures  on  behalf  of  another 
Member States' competition authority. The fact-finding measures are governed by the 
law  of  the  Member  State  where  they  take  place.  That  means  that  the  investigation 
authority acts on the basis of its investigatory powers, as provided by national law, 
and  has  to  respect  the  procedural  rights  of  the  undertakings  under  investigation,  as 
provided  by  national  law.  The  results  of  the  investigatory  measures  may  be 
exchanged on the basis of Article 12. Assistance pursuant to Article 22(1) has been 
successfully used within the network during the last five years. In the vast majority 
of cases, requests were followed up on by the requested authority and results have in 
particular  fed  into  cartel  investigations  in  the  receiving  national  competition 
authorities.  Assistance  was  requested  and  provided  mainly  in  the  context  of 
inspections, witness interviews and requests for information.  

247.  Whereas  generally  this  tool  has  proven  to  be  very  useful,  some  practical  and  legal 
issues  have  arisen  in  the  last  years.  The  practical  issues  are  mainly  linked  to  the 
partly  limited  resources  of  some  national  competition  authorities  and  language 
issues.  Legal  issues  arose  primarily  as  a  result  of  divergent  national  procedural 
frameworks  and  concerned  for  instance  the  acquisition  of  evidence,  due  to 
divergences  in  national  legislation  concerning  the  requirements  to  conduct  an 
inspection  or  proceed  with  a  request  for  information  and  with  regard  to  varying 
powers to conduct Forensic IT searches.  

5.5. 

The ECN as a forum to promote coherent application 

5.5.1.  Horizontal work in the ECN 

248. 

Five years of experience have shown that the ECN is a successful forum to discuss 
general policy issues. The means of cooperation and the subjects of discussion have 
been manifold and have developed over time. Currently, policy work is organised at 
four different levels of organisation: the yearly meetings of the Directors General of 
the European Competition Authorities, the Plenary meetings, the horizontal working 
groups  and  the  sector-specific  subgroups.  Discussions  in  the  different  fora  have 
promoted a coherent approach and the coherent application of the EC antitrust rules.  

303 

304 

According to the proposed concept of a "double barrier": (i) the transmitting authority would have to 
verify that the information transmitted can be used in conformity with its rules; and (ii) the receiving 
authority would have to verify that the information received can be used in conformity with its rules. 
See below, part 7.2. 

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72 

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–  The  Director  General’s  meeting  is  the  forum  for  discussing  major  policy  issues 
within the Network and constitutes the top level of the ECN framework. It takes 
place  once  per  year  and  discussions  have,  for  example,  taken  place  on  major 
topics such as the review of the Commission's policy on Article 82 EC, the ECN 
Leniency Model Programme, increases in food and energy prices and the financial 
crisis.305 

–  Another  central  forum  is  the  "ECN  Plenary"  where  horizontal  antitrust  issues  of 
common  interest  policy  are  discussed,  e.g.  the  ability  of  national  competition 
authorities to disapply State measures in their application of the EC competition 
rules  in  combination  with  Article  10  EC,  following  the  CIF  ruling306  of  the 
European Court  of Justice. Cases undertaken by national competition authorities 
on this basis are typically complex and a debate was held on the conditions that 
must  be  met  for  the  disapplication  of  anti-competitive  State  measures.  Such 
exchange of experience and know-how has proved extremely beneficial in terms 
of  further  developing  a  common  competition  culture  within  the  Network. 
Participants  are  normally  officials  of  the  national  competition  authorities 
responsible  for  ECN  matters  and  officials  of  the  ECN  unit  of  the  Directorate 
General for Competition. 

–  Under the "umbrella" of the Plenary, there is a varying number of working groups 
that  deal  with  horizontal  questions  of  legal,  economic  or  procedural  nature 
situated at the interface between Community law and diverse national laws (e.g. 
Cooperation  issues,  Leniency,  Sanctions  and  ne  bis  in  idem,  Information  and 
Communication,  Article  82  EC,  Competition  Chief  Economists,  Vertical 
Restraints  and  Horizontal  Agreements).  For  example,  the  Cooperation  issues 
working  group  has  addressed  the  implementation,  and  further  refinement,  of 
cooperation mechanisms within the ECN, such as cooperation on sector inquiries 
and  requests  for  assistance  from  national  competition  authorities  pursuant  to 
Article 22 of Regulation 1/2003. Two working groups were created in the context 
of  the  review  of  the  Commission's  policy  on  horizontal  agreements  and  vertical 
restraints. These working groups are tasked with exploring the case experience of 
enforcers  in  these  fields  and  will  feed  into  the  Commission's  review  of  the 
existing Block Exemption Regulations, and accompanying Guidelines, which are 
due to expire in 2010. 

–  In  addition  to  the  horizontal  working  groups,  the  ECN  also  encompasses  15 
subgroups  that  deal  with  particular  sectors  (e.g.  Banking;  Securities;  Insurance; 
Food; Pharmaceuticals; Professional Services; Healthcare; Environment; Energy; 
Railways;  Motor  Vehicles;  Telecommunications;  Media;  Sports;  Maritime 
transport).  In  these  subgroups,  expert  officials  of  the  national  competition 
authorities and the Directorate General for Competition exchange views and best 
practices. They mainly deal with substantial questions, thus promoting a common 
culture in their sectors. Particularly active subgroups have been the subgroups on 
Energy,  Banking  and  Pharmaceuticals  and  more  recently  the  subgroup  on  Food. 
For  example,  the  Energy  subgroup  group  brought  together  national  competition 
authorities  and  national  regulators  for  high-level  Energy  Days  in  2004,  2005, 

305 
306 

See above, part 5.3.1. 
Case  C-198/01  Consorzio  Industrie  Fiammiferi  (CIF)  and  Autorità  Garante  della  Concorrenza  e  del 
Mercato [2003] ECR I-8055. 

EN 

73 

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the  MasterCard  Decision  and 

2006,  2007  at  which,  inter  alia,  the  energy  sector  inquiry  undertaken  by  the 
Commission  was  discussed.  The  Banking  subgroup  has  engaged  in  detailed 
discussions  on 
its  follow-up,  multilateral 
interchange  fees  ("MIFs")  and  the  Single  European  Payment  Area  ("SEPA").307 
The  work  in  the  ECN  subgroups  has  also  resulted  in  or  contributed  to  some 
sectoral guidance on the application of Articles 81 and 82 EC, e.g. in the area of 
sport308  and  waste  management  systems.309  Moreover,  the  Pharmaceuticals 
subgroup has been closely associated with the sector inquiry into pharmaceuticals. 
The Food subgroup became very active in 2008 in response to the sharp increase 
in  some  food  prices.  Experience  was  shared  on  the  different  actions  taken  by 
enforcers to address this issue (investigations, advocacy and inquiries).  

249. 

This constant dialogue between the network members on all levels over the last years 
has significantly contributed to a coherent approach and coherent application of the 
EC competition rules. The permanent exchange of experiences and views, very often 
in  an  informal  manner,  has  established  confidence  and  trust  between  network 
members,  increased  the  expertise  and  promoted  convergence.  It  has  led  to  the 
creation  of  a  space  to  think  that  allows  fruitful  discussions  in  a  spirit  of  close 
cooperation and with the final objective of promoting a common competition culture 
in  Europe.  This  development  over  the  last  five  years  is  highly  appreciated  by  all 
network  members  and  is  certainly  one  of  the  major  successes  of  the  ECN.  This 
achievement is widely recognised by the legal and business community which calls, 
however, for more transparency about ongoing discussions in the network. 

5.5.2.  Work on individual cases and envisaged decisions 

250. 

251. 

252. 

The  three  main  mechanisms  to  ensure  coherent  application  of  the  EC  competition 
rules provided for by Regulation 1/2003 are the following: (1) the obligation to apply 
Community  law  whenever  there  is  an  effect  on  trade  in  a  manner  that  ensures 
convergence between national and Community law (Article 3(1)); (2) the obligation 
for  national  competition  authorities  to  inform  the  Commission  at  the  latest  30 
calendar  days  before  an  envisaged  decision  is  adopted  (Article  11(4);  (3)  the 
possibility for the Commission to intervene if there is a serious risk of incoherence, 
by  relieving  the  national  competition  authority  of  its  competence  to  act  (Article 
11(6)). 

These  formal  mechanisms  form  the  backbone  of  close  and  extensive  cooperation 
within the ECN. In practice, the extent and intensity of this cooperation surpass by 
far what is strictly legally required. 

Notably, Article 11(4) of Regulation 1/2003 is one of the key instruments to ensure 
consistent  application  of  EC  competition  rules.  Pursuant  to  Article  11(4)  national 
competition  authorities  must  inform  the  Commission  at  least  30  days  prior  to  the 
adoption of a decision requiring that an infringement be brought to an end, accepting 
commitments  or  withdrawing  the  benefit  of  a  block  exemption  regulation.  The 

307 
308 

309 

See above, part 2.2.2. 
Annex  I  to  the  Commission  White  Paper  on  Sport  of  11  July  2007:  sport  and  EU  competition  rules, 
available at http://ec.europa.eu/sport/white-paper/whitepaper112_en.htm. 
The Directorate General for Competition Paper relating to issues of competition in waste management 
systems, available at http://ec.europa.eu/competition/antitrust/others/waste.pdf. 

EN 

74 

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253. 

254. 

255. 

256. 

257. 

information  supplied  to  the  Commission  may  be  shared  with  the  other  network 
members  in  order  to  improve  horizontal  cooperation  and  to  stimulate  European 
competition policy.  

The  purpose  of  Article  11(4)  is  to  enable  the  Commission  and  the  national 
competition  authorities  to  ensure  that  Articles  81  and  82  EC  are  applied  in  a 
consistent manner within the network. The Commission has the possibility to make 
written observations on cases about which it is informed pursuant to Article 11(4) to 
the national competition authority in question.310 In case of a major divergence, the 
Commission  may  decide  to  initiate  formal  proceedings  in  the  same  case,  thus 
relieving the national competition authority of its competence to deal with this case 
pursuant to Article 11(6).  

This information obligation applies to all types of envisaged decision referred to in 
Article  11(4)  since  the  entry  into  application  of  Regulation  1/2003.  The  national 
competition  authorities  must  submit  the  text  of  the  envisaged  decision  and  a 
summary of the case. Instead of a draft decision, the national competition authorities 
can also submit any other document which indicates the proposed course of action, in 
particular a statement of objections or other documents foreseen by national laws.  

The  Directorate  General  for  Competition  acknowledges  receipt  of  information  on 
envisaged  decisions  pursuant  to  Article  11(4),  permitting  undertakings  to  verify 
compliance with the obligations provided for by Article 11(4) in the proceedings of 
the  national  competition  authority  or,  where  they  deem  it  appropriate,  in  appeal 
proceedings in the Member States.  

So  far,  the  Commission  has  been  informed  of  more  than  300  envisaged  decisions 
submitted  by  the  national  competition  authorities  on  the  basis  of  Article  11(4).  In 
none of these cases, proceedings have been initiated by the Commission pursuant to 
Article  11(6)  with  a  view  to  relieving  a  national  competition  authority  from  its 
competence for reasons of coherent application.  

The Directorate General for Competition has developed a practice over the last years 
of submitting observations to  the national  competition authorities  in many  cases.311 
These observations have been provided mostly in an oral form but also in writing.312 
These observations have been multi-faceted. They have covered minor comments or 
were  related  to  particular  aspects  of  the  envisaged  decisions  in  order  to  promote  a 
uniform  approach  on  these  aspects  concerned  (e.g.  product  market  definition); 
coordination  with  on-going  Commission  cases;  or  to  case-law  of  the  Community 
Courts. It should however be underlined that these observations did not contain any 
new  evidence  of  any  other  information  that  would  be  exculpatory  or  incriminating 
for the parties of the proceedings. 

310 

311 

312 

The  Commission  Notice  on  cooperation  within  the  Network  of  Competition  Authorities,  OJ  C  101, 
27.04.2004, p.43, para 46. 
See  further  part  5.6  on  the  confidentiality  of  communications  between  the  Commission  and  national 
competition authorities. 
In about 10% of the cases the observations of the Directorate General for Competition are provided in 
writing.  

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258. 

259. 

260. 

It  should  be  underlined  that  any  observations  from  the  Commission's  Directorate 
General  for  Competition313  to  national  competition  authorities,  can  only  attempt  to 
draw  their  attention  to  certain  issues  and  point  out  matters  that  they  may  want  to 
consider. It is for the Member States' competition authorities to take account of these 
observations  as  they  consider  appropriate.  Every  case  is  investigated  and  decided 
under the full and sole responsibility of the authority dealing with the case. However, 
the Commission has a special responsibility to ensure that the rules are applied in a 
coherent and uniform manner. If there is a risk of incoherence, the Commission shall 
take the necessary steps to avoid such an outcome. 

These  observations  are  normally  taken  very  seriously  and  are  carefully  reflected 
upon by the national competition authorities. According to their views expressed in 
the context of the preparation of this report, the national competition authorities did 
not  take  into  account  the  observations  of  the  Commission  in  only  a  few  cases, 
normally due to specific circumstances of the case.314 

Overall,  it  clearly  results  from  the  feedback  received  by  the  Commission  in  the 
context  of  the  consultation  for  this  Report  that  the  mechanisms  provided  for  by 
Article  11  of  Regulation  1/2003  function  very  well  and  have  led  to  the  largely 
coherent and consistent application of EC competition rules in the ECN over the last 
five  years.  The  concerns  related  to  a  major  risk  of  incoherent  and  inconsistent 
application of EC competition law in a decentralised system that have been raised at 
the  time  of  the  adoption  of  the  modernisation  package  have  certainly  not  been 
realised. Only in respect of few individual cases have inconsistencies been alleged by 
stakeholders.  

261. 

Nevertheless,  from  stakeholders’  side  there  is  a  certain  call  on  the  Commission  to 
explore further means to promote consistency within the network, such as a further 
strengthening of the mechanisms provided for in Article 11 (e.g. consultation instead 
of  information,  more  systematic  follow-up  of  observations  and  check  of  final 
decisions or appeal procedure to the Commission). 

5.5.3.  Article 11(6) 

262. 

Article 11(6) of Regulation 1/2003 gives the Commission the possibility to intervene 
if  there  is  a  serious  risk  of  incoherence.  The  initiation  by  the  Commission  of 
proceedings  relieves  the  national  competition  authorities  of  their  competence  to 
apply Articles 81 and 82 EC. In substance, Article 11(6) has taken over Article 9(3) 
of  Regulation  17,  although  its  wording  has  changed.  However,  contrary  to 
Regulation  17,  the  Commission  is  now  obliged  to  consult  the  national  competition 
authority already dealing with a case before initiating proceedings.  

263. 

Article  11(6)  has  gained  a  new  role  in  Regulation  1/2003  insofar  as  it  gives  the 
Commission  the  possibility,  in  principle,  to  take  up  any  case  from  a  national 
competition  authority,  even  at  a  very  late  stage  and  after  the  submission  of  a  draft 
decision, with a view to ensure coherent application. This scenario of a possible use 

313 

314 

Observations submitted by the Directorate General for Competition within this context only reflect the 
views  of  the  services  and  cannot  be  regarded  as  stating  an  official  position  of  the  European 
Commission. 
E.g. specific market knowledge. 

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264. 

of Article 11(6) has to be distinguished from the regular use of Article 11(6) by the 
Commission to open proceedings in a case that the Commission intends to deal with. 

The actual initiation of proceedings by the Commission with a view to 'correct' the 
approach  taken  by  a  Member  State  competition  authority  in  an  envisaged  decision 
should be reserved to the severest problems of coherent application where they arise 
in a case that presents sufficient Community interest for the Commission to conduct 
its own procedure in the matter.315 The Network Notice provides guidance as to the 
circumstances in which this may be envisaged.316 Until now, the Commission has not 
seen the necessity of taking this step. As mentioned above, this may be attributed to 
various factors including notably the commitment of national competition authorities 
towards  coherent  application,  extensive  horizontal  exchanges  in  the  ECN  including 
in  dedicated  sectoral  subgroups,  as  well  as  informal  exchanges  between  the 
Commission  services  and  the  national  competition  authorities  in  the  context  of  the 
Article 11(4) submissions.  

5.6. 

Confidentiality of information 

5.6.1.  The principle of professional secrecy in the network 

265. 

266. 

The  creation  of  the  ECN  was  surrounded  by  concerns  about  safeguarding 
confidential  information  among  a  plurality  of  enforcers.  However,  pursuant  to 
Article 28 of Regulation 1/2003 the Commission and the Member States' competition 
authorities  shall  not  disclose  any  information  which  is  covered  by  the  principle  of 
professional  secrecy.317  Article  28  applies  to  all  network  members  and  thus  sets  a 
common standard which needs to be protected throughout the EU.  

The  standard  of  Article  28  is  inherited  from  Article  20  of  Regulation  17.  In  the 
context of the latter, its main significance for Member States' competition authorities 
related  to  the  documents  that  they  received  from  the  Commission  in  view  of  the 
meeting of the Advisory Committee. This aspect remained unchanged. Under Article 
11(2)  of  Regulation  1/2003,  the  Commission  is  still  obliged  to  provide  Member 
States ' competition authorities with copies of the most important documents that it 
has collected with a view to taking decisions pursuant to Articles 7 to 10 and 29. This 
means that Member States' competition authorities are well aware of, and are used to, 
protecting  case  related  confidential  documents  emanating  from  another  authority. 
The standard of protection that has always been applied to Commission documents is 
now  extended  to  documents  received  from  other  Member  State  competition 
authorities. 

5.6.2.  Confidentiality of exchanges of views in the network 

267. 

The  other  side  of  the  coin  is  preserving  the  common  space  to  think  that  has  been 
fostered  within  the  ECN.  The  ability  to  have  a  free  and  constructive  exchange  of 

315 

316 
317 

See  the  Joint  Statement  of  the  Council  and  the  Commission  on  the  functioning  of  the  Network  of 
Competition  Authorities,  available  at:  http://register.consilium.europa.eu/pdf/en/02/st15/15435-
a1en2.pdf., para 21. 
Network Notice, para 54. 
An exception applies if the disclosure of confidential information is required to prove the infringement 
(point  28(a)  of  the  Network  Notice).  For  the  Commission  the  exception  is  explicitly  confirmed  in 
Article 27(2) of Council Regulation 1/2003 and Article 15(3) of Commission Regulation 773/2004. 

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views  between  the  competition  authorities  within  the  ECN  is  a  key  component  for 
the success of the Network and for the effective enforcement of Articles 81 and 82 
EC.  Experience  has  shown  that  the  authorities  are  ready  to  engage  in  such  fruitful 
discussions, provided that the views they share in that context are kept confidential. 
Granting  access  to  documents  that  have  been  created  solely  for  this  purpose  to 
anyone  outside  the  Network  will  inevitably  have  a  negative  impact  on  the  way  the 
system  functions  today.  For  this  reason  observations  submitted  in  an  Article  11(4) 
procedure are treated as network internal documents.318  

5.7. 

Concluding remark 

268. 

The sharing of knowledge and experience in the network has triggered a very open 
and constructive dialogue with the national competition authorities which fosters the 
coherent application of Articles 81 and 82 EC and thereby contributes to one of the 
central objectives of Regulation 1/2003.  

6. 

INTERACTION WITH NATIONAL COURTS 

6.1. 

Application of Articles 81 and 82 EC by national courts 

269. 

270. 

National courts play a key role in the enforcement of European competition law and, 
since the entry into application of Regulation 1/2003, have the power to apply both 
Articles 81 and 82 EC in full. National courts may be called upon to apply Article 81 
and  82  EC  in  a  variety  of  scenarios:  some  national  courts  have  jurisdiction  for 
lawsuits between  private parties, such as actions  relating  to contracts  or actions for 
damages;  some  national  courts  act  as  public  enforcers  (e.g.  in  Austria,  Finland  and 
Ireland);  and  some  national  courts  act  as  review  courts,  hearing  appeals  which  are 
brought against decisions of the national competition authorities.  

Stakeholders  have  pointed  to  what  they  perceive  as  uneven  enforcement  of  the  EC 
competition rules by national courts. Nevertheless, it is apparent that national courts 
have applied Articles 81 and 82 EC in a variety of sectors and have tackled a range 
of  issues.319  For  example,  national  courts  have  dealt  under  Article  82  EC  with 
exclusionary  behaviour  (refusal  of  access,  rebates,  long-term  supply  agreements, 
refusal  to  deal)  of  former  incumbents  in  liberalising  sectors,  such  as  energy,  postal 
services and telecoms. Exclusionary behaviour was also assessed by national courts 
in  relation  to  e.g.  port  services,  television  advertising  and  ice  cream  freezer 
exclusivity  agreements.  National  courts  have  also  addressed  exploitative  behaviour 
under Article 82 EC, with most cases involving allegations of excessive pricing. In 

318 

319 

Article  27(2) of  Regulation 1/2003  states  that  the  Commission  regards correspondence  between  ECN 
members  as  internal  documents  that  are  not  accessible.  In  addition,  Article  28  of  Regulation  1/2003 
extends  the  principle  of  professional  secrecy  that  applies  to  the  Commission  and  its  services  also  to 
national competition authorities. See in this context also the Judgment of the Stockholm Administrative 
Court of Appeal, no. 7300/05 of 23.05.2006 (Kammarrättens dom den 23 maj 2006 i mål nr 7300-05), 
by which the Court upheld a decision of the Swedish Competition Authority denying a party access to 
the  Directorate  General  for  Competition's  observations  submitted  in  the  context  of  an  Article  11(4) 
procedure. The Court relied on the professional secrecy clause in Article 28 of Regulation 1/2003 and 
found that the public interest of ensuring a continued cooperation and exchange of information between 
national and EU authorities overruled the parties' interest to obtain access.  
For details of the sources of information about national court judgments available to the Commission, 
see part 6.2.3 below. 

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271. 

272. 

273. 

terms of the application of Article 81 EC, as noted  above  many cases  involved the 
application of the Block Exemption Regulations.320 A number of cases also related to 
the setting of minimum fees by professional associations by e.g. lawyers, dentists and 
veterinarians.  

Particular responsibility is incumbent on national courts exercising judicial review of 
decisions  of  national  competition  authorities.  Whereas  the  national  competition 
authorities  and  the  Commission  cooperate  in  the  ECN,  a  similar  degree  of 
cooperation and exchange of ideas cannot be achieved for review courts. They may 
therefore want to consider the available cooperation mechanisms.  

An important way in which national courts contribute to the further development of 
Community  competition  law  is  by  using  the  possibility  to  make  references  for 
preliminary  rulings  under  Article  234  EC.  While  Regulation  1/2003  has  not  so  far 
given rise to a large number of references, certain interesting cases can be cited. 

In 2008, the European Court of Justice ruled on a reference for a preliminary ruling 
from  the  Supreme  Court  of  Ireland  in  relation  to  a  scheme  of  the  Beef  Industry 
Development Society Ltd ("BIDS"), whose members sold approximately 93% of the 
beef sold in Ireland.321 Under this scheme, some beef processors undertook to leave 
the processing industry, decommission their processing plants and respect a two year 
non-compete  clause  in  return  for  compensation  from  the  remaining  members  of 
BIDS.  The  Irish  Competition  Authority  challenged  the  BIDS  scheme  and  made  an 
application to the Irish High Court, but the Irish High Court dismissed its application, 
having  found  that  Article  81(1)  EC  had  not  been  breached.  The  Irish  Competition 
Authority  appealed  this  decision  to  the  Irish  Supreme  Court,  which  referred  to  the 
Court of Justice a question asking whether the BIDS arrangement should regarded as 
being restrictive of competition by object and prohibited under Article 81(1) EC or, 
alternatively,  whether  it  is  necessary,  in  order  to  reach  this  conclusion,  to 
demonstrate  first  that  this  arrangement  had  anti-competitive  effects.  The  Court  of 
Justice, in an important ruling, confirmed that such agreements between competitors 
to restrict capacity or production are restrictions of competition by object within the 
meaning of Article 81(1) EC. 

274. 

Another interesting reference for a preliminary ruling, which relates to the evidence 
which  must  be  adduced  before  national  courts  when  proving  an  infringement  of 
Article 81 EC, is referred to above.322 

275.  Moreover,  in  VEBIC,  the  European  Court  of  Justice  is  asked  to  rule  on  questions 
referred  to  it  by  the  Belgian  review  court  on  the  interpretation  of  Articles  2,  15(3) 
and  35(1)  of  Regulation  1/2003  with  regard  to  the  involvement  of  the  Belgian 
competition authorities in the appeal proceedings.323  

320 
321 

322 
323 

See part 2.2.4 above. 
Case  C-209/07  Competition  Authority  v.  Beef  Industry  Development  Society  Ltd  and  Barry  Brother 
(Carrigmore) Meats Ltd, judgment of 20.11.2008, not yet reported. 
See part 2.3 above. 
Case  C-439/08,  Reference  for  a  preliminary  ruling  from  the  Hof  van  Beroep  te  Brussel  lodged  on  6 
October 2008 – VZW Vlaamse Federatie van Vereniging van Brood-en Banketbakkers, Ijsbereiders en 
Chocoladebewerkers 'VEBIC', the other parties being Raad voor de Mededinging and the Minister van 
Economie, OJ C 313 of 06.12.2008, p. 19. 

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6.2. 

Application of Article 15 of Regulation 1/2003 

276. 

A network involving the national courts similar to the ECN would sit uneasily with 
the independent position of the judiciary. Nevertheless, Regulation 1/2003 provides 
for a number of devices to promote coherency, building on the mutual duty of loyal 
cooperation provided for by Article 10 EC.324 

6.2.1.  Opinions 

277. 

278. 

279. 

280. 

281. 

Under  Article  15(1),  national  courts  can  ask  the  Commission  for  information  or  its 
opinion on questions concerning the application of Articles 81 and 82 EC. As of 31 
March 2009, the Commission has issued opinions on 18 occasions to national courts 
in Belgium (5), Spain (9), Lithuania (1), The Netherlands (1) and Sweden (2).  

The opinions issued to Spanish courts all concerned litigation between service station 
operators and wholesale suppliers of petroleum products. In most cases, the service 
station  operators  were  seeking  a  declaration  of  nullity  of  the  contract  they  have 
concluded with the wholesaler on the grounds that it infringed EC competition law.  

The other opinions issued by the Commission relate to a wide variety of matters. The 
Commission  has  given  opinions  to  Belgian  courts  on:  exclusive  purchasing 
agreements  for  beer  and  non-beer  beverages;  the  application  of  Articles  81  and  82 
EC  to  exhibitions;  the  application  of  Article  82  EC  to  favourable  conditions  and 
rebates granted by collecting societies; the conformity of the general conditions in a 
pilotage contract, including an exoneration of responsibility and an indemnity clause, 
with Article 82 EC; and the applicability of Articles 81 and 82 EC to the exclusion of 
one of the members of a standards setting organisation.  

Two opinions were given to Swedish courts, the first of which concerned the issue of 
whether  a  municipality  can  be  concerned  to  be  as  "undertaking"  under  Articles  81 
and  82  EC  with  a  "legitimate  interest"  to  complain  pursuant  to  Article  7(2)  of 
Regulation  1/2003.  The  second  related  to  the  definition  of  the  relevant  market  in  a 
case where a port was alleged to have abused its dominant position as the provider of 
port services by charging excessive fees to a Danish stated-owned ferry operator.  

In an opinion given to a Dutch national court, the Commission provided guidance on 
whether  quota  allocations  for  mussel  seeds  in  The  Netherlands  which  set  by  an 
association of mussel farmers for its members, fell to be assessed under Articles 81 
and  82  EC  or  whether  it  came  within  the  scope  of  Regulation  26/62  on  the 
application  of  competition  rules  to  agricultural  products.  Finally,  the  Commission 
provided an opinion to a Lithuanian court on whether it was compatible with Article 
86(1) EC, in conjunction with Article 82 EC, for a municipality to carry out a tender 
procedure for the award of an exclusive right to collect waste for 15 years. 

282. 

Some stakeholders have highlighted what they perceive as reluctance on the part of 
some national judges to seek opinions from the Commission under Article 15(1). To 
try to address this issue, the Commission has published examples of opinions given 
to  national  courts  on  the  Directorate  General  for  Competition's  website  so  that 

324 

Further  details  of  this  cooperation  are  set  out  in  the  Notice  on  cooperation  with  courts  of  the  EU 
Member States in the application of Articles 81 and 82 EC, OJ C 101 of 27.04.2004, p.54. 

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national courts can get an idea of what an opinion can provide.325 Guidance is also 
given  on  the  Directorate  General  for  Competition's  website  detailing  what  requests 
for opinions should contain. 

6.2.2. 

"Amicus curiae" observations 

283. 

284. 

Both  the  Commission  and  the  national  competition  authorities  have  the  power  to 
make  observations  in  proceedings  before  national  courts  under  Article  15(3). 
Whereas  the  Commission  has  the  power  to  intervene  pursuant  to  Article  15(3) 
"where the coherent application of Article 81 or Article 82 of the Treaty so requires", 
national competition authorities have broader scope to do so on any "issues relating 
to  the  application"  of  Article  81  or  82  EC.  In  addition,  Article  15  established  a 
minimum  standard  and  certain  national  laws  provide  for  wider  powers  for  national 
competition authorities.326 Indeed, this is a tool which is well used by several national 
competition  authorities.  The  Commission  on  its  part,  has  decided  to  submit  amicus 
observations on two occasions during the reporting period, where it considered that 
there was an imminent threat to the coherent application of the EC competition rules.  

In 2006, the Commission for the first time made use of Article 15(3) by presenting 
written  observations  to  the  Cour  d'appel  de  Paris  in  the  "Garage  Gremeau"  case 
concerning  the  interpretation  of  the  concept  of  quantitative  selective  distribution  in 
Commission  Regulation  No.  1400/2002  (the  "Motor  Vehicle  Block  Exemption 
Regulation").327 The question of whether a car distribution system is selective and if 
so,  whether  the  selection  criteria  are  quantitative  or  qualitative  in  nature,  has 
important  legal  and  practical  implications.  Subject  to  compliance  with  other 
conditions,  distribution  agreements  of  car  suppliers  with  a  market  share  not 
exceeding 30% benefit from the block exemption under Regulation 1400/2002. This 
threshold  rises  to  40%  for  quantitative  selective  distribution  agreements  and 
qualitative  selective  distribution  agreements  benefit  from  the  block  exemption 
irrespective  of  the  market  share  of  the  supplier.  Article  1(1)(f)-(h)  of  the  Motor 
Vehicle  Block  Exemption  Regulation  defines  a  selective  distribution  as  being 
qualitative where the supplier selects distributors according to uniformly applicable 
and non-discriminatory criteria that are only qualitative in nature, are required by the 
nature of the goods (e.g. to preserve its quality and ensure its proper use) and do not 
directly  limit  the  number  of  authorised  distributors.  By  contrast,  in  a  quantitative 
selective distribution system, the supplier uses selection criteria that directly limit the 
number of authorised distributors. 

285. 

The case at issue was brought by Garage Gremeau against DaimlerChrysler France 
which  had  terminated  all  of  its  existing  distribution  contracts  with  a  view  to 
restructuring its distribution system of the basis of quantitative selection, in light of 
Regulation 1400/2002. It refused to conclude a new distribution agreement with its 

325 

326 

327 

This  is  only  done once  the  judgment  in  the  court  case  concerned has been rendered and  is  subject to 
conformity with national procedural rules: http://ec.europa.eu/competition/court/requests.html. 
For example, in Germany, the law goes further than Art. 15(3) of Reg. 1/2003. The national competition 
authority  has  the  power  to  appoint  a  representative  authorised  to  submit  written  statements,  attend 
hearings,  give  evidence  and  address  questions  to  the  parties,  witnesses  and  experts,  (s  90(2)  Gesetz 
gegen Wettbewerbsbeschränkungen (GWB)). 
Commission 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  vehicles  sector,  OJ 
2002 L 203 of 01.08.2002p.30. 

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former  agreed  distributor  Garage  Gremeau  on  the  basis  that  it  would  exceed  the 
number of distributors foreseen as it had appointed another distributor for the area in 
question. Garage Gremeau requested by way of remedy that it should be admitted to 
DaimlerChrysler’s  network.  This  was  refused  at  first  instance  and  on  appeal.  The 
Cour  de  Cassation  subsequently  affirmed 
that 
DaimlerChrysler's criterion of nominating a certain number of authorised distributors 
for different sales territories was objective and precise, but held that the lower court 
should  have  examined  both  the  objectivity  of  its  other  selection  criteria  and  how 
these  were  implemented,  in  particular  because  the  new  authorised  distributor  in 
Burgundy  did  not  fulfil  these  at  the  time  of  its  appointment.  These  judgments 
generated considerable interest in the sector, including in other Member States. 

the  appeal  court's  finding 

The Commission intervened to clarify that quantitative selective distribution systems 
do  not  have  to  fulfil  the  same  requirements  as  those  applicable  for  qualitative 
selective  distribution  systems,  meaning  that  it  is  not  necessary  to  assess  the 
objectivity  of  the  selection  criteria  other  than  those  for  determining  the  number  of 
distributors.  If  that  were  the  case,  the  categories  of  quantitative  and  qualitative 
selective  distribution  would  be  conflated,  contrary  to  Regulation  1400/2002.  With 
regard  to  any  assessment  of  the  implementation  of  the  selection  criteria,  the 
Commission  observed  that  there  does  not  appear  to  be  any  basis  on  Regulation 
1400/2002  for  preventing  a  supplier  from  foreseeing  a  transitional  period  for 
fulfilling its requirements if it considers that a given candidate has the financial and 
technical potential. Otherwise, this would tend to limit access to existing authorised 
distributors  who  have  already  made  the  necessary  investments,  foreclosing  more 
competitive  newcomers.  This  case  is  currently  subject  to  a  stay  of  proceedings. 
Stakeholders have noted that the Commission's intervention was very useful in that it 
could be invoked in similar proceedings before other national courts. 

The  Commission  also  decided  to  make  observations  pursuant  to  Article  15(3)  of 
Regulation 1/2003 in a case in The Netherlands concerning  the tax  deductibility of 
Commission competition fines. In the initial judgment of 22 May 2006 on this issue, 
the Dutch Rechtbank van Haarlem (Court of First Instance in Haarlem, notably in tax 
matters)  ruled  that  fines  imposed  by  the  Commission  for  infringement  of  the  EC 
competition  rules  are  partially  deductible  from  income  tax.  The  court  found  that 
although  Dutch  law  provides  that  administrative  fines  cannot  be  deducted  from 
income tax, fines imposed by the Commission cannot be understood according to the 
national definition of "fine" as, unlike fines imposed under Dutch law, they consist of 
punitive elements and elements intended to skim off illegal gains. 

This  judgment  was  appealed  to  the  Gerechtshof  van  Amsterdam  (Belastingkamer) 
(Court of Appeal of Amsterdam, tax chamber). The Commission moved to intervene 
as amicus curiae to highlight that Community fines for breach of the EC competition 
rules are not intended to skim off illegal gains and that the principle of equivalence 
would be breached if fines imposed under EC competition law could be deducted in 
contrast to fines under national law. Moreover, it would go against the principle of 
effectiveness, as the impact of Commission decisions would necessarily be reduced 
if companies fined for the violation of Articles 81 and 82 EC could (at least partially) 
deduct the amount from national income tax. 

286. 

287. 

288. 

289. 

In an intermediary judgment of 12 September 2007, the Gerechtshof van Amsterdam 
decided to ask for a preliminary ruling to the European Court of Justice under Article 

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234  EC  regarding  the  possibility  for  the  Commission  to  intervene  on  the  basis  of 
Article 15(3) in such national (tax) litigation. The ruling of the Court should provide 
useful clarification regarding the scope of Article 15(3) of Regulation 1/2003.328 

290. 

In  sum,  the  Commission's  role  as  amicus  curiae  pursuant  to  Article  15(3)  of 
Regulation 1/2003 is to intervene in cases that have important policy implications for 
the  application  of  Articles  81  and  82  EC.  Stakeholders  have  called  on  the 
Commission  to  have  greater  recourse  to  this  instrument  and  it  should  be  reflected 
upon how this practice should further develop. 

6.2.3.  Transmission of judgments 

291. 

328 

329 

330 

Article  15(2)  of  Regulation  1/2003  requires  Member  States  to  forward  to  the 
Commission  a  copy  of  any  written  judgment  of  national  courts  deciding  on  the 
application  of  Articles  81  or  82  EC.  These  judgments  must  be  sent  "without  delay 
after the full written judgment is notified to the parties". The Commission publishes a 
database  of  the  judgments  it  receives  from  the  Member  States  pursuant  to  Article 
15(2).  This  database,  although  welcomed  as  potentially  being  a  valuable  source  of 
case practice, is criticised by several stakeholders on the grounds that it is far from 
complete.329  Some  stakeholders  have  provided  suggestions  for  improving  the 
functioning  of  Article  15(2).  For  example,  it  has  been  proposed  that  the  national 
competition  authorities  should  be  given  the  duty  of  assembling  the  relevant 
judgments in their respective territories and transmitting them to the Commission, as 
is currently done in several Member States. It is further proposed that this could be 
combined  with  a  procedural  duty  on  litigants  to  serve  their  initial  pleadings  on  the 
Commission and/or national competition authority concerned, so that the latter could 
be alerted to the litigation at an early stage.330 Overall, options for ensuring a more 

and 

2005 

Annual 

Case C-429/07, Reference for a preliminary ruling from the Gerechtshof Amsterdam (The Netherlands) 
lodged on 22 May 2006 Inspecteur van de Belastingdienst v X BV, OJ C-429/07 of 08.12.2007, p.23 
and the Opinion of Advocate-General Mengozzi of 05.03.2009, not yet reported. 
There are approximately 175 judgments in this database (12 Member States have not sent judgments). 
Numerous stakeholders have highlighted that they are aware of judgments taken by national courts in 
which  Articles  81  or  82  EC  have  been  applied  that  do  not  appear  in  the  database.  The  database  of 
judgments transmitted by the Member States is currently complemented by a compilation of judgments 
handed  down  by  national  courts  from  2006  onwards  which  is  prepared  by  most  national  competition 
authorities  for  their  respective  jurisdictions  and  is  made  available  on  the  Directorate  General  for 
Competition's website at http://ec.europa.eu/competition/elojade/antitrust/nationalcourts/. Parts 3 of the 
2004 
at: 
on 
http://ec.europa.eu/competition/annual_reports/,  also  contain  sections  on  the  application  of  the  EC 
competition rules by national courts. 
This is the practice for instance in the UK where any party whose statement of case raises or deals with 
an issue relating to the application of Articles 81 and 82 EC or the equivalent national provisions must 
serve a copy of the statement of the case on the Office of Fair Trading as the same time as it is served 
on the other parties to the claim. See Practice Direction – Competition Law – Claims Relating to the 
Application of Articles 81 and 82 of the EC Treaty and Chapters I and II of Part 1 of the Competition 
Act 1998, para. 3. The same duty of notification is imposed on appellants. See Practice Direction 52 – 
Appeals, para. 21.10A. By contrast, Hungarian law entrusts courts with this duty as opposed to litigants, 
providing  that  the  court  shall  notify  without  delay  the  European  Commission  and  the  Hungarian 
Competition  Authority  of  lawsuits  before  it  which  are  to  be  assessed  under  Articles  81  and  82  EC 
(Article 91/H of the Hungarian Competition Act). This obligation applies over and above the duty of 
national  courts  to  forward  final  judgments  deciding  on  the  application  of  Articles  81  and  82  to  the 
Hungarian Ministry of Justice. 

Competition 

available 

Reports 

Policy, 

EN 

83 

   EN 

                                                 
efficient and effective way of providing access to national court judgments should be 
contemplated.  

6.2.4.  Training of judges 

292. 

There is a perception among some that national judges may have limited knowledge 
of  Community  law  and/or  have  difficulties  in  accessing  up-to-date  information.331 
Stakeholders  have  also  called  for  national  judges  to  be  more  proactive  in  raising 
potential EC competition law issues.332 Continuous training and education of national 
judges in EC competition law is therefore crucial in order to ensure the effective and 
coherent  application  of  those  rules  and  to  raise  awareness  of  the  mechanisms  for 
cooperation with the Commission which are available. Since 2002, the Commission 
has  co-financed  35  training  projects,  which  have  provided  for  the  training  of 
approximately 3,500 judges by the end of 2007. In 2008, 15 grant agreements were 
concluded for new projects for the training of judges. A call for new proposals was 
also launched in October 2008. 

7. 

INTERFACE WITH THIRD COUNTRY ENFORCEMENT  

293. 

The  Commission  attaches  great  importance  to  fostering  constructive  cooperation 
with  third  country  authorities,  in  particular  as  concerns  infringements  with  an 
international  dimension.  The  effectiveness  of 
is 
interdependent  on  the  effectiveness  of  Commission's  own  investigations  for  the 
enforcement  of  Articles  81  and  82  EC.  During  the  reported  period,  issues  of 
disclosure  of  information  from  the  Commission's  file  in  third  jurisdictions  arose. 
Such issues were encountered in the context of private litigation in third jurisdictions 
and, to a lesser extent, with respect to third country public authorities.  

international  cooperation 

7.1. 

Private litigation in third jurisdictions 

294. 

The Commission is a strong proponent of effective damages actions so that victims 
of infringements of EC competition law can be fully compensated for the harm they 
have  suffered.333  However,  in  certain  circumstances  there  is  a  balance  to  be  struck 
between public enforcement interests in the EU and the interests of private litigants 
in third country jurisdictions. Disclosure of information from the Commission's file 
in  the  context  of  private  litigation  in  third  jurisdictions,  in  particular  of  leniency 
statements  submitted  during  the  investigation,  may  seriously  undermine  the 
effectiveness  of  public  antitrust  enforcement.  The  Commission  has  a  particular 
interest  to  ensure  that  its  investigations  and  the  effectiveness  of  its  enforcement 
programmes334 are not undermined by disclosure.  

331 

332 

333 

334 

See the European Parliament resolution of 9 July 2008 on the role of the national judge in the European 
judicial system, P6_TA(2008)0382. 
Joined cases C-430/93 and C-431/93 van Schijndel [1995] ECR I-4705, paras 13-15, 19 and 22 sets out 
the extent of the duty of national courts to raise binding EC rules, such as the EC competition rules, of 
their own motion. 
See Commission White Paper on Damages Actions for Breach of the EC Antitrust Rules (COM (2008) 
165, 2.4.2008). 
See the Commission Notice on immunity from fines and reduction of fines in cartel cases, OJ C 298, 
08.12.2006, p. 17 ("2006 Leniency Notice"), points 6-7 and 32-35; see also the Commission Notice on 
the  conduct  of  settlement  procedures  in  view  of  the  adoption  of  Decisions  pursuant  to  Article  7  and 

EN 

84 

   EN 

                                                 
295. 

296. 

297. 

298. 

Article  15(4)  of  Regulation  773/2004  provides  that  documents  obtained  through 
access  to  the  file  shall  only  be  used  for  the  purposes  of  judicial  or  administrative 
proceedings for the application of Articles 81 and 82 EC.335 Accordingly, they shall 
not be disclosed for any other purpose.  

The  Commission's  statement  of  objections  and  the  full  confidential  version  of  the 
decision  are  documents  prepared  specifically  for  the  antitrust  proceedings  and 
investigative  measures.336 
contain  confidential 
Therefore, they and the information contained therein shall also be used only for the 
purpose of proceedings concerning the application of Articles 81 and 82 EC.337  

information  received 

through 

The  Commission  has  taken  further  initiatives  to  safeguard  its  administrative  file. 
Specific protection has been given to voluntary statements made in the context of its 
Leniency  Policy338,  in  particular,  the  oral  procedure  was  formally  introduced  for 
leniency  applications.  Equivalent 
settlement 
submissions.339  Access  to  such  statements  is  granted  only  to  the  addressees  of  the 
statement of objections provided they commit not to make any copies by mechanical 
or  electronic  means  of  any  information  contained  therein  and  to  use  information 
obtained from such statements only for the purpose stated in the Commission Notice 
on the rules for access to the Commission file.  

safeguards  are 

foreseen 

for 

Undertakings  which  fail  to  comply  with  the  obligations  set  out  in  the  preceding 
paragraphs  may  face  negative  consequences.  A  breach  of  the  obligation  not  to  use 
information  obtained  through  access  to  file  for  any  other  purpose  during  the 
proceeding by leniency applicants may be regarded as lack of cooperation under the 
Leniency Notice. Pursuant to the Guidelines on the method of setting fines340, refusal 
to cooperate with or obstruction of the Commission in carrying out its investigations 
may  be  considered  as  an  aggravating  circumstance  in  any  Commission  prohibition 
decision.  If  any  such  use  is  made  after  the  Commission  has  already  adopted  a 
prohibition  decision  in  the  proceeding,  the  Commission  may,  in  any  legal 
proceedings  before  the  Community  Courts,  ask  the  Court  to  increase  the  fine  in 
respect  of  the  responsible  undertaking.  The  Access  to  the  Commission  file  Notice 
(paragraph  48),  the  2006  Leniency  Notice  (point  34)  and  the  Settlement  Procedure 

335 

336 

337 

338 

339 
340 

Article 23 of Council Regulation (EC) No 1/2003 in cartel cases, OJ C 167, 2.7.2008, p. 1 (“Settlement 
Procedure Notice”), points 35-40.  
See para 48 of the Commission Notice on the rules for access to the Commission file in cases pursuant 
to  Articles  81  and  82  of  the  EC  Treaty,  Articles  53,  54  and  57  of  the  EEA  Agreement  and  Council 
Regulation (EC) No 139/2004, OJ C 325, 22.12.2005, p. 7 (“Access to the Commission file Notice”); 
see also Article 8 (2) of Regulation 773/2004 concerning complainants. 
The  same  considerations  apply  to  the  disclosure  of  replies  to  statements  of  objections,  requests  for 
information and other documents depending on the individual procedure. 
See  Case  T-353/94  Postbank  v.  Commission  [1996]  ECR  II-921,  para  89  concerning  provisions  on 
professional secrecy which were provided in Regulation 17 and, in particular, statements of objections: 
"[t]hese provisions, even if they prevent undertakings from transmitting such documents to third parties, 
do not in any way prevent their disclosure to the national courts [of Member States for the purpose of 
application of Articles 81 and 82 of the Treaty]" (emphasis added). 
See the 2006 Leniency Notice, points 33-34 and 37. Leniency applicants are also expected to comply 
with  the  obligation  not  to  use  information  obtained  through  access  to  file  for  any  other  purpose  (see 
point 34). 
See the 2006 Leniency Notice, points 32-35 and 6-7 and the Settlement Procedure Notice points 35-40. 
Guidelines  on  the  method  of  setting  fines  imposed  pursuant  to  Article  23(2)(a)  of  Regulation  No 
1/2003, OJ C 210, 1.09.2006, p. 2, para 28. 

EN 

85 

   EN 

                                                                                                                                                         
299. 

300. 

Notice  (point  36)  explicitly  provide  that  should  the  information  be  used  for  a 
different purpose, at any point in time, with the involvement of an outside counsel, 
the  Commission  may  report  the  incident  to  the  bar  of  that  counsel,  with  a  view  to 
disciplinary action. 

The  Commission  has  intervened  through  amicus  curiae  briefs  before  courts  of  the 
US,  where  US  legislation  and  its  application  by  US  courts  allows  discovery  that  is 
exceptionally  broad  and  relatively  uncertain  as  to  its  outcome341,  to  highlight  the 
threat of discovery to its investigative processes. Such briefs were submitted in the 
Vitamins  case342,  and  the  Methionine  litigation.343  The  Directorate  General  for 
Competition has also submitted letters to litigants in a number of proceedings in the 
US  against  the  discoverability  of  information  that  has  been  prepared  solely  for  the 
purpose  of  its  investigation,  either  by  the  parties  or  by  the  Commission  itself, 
including the recent Rubber Chemicals litigation.344  

On 4 April 2006, the Directorate General for Competition made a submission to the 
US Antitrust Modernisation Commission concerning the impact of discovery rules in 
antitrust  civil  damages  actions  in  the  United  States  on  the  Commission's  antitrust 
enforcement.  It  explained  why  it  believes  that  the  disclosure  of  statements  and 
submissions,  especially  corporate  statements,  which  are  specifically  prepared  by 
undertakings within the context of the Commission's antitrust proceedings should not 
be  deemed  discoverable  to  third  parties.  The  disclosure  of  such  information 
submitted  on  a  voluntary  basis  during  the  Commission’s  investigation  could 
seriously  undermine  the  effectiveness  of  the  Commission's  and  other  authorities' 
antitrust enforcement actions. In particular, undertakings which voluntarily cooperate 
with the Commission in revealing cartels cannot be put in a worse position in respect 
of  civil  claims  than  other  cartel  members  which  refuse  cooperation.  The  ordered 
production, or uncertainty in this regard, of submissions that a company has prepared 
and  produced  exclusively  for  the  European  Commission's  antitrust  proceedings  in 
civil  proceedings  for  damages  could  seriously  undermine  the  effectiveness  of  the 
Leniency  Programme  and  jeopardise  the  Commission's  investigation  of  cartels.  In 
contrast,  the  Commission  does  not  have  an  interest  in  generally  protecting  pre-
existing  documents  from  discovery.345  Nevertheless,  when  the  investigation  is 

341 

342 

343 

344 

345 

Rule  26  of  the  Federal  Rules  of  Civil  Procedure.  Although  the  Rules  of  Civil  Procedure  allow  for  a 
range  of  exemptions,  information  prepared  for  the  benefit  of  foreign  enforcement  agencies  is  not 
covered by those exemptions. 
United States District Court of the District of Columbia, in Re. Vitamins Antitrust Litigation – Misc. 
No. 99-197. This case concerned disclosure of corporate statements, where the investigation which was 
still on-going. The defendant, however, did not contest production of its corporate statements and the 
court ordered the production of these documents. 
United States District Court of Northern District of California, In Re: Methionine Antitrust Litigation, 
case No. C-99-3491 CRB MDL no. 1311. The Commission expressed opposition to the production of 
corporate statements. The plaintiff's motion to compel the production of these documents was denied. 
In  Re:  Rubber  Chemicals  Antitrust  Litigation,  Case  No.  C04-1648  MJJ  (BZ).The  plaintiff  requested 
discovery  of  the  documents  provided  by  the  defendant  to  the  Commission  in  the  context  of  the 
Leniency Programme. The defendant submitted to the US Court a letter from the Directorate General 
for  Competition,  which  expressed  opposition  to  discovery  of  those  documents.  The  court  denied 
discovery of the documents requested.  
Documents  that  were  in  the  possession  of  leniency  applicants  before  and  independently  of  any 
submission  to  the  Commission.  The  leniency  programme  and  other  forms  of  voluntary  cooperation 
should not act as a shield for companies seeking to conceal information that would otherwise be subject 
to disclosure/discoverable. 

EN 

86 

   EN 

                                                 
ongoing,  pre-existing  documents  should  be  shielded  from  discovery,  insofar  as  it 
could reveal the Commission's investigative strategy. 

301. 

In  conclusion,  the  Commission  attaches  particular  importance  to  the  protection  of 
information and documents against disclosure in private litigation in third countries 
insofar as this would operate to the detriment of its enforcement tools. It should be 
examined how the legal framework can be clarified and reinforced to further enhance 
existing levels of protection.  

7.2. 

Third country public authorities 

7.2.1.  Enforcement cooperation 

302. 

303. 

304. 

305. 

306. 

346 

347 
348 

349 

The  Commission  enhances  effective  enforcement  of  competition  rules  through 
international  cooperation  with  third  country  authorities.  Such  cooperation  may 
include  sharing  experience,  coordination  of  enforcement  actions  and  exchange  of 
information to facilitate enforcement activities.  

Cooperation  with  third  country  enforcement  authorities  is  agreed  by  bi-lateral  or 
multi-lateral  agreements  or  is  arranged  through  regular  contacts.  The  European 
Union  has  agreements  concerning  competition  matters  with  a  number  of  countries 
and  regions.346  Cooperation  between  the  European  Commission  and  the  EFTA 
Surveillance  Authority  in  antitrust  matters  is  governed  by  the  terms  of  Protocol  23 
concerning the cooperation between surveillance authorities.347  

So-called dedicated cooperation agreements on competition policy were signed with 
the  United  States,  Canada  and  Japan.348  Under  these  agreements,  competition 
authorities exchange non-confidential information and co-ordinate their enforcement 
activities.  Furthermore,  each  side  may  ask  the  other  to  take  enforcement  action 
(positive comity); and each side must take account of the other's significant interests 
when enforcing competition rules (traditional comity).  

Cooperation with competition authorities of other OECD member countries is based 
on the 1995 OECD recommendation.349  

Regulation 1/2003 does not specifically regulate exchange of information with third 
country  enforcement  authorities.  Article  12  of  the  Regulation  is  applicable  only  to 
the exchange of information between the Commission and the Member States for the 
purpose  of  application  of  Article  81  and  82  EC.  Under  the  agreements  with  the 
United  States,  Canada  and  Japan,  the  European  Commission  and  each  respective 
competition  authority  exchange  information.  However,  the  existing  cooperation 
agreements expressly exclude the exchange of protected or confidential information. 

concerning 

competition 

A  list  of  countries  and  regions  with  which  the  European  Union  has  signed  a  bilateral  or  multilateral 
agreement 
at 
http://ec.europa.eu/competition/international/bilateral/.  
See at http://www.efta.int/content/legal-texts/eea/protocols/protocol23.pdf/view.  
1991  EU/US  Competition  Cooperation  Agreement,  OJ  95,  27.4.1995,  p.  47;  Agreement  between  the 
European Communities and the Government of Canada regarding the application of their competition 
laws OJ L 175, 10.7.1999, p. 50; Agreement between the European Community and the Government of 
Japan concerning cooperation on anti-competitive activities, OJ L183, 22.7.2003, p. 12. 
See at http://ec.europa.eu/competition/international/bilateral/oecd_recommendation_1995.pdf.  

available 

matters 

is 

EN 

87 

   EN 

                                                 
307. 

308. 

This means in practice that no information obtained through the formal investigative 
tools can be shared with the other authority without the specific consent ("waivers") 
of the companies involved.350  

International cooperation with third country enforcers may involve cooperating with 
third countries which have a criminal enforcement system for cartels, in which both 
undertakings  and  individuals  can  be  prosecuted.  The  possibility  of  exchanging 
evidence  between  competition  authorities  is  an  essential  element  of  efficient 
cooperation  in  the  enforcement  of  the  competition  rules  in  an  ever  increasing 
globalised  world.  The  Report  on  Cooperation  between  Competition  Agencies  in 
Cartel  Investigations  for  the  ICN  Annual  conference  in  Moscow  states  that  the 
limitations to exchange of information are a major problem for efficient cooperation 
in the fight against international cartels: "Insufficient cooperation between agencies 
may allow some cartels to escape detection completely, if the evidence required for 
their conviction is scattered in different jurisdictions which cannot share it for legal 
reasons." 351 

However, the conclusion of an international cooperation agreement which allows for 
the  exchange  of  evidence  with  enforcers  in  selected  third  countries  with  a  criminal 
enforcement system comes up against the obstacle that inside the EU, Article 12(3), 
last sentence of Regulation 1/2003 prohibits the use of information collected by one 
authority by the receiving authority to impose custodial sanctions, insofar as the law 
of the transmitting authority does not provide for sanctions of a similar kind for the 
infringement  of  Articles  81  or  82  EC.  This  raises  the  difficulty  that  it  would  be 
awkward  for  the  EU  to  go  further  in  terms  of  information  exchange  with  third 
country enforcers than is currently the case for enforcers inside the Union. As noted 
above352,  it  may  be  appropriate  to  reflect  upon  the  limitation  on  authorities  using 
information they received to impose custodial sanctions set out in Article 12(3), last 
sentence  of  Regulation  1/2003  and  to  examine  if  other  options  are  available,  while 
fully preserving parties' rights of defence.  

7.2.2.  Disclosure to third country public authorities 

309. 

310. 

The  Commission  attaches  great  importance  to  fostering  constructive  cooperation 
with  third  country  public  authorities.  The  effectiveness  of  international  cooperation 
is, however, interdependent on the effectiveness of Commission's own investigations 
and  its  Leniency  Programme,  in  particular  as  concerns  infringements  with  an 
international dimension. Disclosure of documents from the Commission's file to third 
country public authorities is therefore subject to certain limitations. 

In  this  context,  the  legal  requirements  set  out  in  section  7.1  above  are  equally 
applicable. These considerations do not, in general, preclude the submission to third 
country public authorities of documents that exist independently of the Commission's 
investigation  and  which  are  in  possession  of  undertakings  independently  of  their 
access to the Commission file or of other information received from the Commission 

350 

351 

352 

See  the  Opinion  of  Advocate  General  Mengozzi  in  case  C-511/06  P  Archer  Daniels  Midland  Co.  v. 
Commission (pending case; the Opinion not yet reported), para. 105.  
Cooperation  between  Competition  Agencies  in  Cartel  Investigations,  Report  to  the  ICN  Annual 
conference, Moscow, May 2007, p. 5. 
See part 5.4.1. 

EN 

88 

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in  the  course  of  proceedings.  Nevertheless,  when  the  Commission  investigation  is 
still  on-going,  protection  from  disclosure  may  be  needed  in  order  to  safeguard  the 
investigation.  

311. 

issue  of  disclosure 

The 
third  country  public  authorities  merits  further 
consideration,  in  particular  in  light  of  deepening  and  enhancing  cooperation  with 
third  country  authorities.  It  should  be  further  examined  in  the  context  of  the 
reflection suggested above.353 

to 

8. 

CONCLUSION 

312. 

313. 

314. 

Regulation  1/2003  has  brought  about  a  landmark  change  in  the  way  the  European 
competition  law  is  enforced.  The  Regulation  has  significantly  improved  the 
Commission's enforcement of Articles 81 and 82 EC. The Commission has been able 
to become more proactive, tackling weaknesses in the competiveness of key sectors 
of  the  economy  in  a  focussed  way.  Moreover  the  Regulation  has  entrusted  the 
Member States’ competition authorities and courts with the role of ensuring that the 
EU competition rules are applied efficiently and effectively, in conjunction with the 
Commission. 

The EC competition rules have to a large extent become the “law of the land” for the 
whole  of  the  EU.  Cooperation  in  the  ECN  has  contributed  towards  ensuring  their 
coherent  application.  The  network  is  an  innovative  model  of  governance  for  the 
implementation  of  Community  law  by  the  Commission  and  Member  State 
authorities. 

In a limited number of areas, the Report which is accompanied by the present Staff 
Working Paper highlights aspects which merit further evaluation, but leaves open the 
question  of  whether  any  amendment  to  the  existing  rules  or  practice  is  required.  It 
will  serve  as  a  basis  for  the  Commission  to  assess,  in  a  further  stage,  whether  it  is 
appropriate to take further policy initiatives. 

353 

See part 7.1. 

EN 

89 

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From 1 May 2004 

ANNEX  

Name 

Date 

Type 

Reference 

Article 7 

2004 

Souris Bleue/Topps 

26.05.2004  AT 

OJ L 353, 13.12.2006, p. 5–6 

(COMP/37.980) 

Clearstream  

(COMP/38.096) 

02.06.2004  AT 

IP/04/705, 02.06.2004 

not yet published 

Architectes belges 

24.06.2004  AT 

OJ L 4, 6.1.2005, p. 10–11 

(COMP/38.549) 

Copper plumbing tubes 

03.09.2004  C 

OJ L 192, 13.7.2006, p. 21–29 

(COMP/38.069) 

Sodium gluconate  

29.09.2004  C 

not yet published 

(COMP/36.756) 

French beer 

(COMP/37.750) 

29.09.2004  C 

OJ L 184, 15.7.2005, p. 57-59 

Spanish Raw Tobacco 

20.10.2004  C 

OJ L 102, 19.4.2007, p. 14 

(COMP/38.238) 

haberdashery 

Hard 
(COMP/38.338) 

(needles) 

26.10.2004  C 

IP/04/1313, 26.10.2004 

MEMO/07/353, 12.09.2007 

not yet published 

GdF/ENI 

26.10.2004  AT 

IP/04/1310, 26.10.2004 

EN 

90 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(COMP/38.662) 

GdF/ENEL 

(COMP/38.662) 

2005 

MCAA 

(COMP/37.773) 

AstraZeneca 

(COMP/37.507) 

PO/Thread 

(COMP/38.337) 

Peugeot SA 

(COMP/37.275) 

not yet published 

26.10.2004  AT 

IP/04/1310, 26.10.2004 

not yet published 

19.01.2005  C 

OJ L 353, 13.12.2006, p. 12–15 

15.06.2005  AT 

OJ L 332, 30.11.2006, p. 24–25 

14.09.2005  C 

OJ C 21, 26.1.2008, p. 10–14 

05.10.2005  AT 

OJ L 173, 27.6.2006, p. 20–24 

Raw Tobacco Italy 

20.10.2005  C 

OJ L 353, 13.12.2006, p. 45–49 

(COMP/38.281) 

Industrial Bags 

(COMP/38.354) 

30.11.2005  C 

OJ L 282, 26.10.2007, p. 41–46 

Rubber Chemicals 

21.12.2005  C 

OJ L 353, 13.12.2006, p. 50–53 

(COMP/38.443) 

2006 

Prokent/Tomra 

(COMP/38.113) 

29.03.2006  AT 

OJ C 219, 28.8.2008, p. 11–15 

Hydrogen Peroxide 

03.05.2006  C 

OJ L 353, 13.12.2006, p. 54–59 

(COMP/38.620) 

EN 

91 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Methacrylates 

(COMP/38.645) 

31.05.2006  C 

OJ L 322, 22.11.2006, p. 20–23 

Bitumen Netherlands 

13.09.2006  C 

OJ L 196, 28.7.2007, p. 40–44 

(COMP/38.456) 

Fittings 

(COMP/38.121) 

20.09.2006  C 

OJ L 283, 27.10.2007, p. 63–68 

Steel beams re-adoption 

08.11.2006  C 

OJ C 235, 13.9.2008, p. 4–6 

(COMP/38.907) 

Butadiene 
Styrene 

Rubber/Emulsion 

29.11.2006  C 

OJ C 7, 12.1.2008, p. 11–14 

(COMP/38.638) 

Alloy Surcharge re-adoption 

20.12.2006  C 

OJ L 182, 12.7.2007, p. 31–32 

(COMP/39.234) 

2007 

Gas insulated switchgear 

24.01.2007  C 

OJ C 5, 10.1.2008, p. 7–10 

(COMP/38.899) 

Elevators and escalators 

21.02.2007  C 

OJ C 75, 26.3.2008, p. 19–24 

(COMP/38.823) 

Netherlands beer market 

18.04.2007  C 

OJ C 122, 20.5.2008, p. 1–3 

(COMP/37.766) 

Telefónica SA 

(COMP/38.784) 

Fasteners 

(COMP/39.168) 

Bitumen Spain 

04.07.2007  AT 

OJ C 83, 2.4.2008, p. 6–9 

19.09.2007  C 

OJ C 47, 26.06.2009, p.8-12. 

03.10.2007  C 

IP/07/1438, 03.10.2007 

EN 

92 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
(COMP/38.710) 

not yet published 

Morgan Stanley Dean Witter 

03.10.2007  AT 

IP/07/1436, 03.10.2007 

(COMP/37.860) 

not yet published 

Groupement Cartes Bancaires 

17.10.2007  AT 

IP/07/1522, 17.10.2007 

(COMP/38.606) 

not yet published 

Professional videotapes 

20.11.2007  C 

OJ C 57, 1.3.2008, p. 10–12 

(COMP/38.432) 

Flat Glass 

(COMP/39.165) 

28.11.2007  C 

OJ C 127, 24.5.2008, p. 9–11 

Chloroprene Rubber 

05.12.2007  C 

OJ C 251, 3.10.2008, p. 11–13 

(COMP/38.629) 

Europay 
(COMP/34.579) 

(Eurocard-MasterCard) 

19.12.2007  AT 

IP/07/1959, 19.12.2007 

not yet published 

2008 

Synthetic Rubber (NBR) 

23.01.2008  C 

IP/08/78, 23.01.2008 

(COMP/38.628) 

not yet published 

International removal services 

11.03.2008  C 

IP/08/415, 11.03.2008 

(COMP/38.543) 

not yet published 

Sodium Chlorate 

11.06.2008  C 

IP/08/917, 11.06.2008 

(COMP/38.695) 

not yet published 

Aluminium Fluoride 

25.06.2008  C 

IP/08/1007, 25.06.2008 

(COMP/39.180) 

CISAC 

(COMP/38.698) 

Candle waxes 

not yet published 

16.07.2008  AT 

OJ C 323, 18.12.2008, p. 12–13 

01.10.2008  C 

IP/08/1434, 01.10.2008 

EN 

93 

   EN 

 
 
 
 
 
 
 
 
 
 
 
(COMP/39.181) 

Bananas 

(COMP/39.188) 

Carglass 

(COMP/39.125) 

2009 

Marine hoses 

(COMP/39.406) 

Article 9 

2005 

Bundesliga 

(COMP/37.214) 

Coca-Cola 

(COMP/39.116) 

2006 

De Beers 

(COMP/38.381) 

FAPL 

(COMP/38.173) 

Repsol 

not yet published 

15.10.2008  C 

IP/08/1509, 15.10.2008 

not yet published 

12.11.2008  C 

IP/08/1685, 12.11.2008 

not yet published  

28.01.2009  C 

IP/09/137, 28.01.2009 

not yet published 

19.01.2005  AT 

OJ L 134, 27.5.2005, p. 46 

22.06.2005  AT 

OJ L 253, 29.9.2005, p. 21 

22.02.2006  AT 

OJ L 205, 27.7.2006, p. 24–25 

22.03.2006  AT 

OJ C 7, 12.1.2008, p. 18 

12.04.2006  AT 

OJ L 176, 30.6.2006, p. 104 

EN 

94 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(COMP/38.348) 

Cannes Agreement 

04.10.2006  AT 

OJ L 296, 15.11.2007, p. 27-28 

(COMP/38.681) 

2007 

DaimlerChrysler 

13.09.2007  AT 

OJ L 317, 5.12.2007, p. 76–78 

(COMP/39.140) 

Fiat 

(COMP/39.141) 

Opel 

(COMP/39.143) 

13.09.2007  AT 

OJ L 332, 18.12.2007, p. 77–79 

13.09.2007  AT 

OJ L 330, 15.12.2007, p. 44–47 

Toyota Motor Europe 

13.09.2007  AT 

OJ L 329, 14.12.2007, p. 52–55 

(COMP/39.142) 

Distrigaz 

(COMP/37.966) 

2008 

11.10.2007  AT 

OJ C 9, 15.1.2008, p. 8 

E.ON German electricity market 

26.11.2008  AT 

OJ C 36, 13.2.2009, p. 8 

(COMP/39.388, COMP/39.389) 

not yet published  

2009 

RWE Gas Foreclosure 

18.03.2009  AT 

OJ C 310, 05.12.2008, p. 23 

(COMP/39.402) 

not yet published 

EN 

95 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Article 23(1) 

E.ON (breach of seals) 

30.01.2008  AT 

OJ C 240, 19.9.2008, p. 6–7 

(COMP/39.326) 

Article 24 

Microsoft (penalty payment) 

10.11.2005  AT(PP)  not yet published 

(COMP/37.792) 

Microsoft (penalty payment) 

12.07.2006  AT(PP)  OJ C 138, 5.6.2008, p. 10–14 

(COMP/37.792) 

Microsoft (penalty payment) 

27.02.2008  AT(PP) 

IP/08/318, 27.02.2008 

(COMP/37.792) 

MEMO/08/125, 27.02.2008 

not yet published 

EN 

96 

   EN