Antitrust manual of procedures : internal DG Competition working documents on procedures for the application of Articles 101 and 102 TFEU, March 2012.
Date: 2012-06-19
Institutions: Directorate-General for Competition
Subjects: European treaties, anti-trust legislation, competition policy, implementing Regulation

Antitrust

Manual of Procedures

Internal  DG Competition working documents 
on procedures for the application  
of Articles 101 and 102 TFEU

March 2012

Competition

Antitrust Manual of Procedures  

Internal DG Competition working documents on procedures for the application of 
Articles 101 and 102 TFEU 

March 2012 

The text is made available on the internet: 
http://ec.europa.eu/competition/antitrust/information_en.html 

ISBN 978-92-79-23360-9 

doi 10.2763/78829 

© European Union, 2012.  

Reproduction is authorised, provided the source is acknowledged.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Notice 

DG  Competition's  Manual  of  Procedures  for  the  application  of  Articles  101  and 
102 TFEU is an internal working tool intended to give practical guidance to staff 
on how to conduct an investigation applying Articles 101 and 102 TFEU. 

The  Antitrust  Manual  of  Procedures  does  not  contain  binding  instructions  for 
staff,  and  the  procedures  set  out  in  it  may  have  to  be  adapted  to  the 
circumstances of the case at hand. It is oriented towards the practical needs of 
case  teams.  The  practical  guidance  given  in  the  Manual  does  not  claim  to  be 
complete or exhaustive and not every question that might arise is dealt with, or 
dealt  with  in  the  same  level  of  detail.  The  content  of  the  Manual  has  not  been 
adopted by the Commission. It is a practical working tool, which evolves through 
updates made on a regular basis to reflect new experience gained in applying the 
competition rules of the Treaty, and the Regulations, notices and other guidance 
adopted thereunder.  

In  case  of  divergences  between  these  rules  and  the  Antitrust  Manual  of 
Procedures,  the  former  apply.  Staff  has  been  instructed  that,  in  case  of  doubt, 
they  should  always  seek  instructions  from  their  hierarchy  regarding  the  precise 
course of action in a particular situation. 

The main chapters of the Antitrust Manual of Procedures are being made public 
in  order  to  provide  greater  transparency  about  the  Commission’s  procedures  in 
applying the competition rules. 

The  fact  that  the  modules  are  in  the  public  domain  does  not  change  their 
character  as  purely  internal  guidance  to  staff.  The  published  modules  therefore 
do  not  create  or  alter  any  rights  or  obligations  arising  under  the  competition 
rules  of  the  Treaty.  Updates  to  the  modules  will  be  made  public  at  regular 
intervals. Developments since this version of the Antitrust Manual of Procedures 
was published (such as new case law) may therefore not yet be reflected. 

Brussels, 2012

 
 
List of Modules 

1.  Decision-making procedures  

2.  Relations with the Hearing Officers 

3.  Cooperation with National Competition Authorities (ECN) 

4.  Cooperation with National Courts 

5.  Cooperation with Competition Authorities in Third Countries 

6.  Requests for information (Article 18 of Reg. 1/2003) 

7.  Sector inquiry (Article 17 of Reg. 1/2003) [under construction] 

8.  Power to take statements (Article 19 of Reg. 1/2003) 

9.  Dealing with Leniency Applications 

10.  Opening of proceedings   

11.  Statement of Objections (SO) 

12.  Access to file and Confidentiality  

13.  Right to be heard (Written phase and Hearing) 

14.  Advisory Committee 

15.  Prohibition decision (Article 7 of Reg. 1/2003) 

16.  Commitment decision (Article 9 of Reg. 1/2003) 

17.  Interim Measures (Article 8 of Reg. 1/2003)  

18.  Finding of Inapplicability (Article 10 of Reg. 1/2003) 

19.  Remedies and Fines (Article 23 of Reg. 1/2003) [under construction] 

20.  Periodic penalty payment (Article 24 of Reg. 1/2003) 

21.  Handling of complaint 

22.  Informal Guidance 

23.  Closure of proceedings 

24.  Administrative closure of the file 

25.  Follow-up of Decisions 

26.  Court Litigation 

27.  Use of languages 

28.  Publication of decisions 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Page 1/19 – Decision-making procedures  

1  Decision-making procedures 

1.  General principles governing decision-making in the 

Commission 

1.1.  Sources 

1.2.  The principle of collegiality and the decision making procedures 

1.2.1.  Decisions of principle: oral or written procedure 
1.2.2.  Measures of management and administration: empowerment, sub-

delegation and direct delegation 
1.2.3.  Measures of pure administration 

1.3.  The involvement of other services 

2. 

Choice of the applicable decision-making procedure in 
antitrust cases 

2.1.  Measures reserved to the College 

2.1.1.  Oral procedure 
2.1.2.  Written procedure 

2.2.  Empowerment of the Competition Commissioner 

2.2.1.  Empowerment of the Competition Commissioner for the application of 

Regulation No 1/2003 

2.2.2.  Empowerments relating to the Leniency Notices 
2.2.3.  Empowerments relating to the co-operation with the United States and 

Canada 

2.2.4.  Ad hoc empowerment 

2.3.  Measures sub-delegated by the Competition Commissioner to the 

Director General 

2.4.  Measures delegated by the Commission to the Hearing Officers 

2.5.  Measures of pure administration (“de pure gestion”) 

3. 

Involvement of other services 

3.1. 

3.2. 

Inter-service consultation prior to the adoption of measures reserved to 
the College 
3.1.1.  Choice of the departments to be consulted 
3.1.2.  Consultation procedure 

Involvement of other Services prior to the adoption of measures under 
the empowerment and sub-delegation procedures 
3.2.1.  Necessary prior approval of the Legal Service 
3.2.2.  Involvement of services other than the Legal Service 

2 

2 

2 
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Antitrust Manual of Procedures 

1.  General principles governing decision-

making in the Commission 

1.1.  Sources 

(1) 

The way in which the Commission operates and takes decisions is set out  

–  in  the  Rules  of  Procedure  of  the  Commission  of  24.2.2010  (C(2010)1200  final)1  (hereinafter 
the  ‘Rules  of  Procedure’);  the  Rules  of  Procedure  set  out  the  various  procedures  for  adopting 
Commission acts, how those decisions are prepared and implemented and how the departments 
supporting the Commission are to be organized.  

–  in  the  Rules  giving  effect  to  the  Rules  of  Procedure  of  the  Commission,  also  adopted  on 
24.2.2010  (C(2010)1200  final)(hereinafter  the  ‘Rules  giving  effect’);  the  Rules  giving  effect 
supplement  the  Rules  of  procedure  and  spell  out  in  detail  how  the  latter  are  to  be  applied  in 
practice. 

(2) 

Explanations  concerning  the  rules  contained  in  those  two  basic  documents,  as  well  as  useful 
information  on  their  application  in  practice  are  accessible  via  the  Manual  of  Operating 
Procedures on the Secretariat General’s intranet site.  

1.2.  The principle of collegiality and the decision 

making procedures 

According to Article 17 (6) of the Treaty on European Union (ex. Art. 217(1) EC) and Article 1 of 
the  Rules  of  Procedure  decision-making  in  the  Commission  is  based  on  the  principle  of 
collegiality.  In  other  words,  as  a  general  rule,  Commission  decisions  must  be  taken 
collectively by all Commissioners and all Commissioners are collectively responsible for those 
decisions.  The  delegation  of  decision-making  powers  to  individual  Commissioners  or  Directors 
General  is  regarded  by  the  Treaty  and  the  Rules  of  Procedure  as  an  exception  and  is  therefore 
subject to limitations. 

Commission decisions are either taken at the Commission’s weekly meeting (‘oral procedure’), by 
written  procedure,  by  empowerment  (which  includes  the  possibility  of  sub-delegation),  or  by 
direct delegation. 

1.2.1.  Decisions of principle: oral or written procedure 

All  decisions  of  principle  involving  a  margin  of  political  discretion  or  appreciation  must  be 
adopted by the College through oral or written procedure. Such decisions of principle cannot be 
delegated to individual Commissioners and even less to the Commission services. 

The oral procedure (Articles 5 to 11 of the Rules of Procedure) reflects best the collegial nature 
of  Commission  decision  making,  since  it  provides  for  an  opportunity  for  discussion  between 
Commissioners.  Commission  acts  are  adopted  during  the  weekly  meeting  (normally  on 

(3) 

(4) 

(5) 

(6) 

1 

OJ L 308, 8.12.2000, p.26, as amended by Commission Decision of 24 February 2010, (2010/138/EC, Euratom), 
OJ L55 of 05.03.2010, p. 60. 

 
                                                 
Page 3/19 – Decision-making procedures  

Wednesday) either without discussion (A point) or following discussion between Commissioners 
(B point). 

(7) 

The written procedure (Article 12 of the Rules of Procedure) aims to relieve the Commissioners 
of the need to debate matters the adoption of which are not controversial and have been discussed 
between the head of Cabinets at preparatory meetings on basis of the submitted documents for 
adoption, approved by the Legal Service and other department directly involved during the inter-
service consultation.  

1.2.2.  Measures of management and administration: 

empowerment, sub-delegation and direct delegation 

(8) 

A  category  of  measures  to  be  distinguished  from  the  decisions  of  principle  are  the  so-called 
measures  of  management  or  administration  (‘mesures  de  gestion  ou  d’administration’).  This 
category of measures includes measures which are  

–  of an investigatory or preparatory nature only, in view of a later final decision to be taken 

by the College, and/or 

–  leave the Commission no or only a limited margin of appreciation or discretion, and/or  

–  are routine matters, whose adoption by the College would entail a disproportionate demand 

on Commissioners’ time. 

(9)  Measures of management or administration can be: 

–  delegated by the College of Commissioners to individual Commissioners who then adopt 
the  measure  under  the  so-called  empowerment  procedure  (‘procédure  d’habilitation’, 
Article  13(1)  of  the  Rules  of  Procedure);  empowerments  are  either  “general”  (a 
Commissioner  is  empowered  to  adopt  a  given  category  of  acts)  or  “ad  hoc”  (a 
Commissioner is empowered to adopt a specific act in a specific case);  

–  sub-delegated, by a so empowered Commissioner to a Director-General or Head of Service 
who then adopts the measures under the sub-delegation procedure (Article 13(3) of the 
Rules of Procedure); or  

–  exceptionally delegated directly by the College to Directors General or  Heads of Service 
(e.g.  Competition  Hearing  Officers)  (direct  delegation,  Article  14  of  the  Rules  of 
Procedure). 

(10) 

It  follows  from  the  principle  of  collegiality  that  before  adopting  a  measure  under  the 
empowerment, sub-delegation or delegation procedure the empowered Commissioner, Director-
General or Head of Service must always determine whether, on grounds of political sensitivity or 
because of its importance the matter must be brought before the full College (point 13/14-3.2 of 
the  joint  Rules  giving  effect  to  Articles  13  and  14  of  the  Rules  of  Procedure).  Moreover,  since 
empowerment  /  sub-delegations  /  delegations  are  exceptions  to  the  general  principle  of 
collegiality, they must be construed narrowly (in principle, there is no “implicit” empowerment or 
empowerment “by analogy”). 

1.2.3.  Measures of pure administration 

(11)  A  third  category  of  measures  are  the  so-called  measures  of  pure  administration  (‘mesures  de 
pure gestion’). Measures of pure administration are routine measures of a technical nature and/or 
with  no  legal  consequences  and  therefore  not  covered  by  the  principle  of  collegiality,  i.e.  they 

Antitrust Manual of Procedures 

neither  constitute  acts  which  are  reserved  for  adoption  by  the  College,  nor  acts  of  management 
and administration open to empowerment and sub-delegation. 

(12)  They can therefore be taken directly by the services of DG Competition according to the internal 

division of tasks without involvement of the Legal Service or other departments. 

1.3.  The involvement of other services  

(13)  Before  draft  measures  are  adopted  by  the  College  under  the  oral  or  written  procedure  those 
draft measures must be submitted to an inter-service consultation of the “departments with a 
legitimate interest in the draft text” (Article 23(3) of the Rules of Procedure).  The purpose of that 
consultation at services level is to prepare the decision of the College of Commissioners.  Where 
one or more services disagree the measure must be adopted under the oral procedure.  Otherwise 
it can be adopted under the written procedure.  

(14)  An inter-service consultation must also take place before an individual Commissioner or Director 
General  adopts  a  draft  measure  under  the  empowerment,  sub-delegation  or  delegation 
procedure. Where a so-called associated service issues a negative opinion in the course of that 
inter-service  consultation,  the  measure  cannot  any  longer  be  adopted  under  the  empowerment, 
sub-delegation or delegation procedure, but must be submitted to the oral procedure (Rules giving 
effect to Article 21, point 6).  The prior agreement of the Legal Service is always required, other 
interested  services  are  generally  only  informed  and  invited  to  provide  comments  within  a  given 
deadline.  In the context of the empowerment, sub-delegation and delegation procedure the inter-
service consultation acts thus as a safeguard for the principle of collegiality.   

(15)  The rules on the involvement of other services are explained in more detail in Section 3 below. 

2.  Choice of the applicable decision-making 

procedure in antitrust cases 

(16)  This section describes the rules governing the choice of the applicable decision-making procedure 
in an antitrust case.  Sub-sections 2.1 to 2.5 explain who decides what and respectively deal with: 
the  powers  reserved  to  the  College;  the  empowerments  granted  to  the  Competition 
Commissioner;  the  powers  sub-delegated  to  the  Director  General  of  DG  COMP;  the  powers 
delegated to the Hearing Officers; the possibility to take measures of pure administration. 

2.1.  Measures reserved to the College 

(17)  All  final  decisions  on  substance  (including  interim  measures)  and/or  decisions  of  principle 
implying  a  wide  margin  of  appreciation  are  reserved  to  the  College.  Those  acts  cannot  be 
delegated.  To these Commission acts belong:  

–  all Commission decisions finding and ordering the termination of an infringement (Article 7 

of Regulation 1/2003); 

–  all Commission decisions ordering and renewing interim measures (Article 8(1)(2) of Regulation 

1/2003); 

–  all Commission decisions making commitments binding (Article 9(1) of Regulation 1/2003), 

–  all Commission decisions finding the inapplicability of Articles 101 or 102 TFUE (Article 10 of 

Regulation 1/2003),  

Page 5/19 – Decision-making procedures  

–  all Commission decisions imposing fines for breaches of procedural or substantive law (Article 
23(1)(2)  of  Regulation  1/2003),  as  well  as  all  related  Commission  decisions  finally  granting 
immunity or reduction of fines or rejecting immunity and leniency applications (1996, 2002 and 
2007 Leniency Notices), 

–  all  Commission  decisions  on  the  final  amount  of  a  periodic  penalty  payment  (Article 

24(2)(sentence 1) of Regulation 1/2003);  

–  all  Commission  decisions  to  withdraw  the  benefit  of  a  block  exemption  regulation  (Article 

29(1) of Regulation 1/2003). 

(18) 

For the time being and until sufficient experience has been gained with the following measures, 
these measures are also reserved for adoption by the College: 

–  the issuing of informal guidance letters (Commission Notice on informal guidance relating to 

novel questions read in conjunction with recital 38 of the preamble of Regulation 1/2003); 

–  the initiation of proceedings in the situation foreseen in Article 11(6) in combination with Article 

11(4) of Regulation 1/2003; 

–  decisions to launch an inquiry  into  a particular sector  of the economy or into a particular 
type of agreements across various sectors (Article 17(1)(sentence 1) of Regulation 1/2003). 

2.1.1.  Oral procedure 

(19) 

If  the  Competition  Commissioner  considers,  after  having  consulted  the  President  of  the 
Commission, that in view of their economic or political importance the measures in issue should 
be debated, the oral procedure is used. 

2.1.2.  Written procedure 

(20)  The  written  procedure  is  generally  used  for  all  measures  which  must  be  adopted  directly  by  the 

College itself, but which do not require a debate in the College. 

(21) 

Prior approval of the Legal Service and agreement of the Directorates-General with a legitimate 
interest in the draft text are required before a written procedure can be launched (Article 12(1) of 
the Rules of Procedure; see also points 12-3.3 and 23.6 of the Rules giving effect to the Rules of 
Procedure).  

2.2.  Empowerment of the Competition 

Commissioner 

(22)  By various Commission decisions, the Competition Commissioner has been empowered to adopt 
a  series  of  acts.  When  adopting  acts  by  empowerment  reference  must  be  made  to  the 
empowerment  decision  which  specifically  refers  to  the  act  to  be  adopted2.  Subsections  2.2.1  to 
2.2.3 describe the various decisions by which powers have been delegated to the Commissioner3. 
Subsection 2.2.4 deals with ad hoc empowerments. 

2  

3  

Since May 2008, all documents are adopted via e-Greffe within the Commission. 

Before  entry  into  force  of  Regulation  1/2003  and  of  the  new  empowerments  the  Commission  decision-making 
procedures  in  the  field  of  antitrust  were  governed  by  a  complex  set  of  empowerment  and  sub-delegation 
decisions  from  1965,  1980,  1990,  1996,  2000  and  2002.  Where  those  empowerment  decisions  concern 
measures to be taken under Regulation 17, they are no longer applicable and only of historical relevance. Some 
of  the  older  empowerment  decisions  concern  however  measures  not  directly  based  on  Regulation  17  and 

                                                 
Antitrust Manual of Procedures 

2.2.1.  Empowerment of the Competition Commissioner for the 

application of Regulation No 1/2003 

2.2.1.1  General 

(23)  On  28  April  2004  the  Commission  adopted  a  decision  with  a  comprehensive  set  of 
empowerments  (PV(2004)  1655,  SEC(2004)  520/2) as extended by  PV(2006) 1763, SEC(2006) 
1368  for  the  Competition  Commissioner  for  the  application  of  Regulation  No  1/2003  and 
implementing Commission Regulation No 773/2004. The introductory explanatory memorandum 
of  the  empowerment  decision  (hereinafter  ‘the  explanatory  memorandum’)  provides  essential 
information  about  the  rationale  and  functioning  of  the  empowerments  and  the  involvement  of 
other services.  

(24)  The Competition Commissioner has been empowered to adopt around 21 different measures (see 

the full list in Article 1 of the decision). 

(25)  Most  of  those  empowerments  concern  measures  for  which  the  Competition  Commissioner 
already held an empowerment under the former Regulation 17 such as for example:  

–  rejection  of  complaint  by  Commission  decision  (Article  7(2)  of  Regulation  1/2003  and 
Article 7(2) of Regulation 773/2004; Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 
and Article 9 of Regulation 773/2004; Article 29(1) of Regulation 1/2003); 

–  Commission  decision  requesting  information  from  undertakings  and  associations  of 

undertakings (Article 18(3) of Regulation 1/2003); 

–  Commission  decision  ordering 

inspections  of  undertakings  and  associations  of 

undertakings (Article 20(4) of Regulation 1/2003);. 

–  determination and issuance of a statement of objections to undertakings or associations of 
undertakings and setting of a time-limit for reply (Article 27(1) of Regulation 1/2003 and 
Article 10(1)(2) of Regulation 773/2004). 

(26)  Other  empowerments  listed  in  Article  1  of  the  decision  concern  measures  which  have  been 

created by the new enforcement system such as for example: 

–  preliminary  assessment  (Article  9(1)  of  Regulation  1/2003)  and  decision  to  reopen 

proceedings after a commitment decision (Article 9(2) of Regulation 1/2003); 

–  opinions for national courts and refusal to supply confidential information (Article 15(1) of 

Regulation 1/2003); 

–  Commission  decision  ordering  inspections  of  other  premises  (Article  21  of  Regulation 

1/2003). 

(27) 

It must be borne in mind that under Article 13(3) of the Rules of Procedure a Commissioner can 
sub-delegate the powers granted to him to a Director-General and Head of Service unless this is 
expressly prohibited in the empowerment decision. The empowerment decision of 28 April 2004 
prohibits  the  sub-delegation  only  as  regards  the  determination  and  issuance  of  a  statement  of 
objections.  By decision of 27 May 2004 the Commissioner for Competition has therefore sub-
delegated a number of the above powers to the Director General of DG COMP (see below).   

continue therefore to apply in parallel with the new empowerments. The empowerment decisions which continue 
to apply in parallel with the new empowerment package are presented in subsections 2.2.2 to 2.2.3.  

                                                                                                                                                                      
Page 7/19 – Decision-making procedures  

(28)  As  a  result  of  those  sub-delegations,  in  fact  only  the  following  measures  listed  in  the 

empowerment decision of 28 April 2004 are directly adopted by the Competition Commissioner: 

–  initiation  of  proceedings  (Article  2(1)  of  Regulation  773/2004  and  Article  11(6)  of 
Regulation 1/2003) except in the situation foreseen in Article 11(4) of Regulation 1/20034; 

–  determination and issuance of a statement of objections to undertakings or associations 
of  undertakings  (Article  27(1)  of  Regulation  1/2003  and  Article  10(1)(2)  of  Regulation 
773/2004);  comment:  this  empowerment  must  be  exercised  in  agreement  with  the 
President of the Commission (see below 2.2.1.2); 

–  preliminary  assessment  in  the  procedure  for  the  adoption  of  a  decision  making 

commitments binding (Article 9(1) of Regulation 1/2003); 

–  publication of a summary of the case and request for comments on commitments (Article 

27(4) of Regulation 1/2003); 

–  Commission  decision  to  re-open  proceedings  after  a  decision  making  commitments 

binding (Article 9(2) of Regulation 1/2003); 

–  Commission decision imposing (provisional) periodic penalty payments for breach of 
substantive  rules  (if  not  yet  imposed  by  a  previous  Commission  decision  ordering 
termination of these breaches, Article 24(1)(a)(b)(c) of Regulation 1/2003) or for breach of 
procedural  rules  (Article  24(1)(e)  of  Regulation  1/2003);  comment:  the  decision  on 
periodic penalty payments in order to compel undertakings to supply complete and correct 
information  requested  by  decision  taken  pursuant  to  Articles  17  or  18(3)  of  Regulation 
1/2003 (Article 24(1)(d) is sub-delegated to the Director General (see below 2.3); 

–  rejection of complaint by Commission decision (Article 7(2) of Regulation 1/2003 and 
Article 7(2) of Regulation 773/2004; Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 
and Article 9 of Regulation 773/2004; Article 29(1) of Regulation 1/2003); 

–  Commission  decision  ordering  inspections  of  other  premises  (Article  21  (1)  of 
Regulation 1/2003) except where the decision must be taken urgently and the Competition 
Commissioner cannot be reached in time; comment: for the latter exceptional cases there 
is a sub-delegation to the Director General (see below 2.3); 

–  Commission  decision  requesting  an  NCA  to  undertake  inspections  (Art. 22(2)  of 

Regulation 1/2003). 

(29)  Under  Article  3  of  the  empowerment  decision  the  above  empowerments  granted  to  the 
Competition  Commissioner  are  also  applicable  where  the  Commission,  on  the  basis  of  the 
provisions  of  Regulations  1/2003  and  773/2004,  applies  Articles  53  and  54  of  the  EEA 
Agreement. 

(30)  All  those  empowerments  must  be  exercised  in  accordance  with  the  general  rules  relating  to  the 
empowerment  procedure.  In  particular,  before  taking  a  decision  the  Commissioner  must 
determine whether on grounds of political sensitivity or because of its importance, the matter 

4  

The  initiation  of  proceedings  in  the  situation  foreseen  in  Article  11(4)  of  Regulation  1/2003,  i.e.  after  a 
competition authority of a Member State has informed the Commission that it will adopt a decision requiring that 
an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption 
situation, should for the time being remain reserved for adoption at the level of the College. Practical experience 
will show whether it is necessary to maintain this exception.  

                                                 
 
Antitrust Manual of Procedures 

should  be  brought  before  the  full  Commission.    If  there  is  any  doubt,  the  President  should  be 
consulted.    The  services  of  DG  Competition  must  draw  the  attention  of  the  Commissioner  to 
those circumstances which might convince the Commissioner to bring the matter before the full 
Commission. 

2.2.1.2  The special case of the statement of objections 

(31)  The empowerment for the determination and issuance of a statement of objections is the only 
empowerment which must be exercised in agreement with the President of the Commission.  The 
explanatory memorandum gives the following explanation for this exceptional mechanism: 

“44.  For the statement of objections the proposed decision foresees a mechanism under which 
the President of the Commission intervenes as guarantor both of the principle of collegiality and 
of the credibility of the Commission as an impartial and objective enforcer of the law, which is 
also fully in line with the newly strengthened role of the President as foreseen in Article 217 EC 
as amended by the Nice Treaty [note: now Art. 17(6) TUE].  

45.  Under that mechanism, which is applied with success in the field of merger control for the 
adoption of decisions under Article 6(1)(c) of the EC Merger Regulation, the empowerment for 
the determination and issuance of a statement of objections can only be exercised in agreement 
with  the  President.    If  one  of  the  other  Commissioners involved has  a serious concern about 
any aspect of the case he may request a meeting with the President and/or the Commissioner 
responsible for Competition. […] 

46. 
It  must  be  borne  in  mind  that  the  statement  of  objections  is  a  preparatory  step  which 
closes the first phase of the investigation and opens the second phase at the end of which the 
Commission  takes  its  final  decision.    It  also  determines  the  outer  limits  of  the  scope  of  that 
second  phase.    In  the  final  decision  the  Commission  can  decide  not  to  maintain  some  of  the 
objections raised in the statement of objections. 

47.  Given  the  purely  preparatory  and  provisional  nature  of  a  statement  of  objections  […]  it 
would not be appropriate to subject its adoption to the prior approval of services other than the 
Legal Service.  If individual departments other than the Legal Service were able to prevent the 
exercise of the empowerment to issue a statement of objections, the scope and content of that 
statement of objections could become the subject of negotiations between a department of the 
Commission responsible for a particular sector and DG Competition.  Such negotiations could 
create  the  impression  that  non  competition  law  considerations  were  able  to  disrupt  a 
preparatory step in a law enforcement procedure which should be governed predominantly by 
considerations of equal treatment and legality.” 

(32)  A footnote referred to at the end of paragraph 45 of the explanatory memorandum states: 

“In  view  of  the  specificities  of  transport  and  given  the  fact  that  an  ongoing  process  of 
liberalisation  and  market  opening  is  being  carried  out,  the  Commission  notes  that  it  remains 
possible for the member of the Commission responsible for Transport to request the President, 
in accordance with the Commission's rules of procedure, that the Commission may examine any 
draft  decision  proposing  a  statement  of  objections  in  transport  antitrust,  if  the  political 
sensitivity or importance of the case would justify such an examination.” 

(33)  Before  adoption  of  the  2004  empowerment  package  DG  TREN  was  the  only  DG,  the  prior 
approval  of  which  was  necessary  in  order  to  adopt  a  statement  of  objections.  The  2004 
empowerment  package  abolished  that  special  right  and  introduced  instead  the  footnote  above.  
That  footnote  does  however  not  add  anything  since  it  merely  reiterates  the  rights  which  the 
Transport  Commissioner  has  in  any  event  under  the  general  Rules  of  Procedure  of  the 
Commission. 

Page 9/19 – Decision-making procedures  

2.2.2.  Empowerments relating to the Leniency Notices 

(34)  There  exist  three  different  Leniency  Notices,  adopted  respectively  in  1996,  2002  and  2006. 
Depending  on  the  transitional  rules  they  contain,  all  of  them  could  still  apply.  As  stated  above 
[point  (17)],  all  final  decisions  on  immunity  or  leniency  applications  (accepting  or  denying  such 
applications) are reserved to the College. On the contrary, for the preliminary steps provided for 
in the 2002 and 2007 Leniency Notices, a set of empowerment decisions has been adopted. 

2.2.2.1  The 2002 Leniency Notice 

(35)  The Competition Commissioner has been granted the following empowerments in relation to the 

application of the 2002 Leniency Notice:  

–  empowerment for informing the undertaking that the nature and content of the evidence 
that  it  proposes  to  disclose  at  a  later  stage  would  fulfil  the  conditions  for  granting 
conditional  immunity  (point  16,  first  sentence  of  the  Leniency  Notice)  (PV(2002)1555, 
SEC(2002)119) or, on  the  contrary, that they do not fulfil the conditions for granting 
conditional immunity (PV(2006) 1733, SEC(2006)187 et /2); 

–  empowerment  to  grant  conditional  immunity  in  writing  to  undertakings  that  fulfil  the 
conditions  laid  down  in  point  15  and  point  16  second  sentence  of  the  leniency  Notice) 
(PV(2002)1555,  SEC(2002)119)  or,  on  the  contrary,  empowerment  to  reject  an 
application for conditional immunity where it is found that the conditions laid down in 
point  15  and  in  the  second  sentence  of  point  16  have  not  been  met  (PV(2006)  1733, 
SEC(2006)187 et /2); 

–  empowerment to inform, not later than the date when the statement of objections is issued, 
undertakings fulfilling the conditions for a reduction in fines in writing of the intention of 
the  Commission  to  reduce  the  amount  of  the  fine  (point  26  of  the  leniency  Notice) 
(PV(2002)1555, SEC(2002)119) or, on the contrary, to reject, no later than the date when 
the  statement of objections is notified, an application for reduction of fines where it is 
found that the conditions laid down in points 21 and 22 of the Leniency Notice have not 
been met (PV(2006) 1733, SEC(2006)187 et /2). 

2.2.2.2  The 2006 Leniency Notice 

(36)  By  decision  of  4  April  2007  (PV(2007)1783,  SEC(2007)439),  the  Commission  empowered  the 
Competition  Commissioner  to  adopt  the  following  decisions  in  relation  to  the  application  of 
the 2006 Leniency Notice: 

–  to inform the companies that the evidence described which they propose to disclose at a 
later  date  is  of  such  a  nature  and  content  that  it  would  meet  the  conditions  to  obtain 
conditional immunity from fines (point 19 of the Commission Notice); 

–  to  reject  an  application  for  conditional  immunity  where  the  evidence  the  undertaking 
proposes  to  disclose  at  a  later  date  is  not  of  such  a  nature  and  content  that  it  meets  the 
requirements  for  conditional  immunity  from  fines  to  be  granted,  and  to  inform  the 
undertaking accordingly in writing (point 19 of the Commission Notice); 

–  to  grant  conditional  immunity  from  fines  in  writing  to  the  undertakings  which  meet  the 

conditions set out in the Notice (points 18 and 19 of the Commission Notice);  

–  to  reject  an  application  for  conditional  immunity  from  fines  where  it  is  found  that  the 
conditions  laid  down  in  the  Notice  have  not  been  met,  and  to  inform  the  undertaking 
accordingly in writing (point 20 of the Commission Notice); 

Antitrust Manual of Procedures 

–  to  inform  in  writing  the  undertakings  which  meet  the  relevant  conditions  of  the 
Commission’s intention to apply a reduction of a fine within a specified band (point 29 of 
the Commission Notice); 

–  to  reject  an  application  for  reduction  of  fines  where  it  is  found  that  the  conditions  laid 
down  in  the  Notice  have  not  been  met,  and  to  inform  the  undertaking  accordingly  in 
writing (point 29 of the Commission Notice). 

2.2.3.  Empowerments relating to the co-operation with the 

United States and Canada 

(37) 

In  the  framework  of  the  cooperation  with  the  United  States  and  Canada,  the  Competition 
Commissioner  is  empowered  to  adopt  the  following  acts:  (a)  requests  to  the  competition 
authorities of the United States and of Canada to investigate anticompetitive practices under 
their national laws and (b) decisions to investigate anticompetitive practices at the request of those 
authorities  (see  Article V  of  the  agreement  with  the  United  States  of  19955,  Article  III  of  the 
second agreement with the United States of 19986 and Article V of the agreement with Canada of 
19997) (PV (2002)1572, SEC(2002) 669). 

2.2.4.  Ad hoc empowerment 

(38)  The empowerments listed in subsections 2.2.1 to 2.2.3 are “general”, in the sense that they apply 
to categories of acts. However, a Commissioner can also be empowered to adopt a specific act in a 
specific case. 

(39) 

Such  "ad  hoc"  empowerments  are  systematically  added  when  adopting  commitment  decisions 
based on Art. 9 of Regulation 1/2003 in order to facilitate the adoption of Commission decisions 
implementing commitments such as the setting or extending of deadlines, approval of a purchaser 
in  case  of  divestiture  or  nomination  of  a  trustee  /  independent  auditor,  for  which  no  general 
empowerment  of  the  Competition  Commissioner  has  yet  been  requested,  due  to  the  novelty  of 
Art. 9 decisions, when the general empowerment decision has been adopted in 2004. See further 
the Chapter on Commitment decision. 

2.3.  Measures sub-delegated by the Competition 
Commissioner to the Director General 

(40)  By decision of 27 May 2004 (PH/2004/769)8 the Competition Commissioner has sub-delegated 
to  the  Director  General  the  following  powers  which  are  granted  to  him  in  the  empowerment 
decision of 28 April 2004: 

–  decision imposing (provisional) periodic penalty payments on undertakings or associations of 
undertakings in order to compel them to supply complete and correct information requested 

5  

6  

7  

8  

Decision 95/145/EC, ECSC of the Council and the Commission of 10 April 1995 concerning the conclusion of the 
Agreement between the European Communities and the Government of the United States of America regarding 
the application of their competition laws (OJ L 95, 27.4.1995, p. 45, corrigendum: OJ L 131, 15.6.1995, p. 38). 

Agreement  between  the  European  Communities  and  the  Government  of  the  United  States  of  America  on  the 
application  of  positive  comity  principles  in  the  enforcement  of  their  competition  laws  (OJ  L  173,  18.6.1998,  p. 
28). 

1999/445/EC,  ECSC:  Council  and  Commission  Decision  of  29  April  1999  concerning  the  conclusion  of  the 
Agreement between the European Communities and the Government of Canada regarding the application of their 
competition laws (OJ L 175, 10.7.1999, p. 49). 

The sub-delegation decision was signed on 27 May 2004 and entered into force on 3 June 2004. 

                                                 
Page 11/19 – Decision-making procedures  

by  decision  taken  pursuant  to  Articles  17  or  18(3)  of  Regulation  1/2003  (Article  24(1)(d)  of 
Regulation 1/2003; comment: The power to impose periodic penalty payments for breaches of 
substantive  rules  (Article  24(1)(a)(b)(c))  and  under  Article  24(1)(e)  are  not  sub-delegated  and 
remain therefore with the Competition Commissioner under the empowerment procedure; 

–  closure  of  proceedings  (Article  2(1)  of  Regulation  773/2004  and  Article  11(6)  of  Regulation 

1/2003); 

–  announcement by the Commission to the complainant that it intends to reject the complaint 

(Article 7(2) of Regulation 1/2003 and Article 7(1) of Regulation 773/2004); 

–  refusal by  the Commission to  send confidential information to national courts (Article 15(1) of 

Regulation 1/2003); 

–  determination  of  the  content  of  an  opinion  to  be  sent  to  a  national  court  (Article  15(1)  of 

Regulation 1/2003); 

–  decision requesting information from undertakings and associations of undertakings  (Article 

18(3) of Regulation 1/2003); 

–  decision ordering inspections of undertakings and associations of undertakings (Article 20(4) of 

Regulation 1/2003); 

–  decision  to  order  inspections  of  premises  other  than  business  premises  (Article  21  of 
Regulation 1/2003) limited to those cases in which the decision must be taken urgently and the 
Competition Commissioner cannot be reached in time; comment:  In normal circumstances the 
decision  to  inspect  premises  other  than  business  premises  must  thus  be  taken  by  the 
Commissioner under the empowerment procedure ; 

–  written commitment by the Commission not to use information which a NCA obtained under a 

national leniency programme. 

(41)  Those  sub-delegations  are  also  applicable  where  the  Commission,  on  the  basis  of  Regulations 

1/2003 and 773/2004, applies Articles 53 and 54 of the EEA agreement. 

(42)  Before  taking  a  decision  the  Director  General  must  always  determine  whether,  on  grounds  of 
political  sensitivity  or  because  of  its  importance  the  matter  must  be  brought  before  the 
Competition Commissioner. 

(43)  Where  the  Director-General  for  Competition  is  prevented  from  exercising  the  sub-delegated 
powers  for  example  during  holidays,  Article  27  of  the  Rules  of  Procedure  of  the  Commission 
applies according to strict rules of seniority. 

2.4.  Measures delegated by the Commission to 

the Hearing Officers 

(44) 

In the framework of the Decision of the President of the European Commission of 13 October 
2011  on  the  function  and  terms  of  reference  of  the  hearing  officer  in  certain  competition 
proceedings9, the Commission has delegated, pursuant to Article 14 of the Commission's Rules of 
Procedure,  to  the  hearing  officer  in  competition  proceedings  and  by  way  of  a  delegation 

9  

OJ, L, 275 of 20.10.2011. 

                                                 
Antitrust Manual of Procedures 

decision of 19 November 201110, powers to adopt on the Commission's behalf and under its 
responsibility  the  following  measures  relating  to  the  implementation  of  Articles  101  and  102 
TFEU, Council Regulation (EC) No 1/2003, Commission Regulation (EC) No 773/2004, Council 
Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of  concentrations  between 
undertakings  and  Commission  Regulation  (EC)  No  802/2004  of  7  April  2004  implementing 
Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

refusal  by  the  Commission  to  hear  third  persons  for  lack  of  a  sufficient  interest  (Article 
27(3)  of  Regulation  (EC)  No  1/2003,  Article  13(1)  of  Regulation  (EC)  No  773/2004, 
Article  18(4)  of  Regulation  (EC)  No  139/2004  and  Article  16(1)  and  (2)  of  Regulation 
(EC) No 802/2004); 

Commission decision refusing a reasoned request by a party that has exercised its right of 
access to the file to obtain access to documents of the file that have not been disclosed by 
the Commission; 

Commission  decision  refusing  a  reasoned  request  by  other  involved  parties  within  the 
meaning  of  Article  11(b)  of  Regulation  (EC)  No  802/2004  claiming  that  they  have  not 
been  sufficiently  informed  of  the  objections  addressed  to  the  notifying  parties  (Article 
13(2) of Regulation (EC) No 802/2004); 

Commission  decision  refusing  a  reasoned  request  by  other  involved  parties  within  the 
meaning of Article 11(b) of Regulation (EC) No 802/2004 who have been informed of the 
objections addressed to the notifying parties to obtain access to documents of the file that 
have  not  been  disclosed  by  the  Commission  (Article  17(2)  of  Regulation  (EC)  No 
802/2004); 

Commission  decision  refusing  a  reasoned  request  by  a  complainant  who  has  been 
informed  by  the  Commission  of  its  intention  to  reject  its  complaint  pursuant  to  Article 
7(1) of Regulation (EC) No 773/2004 to obtain access to documents not disclosed by the 
Commission (Article 8(1) of Regulation (EC) No 773/2004); 

Commission  decision  refusing  a  reasoned  request  by  an  interested  third  person  claiming 
that it has not been sufficiently informed of the nature and subject matter of the procedure 
(Article 13(1) of Regulation (EC) No 773/2004 and Article 16(1) of Regulation (EC) No 
802/2004); 

Commission decision refusing a reasoned request by a complainant, in a case to which the 
settlement  procedure  applies,  claiming  that  it  has  not  been  sufficiently  informed  of  the 
nature and subject matter of the procedure (Article 6(1) of Regulation (EC) No 773/2004); 

Commission decision refusing a reasoned request by a complainant claiming that it has not 
received  a  copy  of  the  non-confidential  version  of  the  statement  of  objections  or 
requesting to obtain information that has not been disclosed to it in the non-confidential 
version of the SO, with the exception of cases to which the settlement procedure applies 
(Article 6(1) of Regulation (EC) No 773/2004); 

Commission decision that information acquired or exchanged pursuant to Regulation (EC) 
No 1/2003 or Regulation (EC) No 139/2004 does not constitute business secrets or other 
confidential information and thus can be communicated to other persons or undertakings 
(Article  28(2)  of  Regulation  (EC)  No  1/2003  and  Article  15(2)  of  Regulation  (EC)  No 

10  

The  current  delegation  of  powers  replaces  the  former  sub-delegation  decision  (PH/2004/770)  of  27 May  2004 
and entered into force on 4 June 2004. 

                                                 
Page 13/19 – Decision-making procedures  

773/2004 and Article 18 of Regulation (EC) No 139/2004 and Article 18(1) of Regulation 
(EC) No 802/2004); 

(j) 

(k) 

Commission  decision  that  information  acquired  pursuant  to  Regulation  (EC)  Regulation 
(EC)  No  1/2003  or  Regulation  (EC)  No  139/2004  may  constitute  business  secrets  or 
other confidential information but that it be communicated where this is necessary with a 
view  to  prove  an  infringement  or  for  other  purposes  of  the  procedure  (Article  27(2)  of 
Regulation  (EC)  No  1/2003  and  Article  15  (3)  of  Regulation  (EC)  No  773/2004  and 
Article  17  and  18  (1)  to  (3)  of  Regulation  (EC)  No  139/2004  and  Article  18(1)  of 
Regulation (EC) No 802/2004);  

Commission  decision  that  information  which  is  in  a  Commission  decision  can  be 
published because there is no legitimate interest with regard to the protection of business 
secrets  in  respect  of  such  information  (Article  30(2)  of  Regulation  (EC)  No  1/2003  and 
Article 20(2) of Regulation (EC) No 139/2004). 

(45) 

For  the  exercise  of  these  delegated  measures,  the  prior  approval  of  the  Legal  Service  is  always 
required in accordance with Article 23(4) of the Rules of Procedure of the Commission. 

2.5.  Measures of pure administration (“de pure 

gestion”) 

(46)  Measures of pure administration are not decisions, submitted to a formal adoption procedure, but 
are  issued  by  the  services  of  DG  COMP  according  to  the  internal  division  of  tasks  without 
involvement of the Legal Service or other departments. 

(47) 

(48) 

In  practice,  measures  of  pure  administration  are  mostly  routine  measures  of  a  technical  nature 
and/or acts having no binding effect. 

It  is  impossible  to  list  all  measures  of  pure  administration  since  every  measure  which  is  not 
reserved to the full Commission or for decision under empowerment falls within that category. 

(49)  The measures of pure administration undertaken by case-handlers are for example: 

–  simple requests for information (Article 18(2) of Regulation 1/2003); 

–  simple inspection based merely on written authorisation by the Director-General (Article 20(2)); 

–  access to file; 

–  publication of the summary of the decision in the OJ (Article 30 of Regulation 1/2003); 

–  extension  of  time-limit  for  written  reply  to  the  statement  of  objections  (Article  9  of  the 
Hearing Officer Terms of Reference); [in any case, is it useful to refer to the HO Mandate; the 
point we are dealing with here is where there is not recourse to the HO] 

–  convening and chairing the Advisory Committee (Article 14(3) of Regulation 1/2003); 

–  determining  the  summary  of  the  case  and  the  preliminary  draft  decision  to  be  sent  to  the 

Advisory Committee (Article 14(3) of Regulation 1/2003);  

–  transmission to National Competition Authorities of the most important documents with 
a view to applying Articles 7 to 10, 29(1) (Articles 11(2) sentences 1 and 2 of Regulation 1/2003); 

Antitrust Manual of Procedures 

–  transmitting information in the Commission’s possession to national courts (Article 15(1) first 

alternative, of Regulation 1/2003). 

3.  Involvement of other services 

(50)  Article 23(1) of the Rules of Procedure foresees that the Commission departments work in close 
co-operation and in coordinated fashion from the outset in the preparation or implementation 
of  Commission  decisions.  Article  23(2)  specifies  that  effective  cooperation  between  all  the 
departments with a legitimate interest in the initiative by virtue of their powers or responsibilities 
or the nature of the subject shall be ensured from the beginning of the preparatory work. 

3.1.  Inter-service consultation prior to the 

adoption of measures reserved to the College  

3.1.1.  Choice of the departments to be consulted  

(51)  Under Article 23(4) of the Rules of Procedure, the Legal Service must always be consulted on 
all  drafts  or  proposals  for  legal  instruments  and  on  all  documents  which  may  have  legal 
implications.  Concretely,  for  DG  COMP,  it  means that  the  Legal  Service  must  be  consulted  on 
every  act  prepared  by  DG  COMP  to  be  adopted  by the College or under the empowerment or 
sub-delegation procedures (see section 2.1 above).  

(52)  Under  Article  23(5)  of  the  Rules  of  Procedure,  the  Sec.  Gen.  must  be  consulted  in  specific 
circumstances.  The  Sec  Gen  must  be  consulted  on  all  initiatives  that  (a)  are  of  political 
importance;  or  (b)  are  part  of  the  Commission’s  annual  work  programme;  or  (c)  concern 
institutional  issues;  or  (d)  are  subject  to  impact  assessment  or  public  consultations.  In  concrete 
terms,  with  regard  to  DG  COMP’s  activities,  the  Sec  Gen  will  only  be  consulted  in  exceptional 
situations, for instance in relation to the preparation of legislative acts or policy statements (draft 
regulations, draft notices, etc). 

(53)  Under  Article  23(2)  of  the  Rules  of  Procedure  other  Directorates  General  with  a  legitimate 
interest in initiative shall also be formally consulted on the drafts of all decisions which will 
be  adopted  by  the  College  either  in  oral  or  written  procedure.  In  practice,  with  regard  to  DG 
COMP’s  activities,  Directorates  General  with  a  legitimate  interest  are  mostly  DGs  ENTR, 
ECFIN11, ENER, MOVE, INFSO, EAC, EMPL, MARKT, AGRI and SANCO. The list of DGs 
obviously depends on the subject matter of the act to be adopted.  

(54)  Under Article 23(6) of the Rules of Procedure, DG BUDG shall be consulted on documents 
which  may  have  implications  for  the  budget  and  finances.  Concretely,  this  means  that  the 
operative part of a prohibition decision with fines should be sent to DG BUDG (see Module on 
Prohibition). 

11  

Pursuant to Article 23(5a) of the Rules of the Commission (amendment C(2011)9000): "The Directorate-General 
responsible for economic and financial affairs must be consulted (for DG COMP by analogy to be understood as 
"prior information" concerning DL and PH adoptions) on all initiatives relating to or having a potential impact on 
growth, competitiveness or economic stability in the European Union or in the euro area.”  

                                                 
 
Page 15/19 – Decision-making procedures  

3.1.2.  Consultation procedure  

(55)  DG COMP must allow the consulted the Legal Service and the Directorate Generals at least 10 
working days to respond - or 15 working days if the main body of the text (minus annexes) is 
longer than 20 pages.  

(56)  Departments unable to reply within the time limit for reasons beyond their control can ask for an 
extension provided they do so before the deadline. Any such requests should remain exceptional 
and must be duly substantiated. 

(57) 

If a department consulted does not respond within the time limit, in legal terms this is taken to 
signify tacit approval (Point 23-4 of the Rules giving effect to the Rules of Procedure).  

(58)  Where the Legal Service or another consulted Directorate General disagrees the proposal cannot 

be adopted under the written procedure, but must be submitted to the oral procedure. 

3.2.  Involvement of other Services prior to the 

adoption of measures under the 
empowerment and sub-delegation 
procedures 

(59)  With  regard  to  measures  adopted  under  the  empowerment  procedure  granted  in  the  field 
Competition, since the first empowerment decision of 1965 other Commission services than the 
Legal Service are only prior informed of and not consulted about certain envisaged measure.   

3.2.1.  Necessary prior approval of the Legal Service 

(60) 

For  the  exercise  of  all  empowerments  and  sub-delegations  the  prior  approval  of  the  Legal 
Service  is  always  necessary  (Article  23(4),  second  paragraph,  of  the  Rules  of  Procedure;  point 
13/14-3.3 of the Rules giving effect to the Rules of Procedure and empowerment decisions in the 
field  of  Competition).  A  formal  inter-service  consultation  of  the  Legal  Service  is  therefore 
required. 

3.2.2. 

Involvement of services other than the Legal Service 

(61)  The extent of the involvement of Services other than the LS depends on the type of acts to be 
adopted.  Each  decision  having  empowered  the  Commissioner  for  Competition  to  adopt  certain 
acts  specifies  the  involvement  of  Services  other  than  the  Legal  Service  (see  in  detail  the 
empowerment decision).  

3.2.2.1 

“Information” of “departments primarily responsible for the 
products, services or policy areas in issue” 

(62) 

Prior  to  the  exercise  of  the  most  important  empowerments  and  sub-delegations  COMP  must 
“inform” the Directorates-General “primarily responsible for the products, services or policy 
areas in issue” and give those DGs the opportunity to state their views.  The exercise of those 
empowerments and sub-delegation is however not subject to their prior approval.  

(1)   Who to inform? 

Antitrust Manual of Procedures 

(63)  Most of the time there will only be one service “primarily responsible” (ENTR, INFSO, MARKT, 
EAG, EMPL, ENER, ECFIN or MOVE). Depending on the characteristics of the case there may 
however  also  be  more  than  one  other  department  involved.  Footnote  14  of  the  explanatory 
memorandum states: 

“Departments  which  have  not  been  informed  and  which  regard  themselves  as  also  primarily 
responsible for the products, services or policy areas in issue in a given case may be informed at 
all times upon making a reasoned request.“ 

(2)   The meaning of “information” 

(64)  The  “information”  procedure  grants  other  DGs  beyond  a  “right  to  know”  a  true  “right  to  be 

heard”.  Where prior information is required 

–  DG Competition must send the draft measure sufficient time prior to its adoption so as to 

give the other department an effective opportunity to state its views; 

–  except  in  duly  justified  circumstances  of  urgency  the  other  department  will    be  given  10 

working days to state its views; 

–  DG  Competition  will  take  the  greatest  possible  account  of  the  opinion  expressed  by  the 

other departments; and 

–  on request by one of the other departments an inter-service meeting will be held in good 

time. 

(3)  Measures for which prior information of other services is obligatory  

(65)  The measures for which the prior information of services other than the LS is obligatory are: 

–  The initiation of proceedings (Article 2(1) of Regulation 773/2004 and Article 11(6) of 
Regulation 1/2003) except in the situation foreseen in Article 11(4) of Regulation 1/2003. 
Comment: In the latter case the decision is taken at the level of the College after normal 
inter-service consultation (see point (18) above). 

–  Determination and issuance of a statement of objections to undertakings or associations 
of  undertakings  (Article  27(1)  of  Regulation  1/2003  and  Article  10(1)(2)  of  Regulation 
773/2004).  Comments:  (a)  As  explained  above  the  Competition  Commissioner  must 
exercise the empowerment for sending the statement of objections in agreement with the 
President of the Commission. (b) Despite the involvement of the President at the College 
level the Secretariat General does not have to be involved at the level of the inter-service 
consultation.  The SG is not a “service responsible for the products, services or policy areas 
in  issue”.  (c)  Since  the  Competition  Commissioner  needs  to  obtain  the  agreement  of  the 
President  it  is  essential  that  prior  to  the  adoption  of  the  statement  of  objection  the 
Commissioner  is  fully  informed  about  any  possible  disagreements  during  the  inter-
service consultation / information. 

–  The  preliminary  assessment  in  the  procedure  for  the  adoption  of  a  decision  making 

commitments binding (Article 9(1) of Regulation 1/2003). 

–  Publication of a summary of the case and request for comments on commitments (Article 

27(4) of Regulation 1/2003). 

 
Page 17/19 – Decision-making procedures  

–  Commission  decision  to  reopen  proceedings  after  a  decision  making  commitments 

binding (Article 9(2) of Regulation 1/2003). 

–  Commission  decision  imposing  (provisional)  periodic  penalty  payments for breach of 
substantive  rules  (if  not  yet  imposed  by  a  previous  Commission  decision  ordering 
termination of these breaches, Article 24(1)(a)(b)(c) of Regulation 1/2003) or for breach of 
procedural rules of Article 24(1)(d)(e) of Regulation 1/2003). Comment: The decision to 
impose periodic penalty payments on undertakings or associations of undertakings in order 
to  compel  them  to  supply  complete  and  correct  information  requested  by  decision 
taken pursuant to Articles 17 or 18(3) of Regulation 1/2003 (Article 24(1)(d) of Regulation 
1/2003  is  sub-delegated  to  the  Director-General  (see  above  2.3).    It  is  the  only  sub-
delegated  measure  prior  to  the  adoption  of  which  services  other  than  the  Legal  Service 
must be “informed”. 

–  Rejection of complaint by Commission decision for insufficient grounds for acting by 
conducting a further investigation ("lack of EU interest"). Comment: on the special 
case of rejections of complaints see below 3.2.2.3. 

(66) 

(67) 

3.2.2.2  Acts for which no prior information of other services is required 

For  a  number  of  measures  to  be  adopted  by  empowerment  or  sub-delegation  no  prior 
information of  other services is foreseen (with the exception of the Legal Service which must 
always be asked for prior approval). 

Such  is  the  case  where  (a)  strict  confidentiality  is  necessary  such  as  in  the  case  of  unannounced 
inspections ordered by decision or the handling of leniency applications12 or (b) the measure is a 
measure of technical case administration in respect of the conduct of the proceedings or in respect 
of the oral hearing, publication of Commission acts in the Official Journal or access to the file. 

(68)  The regime of no information applies to the following measures: 

–  the  closure  of  proceedings  (Article  2(1)  of  Regulation  773/2004  and  Article  11(6)  of 

Regulation 1/2003); 

–  announcement  by  the  Commission  to  the  complainant  that  it  intends  to  reject  his 
complaint (Article 7(2) of Regulation 1/2003 and Article 7(1) of Regulation 773/2004); 

–  rejection  of  complaint  by  Commission  decision  (Article  7(2)  of  Regulation  1/2003  and 
Article 7(2) of Regulation 773/2004;  Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 
and  Article    9  of  Regulation  773/2004;  Article  29(1)  of  Regulation  1/2003)  except  for 
rejections  of  complaints  for  lack  of  Community  interest  which  are  subject  to  the 
normal  prior  information  regime  and  for  rejections  of  complaints  on  substantive 
grounds for which a special involvement regime applies (see below 3.2.2.3); 

–  refusal by the Commission to transmit confidential information (Article 15(1)(alt.1) of 

Regulation 1/2003 and points 23-26 Notice on cooperation with National Courts); 

–  Commission  decision  requesting  information  from  undertakings  and  associations  of 

undertakings (Article 18(3) of Regulation 1/2003); 

–  Commission  decision  ordering  inspections  of  undertakings  and  associations  of 

undertakings (Article 20(4) of Regulation 1/2003); 

12 

See Commission decision of 13.2.2002, PV(2002)1555 adopting document SEC(2002)119 

                                                 
Antitrust Manual of Procedures 

–  Commission  decision  to  order  inspections  of  other  premises  (Article  21(1)  of 

Regulation 1/2003); 

–  Commission  decision  requesting  an  NCA  to  undertake  an  inspection  (Art.  22(2)  of 

Regulation 1/2003); 

–  written commitment by the Commission not to use certain information exchanged in 
the European Competition Network (ECN) for imposing sanctions on a leniency applicant 
or certain other persons (point 41(2) of the Commission Notice on cooperation within the 
network of competition authorities); 

–  The refusal by the Commission to allow the complainant to express his views at the oral 

hearing (Article 7(2) of Regulation 1/2003 and Article 6(2) of Regulation 773/2004); 

–  refusal  by  Commission  to  hear  third  parties  (other  than  addressees  of  a  statement  of 
objections  or  complainants)  for  lack  of  sufficient  interest  (Article  27(3)  of  Regulation 
1/2003 and Article 13(1) of Regulation 773/2004); 

–  refusal  by  Commission  to  invite  third  parties  (other  than  addressees  of  a  statement  of 
objections or complainants) to develop their arguments at the oral hearing (Article 27(3) of 
Regulation 1/2003 and Article 13(2) of Regulation 773/2004); 

(69)  The “no information” regime also applies with regard to the application of the empowerment on 
the application  of  the  2002 and 2007 Leniency Notices. Decisions to grant (or not to grant) 
conditional immunity or acts informing applicants of the Commission’s intent to grant a reduction 
of  fines  (or  to  reject  it)  (see  above  Section  2.2.2)  can  therefore  be  adopted  without  prior 
information of Services other than the LS (the prior approval of which remains necessary). 

(70) 

Finally,  all  decision-making  powers  delegated  to  the  Hearing  Officer  do  not  require  prior 
information of any other service but the LS, the agreement of which is always required. 

3.2.2.3  The special case of rejections of complaints on substantive 

grounds 

(71)  Rejections  of  complaints  on  substantive  grounds  are  rejections  of  complaints  by  which  the 
Commission  considers  after  an  assessment  of  the  known  facts  that  the  conduct  complained  of 
does  not  infringe  Articles  101  or  102  TFEU.  They  are  to  be  distinguished  from  rejections  of 
complaints  on  other  grounds  which  include  rejections  of  complaints  for  lack  of  sufficient  EU 
interest,  for  procedural  reasons  (e.g.  under  Article  13  of  Regulation  1/2003),  or  for  lack  of 
sufficient substantiation by the complainant of the allegations put forward. 

(72) 

For  the  exercise  of  the  empowerment  for  rejections  of  complaints  on  substantive  grounds  the 
empowerment decision foresees exceptionally the need to obtain the prior approval of both the 
Legal  Service  and  the  Commission  departments  responsible  for  the  products,  services  or  policy 
areas in question. 

(73)  This leads to the following complicated involvement regime for rejections of complaints: 

–  for rejections of complaints on substantive grounds the prior approval of the departments 

primarily responsible is necessary (exception to the normal prior information regime); 

–  for  rejections  of  complaints  for  insufficient  grounds  for  acting  by  conducting  a  further 
investigation  ("lack  of  EU  interest")  the  departments  primarily  responsible  must  be 
informed (normal prior information regime, see above 3.2.2.1); 

Page 19/19 – Decision-making procedures  

–  no prior information of services other than the LS is required for rejections of complaints 

on other grounds (see above 3.2.2.2); 

–  for Article 7 letters (announcement by the Commission to the complainant that it intends 
to  reject  his  complaint,  Article  7(2)  of  Regulation  1/2003  and  Article  7(1)  of  Regulation 
773/2004)  no  prior  information  of  services  other  than  the  Legal  Service  is  required  (see 
above). 

 
Page 1/5 – Relations with the Hearing officers 

2  Relations with the Hearing 

officers 

1.  General remarks 

2.  Decision-making powers of the Hearing Officer 

3.  Hearing Officer’s powers to make recommendations 

4. 

Conducting oral hearings 

5. 

The Hearing Officer’s reports 

5.1. 

Interim report and observations 

5.2.  Final report 

2 

3 

4 

4 

4 

4 

5 

 
Antitrust Manual of Procedures 

1.  General remarks 

(1) 

(2) 

(3) 

The  Hearing  Officers  act  independently  from  DG  COMP  and  are  therefore  attached,  for 
administrative purposes, to the Competition Commissioner. Their role and responsibilities are laid 
down in the Hearing Officer's Terms of Reference.1 

The  Hearing  Officers  are  assisted  by  several  advisers  and  a  secretariat.  The  services  of  DG 
Competition  are  to  co-operate  fully  with  them.  The  operational  Directorates  must  keep  the 
Hearing  Officers  informed  about  all  important  procedural  steps.  The  Hearing  Officers  should 
receive copies of all documents relevant to the fulfilment of their functions. They also have access 
to any files relating to competition proceedings.  

The  Hearing  Officers  are  responsible  for  ensuring  the  respect  for  the  effective  exercise  of 
procedural  rights.    They  have  various  functions  and  powers.  First,  they  have  decision  making 
powers as regards certain procedural issues. In the exercise of such powers, they act as a dispute 
resolution  mechanism  over  DG  Competition's  decisions.  This  means  that,  unless  provided 
otherwise  in  the  Terms  of  Reference,  parties  involved  in  the  proceedings  must  first  raise  these 
issues with DG Competition. In case of disagreement, the parties may then refer the issue to the 
Hearing  Officers.    Second,  the  Hearing  Officers  have  the  power  to  make  recommendations  in 
relation  to  certain  procedural  issues.    Third  the  Hearing  Officers  can  report  on  any  procedural 
incidents  in  their  interim  and  final  reports.  They  may  also  submit  observations  on  any  matter 
arising out of any proceedings to the Competition Commissioner at any point in time.  Finally, the 
Hearing Officer are responsible for the organisation and conduct of oral hearings.  

(4) 

The Hearing Officers must be kept informed of developments in the procedure in antitrust, cartel 
and merger cases up to the stage of a final draft decision submitted to the College. This applies 
from the initiation of proceedings in antitrust and merger cases.   

(5) 

This includes the following: 

–  All notes to Legal Service and the Competition Commissioner should be copied to the Hearing 

Officers 

–  In  commitment  cases  (Article  9  Reg  1/2003),  copies  of  preliminary  assessments  should  be 
forwarded and information provided on all major steps in the procedure leading to a draft Article 
9 (commitment) decision 

–  The  Hearing  Officers  need  to  be  fully  informed  of  issues  that  might  have  an  impact  on  the 
procedure and in particular on rights of defence. Letters of fact and/or supplementary statements 
of  objections,  for  example,  have  a  particular  relevance  for  the  Hearing  Officers,  as  do  any 
reorientations of a case. 

–  Information on any material difference between the decision and the SO.   

(6) 

The Hearing Officers should be invited when panels are organized and should receive copy of the 
issue paper and the conclusions of the panel.  

1  

Decision  2011/695/EU  of  the  President  of  the  European  Commission  of  13  October  2011  on  the  function  and 
terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29), which 
replaces Commission Decision of 23.5.2001 on the terms of reference of Hearing Officers in certain competition 
proceedings, OJ L 162, 19.6.2001, p. 21. 

                                                 
Page 3/5 – Relations with the Hearing officers 

(7) 

(8) 

They  should  also  be  invited  to  all  state  of  play  and  triangular  meetings  (as  well  as  the  Legal 
Service).  The agenda of such meetings, when available, should be communicated to the Hearing 
Officers in advance of the meetings.   

Of  particular  importance  are  the  first  state  of  play  meetings  in  settlement  and  commitment 
(Article  9  Reg.  1/2003)  cases.  In  settlement  cases,  the  practice  of  Hearing  Officers  has  been  to 
always  attend  the  first  meeting  to  inform  the  parties  of  the  possibility  to  contact  the  Hearing 
Officer  in  case  there  is  disagreement  with  DG  Competition  over  a  procedural  issue.    In 
commitment cases, paragraph 119 of the Notice on Antitrust Best Practices2 now foresees that a 
state  of  play  meeting  will  be  organized  when  the  parties  engage  with  DG  Competition  in 
discussions about possible commitments.  The Hearing Officer and the Legal Service should be 
invited  to  such  meetings  (generally  the  Hearing  Officer  will  not  attend  in  person,  but  will  be 
represented by one of the advisers).   

2.  Decision-making powers of the Hearing 

Officer 

(9) 

The  Hearing  Officer  has  been  granted  decision-making  powers  with  regards  to  the  following 
issues  (other  than  issues  relating  to  the  oral  hearing,  for  which  reference  is  made  to  section  4 
below) :  

–  in  the  investigation  phase,  decisions  on  extensions  of  time  limits  to  respond  to  a  decision 

requesting information pursuant to Article 18(3) of Reg 1/2003;  

–  in  the  investigation  phase,  decisions  ordering DG Competition to  inform  an undertaking which 

has been the addressee of an investigative measure of its procedural status;  

–  decisions on whether to hear third persons showing sufficient interest;  

–  decisions on the participation of complainants and interested third persons in oral hearings;  

–  decisions on access to file requests by parties to proceedings; 

–  decisions on access to documents and information by complainants and interested third persons, 

where they have a right to such documents and/or information;  

–  decisions on disputes concerning the confidentiality of information which may constitute business 
secrets  or  other  confidential  information  (the  addressees  of  such  HO  decisions  can  appeal  the 
decision before the General Court); and  

–  decisions on extensions of time limits for parties to submit written comments on the statement of 

objections and for complainants and interested third persons to make known their views. 

(10)  Except for decisions under (c) and (d) the undertaking(s) concerned must first raise the issue with 
DG Competition. In case of disagreement, they may then refer the issues to the Hearing Officers.   

(11)  More details on the procedures applying to the decisions listed above are provided in the relevant 

thematic Modules.  

2  

Commission Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 
308, 20.10.2011, p. 6) ("Notice on Antitrust Best Practices") 

                                                 
Antitrust Manual of Procedures 

3.  Hearing Officer’s powers to make 

recommendations 

(12)  The Hearing Officers can make recommendations in relation to two issues.  

(13) 

(14) 

First, under Article 4(2)(a) of the Terms of Reference, the Hearing Officer can be asked to review 
claims concerning the legally privileged nature of documents withheld from DG Competition by 
an  undertaking.    The  undertaking  must  consent  that  the  Hearing  Officer  reviews  the  relevant 
document. After having discussed his or her preliminary assessment with the undertaking and DG 
Competition,  the  Hearing  Officer  may  make  a  recommendation  to  the  Competition 
Commissioner.  

Second,  under  Article  4(2)(b),  the  Hearing  Officer  can  be  asked  by  an  undertaking  to  make  a 
recommendation on whether an addressee of a simple request for information pursuant to Article 
18(2) may refuse to reply to a question by invoking the privilege against self-incrimination.  The 
Hearing Officer may formulate a recommendation in appropriate cases, having regard to the need 
to  avoid  undue  delay  in  the  proceedings,  and  communicate  his  or  her  conclusions  to  DG 
Competition to be taken into account in case of any subsequent Article 18(3) decision. .  

4.  Conducting oral hearings  

(15)  A  core  aspect  of  the  Hearing  Officer's  functions  consists  of  preparing,  organising,  chairing  and 
conducting the oral hearing in antitrust, cartel and merger proceedings. If a party requests in its 
reply to the Statement of objections to be heard orally, the Hearing Officer:  

–  decides when oral hearings take place; 

–  decides on whether or not complainants and third parties are to be heard and invites participants; 

–  takes  all  appropriate  steps  to  ensure  the  full  effectiveness  of  the  hearing;  this  may  include 
consulting  the  case  team  on  the  key  issues  of  a  case,  organising  preparatory  meetings  with  the 
parties together or separately with the case team, asking questions to the parties and the case team 
in advance of the hearing.  

Upon the reasoned request of a party submitted before the hearing, the HO may allow the party to be 
heard separately in a closed session (in camera). 

(16)  Operational units should coordinate their activities closely with the HO’s team and take contact in 

good time, particularly on issues which may have an impact on the planning of hearings. 

(17) 

For more details, see modules on Access to file, Right to be Heard, Statement of Objection and 
Publications. 

5.  The Hearing Officer’s reports 

5.1.  Interim report and observations 

(18)  After the oral hearing, the Hearing Officer reports to the Commissioner on the hearing and the 
conclusions s/he draws with regard to the respect for the effective exercise of procedural rights 
(Article  14(1)  of  the  Terms  of  Reference).  The  report  covers  all  material  procedural  issues, 
including access to the file, confidentiality issues, time limits and the right to be heard. Procedural 
issues that arose in the context of the Commission's exercise of its investigatory powers (e.g., LPP, 

Page 5/5 – Relations with the Hearing officers 

protection against self-incrimination, right to be informed of one's procedural status) will also be 
covered in the report. The report is sent to the case team for comments only on the facts before 
being  sent  to  the  Commissioner,  and  is  copied  to  the  Director-general  and  the  director 
responsible, as well as the Legal Service. 

(19) 

Separately from the interim report, the HO may also submit observations on the further progress 
and impartiality of the proceedings (Article 14(2) of the Terms of Reference). Such observations 
may relate among other things to the need for further reflection on certain aspects of the case, the 
need  for  further  information,  the  withdrawal  of  certain  objections,  the  formulation  of  further 
objections or suggestions for further investigative measures pursuant to Chapter V of Regulation 
1/2003.  

(20)  The case team should  send its  report  on the hearing to  the  Hearing Officer  before  the  Hearing 
Officer sends the interim report to the case team. The case team also should inform the Hearing 
Officer of the time frame they envisage for placing the case on the agenda of the Commissioner to 
discuss the reports on the hearing and the proposed next steps.  

5.2.  Final report 

(21)  The Hearing Officer's final report, produced on the basis of the draft decision submitted to the 
Advisory  Committee,  must  systematically  be  attached  to  the  draft  decision  submitted  to  the 
College so that the latter is fully aware of all relevant information on the course of the competition 
procedure and the respect for the effective exercise of procedural rights.  The Final Report also 
considers whether the final decision deals only with objections in respect of which the parties have 
been  heard.    It  is  therefore  important  for  DG  Competition,  in  the  preparation  of  the  final 
decision, to inform the Hearing Officer of any material change since the statement of objection 
(e.g. modification of the objections, new objection, use of new incriminating evidence, etc.).  

(22)  The final report may be modified in the light of any amendments made to the draft decision prior 
to its adoption.  The Hearing Officer should be kept informed of any change in the decision after 
the Advisory Committee.  

(23) 

In  order  to  enhance  the  transparency  of  the  procedure  the  final  report  must  also  be 
communicated  to  the  addressees  of  the  decision  together  with  the  decision  itself,  and  to  the 
competition  authorities  of  the  Member  States  and  must  be  published  in  the  OJ  and  on  DG 
Competition's Website. Further information is available in the Module on Publications. 

 
Page 1/14 – Cooperation with National Competition Authorities & ECN 

3  Cooperation with National 

Competition Authorities in EU 
and exchange of information in 
ECN 

1. 

Introduction 

2. 

Basic rules in relations with the ECN 

2.1.  Mission of the ECN Unit in Directorate A 

2.2.  Division of responsibilities in NCA cases 

2.2.1.  Introduction 
2.2.2.  Consistency check on the basis of envisaged decision fiche and draft 

envisaged act 

2.2.3.  Monitoring of cases on the basis of closed case fiche 
2.2.4.  Informal contacts 

2.3.  Division of responsibilities in Commission cases 

2.3.1.  Issues of cooperation raised during/by a case dealt with by DG COMP 
2.3.2.  Preparation and submission of ‘fiches’ in the informatics application 
2.3.3.  Division of responsibilities in non-case related cooperation within the ECN 

3. 

Reallocation of a case to an NCA 

4. 

Transmission of information to national authorities 

4.1.  Role of the Authorised Disclosure Officer (“ADO”) 

4.2.  What information is transmitted? 

4.2.1.  Article 11(2) of Regulation 1/2003 
4.2.2.  Article 12 of Regulation 1/2003 
4.2.3.  Specific confidentiality safeguards 
4.2.4.  The reply to a transmission request 

4.3. 

Informing the providers of the information of the transmission 

5.  Opening of proceedings by the Commission to relieve an 

NCA of its competence 

2 

3 

3 

3 
3 

4 
6 
6 

6 
6 
7 
7 

9 

9 

9 

10 
10 
11 
12 
12 

13 

14 

 
Antitrust Manual of Procedures 

1.  Introduction 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

1  

2  

In  the  system  of  Regulation  1/2003,  every  case  handler  becomes  involved  in  contacts  and 
cooperation with Member States’ National Competition Authorities (NCAs). Regular contacts at 
all levels, mutual trust  and solidarity are  of  essence in the successful operation of the  European 
Competition Network (ECN). 

Articles 11 and 12 of Regulation 1/2003 create the basis for the cooperation and the exchange of 
information between the competition authorities interacting in the ECN with a view to efficient 
enforcement  of  Articles  101  and  102  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU).  Article  28  of  this  Regulation  contains the professional  secrecy rule  meant to guarantee 
that  the  confidential  information  exchanged  will  be  used  by  the  Network  members  only  as 
provided by the Regulation. 

The Commission Notice on cooperation within the Network of Competition Authorities1 sets out 
the main rules for cooperation and is obligatory reading for all case-handlers. 

The Network uses an informatics application for recording the most important steps (opening of 
case,  envisaged  decision  and  closure)  in  enforcement  cases  dealt  with  by  all  Network  members, 
including the Commission.2 

This chapter explains the rules regarding the filling in and the follow-up to the information in the 
informatics  application,  including  possible  reallocation  of  cases  and  possible  taking  over  by  the 
Commission of a case dealt with by a NCA. It also describes the work sharing between the ECN 
Unit and the sectoral units. 

This chapter furthermore explains the mechanism for the confidential transmissions of documents 
and information by way of a secure e-mail system operated by the Authorised Disclosure Officer. 
This means that case-handlers are not to make such transmissions themselves. 

It  should  be  pointed  out  that  apart  from  the  case-related  information  exchanges,  there  are  also 
more  general  exchanges  ranging  from  sectoral  policy  issues  to  a  wide  range  of  other  issues. 
Besides  public  enforcement  related  and  horizontal  issues,  information  about  intended  or 
submitted amicus curiae briefs to national courts can be exchanged on a voluntary basis in order not 
to duplicate efforts.  

The  Network  uses  the  Commission’s  CIRCA  platform  for  other  than  case-related  exchanges  of 
information and for discussions.  For access rights, contact the informatics unit or the ECN Unit. 

The  ECN  has  also  opened  its  own  website,  accessible also  to the public via the website of DG 
Competition.  This  is  a  useful  portal  to  information  about  the  Network  and  its  basic  texts  in  all 
available  language  versions,  regularly  updated  figures  on  cases  dealt  with  by  different  Network 
members and to NCA websites with their topical news. 

OJ C 101, 27.04.2004, pages 43-53. 

IT-application developed and centrally administered by the Commission (Unit COMP-R3). 

                                                 
Page 3/14 – Cooperation with National Competition Authorities & ECN 

2.  Basic rules in relations with the ECN 

2.1.  Mission of the ECN Unit in Directorate A 

(10)  The  ECN  unit  gives  guidance  to  case-handlers  on  all  aspects  of  Regulation  1/2003,  of  the 
Commission  implementing  Regulation  No  773/20043  and  of  the  related  instruments,  as  regards 
the functioning of the Network. 

(11) 

In parallel, the mission of  the ECN Unit  comprises the coordination of the DGs relations with 
Member States in the field of antitrust, in particular with regard to the application of the antitrust 
rules  by  national  competition  authorities.  The  ECN  Unit  manages  the  ECN's  general  and 
horizontal  activities.  Apart  from  the  networking  on  horizontal  policy  issues,  this  involves 
coordination  work  with  regard  to  case  allocation,  the  monitoring  and  scrutiny  (in  close 
cooperation with competent sectoral unit) of draft decisions/SOs from NCAs, advising on Article 
11(6)  measures  (the  initiation  of  procedures  to  ensure  coherent  application),  the  provision  of 
informal assistance to NCAs (Help desk function) and the provision of assistance to sectoral units 
in DG Competition on ECN related issues. The ECN unit also ensures consistency across sectors 
in relations with the various Member States throughout the handling of DG Competition’s own 
cases.  It  informs  and  where  necessary  consults  within  DG  COMP  on  issues  of  relevance  that 
come up in these contacts with the ECN. 

2.2.  Division of responsibilities in NCA cases 

2.2.1. 

Introduction 

(12)  Under  the  system  created  by  Regulation  1/2003, national  competition  authorities  are  obliged  to 
apply  Articles  101  and  102  TFEU  when  an  agreement/practice  is  capable  of  affecting  trade 
between  Member  States.  This  requires  and/or  allows  for  contacts  between  all  the  competition 
authorities in the Network at various stages of the respective procedures: 

–  Case allocation discussions may take place at the initial phase of a case. Where re-allocation 
issues  arise,  they  should  be  resolved  swiftly,  normally  within  a  period  of  two  months 
starting  from  the  date  of  the  first  information  sent  to  the  Network.  This  will  require  the 
sectoral units to decide quickly whether or not they want to deal with certain cases (taking 
into account the priority setting mechanisms).  

–  In order to maintain consistency in the application of European competition law, national 
authorities must inform the Commission before adopting certain types of decisions under 
Article 11(4). These “consultations” require an examination within a short deadline of 30 
(calendar) days. 

–  Assistance during the fact finding phase and in particular exchange of information pursuant 

to Article 12. 

(13)  All DG Competition case-handlers have a direct access to the informatics application and its ECN 
case forms (“fiches”): a new case fiche, an envisaged decision fiche and a closed case fiche.  

3  

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 

                                                 
Antitrust Manual of Procedures 

(14)  DG Competition must monitor the fiches submitted to the informatics application, informing the 
Commission  of  a  step  taken  in  national  procedures  applying  Articles  101  and  102  TFEU.  Each 
sectoral  unit  needs  an  ECN  responsible  person,  who  regularly  checks  new  fiches  and,  if 
appropriate, immediately draws the attention of the head of unit to cases of potential relevance to 
the unit (both with a view to avoiding duplication of efforts and ensuring consistency). 

Case allocation monitoring on the basis of new case fiche 

(15)  The  ECN  unit  monitors  the  opening  of  cases  within  the  network  from  a  general  allocation 
perspective. The ECN responsible person of each unit examines regularly all newly opened cases 
relevant to that unit. This monitoring aims at detecting multiple procedures and identifying cases 
where allocation criteria would normally favour action by the Commission. 

(16)  Where more than three Member States have opened a case concerning the same infringement on 
their respective territories, this normally indicates that the Commission would be particularly well 
placed to deal with the case and that it should consider whether the enforcement priorities justify 
its intervention. If more than three authorities have opened investigations, this nevertheless does 
not  mean  that  the  Commission  should  systematically  open  investigations  in  such  cases.  The 
decision whether or not to investigate must be decided on the merits of the case.4 

(17) 

If a sectoral unit considers that the Commission should pursue a case first opened by an NCA, it 
should liaise with the ECN unit. For this type of reallocation from an NCA to the Commission, 
see below section 5. The follow-up of new case fiches may also indicate the possibility to apply 
Article  13  of  Regulation  1/2003  allowing  the  Commission  to  suspend  proceedings  or  reject  a 
complaint. This procedure is explained in the Complaint handling module. 

2.2.2.  Consistency check on the basis of envisaged decision fiche 

and draft envisaged act 

(18) 

In  parallel  to  the  information  received  electronically  via  the  informatics  application,  the 
Commission  will  receive  from  NCAs  draft  documents  by  secure  electronic  mail  or  by  secure 
courier. The envisaged SO/draft decision arrives via encrypted mail at the antitrust registry, which 
decrypts it and uploads it into an internal database; the registry also sends an alert immediately to 
the ECN unit and the competent sectoral unit for follow-up. The registry provides the submitting 
NCA with an acknowledgement of receipt. The deadline set by Article 11(4) starts to run from the 
receipt  of  both  the  "envisaged  decision  fiche"  in  the  informatics  application  and  the  text  of  the 
envisaged decision.  

(19)  Given the very short timeframe within which the Commission has to examine envisaged decisions 
and, if so required, react, the information from NCAs on their SOs/draft decisions is dealt with 
by the ECN Unit as ‘chef de file’, in close cooperation with the operational units, depending on 
the language and economic sector involved. The ECN unit as ‘chef de file’ informs by note the 
competent sectoral unit of the arrival of a new envisaged decision from an NCA and indicates the 
name  of  the  coordinator  in  the  ECN  unit  responsible  for  the  case.  It  also  supplies  an  Excel 
calendar that assists with the planning of the work within the 30 day deadline.   

(20)  The  examination  of  the  draft  envisaged  act  is  done  both  by  the  ECN  Unit  (from  a  horizontal 
coordination perspective) and by the competent sectoral unit(s) (from a sector perspective). The 
first  step  is  to  assess  whether  the  NCA  has  submitted  sufficient  information  for  a  proper 

4  

According to the Network Notice (paragraph 15), the Commission is particularly well placed if the case is closely 
linked  to  other  European  Union  provisions  which  may  be  exclusively  or  more  effectively  applied  by  the 
Commission,  if  the  interest  of  the  European  Union  requires  the  adoption  of  a  Commission  decision  to  develop 
competition policy when a new competition issue arises or to ensure effective enforcement. 

                                                 
Page 5/14 – Cooperation with National Competition Authorities & ECN 

assessment. Where that is not the case, the sectoral unit informs the ECN unit which will take the 
matter up with the NCA concerned and keep the sectoral unit informed.  

(21)  The ultima ratio for the Commission in this context is to initiate proceedings in accordance with 
Art. 11(6) of Regulation 1/2003. The Commission should use its power to initiate proceedings5 as 
a reaction to an envisaged decision received from a NCA only when the conditions in paragraph 
54  of  the  Network  Notice  are  met  (Section  5  below).  If  a  case  raises  very  significant  issues  of 
coherent application, the timing must be observed closely: The 14th calendar day is the latest day 
for deciding within DG Competition on the possible initiation of proceedings under Article 11(6); 
this  is  the  practical  deadline  by  which  DG  Competition  will  have  to  send  a  note  to  the 
Commissioner requesting permission to launch this procedure.  

(22) 

For all cases that do not give rise to a recommendation to initiate proceedings, the examination 
proceeds  during  the  30  day  period  in  the  way  initially  agreed  between  the  ECN  unit  and  the 
sectoral unit, taking account of the time constraints arising due to, for example, absences in both 
services, exceptional requests from NCAs for early reaction, the need to consult the Legal Service 
etc.  In  this  context,  the  dates  indicated  in  the  calendar  prepared  upon  receipt  of  an  envisaged 
decision  serve  as  reminders  of  possibly  needed  actions  to  be  able  to  complete  the  assessment 
within  the  given  time;  they  are  flexible  but  give  an  idea  of  where  the  assessment  should  be  on 
these dates.  

(23)  During  the  examination  of  the  case,  the  ECN  unit  and  the  sectoral  unit  cooperate  as  agreed. 
Where appropriate, the case handlers meet. In general, the sectoral unit sends an e-mail or note 
setting  out  its  position  to  the  ECN  unit  when  it  has  completed  its  examination.  During  the 
process,  DG  Competition  can  ask  for  additional  information  or  clarification  from  the  NCA  in 
question (but not at this stage make observations). Such contacts with the NCA are made either by 
the ECN unit or by the sectoral unit, as agreed in the case at hand. Where appropriate, the ECN 
unit also calls on the policy unit in Directorate A for feedback where cases raise policy issues.   

(24)  When setting up a team for scrutinising an envisaged decision, the ECN unit takes into account 
whether any linguistic help is needed. In cases where neither the coordinator in the ECN unit nor 
the case handler in the sectoral unit speak the language in question, this is done by calling upon a 
colleague from within DG Competition, who masters the language (language correspondent), or if 
this is not possible, by asking for DG Translation’s help.  

(25)  The results of the examination of the case are summarised in a case note that is normally prepared 
by the ECN unit, with the input from the sectoral unit. The case note summarises the contents of 
the  envisaged  decision,  reflects  the  comments  of  the  sectoral  unit  (if  any),  and  sets  out  the 
proposed follow-up.  The case note is addressed to the Legal Service for consultation before any 
observation is communicated to the NCA. The consultation is carried out by the ECN unit. The 
Legal Service has accepted to react within 3 days for notes without comments and oral comments, 
5 days if a written note is proposed to be sent to the NCA. Only after the agreement of the LS is 
received can observations on the substance of the case be addressed to the NCA.   

(26)  The reaction to the NCA will depend on the issues raised by the envisaged decision. When a case 
does not call for comments, the ECN Unit informs the NCA informally that the matter has been 
closed. When minor observations are made, the ECN unit will set up a conference call with the 
NCA, to which the sectoral case handler is invited. The line to be taken is determined by the case 
note  and  the  corresponding  reaction  of  the  Legal  Service.  In  cases  which  call  for  more 
fundamental  observations,  DG  Competition’s  views  can  be  set  out  in  writing  in  a  letter  to  the 
NCA. Any observations are to remain internal to the Network and are not disclosed to the parties.  

5  

The  “initiation  of  proceedings  for  the  adoption  of  a  decision”  must  not  be  confused  with  “commencing  the  first 
formal investigative measure” within the meaning of Article 11(3). 

                                                 
Antitrust Manual of Procedures 

(27) 

(28) 

(29) 

In  all  cases,  it  is  the  final  responsibility  of  the  NCA  how  it  responds  to  observations  from  DG 
Competition.  As  a  rule,  observations  are  left  with  the  NCA  to  consider  unless  the  NCA  itself 
suggest another way of proceeding. In exceptional cases, DG Competition may ask for a further 
follow-up such as the communication of a revised draft, transmission of the decision as finalised 
etc.  

In principle, the handling of envisaged decisions should be completed within the 30 day deadline. 
In  practice,  it  can  happen  that  due  to  the  non-availability  of  the  NCA  case  handler,  telephone 
conferences are scheduled shortly after the 30th day. Exceptionally, it can be agreed with the NCA 
to continue discussions beyond the 30th day if time is available on the part of the NCA. 

Should  the  Commission  decide  to  open  proceedings  itself,  the  case  would  become  the  full 
responsibility of the sectoral unit in accordance with normal DG Competition procedures, as set 
out in the relevant parts of the ManProc. 

(30)  The Commission can also request that a case dealt with by an NCA is discussed in an Advisory 
Committee. The Commission would put the case on the agenda after having informed the NCA 
concerned. This discussion will not lead to a formal opinion. This option will rarely be practicable 
due to the deadlines involved and has not so far been used.   

2.2.3.  Monitoring of cases on the basis of closed case fiche 

(31)  The  monitoring  of  cases  which  NCAs  finally  close  is  done  jointly  by  the  ECN  unit  and  the 

sectoral unit concerned.  

(32) 

For cases closed after the submission of an envisaged decision, particular attention is given to the 
further development (court review) where appropriate.  

2.2.4. 

Informal contacts 

(33) 

Some NCAs consult DG Competition already prior to the formal consultation obligations on their 
cases, e.g. in ECN sector subgroups or bilaterally. The ECN unit should always be kept informed 
about such discussions. If a policy line is to be taken in these informal contacts, the sectoral unit 
should speak to the ECN unit before agreeing with the NCA on that line. Where, in the context 
of informal contacts, the ECN unit obtains information on a given sector or on a particular case, it 
should keep the unit concerned informed. 

2.3.  Division of responsibilities in Commission 

cases 

2.3.1. 

Issues of cooperation raised during/by a case dealt with 
by DG COMP 

(34)  The  Commission  has  undertaken  to  inform  the  other  Network  members  on  the  important 
procedural steps in its cases by means of submitting new case ‘fiches’, envisaged decision ‘fiches’ 
(at the stage when the draft decision is sent to the Advisory Committee via encrypted mail) and 
closed case ‘fiches’. Case teams are responsible for ensuring that these fiches are completed and 
submitted in the informatics application. 

(35)  When a case dealt with by a sectoral unit raises an important issue of cooperation with the NCAs, 
the  ECN  Unit  should  be  consulted  so  as  to  maintain  consistency  across  sectors  in  the 
relationships  with  the  various  NCAs.  This  consistency  should  exist  throughout  the  handling  of 
cases by DG Competition and encompasses, for example 

Page 7/14 – Cooperation with National Competition Authorities & ECN 

–  legal  issues  with  respect  to  assistance  during  inspections  and  other  general  questions 

concerning investigative powers; 

–  issues concerning information exchanges; 

–  discussions,  in  the  context  of  an  individual  case,  on  important  general/policy  issues  or  on 

matters relating to the Advisory Committee. 

2.3.2.  Preparation and submission of ‘fiches’ in the informatics 

application 

(36)  New case fiche. New ex officio cases opened should be reported before or without delay after 
commencing  the  first  formal  investigative  measure.  Articles  18  to  21  of  the  Regulation  describe 
the  Commission’s  investigative  powers,  which  are  a  request  for  information  (simple  or  by 
decision), an interview of a natural or legal person, inspections of undertakings or other premises 
(simple  or  by  decision).  Note  that  if  the  first  formal  investigative  measure  is  an  unannounced 
inspection, the fiche is never submitted before the inspection but soon afterwards. 

(37)  Complaints are reported only if there are investigative steps taken or envisaged and when the head 
of  unit  considers  the  reporting  appropriate.  By  inserting  a  case  in  ECN  Interactive,  the 
Commission signals to the Network that in principle it intends to deal with the case. 

(38)  Updates  and  envisaged  decision  fiche.  An  update  must  be  provided  in  the  IT-application 
where  relevant  changes  occur  in  the  case.  In  particular  this  must  be  done  by  submitting  the 
envisaged decision fiche to mark that the Commission has reached the preliminary draft decision 
stage  when  the  documents  are  sent  to  the  Advisory  Committee.6  Other  updates  can  relate  for 
instance to the parties, to the qualification of the practice under investigation, to the timeframe or 
to  the  indications  of  the  relevant  product  and/or  geographic  market.  In  certain  fields,  up-dates 
will be marked as such. 

(39)  Closed case fiche. The closed case fiche is submitted promptly after the closure of the case. An 
appeal against the decision does not prevent its submission. Should the appeal be successful, the 
closed case fiche can be updated accordingly. 

2.3.3.  Division of responsibilities in non-case related cooperation 

within the ECN 

(40)  The  ECN  unit  deals  with  ECN  relations  on  general  issues  (ECN  Plenary,  general  policy 
workshops and expert meetings, …), putting in place of administrative arrangements with NCAs, 
assisting NCAs in adapting national legal frameworks and advising them on legal and policy issues. 
Within the ECN unit, the official responsible for the country in question serves as a contact for all 
issues of cooperation arising with a particular Member State. 

(41) 

Sectoral  Directorates  are  responsible  for  the  management  and  annual  planning  of  sectoral  ECN 
subgroups. The NCAs participate in the agenda setting and possibly the chairing or co-chairing of 
the  meetings.  Sectoral  ECN  subgroups  can  be  set  up  after  discussion  in  the  ECN  Plenary.  The 
ECN unit should be regularly informed about their activities. The ECN unit has a contact person 
for each sectoral subgroup. 

(42) 

Planning  of  all  ECN  activities  including  sectoral  subgroup  questionnaires  and  meetings  shall  be 
made on an annual basis. 

6  

The ECN case statistics’ accuracy depends on the Commission also systematically submitting the information to 
the informatics application. 

                                                 
Antitrust Manual of Procedures 

Synoptic Table A:  Cooperation with NCAs, Division of tasks 

ECN Unit 

Sectoral Units 

Directorate R 

Case allocation 

-  monitors the 

Information pursuant to 
Article 11(3) 

opening of cases 
by NCAs from a 
general case 
allocation 
perspective 

-  has to be consulted 
before a sectoral 
unit contacts an 
NCA on case 
allocation (either 
reallocation from 
the Commission to 
the NCA or vice 
versa) 

Interface with the 
internal case 
management 
database 

The ECN responsible 
within the sector 
concerned: 

-  detects duplication of 

proceedings; 

-  assesses whether a 
given case requires 
Commission action. 

Consistency 

-  ECN unit is chef de 

Information pursuant to 
Article 11(4) 

- 

(“NCA case 
consultation”) 

file: 

it examines the 
draft from a 
coordination 
perspective; 

-  Sector directorate 
examines the draft 
simultaneously with 
the ECN unit, from a 
sector perspective 
and provides input 
as necessary. 

- 

it prepares the 
response to the 
NCA. 

The draft decision 
/draft SO is 
addressed by the 
NCAs to the 
registry via secure 
e-mail. It is 
immediately 
decrypted and 
sent to the ECN 
unit as well as to 
the sectoral unit 
concerned. 

Consistency 

Joint responsibility of the sectoral and the ECN 
unit. 

Initiation of proceedings 
pursuant to Article 
11(6) 

Monitoring of cases 

“Closed case fiche” 

Informal contacts 

Joint responsibility of the sectoral and the ECN 
unit. 

When getting information 
relating to a certain sector, 
the ECN should keep the 
sector unit informed. 

Before taking a 
policy line in an 
informal contact, 
sector units 
should inform 
the ECN unit. 

 
 
 
 
 
Page 9/14 – Cooperation with National Competition Authorities & ECN 

3.  Reallocation of a case to an NCA 

(43)  The  steps  to  be  followed  to  re-allocate  a  registered  DG  Competition  case  to  a  Member  State 
competition authority are as follows. See also special instructions regarding Complaint handling in 
the relevant module. 

(44)  The  sectoral  unit  responsible  for  the  case  consults  the  ECN  Unit  on  the  basis  of  a  short 
description  of  the  case  regarding  the  opportunity  of  re-allocating  the  case.  As  a  matter  of 
principle,  re-allocation  of  a  case  to  an  NCA  should  only  occur  for  cases  which  are  considered 
worthwhile to be investigated. 

(45) 

If there is agreement on the reallocation, the sectoral unit contacts informally the NCA concerned, 
describes  the  case  and  inquires  whether  the  NCA  would  be  interested  in  taking  it  forward. 
However,  if  the  sectoral  unit  does  not  know  whom  to  address  in  the  NCA,  the  ECN  Unit  can 
assist with the contact. 

(46) 

If  the  NCA  is  willing  to  take  up  the  case,  the  sectoral  unit  prepares  a  letter  transmitting  the 
information pursuant to Article 12 with a copy of the file attached. The letter should: 

•  state the legal basis of the transmission (Article 12); 

•  ask for confirmation on the part of the NCA that it  will investigate the 

case; 

•  as appropriate, draw the attention of the NCA on confidential 

information or other points for attention.  

4.  Transmission of information to national 

authorities 

4.1.  Role of the Authorised Disclosure Officer 

(“ADO”) 

(47)  The  Commission  and  all  other  ECN  members  have  appointed  Authorised  Disclosure  Officers 
(“ADO”) to ensure that confidential information is being transmitted in an appropriate way7. In 
the Commission the ADO holds the key to the secure e-mail system, and therefore is the person 
who receives/sends messages from/to NCAs where the use of this system is necessary. 

(48) 

For the Commission, the antitrust ADO is the Head of the antitrust registry. For the purposes of 
sending  documents  to  the  Advisory  Committee,  also  the  secretariat  of  the  Advisory  Committee 

7  

The ADO function is essentially linked to the cooperation mechanisms established by the antitrust modernisation 
under Regulation 1/2003 and more in particular to the Article 12 exchange of information and the Articles 20-22 
investigation cooperation. Therefore, while many network members have organised their formal communication 
channels so that the ADO is the central entry and exit point between them and the Commission and also between 
all  network  members,  the  only  communications  which  must  pass  by  the  ADO  are  those  which  in  a  strict  sense 
relate  to  enforcement  cooperation  between  network  members.  This  means,  for  instance,  that  when  the 
Commission  informs  or  consults  national  authorities  with  a  view  to  applying  Articles  7,  8,  9,  10  and  29(1)  of 
Regulation 1/2003, the participation of the ADO in this sense is not called for.  

Whether or not the ADO intervenes in person, the confidentiality of documents sent out by the Commission must 
in any event be fully protected by the receiving authority, but the Commission cannot widen the agreed scope of 
intervention  of  the  ADO.  This  is  why  the  ECN  members  have  asked  that  the  Commission  indicates  in  the 
transmissions what the legal basis is, so that they can easily assess whether the ADO must intervene in person. 

                                                 
 
Antitrust Manual of Procedures 

can use the secure mailing system. Likewise, for the purposes of hearings, the team of the Hearing 
Officer can use this system. 

(49)  When  a  Network  member  sends  a  communication  to  DG  Competition,  the  ADO  has  the 
responsibility  to  ensure  that  it  reaches  the  appropriate  persons  within  DG  Competition,  in 
decrypted form, without delay. 

(50)  When information should be sent to Network members, the case-handling unit is responsible for 
determining  in  each  particular  case  if  the  nature  of  the  information  is  so  sensitive  –  business 
secrets  or  other  confidential  information,  network-  as  well  as  internal  communications  –  that  it 
needs to be sent with encryption via the ADO. 

(51)  When  asking  for  an  encrypted  transmission  to  the  NCAs  to  take  place,  the  case-handling  unit 
sends  a  message  to  the  mailbox  of  the  DG  Competition  ADO  and  furthermore  indicates  the 
subject line of the mail to be sent, as explained below. It is important to recall that this subject line 
is never encrypted and, therefore, must be worded with care. After adding encryption the registry 
will forward the unit’s mail to the NCAs. 

(52)  The NCA’s ADOs have asked that they should not be the addressees of communications that do 
not  require  particularly  confidential  treatment. Instead, such communications can be  sent to the 
general contact points of the NCAs. In case of doubt whom to send a communication to, please 
ask for advice from the ECN unit. 

4.2.  What information is transmitted? 

4.2.1.  Article 11(2) of Regulation 1/2003 

(53)  Certain information and documents are sent to the competition authorities of the Member State 
without prior request. This rule applies to the “most important documents the Commission has 
collected with a view to applying Articles 7 to 10 and 29(1) of Regulation 1/2003". The legal basis 
is  Article  11(2)  of  Regulation  1/2003.  This  transmission  is  done,  systematically  and  upon 
instruction of the case team or the responsible unit.  

(54)  The documents which should systematically be transmitted to the Member States are: 

a.  all admissible complaints upon their registration as cases, subject to any redaction needed to 

respect request for anonymity; 

b.  formal fact-finding measures:  

–  requests for information by decision pursuant to Article 18(3) are sent for information to 
the  competition  authority  of  the  Member  State  on  whose  territory  the  undertaking  is 
located and whose territory is affected (see Article 18(5)). If this undertaking has a mother 
company in another Member State, a copy can also be sent the latter Member State; 

–  inspections based on a simple mandate (Article 20(3)): in good time before the inspection, 
the  Commission  must  give  notice  of  the  inspection  to  the  NCA  of  the  Member  State  in 
whose territory it is to be conducted; 

–  inspections ordered by decision (Article 20(4)): Advance consultation of the Member State 
in  whose  territory  the  inspection  is  to  be  conducted;  in  case  the  officials  of  the  Member 
State in question did not assist the Commission, also information after the inspection; 

–  sector  inquiry  decisions  (Article  17):  draft  decision  sent  for  Advisory  Committee 

consultation; 

Page 11/14 – Cooperation with National Competition Authorities & ECN 

c.  decisions imposing provisional periodic penalty payments : copy is sent to all Member States; 

d.  preparatory acts:  

–  initiation of proceedings (Article 11(6)) : information is sent to all Member States; 

–  statement of objections: copy is sent to all Member States; 

–  preliminary assessment in Article 9 proceedings; 

–  invitation to hearings: sent to all Member States;  

–  Article 27(4) market test publication for the Official Journal : copy of draft to all Member 

States after approval of the Commissioner and before publication;  

–  the tape recordings on hearings are sent to the Member States on case by case basis, but 

only if they make an explicit request; 

–  the final report of the Hearing Officer8; 

e.  undertakings’ replies to Statements of Objections and to Article 27(4) publications: copy to all 

Member States;  

f.  information about closure of a case where proceedings had been opened: 

–  rejections  of  complaints  pursuant  to  Article  13  of  Regulation  1/2003  or  Article  7  of 
Regulation 773/2004, subject to any redaction needed to respect request for anonymity;  

–  decisions  which  must  be  published  (in  summary  format)  (Art.  30  Reg.  1/2004):  first,  SG 
sends  the  operative  part  by  fax  to  all  NCAs;  then,  the  case-team  instruct  the  Antitrust 
Register  to  send  the  full  text  of  the  decision  (i.e.  including  confidential  information  and 
indication of figures on fines) to all NCAs in the languages available via the encrypted mail 
promptly (within two weeks) after the adoption of the decision; 

–  every  three  months  a  list  of  all  closed  cases  is  drawn  up  for  the  Member  States  by  the 

Antitrust Registry.  

(55)  On the basis of Article 11(2), second sentence, the national authorities are also entitled to receive, 
upon request, copies of other existing documents necessary for the assessment of the case. 

4.2.2.  Article 12 of Regulation 1/2003 

(56)  Article  12  allows  the  NCAs  to  ask  the  Commission  to  provide  them  with  information.  In 
principle, the Commission should accede to such request unless there are compelling reasons to 
refuse.  

(57)  The request can refer to any kind of information: documents, statements, digital information. It is 
normally not necessary for the Commission to verify, assess and decide on the confidentiality of 
information before transferring it to another competition authority. The confidential nature of the 
information does not constitute an obstacle to its transmission to another Network member, with 
the exception of the specific rules and conditions applying to the treatment of information relating 
to  leniency  applications.  In  this  latter  respect,  it  must  be  remembered  that  the  Commission  can 

8  

See Decision of the President of the European Commission on the function and terms of reference of the hearing 
officer in certain competition proceedings, (OJ L 275 of 20.10.2011, p. 29), Art. 16 

                                                 
Antitrust Manual of Procedures 

only transmit information received under a leniency programme if the conditions of paragraphs 40 
and/or  41  of  the  Network  notice  are  respected.  For  more  information  on  the  treatment  of 
leniency cases, see also the relevant module. 

4.2.3.  Specific confidentiality safeguards 

(58) 

In  exceptional  cases  where  a  risk  exists  that  a  Member  State  competition  authority  could  not 
guarantee that commercially sensitive information is not used by another “arm of the State” for 
purposes other than the enforcement of Articles 101 and 102 TFEU, the Commission would need 
to take the necessary safeguarding measures respecting the ruling of the Court in the SEP case9. If 
it wishes to transmit a document to the competent national authorities, notwithstanding the claim 
that  in  the  particular  circumstances  of  the  case  that  document  is  of  a  confidential  nature  with 
respect to those authorities, the Commission will have to adopt a reasoned decision amenable to 
judicial review by means of an action for annulment. It is through an action for the annulment of 
such a decision that the undertaking might effectively rely on its right to protection of its business 
secrets.   

(59) 

In  those  cases  where  the  Commission  has  decided  which  information  is  to  be  treated 
confidentially – as the case could be with respect to requests for public access to documents under 
Regulation  1049/2001  or  with  respect  to  questions  decided  by  the  Hearing  officer  in  the 
application  of  the  Akzo  procedure  (very  exceptionally,  in  the  application  of  the  SEP  case  law 
mentioned  in  previous  paragraph)  –  the  transmission  should  indicate  which  parts  of  the 
exchanged information are thus regarded as confidential.  

(60)  Where the parties have provided a non-confidential version of the information, it is recommended 

to also include this version in the transmission pursuant to Article 12. 

4.2.4.  The reply to a transmission request 

(61)  The following instructions start from the assumption that the Commission is in possession of the 
requested information. Where that is not the case, the case team should indicate this during the 
informal contacts to the other authority. If the case-handler realises after having informally agreed 
to the transmission that the Commission is not able to send the requested information, this should 
be briefly and without delay explained to the requesting authority. If need be, the impossibility of 
transmission can be confirmed in writing by the head of unit.  

(62)  There could be such an impossibility to transmit the requested information in the Commission’s 

possession in the following situations: 

–  A leniency applicant does not consent to the forwarding of (some of) his submissions and 

the consent is needed. This follows from the Network Notice (cf. points 40 and 41); 

–  The information was received from an informant having provided market information, as 
compared to a formal complainant, and the informant does not consent to the forwarding 
of  the  information.  This  is  essential  to  respect the trust of  the informant  and to create a 
framework where potential informants are not inhibited from providing such information.  

(63)  Other situations where the case-handler concluded on such impossibility should be communicated 

to the ECN unit for a common position. 

9  

See  judgments  in  Cases  Samenwerkende  Elektriciteits-Produktiebedrijven  (SEP)  NV  v  Commission,  T-39/90 
[1991] ECR II-1497 and C-36/92 P [1994] ECR I-1911. 

                                                 
Page 13/14 – Cooperation with National Competition Authorities & ECN 

(64)  The transmission of the requested information can be authorised by the responsible head of unit. 
Except in cases where no confidentiality issue exists, the exchange of information takes place in 
encrypted  form  via  a  secure  e-mail  system.  Therefore,  except  in  cases  where  no  confidentiality 
issue  could  arise,  case  teams  should  not  send  the  requested  documents  themselves  but  instead 
provide  the  necessary  information  and  documents  to  the  ADO  of  DG  Competition,  who  takes 
care of the transmission.  

(65) 

(66) 

(67) 

Information  should  be  sent  to  the  person  whose  contact  details  are  indicated  in  the  request. 
However,  if  the  other  authority  has  given  in  the  request  a  name  other  than  the  ADO,  sensitive 
information  should  always  be  sent  from  the  ADO  of  the  Commission  to  the  ADO  of  the 
requesting authority. 

If  the  documents  exist  in  electronic  form  preference  should  be  given  to  an  electronic  transfer, 
unless deemed inappropriate.  

If the language of the transmitted information is different from (one of) the official language(s) of 
the  receiving  authority  and  if  the  request  does  not  lead  to  an  unreasonable  burden  on  the  unit 
responsible for the transmission, it will in principle provide the receiving authority with an index 
of that information in a language understood by the latter.  

(68)  The note accompanying the requested information should indicate: 

− 

in which case the information was obtained (e.g. case x against party y) and the 
subject-matter for which it was collected; 

−  where, when and how the information was obtained (e.g. inspection, formal 

information request, informant or informal telephone conversation); 

−  whether there are any pending claims by the parties regarding this information; 

−  whether any of the information gathering measures were challenged before a 

court; 

−  whether, and at what stage, the Commission has any inquiries still pending; 

−  whether, to what extent and for which reasons, the parties claim confidentiality; 
it is possible to group together documents for which confidentiality is claimed. 

(69)  The transmission should take place as soon as possible and no later than within one month from 

the date of receipt of the request. 

4.3.  Informing the providers of the information of 

the transmission 

(70) 

If the information was provided to the Commission by a complainant, the latter may be informed 
of  the  transmission,  after  contacting  the  receiving  authority  to  make  sure  that  such  a  measure 
would  not  jeopardise  its  investigations.  The  undertaking  complained  of  and  other  parties,  as 
suppliers  of  information,  may  also  be  informed  if  the  responsible  head  of  unit  considers  it 
appropriate and after contacting the receiving authority to make sure that such a measure would 
not jeopardise its investigations. 

 
Antitrust Manual of Procedures 

(71)  As  regards  leniency  cases,  if  the  leniency  applicant  has  consented  to  the  transmission  and  also 
where the consent of the leniency applicant is not necessary for the transmission of information, 
the case-handling unit will inform the leniency applicant of the transmission as soon as possible 
after the transmission, after contacting the receiving authority to make sure that such a measure 
would not jeopardise its investigations. 

5.  Opening of proceedings by the Commission 

to relieve an NCA of its competence 

(72)  This section only concerns cases where the Commission wishes to initiate proceedings with a view 
to relieving an NCA of its competence in a pending case where the NCA is acting on the case and 
perhaps  already  envisages  a  decision  and  therefore  has  sent  to  the  Commission  information 
pursuant to Article 11(4).  

(73)  After the initial allocation period the Commission will normally not open proceedings unless one 

of the following situations arises: 

–  Network members envisage conflicting decisions in the same case; 

–  Network members envisage a decision which is obviously in conflict with consolidated case law; 
the  standards  defined  in  the  judgments  of  the  courts  of  the  European  Union  and  in  previous 
decisions and regulations of the Commission should serve as a yardstick; concerning facts, only a 
significant divergence will trigger an intervention of the Commission; 

–  Network member(s) is (are) unduly drawing out proceedings; 

–  There  is  a  need  to  adopt  a  Commission  decision  to  develop  European  competition  policy  in 

particular when a similar competition issue arises in several Member States; 

–  The national competition authority does not object. 

(74)  Where the Commission decides to open proceedings with the effects of Article 11(6) as a follow-
up to information by the NCA pursuant to Article 11(4) of Regulation 1/2003, it should do so as 
soon as possible. In practice, since the initiation of proceedings in cases where a national authority 
is dealing with the case must be adopted by the College (in the absence of an empowerment), it is 
unlikely that the formal steps can be taken before the last days of the deadline. However, as soon 
as  there  is  an  agreement  of  principle  of  the  Cabinets,  the  imminent  adoption  of  the  act  can  be 
communicated to the NCA.  

(75) 

In these special cases where an NCA is to be relieved quickly of its competence, the initiation of 
proceedings is a stand-alone procedural act. 

(76)  The  decision  to  open  proceedings  is  addressed  and  notified  to  the  parties  subject  to  the 

proceedings (for details, see module on opening of proceedings). 

(77)  The initiation of proceedings is not made public before informing the parties concerned (Article 2 

of Regulation 773/2004). 

 
Page 1/8 – Cooperation between the Commission and national courts 

4  Cooperation between the 
Commission and national 
courts 

1. 

The legal framework for cooperation between the 
Commission and national courts 

2.  General principles of cooperation 

3. 

The most frequent types of cooperation and how they are 
dealt with in DG Competition 

3.1.  Requests for information (Article 15(1) of Regulation 1/2003) 

3.1.1.  What kind of information? 
3.1.2.  When should the information be provided? 
3.1.3.  How are requests for transmission of information dealt with in DG 

Competition? 

3.2.  Requests for an opinion on questions concerning the application of 101 

or 102 TFEU (Article 15(1) of Regulation 1/2003) 
3.2.1.  What kind of opinion? 
3.2.2.  When should the opinion be provided? 
3.2.3.  How are the requests for an opinion dealt with in DG Competition? 

3.3.  The submission of written or oral observations to national courts 

(Article 15(3) of Regulation 1/2003) (amicus curiae intervention by the 
Commission) 
3.3.1.  Observations on what? 
3.3.2.  When should observations be submitted? 
3.3.3.  How is the preparation of submissions dealt with in the Commission? 

2 

2 

3 

3 
3 
4 

4 

5 
5 
5 
5 

6 
7 
7 
7 

 
Antitrust Manual of Procedures 

1.  The legal framework for cooperation 

between the Commission and national courts 

(1) 

(2) 

Article 4(3) of the Treaty on European Union, as interpreted by the Court of Justice (e.g. in Case 
C-2/88 – Zwartveld), obliges the Commission to cooperate with national courts in the application 
of Articles 101 and 102 TFEU. 

Article  15  of  Regulation  1/2003  renders  this  obligation  concrete  by  providing  tools  for  the 
cooperation between the Commission and national courts: 

–  Article 15(1): the national court can ask the Commission for information in its possession or for 

its opinion concerning the application of Articles 101 and 102 TFEU; 

–  Article 15(2) provides that national courts must forward to the Commission a copy of any written 

judgment on an application of Articles 101 or 102 TFEU; 

–  Article  15(3):  the  Commission  (and  the  NCAs)  can  submit  written  and,  with  permission  of  the 

court, oral observations to national courts. 

(3) 

The  Notice  on  co-operation  between  the  Commission  and  national  courts  (hereafter:  the 
“Notice”) further explains how this co-operation is put in practice.1 This chapter should be read 
in  conjunction  with  that  Notice,  which  sets  out  the  policy  of  the  Commission  with  regard  to 
cooperation with national courts. 

2.  General principles of cooperation 

(4) 

The Notice explains in para. 19 the general principles underlying the Commission’s cooperation 
with national courts as follows: “It should be recalled that whatever form the co-operation with 
national  courts  takes,  the  Commission  will  respect  the  independence  of  national  courts.  As  a 
consequence,  the  assistance  offered  by  the  Commission  does  not  bind  the  national  court.  The 
Commission  has  also  to  make  sure  that  it  respects  its  duty  of  professional  secrecy  and  that  it 
safeguards its own functioning and independence. In fulfilling its duty under [Article 4(3) of the 
Treaty  on  European  Union],  of  assisting  national  courts  in  the  application  of  EC  competition 
rules, the Commission is committed to remaining neutral and objective in its assistance. Indeed, 
the Commission's assistance to national courts is part of its duty to defend the public interest. It 
has therefore no intention to serve the private interests of the parties involved in the case pending 
before  the  national  court.  As  a  consequence,  the  Commission  will  not  hear  any  of  the  parties 
about its assistance to the national court. In case the Commission has been contacted by any of 
the  parties  in  the  case  pending  before  the  court  on  issues  which  are  raised  before  the  national 
court, it will inform the national court thereof, independent of whether these contacts took place 
before or after the national court's request for co-operation.” 

(5) 

The obligation to assist national courts only exists when the latter apply EU law. 

1 

OJ 2004 C 101/54. see http://ec.europa.eu/competition/antitrust/legislation/courts.html.  

2

                                                 
Page 3/8 – Cooperation between the Commission and national courts 

3.  The most frequent types of cooperation and 

how they are dealt with in DG Competition 

3.1.  Requests for information (Article 15(1) of 

Regulation 1/2003) 

(6) 

The principles governing requests for information are explained in paras. 21 to 26 of the Notice. 
The following indications should be read in conjunction with the Notice. 

3.1.1.  What kind of information? 

(7)  What kind of information can be requested by a national court is explained in paras. 21 to 22 of 
the  Notice:  the  information  requested  will  be  mainly  documents,  but  also  information  of  a 
procedural  nature  can  be requested  (e.g. whether the Commission has initiated proceedings in a 
given case, or when a decision is likely to be taken).  

(8) 

(9) 

Only information already in the possession of the Commission can be asked for. Consequently, no 
investigation  should  be  carried  out  to  get  (further)  information  with  the  sole  purpose  of 
transmitting that information to the national court. 

The request for information must be concrete.  In case of a general request (e.g. for a whole file in 
a  given  case),  the  national  court  should  be  asked  whether  it  can  specify  more  precisely  the 
information it seeks. 

(10)  Where possible, the information transmitted should be in the language of the request. There is no 

obligation, though, to translate information with a view to transmission. 

(11)  The basic philosophy of Article 4(3) EU Treaty (Art. 15(1) Reg. 1/2003) is that the Commission 
should  transmit  whatever  information  in  its  possession  the  national  court  asks  for.  There  are 
however some exceptions based on the case law of the Courts which are spelt out in paras. 23 to 
26 of the Notice. These principles can be summarised as follows: 

•  When the information requested is covered by professional secrecy (such as business secrets), 
DG Competition has to ask the national court whether it can and will guarantee protection of 
that information: 

–  when the court gives such guarantee, the information should be transmitted, indicating 

which parts cannot be publicly disclosed; 

–  when the court cannot give such guarantee, a non-confidential version of the information 

should be transmitted where possible. 

•  The Commission may refuse in specific circumstances to transmit information for overriding 
reasons relating to the need to avoid interference with its functioning and independence, in 
particular by jeopardising the accomplishment of the tasks entrusted to it (see para. 26 of the 
Notice). 

(12)  A national court should always receive the information that is publicly available via requests based 
on Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and 
Commission documents (OJ 2001, L 145/43).   

Antitrust Manual of Procedures 

3.1.2.  When should the information be provided? 

(13)  The Commission states in its Notice that it will endeavour to provide the information within one 
month from the date the Commission receives the request.  In case DG Competition has to ask 
the national court for further clarification or where it has to consult those directly affected by the 
transmission (e.g. the undertakings that provided the information), the period starts to run from 
the moment DG Competition receives that additional information. 

(14) 

In  order  to  respect  the  one  month  deadline,  it  is  advisable  that  the  sectoral  unit  chef  de  file 
contacts  Unit  A1  when  the  request  arrives  and  not  only  before  the  transmission  of  the 
information (see subsequent point (20)).    

3.1.3.  How are requests for transmission of information dealt 

with in DG Competition? 

a)  Registration and allocation to competent unit  

(15)  Requests  arrive electronically (preferably via  the dedicated functional  mailbox  COMP-AMICUS) 
or via traditional mail at the registry.  If someone else in DG Competition receives a request for 
information  from  a  national  court,  it  should  be  passed  on  immediately  to  the  registry  for 
registration. 

(16)  The registry assigns the request upon receipt to the competent sectoral unit as chef de file (with 
copy to Unit A1 for info) where the request concerns a sector-specific information. Unit A1 is put 
in copy. A1 is chef de file for non-sector specific requests. 

(17) 

If necessary, the competent unit will ask for the translation of the request for information. 

b)  Information covered by professional secrecy 

(18) 

(19) 

If the information that is requested is possibly covered by professional secrecy, the competent unit 
will ask the national court whether  it can and  will  guarantee protection of  that  information (see 
point (11) for the consequences of the court’s reply.) 

In order to inform the national court about which parts of the transmitted information cannot be 
publicly disclosed (in case the national court has given a confidentiality guarantee) or in order to 
make a non-confidential version of the requested information (in case the national court has not 
given  a  confidentiality  guarantee),  the  competent  unit  should  examine  which  (parts  of  the) 
documents are covered by professional secrecy.  It may be necessary to consult the legal or natural 
person  or  authority  from  whom  the  information  originates  to  determine  whether  or  not  the 
information is (still) covered by professional secrecy at the moment of transmission or if they have 
other grounds to oppose disclosure. In case of disagreement with the disclosure of the requested 
information (or the arrangements for the protection of its confidentiality), the AKZO-procedure 
would apply (see Module on Access to the file). 

c)  Consultation, translation and sending  

(20)  The unit chef de file consults Unit A1 on the draft letter. The unit that is chef de file should consult 
the Legal Service ("LS"), e.g. where the transmission of the information could raise a significant 
legal issue. The LS must have at least 5 working days to give its opinion. 

4

Page 5/8 – Cooperation between the Commission and national courts 

(21)  The letter accompanying the transmission of the requested information is signed by the Director 
of the competent unit. The letter should be drafted in the language of the request. A copy of this 
letter must be transmitted to A1 to enable accurate records to be kept. 

d)  Special case: the refusal to transmit information requested by a national court 

(22)  The  refusal  to  transmit  information  has  to  be  duly  reasoned.    Unit  A1  and  the  LS  must  be 
consulted on the refusal and must be given 5 working days to react. The letter of refusal has to be 
signed by the Director General. 

3.2.  Requests for an opinion on questions 

concerning the application of 101 or 102 
TFEU (Article 15(1) of Regulation 1/2003) 

(23)  The principles governing requests for opinions are explained in paras. 27 to 30 of the Notice. The 

following indications should be read in conjunction with the Notice. 

3.2.1.  What kind of opinion?  

(24)  The kind of opinion which the Commission may be called upon to provide is spelt out in paras. 
27 to 30 of the Notice: “When giving its opinion, the Commission will limit itself to providing the 
national  court  with  the  factual  information  or  the  economic  or  legal  clarification  asked  for, 
without considering the merits of the case pending before the national court. Moreover, unlike the 
authoritative  interpretation  of  Community  law  by  the  Community  courts,  the  opinion  of  the 
Commission does not legally bind the national court.” 

(25)  Where guidance in the case-law of the EU courts or in Commission regulations, decisions, notices 
and  guidelines  applying  Articles  101  and  102  TFEU  would  offer  sufficient  guidance  to  the 
national court, it should be reflected whether the opinion given could focus on a reference to the 
relevant pieces of EU law and an explanation thereof. 

(26)  Where the request raises novel issues, the opinion may also suggest to the national court to have 

recourse to a preliminary ruling to the ECJ pursuant to Article 267 TFEU. 

(27)  The opinion should be written in the language of the request.  

3.2.2.  When should the opinion be provided? 

(28)  The  Commission  states  in  its  Notice  that  it  will  endeavour  to  provide  the  opinion  within  four 
months from the date the Commission receives the request. In case DG Competition has to ask 
the  national  court  for  further  clarification,  the  period  starts  to  run  from  the  moment  DG 
Competition receives that additional information. 

(29) 

In  order  to  respect  the  four  months  deadline,  it  is  advisable  that  the  sectoral  unit  chef  de  file 
contacts  unit  A1  when  the  request  arrives  and  not  only  before  the  transmission  of  the 
information.    

3.2.3.  How are the requests for an opinion dealt with in DG 

Competition?  

a)  Registration and allocation to competent unit  

Antitrust Manual of Procedures 

(30)  Requests arrive electronically (preferably via  the dedicated functional mailbox  COMP-AMICUS) 
or via traditional mail at the registry.  If someone else in DG Competition receives a request from 
a national court, it should be passed on immediately to the registry for registration. 

(31)  The registry assigns the request upon receipt to the competent sectoral unit as chef de file (with 
copy to Unit A1 for info) where the request concerns a sector-specific information. Unit A1 is put 
in copy. A1 is chef de file for non-sector specific requests. 

(32)  The  sectoral  unit  will  normally  be  considered  to  be  chef  de  file  whenever  the  request  is  closely 
related to and focused on specificities of the sector and/or closely linked to a case (being) dealt 
with by the sectoral unit (e.g. market definition). Where both non-sector specific policy issues and 
sectoral issues are at stake, the chef de file should be decided on a case-by-case basis, taking into 
account the relative weight of the issues involved.  In that case, the other unit (non-chef de file) 
will be closely involved in the drafting of the opinion. 

(33) 

If necessary, the competent unit will ask for the translation of the request. 

b)  Consultation and sending: Procedure to be followed for a reply to a request for an opinion  

(34)  The  task  of  issuing  an  opinion  of  the  Commission  requested  by  a  national  court  has  been 
conferred  by  the  College  to  the  Competition  Commissioner  by  empowerment,  who  has  sub-
delegated it to the Director General of DG Competition. 

(35)  The Commission’s reply to the request of a national court is composed of a letter of transmission 
and  an  opinion  as  an  annex  of  this  letter.  The  letter  of  transmission  is  signed  by  the  Director 
General and the annex contains the text of the opinion itself. This means that the content of the 
letter of transmission is not part of the opinion. 

(36)  The letter of transmission should draw the court's attention to the fact that the Commission may 
publish its opinions on its webpage and intends to do so in the relevant case once a judgment has 
been  rendered.  The  letter  should  also  give  the  court  the  opportunity  to  present  any  objections 
against such publication. If a working language version of the opinion exists in a more commonly 
understood  language  than  the  authentic  version  (for  instance,  where  the  opinion  has  internally 
been processed in EN or FR), it may be appropriate to publish also this working language version. 
If so, this should also be mentioned in the letter to the court. 

3.3.  The submission of written or oral 

observations to national courts (Article 15(3) 
of Regulation 1/2003) (amicus curiae 
intervention by the Commission) 

(37)  The principles governing the submission of observations are explained in paras. 31 to 35 of the 

Notice. The following indications should be read in conjunction with the Notice. 

(38)  Different from the requests for information or for an opinion, the submission of observations to 
a  national  court  is  done  on  the  initiative  of  the  Commission.  Oral  submissions  can  only  be 
submitted with the permission of the national court. 

6

Page 7/8 – Cooperation between the Commission and national courts 

3.3.1.  Observations on what?  

(39)  The Commission will only submit observations when the coherent application of Articles 101 or 
102 TFEU so requires (see Court of Justice, Case C-429/07, Inspecteur van de Belastingdienst). 
The decision to submit observations should always be made with regard to the purpose of Article 
15(3):  the  coherent  application  of  Articles  101  or  102  TFEU.  The  Notice  states  in  this  respect: 
“The regulation specifies that the Commission will only submit observations when the coherent 
application of Articles [101] or [102] EC so requires. That being the objective of its submission, 
the  Commission  will  limit  its  observations  to  an  economic  and  legal  analysis  of  the  facts 
underlying the case pending before the national court.” Inter alia because also NCAs can submit 
observations to national courts, submissions by the Commission are more likely to be appropriate 
before last instance courts in the Member States.  

3.3.2.  When should observations be submitted? 

a)  How will DG Competition know about a pending case? 

(40)  DG Competition may have knowledge about individual cases from different sources, notably 

• because (one of) the parties inform(s) DG Competition (this does not oblige the Commission to 
act,  though).  Requests  (e.g.  by  parties)  to  submit  observations  to  a  national  court  will  be 
registered and passed to Unit A1; 

• because DG Competition receives a copy of the judgment under appeal pursuant to Art. 15(2) of 
Reg. 1/2003.  Unit A1 or the competent sectoral unit may pro-actively wish to find out whether 
one  of  the  parties  seeks  relief  with  the  last  instance  court.    Unit  A1  unit  or  the  competent 
sectoral unit will not contact the parties to this end, but it will consider whether information can 
be sought with the registry of the last instance court and may liaise with the LS in this respect. 

b) Timing 

(41) 

It is advisable to coordinate the timing of submission of the intended amicus curiae observation at 
least informally with the addressee court. 

3.3.3.  How is the preparation of submissions dealt with in the 

Commission? 

(42)  The DG  Competition  Policy Director (Director  of  COMP/A), upon the  suggestion  of  Unit A1 
and in co-operation with the competent sectoral unit, may propose that the Commission submit 
observations to the national court.   

(43)  Unit  A1,  in  co-operation  with  the  competent  sectoral  unit,  will  solicit  the  views  of  the  LS  on 
whether  it  agrees  with  the  proposal  to  submit  written  or  oral  observations.    Unit  A1,  in  co-
operation  with  the  competent  sectoral  unit,  will  liaise  with  the  cabinet  of  the  Member  of  the 
Commission with special responsibility for competition to ask for approval of such a submission. 

(44)  The  submissions  made  pursuant  to  Article  15(3)  require  approval  by  the  College  of 
Commissioners.  The approval to lodge submissions is to be sought by a communication of the 
President  of  the  Commission  in  agreement  with  the  Member  of  the  Commission  with  special 
responsibility for competition. 

(45)  The  LS  is  chef  de  file  both  for  requesting  the  approval  of  the  College  and  for  the  actual 
submission. It will draft the written observations and present the oral observations (possibly in the 
presence of an appropriate DG Competition official).  

Antitrust Manual of Procedures 

(46)  Depending  on  the  nature  of  the  issue  at  stake  (e.g.  horizontal  issue  or  sector-specific  issue), 
assistance  on  the  substance  will  be  given  by  Unit  A1,  or  by  the  sectoral  unit,  after  having 
consulted Unit A1.  Procedural assistance (e.g. asking the national court to transmit or ensure the 
transmission of a copy of all documents that are necessary for the assessment of the case) will be 
given by Unit A1. 

(47) 

If no assistance is asked for by the LS, Unit A1 will ensure that DG Competition is duly consulted 
about the content of the observations.  

8

Page 1/7 – International Relations: Cooperation with CA in third Countries I 

5  International Relations: 

Cooperation with Competition 
Authorities in third Countries 

1. 

Agreements with third countries and other instruments of 
cooperation 

2. 

The EEA agreement and co-operation with ESA 

2.1.  The EEA Agreement 

2.2.  Determination of competence 

2.3.  Commission competence 

2.4.  ESA Competence 

2.5.  Cooperation between the surveillance authorities 

2.6. 

Investigative measures 

2.7.  Languages 

3. 

Principles and procedures for cooperation with other third 
countries 

3.1.  Notification to third countries 

3.2.  Notification from third countries 

3.3.  Cooperation and coordination 

3.4.  Positive Comity Requests 

2 

3 

3 

3 

4 

4 

5 

5 

5 

6 

6 

6 

7 

7 

 
Antitrust Manual of Procedures 

1.  Agreements with third countries and other 

instruments of cooperation 

(1) 

(2) 

(3) 

(4) 

The EU has concluded numerous agreements with third countries which lay down provisions on 
cooperation  if  the  EU  enforcement  activities  affect  important  interests  of  these  countries.  The 
provisions vary largely, depending on the type of agreement (notification obligations, cooperation 
etc.)1. 

Specific  cooperation  provisions  have  to  be  followed  when  the  Commission  applies  the 
competition  rules  of  the  EEA  Agreement  (Agreement  on  the  European  Economic  Area). 
Articles 53 and 54 of the EEA Agreement are virtually the same as Articles 101 and 102 of the 
TFEU. The EEA Agreement is applicable if trade between one or more EU Member States and 
one or more EFTA Member States parties to the Agreement (Norway, Iceland and Liechtenstein) 
is affected: Therefore, case handlers should always verify whether not only Articles 101 and 102 of 
the  TFEU  but  also  the  equivalent  provisions  of  the  EEA  Agreement  (Articles  53  and  54)  are 
applicable. This will generally be the case if the "competition problem" concerns the whole of the 
EEA. When the Commission applies Articles 53 and 54 of the EEA Agreement the provisions on 
cooperation  with  the  EFTA  Surveillance  Authority  (ESA)  have  to  be  followed  (see  section  2  
hereunder).  

Dedicated  cooperation  agreements  in  competition  matters  have  been  concluded  with  the 
United States, Canada, Japan and Korea. Principle elements are mutual information, co-ordination 
of enforcement activities and exchange of non-confidential information. The agreements contain 
furthermore provisions on the possibility for one party to request the other to take enforcement 
action  (positive  comity),  and  for  one  party  to  take  into  account  the  important  interests  of  the 
other party in the course of its enforcement activities (traditional comity).  

The  European  Union  has  also  concluded  numerous  Association,  Economic  Partnership  and 
Free  Trade  Agreements,  in  particular  the  EuroMed  Agreements  (Morocco,  Algeria)  and  with 
Latin American Countries (Chile, Mexico, Caribbean Community, Central America, Colombia and 
Peru). These agreements usually contain basic provisions on cooperation in competition matters. 

(5) 

A Customs Union Agreement is in place with Turkey. 

(6)  Non-binding  arrangements  have  been  concluded  with  China,  Brazil  and  Russia.  As  regards 
China,  the  “Terms  of  Reference  of  the  EU-China  Competition  Policy  Dialogue”  lay  down  provisions  to 
exchange  experiences  and  views  on  competition  matters.  A  "Memorandum  of  Understanding"  was 
signed  with  the  competition  agencies  of  Brazil  establishing  a  framework  for  cooperation  and 
exchange of information; a similar Memorandum has been signed with Russia. 

(7) 

OECD: Cooperation between the Commission and the competition authorities of other OECD 
member  countries  is  carried  out  on  the  basis  of  a  Recommendation2  adopted  by  the  OECD  in 
1995. 

1 

2 

See  all  provisions  on  international  relations  in  the  area  of  competition  policy  that  are  included  in  agreements 
between 
at 
http://ec.europa.eu/competition/international/legislation/legislation.html 

groupings 

countries 

country 

third 

third 

and 

the 

EU 

or 

Recommendation of 27 and 28 July 1995 concerning cooperation between member countries on anti-competitive 
practices affecting international trade. 

                                                 
Page 3/7 – International Relations: Cooperation with CA in third Countries I 

2.  The EEA agreement and co-operation with 

ESA 

2.1.  The EEA Agreement 

(8) 

(9) 

Parties  to  the  EEA  Agreement  are  all  EU  Member  States  and  the  EFTA  Members  Iceland, 
Liechtenstein and Norway (Switzerland has not ratified the EEA Agreement). The objective of the 
Agreement,  which  entered  into  force  on  1  January  1994,  is  to  establish  a  dynamic  and 
homogeneous  European  Economic  Area,  based  on  common  rules  and  equal  conditions  of 
competition.  The  competition provisions of  the EEA  Agreement mirror  those of the European 
Union. Articles 53, 54 and 59 of the EEA Agreement are virtually the same as Articles 101, 102 
and 106 TFEU. The provisions are applicable if trade between one or more EU Member States 
and one or more EFTA Member States which have ratified the Agreement (Norway, Iceland and 
Liechtenstein) is affected.  

The EEA Agreement is enforced by two surveillance authorities: by the Commission and by the 
EFTA  Surveillance  Authority  (ESA).  However,  there  is  no  concurrent  competence  between  the 
Commission  and  ESA;  the  Agreement  foresees  only  alternative  jurisdiction  ("one  stop  shop"). 
The  division  of  jurisdiction  between  the  two  Authorities  is  laid  down  in  Article  56  of  the  EEA 
Agreement (details see below). The basic rules for the division of jurisdiction in antitrust cases are: 
The Commission is always competent to apply the competition provisions of the EEA Agreement 
when to a given set of facts also Articles 101, 102 or 106 are applicable. In those cases where only 
the EEA Agreement is applicable (e.g. in a case when only trade between Sweden and Norway is 
affected), the division of competence is decided on 'centre of gravity basis' which is mainly based 
on turnover criteria.  

(10)  The Commission and the ESA always decide for the whole of the EEA, i.e., for all Member States 
plus  Iceland,  Liechtenstein  and  Norway.  It  is  evident  that  in  case  the  EEA  Agreement  is 
applicable  all  documents  drawn  up  by  the  Commission  (requests  for  information,  statements  of 
objections,  decisions,  etc)  should  not  only  cite  Articles  101  or  102  of  the  TFEU  but  also  the 
respective provisions of the EEA Agreement.  

(11)  When  the  Commission  applies  the  competition  provisions  of  the  EEA  Agreement  it  uses  its 
existing  procedural  rules,  i.e.  Reg.  1/2003.  The  legal  basis  for  this  can  be  found  in  Article  5  of 
Council Regulation 2894/94.  

2.2.  Determination of competence 

(12)  The division of competence between the Commission and the ESA is dealt with in Article 56 of 

the EEA Agreement, which reads as follows:  

"1. Individual cases falling under Article 53 shall be decided upon by the surveillance authorities in accordance with 
the following provisions:  

(a) individual cases where only trade between EFTA States is effected shall be decided upon by the 
EFTA Surveillance Authority;  

(b) without prejudice to subparagraph (c), the EFTA Surveillance Authority decides, as provided for in 
the provisions set out in Article 58, Protocol 21 and the rules adopted for its implementation, Protocol 23 
and Annex XIV, on cases where the turnover of the undertakings concerned in the territory of the EFTA 
States equals 33% or more of their turnover in the territory covered by this Agreement;  

Antitrust Manual of Procedures 

(c) the EC Commission decides on the other cases as well as on cases under (b) where trade between EC 
Member States is affected, taking into account the provisions set out in Article 58, Protocol 21, Protocol 
23 and Annex XIV.  

2.  Individual  cases  falling  under  Article  54  shall  be  decided  upon  by  the  surveillance  authority  in  the  territory  of 
which a dominant position is found to exist. The rules set out in paragraph 1(b) and (c) shall apply only if dominance 
exists within the territories of both surveillance authorities.  

3. Individual cases falling under subparagraphs (c) of paragraph 1, whose effects on trade between EC State Members 
or  on  competition  within  the  Community  are  not  appreciable,  shall  be  decided  upon  by  the  EFTA  Surveillance 
Authority.  

4. The terms 'undertaking' and 'turnover' are, for the purposes of this Article, defined in Protocol 22."  

2.3.  Commission competence 

(13)  Therefore,  in  cases  falling  under  Articles  101 of  the  TFEU  and  53  of  the  EEA  Agreement,  the 
Commission  will  be  competent  for  the  case  and  take  a  decision  for  the  whole  of  the  EEA 
territory.  

(14)  Where there is only affectation of trade between the EU and one or more EFTA States (and no 
appreciable  affectation  of  trade  between  Member  States),  the  competence  will  depend  on  the 
percentage  of  the  combined  EEA-wide  turnover  achieved  by  the  companies  concerned  in  the 
Community  and  in  the  EFTA  territory  respectively.  If  they  achieve  33%  or  more  of  it  in  the 
EFTA territory, ESA will be competent. If they achieve 67% or more of it in the EU, it will be the 
Commission (for the definition of relevant turnover cf. Protocol 22 to the EEA Agreement).  

(15) 

In  abuse  of  dominance  cases  (Article  54  of  the  EEA  Agreement)  the  Commission  will  be 
competent where there is dominance within the EU and to the ESA where there is dominance in 
the EFTA territory. Only where there is dominance in both territories do the principles outlined 
above apply. If also article 102 is applicable, the Commission will always be competent.  

(16)  The responsibility of the Commission can also follow pursuant to a transmission of a case from 
the ESA to it for reasons of competence. Member States must then be informed of the receipt of 
the case. Evidence already collected by the ESA can be used as well by the Commission.  

2.4.  ESA Competence 

(17) 

(18) 

(19) 

If  a  case  needs  to  be  transmitted  to  ESA  for  reasons  of  competence,  a  corresponding  decision 
must  be  taken  by  the  Commissioner,  who  has  received  an  empowerment  to  this  effect 
(Commission's decision of 6 April 1994, PV (1196) adopting SEC (94) 571, point 1.b). Once this 
decision is taken, the documents are sent to ESA, and Member States and undertakings concerned 
are informed hereof - as well as further comments on the case.  The Commission will continue to 
be associated with further proceedings undertaken by ESA. 

Such transmission of cases should take place as early as feasible in the course of proceedings. It 
cannot  take  place  after  the  sending  of  a  statement  of  objections  or  of  the  letter  informing  an 
applicant  that  there  are  insufficient  grounds  for  pursuing  his  complaint.  Once  a  case  has  been 
transmitted for reasons of competence, a retransmission may no longer take place. 

It  is  conceivable  that  the  ESA  and  the  Commission  disagree  on  the  attribution  of  a  case.  If  a 
solution cannot be found at working level, the issue must be brought before the Joint Committee 
of the EEA Agreement (for further contact Unit A 5/International Relations).  

Page 5/7 – International Relations: Cooperation with CA in third Countries I 

2.5.  Cooperation between the surveillance 

authorities 

(20)  The  EEA  Agreement  obliges  the  competent  enforcement  authority  to  cooperate  with  the 
respective other authority when it applies the competition rules of the Agreement. Cooperation in 
general means information and consultation. As the Commission is dealing with the vast majority 
of  cases  where  the  competition  provisions  of  the  EEA  Agreement  are  applied,  it  is  usually  the 
Commission which has to consult and to inform the ESA. The detailed rules on cooperation are 
set out in Protocol 23 of the Agreement.  

(21)  The Commission has to inform ESA about complaints and ex-officio procedures, has to consult 
the ESA at certain steps of the procedure (in particular when publishing an article 27(4) notice or 
issuing  a  Statement  of  Objections)3  and  to  invite  ESA  and  the  EFTA  national  authorities  to 
Hearings and the Advisory Committee. The Commission has to transmit a copy of administrative 
letters closing a file or rejecting a complaint (article 4 of Protocol 23).   

2.6.  Investigative measures 

(22)  Request for information may be addressed directly to companies based in the EFTA territory. 
The same format as for companies inside the EU can be used. The ESA shall receive a copy of 
such request or decision.  

to  conduct 

(23)  The Commission can request the ESA to grant administrative assistance (article 8 of Protocol 23) 
and 
territory.  The  ESA  will  organise  such 
the  EFTA 
investigations/inspections in accordance with its own internal rules which mirror EU proceedings. 
Commission official have the right to take an active part in these investigations. The Commission 
can fully use the evidence obtained in this inspection. The ESA can likewise ask the Commission 
to organise an inspection on its behalf.  

inspections 

in 

(24)  The Commission must inform the ESA if it intends to carry out interviews pursuant to article 19 
Reg. 1/2003 in the EFTA territory. The Commission shall also inform the ESA about inspections 
it intends to carry out in the EU (article 8 para. 5 of Protocol 23). 

(25)  All information obtained in such investigations is immediately transmitted to DG Competition by 

ESA.  

2.7.  Languages 

(26)  As regards languages, undertakings have the right to address the Commission, and be addressed 

by it, in any official language of the EU or the EFTA States which they chose.  

3 

Art 3 of Protocol 23 states that the "other surveillance authority may deliver its comments within the time limits 
set out in the abovementioned publication or statement of objections" and is interpreted as meaning the other 
authority  receives  the  copy  of  the  SO  just  after  adoption  rather  than  earlier.  However,  the  Commission  could 
always consult ESA earlier (and vice versa) in case they wanted to obtain the comments of the other.  

                                                 
 
Antitrust Manual of Procedures 

3.  Principles and procedures for cooperation 

with other third countries 

(27)  The following guidelines for the implementation of international agreements need to be respected 

when assessing a case which has an international dimension: 

3.1.  Notification to third countries 

(28)  A  case  officer  should  determine  whether  a  third  country,  with  which  the  EU  has  concluded  an 
agreement  has  an  interest  in  a  case  for  which  he/she  is  responsible.  The  case  officer  should 
consider whether any of the following criteria is met: 

(29) 

(30) 

-  in making an initial assessment of a case: 

Is the case officer aware of a similar enquiry taking place in the third country? 

– 

– 

– 

Does the case involve anti-competitive activities (other than a merger or acquisition) carried 
out in significant part on the territory of the third country? 

Is one or more of the undertakings under investigation or party to the transaction, or a 
company controlling such undertaking(s), a company incorporated or organised under the 
laws of the third country? 

Does the case involve conduct believed to have been required, encouraged or approved by 
the third country? or  

(31) 

- during the course of the investigation: 

– 

– 

Will DG Competition request information from any undertaking on the territory of the 
third country?  

Will the enforcement activity involve remedies that would, in significant respects, require or 
prohibit conduct in the third country? 

(32)  Where a case meets any of the above criteria, the case officer should verify if notification to the 
third country is obligatory and should inform Unit A5/International Relations. The relevant desk 
officer in Unit A5 will be available to provide assistance and advice. 

(33) 

In particular, Unit A5 should be informed in each of the following circumstances: 

a) 

b) 

c) 

before a statement of objections is issued; 

before a decision or a settlement (remedies) is adopted; 

in case the Commission intervenes in judicial proceedings in third countries (amicus curiae 
etc.) 

(34)  Unit A5 is available to provide guidance if required. 

3.2.  Notification from third countries 

(35)  When a notification is received from the authorities of a third country, Unit A5 shall forward it to 

the operational units concerned and to the Member States whose interests are affected. 

Page 7/7 – International Relations: Cooperation with CA in third Countries I 

3.3.  Cooperation and coordination 

(36) 

(37) 

If a case officer wishes to contact the authorities of a third country (request for assistance, material 
or  clarification  about  a  parallel  investigation  etc.),  he/she  can  ask  Unit  A5  to  arrange  the  initial 
contact. 

If an authority of a third country requests assistance from DG Competition, Unit A5 will inform 
the operational unit concerned, and will facilitate the contacts with the third country authority. 

(38)  Where,  an  operational  Directorate  believes  that  there  are  important  EU  interests  which  would 
necessitate an intervention by DG Competition with the authorities of the third country, 

- 

- 

to take action, 

to modify a proposed action, or 

- 

to desist from taking action 

it should immediately consult with Unit A5 to determine the most appropriate course of action. 

(1) 

(2) 

(39) 

Likewise, where a third country requests DG Competition in a specific case 

- 

- 

- 

to take action, 

to modify a proposed action, or 

to desist from taking action 

(3) 

based  on  the  important  interests  of  the  third  country,  Unit  A5  should  immediately  contact  the 
operational Directorate concerned to determine the appropriate course of action. 

3.4.  Positive Comity Requests 

(40)  Positive  comity  enables  one  side  adversely  affected  by  anti-competitive  conduct  carried  out  in 
the other's territory, to request the other side's competition authority to take enforcement action. 
There  are  general  "positive  comity"  provisions  in  the  Cooperation  Agreements  with  the  US 
(Article V 2), Canada (Article V 2), Japan (Article 5.1) and Korea (Article 6) according to which 
either Party can invite the other Party to take, on the basis of the latter's legislation, appropriate 
measures regarding anti-competitive behaviour implemented on its territory and which affects the 
important interests of the requesting Party. 

(41)  With  regard  to  the  US  a  special  Positive  Comity  Agreement  has  existed  since  1998.  The 
Agreement clarifies both the mechanics of the positive comity co-operation instrument, and the 
circumstances in which it can be availed of. In principle, one party may request the other party to 
remedy  anticompetitive  behaviour  which  originates  in  its  jurisdiction  but  affects  the  requesting 
party as well. The Commissioner for Competition has delegated powers to make a request under 
this  agreement  to  the  US  or  to  respond  to  one  from  the  US  (Commission  decision  of  19  June, 
adopting SEC (2002)669). 

(42) 

In practice, the positive comity provisions are not used frequently as companies (i.e. complainants) 
prefer to address directly the competition authority they consider to be best suited to deal with the 
situation. If, however, a case of positive comity arises, the case handler should contact UnitA5 to 
determine the appropriate course of action. 

 
 
Page 1/15 – Requests for Information  

6  Requests for Information 

1. 

Introduction 

1.1. 

Informal fact-finding 

1.2.  Requests for information (Article 18) 

2. 

Request for information by letter (Article 18(2)) 

2.1. 

Information which can be requested 

2.2.  Addressees 

2.3.  Languages 

2.4.  Drafting simple requests for information 

2.5.  Sending the requests for information 

2.6.  Follow-up of requests for information 

3.  Decision requiring information (Article 18(3)) 

3.1.  General principles and content 

3.2.  Procedural steps 

4.  Decision imposing fines or penalties 

5. 

Limits of the power to ask for information: the privilege 
against self-incrimination 

5.1.  The Basic Principle 

5.2.  Definition of Self-Incrimination 

5.3.  Categories of questions that are admissible 

5.4.  How to react if a company claims that a question is of a self-

incriminating nature 

6. 

Request for and use of information from national 
competition authorities (Article 12 and 18 of Reg. 1/2003) 

6.1.  Choosing the legal basis of the request 

6.2.  Request based on Article 12 

6.3.  Request based on Article 18 

2 

2 

2 

2 

2 

3 

4 

4 

5 

6 

7 

7 

9 

11 

11 

11 

12 

12 

12 

13 

13 

14 

15 

 
Antitrust Manual of Procedures 

1.  Introduction 

1.1.  Informal fact-finding 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

Information  about  companies  and  industries,  current  and  historical  news,  legal  and  economic 
literature as well as statistics can be obtained from external commercial databases or through DG 
Competition  Library’s  collections  and  resources.  If  necessary,  specific  studies  may  be 
commissioned from external experts.  

In order to gather information about a given economic sector, contacts may be taken with other 
Commission services (Eurostat, DG ENTR, …).  

Information  may  be  obtained  also  through  informal  contacts  with  National  Competition 
Authorities (hereafter NCA).  

Informal meetings or phone-calls may be organised by the case-teams with undertakings.  

1.2.  Requests for information (Article 18) 

Pursuant to Article 18 of Reg. 1/2003, the Commission is empowered to require undertakings and 
associations  of  undertakings  to  provide  it  with  all  necessary  information.  Information  can  be 
requested by simple letter (“simple request” (Article 18(2)) or by decision (Article 18(3)).  

Requests  for  information  are  the  main  sources  for  gathering  information  on  infringements  of 
competition law. They are also widely used in the context of sector inquiries.  

Undertakings are obliged to answer to requests by decision but can refuse to reply to requests by 
simple  letter.  If  they  reply  to  either  type  of  request  by  submitting  incorrect  or  misleading 
information,  they  are  liable  to  fines  (Article  23(1)(a)  and  (b))  in  case  they  are  located  inside  the 
EEA.  When  drafting  a  request  for  information,  case  handlers  must  respect  the  right  of  the 
undertakings not to incriminate themselves. 

2.  Request for information by letter 

(Article 18(2)) 

2.1.  Information which can be requested1 

Pursuant  to  Article  18,  the  Commission  may  require  undertakings  and  associations  of 
undertakings to provide all necessary information. Information is necessary if it might enable the 
Commission  to  verify  the  existence  of  the alleged infringement referred to in the request which 
justified  the  initiation  of  the  inquiry2.  The  Commission  enjoys  a  margin  of  appreciation  in  this 
respect3.  

See the Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 
20.10.2011, p. 6) (“Notice on Antitrust Best Practices”), paras. 33-35. 

Case 374/87 SEP v. Commission, [1991] ECR II-1497 (para.25-29) 

As regards the Commission's discretion in shaping the enquiry, see Case T-141/94 Thyssen Stahl v Commission 
[1999] ECR II-347, paragraph 110; Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 
384; Case T-48/00 Corus UK v Commission [2004] ECR II-2325, paragraph 212. In exercising its discretion, the 

(8) 

1 

2 

3 

                                                 
Page 3/15 – Requests for Information  

(9) 

It is for the Commission to define the scope and the format of the request for information. Where 
appropriate,  DG  Competition  might  however  discuss  with  the  addressees  the  scope  and  the 
format  of  the  request  for  information.  This  may  be  particularly  useful  in  cases  of  requests 
concerning quantitative data.4  

(10)  When,  in  a  reply  to  a  request  for  information,  undertakings  submit  manifestly  irrelevant 
information  (in  particular  documents  which  are  clearly  not  related  to  the  subject-matter  of  the 
investigation), DG Competition may, in order not to unnecessarily burden the often voluminous 
administrative  file,  return  such  information  to  the  addressee  of  the  request  as  early  as  possible 
after having received the reply. A short notice reporting this fact will be put in the file. 

(11)  Requests for information should not include confidential information submitted by parties/third 

parties.  

2.2.  Addressees 

Addressees inside the EEA 

(12)  Article  18(1)  empowers  the  Commission  to  request  information  from  undertakings  and 
associations  of  undertakings.  Requests  can  be  sent  to  any  undertaking  or  association  of 
undertakings. This includes not only the undertakings or associations of undertakings subject to 
the proceedings but also complainants or third parties. 

(13)  Article 18(4) specifies that owners of the undertakings or their representatives and, in the case of 
legal  persons,  companies  or  firms,  or  associations  having  no  legal  personality,  the  persons 
authorised  to  represent  them  by  law  or  by  their  constitution  should  supply  the  information 
requested on behalf of the undertaking or the association of undertakings concerned. Article 18(4) 
adds  also  that  lawyers  duly  authorised  may  supply  the  information  on  behalf  or  their  clients.  In 
that case the undertaking or the association of undertakings will still remain fully responsible if the 
information supplied is incomplete, incorrect or misleading. 

(14) 

(15) 

(16) 

If  a  duly  authorised  lawyer  has  been  appointed  (power  of  attorney  in  the  file),  a  request  for 
information  can  either  be  sent  to  the  undertaking  care  of  (c/o)  its  lawyer  or  be  sent  to  the 
undertaking with a courtesy copy to the lawyer.  

If no lawyer has been duly authorised, the request for information must be addressed directly to 
the undertaking or association of undertakings. 

Pursuant to Article 11(2) of Regulation No 1/2003 DG Competition sends a copy of the request 
for  information  to  the  relevant  NCAs  of  where  the  addressee  of  the  request  for  information  is 
located.  

Addressees located outside the EU 

(17)  Requests can be sent to undertakings and associations of undertakings in an EFTA country that is 
member  of  the  European  Economic  Area  (EEA),  i.e.  Norway,  Iceland,  Liechtenstein  (but  not 
including  Switzerland).  Such  request  can  be  drafted  in  the  same  way  as  requests  to  companies 
located within the EU including the possibility of imposing fines.  

Commission is bound by the principle of proportionality and, in relation to Article 18(3) decisions, must respect 
the privilege against self-incrimination. 

4  

See the Best Practice on the submission of economic evidence. 

                                                                                                                                                                      
 
Antitrust Manual of Procedures 

(18)  The  EFTA  Surveillance  Authority  (ESA)  must  receive  a  copy  of  such  requests  (as  well  as  of 
decisions  under  Article  18  (3)  of  Regulation  1/2003).  This  must  be  indicated  on  the  stamp 
showing to whom copies of the request for information must be sent. 

(19)  Requests for information may also be sent to undertakings / associations of undertakings outside 
the  EEA.  Where  the  undertaking  has  a  subsidiary  within  the  EEA,  the  request  may  be  sent  in 
addition to the subsidiary. If the request is sent to the undertaking located outside the EEA, the 
section relating to fines and periodic penalty payments as well as the relevant sections in the annex 
are not applicable.  

(20)  The  letters  can  be  sent  directly  to  the  undertakings  and  do  not  need  to  be  channelled  through 

delegations of the EU in the respective countries.  

2.3.  Languages 

(21) 

Pursuant to Article 3(1) of Council Regulation No 1 of 15 April 1958 determining the languages to 
be  used  by  the  European  Economic  Community5,  addressees  of  requests  for  information  are 
entitled to receive them in one of the languages of the Member States where they are located. As 
far  as  complainants  are  concerned,  requests  for  information  must  be  in  the  language  of  their 
complaint (as long as is it one of the EU official languages) even if this is not the language of the 
Member State where they are located (see further in the Module Use of languages). 

(22)  As regards simple requests for information it is standard practice to send the cover letter in the 
language of the addressee's location or in English (including a reference to Article 3 of Regulation 
1 of 15 April 1958) and to attach the questionnaire in English. The addressee is informed – in the 
language of the addressee’s location – of its right to obtain a translation of the cover letter and/or 
questionnaire  into  the  language  of  the  addressee's  location,  as  well  as  the  right  to  reply  in  that 
language.  This  practice  allows  for  more  expeditious  treatment  of  information  request,  while 
preserving the rights of addressees. 

2.4.  Drafting simple requests for information 

(23)  A  simple  request  for  information  (Art  18  (2))  contains  a  cover  letter  and  generally  four/five 

annexes. 

(24)  The cover letter states the legal basis and the purpose of the request. It fixes the time-limit within 
which  the  information  is  to  be  provided,  indicates  the  penalties  provided  for  in  Article 23  for 
supplying incorrect or misleading information, specifies the need of providing a non-confidential 
version and mentions the contact details of the case team.   

(25)  Undertakings must be given a reasonable time-limit to reply to the request, according to the length 
and  complexity  of  the  request  taking  into  account  the  requirements  of  the  investigation.  In 
general,  this  time  limit  will  be  at  least  two  weeks  from  the  receipt  of  the  request.  If  from  the 
outset, it is considered that a longer period is required, the time limit to rely to the request will be 
set  accordingly.  When  the  scope  of  the  request  is  limited,  for  example  if  it  only  covers  a  short 
clarification of information previously provided or information readily available to the addressee 
of the request, the time limit will normally be shorter (one week or less). It is better to fix a date 
for the reply and not a period: e.g. "You are requested to ensure that your reply to the attached 
questionnaire reaches the Commission no later than [DATE FOR REPLY]." 

5  

OJ 17, 6.10.1958, p. 385–386, English special edition: Series I Chapter 1952-1958 page 59. 

                                                 
Page 5/15 – Requests for Information  

(26)  The  cover  letter  also  requires  the  addressee  to  indicate  whether  it  considers  that  information 
provided  in  the  reply  is  confidential.  In  that  case,  in  accordance  with  Article  16(3)  of  Reg. 
773/2004,  the  addressee  must  substantiate  its  claims  individually  with  regard  to  each  item  of 
information  and  provide  a  non-confidential  version of the  information. Such  a non-confidential 
version should be provided in the same format as the confidential information, replacing deleted 
passages  by  summaries  thereof.  Unless  otherwise  agreed,  a  non-confidential  version  should  be 
provided  at  the  same  time  as  the  original  submission.  If  undertakings  fail  to  comply  with  these 
requirements, the Commission may assume that the documents or statements concerned do not 
contain confidential information pursuant to Article 16(4) of Reg. 773/2004. 

(27)  When the first investigative measure is addressed to them, addressees are informed of the fact that 
they  are  subject  to  a  preliminary  investigation  and  of  the  subject-matter  and  purpose  of  such 
investigation. Addressees are also reminded that if the behaviour under investigation is found to 
have taken place this might constitute an infringement of Articles 101 and/or 102 TFEU.  

(28)  The main annex is the questionnaire, being the list of questions which have to be answered by the 
addressee. To set the background for the questions, the questionnaire informs the addressee about 
the  subject–matter  and  purpose  of  the  investigation.  Questions  should  not  invite  self-
incriminatory replies (see further section 5). 

(29)  Another  important  annex  is  the  annex  "Business  secrets  and  other  confidential  information" 
explaining  the  concepts  of  business  secrets  and  confidential  information,  which  gives  more 
practical guidance on confidentiality claims than the Notice on Access to file (notably including an 
example of a table for such claims). 

(30) 

If not explained in the cover-letter, one annex provides guidance on how to reply to the request 
for information in the most efficient manner.  

(31)  One annex recalls the relevant legal provisions, namely the relevant provisions of Reg. 1/2003 i.e. 

Articles 18(1), (2) and (4) and Article 2(1)(a). 

(32)  The  annex  "Acknowledgement  of  receipt"  is  enclosed,  to  be  completed  and  returned  by  fax  to 

DG Competition immediately upon receipt of the request for information. . 

(33) 

In certain cases DG Competition might discuss with the addressees the scope and the format of 
the  request  for  information.  This  practice  can  be  particularly  useful  in  cases  of  requests  which 
require quantitative data to be provided.6  

2.5.  Sending the requests for information 

(34)  Requests  for  information  are  normally  signed  by  or  on  behalf  of  the  Head  of  Unit  or  case-

manager.  

(35) 

It  is  advisable  to  send  the  request  by  fax  or  e-mail,  if  channels  of  communication  with  the 
addressee  have  already  been  established.  If  a  large  number  of  documents  or  handwritten 
documents in particular are attached to the request, it is advisable to send the request by registered 
post  (see  below).  The  addressee  should  be  asked  to  return  the  acknowledgement  of  receipt 
attached to the letter.  

(36)  Requests for information may also be sent by registered post with acknowledgement of receipt, or 
by courier. In this case, when setting the time-limit, account must be taken of the time necessary 
to deliver the letter. 

6  

See the Best Practices on the submission of economic evidence. 

                                                 
Antitrust Manual of Procedures 

(37)  Requests for information  can  also  be sent electronically through the eQuestionnaire application, 
which provides respondents with secure and efficient web-based workspace to submit their replies 
to the Commission.  

(38) 

(39) 

Irrespective  of  the  type  of  delivery  chosen,  the  request  must  be  registered  and  uploaded  by  the 
Registry in the case management application. 

Pursuant to Article 18(5), a copy of the request should be sent to the NCA of the Member State 
where  the  addressee  is  located  as  well  as  to  the  NCA  of  the  Member  State  whose  territory  is 
affected. The case team must indicate on the minute to which NCAs the request must be copied. 
The Registry takes care of sending the copy to the relevant NCA(s). 

2.6.  Follow-up of requests for information  

Sending the reply to NCAs 

(40)  The Commission services may provide NCAs with copies of replies to a request for information, 
but the provisions of Article 11(2) of Regulation No 1/2003 are not regarded as containing any 
obligation  in  this  respect.  If  the  undertaking  concerned has claimed confidentiality in  respect of 
certain  parts  of  its  reply,  the  NCA  should  be  reminded  of  the  fact  that  the  provision  of 
information is governed by Articles 11 and 28 of Regulation No 1/2003, and be informed about 
the undertaking's confidentiality claims.  Alternatively, the case team and the NCA may agree that 
the latter receives the non-confidential version for the reply. 

Reminders and requests for extension 

(41) 

(42) 

If  so  requested  by  the  addressee,  an  extension  of  the  time-limit  may  be  granted.  The  addressee 
should  provide  the  reasons  for  the  request  for  the  extension  of  the  time-limit,  sufficiently  in 
advance to the expiry of the time limit, in writing (letter or e-mail). If the Commission considers 
the request to be justified, additional time (depending on the complexity of the information asked 
and  other  factors)  will  be  granted.  The  Commission  may  also  agree  with  the  addressee  of  the 
request that certain parts of the requested information that are of particular importance or easily 
available for the addressee will be supplied within a shorter time limit, whereas additional time will 
be  granted  for  supplying  the  remaining  information.  In  case  an  extension  of  the  time-limit  is 
granted, the new time-limit must be communicated to the addressee.  

If undertakings replied to the request but did not send a non-confidential version of their reply or 
did not substantiate their claim for confidentiality and provide a concise description of each piece 
of  deleted  information,  one  or  two  reminder(s)  are  normally  sent.  If  the  undertakings  do  not 
comply  with  their  obligations  to  provide  a  non-confidential  version,  particularly  if  reminded  of 
them, the Commission may assume that the information provided is accessible (see Article 16 (4) 
Reg. 773/2004)7. Only if certain information is very obviously confidential, the Commission may 
draw up a non-confidential version itself. 

Incorrect or misleading replies to the request for information 

(43) 

Fines may be imposed according to Article 23 (1)(a) by decision on undertakings and associations 
of undertakings where, intentionally or negligently they supply incorrect or misleading information 
in response to a simple request made pursuant to Article 18(2). See further section 4. 

7  

See details in the Module on Access to the file. 

                                                 
Page 7/15 – Requests for Information  

Absence of reply to the request for information 

(44) 

If the undertaking requested does not reply to the request for information, the Commission may 
choose to send a request for information by decision (Article 18(3). 

Privilege against self-incrimination 

(45)  The questions should be framed so they do not solicit self-incriminatory replies.  

(46)  Where the addressee of a request for information pursuant to Article 18(2) Reg. 1/2003 refuses to 
reply to a question in such a request invoking the privilege against self-incrimination, as defined by 
the case-law of the Court of Justice of the European Union8, it may refer the matter in due time 
following the receipt of the request to the Hearing Officer, after having raised the matter with DG 
Competition before the expiry of the original time limit set9. The addressee may also simply not 
reply to this question. 

(47) 

In  appropriate  cases,  and  having  regard  to  the  need  to  avoid  undue  delay  in  proceedings,  the 
Hearing  Officer  may  make  a  reasoned  recommendation  as  to  whether  the  privilege  against  self-
incrimination applies and inform the  director responsible of the conclusions drawn, to be taken 
into account in case of any decision taken subsequently pursuant to Article 18(3) Reg.1/2003. The 
addressee of the request shall receive a copy of the reasoned recommendation. The addressee of 
an Article 18(3) decision will be reminded of the privilege against self-incrimination as defined by 
case law of the Court of Justice of the European Union10 This procedure allows discussions with 
the addressee on possibly self-incriminatory questions to be settled at an early stage, before issuing 
an Article 18(3) request (for details see section 5 below). 

3.  Decision requiring information (Article 

18(3)) 

3.1.  General principles and content 

(48) 

Pursuant to Article 18(3) of Reg. 1/2003, the Commission can directly adopt a decision requiring 
the  information  to  be  supplied  by  companies  located  in  the  EEA.  It  is  not  necessary  to  send  a 
request for information according to Art 18 (2) before proceeding to the adoption of a decision 
according to Article 18 (3). 

(49)  Requests for information by decision must be reasoned like any other act of the European Union 
(Article 296 TFEU). Lack of reasoning may lead to the decision being annulled on the basis of a 
challenge pursuant to Article 263 TFEU. The reasoning may however be very concise. 

(50)  The decision must: 

–  state the legal basis and the purpose of the request; 

–  specify what information is needed; 

8  

9  

10  

See for example Case C-301/04 P Commission v SGL, [2006] ECR I-5915, which specifies that addressees of an 
Article  18(3)  decision  may  be  required  to  provide  pre-existing  documents,  such  as  minutes  of  cartel  meetings, 
even if those documents may incriminate the party providing them. 

Article 4(2)(b) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 36. 

See footnote 33. 

                                                 
Antitrust Manual of Procedures 

–  fix the day by which the requested information has to be provided; 

–  indicate  the  possibility  of  imposing  fines  according  to  Article  23(1)(b)  if  the  addressee  supplies 
incorrect,  incomplete  or  misleading  information  or  does  not  supply  information  within  the 
required time-limit; 

–  indicate  or  impose  the  penalties  provided  for  in  Article  24(1)(d)  if  they  supply  incomplete  or 

incorrect information; 

–  indicate  the  right  to  have  the  decision  reviewed  by  the  General  Court  according  to  Article  263 
TFEU and warn that such appeal does not have suspensive effect unless expressly accorded by 
the General Court (Article 278 TFEU). 

(51)  The decision takes effect upon its notification to the undertaking (Article 297 of the Treaty). 

(52) 

In  the  context  of  decisions  requiring  information,  addressees  will  be  reminded  of  the  privilege 
against  providing  self-incriminating  information  (see  further  below)  and  that  if  the  behaviour 
under  investigation  is  confirmed  to  have  taken  place  this  might  constitute  an  infringement  of 
Articles 101 and/or 102 TFEU.11 

(53)  The decision requiring information is addressed to the undertaking(s) concerned and follows the 
same rule of language as for the letter requesting information (Article 18(2) – see above 2.3). Note 
that if a language waiver has been given, it should be expressed in the decision itself, such as "The 
Commission  notes  that  [ADDRESSEE]  accepts  that  the  decision  be  adopted  in  the  [chosen 
language]". 

(54) 

Similar to simple requests for information, the owners of the undertakings or their representatives 
and, in the case of legal persons, companies or firms, or associations having no legal personality, 
the  persons  authorised  to  represent  them  by  law  or  by  their  constitution  must  supply  the 
information requested on behalf of the undertaking or the association of undertakings concerned. 
Lawyers duly authorised to act may supply the  information on behalf of their clients. The latter 
must remain fully responsible if the information supplied is incomplete, incorrect or misleading. 

(55)  Where  the  addressee  of  a  decision  requesting  information  pursuant  to  Article  18(3)  Regulation 
(EC)  No  1/2003  is  unable  to  resolve  its  concerns  about  the  time  limit  through  the  procedure 
outlined above, it may refer the matter to the Hearing Officer. Such a request should be made in 
due time before the expiry of the original time limit set12. The Hearing Officer decides on whether 
an extension of the time limit should be granted, taking account of the length and complexity of 
the request for information and the requirements of the investigation. 

(56) 

(57) 

11  

12  

Fines may be imposed according to Article 23(1)(b) by decision on undertakings and associations 
of  undertakings  where,  intentionally  or  negligently  in  response  to  a  request  made  by  decision 
adopted pursuant to Article 18(3), they supply incorrect, incomplete or misleading information or 
do not supply information within the required time-limit. Fines according to Article 23(1)(b) can 
be combined with periodic penalty payments under Article 24 (1)(d). 

If a decision pursuant to Article 18(3) is combined with a decision setting (the provisional amount 
of) periodic penalty payments pursuant to Article 24(1)(d), the Article 18 (3) decision will specify 
the provisional level of the daily penalty payments (up to 5% of the average daily turnover in the 
preceding business year). The final amount of the penalty will then be fixed in a second decision 
pursuant to Article 24(2) (see below and Module on Periodic penalty payments) based on the level 
of  penalty  payments  per  day  fixed  in  the  preceding  Art  18  (3)  decision.  However,  if  the 

See Case T-99/04, AC Treuhand v Commission [2008] ECR II-1501, pt. 56-57. 

Article 4(2)(c) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 40. 

                                                 
Page 9/15 – Requests for Information  

information has been provided, the Commission may calculate the penalty payment on the basis 
of a lower amount as fixed in the preceding Article 18 (3) decision (cf. Article 24 (2)). 

3.2.  Procedural steps 

(58)  The Commissioner in charge of competition is empowered to adopt decisions pursuant to Article 
18(3)  and  Article  24(1)  on  behalf  of  the  Commission  (empowerment  decision  of  28.04.2004, 
PV(2004)1655).  The  Commissioner  has  sub-delegated  to  the  Director-General  for  Competition 
both  a)  the  power  to  adopt  a  decision  requesting  information  under  Article  18(3)  of  Regulation 
1/2003 and b) the power to adopt a decision imposing (provisional) periodic penalty payments on 
undertakings or associations of undertakings. 

(59)  One has to distinguish: 

–  decisions  requesting  information  pursuant  to  Article  18(3)  (without  imposing  periodic  penalty 

payments); 

–  decisions requesting information and imposing (provisional) periodic penalty payments pursuant 

to Article 18 (3) and Article 24 (1)(d)/24(2). 

Decision requesting information without periodic penalty payments 

(60)  The  decision  is  adopted  by  sub-delegation  by  the  Director  General  of  DG  COMP  after 

consultation of the Legal Service. 

(61)  A copy of the decision should be forwarded to the competition authorities of the Member States 
concerned  (i.e.  in  whose  territory  the  addressee  of  the  decision  is  located)  and  to  ESA  if  an 
undertaking in an EFTA country party to the EEA agreement is concerned. 

(62)  A decision under Art 18 (3) without the provisional imposition of periodic penalty payments has 

not to be published pursuant to Article 30 Reg. 1/2003. 

Decision requiring information and imposing periodic penalty 
payments 

(63)  The  procedure  is  composed  of  two  phases  (for  more  details  see  also  the  Module  on  Periodic 

Penalty Payments): 

First phase: first decision requiring information    

imposing (provisional) penalty payments in its   
operative part 

(64)  The procedural steps are the following: 

–  Consultation  of  the  Legal  Service.  The  draft  decision  should  set  the  provisional  amount  of  the 
penalties (up to 5% of the average daily turnover in the preceding business year per day) and fix 
the starting date. 

–  Information  to  the  Commission  departments  primarily  responsible  for  the  products,  services  or 
policy  areas  in  issue  and  giving  those  departments  the  opportunity  to  state  their  view.  This 
information may be done in parallel with the consultation of the LS. 

–  The AC is not consulted. 

  
  
Antitrust Manual of Procedures 

–  Adoption by sub-delegation of the decision. 

(65)  A copy of the decision should be forwarded to the competition authorities of the Member States 
concerned  (i.e.  in  whose  territory  the  addressee  of  the  decision  is  located)  and  to  ESA  if  an 
undertaking in an EFTA country party to the EEA agreement is concerned. 

(66)  A decision under Art 18 (3) with the provisional imposition of periodic penalty payments has not 
to be published pursuant to Article 30, however the final decision Article 24(2) (see below). 

Second phase: second decision fixing the final amount of the penalties 13 

(67) 

Please  consult  the  Module  on  Periodic  Penalty  Payments.  The  main  procedural  steps  are  as 
follows: 

–  As soon as the time limit to supply information has expired, a letter signed by the Director is sent 
to  the  undertaking  reminding  the  financial  consequences  of  the  non-compliance  with  the 
decision. 

–  Once the information has been supplied  (after  the expiry of the deadline mentioned in the first 
decision,  otherwise  there  is  no  second  decision),  a  statement  of  objections  (SO)  indicating  the 
calculation of the final amount of the penalties is drafted and sent for consultation.  

–  Once having received the approval of the LS and having informed the other DGs concerned, the 
SO14  is  adopted  by  empowerment  procedure  by  the  Commissioner  in  charge  of  Competition 
policy15 and notified to the undertaking by the Secretariat General (hereafter SG). The definitive 
amount  of  the  periodic  penalty  payment  may  be  fixed  at  a  figure  lower  than  that  which  would 
arise under the original decision (Article 24(2) of Regulation 1/2003). 

–  Access  to  the  file  will  be  limited  to  the  request  for  information  which  was  at  the  origin  of  the 
envisaged  decision  and  the  subsequent  correspondence  on  this  matter  with  the  undertaking 
concerned. 

–  Oral hearing (if requested by the undertaking). 

–  Preparation  of  the  draft  decision:  approval  of  the  LS  and  consultation  of  the  DGs  primarily 
responsible for the products, services or policy areas in issue; approval of the Commissioner. 

–  Consultation of the AC on the draft decision. 

–  Adoption of the decision by written procedure, generally. 

–  Notification  by  SG  to  the  addressees  (together  with  the  Hearing  Officer’s  (hereafter  HO)  final 

report and AC opinion). 

–  Communication of the decision to Member States and ESA if EEA-relevant case: A copy of the 
decision  Article  24(2)  should  without  delay  be  forwarded  to  the  competition  authority  of  the 

13  

14  

15  

For  the  necessity  of  a  two  step  procedure  with  a  first decision  setting  the  level  of  the  provisional  daily  penalty 
and  the  second  decision  imposing  the  final  penalty  see  ECJ  judgment  of  22  September  1989,  Hoechst  v 
Commission,  joint  cases  46/87  and  227/88,  ECR  [1989]  2859.  The  Court  confirmed  in  this  judgment  that  the 
Commission does not need to send an SO and hold an oral hearing prior to the first decision fixing the provisional 
periodic  penalty.  However,  before  sending  the  second  definitive  decision  on  the  final  penalty,  this  obligation 
exists.  The  imposition  of  penalty  payments  is  therefore  procedurally  burdensome.  In  order  to  shorten  it,  one 
should combine the Art 18 (3) decision with the first decision under Art 24 (1) d. 

Issued pursuant to Article 27(1) of Regulation No 1/2003. 

Empowerment decision of 28.4.2004, PV(2004)1655. 

                                                 
Page 11/15 – Requests for Information  

Member  State  in  whose  territory  the  seat  of  the  undertaking  is  situated  and  the  competition 
authority of the Member State whose territory is affected. 

–  Press release. 

–  Publication  of  the  decision  (Article  30  Reg.  1/2003)  (see  detailed  instructions  on  this  in  the 

Module on Publication of Decisions).  

–  Recovery of the penalty payment (see relevant Module on Follow-up of decisions) 

–  The decision might be reviewed by the General Court, if appealed. 

4.  Decision imposing fines or penalties 

(68) 

It  will  depend  on  the  individual  situation  whether  it  is  more  appropriate  to  adopt  a  decision 
imposing  fines  pursuant  to  Article  23(1)(b)  or  a  decision  imposing  periodic  penalty  payments 
pursuant  to  Article  24(1)(d).  Fines  according  to  Article  23  can  also  be  combined  with  period 
penalty payments according to Article 24. In setting the level of the fines one ought to take into 
account the periodic penalty payments already imposed and vice versa. 

(69) 

Fines  may  be  imposed  according  to  Article  23  by  decision  on  undertakings  and  associations  of 
undertakings where, intentionally or negligently: 

– they supply incorrect or misleading information in response to a simple request made pursuant to 

Article 17 or Article 18(2) (Article 23 (1)(a)); or 

– in response to a request made by decision adopted pursuant to Article 17 or Article18(3), they 

supply incorrect, incomplete or misleading information or do not supply information within 
the required time-limit (Article 23(1)(b)). 

(70) 

Periodic  penalty  payments  (Article  24(1)(d))  may  be  imposed  by  decision  on  undertakings  and 
associations of undertakings in order to compel them to supply complete and correct information 
which has been requested by decision pursuant to Article 17 or Article 18(3). 

5.  Limits of the power to ask for information: 
the privilege against self-incrimination 

5.1.  The Basic Principle 

(71)  The  privilege  against  self-incrimination  protects  undertakings  against  the  obligation  to  reply  to 
self-incriminating questions, i.e. to admit the existence of an infringement of EU competition law 
(in which they participated).  

(72)  According to the case law as established in Orkem16 an undertaking can only invoke the privilege 
against self-incrimination if two conditions are fulfilled: (1) the undertaking was asked to admit the 
existence  of  an  infringement  of  EU  competition  law  (in  which  it  participated)  and  (2)  it  was 
compelled  to  answer  the  question.    However,  the  Best  Practice  Guidelines  and  the  Hearing 
Officer’s Mandate foresee the possibility for undertakings to raise concerns with DG Competition 

16  

Case 374/87, Orkem v. Commission [1989] ECR 3283 

                                                 
Antitrust Manual of Procedures 

and the Hearing Officer about self incrimination already when they are the addressees of request 
for information pursuant to Article 18(2), in order to settle discussions at the earliest stage.  

(73)  The  privilege  against  self-incrimination  does  not  apply  when  answering  questions  asked  in  the 
context of requests made under Article 18(2) (simple requests for information, interviews, simple 
inspections).  This  is  due  to  the  fact  that  the  undertaking  is  not  compelled  to  answer  these 
questions. It replies on a voluntary basis. If an undertaking replies in a self-incriminating manner 
to questions that it is not compelled to reply to (ie a reply which goes beyond the Commission’s 
investigatory  powers)  that  reply  may  be  considered  as  spontaneous  cooperation  on  the 
undertaking’s  part  capable  of  justifying  a  reduction  in  a  possible  fine  outside  the  scope  of  the 
Leniency Notice. 

5.2.   Definition of Self-Incrimination 

(74) 

In  the  Orkem-judgment  (para.  34)  the  ECJ  stated  that  the  “Commission  may  not  compel  an 
undertaking  to  provide  it  with  answers  which  might  involve  an  admission  on  its  part  of  the 
existence of an infringement which it is incumbent upon the Commission to prove” The precise 
distinction between self-incriminating questions and lawful questions may sometimes be difficult 
to draw. However the following indications might be helpful. 

(75)  Whether a question is of a self-incriminating nature or not should be assessed from an objective 
perspective  (average  and  reasonable  respondent)  rather  than  the  perspective  of  the  individual 
addressee  (subjective  perspective).  It  is  not  relevant  which  information  the  Commission  already 
has in its possession when asking a question. This approach ensures an objective interpretation of 
the  law,  consistent  with  the  principle  of  legal  certainty.  It  is  recommended  to  assess  whether  a 
company can answer a question truthfully without an admission of guilt.  

5.3.  Categories of questions that are admissible 

(76) 

In  line  with  the  existing  case  law  two  types  of  questions  are  fully  compatible  with  the  privilege 
against self-incrimination (i.e. these types of questions are lawful). 

(77)  The provision of documentary17 evidence already in the possession of the undertaking may always 
be requested without infringing the privilege against self-incrimination. This applies regardless of 
whether or not the documents at issue contain incriminating evidence which may be used against 
the addressee of the request or against any other third party.  

(78)  Questions  seeking  purely  factual  information  are  normally  admissible  and  do  not  infringe  the 

privilege against self-incrimination  

5.4.  How to react if a company claims that a 

question is of a self-incriminating nature 

(79)  Where the addressee of a request for information pursuant to Article 18(2) of Regulation 1/2003 
refuses to reply to a question in such a request invoking the privilege against self-incrimination, as 
defined by the case law of the Court of Justice of the European Union18, it may raise the matter 

17  

18  

It is submitted that “document” does not only mean written notes but in accordance with footnote         12 of the 
Commission Notice of 13 December 2005 on the Rules for Access to the Commission file “all forms of information 
support,  irrespective  of  the  storage  medium.  This  covers  also  any  electronic  data  storage  device  as  may  be  or 
become available.” 

See for example Case C-301/04 P Commission v. SGL, [2006] ECR I-5915, which specifies that addressees of an 
Article  18(3)  decision  may  be  required  to  provide  pre-existing  documents,  such  as  minutes  of  cartel  meetings, 
even if those documents may incriminate the party providing them. 

                                                 
Page 13/15 – Requests for Information  

(80) 

(81) 

(82) 

with DG Competition  before  the  expiry of  the original time limit  set19, otherwise it may simply 
not reply to this question and settle the discussion, if the questions infringe the privilege against 
self-incrimination, in the framework of an Article 18(3) decision.  

If  DG  Competition  is  convinced  that  its  questions  were  not  of  a  self-incriminating  nature,  it 
should inform the addressee of the request for information of its position.  

If, after having been informed of DG Competition's position, the undertaking still maintains that 
the  questions  addressed  to  it  are  self-incriminating,  it  may  refer  the  matter  in  due  time  to  the 
Hearing  Officer.  In  appropriate  cases,  and  having  regard  to  the  need  to  avoid  undue  delay  in 
proceedings,  the  Hearing  Officer  may  make  a  reasoned  recommendation  to  the  Competition 
Commissioner  as  to  whether  the  privilege  against  self-incrimination  applies  and  inform  the 
director responsible of the conclusions drawn. The addressee of the request receives a copy of the 
reasoned recommendation.  

If,  following  the  undertaking's  refusal  to  reply  to  the  simple  request  for  information,  a  decision 
pursuant to Article 18(3) is adopted, such decision should take into account the Hearing Officer's 
reasoned opinion. The addressee of the Article 18(3) decision will in any case be reminded of the 
privilege against self-incrimination as defined by case law of the Court of Justice of the European 
Union20. 

6.  Request for and use of information from 

national competition authorities (Article 12 
and 18 of Reg. 1/2003) 

(83)  This  section  contains  in  brief  the  steps  to  take  when  the  Commission  wishes  to  obtain 
information  from  NCAs  for  the  purposes  of  the  enforcement  of  Articles  101  or  102  TFUE. 
Please see also the module dealing with cooperation within the Network.  

(84)  Because  requests  may  create  additional  work  to  the  contacted  NCA,  it  is  recommended  for  the 
case-handlers  to  first  explore  informally  what  kind  of    information  is  in  possession  of  the 
requested NCA. That would allow presenting focused requests. 

6.1.  Choosing the legal basis of the request 

(85)  The  Commission  can  formally  request  information  and  documents  from  the  NCAs  pursuant  to 

Articles 12 and 18 of Regulation 1/2003. 

(86)  The request should in principle be made pursuant to Article 12. These requests are addressed to 
the NCA or a particular contact person (Authorised Disclosure Officer, ADO) in that authority. 
They can be signed by the competent head of unit, as explained below. 

(87)  A request pursuant to Article 18(6) can be addressed formally to the government or to the NCA 

of the Member State (see below). 

(88) 

Information can also be sought informally from the NCA, without making reference to Article 18 
(or Article 12).  

19  

20 

Article 4(2)(b) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 36. 

See for example Case C-301/04 P Commission v. SGL, [2006] ECR I-5915, which specifies that addressees of an 
Article  18(3)  decision  may  be  required  to  provide  pre-existing  documents,  such  as  minutes  of  cartel  meetings, 
even if those documents may incriminate the party providing them. 

                                                 
Antitrust Manual of Procedures 

6.2.  Request based on Article 12 

(89)  WARNING:  For  exchanges  of  information  in  leniency  cases, some  very strict safeguards apply. 
They are described in the Module on leniency. Before asking for information in a case where an 
NCA has received a leniency application, read carefully the leniency Module. 

Contents of the request based on Article 12 

(90) 

(91) 

Since  the  request  itself  should  not  impose  a  translation  burden  upon  the  requested  NCA,  one 
should use a language that is understood by the latter. 

It is recommended that the request is submitted in writing (email/fax/letter). At the demand of 
the requested NCA, the request should be submitted in writing. There is a standard form for the 
Article 12 exchanges adopted by the Network.  

(92)  At  the  demand  of  the  requested  NCA,  the  request  should  contain  all  or  some  of  the  elements 

provided for by the standard form: 

–  identification of the undertakings and entities concerned; 

–  specification of the information requested as detailed as possible; 

–  information as to why the exchange is requested with some detail as to: 

• 

• 

the direction of the investigations (e.g. prohibition, imposition of fine); 

the gravity or seriousness of the matter (e.g. hard core cartel or other 
restriction of competition – economic importance); 

•  how it is intended to use the information and for what purpose (e.g. use as 

evidence to prove the infringement). 

(93) 

If the information is needed by a given date, that request should be substantiated. 

(94)  The head of unit responsible for the investigation can sign such a request. 

To whom should the request based on Article 12 be sent 

(95)  There is no rule regarding to whom the request based on Article 12 should be sent. However, the 
NCA  may  recommend  to  other  Network  members  that the requests  are  sent for example to its 
general contact point or to its Authorised Disclosure Officer (ADO). 

Use of the received information 

(96) 

Information received from other Network members in accordance with Article 12 can be used in 
evidence by the Commission like any other information in the Commission’s possession, with the 
following exceptions, limitations and procedural rules. 

(97)  Article 12 requires that the use should take place in respect of the subject-matter for which it was collected 

by the transmitting authority.  

Page 15/15 – Requests for Information  

(98)  According to the Court of Justice it is not necessary “to delimit precisely the relevant market, to 
set  out  the  exact  legal  nature  of  the  presumed  infringement  and  to  indicate  the  period  during 
which those infringements were committed” in order to determine the subject matter of a case21.  

(99)  Another  limitation  results  from  the  specific  rules  relating  to  leniency  applications.  If  the  other 
Network  member  had  obtained  the  information  from  a  leniency  applicant,  the  Commission 
cannot use it to start an investigation (see further Module on Leniency). 

(100)  Information received from an NCA is covered by professional secrecy (Article 28 Reg. 1/2003). 

6.3.  Request based on Article 18 

(101)  Pursuant  to  Article  18(6)  of  Regulation  1/2003,  at  the  request  of  the  Commission  the 
governments  and  competition  authorities  of  the  Member  States  must  provide  the  Commission 
with all the necessary information to carry out the duties assigned to it by this Regulation. 

(102)  Formal  requests  for  information  under  Article  18(6)  are  normally  addressed  to  the  competition 

authority of the Member State and signed by the Director-General. 

(103)  In rare occasions it may be necessary to address a request to the government of a Member State. 
In such a situation, it is, depending on the circumstance (to be assessed in each case separately) 
signed  either  by  the  Commissioner  or  the  Director-General.  Formal  requests  addressed  to  a 
government are sent by the SG via the Permanent Representation of the Member State. 

(104)  Requests  for  information  under  Article  18(6)  should  not  make  reference  to  Article  23(1)(a) 
(provisions  on  fines  for  an  inaccurate  reply),  because  this  applies  only  to  undertakings  and 
associations of undertakings. 

(105)  Requests can also be sent to competition authorities and government of third countries. They do 

not need to be channelled through the EU delegation in the country in question.  

21  

Judgment of the ECJ of 17 October 1989, Dow Benelux NV, Case 85/87, ECR [1989] p. 3137, paragraph 10. 

                                                 
 
Page 1/6 – Power to take Statements 

8  Power to take Statements 

1. 

Introduction 

2. 

Purpose and use of the interview 

3. 

Procedural and substantive requirements 

3.1. 

3.2. 

Interviewer 

Interviewee 

3.3.  Location 

3.4.  Warnings at the beginning of the interview 

3.5.  Questions to be asked during the interview 

3.6.  Recording and handling of statements 

3.7.  Access to the file and protection of confidential information 

3.8.  Use of information provided in interviews 

2 

2 

3 

3 

3 

4 

4 

5 

5 

6 

6 

 
Antitrust Manual of Procedures 

1.  Introduction 

(1) 

(2) 

(3) 

Article  19  of  Council  Regulation  1/2003  provides  the  Commission  with  the  possibility  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.  Other  procedural  provisions  on 
carrying out the interviews are provided in Article 3 of the Commission Implementing Regulation. 
For  further  guidance,  see  also  the  Notice  on  best  practices  for  the  conduct  of  proceedings 
concerning Articles 101 and 102 TFEU1 (“Notice on Antitrust Best Practices”), section 2.5.6. 

The information provided by interviewees can be used as evidence in the subsequent course of the 
procedure. 

The interview is carried out on a voluntary basis. Accordingly, the interviewee can discontinue the 
interview  at  any  moment.    It  is  important  to  distinguish  the  possibility  to  conduct  an  interview 
pursuant  to  Article  19  of  Council  Regulation  1/2003  from  the  possibility  to  ask  oral  questions 
during  an  inspection  pursuant  to  Article  20  (2)  (e)  of  Council  Regulation  1/2003.  Only  with 
respect  to  oral  questions  asked  during  inspections  employees  of  an  undertaking  (be  it 
representatives who have the authority to speak on behalf of the undertaking or other members of 
staff)  are  obliged  to  answer  to  questions.  Only  with  respect  to  these  questions  may  the 
Commission  under  certain  conditions  impose  fines  pursuant  to  Article  23  (1)  (d)  of  Council 
Regulation 1/2003 if the answers are incorrect, incomplete, misleading or if the representative fails 
or refuses to reply. 

2.  Purpose and use of the interview 

(4) 

(5) 

(6) 

(7) 

According to Article 19 of Regulation 1/2003, the Commission may carry out interviews for the 
purpose  of  collecting information relating to  the subject matter of an investigation. Accordingly 
interviews are not an instrument merely to gather general information about the market without 
there being any link to an investigation. While Article 19 confirms previous Commission practice 
in  leniency  cases,  it  provides  for  the  first  time  a  possibility  to  conduct  interviews  and  record 
statements in all other cases. This new instrument can be used in a proactive manner, by inviting 
natural/legal persons for an interview. Given the voluntary nature of the interview, however, no 
negative conclusions can normally be drawn from a refusal to be interviewed or to answer certain 
questions (except in the context of immunity applications, where this could amount to a failure to 
cooperate fully). 

As concerns certainty about the subject matter of the investigation, at the time of the interview at 
least one case should be registered with a specific case number. The launching of further cases can 
be the result of the interview, but the interviewee should be asked to confirm that the information 
provided in the interview can also be used for such newly opened cases. 

The  Commission  makes  regular  use  of  this  instrument  in  leniency  cases,  in  which  companies 
provide  on  voluntary  basis  information  that  can  be  used  in  cartel  investigations.  However  the 
instrument is not limited to leniency cases and can also be used to interview persons that are not 
themselves subject to an investigation.  

It  should  be  noted  that  information  provided  by  an  undertaking  on  a  voluntary  basis  during  an 
interview  might  justify  a  reduction  in  the  fine,  irrespective  of  a  specific  leniency  request, 
particularly  where  it  relates  to  self-incriminating  information  which  assists  the  Commission  in 
establishing the infringement. Particular attention needs to be paid to self-incriminating questions 

1  

OJ C 308, 20.10.2011, p. 6. 

                                                 
Page 3/6 – Power to take Statements 

which  –  apart  from  the  fact  that  they  need  not  be  answered  -  could  lead  to  problems  of 
discrimination between applicants in the context of leniency cases. 

(8)  Whilst  it  is  not  excluded  that  the  interviewee  supports his/her statements with further evidence 
(e.g.  documents),  it  is  recommended  to  limit  the  interview  to  oral  statements.  Other  evidence 
should  be  transmitted  either  in  the  framework  of  a  leniency  application  or  following  an 
information  request  (Article  18  of  Council  Regulation  1/2003)  because  in  particular  the  latter 
provides  the  Commission  with  more  guarantees  as  to  the  correctness  and  completeness  of  the 
information provided. 

(9) 

The procedure for taking statements pursuant to Article 19 of Regulation 1/2003 and Article 3 of 
the Implementing Regulation applies only when it is expressly agreed between the interviewee and 
DG Competition that the conversation will be recorded as a formal interview under Article 19. It 
is  within  the  discretion  of  the  Commission  to  decide  when  to  propose  interviews.  A  party  may 
however also make a request to DG Competition to have its statement recorded as an interview. 
Such a request will in principle be accepted, subject to the needs and requirements of the proper 
conduct of the investigation. 

3.  Procedural and substantive requirements 

3.1.  Interviewer 

(10) 

Interviews should be carried out by at least two persons. At least one of the interviewers needs to 
be  a  representative  of  the  Commission  (official,  national  expert  etc.).  Participants  who  are  not 
working  for  the  Commission  need  to  be  authorised  by  the  Commission  to  attend/conduct  the 
interview (e.g. consultant, national regulator). It is recommended that one of the interviewers is at 
least a senior case handler, if not a case manager, deputy head of unit or head of unit. 

(11)  When  the  interviews  take  place  at  the  premises  of  the  undertaking  (located  within  the  EU),  the 
Commission has to inform the competition authority of the Member State in whose territory the 
interview takes place. In such a case the national competition authority can request that (one of) 
its  officials  participate(s)  in  the  interview.  National  Competition  Authorities  should  normally  be 
informed at least 2 weeks in advance. 

3.2.  Interviewee 

(12)  The interviewee can be a natural person or a legal person, which is duly represented by a natural 
person. Typical examples are a current or former member of staff of an undertaking (irrespective 
of their function in the undertaking), experts on specialised matters or a lawyer acting on behalf of 
a client. Employees of an undertaking need to be asked at the beginning of an interview whether 
they act on behalf of the undertaking (as legal person), or on their own behalf (as natural person). 
Unless there are no doubts in that regard, the interviewee should be asked to provide supporting 
documents concerning his identity and function. 

(13)  The interviewee must explicitly consent to being interviewed. As explained above, the interviewee 
can withdraw its consent at any moment and without justification – wholly or in part (e.g. by not 
answering to certain questions). 

(14)  Nobody  can  be  prevented  by  its  current  or  former  employer  from  giving  an  interview,  unless 
he/she acts on behalf of the undertaking. However when assessing the reliability of the statements 
made by the interviewee as evidence in the subsequent procedure the motives of the interviewee 
should be taken into account. 

Antitrust Manual of Procedures 

(15)  The interviewee may decide to be accompanied by a person of his/her choice, e.g. a lawyer. Apart 
from  those  who  assist  the  interviewee  or  the  interviewers,  no  third  party  can  participate  in  the 
interview. In particular, if the employee does not act on behalf of the undertaking, employers have 
no right to be informed about and/or attend the meeting (unless the employee agrees to it). 

(16)  The interviewee can choose the language used in the interview, provided that the language chosen 
is  an  official  language  of  the  European  Union.  If  need  be  the  Commission  has  to  ensure 
appropriate translation. 

3.3.  Location 

(17)  Normally,  interviews  will  take  place  at  the  premises  of  the  Commission,  but  they  can  also  be 
carried out elsewhere, e.g. in the office of a national competition authority or the premises of the 
undertaking concerned. In the latter case the Commission needs – as indicated above – to inform 
the competition authority concerned and permit their presence in the interview. 

(18)  Whilst interviews normally require the physical presence of the interviewee and the interviewer in 
the  same  room,  interviews  can  also  be  carried  by  any  means,  e.g.  by  telephone  or  video 
conference. 

3.4.  Warnings at the beginning of the interview 

(19)  Before the interview begins, the interviewer is obliged to draw the attention of the interviewee to 
the following issues (for example, by reading out the statement he is required to sign at the end of 
the interview): 

–  the legal basis of the interview (Article 19 of Regulation 1/2003 and Article 3 of the Implementing 

Regulation); 

–  the voluntary nature of the interview (consent of the interviewee required); 

–  the  purpose  of  the  interview  (i.e.  collecting  information  relating  to  the  subject  matter  of  an 

investigation);  

–  the possibility to record the interview and the intention to do so in the case at question. 

(20) 

In addition, it is recommended to draw the attention of the interviewee to the facts that: 

–  he/she is entitled to be accompanied by a lawyer; 

–  at a later stage it might be necessary to grant access to file. For this purpose it is recommended to 
discuss  with  the  interviewee  (in  particular  when  it  is  a  natural  person  that  makes  a  statement 
without  the  knowledge  of  its  current  or  former  employer)  whether  he  would  prefer  –  to  the 
extent possible – to remain anonymous. 

–  some  questions  might  be  of  a  self-incriminatory  nature.  In  this  case  the  interviewer  should  also 
explain the legal consequences of answering to these questions. In case of immunity applicants, it 
should in particular be pointed out that not answering the questions can affect the Commission’s 
assessment of continued cooperation on the part of the applicant. As regards leniency applicants, 
it could be mentioned in a neutral manner that such replies can affect the final determination of 
the reduction within the granted reduction range. For other undertakings interviewed, it should be 
mentioned that replying to such questions (on behalf of the undertaking concerned) might justify 
reduction  of  a  fine  later  imposed  by  the  Commission,  if  the  information  provided  assists  the 
Commission  in  establishing  an  infringement  (for  which  the  undertaking  could  be  held 

Page 5/6 – Power to take Statements 

responsible).  However,  in  any  event  it  should  be  stated  at  the  same  time  that  there  is  no 
obligation whatsoever to answer such questions. 

–  That the information obtained can be provided to national competition authorities under Article 
12 of Regulation 1/2003 and used in evidence for the application of Article 101 and 102 TFEU, 
including  for  the  purpose  of  imposing  (pecuniary)  sanctions  on  natural  persons  where  the 
conditions of national law of the receiving authority are fulfilled. 

(21)  To certify that the interviewers have fulfilled the legal obligations, it is recommended to make the 
interviewee  sign  a  statement  which  confirms  this.  The  statement  should  be  presented  to  the 
interviewee’s signature at the end of the interview (see model for such a statement). 

3.5.  Questions to be asked during the interview 

(22)  As explained above, all questions asked during the interview must relate to the subject matter of 

an investigation. 

(23)  Taking into account that the interviewee is not obliged to actively cooperate with the Commission 
and that no sanctions can be imposed in case of non-cooperation, in interviews it is permitted to 
ask self-incriminatory questions. 

3.6.  Recording and handling of statements 

(24)  The Commission is entitled to record the statements of the interviewee. This can be done by  

–  taking notes and preparing minutes; 

–  recording the entire interview on tape or any other medium and preparing a transcript (see Article 

3 (2) of Commission Regulation 773/2004); 

–  allowing the interviewee to submit a written version of the statements provided. 

(25) 

(26) 

(27) 

It  is  for  the  interviewers  to  decide  which  is  the  best  type  of  recording  for  the  case  in  question 
taking into account the need to use the statement as evidence in the subsequent procedure with 
the necessary authentication of the statement by the interviewee and the need of the interviewee to 
protect  its  legitimate  interests  (e.g.  risk  of  disclosure  procedure  of  leniency  statements  before 
national courts or risk of retaliation if the identity of the interviewee is revealed [voice on the tape 
can be recognised]). 

If the statement is recorded on a tape, the tape with the recording of the statement will be copied 
and the original placed in a sealed envelope. This will be done in the presence of the interviewed 
and immediately after he/she has finished the statement. The Commission services will also add a 
note for the file registering the identity of the person making the statement, the day and time of 
the recording and the fact that they have duly informed the interviewed of its rights and duties as 
mentioned in section 3.4 above. 

In order to enhance the accuracy of the statements, a copy of the recording and its transcript has 
to  be  made  available  to  the  interviewee  for  approval/rectification  (Article  3(3)  of  Commission 
Regulation  773/2004).  The  Commission  sets  a  time-limit  within  which  the  person  interviewed 
may communicate to it any correction to be made to the statement (Article 3 (3) and recital 4 of 
the  Commission  Regulation  773/2004)  and  to  the  transcript.  It  is  recommended  to  set  a  short 
deadline in order to have the final transcripts as quickly as possible.  

Antitrust Manual of Procedures 

(28)  The  author  of  the  statement,  or  the  duly  mandated 

lawyer,  has  to  sign  the  final 
document/transcript as a true and accurate copy of his/her statements in order to be able to use 
the  information  in  the  subsequent  procedure  as  evidence.  Once  the  document  is  signed  it,  is 
inserted in the case file.  

(29)  The  interviewee  can  waive  the  right  to  obtain  the  written  statement  or  recording  and  the 
transcript,  notably  for  the  purpose  of  avoiding disclosure  procedures before  courts. In this case 
the  interviewee  checks  and  authenticates  the  accuracy  of  the  recording  and  transcript  at  the 
Commission's premises (see further in the Module Leniency Application).  

3.7.  Access to the file and protection of 

confidential information 

(30)  When  the  Commission  has  to  grant  access  to  the  file,  it  will  also  need  to  grant  access  to  the 

recordings of any interviews carried out during the investigation and included in the file. 

(31) 

In  this  process  the  Commission  must  ensure  the  protection  of  business  secrets  or  other 
confidential  information.  This  may  include  protection  of  the  identity  of  the  interviewee 
(particularly if the employer is not aware that one of its employees gave an interview). 

(32) 

For details on preparing and granting access to the file, see relevant Module on Access to file. 

3.8.  Use of information provided in interviews 

(33) 

Information provided during interviews can be used as evidence in the subsequent procedure. The 
Commission should however carefully assess the credibility of the statements, in particular if it has 
received conflicting information or if there are reasons that put the credibility of the interviewee in 
question. 

(34)  Where information  gathered from  statements  is exchanged pursuant to Article 12 of Regulation 
1/2003,  it  can  only  be  used  in  evidence  to  impose  sanctions  on  natural  persons  where  the 
conditions set out in that Article are fulfilled. 

(35)  According  to  Article  28  of  Regulation  1/2003  information  collected  pursuant  to  Article  19  of 
Regulation 1/2003 may be used only for the purpose for which it was acquired. Accordingly the 
information provided in the framework of a particular case cannot be used for any other ongoing 
case,  unless  the  interviewee  agrees  that  the  interview  was  also  carried  out  with  the  view  to  this 
investigation. Written confirmation should be obtained. 

 
Page 1/18 – Dealing with leniency applications 

9  Dealing with leniency 

applications 

1. 

Introduction 

1.1.  Legal basis 

1.2.  Types of applications 

1.3. 

Internal organization 

1.4.  General principles in handling of the applications 

1.4.1.  Neutrality 
1.4.2.  Confidentiality 

2. 

Initial contacts and inquiries 

2.1.  Dedicated fax and phone numbers 

2.2. 

Inquiries on availability of immunity or marker 

3. 

Applications for a marker 

3.1.  Receiving the application 

3.2.  Registration of the case 

3.3.  Processing the marker application 

3.4.  Perfecting the marker 

4. 

Formal applications for immunity 

4.1.  Receiving the application 

4.1.1.  Oral statements 
4.1.2.  Access to file procedure for corporate statements 

4.2.  Registration of the case 

4.3.  Processing the application: immediate applications 

4.3.1.  Outline of the procedure 
4.3.2.  Acknowledgement of receipt 
4.3.3.  Supplementing the application before a decision on conditional immunity 
4.3.4.  Informing the applicant in acknowledgement of receipt that immunity is not 

available 

4.3.5.  Taking position on immunity application and establishing first priority 

assessment - a note to the Commissioner 

4.3.6.  Draft Decision 
4.3.7.  Withdrawal of evidence after rejection of immunity 
4.3.8.  No action / non-processing letter (unmeritorious cases) 

3 

3 

3 

4 

4 
4 
4 

5 

5 

5 

5 

5 

6 

7 

7 

7 

7 
8 
10 

10 

11 
11 
11 
12 

12 

12 
13 
13 
13 

Antitrust Manual of Procedures 

4.4.  Processing the application: hypothetical applications 

4.4.1.  Introduction 
4.4.2.  Granting conditional immunity 
4.4.3.  Rejecting conditional immunity 
4.4.4.  No action / non-processing letter 

5. 

Applications for a reduction of a fine 

5.1. 

5.2. 

Introductory: special features of the procedure for reductions of fines 

Initial contacts and receiving the evidence/application 

5.3.  Processing the application 

5.3.1.  Outline of the procedure 
5.3.2.  Acknowledgement of receipt 
5.3.3.  Decision indicating the Commission's intention to grant a reduction of fines 

6. 

EEA and international cooperation 

14 
14 
15 
15 
15 

15 

15 

16 

17 
17 
17 
17 

17 

 
Page 3/18 – Dealing with leniency applications 

1.  Introduction 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

This  manual  provides  case-handlers  with  practical  guidance  for  the  procedure  in  dealing  with 
immunity  and  reduction  of  fine  applications  (hereinafter  jointly  called  as  leniency  applications). 
The manual is a living document which is frequently updated. As such, it can only be treated as a 
useful reference point rather than a set of binding instructions. 

For  guidance  on  the  criteria  and  conditions  for  immunity  and  reduction  of  a  fine,  see  the 
respective  provisions  in  the  relevant  Leniency  Notice  (see  Section  1.1.  for  guidance  on  which 
Notice to apply).  

1.1.  Legal basis 

2006 Leniency Notice: The Commission's current policy on leniency applications is described in 
the 2006 Commission notice on immunity from fines and reduction of fines in cartel cases (the 
“2006  Leniency  Notice”)1.  The  2006  Leniency  Notice  applies  to  all  new  leniency  applications 
made  since  the  publication  of  the  Notice  on  8  December  2006.  The  only  exception  to  this  is 
where  another  undertaking  had  already  made  a  leniency  application  in  respect  of  the  same  case 
under  the  2002  Leniency  Notice,  in  which  case  the  2002  Notice  will  apply  to  the  entire  case, 
including any subsequent leniency applications.  

2002 Leniency Notice: The 2002 Commission notice on immunity from fines and reduction of 
fines in cartel cases (the "2002 Leniency Notice")2 applies to all cases where, prior to adoption of 
the 2006 Leniency Notice, an application for immunity or reduction of fines had been received. 
However, the section of the 2006 Notice on handling of corporate statements is applied from its 
publication on 8 December 2006 also to all applications made under the 2002 Notice. 

As  the  procedure  for  dealing  with  leniency  applications  is  for  most  parts  similar  under  both 
Notices, with few exceptions (such as in particular the marker system that applies under the 2006 
Notice), the guidance hereafter deals with all applications unless specifically mentioned that it only 
concerns applications made pursuant to one or the other Notice. 

1.2.  Types of applications 

Each type of application - be it for immunity (either under point 8(a) or point 8(b) of the 2006 
Leniency Notice) or for a reduction of fine - has its own procedure(see details below). 

Application for immunity or for reduction of a fine: An undertaking may apply simultaneously 
both for immunity from fines and, in the alternative, for a reduction of fines. In the latter case, the 
application is firstly handled as an immunity application and only once it has been determined that 
it does not meet the conditions for immunity, as an application for a reduction of fines. 

(8)  Marker  vs.  formal  immunity  applications:  Under  the  2006  Leniency  Notice  an  undertaking 
may  either  initially  apply  for  a  marker  (giving  it  time  to  gather  the  necessary  information  and 
evidence to qualify for immunity) or immediately make a formal application. 

(9) 

1  

2 

Formal  immunity  applications:  An  undertaking  making  a  formal  immunity  application  may 
either (a) provide all information and evidence immediately or (b) initially present this information 
and evidence in hypothetical terms. The latter are referred to as hypothetical applications and 

OJ C 298, 8.12.2006, pages 17 to 22. 

OJ C45, 19.2.2002, pages 3 to 5. 

                                                 
Antitrust Manual of Procedures 

the  procedure  is  different  from  and  longer  than  that  for  applications  where  the  evidence  is 
submitted immediately. In applications for reductions of fines, the evidence cannot be submitted 
in hypothetical terms. 

(10)  Markers and hypothetical applications cannot be combined: An undertaking which has been 
granted  a  marker  cannot  perfect  it  by  making  a  formal  application  in  hypothetical  terms.  The 
hypothetical  application  is  available  to  allow  undertakings  to  ascertain  whether  the  evidence  in 
their  possession  would  meet  the  immunity  threshold  before  disclosing  their  identity  or  the 
infringement. In a hypothetical application an undertaking must show the evidence liable to meet 
the relevant immunity  threshold,  although it  can be done by means of edited copies where data 
that could identify the undertaking and the cartel is at that stage deleted. In contrast, a marker is 
granted to protect the place in the queue of an applicant to allow it time to gather all information 
and evidence needed to meet the immunity threshold. 

(11)  Written or oral applications: Both in the case of applications for immunity and for a reduction 
of fines undertakings can submit their  corporate statements either in writing  or orally. Upon an 
applicant's  request,  the  Commission  may  accept  that  corporate  statements  are  provided  orally, 
unless the applicant has already disclosed the content of the corporate statement to third parties. 
Hereinafter,  applications  in  cases  where  oral  statements  are  accepted  are  referred  to  as  "oral 
applications" and other applications are referred to as "written applications". 

1.3.  Internal organization 

(12)  All  immunity  applications  should  be  addressed  to  and  dealt  with  by  the  Cartels  Directorate  – 

Directorate G.  

1.4.  General principles in handling of the 

applications 

1.4.1.  Neutrality 

(13)  The Commission services should maintain neutrality in their contacts with undertakings. They do 
not  favour  one  undertaking  over  another  in  terms  of  the  treatment  given  under  the  Leniency 
Notice.    Undertakings  can  however  be  informed  of  the  possibilities  offered  by  the  Leniency 
Notice. 

1.4.2.  Confidentiality 

(14)  All  information  and  evidence  received  in  applications  under  the  Leniency  Notice  are  treated  as 
confidential. This is especially so where the case is initiated as the result of such an application, as 
the  application  will  in  most  cases  be  followed  by  surprise  inspections.  For  such  cases,  special 
security measures apply until the inspections have taken place (or Article 18 letters have been sent, 
unless the confidential status is not released despite the latter measure). 

(15)  All  documents  should  remain  at  the  Commission's  premises  and  be  placed  on  the  case  file 

following strict security treatment.  

Page 5/18 – Dealing with leniency applications 

2.  Initial contacts and inquiries 

2.1.  Dedicated fax and phone numbers 

(16)  An undertaking wishing to apply for leniency is required to contact the Commission's Directorate-
General for Competition. A dedicated fax number has been established for this purpose and it is 
published on the Commission’s web-site  

(http://europa.eu.int/comm/competition/antitrust/leniency):  

(17) 

Leniency fax: +32-2-299 45 85 

(18)  Before sending the actual submission by fax, undertakings are advised to seek assistance by calling 
the following dedicated telephone numbers, which are also published on the Commission's web-
site: 

Telephone numbers:  +32-2-298 41 90 or +32-2-298 41 91. 

(19)  The above dedicated telephone numbers will put the undertaking (or its advisors) in contact with 
DG COMP for leniency applications. The contact persons for applicants are the Heads of Units 
(and Deputy Heads of Unit) of Directorate G.  

(20)  Undertakings or their advisers seeking information on leniency should always be referred to the 

above contact numbers.  

2.2.  Inquiries on availability of immunity or 

marker 

(21) 

(22) 

In  accordance  with  the  Leniency  Notice  DG  COMP  is  required  immediately  to  inform  an 
undertaking wishing to apply for immunity if it becomes apparent that immunity from fines would 
not be available for the suspected infringement.  

Potential  applicants  need  not  necessarily  reveal  their  identity  from  the  outset.  They  will  always 
have  to  indicate  the  product  or  service  concerned  with  sufficient  precision  for  the  Directorate-
General to be able to indicate whether conditional immunity is available. The degree of precision 
required  will  vary  from  case  to  case  depending  on  whether  the  Commission  already  has  an 
investigation, or has received a prior application, in the product or service sector identified by the 
applicant.  

3.  Applications for a marker 

3.1.  Receiving the application 

(23)  Under the 2006 Leniency Notice an undertaking applying for immunity may initially apply for a 
marker that protects its place in the queue for a period to be specified on a case-by-case basis in 
order  to  allow  for  the  gathering  of  the  necessary  information  and  evidence  to  qualify  for 
immunity. A marker is granted at the discretion of the Commission services. 

(24)  All  inquiries  to  be  handled  by  the  Directorate  G  management:  Potential  applicants  are 
encouraged  to  contact  the  DG  COMP  contact  persons  for  leniency  applications  beforehand  to 

Antitrust Manual of Procedures 

discuss  steps  to  be  taken  in  a  potential  application  and  requirements  in  each  step.  All  such 
enquires should be directed to the Heads of Unit (or Deputy Heads of Unit) of Directorate G. 

(25) 

Information to be provided by the applicant: Point 15 of the 2006 Leniency Notice specifies 
the  information  that  an  applicant  needs  to  provide  to  secure  a  marker.  In  accordance  with  that 
provision,  and  to  gather  information  needed  to  determine  the  possible  marker  period,  the 
applicant should be asked to provide the following information when making the application: 

1.  Basic information on the alleged infringement: 

• name and address of the applicant, 

• parties to the alleged cartel, 

• affected product(s), 

• affected territory(-ies), 

• estimated duration of the alleged cartel and whether the cartel is still ongoing, 

• nature of the alleged cartel conduct. 

2.  Information on other past or possible future leniency applications to other authorities in 

relation to the alleged cartel: Could the applicant provide a waiver to exchange information with 
such other authorities on the fact of the application outside the ECN? Special rules apply for 
discussions with other ECN members. No waiver is needed in order to discuss the fact of the 
application with another ECN member.3 

3.  A justification for the request of a marker. 

(26)  The  information  that  the  applicant  provides  on  the  alleged  infringement  should  be  sufficiently 
clear so that on the basis of that it can be assessed whether the marker application is likely to lead 
to the opening of a cartel case. 

(27)  While  providing  a  justification  for  a  marker,  the  applicant  should  explain  what  kind  of  internal 
investigatory  measures  it  intends  to  take  during  the  marker  period  and  to  provide  detailed 
information  and  reasoning  for  time  needed  for  each  such  measure.  This  information,  together 
with the information whether the cartel is still ongoing, is necessary to make an informed decision 
on  time  to  be  granted  to  perfect  a  marker,  which  would  be  granted  when  it  appears  that  the 
applicant would be in a position to perfect it.  

(28)  Power  of  attorney:  In  practice  the  marker  applications  are  usually  made  by  external  legal 
counsels. When an external counsel makes a contact to submit an application, a power of attorney 
needs to be provided. No response to a marker application will be provided to an external counsel 
until an original of a power of attorney has been received. 

(29)  Oral applications: See 4.1.1 below.  

3.2.  Registration of the case 

3  

If  an  application  has  already  been  made  with  another  ECN  member,  also  the  content  of  the  application  can  be 
discussed and exchanged, provided that the applicant can at that time no longer withdraw the information it has 
submitted to the concerned ECN members. This follows from para. 41 of the Commission Notice on Cooperation 
within the Network of Competition Authorities (see further Section 6 below). 

                                                 
Page 7/18 – Dealing with leniency applications 

(30)  After an application for a marker has been made, the case team should register a new case in the 

case management application.  

3.3.  Processing the marker application 

(31)  Taking position on the application: It is recommended to check on receipt of the application 
that all information required has been provided and study the content of the application. 

(32)  Letter granting a marker: A marker is granted by a letter signed by a Director. The letter can be 
addressed  either  to  the  applicant  or,  providing  that  the  necessary  power  of  attorney  has  been 
submitted,  to  its  lawyer.  When  the  letter  is  notified  at  the  Commission  premises,  it  is 
recommended to prepare minutes of such notification.  

(33) 

In addition to the provisions set in the letter, it is recommended to ask the applicant to provide 
evidence  and  information  as  soon  as  certain  pieces  of  evidence  are  available  or  certain  internal 
investigation steps have been completed. It is advisable to arrange the timing of the submissions 
by  the  applicant  to  perfect  the  marker.  It  is  also  recommended  to  request  that  the  applicant 
informs  the  Commission  services  during  the  marker  period  immediately  on  any  cartel  contacts 
that  the  applicant  receives  from  other  cartel  members,  any  upcoming  cartel  meetings  or  other 
cartel actions and what action other cartel members normally would expect from the applicant in 
such situations. 

(34)  Letter refusing a marker: A marker is refused by a letter signed by a Director.  

3.4.  Perfecting the marker 

(35)  A  marker  is  perfected  by  submitting  the  information  and  evidence  required  for  a  formal 
application for immunity within the given deadline. If the undertaking perfects the marker within 
this  deadline,  the  information  and  evidence  will  be  deemed  to  have  been  submitted  on  the 
date when the marker was granted. 

(36)  An undertaking may also ask for an extension of the marker period. Any extension request should 
be submitted formally and motivated in detail in order to allow for an informed assessment of the 
request. The extension requests are assessed on a case by case basis taking into account the need 
to keep the marker period short in order to ensure that evidence at any premises to be inspected 
remains intact. Any such extensions are approved by a Director.  

(37) 

If  a  marker  applicant  does  not  perfect  the  marker  within  the  deadline  granted,  and  the 
deadline is not extended, the undertaking can still present a formal application for immunity at any 
time.  However,  if  the  marker  has  not  been  perfected,  the  applicant  should  be  informed  in 
writing that its place in the queue is no longer protected.  

(38) 

From  the  moment  when  the  undertaking  submits  a  formal  application  for  immunity,  the 
procedure described in Section 4 below applies. 

4.  Formal applications for immunity 

4.1.  Receiving the application 

(39)  Formal  application  required:  A  mere  letter  or  phone  call  announcing  the  undertaking’s 
intention  to  apply  for  immunity  is  insufficient  to  constitute  an  immunity  application.  A  formal 
immunity application must be submitted by either  

Antitrust Manual of Procedures 

(1) 

(2) 

providing immediately all information and evidence required to meet the immunity 
threshold (immediate application), or  

presenting a descriptive list of the evidence that the applicant proposes to disclose at 
a later agreed date (hypothetical application). 

(40)  Power  of  attorney:  In  case  the  application  is  submitted  by  an  external  lawyer,  representing  the 
applicant,  this  must  be  a  clearly  identified  person  legally  empowered  to  represent  the  applicant. 
For  this  purpose  the  lawyer  needs  to  provide  an  original  power  of  attorney  signed  by  the 
undertaking it represents. 

(41)  Note  the  date  of  receipt  of  the  evidence.  Where  the  evidence  is  provided  in  a  meeting  or 
otherwise than via the dedicated fax number referred to above, it is recommended that an internal 
note  is  made  stating  the  date  and  time  when  the  evidence  was  handed  over.  This  should  be 
reflected in the acknowledgement of receipt (see Section 4.3.2 below). 

(42) 

(43) 

In addition to any pre-existing evidence of the infringement the application will normally include a 
presentation  of  the  undertaking’s  knowledge  of  the  cartel.  Such  presentations  are  generally 
referred to as corporate statements and may be made either as a written submission4, signed by 
or on behalf of the undertaking, or as an oral statement.  

4.1.1.  Oral statements 

 The legal basis for the Commission to take statement is Article 19 of Regulation 1/2003 (Power 
to take statements)5. The procedure for corporate statements is set out in Section IV of the 2006 
Leniency  Notice  (see  paragraphs  31-35),  according  to  which  the  Commission  may  accept  that 
corporate statements are made orally unless the applicant has already disclosed the content of the 
corporate statement to third parties. From the moment of the publication of the 2006 Leniency 
Notice, this procedure applies to all pending and new applications. 

(44)  The  copy  of  the  recorded  oral  statement;  any  comments  provided  by  the  applicant  on  it  (when 
checking its technical accuracy and making any potential corrections to it); and the Commission 
transcript of it will be used in the proceedings.  

(45) 

In the following, the key elements in the oral corporate statement procedure are presented.  

(46)  Recording  the  statement  and  explaining  the  oral  statements  procedure  to  the  applicant: 
Oral  corporate  statements  will  be  recorded.  The  Commission  officials  receiving  the  application 
should at the start of the meeting set out the procedure that will be followed (see also the Module 
on the Power to take statements). As part of the opening statement by the Commission official, it 
is recommended to remind the applicant about the following Leniency Notice provisions that the 
applicant should have already become familiar with before making the application:   

(47) 

(48) 

(49) 

4  

5  

1) the possibility to check technical accuracy of the recording within a given time limit; 

2) the possibility to correct the substance of their oral statements within a given time limit; and 

3) the obligation to check the accuracy of the transcript made of the recording within a given 
time limit. 

The  notion  of  a  “written  statement”  includes  Commission  transcripts  of  recorded  statements  that  have  been 
given  orally  where  the  applicant  has  signed  the  transcript  to  acknowledge  its  approval  of  the  substance  of  the 
transcript. 

For  further  information  on  the  Commission’s  powers  under  Article  19,  see  module  on  the  power  to  take 
statements (ManProc Chapter IV.4). 

                                                 
Page 9/18 – Dealing with leniency applications 

(50)  While the applicant can waive the first two rights (in which case the recording is deemed to have 
been approved), it has the obligation to check the accuracy of the transcript. It is recommended to 
remind the applicant that the non-compliance with the last requirement may lead to the loss 
of any beneficial treatment under the Leniency Notice. 

(51)  The applicant should be reminded of the above described rights and formalities only once, at the 

first meeting where an oral statement is given.6 

(52)  Declaration on obligations of the leniency applicant. The applicant should sign a declaration 
stating that it has been reminded of the obligations under point 32 of the 2006 Leniency Notice 
and  that  it  is  fully  aware  that  corporate  statements cannot contain any  business secrets  or other 
confidential information. 

(53)  Transcript of the statement: After the recording, a Commission transcript of the oral statement 

will be prepared. 

(54)  Checking  accuracy  of  the  recording:  The  undertaking  making  the  oral  statement  has  the 
opportunity, immediately or within a given time limit , to listen to a copy of the recording and to 
communicate  to  the  Commission  any  comments  regarding  the  accuracy  of  the  recording  (the 
technical accuracy of the recording). The undertaking may indicate to the Commission at any time 
before the expiry of the said time limit that it does not wish to make comments on the technical 
accuracy of the recording. At that point in time, the undertaking will be deemed to have approved 
the recording as accurate; alternatively, the recording will be deemed to be approved as accurate at 
the expiry of the said deadline. 

(55)  Any  comments  made  by  the  applicant's  representatives  regarding  the  technical  accuracy  of  the 
recording of the oral statement may be made in writing or orally, at the choice of the undertaking. 
Any comments made in oral form will again be recorded. The same procedure as in case of the 
initial statement described above will be used. The undertaking will be given the opportunity to 
check the technical accuracy of this recording. 

(56)  Checking  correctness  of  the  substance:  The  undertaking  making  the  oral  statement  has  the 
opportunity,  immediately  or  within  a  given  time  limit  to  communicate  to  the  Commission  any 
corrections  regarding  the  substance  of  the  oral  statement  (correctness  of  the  substance).  The 
undertaking may indicate to the Commission at any time before the expiry of the said time limit 
that it does not wish to make any corrections on substance. At that point in time, the undertaking 
will be deemed to have approved the oral statement as correct on substance; alternatively, the oral 
statement  will  be  deemed  to  be  approved  as  correct  on  substance  at  the  expiry  of  the  said 
deadline. 

(57)  Any corrections regarding the substance of the oral statement may be made in writing or orally, at 
the  choice  of  the  undertaking.  Any  corrections  made  in  oral  form  will  again  be  recorded.  The 
same procedure as in case of the initial statement described above will be used. The undertaking 
will be given the opportunity to check the technical accuracy of this recording. 

(58) 

For  the  purposes  of  applying  the  Leniency  Notice,  the  Commission  will  take  corrections  on 
substance  into  account  as  having  been  supplied  on  the  day  and  at  the  time  when  they  were 
submitted to the Commission. 

(59)  The  absence  of  any  corrections  on  substance  is  without  prejudice  to  the  possibility  to  provide 

complementary information or evidence, including in the form of corporate statements. 

6  

Unless  there  are  specific  circumstances,  such  as  a  change  in  the  legal  representatives,  in  which  case  it  is 
reasonable to inform on these rights and obligations once more.  

                                                 
Antitrust Manual of Procedures 

(60)  Checking  accuracy  of  the  transcript:  Following  the  explicit  or  implicit  approval  of  the  oral 
corporate  statement  or  the  submission  of  any  corrections  to  it,  the  undertaking  must  check  the 
accuracy of the transcript of the oral statement. For this purpose, the applicant must listen to the 
recording  of  the  oral  statement  at  the  Commission’s  premises  and  check  the  accuracy  of  the 
transcript within a given time limit.  

(61)  The undertaking has to ensure that the transcript is an exact literal reproduction of what has been 
stated orally. In practice the applicant has to listen to the tape and confirm that the transcript is 
accurate.  Checking  by  means  of  any  lawyer's  notes  is  not  allowed  because  the  transcript  must 
correspond to the tape and not the lawyer's notes. 

(62) 

It  is  recommended  that  the  case-team  verifies  the  accuracy  of  the  transcript.  They  should 
preferably do so after the recording has been transcribed. 

(63)  To certify that accuracy of the transcript has been checked by the applicant, the applicant or its 
representative should confirm in writing that the transcript is a true and accurate record of the oral 
statement. 

(64) 

(65) 

If the undertaking or its representative does not agree to sign, it is recommended that an internal 
note is prepared for the file.  

If there is a factual mistake in the oral statement found during checking of the transcript, a new 
oral  statement  correcting  the  mistake  is  necessary,  and  consequently  a  new  transcript  will  be 
prepared. The undertaking should normally only dictate the correction in a separate statement, not 
the whole document. 

(66)  References  to  oral  statements  in  SOs  and  Decisions:  When  referring  in  an  SO  and  in  a 
Decision to the evidence provided in an oral statement, reference can be made to the page of the 
transcript (mentioning also the date of the statement).  

(67) 

Interviews of applicant's employees and directors: Under the 2006 Leniency Notice, to qualify 
for any immunity or reduction of a fine, a leniency applicant has an obligation to make its current 
(and, if possible, former) employees and directors available for interviews with the Commission.  

4.1.2.  Access to file procedure for corporate statements 

(68)  Access to both written and oral statements will be made upon request and will be granted at the 
Commission's  premises  following  the  issuing  of  the  SO.  In  the  case  of  written  corporate 
statements access will be granted by allowing the party to read the document at the Commission’s 
premises and to take notes or make dictations. With respect to oral corporate statements, access 
will be granted by allowing the party to read the Commission transcript of the recording and to 
take  notes.  They will also, on request,  be  given the opportunity to listen to (relevant parts of) a 
copy of the original recording in case of doubts concerning the correctness of the statement. Any 
direct reproduction of the statements (or their recordings/transcripts) by mechanical or electronic 
means is prohibited.  

4.2.  Registration of the case 

(69)  Unless the case file has already been opened (e.g. with a marker application), a new case file needs 

to be opened.  

Page 11/18 – Dealing with leniency applications 

4.3.  Processing the application: immediate 

applications7 

4.3.1.  Outline of the procedure 

(70)  Once  the  application  has  been  received,  the  first  step  should  be  to  prepare  a  written 

acknowledgement of receipt (if the applicant so requests) (see Section 4.3.2 below). 

(71) 

(72) 

Second  step  is  to  verify  whether  the  evidence  submitted  meets  the  conditions  in  points  8(a)  or 
8(b). If the conditions are  met, this will  be followed by the adoption of a Commission decision 
granting the undertaking conditional immunity from fines (see Section (87)).  

If  the  conditions  are  not  met,  the  undertaking  will  receive  a  Commission  decision  rejecting 
conditional immunity (see Section (88)) and it may either withdraw the evidence disclosed for the 
purpose of its application or request that the Commission considers the information for a possible 
reduction  of  a  fine.  The  undertaking  might  alternatively  have  applied  for  a  reduction  of  fines 
already in its application for immunity. In such case it will be acknowledged that such application 
was received and the undertaking will  be  informed that  the Commission  will verify  whether the 
evidence  meets  the  conditions  set  out  in  Notice,  and  will  inform  it  accordingly  (see  Section  5 
below on applications for a reduction of a fine).  

(73) 

In  some  cases  the  undertaking  may  be  informed  via  the  acknowledgement  of  receipt  that 
immunity is not available (see Section 4.3.4). Exceptionally, it may be possible to treat the case by 
way of a "non processing" or a "no action letter" (see Section 4.3.8). 

4.3.2.  Acknowledgement of receipt 

(74)  Timing: After the immunity application has been filed and a case number has been obtained (see 
Section 4.2 above), if so requested by the undertaking, DG Competition will acknowledge receipt 
of  the  application.  This  should  preferably  occur  on  the  first  working  day  after  receipt  of  such 
request. In case of an oral application, it is recommended that the case team does not wait until 
the oral statement has been transcribed. 

(75)  Letter  acknowledging  receipt  of  the  application:  The  acknowledgement  is  made  by  a  letter. 
The  acknowledgement  of  receipt  confirms  the  date  on  which  the  undertaking  submitted  the 
information  and  evidence  and,  where  appropriate,  the  time  of  the  application  (e.g.  if  several 
applications have been received in a short interval). 

(76)  Addressee: The acknowledgement can be addressed either to the applicant or, providing that the 

necessary power of attorney has been submitted, to its lawyer. 

(77)  Notification/sending  of  the  letter  in  case  of  an  oral  application:  In  case  of  an  oral 
application, if so requested by the applicant, the acknowledgement of receipt will not be sent but 
will be notified to the applicant or its lawyer at the Commission’s premises. The applicant or its 
lawyer will have to sign a minute stating that the undertaking has been duly notified8. 

(78)  A  separate  acknowledgement  of  receipt  should  be  prepared  for  each  supplement  of 
evidence  received.  If  requested  by  the  undertaking,  an  acknowledgment  of  receipt  is  prepared 
also for supplements of evidence it provides.  If there are several new submissions made in a short 

7 

8  

For hypothetical applications, see Section 4.4 below. 

The same applies to the decision granting conditional immunity. See Section 4.4.2 below. 

                                                 
Antitrust Manual of Procedures 

(79) 

(80) 

(81) 

timeframe, the acknowledgement of receipt can cover such several submissions. In that case, it is 
recommended  that  the  acknowledgement  of  receipt  specifies  the  date  of  receipt  for  each 
submission.  

4.3.3.  Supplementing the application before a decision on 

conditional immunity 

So  long  as  no  other  immunity  application  has  been  received  in  respect  of  the  same  facts,  the 
application may be supplemented by further evidence. The applicant bears the risk of not getting 
conditional immunity if another application is received in the meantime.  

If  during  the  period  when  decision  on  conditional  immunity  has  not  yet  been  taken  a  second 
immunity  application  is  received,  the  Commission  evaluates  the  application  from  the  first 
applicant  on  the  basis  of  the  information  it  had  received  up  to  the  moment  when  the  second 
application was received (see section 4.3.5). 

4.3.4. 

Informing the applicant in acknowledgement of receipt 
that immunity is not available 

If  it  is  possible  to  determine  immediately  and  without  assessing  the  evidence  submitted  by  the 
applicant  that  immunity  is  not  available,  for  instance  because  conditional  immunity  has  already 
been granted to another undertaking in respect of the same alleged cartel, the acknowledgement of 
receipt  (if  requested  by  the  applicant)  can  indicate that  immunity is not available for  the  alleged 
infringement.  This  does  not  require  the  approval  of  the  Commissioner.  If  the  applicant  has 
applied,  in  the  alternative,  for  a  reduction  of  fines,  the  same  acknowledgement  of  receipt  (if 
requested by the applicant), which informs that immunity is not available, will also acknowledge 
receipt  of  the  reduction  of  fines  application  pursuant  to  point  28  of  the  Notice.  Refusing 
immunity on other grounds requires a decision by the Commission (see Section 4.3.5 below).  

4.3.5.  Taking position on immunity application and establishing 

first priority assessment - a note to the Commissioner 

(82)  Timing: The Commission will endeavour to take position on an immunity application in a short 
timeframe. However, the time needed will depend on the complexity of the case. For instance if 
the  application  is  being  considered  under  point  8(b)  of  the  2006  Leniency  Notice  and  the 
Commission already has a significant amount of evidence or in a border-line case, where it is not 
clear whether the threshold is met. More time may also be needed in the case of oral applications 
(when a transcript of an oral corporate statement needs to be prepared). 

(83) 

Internal  Note  to  the  Commissioner:  The  Commissioner  must  be  informed  whether  in  DG 
Competition's view the conditions of point 8(a) or, as the case may be, 8(b) of the 2006 Leniency 
Notice are fulfilled. 

(84)  Granting  conditional  immunity  and  asking  for  an  agreement  to  inspections:  In  case  it  is 
proposed  to  grant  conditional  immunity,  where  appropriate,  the  Commissioner  should  normally 
be asked in the same internal note to agree in principle to the carrying out of surprise inspections. 
If such inspections are  not  proposed,  the Commissioner should be informed of the reasons for 
this. When inspections (or other forms of investigative measures) are proposed, the internal note 
to the Commissioner should also contain a first priority assessment. The priority assessment can 
be kept fairly short and concise.  

(85)  Rejecting  conditional  immunity:  If  the  evidence  submitted  with  the  application  is  clearly 
insufficient  to  meet  the  conditions  of  points  8(a)  or  8(b)  of  the  Leniency  Notice,  it  is 
recommended  that  the  Commission  services  should,  as  long  as  no  other  application  has  been 

Page 13/18 – Dealing with leniency applications 

received,  advise  the  applicant  of  this  informally  and  give  it  the  opportunity  to  supplement  the 
evidence. 

(86)  As  mentioned  above,  an  application  for  immunity  may  exceptionally  be  refused  in  the 
acknowledgement  of  receipt  if  it  is  clear  that  immunity  is  no  longer  available.  In  most  cases, 
however, whether the application meets the criteria of points 8(a) or 8(b) of the Notice will require 
a  substantive  assessment.  If,  in  such  cases,  the  Directorate-General  proposes  to  reject  the 
application, the approval of the Commissioner should be sought. 

4.3.6.  Draft Decision 

(87)  Decision  granting  conditional  immunity:  The  Commissioner  has  been  empowered  by  the 
College to issue Decisions granting conditional immunity on behalf of the Commission. A Draft 
decision  on  conditional  immunity  is  therefore  attached  to  the  note  to  the  Commissioner.  The 
Decision  is  addressed  to  the  applicant  undertaking  (never  to  a  particular  person  in  the 
undertaking).  It  should  never  be  addressed  to  the  lawyer.  The  lawyer  may  receive  a  copy  (or,  if 
explicitly requested by the undertaking in writing, the original), but this should not be mentioned 
on the face of the Decision. 

(88)  Decision  rejecting  conditional  immunity:  The  Commissioner  has  also  been  empowered  to 
issue Decisions rejecting conditional immunity. The procedure for rejecting immunity is the same 
as for the granting of conditional immunity. 

(89)  Before  asking  the  Commissioner  for  approval,  the  Legal  Service  should  have  given  their 

agreement on the draft decision.  

(90)  The  matter  should  be  put  on  the  agenda  of  the  first  possible  weekly  meeting  with  the 

Commissioner.  

(91)  The minutes of the weekly meeting are recommended to be kept in the file to prove, if necessary, 
that the Commissioner has approved the decision and the inspection, as the case may be. 

4.3.7.  Withdrawal of evidence after rejection of immunity 

(92)  Request  to  retrieve  evidence:  According  to  point  20  of  the  Leniency  Notice,  in  case  of  a 
rejection of an immunity application the applicant may withdraw the evidence it has submitted to 
the  Commission  for  the  purposes  of  its  immunity  application  or  to  request  the  Commission  to 
consider the evidence and information submitted as a reduction of fines application. In case the 
applicant does not apply or has not applied for a reduction of fines in alternative to immunity it 
can withdraw the evidence submitted. In case of oral applications this is of course possible only 
with  regard  to  the  documents  that  the  applicant  has  submitted  whereas  the  oral  recordings  and 
their transcripts will be deleted. The applicant's request to withdraw evidence should be made in 
writing. 

(93)  Return of documents and deletion from case management application (CMA): In practice, 
following  such  a  written  request  the  case  team  will  give  back  the  originals  of  the  documents 
received from the applicant and delete any copies it has made of those documents, in particular in 
the CMA.  

4.3.8.  No action / non-processing letter (unmeritorious cases) 

(94)  Non-processing  letters:  Case  dealt  with  a  NCA:  When  a  national  competition  authority  has 
received a parallel application in a case that is national in scope and is willing to pursue the case, a 
“non-processing” letter could be considered.  

Antitrust Manual of Procedures 

(95)  No  position  taken:  infringements  covered  by  limitation  period:  Under  the  2006  Leniency 
Notice  the  Commission  can  refrain  from  taking  a  position  on  whether  or  not  to  grant  a 
conditional immunity, if it becomes apparent that the application concerns infringements covered 
by  the  five  years  limitation  period  under  Article  25(1)(b)  of  Regulation  1/2003,  as  such 
applications would be devoid of purpose (point 36 of the Notice). In such cases, DG Competition 
can close the case with a letter stating that no position is taken on the application. 

(96)  No action letters: Only exceptionally a "no action" letter could be considered. The following 

situations could justify closing the case with a no-action letter: 

(97)  The  application  is  manifestly  lacking  in  substance  and  the  applicant  cannot  provide  further 
information  or  evidence.  Such  applications  would  often  merely  aim  at  testing  if  the  authority 
would consider the matter to be a cartel or to be likely to raise any cartel investigation.  

(98)  The  application  gives  some  information  on  an  alleged  cartel,  but  the  information  is  non-
corroborated  and  too  vague  to  meet  the  point  8(a)  criteria,  but  still  detailed  enough  to  give 
reasonable  grounds  for  suspecting  infringement  of  the  competition  rules  by  the  undertaking 
concerned9.  

(99) 

Such a "no action" letter states that in the absence of further evidence, the Commission services 
do  not  currently  intend  to  investigate  the  matter  further  but  may  change  their  stance  at  a  later 
stage.  

(100)  Non-eligibility letters: The case is closed with a non-eligibility letter where the conduct reported 
falls outside the Leniency Notice. A non-eligibility letter represents a de facto rejection of immunity 
and is distinct from a non-processing or no-action letter where immunity can still be considered in 
the event that the case is reopened.  

4.4.  Processing the application: hypothetical 

applications10 

4.4.1. 

Introduction 

(101)  Two  decisions:  The  Commission  will  need  to  issue  two  decisions  when  dealing  with  a 
hypothetical application. The first decision concludes that the nature and content of the evidence 
described in the list will meet the conditions set out in points 8(a) or 8(b) of the 2006 Leniency 
Notice. The second decision concludes that the evidence provided corresponds to the description 
made in the list and grants conditional immunity.  

(102)  Requirements as to the content of the descriptive list: The substantive evaluation of the value 
of the evidence is made in the first decision. If the evidence then supplied corresponds to the list, 
the second decision granting conditional immunity is automatic.  

(103)  In cases where the Commission already has considerable evidence in its possession, a hypothetical 
application may not be possible, because the Commission would not be able to evaluate from the 
hypothetical list whether the evidence was new or already in its possession. 

9  

Following the judgment of the Court of Justice in Case C-94/00 Roquette Frères (ECR[2002] I-9011, paragraphs 
61,  100)  the  Commission  can  carry  out  an  investigation  under  Article  20(4)  of  Regulation  1/2003  if  it  is  in 
possession  of  information  and  evidence  providing  reasonable  grounds  for  suspecting  infringement  of  the 
competition rules by the undertaking concerned. 

10  

For immediate applications, see Section 4.3 above. 

                                                 
Page 15/18 – Dealing with leniency applications 

4.4.2.  Granting conditional immunity 

(104)  First stage: Decision on basis of the hypothetical list of evidence: The procedure is the same 
as in the case of an immediate application (see Section 4.3 above). At this stage the name of the 
applicant may or may not be known. In the latter case, the decision should be sent to the lawyer 
representing the applicant.  

(105)  Second stage:  Decision granting conditional immunity: The procedure is the same as for a 

decision in the case of an immediate application (see Section 4.3 above).  

4.4.3.  Rejecting conditional immunity 

(106)  Informing that immunity is not available: Exceptionally, a hypothetical application can already 
be  rejected  in  the  acknowledgement  of  receipt,  for  instance  because  immunity  has  already  been 
granted for the same infringement (see Section 4.3.4 above). 

(107)  Rejection at the first stage: If a hypothetical application is to be rejected for the reason that the 
evidence  does  not  meet  the  conditions  of  points  8(a)  or  8(b)  of  the  2006  Leniency  Notice,  this 
should  be  done  in  the  first  stage  of  the  procedure,  i.e.  in  reaction  to  the  submission  of  the 
descriptive list.  

(108)  The procedure is the same as in the case of granting conditional immunity. See Sections 4.3 and 

(104) above.  

(109)  Rejection at the  second stage: After the decision taken on the first stage to grant conditional 
immunity,  the  application  may  still  be  rejected  if  the  evidence  disclosed  does  not  correspond  to 
the description made in the list and the difference is such that the first decision would not have 
been taken if the evidence had been accurately described. 

(110)  It is advisable to inform the applicant first informally and give it the opportunity to provide the 

evidence as described in the list, unless a second application has been received. 

(111)  If the necessary evidence is still not forthcoming, the Directorate-General should propose to the 
Commissioner the rejection of the application. The applicant should then be informed by a letter 
from the Director of Directorate G that the condition stipulated in the first decision, namely that 
the evidence disclosed must correspond to the description made in the list, has not been fulfilled. 
The  procedure  to  be  followed  is  the  same  as  in  the  case  of  granting  conditional  immunity.  See 
Sections 4.3 and point (105) above.  

4.4.4.  No action / non-processing letter 

(112)  As in the case of an immediate application, it may in exceptional circumstances be appropriate to 

send a non-processing or a no action letter (See Section 4.3.8 above).  

5.  Applications for a reduction of a fine 

5.1.  Introductory: special features of the 

procedure for reductions of fines  

(113)  Evidence  submitted  by  successive  applicants  is  examined  in  the  order  in  which  it  has  been 
submitted. The largest band of reduction is awarded to the first undertaking to provide evidence 
representing  significant  added  value  with  respect  to  the  evidence  already  in  the  Commission's 
possession.  In  applications  under  the  2006  Notice  the  applicant  must  have  made  a  formal 

Antitrust Manual of Procedures 

application and disclosed its participation in an alleged cartel affecting the Union. The applicant 
must identify any voluntary submissions it wishes to submit under the Leniency Notice. It must 
also meet the cumulative conditions on cooperation with the Commission set out in point 12 of 
the Notice.  

(114)  If the Commission comes to the preliminary conclusion that the evidence submitted by the first 
applicant  for  a  reduction  of  fines  -  prior  to  another  applicant  for  reduction  submits  evidence  - 
qualifies as significant added value, it will inform the applicant of its intention to apply the band of 
30 to 50% reduction. If the applicant subsequently submits further evidence, this co-operation can 
have  a  positive  influence  on  the  level  of  reduction  awarded  within  that  band.  Subsequent 
applicants can only qualify for the lower bands corresponding to the order of receiving from them 
information and evidence that provides significant added value.  

(115)  If  the  initial  evidence  submitted  by  the  first  applicant  does  not  (yet)  qualify  as  significant  added 
value,  this  does  not  mean  that  the  application  will  be  rejected  (as  would  be  the  case  with  an 
application for immunity). Until such time as the Statement of Objections is issued, applications 
for a reduction of fines may always be further supplemented in order to qualify for a reduction (at 
a minimum the lowest band). 

(116)  The Commission will evaluate the final position of each applicant at the end of the administrative 

procedure in any final decision finding an infringement.  

(117)  Markers and hypothetical applications are not possible. 

(118)  Under  the  2002  Notice  the  Commission  has  an  obligation  to  inform  the  applicant  only  if  its 
preliminary conclusion is that the applicant qualifies for a reduction of a fine. However, under the 
2006 Notice the Commission must inform the applicant in the same timeframe also if it comes to 
the  preliminary  conclusion  that  the  applicant  does  not  qualify  for  a  reduction  of  a  fine.  The 
Commissioner has empowerments for a such a negative decision under both the 2002 and 2006 
Notice. 

5.2.  Initial contacts and receiving the 

evidence/application 

(119)  The 2002 Leniency Notice does not prescribe how an undertaking must apply for a reduction of a 
fine.  It  is  sufficient  that  the  undertaking  provides  the  Commission  with  evidence  of  significant 
added  value.  However,  the  2006  Notice  specifies  that  any  submissions  for  a  reduction  of  fines 
have to be clearly identified as being part of a formal application for a reduction of a fine. 

(120)  Often this will be done in the context of an application for immunity. If so, the application may 
from  the  outset  be  expressed  to  be  made  “in  the  alternative”  for  a  reduction  of  a  fine.  In  such 
cases the procedures for contacting the Commission and providing the evidence will be as set out 
in Section 4.1 above (save for the fact that there is no provision for the making of hypothetical 
applications). 

(121)  As in the case of an immunity application, an undertaking may provide both pre-existing written 
evidence available to it and a corporate statement, which may be given either in writing or orally. 
The procedures for the taking and recording of an oral statement will be the same as those which 
apply in the case of an application for immunity (see Section 4.1.1 above). 

(122)  As in the case of immunity applications, where the evidence is provided in a meeting or otherwise 
than via the dedicated fax number referred to above, the applicant will need to declare that it has 
been reminded of the obligation under point 32 of the 2006 Leniency Notice and that it is fully 
aware  that  corporate  statements  cannot  contain  any  business  secrets  or  other  confidential 
information (see (52) above). 

Page 17/18 – Dealing with leniency applications 

5.3.  Processing the application 

5.3.1.  Outline of the procedure 

(123)  The  procedural  handling  is  similar  to  that  for  immediate  applications  for  immunity  (see  Section 

4.3 above). 

(124)  As  in  the  case  of  immunity  applications,  the  Leniency  Notice  provides  that  the  Directorate-
General  for  Competition  will  issue  an  acknowledgement  of  receipt  of  the  application  recording 
the date of the application, if requested by the applicant.  

(125)  Then,  if  the  Commission  comes  to  the  preliminary  conclusion  that  the  evidence  submitted 
constitutes significant added value, the Commission will issue a decision setting out its intention to 
apply a reduction of a fine within a specified band. 

(126)  The Commission  must give  a preliminary  positive conclusion no later than the date on which a 

Statement of Objections is notified.  

5.3.2.  Acknowledgement of receipt 

(127)  Timing: After the application has been filed, if so requested by the undertaking, DG Competition 
will  acknowledge  receipt  of  the  application  for  a  reduction  of  fine  and  of  any  subsequent 
submissions of evidence. The acknowledgement will be made either to the applicant or its lawyer 
(check that a power of attorney has been received).  

(128)  The  letter  and  its  notification:  The  acknowledgement  is  made  by  a  letter  signed  by  the 
responsible Director and it will confirm the date and, where appropriate, time of each submission. 
In case of an oral application, the procedure for notification of the acknowledgement of receipt is 
the same as for oral applications (see paragraph (83) above). 

5.3.3.  Decision indicating the Commission's intention to grant a 

reduction of fines 

(129)  Once  a  preliminary  conclusion  has  been  reached  that  the  evidence  submitted  constitutes 
significant  added  value,  the  Commission  will  issue  a  decision  informing  the  applicant  of  its 
intention to apply a reduction of a fine within a certain band.  

6.  EEA and international cooperation  

(130)  Under  Article  2(1)  of  Protocol  23  to  the  EEA  Agreement  the  Commission  and  the  EFTA 
Surveillance  Authority  (“ESA”)  are  required  to  inform  each  other  when  opening  ex  officio 
procedures  in  cases  that  are  of  EEA  relevance  (see  Module  on  Relations  with  third  countries). 
This requirement applies also to cases that have been initiated as a result of a leniency application. 

(131)  Under  Article  9(3)  of  Protocol  23,  however,  where  the  information  transmitted  by  the 
Commission  to  ESA  (or  vice-versa)  concerns  a  case  which  has  been  initiated  as  a  result  of  a 
leniency application, the receiving authority is prevented from using the information as the basis 
for starting an investigation on its own behalf. It is therefore crucial when informing ESA of the 
opening  of  a  new  case  to  make  clear  that  the  case  has  been  initiated  as  the  result  of  a  leniency 
application. 

(132)  Under Article 9(1) of Protocol 23 the Commission and ESA may also, for the purpose of applying 
Articles 53 and 54 of the EEA Agreement, exchange information and use it in evidence. As in the 

Antitrust Manual of Procedures 

case  of  the  exchange  of  information  within  the  ECN  under  Article  12  of  Regulation  1/2003, 
Article  9(4)  and  (5)  places  restrictions  on  the  circumstances  in  which  protected  leniency 
information  may  be  exchanged  between  the  Commission  and  ESA.  These  provisions  exactly 
mirror those which apply to Article 12. 

Page 1/7 – Opening of proceedings 

10 Opening of proceedings 

1. 

Reason for opening proceedings 

2. 

Timing: when to Open proceedings? 

3. 

Conditions for opening of proceedings 

4. 

ECN obligations 

5.  Drafting the decision opening proceedings 

6. 

Adoption and notification of the decision 

7. 

Informing the NCA/ESA 

8. 

Publication of the Opening of proceedings 

9. 

Possibility to change the scope of the investigation after 
opening of proceedings 

10.  State of play meeting 

11.  Triangular meeting 

12.  Review of key submissions 

2 

2 

2 

3 

4 

4 

4 

4 

5 

5 

6 

6 

Antitrust Manual of Procedures 

1.  Reason for opening proceedings 

(1) 

(2) 

(3) 

The opening (or "initiation") of proceedings is a formal act of the Commission.1  

The Commission will open proceedings under Article 11(6) of Regulation 1/2003 when the initial 
assessment leads to the conclusion that the case merits further investigation and where the scope 
of the investigation has been sufficiently defined.  

The opening of proceedings creates clarity as regards the allocation of the case within the ECN2 
and in relation to the parties and the complainant, if applicable. It also signals a commitment on 
the part of the Commission to further investigate the case as a matter of priority. DG Competition 
will thus allocate resources to the case and will endeavour to deal with the case in a timely manner. 

2.  Timing: when to Open proceedings? 

(4) 

Pursuant to Article 2 of Regulation 773/2004 the Commission may decide to open proceedings 
with a view to adopting a decision pursuant to Chapter III (Article 7 to 10) of Regulation 1/2003 
at  any  point  in  time,  but  no  later  than  the  date  on  which  it  issues  a  Statement  of  Objections,  a 
Preliminary Assessment as referred to in Article 9(1) of Regulation 1/2003 or a Notice pursuant to 
Article  27(4)  of  Regulation  1/2003  (for  instance  in  an  Article  10  procedure),  whichever  is  the 
earlier.  The  Notice  on  Antitrust  Best  Practices  further  provides  that  the  Commission  will  open 
proceedings  under  Article  11(6)  of  Regulation  1/2003  when  the  initial  assessment  leads  to  the 
conclusion that the case merits further investigation and where the scope of the investigation has 
been  sufficiently  defined.3  In  cartel  cases,  the  opening  of  proceedings  normally  takes  place 
simultaneously with the adoption of the Statement of Objections, though it may take place earlier4. 
Also  in  other  cases,  if  by  conducting  limited  further  investigations  the  appropriate  scope  of  the 
case  can  be  determined  with  more  certainty,  it  may  be  advisable  to  carry  out  such  further 
investigation before proposing to open proceedings.  

3.  Conditions for opening of proceedings 

(5) 

The conditions for opening proceedings are twofold: 

–  Proceedings  are  opened  "with  a  view  to  adopting  a  decision"  under  Articles  7  to  10  of 
Regulation 1/2003.5 It follows that proceedings cannot be opened if at the material point in time 
the Commission does not intend to adopt a decision. However, the opening of proceedings does 
not prejudice in any way the existence of an infringement. 

1  

2  

3  

4  

5  

See  Case  48/72  Brasserie  de  Haecht  [1973]  ECR  77,  para.  16  and  pt.52  of  the  Commission  Notice  on 
cooperation within the Network of Competition Authorities (OJ C 101, 27.4.2004,,p.43), ("Network Notice"). On 
the opening of proceedings in general, see the Notice on best practices for the conduct of proceedings concerning 
Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6) (“Notice on Antitrust Best Practices”).  

The  opening  of  proceedings  relieves  the  national  competition  authorities  of  their  competence  to  apply  Articles 
101 and 102 TFEU, see Article 11(6) of Regulation 1/2003. 

See Notice on Antitrust Best Practices, paragraph 17. 

See Notice on Antitrust Best Practices, paragraph 24. 

See Article 2 of the Implementing Regulation. 

 
                                                 
Page 3/7 – Opening of proceedings 

–  Given  the  legal  consequences  attached  to  the  opening  of  proceedings  the  Commission’s  view 
must  be  underpinned  by  a  certain  number  of  objective  factors.  There  must  be  reasonable 
indications of a likely infringement.6  

4.  ECN obligations 

(6) 

(7) 

(8) 

(9) 

If a National Competition authority (NCA) already informed that they are acting on a given case 
(i.e.  the  ECN  data  base  contains  information  of  an  NCA  case)7,  Article  11(6)  of  Regulation 
1/2003  requires  that  the  Commission  consults  in  writing  with  the  authority  in  question  before 
opening of proceedings. In this regard two situations need to be distinguished:  

If  the  opening  is  envisaged  during  the  indicative  case-allocation  period8,  a  simple  bilateral 
consultation will suffice. The other authorities are given an opportunity to react within 2 weeks.  

If the opening is envisaged after the indicative case-allocation period, it is in principle limited to 
the  situations  mentioned  in  point  54  of  the  Network  Notice9.  Further  to  what  is  stipulated  in 
Article 11(6), paragraphs 54 to 56 of this Notice require that the Commission: 

–  formally consults the authority or authorities concerned, explaining the reasons for the opening in 

writing to the NCA(s) concerned and also to other network members, and  

–  announces  the  intention  to  open  proceedings  in  due  time,  so  that  network  members  have  the 

possibility of asking for an Advisory Committee meeting. 

The  consultation  must  contain  a  specific  reasoning  as  to  why  the  Commission  finds  that  it  is 
appropriate for it to open proceedings. This can be done by explaining why one or more of the 
scenarios described in paragraph 54 of the Network Notice is at stake. The consultation document 
is  signed  by  the  Director-general  and  copied  to  the  other  network  members,  and  a  period  of  2 
weeks is given for replies. 

(10)  The  Commission  must  set  out  to  the  competition  authority  concerned  its  reasons  for  opening 
proceedings.  In  case  of  no  disagreement  this  reasoning  can  be  succinct.  The  Member  State 
competition authority has a period of two weeks for making comments. 

6  

7  

8  

9  

In  the  case  of  Article  10  decisions  there  must  be  indications  that  the  adoption  of  a  non-infringement  decision 
would be in the EU public interest. 

For  further  details  see  Module  on  Cooperation  with  National  competition  Authorities  in  EU  and  Exchange  of 
Information in ECN. 

In  principle  this  case-allocation  period  is  2  months  from  the  date  when  either  the  Commission  or  an  NCA  first 
informed the network of an investigation, but in case of a disagreement it is implicitly extended until a solution is 
found. An initiation decision is the ultimate way to end extended case-allocation discussions, but an agreement is 
by far a preferred solution to a unilateral de-seizure. 

Network Notice, pt; 54: "[…] After the allocation phase, the Commission will in principle only apply Article 11(6) 
of the Council Regulation if one of the following situations arises: 

(a) Network members envisage conflicting decisions in the same case. 

(b) Network members envisage a decision which is obviously in conflict with consolidated case law; the standards 
defined in the judgements of the Community courts and in previous decisions and regulations of the Commission 
should  serve  as  a  yardstick;  concerning  the  assessment  of  the  facts  (e.g.  market  definition),  only  a  significant 
divergence will trigger an intervention of the Commission; 

(c) Network member(s) is (are) unduly drawing out proceedings in the case; 

(d) There is a need to adopt a Commission decision to develop Community competition policy in particular when 
a similar competition issue arises in several Member States or to ensure effective enforcement; 

(e) The NCA(s) concerned do not object." 

                                                 
 
 
 
 
 
Antitrust Manual of Procedures 

5.  Drafting the decision opening proceedings 

(11)  The decision opening proceedings should be kept short. Since the decision as such is notified to 
the parties it has to be drafted in the authentic language. In essence the decision states that it has 
been decided to open the proceedings pursuant to Article 11(6) of Regulation 1/2003 and Article 
2 of Regulation 773/2004 in the case at stake and that the NCAs are relieved of their competence 
to apply Articles 101 and 102 of the TFEU to the same case. 

(12)  The  decision  to  open  proceedings  identifies  the  parties  subject  to  the  proceedings  and  briefly 
describes  the  scope  of  the  investigation.  In  particular,  it  sets  out  the  behaviour  constituting  the 
alleged  infringement  of  Articles  101  and/or  102  TFEU  to  be  covered  by  the  investigation  and 
normally identifies the territory and sector(s) where that behaviour takes place. 

(13) 

It has to be underlined that the opening of proceedings does not prejudge in any way the existence 
of  an  infringement.  The  opening  of  proceedings  merely  indicates  that  DG  Competition  will 
further  pursue  the  case  as  matter  of  priority.  This  important  distinction  is  made  clear  in  the 
decision notified to the parties, as well as in all public communications concerning the opening of 
the case.  

6.  Adoption and notification of the decision 

(14)  The  Commissioner  in  charge  of  Competition  has  been  empowered  by  the  College  to  adopt  the 
decision to open proceedings, except in cases in which the Commission wishes to relieve an NCA 
of its competence following a consultation by the NCA on its envisaged decision pursuant to Art. 
11(6) of Regulation 1/2003. 

(15)  The decision to open proceedings is notified to the parties subject to the proceedings.  

7.  Informing the NCA/ESA 

(16)  After the notification of the decision of opening of proceedings, the case team prepares a short 
information note to the ECN and instruct the Antitrust Registry to send the note to the NCAs, 
mentioning  Article  11(6)  of  Regulation  1/2003  and  the  case-number  (but  no  case-name  in  the 
subject  line)  and,  if  appropriate,  to  ESA  by  mentioning  Art.  2  of  Protocol  23  to  the  EEA 
Agreement. 

8.  Publication of the Opening of proceedings 

(17) 

Pursuant  to  Article  2  of  Regulation  773/2004  the  Commission  may  make  the  opening  of 
proceedings  public.  The  Commission’s  policy  is  to  publish  a  standard  notice  (in  EN)  about  the 
adoption  of  the  decision  to  open  proceedings  on  the  website  of  DG  Competition  and  issue  a 
press release, unless such publication may harm the investigation (e.g. if unannounced inspections 
are  envisaged.  The  parties  subject  to  the  investigation  are  informed  orally  or  in  writing  of  the 
opening of proceedings sufficiently in advance before the opening of proceedings is made public 
so  as  to  enable  them  to  prepare  their  own  communication  (in  particular  in  relation  to 
shareholders, the financial institutions and the press))10. 

(18)  The  publication  of  the  press  release  and  of  the  website  notice  should  take  place  after  the 
notification  of  the  decision  of  opening  of  proceedings.  The  case-team  has  to  await  the 

10  

Notice on Antitrust Best Practices, paragraphs 20 and 21. 

                                                 
Page 5/7 – Opening of proceedings 

acknowledgement  of  receipt  of  the  notification  (DHL  slip  signed  by  the  addressee(s)  of  the 
decision)  and  only  thereafter  inform  the  Spokesperson  to  trigger  the  communication  as  well  as 
launch the publication on the DG COMP website within a time-period of 1 to 2 days depending 
on  whether  or  not  the  addressee  was  aware  of  the  intention  of  opening  proceedings  and  could 
therefore  prepare  its  own  communication  (in  particular  in  relation  to  shareholders,  the  financial 
institutions and the press).  

(19) 

See more details on how to insert the standard (word) document to be published on the website 
and on how to prepare the press release and standard Memo in the Module Publication.   

9.  Possibility to change the scope of the 

investigation after opening of proceedings 

(20)  The opening of proceedings does not limit the right of the Commission to extend (or reduce) the 
scope  and/or  the  addressees  of  the  investigation  at  a  later  point  in  time;  e.g.  the  in-depth 
investigation or a reorientation of the case may imply taking up and investigating new aspects, or 
dropping some existing aspects of the case 11. Where the investigation is extended, it is necessary 
to  open  proceedings  in  respect  of  additional  infringements  at  the  latest  at  the  stage  of  the 
Statement of Objections or the Preliminary Assessment.  

10. State of play meeting 

(21)  DG Competition endeavours to give, on its own initiative or upon request, parties subject to the 
proceedings ample opportunity for open and frank discussions and to make their points of view 
known throughout the procedure.12  

(22) 

In  this  respect,  DG  Competition  will  offer  a  State  of  Play  meeting  (in  principle,  although  not 
normally in the context of cartel proceedings) shortly after the opening of proceedings informing 
the parties subject to the proceedings of the issues identified at this stage and of the anticipated 
scope of the investigation13.  

(23)  This meeting provides the parties with an opportunity to react initially to the issues identified and 
may also serve to assist the Directorate General for Competition in deciding on the appropriate 
framework for its further investigation.  

(24)  This meeting may also be used to discuss with the parties any relevant language waivers that may 

be appropriate for the conduct of the investigation.  

(25)  DG  Competition  may  at  this  stage  indicate  a  tentative  timetable  for  the  case.  Such  tentative 

timetable will, if appropriate, be updated at following State of Play meetings. 

(26) 

State of Play meetings are normally conducted at the Commission's premises, but if appropriate, 
they  may  be  held  by  telephone  or  videoconference.  Senior  DG  Competition  management 
(Director  or  Deputy  Director  General)  will  normally  chair  the  meeting.  However  in  cases 
involving multiple parties, the meeting may be chaired by the responsible head of unit. The Legal 

11  

12  

13  

In deciding whether to include new elements the trade-off between scope and duration of the investigation must 
be taken into account.  

See Chap. 2.9 of the Notice on Antitrust Best Practices. 

See  Notice  on  Antitrust  Best  Practices,  paragraph  63(1).  Further  State  of  Play  meetings  will  be  offered  at  a 
sufficiently advanced stage in the investigation as well as after the parties’ reply to the Statement of Objections 
or after the Oral Hearing (see Notice on Antitrust Best Practices, paragraphs 63(2) and 64). 

                                                 
Antitrust Manual of Procedures 

Service and the Hearing Officer will be invited to the State of Play meetings and may decide to 
participate.  

(27) 

For fuller details, reference is made to Chapter 2.9 of the Notice on Antitrust Best Practices. 

11. Triangular meeting 

(28) 

In addition to bilateral meetings between DG Competition and each individual party such as the 
State of Play meetings, the Commission may exceptionally decide to invite the parties subject to 
the proceedings, and possibly also the complainant and/or third parties, to a so-called "triangular" 
meeting.14 Such a meeting will be organised if DG Competition believes it to be in the interests of 
the investigation to hear the views on, or to verify the accuracy of, factual issues of all the parties 
in a single meeting. Such a meeting could be useful to the investigation, for example, where two or 
more opposing views or information have been put forward as to key data or evidence. 

(29)  Any  triangular  meeting  would  normally  take  place  at  the  initiative  of  the  Commission  and  on  a 
voluntary  basis.  Triangular  meetings  are  normally  chaired  by  Senior  management  of  DG 
Competition (Director or Deputy Director General). The Legal Service and the Hearing Officer 
will systematically be informed of and invited to triangular meetings. 

(30)  Where  triangular  meetings  are  held,  this  should  be  done  as  early  as  possible  during  the 
investigatory  phase  (after  the  opening  of  proceedings  and  before  any  issuing  of  Statement  of 
Objections) in order to help the Commission reach a conclusion on substantive issues before the 
Commission  decides  whether  to  issue  a  Statement  of  Objections,  although  the  holding  of  such 
meetings  after  the  issue  of  the  Statement  of  Objections  in  appropriate  cases  is  not  excluded. 
Triangular  meetings  should  be  prepared  on  the  basis  of  an  agenda  established  by  the  DG 
Competition after consulting all parties that agree to attend the meeting. The preparation of the 
meeting  may  include  a  mutual  exchange  of  non-confidential  submissions  between  the  attending 
parties sufficiently in advance of the meeting. 

12. Review of key submissions 

(31) 

In the spirit of encouraging an open exchange of views the Commission will15, in cases based on 
formal complaints, provide the parties subject to the proceedings, at an early stage (unless such is 
considered  to  likely  prejudice  the  investigation)  and  at  the  latest  shortly  after  the  opening  of 
proceedings,  with  the  opportunity  of  commenting  on  a  non-confidential  version  of  the 
complaint16. However, this may not be the case where the complaint is rejected at an early stage 
without  further  in-depth  investigation  (e.g.  based  on  "insufficient  grounds  for  acting  by 
conducting a further investigation", also known as "lack of European Union interest"). 

(32)  Early access to the complaint may allow the parties to provide useful information at an early stage 

of the procedure and facilitate the assessment of the case. 

(33) 

In  the  same  spirit,  the  Commission's  objective  will  be  to  provide  the  parties  subject  to  the 
proceedings  shortly  after  the  opening  of  proceedings  with  the  opportunity  to  review  non-
confidential  versions  of  other  "key  submissions"  already  submitted  to  the  Commission.  This 
would include significant submissions of the complainant or interested third parties, but not, for 

14  

15  

16  

See Chap. 2.10 of the Notice on Antitrust Best Practices. 

See Chap. 2.10 of the Notice on Antitrust Best Practices. 

A non-confidential version of the reply of the party subject to the investigation to the complaint may thereafter 
be provided to the complainant. 

                                                 
Page 7/7 – Opening of proceedings 

example, replies to requests for information. The review of key submissions does not replace the 
formal procedure of access to the file. 

(34)  After this early stage, submissions submitted later on will only be shared with the parties if this is 
in  the  interest  of  the  investigation  and  would  not  risk  unduly  slowing  down  the  investigative 
phase.  The  Commission  will  respect  justified  requests  by  the  complainant  or  interested  third 
parties for non-disclosure of their submissions prior to the issuing of a Statement of Objections 
where they have genuine concerns regarding confidentiality, including fears of retaliation and the 
protection of business secrets. 

(35)  The review of key submissions will not be offered in the context of cartel proceedings. 

 
 
Page 1/15 – Drafting of Statement of Objections (SO) 

11 Drafting of Statement of 

Objections (SO) 

1. 

Purpose of a Statement of Objections 

2. 

Structure and contents of SO 

2.1.  Formal Conditions 

2.2.  Substantive Conditions 

2.2.1.  General rules and citation of evidence 
2.2.2.  Indication of sanctions and remedies 

3. 

Language regime 

4. 

Adoption Process 

4.1.  Drafting the SO 

4.2.  Consultation of Legal Service 

4.3. 

Information to other DGs concerned 

4.4.  Adoption by the Commissioner 

5.  Notification and transmission of the SO 

5.1.  Notification of SO to addressees 

5.2.  Transmission of SO to addressees outside EU 

5.3.  Transmission of SO to complainants and other third parties 

5.4.  Transmission of SO to Member States and ESA 

5.5.  Notification of SO to competition authorities outside EEA 

6. 

Cover letter 

6.1.  Deadline for reply 

6.1.1.  Initial time-limit 
6.1.2.  Extension 

6.2.  Modalities for submission of the reply 

6.3. 

Information on access to file 

6.4.  Possibility to request a oral hearing 

6.5.  Possibility to request confidentiality 

3 

4 

4 

4 
4 
5 

6 

6 

6 

7 

7 

7 

7 

7 

8 

8 

9 

9 

10 

10 
10 
11 

12 

12 

12 

12 

Antitrust Manual of Procedures 

7.  Withdrawal of objections and the closing procedure 

8.  New facts or evidence after the SO 

8.1.  Supplementary SOs 

8.2.  Letter of facts 

13 

13 

13 

14 

 
Page 3/15 – Drafting of Statement of Objections (SO) 

1.  Purpose of a Statement of Objections 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

1  

2  

3 

4 

5  

6  

A Statement of Objections (“SO”) must  be used  in procedures in which the Commission intends to 
adopt a decision adverse to the interests of the addressees, i.e. finding an infringement of Article 101 or 
102  TFEU  and  ordering  its  termination  and/or  imposing  behavioural  or  structural  remedies  on  the 
parties (Article 7 of Regulation 1/2003 and Commission Notice on best practices for the conduct of 
proceedings  concerning  Articles  101  and  102  TFEU1  ("Best  Practices  Notice"),  paragraph  83), 
ordering interim measures (Article 8 of Regulation 1/2003), imposing fines (whether for procedural or 
substantive infringements)  (Article 23 of Regulation 1/2003) or periodic penalty payments (Article 24 
of Regulation 1/2003), as well as withdrawing in an individual case the benefit of a block exemption 
(Article 29(1) of Regulation 1/2003). 

The purpose of the SO is to inform the parties concerned of the objections raised against them with a 
view  to  enabling  them  to  exercise  their  rights  of  defence  in  writing  and  orally  (at  the  hearing).2  The 
undertakings  concerned  must  be  provided  with  all  the  information  they  need  to  defend  themselves 
effectively and to comment on the allegations made against them. 

The SO is therefore an essential procedural safeguard ensuring that the right to be heard is observed in 
all proceedings.3   

As far as it is possible, an SO should be issued when the fact-finding is considered complete. If new 
elements appear after the issuing of the SO, a supplementary SO or letter of facts (see section 8 of the 
current  module)  may  have  to  be  sent,  which  may  considerably  delay  the  conclusion  of  the 
investigation.4  

According  to  the  Best  Practices  Notice,  the  parties  should  be  offered  a  State  of  Play  meeting  “at  a 
sufficiently advanced stage in the investigation”, i.e. in any event before an SO is issued. This meeting 
gives the parties an opportunity to understand the Commission’s preliminary views on the status of the 
case following its investigation and on the competition concerns identified. The meeting may also be 
used by DG Competition and by the parties to clarify certain issues and facts relevant for the outcome 
of the case5. 

From the procedural perspective, an SO is not an act or a decision within the meaning of Article 263 
TFEU. It thus cannot be separately challenged by an action for annulment. Rather, it is a preparatory 
procedural measure preceding the formal decision, and therefore any arguments concerning the legality 
of an SO must be raised in the context of an appeal against the final Commission decision.6 

OJ C 308, 20.10.2011, p. 6. 

Article 27(1) of Regulation 1/2003; Articles 10 to 14 of Regulation 773/2004. 

Case C-395/96 P, CMB e.a./Commission 2000 [ECR] I-1365, paragraph 142, with reference to Joined Cases 100/80 to 
103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraphs 10 and 14. 

Case C-167/04 P JCB Service v. Commission, [2004] ECR II-49, paragraph 52. 

Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, 
p. 6) (“Best Practices Notice”), paragraph 63(2). 

See  Case  60/81,  International  Business  Machines  Corporation  v  Commission,  [1981]  ECR  2639,  paragraphs  10-21; 
Case T-475/08R Intel v Commission [2009] ECR II-12.  

                                                 
Antitrust Manual of Procedures 

2.  Structure and contents of SO 

2.1.  Formal Conditions 

(7) 

(8) 

(9) 

The  SO  should  be  prepared  in  view  of  the  nature  and  structure  of  the  final  decision  that  might  be 
adopted. Its length is directly related to the nature of the case and its complexity. As a rule, it should be 
kept as concise as possible. 

The  document  must  clearly  indicate  that  it  constitutes  an  SO  within  the  meaning  of  Article  27(1)  of 
Regulation 1/2003. If proceedings have not been formally opened before, a decision to initiation of the 
proceedings  (see  Article  11(6)  of  Regulation  1/2003  and  Article  2  of  Regulation  773/2004)  will  be 
notified in parallel to the addressee of the SO.  

An SO may concern more than one infringement provided that it relates to facts presenting sufficient 
connections.  The  Commission  may  also  establish  in  one  SO  facts  derived  from  separate  complaints. 
The Commission is entitled to join related cases without any formal requirement to adopt a reasoned 
decision for that purpose7. 

2.2.  Substantive Conditions 

2.2.1.  General rules and citation of evidence 

(10)  Article  27(1)  of  Regulation  1/2003  provides  that  the  Commission  must  base  its  decisions  only  on 
objections on which the parties concerned have been able to comment.8  Hence, the objections must be 
exhaustive  and  couched  in  terms  that,  albeit  succinct,  are  sufficiently  clear  to  enable  the  parties 
concerned  properly  to  take  cognizance  of  the  conduct  complained  of  by  the  Commission.9  The 
undertakings concerned must be informed of all the facts and documents on which the Commission 
intends to rely in its final decision, even if they are known to the undertaking.10  

(11)  The SO must also clearly set out the legal assessment of the facts raised against each undertaking so 
that  the  undertaking  concerned  has  an  opportunity  to  contest  the  legal  conclusions  concerning  the 
alleged infringements.11 In practice, the linkage between the factual part and the legal assessment can be 
done by cross-references from the legal analysis to the relevant recitals in the description of the facts; it 
is not necessary to repeat the facts in the legal part. In this context, it is also important to keep in mind 
that if a document is mentioned in the factual part of the SO but no conclusion is drawn from it in the 
legal  assessment,  it  may  be  more  difficult  to  rely  on  it  as  evidence  of  the  conduct  with  which  an 
undertaking is charged.12   

7  

8  

9 

10  

11  

12 

Joined Cases 209/78 and 218/78, Heintz van Landewyck SARL and others (FEDETAB) v Commission of the European 
Communitie, [1980] ECR 3125, paragraphs 29 and 32. 

See also case C-62/86, AKZO, paragraphs 15 to 24, Rec. I-3444-3445 ; and joint cases T-10, 11, 12 et 15/92, CBR 
ea, (Ciments), paragraph 33, Rec. 1992 II-1571. 

Joined Cases T-5/00 and T-6/00, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotecknish Gebied 
and  Technische  Unie  BV  v  Commission,  [2003]  ECR  II-5761  paragraph  33;  Joined  Cases  C-89/85,  C-104/85,  C-
114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-
1307, paragraph 42. 

Case  85/76  Hoffmann-La  Roche  v  Commission,  [1979]  ECR  461,  paragraphs  9  and  11;  Case  T-7/89  Hercules  v 
Commission,[1991] ECR II-1711, paragraph 53. 

Case C-62/86 Akzo v Commission [1991] ECR 1-3359, paragraph 29; see also joint cases T-10, 11, 12 et 15/92, CBR 
ea, (Ciments), paragraph 33, Rec. 1992 II-1571. 

Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström Osakeyhtiö and 
others v Commission (“Woodpulp”), [1993] ECR I-1307, paragraph 153. 

                                                 
Page 5/15 – Drafting of Statement of Objections (SO) 

(12) 

(13) 

Personal  data,  that  is  any  information  relating  to  an  identified  or  identifiable  natural  person  (such  as 
names of representatives of the undertaking referred to in minutes of meetings, letters etc) should for 
reasons  of  personal  data  protection  only  be  mentioned  in  the  SO  if  this  is  necessary  to  support  the 
objections against the undertaking concerned13 or to allow parties to properly exercise their rights of 
defence. Where possible the natural person should not be identified in the SO by name but rather a 
description of the person's function should be given in general terms (example: marketing manager of 
undertaking A, employee of undertaking B).  

SOs  (and  prohibition  decisions)  should  identify  the  documents  used  as  evidence  in  support  of  the 
objections. This should be done by way of reference to documents in the file. Any precise quotations 
of passages of the document in the file should be accompanied by a translation done in the language of 
the procedure of the undertaking, indicating that it is an unofficial translation of the original document. 
In general, each time an objection is based on a document, the document should be clearly cited so that 
the undertaking in question will be able to identify and find it easily when access is given to the file, as 
well as to give its view on the evidential value of the document. 

(14)  Only documents cited or mentioned in the SO (or in a supplementary SO or letter of facts) constitute 
valid  evidence.  The  important  point  is  not  the  documents  as  such  but  the  conclusions  that  the 
Commission  draws  from  them.  If  certain  documents,  even  where  they  are  known  to  an  undertaking 
(e.g. when they came from its offices), are not mentioned in the SO, this undertaking may consider that 
these documents are of no importance for the purposes of the case and the Commission may have to 
indicate  them  to  the  parties  (for  instance,  in  a  letter  of  facts)  before  relying  on  them  in  the  final 
decision.14  However, documents appended to the SO, but not mentioned therein, may be used in the 
decision  against  a  party,  if  the  addressee  of  the  decision  could  reasonably  deduce  from  the  SO  the 
conclusions which the Commission intended to draw from them15, but it is always preferable to make 
express reference to any document that may be used.   

2.2.2. 

Indication of sanctions and remedies 

(15)  The  SO  must  also  clearly  indicate  whether  the  Commission  intends  to  impose  fines  (Article  23  of 
Regulation  1/2003),  a  periodic  penalty  payment  (Article  24)  or  other  remedies  (structural  or 
behavioural),  should  the  objections  be  upheld,  referring  to  the  evidence  and  facts  supporting  such 
measures.16  

(16) 

In  case  of  imposition  of  fines  pursuant  to  Article  23  of  Regulation  1/2003,  the  SO  will  refer  to  the 
relevant principles laid down in the Guidelines on setting fines.  

(17)  The  Commission  must  indicate  the  essential  facts  and  matters  of  law  which  may  result  in  the 
imposition of a fine, such as the duration and gravity of the infringement involved, as well as whether 
the infringement was committed intentionally or by negligence.17 It will also mention in a sufficiently 
precise manner that certain facts may give rise to aggravating circumstances, and to the extent possible, 
to attenuating circumstances.  

13  

14  

15  

16  

17  

Regulation (EC) No 45/2001 (OJ L 8, 12.1.2001, page 1) protects individuals with regard to the processing of personal 
data by EU institutions.. 

Case  107/82,AEG  [1983]  ECR  3193,  paragraphs  26  and  27.  By  not  informing  the  applicant  that  the  documents  in 
question would be used in the decision, the Commission prevented AEG from putting forward its view of the probative 
value of such documents. 

Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied 
and Technische Unie BV v Commission [2003] ECR II-5761 paragraph 34 

Case C.-176/99 P ARBED SA v Commission, [2003] ECR I-10687P, paragraph 21; Case T-395/94, Atlantic Container 
Line AB and Others v Commission , [2002] ECR II-00875, paragraphs 417-420.; Case 322/81, Michelin v Commission, 
[1983] ECR 3461, paragraph 20. 

Case  322/81,  Michelin  v  Commission  [1983]  ECR  3461,  paragraphs  19  and  20);  Case  C-289/04P  Showa  Denko  KK 
[2006] ECR I-5859, paragraph 69; Joined Cases T-109/02 e.a. Bolloré e.a. [2007] ECR II-947, paragraphs 396-404. 

                                                 
Antitrust Manual of Procedures 

(18)  The  Best  Practices  Notice  states  that,  although  under  no  legal  obligation  in  this  respect,  the  SO  will 
endeavour  to  include  (using  information  available)  further  matters  relevant  to  any  subsequent 
calculation of fines, including the relevant sales figures to be taken into account and the year(s) that will 
be considered for the value of such sales. Such information may also be provided to the parties after 
the  Statement  of  Objections.  In  both  cases,  the  parties  will  be  provided  with  an  opportunity  to 
comment18. 

(19) 

In  the  SO  the  Commission  should  also  inform  the  parties  that  in  exceptional  cases,  it  may,  upon 
request,  take  account  of  the  undertaking’s  inability  to  pay  and  reduce  or  cancel  the  fine  that  might 
otherwise  be  imposed  if  that  fine  would  irretrievably  jeopardise  the  economic  viability  of  the 
undertaking.19 

(20)  Regarding structural or behavioural remedies, the SO should be as detailed as possible and indicate the 
envisaged remedies. The information given in the SO should be detailed enough to allow the parties to 
defend  themselves  as  to  the  necessity  and  proportionality  of  the  remedies  envisaged.    If  structural 
remedies are envisaged, in accordance with Article 7(1) of Regulation 1/2003 the SO should spell out 
why there is no equally effective behavioural remedy or why any equally effective behavioural remedy 
would be more burdensome for the undertaking concerned than the structural remedy20.  

3.  Language regime 

(21)  The addressee of an SO has the right to receive all the correspondence, including the SO and the final 
decision,  in  the  language  or  one  of  the  languages  of  the  Member  State  of  its  location  following  the 
general rules of the national legislation in question.21  

(22)  This language rule can be changed, if the parties wish to opt for another (EU) language on the basis of 
a "language waiver". A representative of every addressee of an SO or decision (regardless of the fact 
that two or more companies/legal entities belong to the same group) should sign the formulation as 
stated in the language waiver. 

4.  Adoption Process 

4.1.  Drafting the SO 

(23)  The case team is in charge of drafting the SO. It may request support from the Antitrust and Merger 

Case Support Unit and, if relevant, the Chief Economist Team. 

18  

19  

20  

21  

Best Practices Notice, paragraph 85. 

Best Practices Notice, paragraphs 85 et seq. 

See Best Practices Notice, paragraph 83. 

Article  3  of  Regulation  No  1  determining  the  languages  to  be  used  by  the  European  Economic  Community,  OJ  17, 
06.10.1958, p. 385. 

                                                 
Page 7/15 – Drafting of Statement of Objections (SO) 

4.2.  Consultation of Legal Service 

(24)  The LS receives the draft SO, with a cover note signed by the relevant Director for consultation. 

(25) 

In accordance with Article 23-4.2 of the Implementing Rules giving effect to the Rules of Procedure of 
the Commission,  the  LS  should  be  granted  at least  10 working days when the document is up to 20 
pages and at least 15 working days where it exceeds 20 pages. 

4.3.  Information to other DGs concerned  

(26)  After  approval  by  the  Legal  Service,  the  relevant  Directorate  Generals  for  the  product  or  service 
concerned should be informed 22 and - except in duly justified circumstances of urgency - they will be 
given 10 working days when the document is up to 20 pages and at least 15 working days otherwise to 
state their views. Normally, their remarks should be limited to factual matters, whereas the assessment 
is  for  DG  COMP.  However,  the  2004  empowerment  decision  states  that  DG  COMP  “will  take  the 
greatest possible account of the opinion expressed by the other departments” and that an inter-service 
meeting  will  be  held  “in  good  time”  if  so  requested  by  one  of  these  departments.  For  details  see 
module on decision-making procedure. 

(27)  The  empowerment  for  issuance  of  an  SO  must  be  exercised  in  agreement  with  the  President  of  the 

Commission.  

4.4.  Adoption by the Commissioner 

(28)  The SO is adopted by the  Competition Commissioner under the empowerment procedure, once the 

agreement of the LS and of the President have been obtained. 

5.  Notification and transmission of the SO 

5.1.  Notification of SO to addressees 

(29)  An SO is addressed and notified individually to each party by the Secretariat General (“SG”) together 
with the cover letter explaining the rights of the addressees (see further here below Section 6). 

(30)  The SG sends the SO only to the undertakings, not to their lawyers. Therefore, if regarded as useful, a 

courtesy copy to the lawyers can be sent by the Head of Unit responsible.23   

(31)  While the subject of the competition rules is an “undertaking”, each legal entity that may be liable for 
the infringement within the undertakings must individually receive, as an addressee, an SO, specifying 
which elements of the infringement it is held responsible for and whether a fine is liable to be imposed 
on  it.24  It  is  therefore  important  to  make  sure  that  the  SO  is  addressed  to  all  possible  legal  entities 
(parent companies and subsidiaries) that may be held jointly and severally liable for the infringement, 
indicating clearly why the Commission considers each of them to be liable for the infringement. The 
final  decision  cannot  be  addressed  to  legal  entities  which,  although  they  may  be  considered  to  be 
responsible for the infringements, were not an addressee of the SO.  

22  

23  

24  

Commission decision of 28.4.2004 PV(2004)1655, SEC(2004)520, Article 2 

Article 10(1) of Regulation 773/2004. 

Joined Cases C-395/96 P and C-396/96 P, Compagnie maritime belge, [2000] ECR I-1365, paragraphs 142 to 147 

                                                 
Antitrust Manual of Procedures 

(32)  As regards associations of undertakings, it is normally sufficient to send a single SO to the association 
rather  than  addressing  individually  its  members,25  unless  its  members  are  also  held  liable  for  the 
infringement. 

(33) 

In case a language waiver has been agreed by the parties modifying the basic language rules contained 
in Regulation No 1 (see above section 3 Language regime), this must be submitted to the SG to ensure 
that the SG is prepared to send out an SO or a decision to an undertaking in a language other than the 
language of the Member State in which that undertaking is based. 

(34) 

(35) 

(36) 

(37) 

(38) 

5.2.  Transmission of SO to addressees outside EU 

It  often  happens  that  undertakings  having  their  registered  offices  and/or  headquarters  outside  the 
EU/EEA, also have subsidiaries or branches in the territory of the EU/EEA. In such cases the SO can 
be notified to the undertaking concerned at the address (“c/o”) of a subsidiary in the EU/EEA 
representing  the  business  activities  if  the  registered  office  and/or  headquarters  outside  the 
EU/EEA has agreed to it. The case-team should request such agreement, in order that the SG can duly 
notify it to the mandated subsidiary.  

If an undertaking has no establishment in the EU/EEA, the letter communicating the SO must be sent 
directly to the registered office or headquarters located outside the EU/EEA.  

If clarification is needed, the Unit for International Relations will be available to provide assistance and 
advice to the case team. 

5.3.  Transmission of SO to complainants and other 

third parties 

Pursuant  to  Article  6  of  Regulation  773/2004,  "where  the  Commission  issues  an  SO  relating  to  a 
matter in respect of which it has received a complaint, it shall provide the complainant with a copy of 
the non-confidential version of the SO and set a time-limit within which the complainant may make 
known its views in writing".  This can naturally be done only after a non-confidential version has been 
produced.  Before  sending  the  non-confidential  version  of  the  SO,  the  complainant  should  have 
received  and  returned  a  confidentiality  declaration  referred  to  in  paragraph  40  below.  A  deadline  of 
maximum one month is given for comments on the SO by the complainants. 

If other third parties request to be heard and show a sufficient interest, the Commission must inform 
them  in  writing  of  the  nature  and  subject  matter  of  the  procedure  (Article  13(1)  or  Regulation 
773/2004).  This  means  a  summary  of  the  facts  and  of  the  legal  assessment  set  forth  in  the  SO. 
Exceptionally,  if  deemed  appropriate,  a  copy  of  the  non-confidential  version  of  the  SO  can  be 
provided  to  them  the  same  way  as  to  the  complainants.26  When  there  are  several  third  parties,  the 
principle of equal treatment must be respected and the same form of communication should be used. 

(39) 

In order to avoid that the complainant or the other third parties justifying a sufficient interest uses this 
document  for  other  purposes,  they  will  be  requested  to  sign  a  confidentiality  declaration  before 

25  

26  

Joined Cases T-39/92 and T-40/92 Carte Bleu v Commission [1994] ECR II-49, paragraph 139. 

Joint  Cases  T-213/01  and  T-214/01  Österreichische  Postsparkasse  AG  and  Bank  für  Arbeit  und  Wirtschaft 
AG/Commission [2006] ECR II-1601, summary point 4, paragraphs 71-72, 78: "Any applicant or complainant who has 
shown a legitimate interest thus has the right to receive a non-confidential version of the statement of objections. As 
regards  third  parties  having  a  sufficient  interest,  it  cannot  be  ruled  out  that  the  Commission  might,  without  being 
required  to  do  so,  transmit  to  them  a  non-confidential  version  of  the  statement  of  objections  so  that  they  are  in  a 
proper  position  effectively  to  send  it  their  comments  on  the  alleged  infringements  forming  the  subject-matter  of  the 
proceeding  in  question.  Beyond  those  two  scenarios,  provision  is  not  made  in  Regulation  No  17  and  Regulation  No 
2842/98  for  the  Commission  to  transmit  the  statement  of  objections  to  legal  or  natural  persons  other  than 
undertakings against which those objections have been raised." 

                                                 
Page 9/15 – Drafting of Statement of Objections (SO) 

receiving  the  non-confidential  version  of  the  SO  or  the  summary  thereof.  It  is  also  important  to 
highlight  in  the  cover  letter  that  the  document  is  communicated  only  for  the  purpose  of  judicial  or 
administrative  proceedings  for  the  application  of  Art.  101/102  TFEU,  including  proceedings  before 
national courts27.  

(40)  The observations received from the complainants and other third parties justifying a sufficient interest 
are  submitted  to  the  addressees  of  the  SO,  subject  to  the  deletion  of  business  secrets  and  other 
confidential  information.  The  purpose  of  this  obligation  is  to  ensure  the  respect  of  the  rights  of 
defence. 

5.4.  Transmission of SO to Member States and ESA 

(41)  Via  secure  e-mail  connection  an  encrypted  copy  of  the  SO  and  the  cover  letter  addressed  to  the 
undertakings  are  transmitted,  without  delay,  to  all  NCAs.  Before  the  transmission,  remember  to  add 
the date of the SO given by the SG to the electronic version of the SO. 

(42)  There  is  no  need  to  send  translations  of  the  SO  to  NCAs  and/or  to  ESA.  However,  if  different 
language versions of the SO are sent to companies, every language version of the SO should be sent to 
all NCAs and/or to ESA (by secure-mail or via CD-ROM/DVD).   

(43)  Where the Commission decides to initiate proceedings in a case with EEA relevance ("mixed case") by 
means of sending an SO, it should be noted that this decision must include the finding that it is a case 
to which the EEA provisions apply. ESA must be informed and receive a copy of the SO. When the 
SO  and  the  initiation  of  proceedings  coincide,  it  should  be  remembered  that  ESA  has  at  least  forty 
working days to react. This time will be longer if the companies concerned have been granted a longer 
time limit. In all other cases of transmission of a copy of the SO, ESA has to respect the same time 
limits as the companies concerned. 

(44) 

In  order  to  ensure  good  cooperation  it  is  recommended  to  take  up  informal  contacts  with  the  ESA 
before the Statement of Objection is issued. 

5.5.  Notification of SO to competition authorities 

outside EEA 

(45) 

If the case concerns a non-EEA-country, the case-team should check if there is an obligation to inform 
the third country competition authority about the fact that an SO has been notified to a company in its 
jurisdiction  (see  guide  on  "Notification  Obligations").  In  case  of  doubt,  the  Unit  for  International 
Relations within Directorate A will provide assistance. 

(46)  When there is an obligation to notify, inform the Unit for International Relations, fill-in the template 
and  send  it  to  their  functional  mailbox.  The  Unit  for  International  Relations  will  take  care  of  the 
notification to the competition authorities in third countries. 

27  

See Article 8(2) of Regulation 773/2004; Case T-12/07 R Polimeri v Commission [2007] ECR II-38, paragraphs 53 and 
54;"...  the  transmission  is  made  for  the  only  purpose  of  the  proceedings  under  Regulation  17  [now  Regulation 
1/2003], without prejudice to the case-law of the Courts (in particular case T-353/94 Postbank)" ] In Case T-353/94 
Postbank  [1996]  ECR  II-945,  the  General  Court  ruled  that  Article  20(1)  of  Regulation  No°17  [now  Article  28(2)  of 
Regulation  1/2003]  does  not  oblige  that  the  Commission  prohibits  the  complainants,  to  whom  it  has  transmitted 
certain  documents  of  the  administrative  procedure  (in  particular  the  non-confidential  version  of  the  SO),  from 
producing  them  in  a  national  judicial  procedure  for  assessment  of  possible  existence  of  violations  of  Articles  101 
and/or 102 of the Treaty (paragraph 63). 

                                                 
Antitrust Manual of Procedures 

6.  Cover letter 

(47)  The cover letter sending the SO to the parties will be signed by the Director-General of DG COMP, 

but the SG adds the date and notifies to the addressees. The cover letter should contain the following: 

–  a deadline for the reply28; 

–  modalities for the reply; 

–  information on the parties' access to file29; 

–  information on the right to request an oral hearing30 and indication on its timing; 

–  the name, phone number and e-mail address of the Hearing Officer in charge; 

–  an  indication  of  the  possibility  to  ask  for  business  secret  protection  for  any  part  of  the  SO  and  a 

deadline for making such claims31; 

–  an indication of the possibility to make reasoned requests for confidentiality treatment for any material 

provided in a view expressed on the SO (see section 6.5)32. 

6.1.  Deadline for reply 

6.1.1. 

Initial time-limit 

(48)  The deadline to reply to the SO starts when the parties have received the most important documents 
from the Commission's file (i.e. the CD-ROM/DVD)33 and time begins to run as from the day after 
the receipt of these documents34. 

(49) 

In practice, the deadline to reply begins either: 

–  the day after the parties collect the CD-ROM/DVD at DG COMP's premises; or 

–  the day after the parties receive the CD-ROM/DVD by mail; or 

–  after  five  working  days  from  the  reception  of  the  notification  of  the  SO,  if  the  parties  expressed  in 
writing that they decline access to the file or did not react to ask for the CD-ROM/DVD within these 
5 working days. 

28  

29 

30  

31  

32  

33  

34  

Article10(2)  of  Regulation  773/2004,  according  to  which  "The  Commission  shall,  when  notifying  the  statement  of 
objections to the parties concerned, set a time-limit within which these parties may inform it in writing of their views". 
The  Commission  is  not  obliged  to  take  into  account  written  submissions  received  after  the  expiry  of  that  time-limit. 
See also XXIII Annual Report (1993 - n° 207). 

Article 27(2) of Regulation 1/2003 and Article 15 of Regulation 773/2004. 

Article  27(1)  and  (3)  of  Regulation  1/2003;  Articles  11  to  14  of  Regulation  773/2004.;  see  also  Article  6  of  the 
Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of 
reference of the hearing officer in certain competition proceedings ("Hearing Officer Terms of Reference"), OJ L 275, 
20.10.2011, p. 29. 

Article 16(3) of Regulation 773/2004. 

Article 16(2) of Regulation No 773/2004 

Case T-44/00, Mannesmannröhren-Werke, of 8 July 2004, para. 65. 

Art 3 Reg. 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits. 

                                                 
Page 11/15 – Drafting of Statement of Objections (SO) 

(50)  Access to corporate statements at DG Competition's premises does as such not modify the deadline 
for reply to the SO, but normally a longer deadline will be allowed in order to take into account the 
additional time needed for organizing the access to corporate statements at DG Competition premises.  

(51)  The time limit for the reply to the SO will take into account both the time required for the preparation 
of  the  submission  and  the  urgency  of  the  case.  The  parties  have  a  right  to  at  least  a  period  of  four 
weeks  to  reply  to  the  SO.35  A  longer  period  (normally,  a  period  of  2  months,  although  this  may  be 
longer or shorter depending on the circumstances of the case) will be granted, taking into account inter 
alia the size and complexity of the file, and/or whether the addressee of the SO making the request has 
had prior access to the information, and/or any other objective obstacles faced by the addressee of the 
SO (see Best Practices Notice, paragraph100).  

(52) 

For  a  supplementary  SO  the  above  rules  on  setting  the  time  limit  for  the  reply  to  the  SO  apply, 
although a shorter time limit will typically be set in this context (see Best Practices Notice, paragraphs 
100 and 110). 

6.1.2.  Extension 

(53) 

(54) 

If a party considers that the deadline is too short, it can seek an extension, within the initial time-limit, 
by  making  a  reasoned  request  to  DG  Competition  at  least  10  working  days  before  the  expiry  of  the 
original time limit.36 

If  the  extension  is  refused  or  in  case  of  disagreement  on  the  length  of  the  extension  granted,  the 
requesting party is entitled to refer the matter for decision to the Hearing Officer by way of a statement 
explaining  the  reason  why  an  extension  is  considered  necessary  and  indicating  the  length  of  time 
required.  The  legal  situation  in  this  respect  is  laid  down  in  Articles  10(2)  and  17(2)  of  Regulation 
773/2004, and Article 9 of the Hearing Officer’s Terms of Reference37.  The Hearing Officer will hear 
the  Director  responsible  for  the  case  before  taking  his/her  decision  and  will  inform  the  undertaking 
and DG Competition in writing.38  

(55)  The criteria applied by the Hearing Officer in taking the decision are listed in Article 9(1) of the HO 

Terms of Reference:  

–  the size and complexity of the file (for example, the number of infringements, the alleged duration of 
the  infringement(s),  the  size  and  number  of  documents  and/or  the  size  and  complexity  of  expert 
studies); 

–  whether  the  addressee  of  the  statement  of  objection  making  the  request  has  had  prior  access  to 

information; and/or 

–  any  other  objective  obstacles  which  may  be  faced  by  the  addressee  of  the  statement  of  objection 

making the request  in providing its observations.  

(56) 

Failure  to  reply  within  the  fixed  deadline  does  not  affect  the  pursuit  of  the  procedure.  Pursuant  to 
Article  10(2)  of  Regulation  773/2004  "[t]he  Commission  shall  not  be  obliged  to  take  into  account  written 
submissions received after the expiry of that time-limit".  

35  

36  

37  

38  

Article 17(2) of Regulation 773/2004. 

Best Practices Notice, paragraph 101. 

Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of 
the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29). 

Id., Article 9(1). 

                                                 
Antitrust Manual of Procedures 

6.2.  Modalities for submission of the reply 

(57)  The  modalities  for  submission  of  the  reply  are  set  out  in  Article  10(3)  of  Regulation  No  773/2004, 

which contains the following provisions: 

“The parties may, in their written submissions, set out all facts known to them which are relevant to their defence against 
the objections raised by the Commission. They shall attach any relevant documents as proof of the facts set out.  

They shall provide a paper original as well as an electronic copy or, where they do not provide an electronic copy, 28 paper 
copies of their submission and of the documents attached to it. 

They may also propose that the Commission hear persons who may corroborate the facts set out in their submission.”  

6.3.  Information on access to file 

(58)  The cover letter sending the SO should mention that the parties have a right to access to the file39 and 

the arrangements proposed for that (see detailed description in the Module Access to File). 

(59) 

In  the  cover  letter  the  parties  are  informed  that  if  they  want  to  have  access  to  the  file,  they  have  to 
make a written request within 5 working days after receipt of the SO, in order to: 

–  collect  the  CD-ROM/DVD  at  DG  COMP  premises  or  receive  the  CD-ROM/DVD  by  registered 

letter with receipt of delivery and/or 

–  have access to corporate statements in case of leniency cases. 

(60)  The  cover  letter  should  also  mention  that  pursuant  to  Article  15(4)  of  Regulation  773/2004, 
“documents  obtained  through  access  to  the  file  pursuant  to  this  Article  shall  only  be  used  for  the 
purposes  of  judicial  or  administrative  proceedings  for  the  application  of  Articles  101  and  102  of  the 
Treaty”. 

6.4.  Possibility to request a oral hearing 

(61)  The  cover  letter  should  further  indicate  that  the  parties  have  the  opportunity  to  develop  their 

arguments at an oral hearing, if they so request in their written submissions.40  

(62)  The  case-team  should  provide  the  Hearing  Officer  with  the  relevant  powers  of  attorney,  and  keep 

him/her informed about the parties' change of counsel or appointment of additional lawyers. 

(63)  The  Hearing  Officer  should  be  contacted  in  good  time  in  advance  (at  least  six  weeks  before  the 
envisaged  hearing  date)  to  discuss  a  tentative  date  of  the  hearing.  The  Hearing  Officer,  after 
consultation  with  the  Director  responsible,  determines  the  precise  date(s),  duration  and  place  of  the 
oral hearing. He is also in charge of informing the parties accordingly (see further in the Module Right 
to be heard). 

6.5.  Possibility to request confidentiality 

(64)  The  undertakings  or  associations  of  undertakings  should  be  required  to  identify  any  part  of  an  SO 
adopted by the Commission which in their view contains business secrets (Article 16(3) of Regulation 

39  

40  

Article 15(1) of Regulation 733/2004 and paras. 26 and 27 of the Notice on access to file. 

Article 12 of Regulation n° 773/2004. 

                                                 
Page 13/15 – Drafting of Statement of Objections (SO) 

No 773/2004). The Commission may set a time-limit within which the undertakings and associations 
of undertakings are to:  

–  substantiate  their  claim  for  confidentiality  with  regard  to  each  individual  document  or  part  of 

document, statement or part of statement; 

–  provide the Commission with a non-confidential version of the documents or statements, in which the 

confidential passages are deleted,41 

–  provide a concise description of each piece of deleted information. 

(65)  The  letter  submitting  the  SO  to  a  party  should  also  remind  that  any  person  which  makes  known  its 
views  pursuant  to  Article  10  (2)  of  Regulation  No  773/2004  or  subsequently  submits  further 
information to the Commission in the course of the same procedure must clearly identify any material 
in its reply to the SO, or in any other document it submits, which it considers to be confidential, giving 
reasons, and provide a separate non-confidential version by the date set by the Commission for making 
its views known (Article 16(2) of Regulation No 773/2004). 

(66) 

If  undertakings  or  associations  of  undertakings  fail  to  comply  with  the  above,  the  Commission  may 
assume that the documents or statements concerned do not contain confidential information (Article 
16(4) of Regulation No 773/2004). 

(67)  However,  the  Commission  should  be  prudent  about  the  use  of  personal  data  in  the  SO  (see  section 
2.2.1 above) and if such data are considered to be essential evidence in (the non-confidential version 
of)  the  SO  and  the  (association)  of  undertakings  concerned  does  not  mark  them  as  confidential 
information such data should as a rule be deleted in the non-confidential version of the SO. 

7.  Withdrawal of objections and the closing 

procedure 

(68) 

It  may  happen  that  as  a  result  of  the  analysis  of  a  party’s  reply  to  the  SO  and/or  other  information 
obtained after it, the objections will be withdrawn and the procedure against the addressee in question 
stopped.  

(69)  When  the  objections  (or  the  complaint;  see  module  on  Handling  of  complaints)  are  withdrawn,  the 
procedure  initiated  pursuant  to  article  11(6)  of  Regulation  1/2003  should  be  closed.  For  details  see 
module on closure of procedure. 

8.  New facts or evidence after the SO 

8.1.  Supplementary SOs 

(70)  Due  observance  of  the  rights  of  defence  requires  that  the  undertakings  and  associations  of 
undertakings  concerned  be  afforded  the  opportunity  to  make  known  their  views  on  the  truth  and 
relevance of the facts, objections and circumstances put forward by the Commission.42 If, after the SO 
has  been  issued,  new  facts  or  evidence  appear  as  a  result  of  the  addressees’  replies,  investigation 
measures  taken  separately  or  a  new  complaint,  the  undertakings  in  question  have  to  be  given  an 

41  

42 

Article 16(3) (b) of Regulation 773/2004. 

Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461; Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 
SA Cimenteries CBR and Others v Commission. 

                                                 
Antitrust Manual of Procedures 

opportunity  to  give  their  explanations  on  these  new  aspects.  If  the  undertakings  have  not  had  the 
opportunity  to  present  their  observations  on  such  new  aspects,  they  cannot  be  relied  on  in  the  final 
decision. 

(71) 

If  these  new  elements  justify  raising  supplementary  objections  in  substance,  or  they  imply  a 
modification  in  the  intrinsic  nature  of  the  infringement  with  which  an  undertaking  is  charged,  they 
have  to  be  communicated  to  the  undertakings  concerned  by  a  supplementary  SO  in  due  form43.  A 
supplementary SO can also be issued to correct any omissions of the first SO44. 

(72)  The due form is not respected if the Commission simply dispatches a copy of an SO sent to another 
party and solely for the purposes of information, when the supplementary SO alters the intrinsic nature 
of  the  infringement  with  which  an  undertaking  is  charged  and  widens  the  scope  of  the  objections 
presented against it.45 Failure to do so constitutes violation of the rights of defence. This is particularly 
true  where  it  cannot  be  excluded  that  the  procedure  might  have  had  a  different  result  if  the 
Commission  had  properly  notified  a  supplementary  SO  to  the  undertaking  in  question  and  if  it  had 
prescribed  a  period  of  time  for  that  undertaking  to  submit  its  observations  with  respect  to  the  new 
elements included in that SO.46 

(73) 

It is not necessary to repeat all the objections in the supplementary SO; it suffices to simply state what 
is new with regard to the previous SO and what has not been submitted to the undertaking previously. 

(74)  Before issuing a supplementary SO, a State of Play meeting will normally be offered to the parties. The 
rules on setting the time limit for the reply to an SO apply, although a shorter time limit will typically 
be set in this context47. 

8.2.  Letter of facts 

(75)  On  the  other  hand,  if  new  information  only  corroborates  the  objections  already  raised  against  the 
undertaking(s), i.e. if further evidence is brought forward in support of the objections already set out in 
the SO, it is sufficient to bring them to the attention of the parties by a simple letter (letter of facts), 
giving them a possibility to provide written comments on the new evidence within a fixed deadline48. 
Parties may ask for an extension of this deadline by first submitting a request in due time within the 
original deadline to the case team. In case of refusal or disagreement about the length of the extension, 
the matter can be referred to the Hearing Officer, by means of a reasoned request.49 

(76)  Where, for instance, there is a new complaint containing facts other than those already communicated, 
but that corroborate the objections already communicated to the undertaking, a supplementary SO is 
not formally necessary; it is sufficient that the undertaking in question be informed of the contents of 
such complaint and that its reaction be recorded in writing.50  Similarly, where the conclusions drawn 
earlier  in  the  SO  will  not  be  altered,  the  Commission  may  forward  evidential  documents  to  the 

43 

44 

45  

46  

47  

48  

49  

50  

Case C-167/04 P, JCB Service, [2004] ECR II-49, paragraph 52. See also Best Practices Notice, paragraph 110. 

Case C-167/04 P, JCB Service, [2004] ECR II-49, paragraphs 100-101. 

Joint  cases  T-39/92  et  T-40/92,  Groupement  des  cartes  bancaires  'CB'  et  Europay  International,  in  particular 
paragraph 58. 

Ibid, paragraphs 46 to 60, in particular paragraphs 46, 52, 55, 58 et 60, Rec. p. II-72. 

See Best Practices Notice, paragraph 110. 

Case T-23/99 LR af 1998 v Commission [2002] ECR II-1705, paragraphs 188-190, Case T-340/03 France Télécom v 
Commission  [2007]  ECR  II-107,  paragraphs  28-37  and  Best  Practices  Notice,  paragraph  110;  see  also  Commission 
Report on Competition Policy [2004], SEC (2005) 805 final, 10 in relation to Commission Decision COMP/C-3/37.792 
of 24.3.2004, Microsoft, paragraph 15.  

Article 3(7) of the Hearing Officer Terms of Reference. 

Joined Cases 209-215 and 218/78 Van Landewijck e.a [1980] ECR 3243, paragraphs 29-35. 

                                                 
Page 15/15 – Drafting of Statement of Objections (SO) 

undertakings so that they may make their observations on them.51 This ensures that the parties will be 
given  due  access  to  the  file,  without,  however,  the  necessity  to  organise  a  new  hearing.  When  the 
Commission merely communicates to a party a non-confidential version (or specific excerpts thereof) 
of  the  other  parties'  written  replies  to  the  Statement  of  Objections  and  gives  it  the  opportunity  to 
submit their comments (see above), this does not constitute a letter of facts. 

51  

Joined  Cases  T-236/01,  T-239/01,  T-244/01-T-246/01,  T-251/01  and  T-252/01  Tokai  Carbon  Co  Ltd  and  others  v 
Commission [2004] ECR II-1181, paragraph 45. 

                                                 
 
Page 1/25 – Access to file and confidentiality 

12 Access to file and 
confidentiality 

1. 

Introduction 

1.1.  Legal framework 

1.2.  To whom is access to file granted? 

1.3.  Who grants access to file? 

1.4.  When is access to file granted? 

2. 

Scope of the Access to File 

2.1.  Definition of the file 

2.2.  Definition of accessible / non-accessible documents 

2.2.1.  Internal documents 
2.2.2.  Confidential information 

2.3.  Scope for confidentiality claim 
2.3.1.  Legal Framework 
2.3.2.  Professional secrecy 
2.3.3.  Disclosure of confidential information 

2.4.  Treatment of confidentiality claims 

2.4.1.  Informing companies how to lodge confidentiality requests 
2.4.2.  Dealing with confidentiality claims 

3. 

Procedure for implementing access to file 

3.1.  Constitution of the file 

3.1.1.  When and how access to file has to be prepared? 
3.1.2.  Documents to put in the file 

3.2.  Organisation of the access to file 

3.2.1.  Electronic access to file via the CMA 
3.2.2.  Access to file in Leniency cases 

3.3.  Provision of access to file 

4.  Handling of further access to the file after the SO has been 

issued 

4.1.  Access to Parties' replies to the SO 

4.2.  Access to file in case of Supplementary Statement of Objections (SSO) 

or Letter of facts 

5. 

Specific situations 

5.1.  Access to information outside the Commission’s investigation file 

3 

3 

3 

4 

4 

4 

4 

5 
5 
7 

8 
9 
9 
9 

11 
11 
12 

13 

13 
13 
14 

14 
14 
17 

18 

19 

19 

21 

21 

21 

 
Antitrust Manual of Procedures 

5.2.  Documents emanating from a different case file 

5.3.  Settlement procedure (Article 15 Reg. 773/2004): Access to relevant 

information 

5.4.  Commitment decision (Art. 9 Reg. 1/2003) 

5.5.  Rejection of complaints: access to information on which the Commission 

has based the preliminary view 

6.  Different procedural practices of access to the file 

6.1.  The negotiated disclosure procedure 

6.2.  Rules governing access to confidential information in a data room 

22 

22 

23 

23 

23 

24 

24 

 
 
 
 
 
Page 3/25 – Access to file and confidentiality 

1.  Introduction 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

1  

2  

3  

4  

5  

Access  to  file  work  requires  legal  and  procedural  knowledge  and  implies  notably  a  substantive 
assessment of confidentiality claims. This is often a complex exercise given the tension between 
two fundamental interests, i.e. on the one hand, the rights of defence of the parties subject to the 
investigation and, on the other hand, the protection of confidential information by the author of 
the document. 

Preparing the file for access to file is also a very time consuming exercise that should be started 
well in advance. The proper management of access to file is an integral part of case-handling. Case 
managers, case handlers, case assistants and case secretaries organise access to the file according to 
the highest standards. 

The  present  Module  gives  guidance  on  the  practical  modalities  of  managing  access  to  file  and 
dealing with confidentiality claims. 

1.1.  Legal framework 

The right of the parties to have access to the file is laid down in Article 27(1) and (2) of Regulation 
No 1/2003 and Article 15(1) of Commission Regulation No 773/2004. 

The rules defining the scope of the identification and protection of confidential information 
are laid down in Article 16 of Commission Regulation No 773/2004. Article 28 of Regulation No 
1/2003  defines  the  professional  secrecy,  which  obliges  the  Commission  not  to  disclose 
confidential information. 

The  Commission Notice on  access to file1 explains the principles relating to access to file as 
well as the treatment of confidential information. 

1.2.  To whom is access to file granted? 

In cases under Articles 101 and 102 TFEU, access to file is only granted to the undertakings or 
associations of undertakings (“the parties”) to whom the Commission has addressed a Statement 
of Objections ("SO"). 

Access to the file is distinct from the access to information contained in the file for a complainant 
where  the  Commission  intends  to  reject  a  complaint2  and  distinct  from  the  access  to  key 
documents  under  the  Notice  on  Antitrust  Best  Practices3  and  access  to  relevant  information  in 
settlement procedures4. It is also distinct from public access to documents under Regulation No 
1049/20015.  

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; hereafter "Notice on access to file". 

In the latter case, pursuant to Article 7(1) of Regulation No 773/2004, the complainant may request access only 
to  the  documents  on  which  the  Commission  bases  its  provisional  assessment  in  the  Article  7(1)  letter.  See 
module on Handling of complaints. 

See  Notice  on  best  practices  for  the  conduct  of  proceedings  concerning  Articles  101  and  102  TFEU  (OJ  C  308, 
20.10.2011, p. 6) ("Notice on Antitrust Best Practices"), para. 73. 

Art. 10 a (2) and 15(1)(a) of Regulation No 773/2004  

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public 
access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43.  For access to 
documents under Regulation No 1049/2001 in the context of competition proceedings see the internal guidelines.  

                                                 
Antitrust Manual of Procedures 

1.3.  Who grants access to file? 

(9) 

Access to file is a measure of pure administration, involving no other Commission services. The 
case team organises the access to the file.  

1.4.  When is access to file granted? 

(10)  Access to file is granted upon request and, normally, on a single occasion, following notification 

of the SO.6 

2.  Scope of the Access to File 

2.1.  Definition of the file 

(11)  The  "Commission's  file"  in  a  competition  investigation  consists  of  all  documents  obtained, 
produced  and/or  assembled  by  DG  Competition  during  the  investigation  that  has  led  the 
Commission  to  raise  its  objections.  The  term  "documents"  includes  all  forms  of  information 
media. 

(12)  Documents  submitted  to  or  in  possession  of  other  Commission  services  other  than  the 
submissions during the inter-service consultation of the concerned case are not part of the file, as 
they  have  not  been  obtained,  produced  and/or  assembled  by  DG  Competition  during  the 
investigation using the powers provided for in Regulation 1/2003. 

(13)  Documents without an objective link to the investigation should be returned to the sender as 
soon as possible and be removed from the file. Only a standard letter by which the documents are 
returned,  describing  the  type  of  document  (e.g.  report,  market  study,  or  a  reference  to  the 
inspection number) and the reason for the return (“non case-related document”) is kept in the file. 

(14)  Documents allegedly protected by legal professional privilege should be avoided to include 
in  the  file  before  their  status  has  been  determined.  Claims  for  legal  professional  privilege  are 
treated  on  the  spot  during  the  inspection  where  possible.  In  case  of  disagreement  companies 
cannot oppose to the Commission taking the documents in a sealed envelope to the Commission 
premises for further treatment7.  

(15)  All  precautions  need  to  be  taken  to  protect  the identity of  an informant who has expressed the 

wish to remain anonymous.  

6  

7  

Article 15(1) of Regulation 773/2004; Notice on access to file para. 26 and 27. 

See Joined Cases T-125/03 & T-253/03, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission. 

                                                 
Page 5/25 – Access to file and confidentiality 

File overview 

Acces
sible 
docu
ments 

In the file 

Non-accessible documents 

EC 
premise
s 

Non-accessible documents 

Internal documents 

Business 
secret  

Other 
confidential 
information 

Internal 
Commission 
documents  

Correspondence 
with MS 

NOT part of the file 

Non-related 
documents 

Documents from other 
Commission services other than 
ISC 

Documents protected by 
legal privilege 

2.2.  Definition of accessible / non-accessible 

documents 

(16)  According to the principle of equality of arms, all documents, whether inculpatory or exculpatory 
evidence and other information, which have been obtained by, produced to and/or assembled by 
DG Competition in the Commission’s file need to be rendered accessible.8 

(17)  There are only two exceptions: 

–  internal documents from the Commission or from the NCAs, including correspondence between 

them; and 

–  confidential documents, including business secrets and other confidential information9. 

2.2.1. 

Internal documents 

(18) 

Internal documents can be neither incriminating nor exculpatory. They do not constitute part of 
the evidence on which the Commission can rely in its assessment of a case. Given their lack of 
evidential  value,  this  restriction  on  access  to  internal  documents  does  not  prejudice  the  proper 
exercise of the parties' right of defence. 

8  

9  

Notice on access to file, para. 7-10. 

Notice on access to file, para. 10. 

 
 
 
 
 
 
                                                 
Antitrust Manual of Procedures 

(19) 

Internal  documents  are  documents,  such  as  drafts,  opinions,  memos  or  notes  from  the 
Commission or from the NCAs, including correspondence between them. 

(20)  Minutes  of  meetings,  if  they  contain  also  internal  assessment,  are  to  be  treated  as  internal 
documents. According to the case law, the right to access to file does not require the Commission 
departments to draft any minutes of meetings with any person or undertaking10. 

(21)  According  to  the  Notice  on  Antitrust  Best  Practices11,  DG  Competition  may  hold  informal 
meetings  (or  conduct  phone  calls)  with  the  parties  subject  to  the  proceedings,  complainants,  or 
third  parties  during  the  investigative  phase.  When  a  meeting  takes  place  at  the  request  of  the 
parties, complainants or third parties, they should submit in advance a proposed agenda of topics 
to be discussed at the meeting, as well as a memorandum or a presentation covering these issues in 
more detail. The parties, complainants or third parties are invited after meetings or phone calls on 
substantive issues to substantiate their statements or presentations in writing. A non-confidential 
version  of  any  written  documentation  prepared  by  the  undertakings  which  attended  a  meeting 
held by DG Competition, together with a brief note prepared by the services of DG Competition, 
will  be  made  accessible.  Subject  to  requests  for  anonymity  this  note  will  mention  the 
undertaking(s)  attending  the  meeting,  (or  participating  in  the  phone  call  relating  to  substantive 
issues) and the time and topic(s) covered by the meeting (or such a phone call). DG Competition 
may,  after  a  meeting  or  other  informal  contact  with  the  parties,  complainants  or  third  parties, 
request  them  to  provide  information  in  writing  pursuant  to  Article  18  of  Regulation  1/2003  or 
invite them to make a statement pursuant to Article 19 thereof. 

(22)  When  external  experts  are  commissioned  in  connection  with  proceedings,  correspondence 
between  the  Commission  and  the  external  expert  constitutes,  in  principle,  internal  documents12. 
These include correspondence containing evaluation of the contractor's work, including the draft 
of the report, or relating to financial aspects of the study. Such correspondence will thus not be 
accessible13. However, the results of a study commissioned in connection with proceedings with a 
view  to  be  used  as  evidence  as  well  as  documents  that  are  necessary  to  understand  the 
methodology applied in the study or to test its technical correctness are accessible. 

(23) 

Information obtained at the DG Competition library from external paid databases should not be 
made available if copyrighted. 

(24)  A particular case of internal documents is the Commission's correspondence with other public 
authorities  and  the  internal  documents  received  from  such  authorities,  whether  from  EU 
Member States or third countries. Examples of such non-accessible documents include: 

a) 

correspondence between the Commission and NCAs, or between the latter; 

10  

11  

12  

13 

Joined  Cases  T-191/98  and  T-212/98  to  T-214/98  Atlantic  Container  Line  and  others  v  Commission  (TACA) 
[2003] ECR II-3275, para. 349-359. 

Notice on Antitrust Best Practices, para 42 seq. 

Cf. 2005 Annual Report, para 21, in the section on the new Notice on access to file. 

See Notice on access to file para.14 and Case T-210/01 General Electric v Commission [2005] ECR II-5575: In 
relation to Professor Choi’s report, which was the basis of the Commission’s theory on mixed bundling, the Court 
noted  that  the  Commission’s  refusal,  founded  on  a  request  for  confidentiality  made  by  Rolls-Royce,  to  grant 
access  to  the  data  on  which  the  Choi  model  was  based  had  no  effect  on  the  outcome  of  the  administrative 
procedure. The Court considered that the Commission is entitled to seek different opinions, including the opinions 
of external experts, in order to check the accuracy of its analysis. To the extent that the Commission does not 
rely on the opinion of such an expert in its SO and its final decision as evidence substantiating its case against an 
undertaking, the opinion remains no more than a view expressed by a single person and assumes no particular 
significance  in  the  context  of  the  administrative  procedure.  Such  a  view,  even  though  expressed  by  an  expert, 
cannot therefore be regarded as either favourable or adverse evidence (para 671). If the documents in question 
had  been  regarded  as  forming  part  of  the  Commission’s  actual  case-file,  they  would  have  been  classified  as 
internal  documents,  given  their  status  and  content,  and  the  applicant  would  therefore  not  have  had  access  to 
them (para. 672). 

                                                 
Page 7/25 – Access to file and confidentiality 

b) 

c) 

d) 

correspondence between the Commission and other public authorities of Member States; 

correspondence  between  the  Commission,  the  EFTA  Surveillance  Authority  and  public 
authorities of EFTA States; 

correspondence between the Commission and public authorities of third countries, including 
their  competition  authorities,  in  particular  where  the  European  Union  and  a  third  country 
have concluded an agreement governing the confidentiality of the information exchanged. 

(25) 

In  certain  exceptional  circumstances,  access  may  be  granted  to  documents  originating  from 
Member States, the EFTA Surveillance Authority or EFTA States, after deletion of any business 
secrets or other confidential information. The Commission will consult as appropriate the entity 
submitting the document prior to granting access to identify business secrets or other confidential 
information. 

(26)  This is the case where the documents originating from Member States contain allegations brought 
against  the  parties,  which  the  Commission  must  examine,  or  form  part  of  the  evidence  in  the 
investigative  process,  in  a  way  similar  to  documents  obtained  from  private  parties.  These 
considerations apply, in particular, as regards: 

–  documents and information exchanged pursuant to Article 12 of Regulation (EC) No 1/2003, and 
information  provided  to  the  Commission  pursuant  to  Article  18(6)  of  Regulation  (EC)  No 
1/2003; 

–  complaints lodged by a Member State under Article 7(2) of Regulation (EC) No 1/2003. 

(27)  Access  will  also  be  granted  to  documents  originating  from  Member  States  or  the  EFTA 
Surveillance  Authority  in  so  far  as  they  are  relevant  to  the  parties'  defence  with  regard  to  the 
Commission’s jurisdiction.14  

2.2.2.  Confidential information 

(28)  Confidential information comprises business secrets and other confidential information.  

(29)  Business  secrets  are  confidential  information  about  an  undertaking's  business  activity  the 
disclosure of which could cause serious harm to that undertaking.15 Examples of information that 
may  qualify  as  business  secrets  include:  technical  and/or  financial  information  relating  to  an 
undertaking's  know-how,  methods  of  assessing  costs,  production  secrets  and  processes,  supply 
sources,  quantities  produced  and  sold,  market  shares,  customer  and  distributor  lists,  marketing 
plans, cost and price structure and sales strategy.16  

(30)  Other  confidential  information  is  information  other  than  business  secrets,  insofar  as  its 
disclosure  would  significantly  harm  a  person  or  undertaking.17  Depending  on  the  specific 
circumstances  of  each  case,  this  may  apply  to  information  provided  by  third  parties  about 
undertakings which are able to place very considerable economic or commercial pressure on their 
competitors or on their trading partners, customers or suppliers. The General Court and the Court 
of Justice have acknowledged that it is legitimate to refuse to reveal to such undertakings certain 
letters received from their customers, since their disclosure might easily expose the authors to the 

14  

15  

16  

17  

Notice on access to file, para. 15-16.  

Case T-353/94, Postbank NV v Commission, of 18.9.1996, para. 87. 

Notice on access to file, para. 18. 

Notice  on  access  to  file,  para.  20,  includes  explicitly  military  secrets  in  the  category  of  other  confidential 
information. 

                                                 
Antitrust Manual of Procedures 

risk of retaliatory measures18. Therefore the notion of other confidential information may include 
information  that  would  enable  the  parties  to  identify  complainants  or  other  third  parties  where 
those have a justified wish to remain anonymous.19  

(31)  By way of example, the Commission does not normally accept the following type of information 

as business secrets and other confidential information: 

–  data  from  or  about  another  company  (such  as  price  announcements,  sales  data  etc.  other  than 
received pursuant to a contract with that company), unless confidentiality has been claimed (e.g. 
to prevent revelation of the knowledge of this information); 

–  information made known outside the company concerned (such as price targets, increases, dates 

of implementation and customer names, if made known to third parties); 

–  facts  relating  to  an  application  for  immunity  or  a  reduction  of  fines,  where  these  facts  aim  at 
providing evidence of an alleged infringement, unless the disclosure of such facts could harm the 
Commission’s leniency policy; 

–  names and positions of employees or other persons involved in an infringement. 

(32) 

Business  secrets  and  other  confidential  documents  lose  their  classification  as  confidential 
documents if they:  

–  are already known outside or 

–  have lost their commercial importance, for instance due to the passage of time (as a general rule, 
parties' turnover, sales, market-share data and similar information which is more than 5 years old 
is no longer confidential).20 

(33)  Personal data has to be processed in accordance with Regulation (EC) No 45/2001.21 

(34)  Correspondence  on  confidentiality  relating  to  the  granting  of  confidentiality  (including  the 
cover emails etc.) is so closely interrelated to the issue of confidentiality that it need normally not 
be  disclosed  to  the  parties.  It  is  advisable  to  clearly  indicate  in  the  file  index  that  the  document 
concerned  constitutes  "correspondence  on  confidentiality  claims",  so  that  the  parties  can 
understand why the document is not accessible.  

2.3.  Scope for confidentiality claim 

(35) 

Information will be classified as confidential where the information provider has substantiated its 
confidentiality claim and provided a non-confidential version that has been provisionally accepted 
by the Commission. 

18  

19  

20  

21  

The Court of Justice of the European Union have pronounced upon this question both in cases of alleged abuse of 
a  dominant  position  (Article  102  TFEU)  (Case  T-65/89,  BPB  Industries  and  British  Gypsum  [1993]  ECR  II-389; 
and  Case  C-310/93P,  BPB  Industries  and  British  Gypsum  [1995]  ECR  I-865),  and  in  merger  cases  (Case  T-
221/95 Endemol v Commission [1999] ECR II-1299, para. 69, and Case T-5/02 TetraLaval v. Commission [2002] 
ECR II-4381, para. 98 et seq.). 

Notice on access to file, para. 19-20. 

Notice on access to file, para. 23. 

Regulation (EC) 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection 
of  individuals  with  regard  to  the  processing  of  personal  data  by  the  Community  institutions  and  bodies  and  on 
the free movement of such data, OJ L 8, 12.1.2001, p.1. 

                                                 
Page 9/25 – Access to file and confidentiality 

(36)  Dealing  with  requests  for  confidentiality  generates  substantial  workload  and  case  teams  should 
deal with them as early as practicable. These claims must be settled before the SO is notified and 
access to file granted. 

2.3.1.  Legal Framework 

(37)  The  protection  of  confidential  information  is  in  principal  assured  by  the  classification  itself 
pursuant to Article 27(2) Reg. 1/2003 and Article 15(2) and 16(1) Reg. 773/2004 as well as by the 
obligation of professional secrecy, which obliges the Commission not to disclose information in 
its  possession  covered  by  the  obligation  of  professional  secrecy  pursuant  to  Article  28  of  Reg. 
1/2003 and Art. 339 TFEU.22 

2.3.2.  Professional secrecy 

(38)  The provisions on professional secrecy apply also to the competition authorities of the Member 
States,  their  officials,  civil  servants  and  other  persons  working  under  the  supervision  of  these 
authorities  as  well  as  officials  and  civil  servants  of  other  authorities  of  the  Member  States 
(including their representatives and experts attending the Advisory Committee meetings).23 

(39)  According to the General Court24 in order to fall under the obligation of professional secrecy the 

information must: 

–  be known only to a limited number of persons, 

–  if disclosed, be liable to cause serious harm to the person who provided it or to third parties and 

–  if  disclosed,  the  interests  liable  to  be  harmed  by  disclosure  must,  objectively,  be  worthy  of 

protection. 

The General Court has also confirmed that the concept of professional secrecy is broader than that 
of business secret and therefore documents protected by the principle of professional secrecy can 
be disclosed when granting access to the file for the purpose of the rights of defence, provided they 
do not contain business secrets25. 

2.3.3.  Disclosure of confidential information 

(40)  The provisional qualification of a piece of information as confidential is not a bar to its disclosure 
if  such  information  is  necessary  to  prove  an  alleged  infringement  (“inculpatory”)  or  could  be 
necessary to exonerate a party (“exculpatory document”). 26 

(41) 

In this case, the need to safeguard the rights of defence of the parties through the provision of the 
widest possible access to the Commission file may outweigh the obligation to protect confidential 
information of other parties.27 

22  

23  

24  

25  

26  

27  

Neither Article 339 TFEU nor Regulation 1/2003 explicitly indicates what information apart from business secrets 
is covered by the obligation of professional secrecy, but see case-law below. 

Reference  could  also  be  made  to  Regulation  45/2001,  which  obliges  the  Commission  to  ensure  that  the 
processing of personal data relating to natural persons is done in a fair and lawful way.  

Case T-198/03 Bank Austria Creditanstalt AG v Commission [2006] ECR II-1429, para. 71; also Case T-474/04, 
Pergan v Commission [2007] ECR II-4225, para 65 et seq. 

Case T-198/03 Bank Austria Creditanstalt AG v Commission, para. 29. 

See Art. 27(2) Reg. 1/2003; Art. 15(3) Reg. 773/2004, Notice on access to file, para. 24. 

Case  T-30/91  Solvay  v  Commission  [1995]  ECR  II-1775,  para.  81:  "In  the  defended  proceedings  for  which 
Regulation No 17 provides it cannot be for the Commission alone to decide which documents are of use for the 

                                                 
Antitrust Manual of Procedures 

(42)  However, information may be disclosed pursuant to Article 12 Reg. 1/2003 for the exchange of 
information between the Commission and the competition authorities of the Member States and 
pursuant to Article 15 Reg.1/2003 for the exchange of information between the Commission and 
national courts (See Module Cooperation with National Competition Authorities). 

(43)  Assessment  of  disclosure:  It  is  for  the  Commission  to  assess  whether  the  need  to  prove  an 
infringement  or  the  right  of  the  defence  of  the  parties  may  outweigh  the  protection  of 
confidentiality,  in  any  specific  situation.  The  case  team  should  make  this  assessment  as  soon  as 
possible. The following factors, even if potentially conflicting, can play a role: 

–  the  relevance  of  the  information  in  determining  whether  or  not  an  infringement  has  been 

committed, and its probative value; 

–  whether the information is indispensable; 

–  the degree of sensitivity involved  (to  what extent would disclosure of the information harm the 

interests of the person or undertaking in question) 

–  the preliminary view of the seriousness of the alleged infringement. 

The  public  interest  in  proving  an  infringement  of  competition  law,  the  parties’  interest  in  having 
exculpatory  information  in  the  file  at  their  disposal  for  the  preparation  of  their  defence  and  the 
information providers’ interest in protecting his confidential information must be considered. The 
latter  interest  depends  on  the  damage  that  the  disclosure  could  cause  in  the  individual  case.  For 
example, if information is to be divulged to companies with significant market power, the danger of 
retaliation against the information providers needs to be taken into account.28 Information provided 
by individuals who request confidentiality/anonymity should be treated with utmost care. 

(44)  Practical guidance: The case team can choose to provide the information providers with a draft 
non-confidential  version  of  their  documents.  However,  depending  on  the  characteristics  of  the 
individual  case,  it can prove useful  for reconciling conflicting interests to reveal the confidential 
information (only) partially or in an anonymous manner.29 

The Commission may: 

–  Use  information  against  the  addressee  of  the  final decision in a non-confidential or anonymous 
manner.  According  to  the  case-law30,  the  Commission  is  entitled  to  use  in  its  final  decision 
confidential information that has only been revealed in a non-confidential or anonymous manner. 
The  General  Court  has  acknowledged  that  the  Commission  may  make  use  of  an  element  of 
evidence even if it does not disclose the identity of the informer to the addressee of the Statement 
of objections. 

–  Oblige the information providers to (partially) reveal information which is to be used in the final 
decision or which could be of exonerating value. According to Regulation 1/2003 and 773/2004, 
the confidential nature of a document is not a bar to its disclosure in these cases. Pursuant to Art. 

defence.  The  Commission  must  give  the  advisers  of  the  undertaking  concerned  the  opportunity  to  examine 
documents which may be relevant so that their probative value for the defence can be assessed”. 

Case T-65/89 BPB Industries and British Gypsum [1993] ECR II-389; Case C-310/93 P BPB Industries and British 
Gypsum [1995] ECR I-865. 

This  should  only  be  done  if  it  is  indeed  impossible  for  the  companies  to  which  the  information  is  disclosed  to 
directly or indirectly identify the provider of the information. This will depend on the circumstances of each case. 

Case T-44/00, Mannesmann Röhrenwerke [2004] ECR II-2223, para.84. 

28  

29  

30  

                                                                                                                                                                      
 
Page 11/25 – Access to file and confidentiality 

27, the Commission is not prevented from disclosing and using information necessary to prove 
an infringement (See further below Section 2.4.2 on the "Akzo procedure"). 

–  Many disputes can be avoided if it is made clear to the parties that the acceptance or refusal of a 
confidentiality claim is done with a view to establishing a Statement of Objections and in no way 
precludes a later assessment of the confidentiality of the information in the public version of the 
decision that will be published on the Internet. 

2.4.  Treatment of confidentiality claims 

2.4.1. 

Informing companies how to lodge confidentiality requests 

(45)  The case-team requires systematically the provider of information for a non-confidential version 
of  the  original  documents,  when  requesting  or  receiving  information  (Art.  18(2)  letters  or  18(3) 
decisions,  when  receiving  complaints,  reply  to  SO,  during  hearings  etc.  see  relevant  module  on 
each topic). 

(46)  After  inspections  and  the  unsolicited  submission  of  information,  the  case-team  should  clarify 
which  documents  can  be  returned  as  not  objectively  linked  to  the  investigation  and  request 
immediately the confidentiality status of the remaining documents by sending a letter to the parties 
asking them a non-confidential version of those documents, enclosed to the sending by copying 
them on a CD-ROM, if appropriate.  

(47)  How to submit a non-confidential version and this way submit claims for non-confidentiality is set 
out  in  the  annex  on  business  secrets  and  other  confidential information, based  on Article 16 of 
Regulation 773/2004 and the para. 39 to 43 of the Notice on access to file, sent together with the 
Commission's request of information or request for non-confidential versions.  

– The  case-team  may/will  ask  the  provider  of  information  to  provide  draft  non-confidential 
versions of the documents in which the provider should first only highlight the information 
considered confidential or a business secret so that it remains legible.  

– The  information  that  the  provider  of  information  considers  confidential  can  then  be  readily 
identified  by  the  case-team.  The  highlighted  text  together  with  the  table  of  confidentiality 
claims, providing the reason for the confidentiality claim and, if necessary, a non-confidential 
summary of the confidential, will form the basis of any discussions on the treatment of the 
content. 

– At the latest once the case-team is preparing access to file, it will assess the claims for confidential 

treatment and review the documents submitted accordingly.  

– Once the claims for confidentiality are accepted, the case-team asks to produce a final, blacked out 

version of the document (including annexes). 

– In general, confidentiality cannot be claimed for the entire or whole sections of the document as it 

is normally possible to protect confidential information with limited redactions. 

– The  non-confidential  document  should  keep  the  same  format  as  the  original  version.  So,  if  the 
provider  of  information  claims  confidentiality  for  only  some  parts  of  a  document,  the 
provider  is  requested  to  provide  an  accessible  non-confidential  version  of  the  ENTIRE 
document  i.e.  if  a  five  page  document  has  been  submitted,  the  non-confidential  version  of 
that document must also contain 5 pages. Headings of the documents and/or the headings of 
the  columns  should  not  be  redacted,  nor  columns  or  spaces  in  tables  and/or  pictures  left 
empty. 

Antitrust Manual of Procedures 

(48) 

If information providers do not respond or fail to comply with the provisions setting out how to 
submit  confidentiality  claims  (in  particular  with  the  obligation  to  properly  justify  the  claim  and 
submit  a  meaningful  summary  for  the  redacted  information),  the  Commission  may  assume  that 
the  documents  or  statements  concerned  do  not  contain  confidential  information  and  that  the 
undertaking has no objections to the disclosure of the documents or statements concerned in their 
entirety.  The  standard  confidentiality  annex  explicitly  reminds  companies  of  these  consequences 
(see also Art. 16(4) Reg. 773/2004). 

(49)  Article  16  of  Reg.  773/2004  does  not  contain  any  legal  obligation  to  send  a  reminder  to  an 
information  provider  if  the  request  is  not  answered  within  the  time  limit.  In  particular  in  cases 
where an information provider is represented by an external lawyer, it can be presumed that they 
are aware of the legal provisions and their consequences. 

2.4.2.  Dealing with confidentiality claims 

(50) 

It  is  preferable  to  settle  all  claims  for  confidentiality  before  the  notification  of  the  SO  to  the 
parties, in order to ensure a complete access to file. 

(51)  According  to  para.  42  of  the  Notice  on  access  to  file:  "Where  the  Directorate  General  for 
Competition  does  not  agree  with  the  confidentiality claim from the outset  or where it takes the 
view  that  the  provisional  acceptance  of  the  confidentiality  claim  should  be  reversed,  and  thus 
intends to disclose information, it will grant the person or undertaking in question an opportunity 
to  express  its  views.  In  such  cases,  the  Directorate  General  for  Competition  will  inform  the 
person or undertaking in writing of its intention to disclose information, give its reasons and set a 
time-limit  within  which  such  person  or  undertaking  may  inform  it  in  writing  of  its  views.  If, 
following  submission  of  those  views,  a  disagreement  on  the  confidentiality  claim  persists,  the 
matter will be dealt with by the Hearing Officer according to the applicable Commission terms of 
reference of the Hearing Officers". 

(52) 

In  practice,  the  case  team  usually  tries  first  to  solve  issues  of  unjustified  confidentiality  claims 
informally with the information provider. DG Competition informs the information provider in 
writing that  

–  it  will  provisionally  accept  those  claims  which  seem  justified.  In  any  event,  the  information 
provider  should  be  reminded  of  the  Commission’s  right  to  reconsider  its  initial  evaluation  at  a 
later stage of the handling of the case31, or  

–  it  does  not  agree  with  the  confidentiality  claim  in  whole  or  in  part,  provides  reasons  for  the 
intention  of  disclosing  this  information  and  sets  a  time  limit  within  which  the  information 
provider may inform the Commission in writing of its views. 

If,  following  the  submission  of  the  information  provider’s  views,  a  disagreement  on  the 
confidentiality claim persists, DG Competition will inform the company concerned in writing that 
their information will be disclosed, unless a reasoned request for confidentiality is lodged with the 
Hearing Officer (HO) within a given deadline. This letter should be sent with acknowledgement 
of receipt with a copy to the HO. 

If  the  information  provider  maintains  its  position,  the  HO  will  address  the  issue  and,  if 
necessary,  apply  the  Akzo  Procedure,32  in  accordance  with  Article  8  of  the  HO  Terms  of 
Reference33.  

One should keep in mind that the Notice on access to file explicitly foresees the possibility to provisionally accept 
substantiated  confidentiality  claims  accompanied  by  non-confidential  versions,  while  reserving  the  possibility  to 
reverse a provisional acceptance at a later stage (see para 42 of the Notice on access to file). 

As first set out by the Court of Justice in Case 53/85 Akzo v Commission [1986] ECR p. 1965. 

(53) 

(54) 

31  

32  

                                                 
Page 13/25 – Access to file and confidentiality 

–  In practice, the HO may send a "pre Article 8" letter. 

–  If the company concerned still objects to the disclosure of this information, but the Commission 
finds that the information should not be protected and may therefore be disclosed, that finding 
must be stated in a reasoned decision of the HO (Article 8 Decision). 

–  This  decision  is  adopted  by  delegation  procedure  by  the  HO  and  notified  to  the  concerned 

company. 

–  The company concerned is thereby given the opportunity to bring an action before the General 

Court with a view to having the Commission's assessment reviewed. 

–  The  company  concerned  must  inform  the  HO  within  a  given  time  limit  from  the  day  of 
notification  of  the  Article  8  Decision  whether  they  intend  to  lodge  an  appeal  with  the  General 
Court and to apply for interim measures. 

–  If  the  company  concerned  has  lodged  an  appeal  and  applied  for  interim  measures  before  that 
deadline,  the  Commission  cannot  disclose  the  relevant  information  until  the  Court  has  taken  a 
decision on the request for interim relief. 

(55)  According to the result of the decision, include the decision and classify the document pursuant to 

the decision (confidential or non-confidential) in the file. 

(56) 

If  information  providers  misuse  the  procedure  to  delay  the  Commission’s  investigation,  they 
should be reminded that the Commission may consider this an event of non-cooperation and take 
it  into  account  as  an  aggravating  factor  when  setting  a  possible  fine  against  the  information 
providers. 

3.  Procedure for implementing access to file  

3.1.  Constitution of the file 

(57)  The preparation of access to file and the processing of requests for confidentiality that flow from 
such  preparation  generate  substantial  workload  and  require  adequate  staffing  and  realistic 
planning. 

3.1.1.  When and how access to file has to be prepared? 

(58)  The case teams should start the preparation as soon as possible. 

(59)  Each time a document relevant for the investigation is received or produced, it should be as soon 
as possible classified in the case management application ("CMA") by defining the document as 
accessible (A) or non-accessible (NA), or "internal", "EC premises" (for all corporate statements 
and  immunity/leniency  related  decisions  or  correspondence  only  accessible  at  DG  Competition 
premises) or by default, before determining the right classification, as "undefined".  

33  

Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference 
of the hearing officer in certain competition proceedings, OJ L 275, 20.10.2011, p. 29. 

                                                                                                                                                                      
 
Antitrust Manual of Procedures 

(60)  Where it is not clear upon receipt whether a document is accessible or not, case teams should no 
longer  provisionally  accept  confidentiality  claims  but  address  the  issue  without  undue  delay  (see 
above section 2.4 Dealing with confidentiality claims).  

(61)  At  the  moment  of  preparing  the  Statement  of  Objections  (SO),  the  classification  should  be 
double-checked  for  all  documents.  This  is  necessary  not  only  to  minimise  risks  of  inadvertent 
disclosure  of  non-accessible  documents  but  also  to  minimise  risks  of  not  respecting  rights  of 
defence  (ensure  that  all  documents  that  prove  the  infringement  or  which  are  exculpatory  are 
accessible). 

3.1.2.  Documents to put in the file 

(62)  The preparation for access to file entails the following: 

–  Documents  that  upon  examination  are  not  objectively  linked  to  the  investigation  or  do  not 
respond to the question asked in a request for information can be returned (see paragraph (13) 
above).  This  should  be  done  without  undue  delay34.  The  decision  whether  to  return  such 
documents  is  within  the  full  discretion  of  the  Commission  (i.e.  no  standing  of  an  information 
provider to request the returning of documents). 

–  Multiple versions of the identical document sent by e-mail, fax, normal mail, etc. are uploaded by 
the Registry into the case file and may be deleted by the case team only if they are identical. These 
documents are deleted with the following reason for deletion "duplicate of IDxxx". As a matter 
of  principle,  data  entries  and  scanning  carried  out  by  the  Registry  should  be  checked  on  a 
continuous  basis  by  the  Registry  and  the  case  team.  Multiple  non-finalised,  non-confidential 
versions of the same document should be avoided. Keep only the final version as accessible and 
mark the previous versions as non-accessible. 

–  Non-confidential versions have to be systematically requested from the information providers 
and  put  in  the  file  (see  above  section  2.4.1  Informing  companies  how  to  lodge  confidentiality 
requests).  

3.2.  Organisation of the access to file  

(63)  The access to file is prepared using the CMA. 

3.2.1.  Electronic access to file via the CMA  

(64)  The CMA enables automatic processing of the accessible file.  

–  A  functionality  in  the  CMA  allows  automatic  downloading  of  the  accessible  documents  with 

original filenames masked in a compressed (zip) file; 

–  This file can then be burned on a CD-ROM/DVD together with the Excel list, named "Access to 

file final table" and an explanatory note on how to use the CD-ROM/DVD. 

(65)  The access to file should be prepared as follows: 

–  The file, that is the electronic case file kept by the Registry, should be complete.  Documents 
received directly by the case team should be immediately sent to the Registry for registration and 

34  

Even  if  information  appears  to  be  not  relevant  at  a  later  stage,  there  should  be  possibilities  to  return  the 
documents, to be assessed on a case by case basis and in close co-operation with the Hearing Officers. 

                                                 
Page 15/25 – Access to file and confidentiality 

insertion in the CMA. Also documents sent by the parties to or by the Chief Economist’s team, 
the Hearing Office, the Deputy Director General or the Director General, as well as documents 
sent to a cabinet that are forwarded to DG Competition  should be included in the file once they 
are forwarded to the case team or the Registry. 

–  Names for internal and external parties are pre-defined in the integrated registration tool. The 
Registries  are  responsible  of  managing  parties'  names,  stored  in  the  integrated  registration  tool 
database common for all instruments. When registering a bundle, the Registry adds systematically 
the  name  of  the  sender  as  "correspondent"35  and  adds  the  name  in  the  database,  if  not  yet 
registered.  This name is then copied automatically to the field entity of all documents contained 
in the bundle. The name of the "correspondent" is managed by the Registries, but the name of 
the  "entity"36  can  be  changed  by  the  case  team  to  suit  the  case  file.  The  "entity"  name  would 
usually be the name of the company, rather than the law firm representing them, who sent the 
bundle. 

–  A standardised naming convention for documents in the file should be used. This will allow the 
case team, but also the Registry and other colleagues searching for particular information to easily 
find  this  information  in  spite  of  the  restrictions  of  the  CMA.  The  list  below  gathers  suggested 
naming conventions of documents. As a suggested rule, names of documents should be kept as 
simple as possible in order to avoid increasing workload for encoding data and keeping in mind 
that each document has already some information attached to it in the integrated registration tool 
(in/out, correspondent, category) which already gives indication on the content of the document. 

35  

36  

Displayed in "advanced" tab of the document in the CMA. 

Displayed in "main" tab of the document in the CMA. 

                                                 
Type of document  Naming convention 

Information 

Antitrust Manual of Procedures 

RFI of dd/mm/yyyy (registration number)– cover 
letter, questionnaire & Excel annexes 

outgoing 

RFI (art.11 request for 
information) 

Reply to RFI – cover 
letter 

Reply to RFI  

Alt. if separate documents: 
RFI of dd/mm/yyyy (registration number) – cover 
letter 
RFI of dd/mm/yyyy (registration number) – 
questionnaire 
RFI of dd/mm/yyyy (registration number) – Excel 
annexes 

Reply to RFI of dd/mm/yyyy (registration number) – 
cover letter [or cover email, cover fax] 

Reply to RFI of dd/mm/yyyy (registration number) – 
reply Q29, Q34 – "the original name of the file" 

Reply to RFI of dd/mm/yyyy (registration number) - 
Q1-5, Q20, Q22 

Annexes to reply to 
RFI 

Reply to RFI of dd/mm/yyyy (registration number) - 
Annex to Q1  "sales 2005.pdf" 

The sender of the cover 
letter determines the 
main External party 

– main reply to all 
questions or specify to 
which questions;  

- if questions replied to 
are mentioned in cover 
letter, add also to 
document name; 

if annex = .xls or .pdf 
file, copy the file name 
given by the company 
and add to the name in 
brackets (i.e. "sales 
2005.pdf" do not 
translate the name of the 
document) 

This makes reference to 
the original RFI because 
it's a part of the answer 

This is when Q3 has 
already been partially 
answered. 

Clarifications on 
answer 

Supplementary 
reply to RFI 

Request for extension 
of deadline 

RFI asking for 
clarification or 
supplementary  
answers referring to 
other RFI 

Acknowledgement 
of receipt to a RFI 

Acknowledgement 
of receipt to mail 
about confidentiality 
matter 

Asking for non-
confidential 
document 

Letter introducing 
an answer to a 
request for non-
confidential 
document 

E-mail requesting clarifications reply to RFI of 
dd/mm/yyyy (registration number) – Q3  

Supplementary reply to RFI of dd/mm/yyyy 
(registration number) – Q3  

Reply to RFI of dd/mm/yyyy (registration number) - 
request to extend the deadline  

RFI of dd/mm/yyyy (registration number) 
(Questions about RFI "registration number" and 
"registration number")  

When it's possible, 
specify to which 
questions it is about. 

AR to RFI of dd/mm/yyyy (registration number) 

AR to reminder for non-confidential documents 
(registration number(s) and/or inspection 
documents) 

Specify the RFI number 
and type tree 

Reminder for non-confidential version answers to 
RFI of dd/mm/yyyy (registration number)  

Refer to the RFI number 

Reply to reminder for non-confidential documents 
(registration number(s)  and/or inspection 
documents) - cover letter 

The same as for answer 
to RFI (lawyers, 
company, RFI number 
and type of document. 

 
 
 
 
 
Page 17/25 – Access to file and confidentiality 

–  For each document the "accessibility" field has to be completed (mark as "accessible" ("A") 
or "non-accessible" ("NA"), "internal", "EC premises" (for all corporate statements, written and 
oral)  or  by  default  "undefined"  (see  also  the  Definition  of  classification  of  documents 
(internal/accessible/non-accessible/EU premises). 

–  For  each  non-accessible  document  (except  for  internal  documents),  an  accessible  version 
should  be  made  available,  or,  if  not  possible,  a  succinct  description  should  be  provided.  This 
indication should allow the parties to understand the nature of the document and enable them to 
put forward arguments as to why the document needs to be disclosed in spite of its confidential 
character. 

–  For  each  accessible  document  to  be  transmitted  to  the  party  an  "Access  to  file"  version  is 

prepared and made available in the system, in PDF format and with pages numbered.  

–  For  "internal  documents",  no  description  of  the  document  is  provided.  The  document  is 

simply referred to as "internal document". 

–  For  documents  marked  "EC  premises",  no  description  of  the  document  is  provided.  The 
document  is  simply  referred  to  as  "EC  premises"  and  can  be  seen  at  the  DG  Competition 
premises (see further under 3.2.2). 

–  The index of documents is produced from the CMA in the form of an Excel file. The index for 
the parties contains the following information: ID (reference number of the document), type of 
accessibility, accessible version ID, description (at least for non-accessible documents for which 
no accessible version exists) and number of pages of the PDF document. 

(66)  The  index  of  documents  is  not  an  inventory  of  the  documents  in  the  file  but  aims  at  allowing 
parties to understand the correspondence between confidential and non-confidential versions of a 
document or, in the case of a completely non-accessible document, to give a short description, in 
order to enable them to assess whether it is appropriate to request access to particular documents 
which might be useful for their defence37. 

3.2.2.  Access to file in Leniency cases 

(67) 

In  cartel  cases,  in  addition  to  the  CD-ROM/DVD,  access  to  corporate  statements  (and 
immunity/leniency  decisions  and  their  notification)  made  orally  by  leniency  applicants  is  only 
given at DG Competition's premises, normally on a single occasion. Any corporate statement as 
well as any pre-existing document or other annex to the leniency and the immunity application are 
part of the file. 

(68)  Neither the addressees of the SO nor their lawyers are allowed to make any copy by mechanical or 
electronic means of oral corporate statements, but they can take notes or dictate them.38  

(69)  By nature, oral corporate statements should not contain any business secrets or other confidential 
information  that  cannot  be  disclosed,  because  they  should  contain  only  relevant  information 
pertaining to the cartel conduct. 

37  

38  

See Case C-110/10 P Solvay v Commission [1995] ECR II-1775, para. 66. 

See Commission notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 
17), para. 7, 31-35. 

                                                 
Antitrust Manual of Procedures 

3.3.  Provision of access to file 

(70)  Access to the file is granted to the parties after an SO has been notified.39  

(71)  The access to file should be ready at the date of notification of the SO.  

(72) 

In  the  cover  letter  of  the  SO  (See  Module  Statement  of  Objections),  the  parties  are  usually 
informed that if they want to have access to the file, they have to make a written request within 5 
working days after receipt of the SO, in order to: 

–  collect  the  CD-ROM/DVD  at  DG  Competition's  premises  or  receive  the  CD-ROM/DVD  by 

express courier and/or  

–  obtain access to corporate statements in case of leniency cases. 

(73)  The parties (or their duly mandated lawyer) have to sign an acknowledgement of receipt40  

–  when they collect the CD-ROM/DVD at the DG Competition's premises, 

–  when they obtain access to the corporate statements at the DG Competition's premises. 

(74)  The  case  team  may  inform  the  addressees  who  receive  the  CD-ROM/DVD  that  pursuant  to 
Article  15(4)  of  Regulation  (EC)  773/2004,  any  information  that  they  have  solely  obtained 
through  access  to  the  Commission  file  can  only  be  used  for  the  purposes  of  judicial  or 
administrative proceedings for the application of Article 101 or 102 TFEU, including proceedings 
before national courts. They should ensure that no further use will be made of this information. 
Should the information be used for a different purpose, at any point in time, with the involvement 
of an outside legal counsel, the Commission may, for example, consider reporting the incident to 
the bar of that counsel.  

(75) 

Parties who want to consult the corporate statements should contact the case team to arrange a 
date with the Commission and are asked to provide in advance their identity information. Ideally, 
the case team will have planned access to file at the Commission premises and discussed this prior 
to the notification of the SO (see further under 3.2.2). 

(76) 

If a party does not want to receive the CD-ROM/DVD with the file, alternative form of access 
may be arranged (see further under section 6). 

(77)  The  deadline  to  reply  to  the  SO  starts  when  the  parties  have  received  the  most  important 
documents from the Commission file41 and as from the day after the receipt of these documents42.  

(78) 

In practice, the deadline to reply begins usually either (whichever event is the earliest): 

–  the day after the parties collect the CD-ROM/DVD at DG Competition's premises; or  

39  

40  

41  

42  

Article 15(1) of Regulation 773/2004 and para. 26 and 27 of the Notice on access to file. 

In case a driver is committed by the law-firm to pick-up the CD-ROM/DVD, the duly mandated lawyer has to sign 
a  mandate  for  his  driver  to  collect  the  CD  ROM/DVD  on  his  behalf.  The  driver  signs  the  acknowledgement  of 
receipt, delivers the CD ROM/DVD to the duly mandated lawyer who in his turns signs the acknowledgement of 
receipt, scans it and sends it to DG Competition for the file. 

Case T-44/00, Mannesmannröhren-Werke [2004] ECR II-2223, para. 65. 

Art  3  Reg.  1182/71  of  the  Council  of  3  June  1971  determining  the  rules  applicable  to  periods,  dates  and  time 
limits. 

                                                 
Page 19/25 – Access to file and confidentiality 

–  the day after the parties receive the CD-ROM/DVD by mail; or 

–  in any event after five working days, if the parties express in writing that they decline access to the 
file or do not ask for the CD-ROM/DVD within 5 working days after the notification of the SO. 

(79)  Access  to  corporate  statements  at  DG  Competition's  premises  does  normally  not  modify  the 
deadline  for  reply  to  the  SO,  if  the  parties  have  been  given  access  to  the  most  important 
documents from the file by the CD-ROM/DVD.  

4.  Handling of further access to the file after 

the SO has been issued 

(80)  Access  to  file  is  in  principle only granted  on a single occasion, following  the  notification of the 

Commission’s objections to the parties.43  

(81) 

(82) 

In practice further access to file must be given when additional incriminating (if the Commission 
intends to use them in the final Decision) and/or potentially exonerating pre-existing documents 
are  placed  in  the  file  subsequent  to  the  reply  to  the  SO  and  the  oral  hearing  or  further 
investigation. This new round of access to file will require handling new confidentiality issues. 

Should a party after receipt of the SO and its revision of the accessible documents consider that it 
needs  further  access  to  specific  undisclosed  information  in  the  file  (confidential  information, 
business secrets or internal documents), it is required to send a reasoned request for further access 
to this information to the case team. DG Competition assesses the request according to the same 
rules for access to the file as described above. 

4.1.  Access to Parties' replies to the SO 

(83)  The  Notice  on  access  to  file  specifically  provides  for  that  as  a  general  rule  no  access  will  be 
granted to other parties' replies to the Statement of Objections44. The EU Courts have confirmed 
that there is no general right to access to other parties' defences in their replies to the Statement of 
Objections.  

(84)  According to the Notice on Antitrust Best Practices (point 103): "Where required by the rights of 
defence  (…),  or  where  it  may  in  the  Commission's  view  help  to  further  clarify  factual  and  legal 
issues  relevant  for  the  case,  the  Commission  may  give  parties  a  copy  of  the  non-confidential 
version (or specific parts thereof) of other parties' written replies to the Statement of Objections. 
This would normally be done prior to the oral hearing, so as to allow parties to comment on them 
at the oral hearing. The Commission may also decide to do so in appropriate cases with respect to 
complainants and admitted third parties. If access to other parties' replies is granted because it is 
required for the rights of the defence parties are also entitled to have sufficient additional time to 
comment on these replies." 

(85) 

Point 27 (second paragraph) of the Notice on access to file states that "[a] party will, however, be 
granted  access  to  documents  received  after  notification  of  the  objections  at  later  stages  of  the 
administrative procedure, where such documents may constitute new evidence — whether of an 
incriminating or of an exculpatory nature —, pertaining to the allegations concerning that party in 
the  Commission's  statement  of  objections.  This  is  particularly  the  case  where  the  Commission 
intends to rely on new evidence."  

43  

44  

Notice on access to file, para. 27. 

Point 27. 

                                                 
Antitrust Manual of Procedures 

(86) 

It is apparent from the case law that in order to determine the exact scope of the Commission's 
obligation  to  grant  access  to  the  file  a  distinction  must  be  drawn  between  documents  forming 
inculpatory evidence and documents forming exculpatory evidence.  According to settled-case law, 
with regard to inculpatory evidence, "the obligation to allow access to the file relates merely to the 
evidence ultimately relied on in the decision and not to all the complaints which the Commission 
may have expressed at any stage of the administrative procedure". Moreover, "[a] document can 
be regarded as a document that incriminates an applicant only where it is used by the Commission 
to support a finding of an infringement in which that party is alleged to have participated"45. As 
the General Court pointed out in BPB "[…] if the Commission wishes to rely on a passage in a 
reply to a statement of objections or on a document annexed to such a reply in order to prove the 
existence  of  an  infringement  in  a  proceeding  under  Article  81(1)  EC,  the  other  undertakings  involved  in  that 
proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances 
the  passage  in  question  from  a  reply  to  the  statement  of  objections  or  the  document  annexed  thereto  constitutes 
evidence against the various parties alleged to have participated in the infringement (…)"46.  

(87)  As concerns exculpatory documents, access to documents after the notification of the objections 
can  be  granted  upon  a  specific  request  of  a  party,  where  such  documents  may  constitute  new 
evidence and pertain to the allegations concerning that party, which are ultimately relevant for the 
Commission's final decision. The exculpatory nature of such documents should be such that the 
documents could be useful for the undertakings' defence47. In particular, the case law has referred 
to the situation where an undertaking, "had it been able to rely on them during the administrative procedure, 
[…] would have been able to put forward evidence which did not agree with the findings made by the Commission at 
that stage and would therefore have been able to have some influence on the Commission's assessment in any decision 
it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the 
level of the fine"48. 

(88) 

In  order  for  the  Commission  to  be  able  to  properly  consider  a  request  for  further  access,  the 
request  must  be  sufficiently  specified  and  express  and  be  duly  motivated.  It  is  not  sufficient  to 
request  access  to  categories  of  documents  described  in  a  general  and  abstract  way.  In  addition, 
when access is requested after the notification of objections, normally such evidence shall not be 
readily available to the requesting party by other means.  

(89)  The Commission is obliged to grant access to documents received after issuance of the Statement 
of Objections to companies against which such documents are to be used as inculpatory evidence 
in the final decision.  

(90)  The Commission is always allowed to take into account arguments put forward by a party during 
the administrative procedure even without giving it further opportunity to be heard, provided that 
this does not alter the nature of the objections against that company. Where the company has had 
an opportunity to express its view on the position adopted by the Commission in the Statement of 
Objections, it can expect that its own explanations may lead the Commission to alter its opinion.49    

45  

46  

47  

48  

49  

See Case T-53/03 BPB v Commission [2008] ECR II-1333, para. 32. 

See Case T-53/03 BPB v Commission [2008] ECR II-1333, para.  41. 

See Case C-110/10 P Solvay v Commission, para.  52. 

Joined Cases C-204/00 P e.a. Aalborg Portland e.a. v Commission [2004] I-123, para.75. 

Notice on access to file, para. 27; Case T-228/97, Irish Sugar, 7 October 1999 

 
                                                 
Page 21/25 – Access to file and confidentiality 

4.2.  Access to file in case of Supplementary 

Statement of Objections (SSO) or Letter of 
facts 

(91)  The  procedural  rights  which  are  triggered  by  the  sending  of  the  initial  Statement  of  Objections 
apply mutatis mutandis in case a Supplementary Statement of Objections is issued. Access to the 
evidence  gathered  after  the  initial  Statement  of Objections  up  to  the  date  of  the  Supplementary 
Statement  of  Objections  will  also  be  provided.  In  case  a  letter  of  facts  is  issued,  supplementary 
access will in general be granted to evidence gathered after the Statement of Objections up to the 
date of the said letter of facts. However, in cases where the Commission only intends to rely upon 
specific  evidence  that  concerns  one  or  a  limited  number  of  parties  and/or  isolated  issues  (in 
particular  those  regarding  the  determination  of  the  amount  of  the  fine  or  issues  of  parental 
liability), access will be provided only to the parties directly concerned and to the evidence upon 
which the Commission intends to rely. 

5.  Specific situations 

5.1.  Access to information outside the 

Commission’s investigation file 

(92)  Access to file only extends to accessible documents emanating from the investigation conducted 
against  the  addressee(s)  of  the  Statement  of  Objections.  Normally,  only  documents  in  the 
Commission’s investigation file are accessible.50 Furthermore, the scope of the principle of equality 
of arms only applies in respect to the documents in the Commission’s investigation file. 

(93) 

It is not for the Commission alone to determine whether the documents are of use for the defence 
of the parties. The Commission is not required to make available, on its own initiative, documents 
which are not in the investigation file and which it does not intend to use against the parties in the 
final decision. 

(94)  Nevertheless, the parties may make a reasoned request to have access to documents that, although 
not part of the investigation file, may in their view be relevant for preparing their defence.51 The 
case team is not obliged to ascertain that there are no other documents relating to the case within 
DG Competition or other parts/services of the Commission. Whether documents are sufficiently 
closely linked with the investigation and may therefore be relevant for the defence of the parties 
will have to be examined in relation to the specific circumstances of each particular case. 

50  

The Commission file in a competition investigation consists of all documents which have been obtained, produced 
and/or  assembled  by  the  DG  Competition  during  the  investigation  that  has  led  the  Commission  to  raise  its 
objections. Therefore, all pieces of information acquired during the investigation against a company form part of 
the  investigation  file.  Moreover,  all  information  that  the  Commission  uses  in  its  final  decision  are  part  of  the 
investigation  file  (Joined  Cases  T-25/97  e.a.  Cimenteries  CBR  e.a.  [2000]  ECR  II-491,  para.  382).  Documents 
sent  by  the  parties  or  others  to  other  DGs  of  the  Commission  which  the  latter  did  not  communicate  to  DG 
Competition are not part of the file. (see also above section 2). 

51  

Joined Cases T-25/95 e.a. Cimenteries CBR e.a. [2000] ECR II-491, para. 383. 

                                                 
Antitrust Manual of Procedures 

5.2.  Documents emanating from a different case 

file 

(95)  According to Article 28 (1) Regulation 1/2003, the information collected may be used only for the 

purpose for which it was acquired.  

(96) 

(97) 

Investigations which are conducted on different markets or against different companies and which 
are not related (i.e. investigations into distinct infringements) lead normally to different case files 
set up under distinct case numbers.  

For  extending  the  use  of  information  for  another  purpose  than  for  which  it  was  originally 
acquired, the case-team may ask the provider of information for supplying the information for this 
other identified purpose.  

(98)  Companies concerned by an investigation may sometimes request access to information acquired 
in the course of a different investigation. Access is however denied if a document has no relevance 
for  an  addressee  of  the  Statement  of  Objections  because  it  is  objectively  unrelated  to  the 
objections addressed to it.52 

5.3.  Settlement procedure (Article 15 Reg. 

773/2004): Access to relevant information 

(99)  According to Article 15(1a) of Regulation 773/2004: "After the initiation of proceedings pursuant 
to  Article  11(6)  of  Regulation  (EC)  No  1/2003  and  in  order  to  enable  the  parties  willing  to 
introduce  settlement  submissions  to  do  so,  the  Commission  shall  disclose  to  them  the  evidence 
and documents described in Article 10a(2) upon request and subject to the conditions established 
in the relevant subparagraphs. In view thereof, when introducing their settlement submissions, the 
parties  shall  confirm  to  the  Commission  that  they  will  only  require  access  to  the  file  after  the 
receipt of the statement of objections, if the statement of objections does not reflect the contents 
of their settlement submissions." 

(100)  Article 10a (2) of Regulation 773/2004 stipulates:  

"Parties taking part in settlement discussions may be informed by the Commission of: 

(a) 

 the objections it envisages to raise against them; 

(b)  

the evidence used to determine the envisaged objections; 

(c)  

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

(d)  

the range of potential fines. 

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

Should settlement discussions progress, the Commission may set a time limit within which the parties may 
commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the 

52  

Joined cases C-204/00 P e.a., Aalborg Portland e.a. [2004] ECR I-123, para. 126-128 

                                                 
Page 23/25 – Access to file and confidentiality 

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

5.4.  Commitment decision (Art. 9 Reg. 1/2003) 

(101)  Neither Regulation 1/2003 nor Regulation 773/2004 expressly provide a right of access to the file 

in the context of Article 9 proceedings53. 

5.5.  Rejection of complaints: access to 

information on which the Commission has 
based the preliminary view 

(102)  The General Court has ruled54 that complainants do not have the same rights and guarantees as 
the parties under investigation. Therefore complainants cannot claim a right of access to the file 
on the same basis as parties under investigation. 

(103)  Nevertheless, the complainant has a right of access to information on which the Commission has 

based the preliminary view set out in the letter rejecting the complaint55.  

(104)  Complainants do not have a right of access to business secrets or other confidential information 

which the Commission has obtained in the course of its investigation. 

(105)  The Notice on complaints56 explains that access to the information on which the Commission has 
based  its  rejection  will  normally  be  provided  by  annexing  to  the  letter  a  copy  of  the  relevant 
documentation57. 

6.  Different procedural practices of access to 

the file 

(106)  According  to  the  Notice  on  Antitrust  Best  Practices  (paragraphs  95  et  seq.),  further  to  the 
possibilities  contemplated  in  the  Notice  on  access  to  file,  there  are  two  additional  procedural 
practices that may be used for the purpose of alleviating the burden on the parties to redact their 
submissions in relation to confidential information. These procedural practices may be offered by 
DG  Competition  where  it  considers  it  to  be  useful,  and  are  typically  conducted  in  cases  where 
there  is  only  a  limited  number  of  undertakings.  Both  procedural  practices  can  be  beneficial  not 
only  for  the  party  being  granted  access  to  file  but  also  for  the  information  providers  since  they 
would not have the burden of redacting their confidential material. 

53

54  

55  

56  

57  

See however Notice on Antitrust Best Practices, para. 73. 

See Case T-17/93 Matra-Hachette SA v Commission [1994] ECR II-595, para. 34. The Court ruled that the rights 
of third parties, as laid down by Article 19 of Regulation No 17 (now replaced by Article 27 of Regulation (EC) No 
1/2003), were limited to the right to participate in the administrative procedure. 

Article 8(1) of Reg 773/2004. 

Commission Notice on the handling of complaints by the Commission under Article 81 and 82 of the EC Treaty, 
OJ C 101, 27.04.2004, p. 65. 

Notice on complaints, para. 69. 

                                                 
  
Antitrust Manual of Procedures 

6.1.  The negotiated disclosure procedure 

(107)  In certain cases, especially those with a very voluminous file or which raise serious concerns about 
the full disclosure of information to addressees of the SO, DG Competition may accept that the 
parties agree voluntarily to use a negotiated disclosure procedure. Under this procedure, the party 
entitled to access to file agrees bilaterally with the information providers claiming confidentiality to 
receive all or some of the information they have provided to the Commission and is contained in 
the Commission's file including confidential information (instead of only being given access to the 
redacted version of their submissions).  

(108)  The party being granted access to the file limits access to the information to a restricted circle of 
persons  (to  be  decided  on  a  case-by-case  basis,  if  requested,  under  the  supervision  of  DG 
Competition).  

(109)  To the extent that this type of access to file would amount to a restriction of a party's right to have 
full  access  to  the  investigation  file,  it  must  waive  its  right  to  access  to  the  file  vis-à-vis  the 
Commission.  

(110)  Normally, the party would receive the information subject to the negotiated disclosure procedure 
directly  from  the  information  provider.  However,  if  the  information  that  is  subject  to  such  an 
agreement  would,  exceptionally,  be  provided  to  the  restricted  circle  of  persons  by  the 
Commission, the information providers would have to waive their rights to confidentiality vis-à-
vis the Commission.  

6.2.  Rules governing access to confidential 

information in a data room 

(111)  Exceptionally,  the  Commission  may  also  grant  access  to  file    through  a  "data  room"  procedure 
organised by DG Competition. This procedure is typically used for the disclosure of quantitative 
data relevant for econometric analysis. 

(112)  The purpose of this procedure is to provide access under strict rules to sensitive data constituting 
business  secrets  from  third  parties  in  order  to  verify  the  Commission's  methodology  and 
conclusions  drawn  from  the  data,  economic  or  otherwise  underlying  the  reasons  behind  the 
Statement of Objections whilst still maintaining the necessary confidentiality.  

(113)  Empirical analysis sometimes requires the Commission to review highly confidential data provided 
by different market participants that in principle includes both the methodologies applied by the 
Commission  and  the  general  structure  and  nature  of  the  data  itself.  Thereby,  depending  on  the 
type  of  data  used,  this  can  raise  difficult  confidentiality  issues.  In  such  a  case,  a  "data  room"  is 
organised  that  allows  a  restricted  group  of  persons,  i.e.  the  external  legal  counsel  and/or  the 
economic  advisers  of  the  addressee(s)  of  a  Statement  of  Objections,  to  access  within  DG 
Competition's premises confidential information constituted from third parties through the course 
of the investigation so as to verify the Commission's analysis and to advise the parties as regards 
this  confidential  information  whilst  maintaining  the  necessary  confidentiality.  The  advisers  may 
make use of the information contained in the data room for the purpose of defending their client 
but  may  not  disclose  any  confidential  information  to  their  client.  This  has  been  applied  several 
times to quantitative data, most often in relation to an econometric exercise.  

(114)  Whether and in what form third parties need to be contacted before their data is used for a data 
room is very case-specific, i.e. depending on the type of data room procedure and the type of data 
involved. It is recommended in this respect to discuss the appropriate arrangements beforehand 
with the Hearing Officer's team.  

Page 25/25 – Access to file and confidentiality 

(115)  To the extent that this type of access to file would amount to a restriction of a party's right to have 
full  access  to  the  investigation  file,  the  procedural  guarantees  provided  for  in  Article  8  of  the 
Hearing Officer Terms of Reference (the so-called "Akzo procedure") apply. Equally, the Hearing 
Officer may decide pursuant to Article 8(4) of the Hearing Officer Terms of Reference that the 
data  room  procedure  should  be  used  in  those  limited  cases  where  access  to  certain  confidential 
information  is  indispensable  for  a  party's  rights  of  defence  and  where  the  Hearing  Officer 
considers  that,  on  balance,  the  conflict  between  respect  for  confidentiality  and  the  rights  of 
defence  is  best  solved  in  this  way.  The  Hearing  Officer  will  not  take  such  a  decision  if  he 
considers that the data room is not appropriate and that access to the information should be given 
in a different form (e.g. following the standard procedure through non-confidential versions).  

(116)  The data room rules need to be adjusted to the specifics of each case. The Commission provides 
the  advisers  of  the  addressee(s)  of  a  decision  with  access  to  several  PC  workstations  in  a  "data 
room"  on  the  Commission's  premises,  equipped  with  the  necessary  software,  if  relevant  the 
necessary data sets and a log of the regressions used to support the Commission's case. There is 
no network connection and no external communication is allowed. The advisers are permitted to 
remain in the room during normal working hours and if justified, access should be provided for 
consecutive  days  (typically  two  to  three  days).  The  advisers  are  strictly  prohibited  from  taking 
copies,  notes  or  summary  of  the  documents  and  may  remove  from  the  data  room  only  a  final 
report,  which  is  verified  by  the  case  team  in  order  to  ensure  that  it  does  not  contain  any 
confidential information. Each adviser signs a Confidentiality Agreement and is presented with the 
Conditions of Special Access to the Data Room before entering the data room.  

(117)  The  PCs  or  notebooks  are  provided  by  DG  Competition's  IT  Service  (contact:  Local  system 
administrators  of  Unit  R3).  This  Unit  should  be  alerted  as  soon  as  the  approximate  date  of  the 
data  room  is  known.  The  DG  Comp  PCs/  notebooks  are  not  normally  equipped  with 
econometrics software and installation on several machines takes some time. The IT Services will 
provide memory sticks to move data between PCs. Advisers must not use any of their own storage 
devices.  WIFI,  Bluetooth  and  similar  connections  must  be  disabled.  Secretaries  book  the  data 
room via the normal meeting room procedures. Early booking is advised because the room may 
be required for several days (e.g. two to three days) and only meeting rooms that can be properly 
locked are suitable. 

(118)  The  advisers'  final  report  is  intended  to  enable  them  to  verify  the  veracity  and  accuracy  of  the 
Commission's  analysis  and  the  nature  of  the  underlying  data.  However,  it  must  not  reveal  any 
business secrets. What constitutes a business secret must be assessed carefully in each case. 

(119)  The data room procedure can be a useful procedural tool reconciling confidentiality requirements 
with  considerations  relating  to  the  right  to  be  heard  in  a  pragmatic  fashion,  especially  in  cases 
where empirical analysis plays a key role.  

 
Page 1/11 – Right to be heard 

13 Right to be heard 

1. 

Introduction 

2.  Written phase: the reply to the SO 

2.1.  Undertakings and other persons that can submit their observations on 

the Statement of objections (SO) 
2.1.1.  "Parties concerned" have a right to be heard 
2.1.2.  "Complainants" may make known their views in writing 
2.1.3.  Third parties can be heard only if they show “sufficient interest” (Article 

27(3) of Regulation 1/2003) 

2.2.  Time-limits and extension 

2.3. 

Identification and protection of confidential information in the replies 

2.4.  Distribution of parties’ replies 

2.4.1.  Commission's services and Member States 
2.4.2.  Parties, third parties and complaints 

3.  Oral hearing 

3.1.  Legal provisions 

3.2.  The oral hearing – Organisation 

3.3.  Representation at the oral hearing 

3.4.  Officials and Member States 

3.5.  Hearing preparation 

3.5.1.  Information to be provided to the Hearing Officer 
3.5.2.  Preparatory steps 

3.6.  Procedure at the oral hearing 

3.7.  Recording of the hearing 

4. 

State of Play meeting 

5.  Hearing Officer's reports 

5.1.1.  Interim report and observations 
5.1.2.  Final report 

6. 

Relations with the Hearing Officer in commitment and cartel 
settlement proceedings 

2 

2 

2 
2 
2 

3 

4 

5 

5 
5 
6 

6 

6 

7 

7 

7 

8 
8 
8 

9 

9 

9 

10 

10 
10 

11 

 
Antitrust Manual of Procedures 

1.  Introduction  

(1) 

Article  27  of  Regulation  1/2003  expressly  provides  that  undertakings  must  be  given  the 
opportunity to be heard. The proceedings consist of both written (reply to the SO) and oral stages. 
The oral stage, called the oral hearing, which supplements the written procedure, is governed with 
regard to proceedings under Articles 101 and 102 TFEU, by Article 6(2), Article 12, Article 13(2), 
(3) and Article 14 of Regulation 773/2004. An oral hearing may only be organised upon request 
from the parties subject to the proceedings. 

2.  Written phase: the reply to the SO 

2.1.  Undertakings and other persons that can 

submit their observations on the Statement 
of objections (SO) 

2.1.1. 

"Parties concerned" have a right to be heard 

Article  27(1)  of  Reg.  1/2003  provides  that  "the  Commission  shall  give  the  undertakings  or 
associations  of  undertakings  which  are  the  subject  of  the  proceedings  conducted  by  the 
Commission the opportunity of being heard on the matters to which the Commission has taken 
objection". 

2.1.2. 

"Complainants" may make known their views in writing 

Pursuant  to  Article  6(1)  of  Reg.  773/2004,  "Where  the  Commission  issues  a  statement  of 
objections relating to a matter in respect of which it has received a complaint, it shall provide the 
complainant with a copy of the non-confidential version of the statement of objections and set a 
time-limit within which the complainant may make known its views in writing". 

There are two conditions for a person to qualify as a complainant in antitrust proceedings.  First, 
such  person  must  file  a  formal  complaint  pursuant  to  Article  5(1)  of  Regulation  No  773/2004.  
Second, the person must have a legitimate interest.1  

The  Österreichische  Postsparkasse  judgment2  clarified  the  requirements  that  a  person  needs  to 
meet  in  order  to  qualify  as  a  "complainant"  in  antitrust  proceedings.    First,  the  General  Court 
confirmed  that  applicants  qualify  as  complainants  if  they  justify  their  “legitimate  interest”  by 
demonstrating  that  the  alleged  infringement  might  harm  their  economic  interests.  The 
Commission is obliged to establish whether persons claiming to be complainants might indeed be 
harmed in their economic interests.3 By contrast, it is not for the Commission to examine whether 
the person pursues motives other than the termination of the infringement.4 In the case at hand 
the  banks’  claim  that  the  complainant  pursued  political  interests  rather  than  its  interests  as  a 
consumer  was  therefore  deemed  to  be  irrelevant.  Second,  the  fact  that  the  Commission  has 
already initiated the antitrust investigation the complaint refers to, either on its own (“ex officio”) 

See the Module on Handling of Complaints.  

Joined Cases T-213 and T-214/01 Österreichische Postsparkassee.a. [2006] ECR II-1601. 

Joined Cases T-213 and 214/01, Österreichische Postsparkasse e.a. [2006] ECR II-1601, para.124-129. 

Ibid., para. 118. 

(2) 

(3) 

(4) 

(5) 

1  

2  

3  

4  

                                                 
Page 3/11 – Right to be heard 

or  due  to  another  complaint,  is  not  a  bar  to  the  applicant’s  qualification  as  a  complainant.5 
Irrespective of whether the complainants submit substantial new evidence, they can always “jump 
on the bandwagon” of a pending Commission investigation, even at a late stage. In this context 
the General Court has also confirmed that complainants may ask for a non-confidential version of 
the  SO  even  after  an  oral  hearing  has  taken  place  and  up  until  the  very  moment  the  Advisory 
Committee convenes to decide on the draft decision imposing fines67.  The applicants’ counter-
argument that the provision of an SO to a complainant after the hearing was purposeless did not 
convince the General Court, which pointed to a lacuna in the secondary legislation with regard to 
the point in time after which a complaint becomes inadmissible. 

(6) 

(7) 

Any person claiming the status of "complainant" but not satisfying the above conditions may only 
be heard if they have a sufficient interest in the outcome of the proceedings, i.e., if they have been 
granted the status of "interested third party" by the Hearing Officer (see Section 2.1.3 below).  

Except  in  cartel  settlement  cases,  the  Commission  must  make  available  to  complainants  a  non-
confidential  version  of  the  SO.  The  "non-confidential  version  of  the  SO"  must  not  contain 
business secrets and "other confidential information". This implies that, for instance, references to 
leniency statements and other admissions may be deleted.  The complainant may raise issues about 
the extent of the deletions in the non-confidential version of the SO sent to it, and may refer the 
matter  for  decision  to  the  Hearing  Officer  (HO)  in  case  of  disagreement  with  the  case  team 
(pursuant to Article 7(2)(c) of the HO Terms of Reference8).  

(8) 

The Hearing Officer may, where appropriate and after consulting the Director responsible, decide 
to afford complainants the opportunity to express their views at the oral hearing9. 

2.1.3.  Third parties can be heard only if they show “sufficient 
interest” (Article 27(3) of Regulation 1/2003) 

(9) 

Other natural or legal persons, who have shown sufficient interest, must be informed in writing of 
the nature and subject matter of the procedure and set a time-limit within which they may make 
known their views in writing (Article 13 of Reg. 773/2004). 

(10)  Decisions  as  to  whether  third  parties  are  to  be  heard  are  taken  by  the  Hearing  Officer  after 
consulting  the  Director  responsible  for  the  case.10    Any  third  party  applying directly to the case 
team  should  be  told  to  address  its  application,  including  a  statement  explaining  the  applicant's 
interest in the outcome of the procedure, to the Hearing Officer. If the Hearing Officer accepts 
the application, the case team will inform third parties in writing of the nature and subject matter 
of the procedure and afford them the opportunity to make known their views in writing (do not 
forget to request a non-confidential version of the reply), pursuant to Article 13 (1) of Regulation 
773/2004. 

5  

6  

7  

8  

9  

Ibid., para. 92. 

Point 149 : "Therefore, as long as the Advisory Committee on Restrictive Practices and Dominant Positions has 
not  delivered  the  opinion  provided  for  in  Article  10(6)  of  Regulation  No  17  on  the  preliminary  draft  decision 
transmitted  by  the  Commission,  the  applicant  or  complainant’s  right  to  receive  the  objections  and  to  be  heard 
cannot  be  regarded  as  time-barred.  Until  the  advisory  committee  has  delivered  its  opinion,  there  is  nothing  to 
prevent  the  Commission  examining  the  comments  made  by  third  parties  and  then  modifying  its  position  in  the 
light of those comments". 

Ibid., at 148 and 149. 

Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference 
of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29). 

Article 6(2) of the HO Terms of Reference. The HO Terms of Reference provide that certain decisions are taken 
by the HO after consultation of the Director responsible for the case.  In practice, the HO team will also seek the 
views of the case team directly, copying the Director. 

10  

Article 5 of the HO Terms of Reference. 

                                                 
Antitrust Manual of Procedures 

(11)  Third  parties  have  no  right  as  such  to  obtain  a  non-confidential  version  of  the  SO.  In  practice, 
third parties can be informed by way of a concise letter setting out the "nature and subject-matter" 
of the case, or by a summary, or a non-confidential version of the SO (case specific). Third parties 
may complain to the case team about the appropriateness of the information they received for the 
purposes of making known their views, and refer the matter for decision to the Hearing Officer in 
case of disagreement with the case team11.  

(12)  The Hearing Officer may, where appropriate and after consulting the Director responsible, decide 
to afford interested third parties the opportunity to express their views at the oral hearing12. 

2.2.  Time-limits and extension 

(13)  The cover letter, signed by the Director General and sent with the SO, fixes a time-limit within 
which the undertaking must deliver its written reply (Article 10(2) of Reg. 773/2004). It also offers 
the  undertaking  the  opportunity  to  be  heard  orally  and  indicates  that  such  a  hearing  would  be 
likely to take place about a month following the reply. 

(14)  The  time  limit  for  the  reply  to  the  SO  will  take  into  account  both  the  time  required  for  the 
preparation of the submission and the urgency of the case. The parties have a right to a period of 
at least four weeks to reply to the SO.13 A longer period (normally, a period of 2 months, although 
this may be longer or shorter depending on the circumstances of the case) will be granted, taking 
into account inter alia the size and complexity of the file (e.g. number of infringements, the alleged 
duration of the infringement(s), the size and number of documents and /or size and complexity of 
expert studies), and/or whether the addressee of the SO making the request has had prior access 
to  the  information  (e.g.  key  submissions,  leniency  applications),  and/or  any  other  objective 
obstacles faced by the addressee of the SO (cf. Best Practices Notice, paragraph 100).  

(15) 

For a supplementary SO the above rules on setting the time limit for the reply to the SO apply, 
although  any  extension  of  time  granted  will  normally  be  shorter  (cf.  Best  Practices  Notice, 
paragraphs 100 and 110). 

(16)  The deadline to reply to the SO cannot start running before the parties have received the most 
important documents from the Commission file.14  Deadlines start to run as from the day after the 
receipt  of  the  CD/DVD  containing  all  non-confidential  documents.  In  case  access  has  to  be 
granted  to  corporate  statements  made  under  the  leniency  programme,  the  calculation  of  the 
deadline takes into account additional time necessary for organizing the access to be provided at 
DG  Competition  premises.  The  deadlines  are  calculated  pursuant  to  Article 3  of  Council 
Regulation No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time 
limits.15  

(17)  For extension of the deadline: If a party considers that the deadline is too short, it can seek an 
extension, within the initial time-limit, by making a reasoned request to DG Competition at least 
10 working days before the expiry of the original time limit.16 

(18) 

If the extension is refused or in case of disagreement on the length of the extension granted, the 
requesting  party  is  entitled  to  refer  the  matter  for  decision  to  the  Hearing  Officer  by  way  of  a 

11  

12  

13  

14  

15 

16  

Article 7(2) of the HO Terms of Reference. 

Article 6(2) of the HO Terms of Reference.  

Article 17(2) of Regulation 773/2004. 

Case T-44/00, Mannesmannröhren-Werke v Commission [2004] ECR II-2223, paragraph 65. 

OJ L 124, 8.6.1971, p. 1. 

Best Practices Notice, paragraph 101. 

                                                 
Page 5/11 – Right to be heard 

statement  explaining  the  reason  why  an  extension  is  considered  necessary  and  indicating  the 
length of time required. The legal situation in this respect is laid down in Articles 10(2) and 17(2) 
of Regulation 773/2004, and Article 9 of HO Terms of Reference.  The Hearing Officer will hear 
the  Director  responsible  for  the  case  before  taking  his/her  decision  and  will  inform  the 
undertaking and DG Competition in writing.17  

(19)  The criteria applied by the Hearing Officer in taking the decision are listed in Article 9(1) of the 

HO Terms of Reference:  

–  the  size  and  complexity  of  the  file  (for  example,  the  number  of  infringements,  the  alleged 
duration  of  the  infringement(s),  the  size  and  number  of  documents  and/or  the  size  and 
complexity of expert studies); 

–  whether the addressee of the statement of objection making the request has had prior access to 

information; and/or 

–  any other objective obstacles which may be faced by the addressee of the statement of objection 

making the request  in providing its observations.  

(20) 

Failure to reply within the fixed deadline does not affect the pursuit of the procedure. Pursuant to 
Article  10(2)  of  Regulation  773/2004  "[t]he  Commission shall not be obliged  to take  into account written 
submissions received after the expiry of that time-limit".  

2.3.  Identification and protection of confidential 

information in the replies 

(21) 

(22) 

Pursuant  to  Article  16(2)  of  Regulation  773/2004,  "any  person  which  makes  known  its  views 
pursuant  to  Article  6(1),  Article  10(2)  and  Article  13(1)  and  (3)  or  subsequently  submits  further 
information  to  the  Commission  in  the  course  of  the  same  procedure,  must  clearly  identify  any 
material  which  it  considers  to  be  confidential,  giving  reasons,  and  provide  a  separate  non-
confidential version by the date set by the Commission for making its views known”. 

If they do not identify any confidential material, the Commission may assume that the documents 
or statements concerned do not contain confidential information. It is recommended, however, to 
verify  this  with  the  persons  concerned,  before  giving  their  replies  to  the  parties  or  any  other 
natural or legal persons. (For detailed explanations, see Module on Access to file). 

2.4.  Distribution of parties’ replies 

2.4.1.  Commission's services and Member States 

(23)  A copy of the parties' replies has to be encoded in the case management application. 

(24)  Copies of the confidential version of the reply must be sent without delay to: 

–  the Hearing Officer (notably so that the  Hearing Officer is informed as soon as possible if the 

parties have requested a hearing in their reply to the SO), 

–  the Legal Service, 

17  

Id., Article 9(1). 

                                                 
Antitrust Manual of Procedures 

–  the National Competition Authorities, 

–  ESA and NCAs of the EEA concerned (if the case is EEA relevant). 

–  departments  primarily  responsible  for  the  products,  services  or  policy  areas  in  issue  (e.g.  DG 

ENTR, MOVE, INFSO, EAC, EMPL, MARKT, AGRI and SANCO) 

2.4.2.  Parties, third parties and complaints 

(25)  According  to  the  Best  Practices  Notice18, where required by the  rights of  defence19, or where it 
may in the Commission's view help to further clarify factual and legal issues relevant for the case, 
the Commission may give parties a copy of the non-confidential version (or specific parts thereof) 
of other parties' written replies to the Statement of Objections. This would normally be done prior 
to  the  oral  hearing,  so  as  to  allow  parties  to  comment  on  them  at  the  oral  hearing.  The 
Commission  may  also  decide  to  do  so  in  appropriate  cases  with  respect  to  complainants  and 
admitted  third  parties.  If  access  to  other  parties'  replies  is  granted  because  it  is  required  for  the 
rights  of  the  defence  parties  are  also  entitled  to  have  sufficient  additional  time  to  comment  on 
these replies. 

(26)  The parties’ replies to the SO and observations made by other persons in accordance with Article 
13 of Regulation 773/2004 constitute information which does not form part of the investigation 
file  to  which  access  to  file  is  granted.  In  principle,  the  Commission  terminates  the  investigation 
when the SO is issued. Accordingly, information received after this point in time does not form 
part of the investigation file. Otherwise, the proceedings could be delayed significantly by requests 
to  comment  on  new  documents  submitted  belatedly  and  subsequent  requests  to  submit  further 
remarks on such comments, with the result that the exercise would never end. 

(27) 

Further access to file only needs to be granted if the Commission receives new documents which 
contain inculpatory or exculpatory information which could alter the allegations contained in the 
SO (see in more detail Module on Access to file). 

3.  Oral hearing 

3.1.  Legal provisions 

(28)  The  Commission  shall  give  the  parties  to  whom  it  addresses  an  SO  the  opportunity  to  develop 
their arguments at an oral hearing if they so request in their reply to the SO (Article 12(1) of Reg. 
773/2004).   

(29) 

Pursuant  to  Article  6(2)  and  Article  13(2)  of  Reg.  773/2004  respectively,  complainants  and 
interested  third  parties  may  request  to  be  heard  at  the  oral  hearing  of  the  parties  subject  to  the 
proceedings.  The  decision  to  admit  such  persons  is  taken  by  the  Hearing  Officer  after 
consultation  of  the  Director  responsible  for  the  case  (see  Article  6  (2)  of  the  HO  Terms  of 
Reference). 

18  

19  

Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 
308, 20.10.2011, p. 6). 

See Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] 
ECR II- 3275; Case T-54/03 Lafarge v Commission [2008] ECR II-120, paragraphs 69-73; Case T-52/03 Knauf v 
Commission [2008] ECR II-115, paragraphs 41-47, 67-79; Case C-407/08P Knauf v Commission, judgment of 1 
July 2010 (not yet reported), paragraphs 23-28. 

                                                 
Page 7/11 – Right to be heard 

(30)  The Commission may also decide to invite any other person to express its views in writing and to 

attend the oral hearing of the parties (Article 13(3) of Reg. 773/2004).  

3.2.  The oral hearing – Organisation 

(31)  Oral hearings are conducted by the Hearing Officer in accordance with Articles 10-13 of the HO 

Terms of Reference and with Article 14(1) of Regulation 773/2004. 

(32)  The following principles apply: 

– The oral hearing is not public. 

– The oral hearing takes place only if a party concerned expressly requests to be heard orally in its 
reply to the SO. If they do not do so, complainants and third parties do not have the right to 
request the organisation of an oral hearing. 

– After consulting the Director responsible for the case, the Hearing Officer fixes the date of the 
oral  hearing.  The  hearing  normally  takes  place  between  six  to  eight  weeks  after  the  parties’ 
replies to the SO.  

– The Hearing Officer determines the agenda for the hearing and the order of the proceedings. 

– The  Hearing  Officer  decides  upon  any  requests  that  undertakings  may  make  to  be  heard 

separately (in camera session). 

3.3.  Representation at the oral hearing 

(33)  Article  14(4)  of  Reg.  773/2004  provides  that  persons  invited  to  attend  shall  either  appear  in 
person  or  be  represented  by  legal  representatives  (e.g.  board  members)  or  by  representatives 
authorised by their constitution. 

(34)  The Hearing Officer decides after consultation with the Director responsible for the case whether 
or not interested third parties are to be heard orally (Article 6(2) of the HO Terms of Reference). 
In case the Hearing Officer refuses a third party request to be heard orally, s/he informs the party 
concerned by way of a substantiated letter. 

(35)  The Commission may also invite any other person to express its views at the oral hearing (Article 

13(3) of Regulation 773/2004). 

3.4.  Officials and Member States 

(36) 

In view of the importance of the oral hearing, it is the practice of DG Competition to ensure the 
continuous presence of senior management (Director or Deputy Director General) in oral hearings in 
antitrust  cases,  together  with  the  case  team  of  Commission  officials  responsible  for  the 
investigation. The relevant member(s) of the cabinet of the Competition Commissioner, the Chief 
Economist's  team,  and  principally  concerned  Commission  services,  including  the  Legal  Service, 
are also invited to attend by the Hearing Officer. 

(37)  The Commission invites the competition authorities of the Member States to take part in the oral 
hearing. It may likewise invite officials and civil servants of other authorities of the Member States 
(Article 14(3) of Regulation 773/2004). In practice the invitations are sent by the Hearing Officer. 
When  appropriate,  the  Hearing  Officer  invites  the  EFTA  Surveillance  Authority  (ESA)  and 
National Competition Authorities of the EEA States concerned to attend the oral hearing. 

Antitrust Manual of Procedures 

(38) 

Finally,  the  Hearing  Officer  may  admit  to  the  oral  hearing  as  observers  representatives  of 
competition  authorities  of  third  countries  in  accordance  with  agreements  concluded  by  the  EU 
and such third countries (e.g., USA, Canada). Normally in such cases the Hearing Officer will ask 
the parties if they do not object to the admission of observers. 

3.5.  Hearing preparation 

3.5.1. 

Information to be provided to the Hearing Officer 

(39)  When the SO is issued, the case team needs to provide the Hearing Officer secretariat with the 

following information:   

–  the names and positions of the persons representing the companies concerned and/or their legal 
advisers  (with  their  powers  of  attorney)  and  their  complete  addresses,  fax  numbers  and  e-mail 
addresses; 

–  languages  of  the  procedure,  participation  or  not  by  ESA  and  estimated  number  of  participants 

(for booking meeting room); 

–  electronic  versions  of  the  SO  in  the  available  languages  and  replies,  as  soon  as  available  (the 

Hearing Officer secretariat will transmit to the interpreters) ; 

–  a  copy  of  the  DVD  sent  to  the  parties  for  access  to  file,  as  well  as  any  access  to  corporate 

statements at DG Competition's premises at their request.  

(40)  The  case-team  should  double-check  carefully  the  material  prepared  for  the  hearing  in  order  to 
avoid  any  inadvertent  disclosure  of  information  covered  by  professional  secrecy  (note  that  the 
confidential version of all documents should however be made accessible to the Hearing Officer).  

3.5.2.  Preparatory steps 

(41) 

Invitations are sent by the Hearing Officer. 

(42)  Article  11  of  the  HO  Terms  of  Reference  provides  that  the  Hearing  Officer  shall  take  all 

appropriate measures to ensure the proper preparation of the hearing.  

(43) 

(44) 

In  this  respect,  the  Hearing  Officer  may,  after  consulting  the  Director  responsible,  supply  in 
advance to the parties invited to the hearing a list of the questions on which s/he wishes them to 
make  known  their  views.    The  Hearing  Officer  may  also  indicate  to  the  persons  invited  to  the 
hearing  the  focal  areas  for  debate,  having  regard  in  particular  to  the  facts  and  issues  that  the 
addressees of an SO want to raise.  

In  addition,  after  consulting  the  Director  responsible,  the  Hearing  Officer  may  hold  a  meeting 
with the parties invited to the hearing and, where appropriate, the Commission staff, in order to 
prepare for the hearing itself.  

(45)  The  Hearing  Officer  may  also  ask  for  prior  written  notification  of  the  essential  contents  of  the 
intended statement of persons, whom the parties invited to the hearing have indicated will speak.  

(46)  The Hearing Officer may set a time limit for all persons invited to the hearing to provide a list of 
participants who will attend the hearing. The list should be made available by the Hearing Officer 
in due time before the hearing.  

Page 9/11 – Right to be heard 

3.6.   Procedure at the oral hearing 

(47)  The Hearing Officer opens the hearing and invites DG Competition to summarise the facts and 

principal arguments of the Commission (usual time allocated around 20 minutes).  

(48)  The party(ies) and third parties are given the opportunity to be heard. 

(49)  The Hearing Officer decides whether new documents should be admitted during the hearing.  

(50)  The Hearing Officer allows the parties, complainants and third parties, the Commission services 
and the representatives of the Member States to ask questions during the hearing to all attendees. 
If, exceptionally, a party cannot answer a question at the hearing, the HO may allow such party to 
give an answer in writing within a set time limit. Such answer should normally be distributed to all 
participants unless the Hearing Officer decides otherwise.20   

(51)  Where appropriate, in view of the need to ensure the right to be heard, the Hearing Officer may, 
after  consulting  the  Director  responsible,  afford  the  parties  concerned,  other  involved  parties, 
complainants or interested third persons the opportunity of submitting further written comments 
after the oral hearing and fix a date by which such submissions may be made. Those submitting 
the information are asked to provide non-confidential versions of the supplementary comments to 
be made available to all attendees. 

(52)  Before closing the oral hearing the Hearing Officer invites the parties to make final remarks. 

(53)  During the hearing, the case-team/secretary should take all necessary precautions in order to avoid 

any inadvertent disclosure of information covered by professional secrecy. 

3.7.  Recording of the hearing 

(54)  Article 14(8) of Reg. 773/2004 provides that the statements of each party heard must be recorded 
and upon request the recording has to be made available to those who attended the oral hearing 
by the Hearing Officer.  This is done by way of audio recording (no written minutes are prepared). 

(55)  After  the  hearing,  the  Hearing  Officer  sends  a  copy  of  the  audio  recording  to  the  Antitrust 
Registry,  who  encodes  it  in  the  case  management  application.  Parties  who  attended  the  hearing 
and have requested the audio recording may collect it at the Hearing Office.  Parties who did not 
attend the hearing do not have a right to obtain a copy of the recording.  

4.  State of Play meeting 

(56)  According to the Best Practices Notice21, where an SO is issued, the parties will also be offered a 
State of Play meeting after their reply to the SO or after the oral hearing, if any. The parties will at 
this  moment  normally  be  informed  of  the  Commission’s  preliminary  view  on  how  it  intends  to 
pursue the case further. 

(57) 

In the context of cartel proceedings, (only) one State of Play meeting will be offered after the oral 
hearing22. 

20  

21  

22  

See Article 12(3) of the HO Terms of Reference.  

Paragraph 64. 

Best Practices Notice, paragraph 65. 

                                                 
Antitrust Manual of Procedures 

5.  Hearing Officer's reports 

5.1.1. 

Interim report and observations 

(58)  The  Hearing  Officer’s  reports  to  the  Commissioner  on  the  hearing  and  the  conclusions  he/she 
draws  from  it  in  his/her  interim  report  with  regard  to  the  respect  for  the  effective  exercise  of 
procedural rights, including disclosure of documents, access to the file, time-limits and the proper 
conduct of the oral hearing (Article 14(1) of the HO Terms of Reference).  

(59) 

In  addition  to,  and  separately  from,  the  interim  report,  the  Hearing  Officer  may  also  make 
observations on the further progress and impartiality of the proceedings (Article 14(2) of the HO 
Terms of Reference).  Such observations may concern, among other things: 

(a)  whether due account is taken of all the relevant facts; 

(b) 

the need for further information; 

– the withdrawal of certain objections; 

– the formulation of further objections; or 

– suggestions for further investigative measures pursuant to Chapter V of Reg. 1/2003 (e.g., request 

for information, interview of natural or legal persons).  

(60)  The  Hearing  Officer  sends  his  draft  interim  report  and  observations  to  the  case  team  for 
information and comments on the facts before sending it to the Competition Commissioner, after 
having seen the case team's report on the hearing. 

5.1.2.  Final report 

(61)  The following information is required by the Hearing Officer for drafting the final report:  

(a) 

copies  of  all  versions  of  the  draft  decision  should  be  sent  to  the  HO  during  inter-service 
consultations;  

–  information on whether the draft decision includes any material deviation in the objections (e.g., 
new  or  modified  objection)  or  in  the  evidence  used  as  compared  to  the  SO  (e.g.  new 
incriminating evidence introduced). 

(62)  The final report considers (Article 16(1) of the HO Terms of Reference):  

(a)  whether  participants  in  antitrust  proceedings  have  been  able  to  effectively  exercise  their 

procedural rights;  

(b)  whether  the  draft  decision  deals  only  with  objections  in  respect  of  which  the  parties  have 

been afforded the opportunity of making known their views. 

(63)  The  final  report  is  drafted  in  EN,  FR,  DE  and  all  the  authentic  languages  of  the  case  and 
submitted to the competent member of the Commission, the Director General for Competition 
and the Director responsible, and is communicated to the competent authorities of the Member 
States  and,  in  accordance  with  the  provisions  on  cooperation  laid  down  in  Protocol  23  of  the 
EEA  Agreement,  to  the  EFTA  Surveillance  Authority  (Article  16(2)  of  the  HO  Terms  of 
Reference). 

(64) 

It is notified to the parties and published together with the final decision. 

Page 11/11 – Right to be heard 

(65)  Timing:  

(a)  Member  States  must  have  the  draft  final  report  when  discussing  the  draft  decision  at  the 

Advisory Committee (AC). 

– The draft final report is sent by the Hearing Officer to the DG, the Cabinet and the NCAs before 

the AC Meeting.  

– According to Article 17 of the HO's Terms of Reference, the final report has to be attached to the 
draft decision submitted to the College, in order to ensure that, when it reaches a decision on 
an individual case, the College is fully apprised of all relevant information as to the course of 
the  procedure  and  that  the  effective  exercise  of  procedural  rights  has  been  respected 
throughout the proceedings. 

– After  the  AC  Meeting,  the  HO's  secretariat  personally  delivers  the  original  final  report  (in  all 

necessary linguistic versions) to the SG and a copy to the case team for the file.  

(66)  The report may be modified by the Hearing Officer in the light of any amendments to the draft 

decision up to the time the Commission adopts the decision. 

6.  Relations with the Hearing Officer in 
commitment and cartel settlement 
proceedings 

(67) 

(68) 

Parties to the proceedings which offer commitments may call upon the HO at any time in order to 
ensure  the  effective  exercise  of  their  procedural  rights  (Article  15(1)  of  the  HO  Terms  of 
Reference)  

In  order  to  allow  the  Hearing  Officer  to  assess  the  need  for  such  reporting,  operational 
directorates should systematically: 

(a) 

inform the Hearing Officer when a market test is being carried out in any given case; and 

– provide the Hearing Officer with copies and with the summary of the market test. 

(69) 

Parties which engage in settlement discussions in cartel cases may call upon the Hearing Officer at 
any time in order to ensure the effective exercise of their procedural rights (Article 15(3) of the 
HO Terms of Reference).  

 
 
Page 1/5 – Advis. Comm. on Restrictive Practices and Dominant Positions  

14 Advisory Committee 

on Restrictive Practices and 
Dominant Positions 

1. 

Legal Basis 

2. 

Composition of the Advisory Committee 

3. 

Participation of EFTA Surveillance Authority (ESA) and EFTA 
Member States 

4. 

Purpose of the meeting 

5. 

Form of the consultation 

5.1.  Oral procedure 

5.1.1.  Date of the meetings 
5.1.2.  Meeting itself 
5.1.3.  Member States may make comments on the preliminary draft decision and 

ask questions to the Commission. Follow up of meetings 

5.2.  Written procedure 

5.2.1.  Deciding whether to propose the written procedure 
5.2.2.  The written consultation process 

2 

2 

3 

3 

3 

3 
4 
4 

4 

4 
5 
5 

 
Antitrust Manual of Procedures 

1.  Legal Basis  

(1) 

Article  14(1)  of  Regulation  No  1/2003  provides  that  the  Commission  should  consult  an 
“Advisory Committee on Restrictive Practices and Dominant Positions” prior to the adoption of 
certain types of decisions, i.e.: 

–  prohibition decisions (Article 7 of Regulation No 1/2003) 

–  interim measures decisions (Article 8 of Regulation No 1/2003) 

–  commitment decisions (Article 9 of Regulation No 1/2003) 

–  findings of inapplicability (Article 10 of Regulation No 1/2003) 

–  decisions imposing fines (Article 23 of Regulation No 1/2003) 

–  decisions imposing definitive periodic penalty payments (Article 24(2) of Regulation No 1/2003) 

–  decisions  withdrawing  the  benefit  of  a  block  exemption  regulation  (Article  29(1)  of  Regulation 

No 1/2003). 

(2) 

According to Article 17(2), Article 14 applies mutatis mutandis where the Commission conducts a 
sector inquiry.  

–  The Advisory Committee is moreover consulted on draft Commission regulations as provided for 

in the relevant Council Regulations1.  

(3) 

Section  4  of  the  Commission  Notice  on  cooperation  within  the  Network  of  Competition 
Authorities  (“Network  Notice”)2  further  describes  the  role  and  functioning  of  the  Advisory 
Committee under Regulation 1/2003. Within this legal framework, the working modalities of the 
Advisory Committee have developed in practice over time.   

2.  Composition of the Advisory Committee 

(4) 

(5) 

(6) 

1  

2  

For the discussion of individual cases, the Advisory Committee is composed of representatives of 
the national competition authorities (NCAs) of the Member States. For meetings in which issues 
other  than  individual  cases  are  being  discussed,  an  additional  Member  State  representative 
competent in competition matters may be appointed. 

In order to prepare, the national competition authorities (NCAs) must be sent a copy of the most 
important documents in the case.  

Upon request by an NCA, the latter shall be sent a copy of other existing documents necessary for 
the assessment of the case. 

Cf.  Article  33  of  Regulation  1/2003,  Council  Regulation  19/65,  Council  Regulation  2821/71,  Council  Regulation 
3976/87 and Council Regulation 479/92. 

OJ C101, 27.4.2004, p.43. 

                                                 
Page 3/5 – Advis. Comm. on Restrictive Practices and Dominant Positions  

(7) 

DG  Competition's  directorate  in  charge  of  the  investigation  is  represented,  in  general,  by  the 
Director,  the  relevant  Head  of  Unit  and  the  case  team.  Meetings  are  normally  chaired  by  the 
Policy & Strategy Director (A) or by a Head of Unit or Deputy Head of Unit of Directorate A, 
depending  on  the  subject  matter  of  the  meeting.  The  Legal  Service  as  well  as  other  interested 
Commission services are also invited. The secretariat of the Advisory Committee takes care of the 
organisation of the meeting. 

3.  Participation of EFTA Surveillance Authority 

(ESA) and EFTA Member States 

(8)  When an Advisory Committee meeting is convened in a case with EEA relevance, the invitation 

to attend this meeting is extended to the ESA3.  

(9) 

ESA and EFTA States have the right to participate and make observations. They however do not 
have  the  right  to  vote  (they  do  not  sign  the  Opinion  of  the  Advisory  Committee).  In  practice, 
ESA  often  produces  a  separate  opinion  (“EFTA  views”),  following  the  same  model  as  the 
Opinion of the Advisory Committee. 

4.  Purpose of the meeting 

(10)  Three types of topics can be discussed: 

–  draft Commission decisions (as listed above) in individual cases (Article 14(1) of Regulation No 
1/2003);  for  individual  cases  in  which  fines  are  imposed,  there  will  often  be  two  Advisory 
Committees, one discussing the substance of the case, and the other discussing the amount of the 
fines to be imposed; 

–  individual  cases  that  are  being  dealt  with  by  a  competition  authority  of  a  Member  State  under 

Articles 101 or 102 TFEU (Article 14(7) of Regulation No 1/2003); 

–  general issues of EU competition law (Article 14(7), last sentence). 

5.  Form of the consultation 

(11)  The consultation of an Advisory Committee can take place either by oral procedure in a meeting 
convened  by  the  Commission  (Article  14(3)  of  Regulation  1/2003)  or  by  written  procedure 
(Article 14(4)), unless any Member State objects to the latter. 

5.1.  Oral procedure 

(12)  The oral procedure takes the form of a meeting of the Advisory Committee. Where the written 

procedure has not been explicitly decided upon, the oral procedure will be organized by default. 

3  

And the EFTA States, who are, however, informed by ESA. 

                                                 
Antitrust Manual of Procedures 

5.1.1.  Date of the meetings 

(13)  The consultation may take place at a meeting convened and chaired by the Commission, held not 
earlier than 14 days (a  shorter period can  be set in the absence of an objection by any Member 
State) after dispatch of the notice convening it, together with: 

–  a summary of the case,  

–  an indication of the most important documents and 

–  a preliminary draft decision. 

(14) 

In  respect  of  decisions  pursuant  to  Article  8,  the  meeting  may  be  held  seven  days  after  the 
dispatch of the operative part of a draft decision. 

5.1.2.  Meeting itself 

(15)  During the meeting, case teams should be prepared to reply to any point raised by the members of 

the Advisory Committee.  

(16)  The case-team should brief the interpreters about the case. 

(17)  At  least  one  case  secretary  should  attend  in  order  to  assist  the  Secretariat  of  the  Advisory 

Committee in the preparation of the meeting. 

(18)  The  Commission,  as  Chair,  should  determine  the  general  structure  of,  and  format  for,  the 

discussion to take place in the meeting. 

(19) 

If necessary, the case team may give some additional explanation. 

5.1.3.  Member States may make comments on the preliminary 

draft decision and ask questions to the Commission. Follow 
up of meetings 

(20)  At  the  end  of  the  meeting,  the  Advisory  Committee  adopts  an  opinion  (in  English  generally), 
normally signed by the nominated NCA representatives present. The Secretariat of the Advisory 
Committee distributes a copy to the representatives of the Member States before the conclusion 
of  the  meeting.  The  case  team  assures  the  translation  in  the  two  other  working  languages  and 
keeps the signed original of the Opinion. 

(21)  According  to  Article  14(5)  of  Regulation  No  1/2003,  the  Commission  shall  take  the  utmost 

account of the opinion delivered by the Advisory Committee.  

(22) 

If the Advisory Committee so recommends, its opinion will be published in the OJ along with the 
decision  (Article  14(6)  of  Regulation  No  1/2003).  Where,  in  cases  where  fines  are  imposed,  a 
second Advisory Committee meeting takes place (see paragraph (13)(10) above), a second opinion 
may be published in the OJ. 

5.2.  Written procedure 

(23)  Consultation may also take place by written procedure. However, if any Member State so requests, 
the Commission has to convene a meeting. In case of written procedure, a time-limit should be 
determined  of  not  less  than  14  days  within  which  the  Member  States  are  to  put  forward  their 

 
Page 5/5 – Advis. Comm. on Restrictive Practices and Dominant Positions  

observations  for  circulation  to  all  other  Member  States.  In  case  of  decisions  taken  pursuant  to 
Article  8,  the  time  limit  of  14  days  is  replaced  by  seven  days.  Where  shorter  time  limits  for  the 
written  procedure  are  being  proposed,  they  will  be applicable in  the absence  of  an objection by 
any Member State (see below section 5.2.2.). 

5.2.1.  Deciding whether to propose the written procedure  

(24)  The  Commission  shall  assess  whether  or  not  to  propose  to  NCAs  a  written  procedure,  taking 
account of the likely efficiency gains for both NCAs and the Commission, having regard to the 
nature  of  the  case,  the  type  of  draft  decision  being  considered  and  the  likely  nature  of  the 
comments if a meeting were held. 

(25)  The  launching  of  the  consultation  under  a  written  procedure  is  done  by  a  notice  from  the 
Commission  to  the  Advisory  Committee,  within  the  deadline  prescribed  in  Article  14(4)  of 
Regulation 1/2003 and together with the documents set out in Article 14(3) of Regulation 1/2003.  

(26) 

(27) 

If any Advisory Committee member considers that a case where the Commission has proposed an 
oral  procedure  would  be  suitable  for  a  written  procedure,  he/she  may  communicate  his  /  her 
opinion  to  the  Commission.  The  Commission  can  follow  up  this  suggestion  by  a  notice  to  all 
Advisory  Committee  members,  proposing  that  the  consultation  should  take  place  by  way  of  a 
written procedure.  

Pursuant to Article 14(4) of Regulation 1/2003, the Commission may set shorter deadlines than 
those provided in Article 14(3) and (4). Members should endeavour to indicate to the Commission 
as  early  as  possible  if  they  object  to  the  shorter  deadline.  In  case  of  an  objection,  the  deadlines 
foreseen in Article 14(3) and (4) of Regulation 1/2003 would apply, counting from the dispatch of 
the documents. 

5.2.2.  The written consultation process  

(28) 

In a consultation conducted under the written procedure, it would be sufficient to submit to the 
Advisory Committee a simple list of key questions. 

(29)  The Advisory Committee members may make any observations in writing. These observations, or 
at least a summary thereof, should be provided in a commonly understood and accepted language 
for the convenience of other Committee members.  

(30) 

If the nature of the requests for explanations is such that an open-to-all discussion is warranted, 
the Commission may: 

–  either  organise  a  conference  call/videoconference  to  deal  with  the  questions  and  then 

restate the deadline for the written replies; or 

–  if the complexity of the issues justifies it or any member so requests, “switch” to the oral 
procedure  by  organising  a  meeting  on  the  date  specified  in  the  original  invitation.  The 
consultation  would  then  be  concluded  in  this  meeting  (in  which  written  replies  already 
made would not be binding upon the members of the Committee). 

(31) 

In  both  cases,  this  procedure  will  be  considered  the  continuation  of  the  same  consultation 
launched.  

 
Page 1/5 – Adoption of a prohibition Decision 

15 Adoption of a prohibition 

Decision  

1.  Drafting of the decision / consultation process 

1.1.  Drafting of the draft decision 

1.2.  Consultation on the draft decision 
1.2.1.  Consultation of the LS 
1.2.2.  Seeking the views of other DGs 

1.3.  Translations 

2. 

The adoption process 

2.1.  Meeting(s) of the Advisory Committee 

2.1.1.  Invitations and file to be sent to the Advisory Committee 
2.1.2.  Timing for the sending of the file 
2.1.3.  Meeting of the Advisory Committee 
2.1.4.  Follow-up of the Advisory Committee's opinion if changes required 
2.1.5.  Second Advisory Committee on fines 

2.2.  Adoption of the Decision 

3. 

Post-adoption process 

3.1.  Notification of the decision 

3.2.  Publication 

2 

2 

2 
2 
2 

2 

2 

2 
3 
3 
3 
3 
4 

4 

4 

4 

5 

 
Antitrust Manual of Procedures 

1.  Drafting of the decision / consultation 

process 

1.1.  Drafting of the draft decision 

The draft decision should be drafted within a reasonable time after the hearing.  

The draft decision must be drafted in English or French (languages for interservice consultation). 
If not, the draft will have to be translated before it is sent for consultation to other services. 

1.2.  Consultation on the draft decision 

The Competition Commissioner has been empowered to decide on behalf of the Commission to 
send the draft decision to the Advisory Committee. This requires to seek the prior agreement of 
the Legal Service and to give other interested services the opportunity to make known their views. 

1.2.1.  Consultation of the LS  

The LS receives the draft decision for consultation.  

In  accordance  with  Article  23-4.2  of  the  Implementing  Rules  Giving  Effect  to  the  Rules  of 
Procedure  of  the  Commission,  the  LS  should  be  granted  at  least  10  working  days  when  the 
document is up to 20 pages and at least 15 working days where it exceeds 20 pages. 

1.2.2.  Seeking the views of other DGs 

In  line  with  the  Rules  of  Procedure  of  the  Commission,  DG  Competition  shall  also  give  “other 
departments with legitimate interest” in the draft decision the opportunity to express their views. 

The relevant services are the same as those which have received the SO and/or have been invited 
to the hearing.  

1.3.  Translations 

At the adoption stage, the draft decision will have to be available in the 3 working languages of the 
Commission and, where applicable, in the other authentic languages of the case. 

The  translation  service  should  therefore  be  asked  to  translate  the  draft  decision  into  all  these 
languages.  

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

2.  The adoption process 

2.1.  Meeting(s) of the Advisory Committee 

(10)  Before  the  adoption  of  a  prohibition  decision,  the  Commission  has  to  consult  the  Advisory 
Committee on restrictive practices and dominant positions. Where the prohibition decision does 
not include the imposition of fines, there will be only one meeting. Where the prohibition decision 
provides for the imposition of fines, there will normally be two meetings, the first one discussing 
the substance of the case, the second one discussing only the level of fines. 

Page 3/5 – Adoption of a prohibition Decision 

(11)  The consultation of the Advisory Committee normally takes place at a meeting held in Brussels. 
Regulation No 1/2003 also allows the possibility of a written consultation (see further Module on 
Advisory Committee).  

2.1.1. 

Invitations and file to be sent to the Advisory Committee 

(12)  The invitation to the Advisory Committee meeting and of the agenda of the meeting, as well as 

the file, are sent to: 

–  the Member States; 

–  the EFTA Surveillance Authority, if the draft decision affects the EEA. 

2.1.2.  Timing for the sending of the file 

(13)  The file must be sent at the latest 14 calendar days before the meeting is held (if the draft decision 
is long, the case team should make every effort to send the text three working weeks in advance). 
The file has to be sent to the secretariat of the Advisory Committee at least 24 hours before this 
deadline. 

(14)  Meetings  may  be  convened  within  a  shorter  deadline  than  these  14  days,  if  no  Member  State 
objects  to  it  (Article  14(3)  of  Regulation  No  1/2003);  this  option  should  be  avoided,  where 
possible. 

2.1.3.  Meeting of the Advisory Committee 

(15)  The meeting is chaired by Directorate A (either at Director or Head of Unit level). The case team 

must be available 15 minutes before the meeting in order to brief the interpreters about the case.  

(16)  The Chairman chairs the debate. Member States may make comments on the draft decision and 

ask questions to the Commission or to the other Member States.  

(17)  Once  the  debate  is  closed  and  once  every  participant  has  expressed  its  opinion,  the  Advisory 
Committee delivers its opinion, even if some Member States are not represented. The opinion is 
drafted on the spot (usually in English) and signed by all representatives that are present. A copy is 
distributed to the Member States representatives.  

(18)  A list of all attendees is prepared by the secretariat of the Advisory Committee and signed by each 

attendee. 

(19)  The  opinion  of  the  Advisory  Committee  will  later  be  published  in  the  Official  Journal,  if  the 

Advisory Committee so recommends. 

2.1.4.  Follow-up of the Advisory Committee's opinion if changes 

required 

(20) 

(21) 

(22) 

Pursuant  to  Article  14(5)  of  Regulation  No 1/2003,  “the  Commission  shall  take  the  utmost 
account of the opinion of the Advisory Committee” and “inform the Committee of the manner in 
which its opinion has been taken into account”.  

In case the decision is revised following the opinion of the Advisory Committee, the new version 
should promptly be transmitted to the Member States.  

If  the  draft  decision  is  substantially  amended,  the  Legal  Service  must  be  consulted  on  these 
changes.  

Antitrust Manual of Procedures 

2.1.5.  Second Advisory Committee on fines 

(23)  The purpose of this second Advisory Committee is to present the proposals of DG Competition 
on the level of fines, as agreed by the Commissioner. The invitation has to be sent out 14 days in 
advance, but without communication of the proposal on fines. 

(24)  The  case  team  describes  and  explains  DG  Competition's  proposal  on  the  level  of  fines,  and,  if 
relevant, also on a revised version of the draft decision following the first Advisory Committee). 
Once  the  debate  is  closed,  the  secretariat  of  the  Advisory  Committee  drafts  the  opinion  of  the 
second  Advisory  Committee.  Where  Member  States  so  recommend,  opinion  will  also  later  be 
published  in  the  OJ  (along  with  the  decision,  the  final  report  of  the  Hearing  Officer  and  the 
opinion of the first Advisory Committee).  

2.2.  Adoption of the Decision  

(25)  The case-team sends the adoption file to the Cabinet of the Competition Commissioner for their 
approval  and  to  the  SG  in  charge  of  the  adoption  process  of  the  decision  by  the  College.  It  is 
therefore  essential  that  they  receive  the  proper  documents  in  accordance  with  the  formal 
requirements in due time.  

(26)  The College can adopt the decision either by oral procedure (meeting of the College) or by written 
procedure  (providing  Cabinets  generally  with  5  days  for  raising  comments  before  adoption  by 
expiration of the set deadline). Decisions for which an oral discussion is necessary or for which 
information  should  not  be  disclosed  long  before  its  adoption  (concerning  notably  adoption  of 
fines) are adopted by oral procedure. 

3.  Post-adoption process 

3.1.  Notification of the decision 

(27)  The SG is in charge of the notification process, which will take place in two rounds: 

–  in a first stage, immediately after the decision has been adopted by the College, the SG notifies by 
fax the operative part of the decision (“dispositif”) to the parties (not to their external legal counsel, 
except if parties waived the notification rights to their empowered attorney); the SG also notifies 
the operative part of the decision to the National Competition Authorities; 

–  in a second stage, the SG notifies a certified copy of the decision to the parties as well as a copy 

of the final report of the Hearing Officer by express courier service (DHL or the like).  

(28)  The case team is in charge of the following: 

–  to inform immediately, after the decision has been adopted and finalized by the SG (adding the 
date and the decision number to the adopted decision), the addressee of the decision, by sending 
a courtesy copy1, and send the text of the opinion(s) of the Advisory Committees to the parties 
when the Advisory Committee has recommended the publication of its opinion(s); 

–  to instruct the Antitrust Registry to send the full text of the decision (i.e. including confidential 
information  and  indication  of  figures  on  fines)  to  Member  States  and  ESA,  where  it  is  EEA 

1  

See the Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 
20.10.2011, p. 6), paragraph 146. 

                                                 
Page 5/5 – Adoption of a prohibition Decision 

relevant,  in  the  languages  available  via  encrypted  mail  promptly  (within  two  weeks)  after  the 
adoption of the decision; 

–  to send, if appropriate, by courtesy, to the legal counsel of the parties a copy of the decision; 

–  to send, if possible, a non-confidential version of the decision to the complainant (such a version 

may however not yet be available at this stage); 

–  to  check  if  the  case  concerns  a  non-EEA-country,  if  there  is  an  obligation  to  inform  the  third 
country competition authority about the fact that a decision has been notified to a company in its 
jurisdiction; in case of doubt, the Unit for International Relations will provide assistance. 

3.2.  Publication 

(29)  The press conference is held and the press release is published after the sending of the operational 

part of the decision to the parties. 

(30)  The  case  team  should  also  get  in  touch  in  advance  with  the  spokesperson  in  order  to  check  if 

she/he needs assistance before the press conference or at the press conference 

(31)  The  adoption  of  the  decision  will  be  followed  by  a  series  of  publications  of  various  documents 

(from the text of the decision itself to a summary in the Annual Report). 

(32) 

(33) 

Pursuant to Art. 30(1) Reg. 1/2003, a summary of the decision, the Hearing Officer’s Report as 
well as the Advisory Committee opinion(s),if recommended to be published, have to be published 
in the OJ in all official languages, with the exception of Irish. 

In  addition,  DG  Competition  endeavours  to  publish  the  non-confidential  full  version  of  the 
decision on its website in the authentic language and in the drafting languages, if different from 
the authentic language (see further Module Publication). 

 
Page 1/13 – Commitment Decisions 

16 Commitment Decisions  

1. 

Introduction 

2. 

Considerations and main objectives 

3. 

Commitment Decisions 

3.1. 

Initiation of commitment discussions 
3.1.1.  State of Play Meeting 
3.1.2.  Submission of an informal commitments offer 

3.2.  Preparation of Preliminary Assessment 

3.3.  Approval of the Preliminary Assessment 

3.4.  Submission of a commitment text for the market test 

3.4.1.  Procedural framework / format of commitment decisions 
3.4.2.  The content of the commitments 
3.4.3.  Duration of the commitments – review clause 
3.4.4.  Approval to market test the commitments 

3.5.  The market test 

3.5.1.  Form of the Market Test 
3.5.2.  Information and further discussion 
3.5.3.  Complainants 
3.5.4.  Internal approvals 

3.6.  Adoption of the Decision 

3.6.1.  Content of the commitment decision 
3.6.2.  Adoption process 
3.6.3.  Complaint cases: Information of Complainant 
3.6.4.  Closure of the file 
3.6.5.  Publication of the Decision 

3.7. 

Implementation of the Commitments 

2 

2 

4 

4 
4 
5 

5 

6 

7 
7 
7 
9 
9 

9 
9 
10 
11 
11 

11 
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12 
12 
13 
13 

13 

 
 
Antitrust Manual of Procedures 

1.  Introduction 

(1) 

(2) 

(3) 

(4) 

Article 9 of Council Regulation 1/2003 provides the Commission with the possibility to conclude 
cases  by  means  of  a  “commitment  decision”,  in  which  the  commitments  offered  by  the 
undertaking  are  rendered  binding  on  it.  Such  a  decision  concludes  that  there  are  no  longer  any 
grounds for action by the Commission. 

Following  this  introduction,  section  2  addresses  some  general  policy  considerations  as  to  when 
commitment decisions are appropriate. In section 3, the substantive requirements for commitment 
decisions are described.  

This Module should be read together with the section on commitment decisions in the Notice on 
Antitrust Best Practices1 which takes priorities in all respects.  

During  the  whole  procedure,  support  from  Unit  02  may  be  requested  at  any  moment.  It  is 
recommended to keep all relevant services (Unit 02, and if policy relevant Strategy Director (A), 
the  Chief  Economist,  if  involved,  and  Legal  Service)  informed  of  the  progress  of  commitment 
discussions, so that their comments can be taken on board during the commitment discussions. If 
necessary organise a meeting with the relevant services to agree on the line to take. 

2.  Considerations and main objectives 

(5) 

(6) 

(7) 

(8) 

(9) 

1  

2  

The advantages and disadvantages of a commitment decision have to be weighed carefully in each 
individual case.  

Similar  to  decisions  under  Article  7  of  Regulation  1/2003,  commitment  decisions  are  an 
enforcement instrument primarily designed to restore effective competition. They should be used 
only  in  cases  in  which  the  commitments  meet  the  competition  concerns  identified  by  the 
Commission.  Unlike  "informal  settlements"  (such  as  practised  before  Regulation  1/2003  came 
into  force),  commitment  decisions  render  commitments  offered  by  companies  legally  binding, 
which  creates  legal  certainty  and  ensures  that  effective  competition  is  continuously  preserved.  
Commitment  decisions  also  serve  to  clarify  the  Commission's  competition  policy  since  a  non-
confidential  version  of  the  decision  is  published.  Other  market  participants  can  learn  from  the 
decision and the commitments what was considered by the Commission sufficient to remove the 
competition concerns.  

Commitment  decisions  are  not  based  on  full  investigations  and  do  not  reach  definitive 
conclusions on the facts of a case or the application of the law. In addition, commitment decisions 
involve  less  procedural  steps  (and  therefore  less  resources)  than  a  final  decision  under  Article  7 
(e.g.  Preliminary  Assessment  instead  Statement  of  Objections;  no  access  to  the  file  is  expressly 
foreseen, no hearing; usually a shorter decision). As a result, the "commitment path" can bring a 
swifter change to the market, without necessarily being less effective.  

The fact that the commitments are not imposed by the Commission but voluntarily submitted and 
implemented only after discussions with the parties as well as a market test may also facilitate the 
later implementation of the commitments. 

From a company's perspective, faster proceedings and the absence of a finding of an infringement 
may be important reasons to offer commitments2. Also the fact that the remedies can be discussed 

Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 
308, 20.10.2011, p. 6); ("Notice on Antitrust Best Practices"). 

See Case C-441/07 P Commission v Alrosa, paragraph 48. 

                                                 
Page 3/13 – Commitment Decisions 

and  are  not  imposed  and  that  the  procedure  can  give  faster  legal  certainty  may  be  taken  into 
account by companies.   

(10)  The  option  to  enter  into  commitment  discussions  can,  however,  also  have  important 
disadvantages.  Since  commitments  may  be  withdrawn  until  the  adoption  of  the  commitment 
decision  and  since  a  market  test  may  show  that  the  commitments  are  not  appropriate,  there  is 
always  a  risk  that  antitrust  investigations  are  significantly  delayed  by  (unsuccessful)  commitment 
discussions.  It  is  therefore  crucial  to  ascertain  the  willingness  of  the  parties  to  settle  before 
engaging  into  an  Article  9  procedure  and  that  the  commitments  appear  sufficiently  likely  to 
resolve  the  identified  competition  problems  (this  is  why  a  Preliminary  Assessment  is  only 
submitted after first commitment discussions).  

(11)  Another aspect which may militate against the "commitment path", from a policy point of view, is 
the different precedent value of commitment decisions compared to final decisions under Article 
7.  Commitment  decisions  do  not  actually  find  an  infringement,  and  the  factual  and  legal 
assessment may be shorter than in decisions under Article 7. The more limited risk of an appeal 
may also reduce the Commission's chances to have contentious legal issues clarified by the Court. 
If the Commission therefore wants to establish an important precedent, it may prefer the path of 
an Article 7 decision.  

(12) 

(13) 

(14) 

Similar  considerations  apply  to  the  more  limited  deterrent  effect  of  commitment  decisions  on 
other undertakings. The absence of a finding of an infringement may also render private litigation 
against anti-competitive practices more difficult.  

Legally, a commitment decision is not appropriate when the Commission considers that the nature 
of the infringement calls for the imposition of a fine.3  Consequently, the Commission does not 
apply the Article 9 procedure to secret cartels that fall under the Notice on immunity from fines 
and reduction of fines in cartel cases.4  

In  cases,  in  which  the  Commission  sent  a  Statement  of  Objections  announcing  its  intention  to 
impose a fine it would be preferable for the commitment decision to explain why a fine was no 
longer necessary. 

(15)  A commitment decision is usually intended to bring an apparent on-going infringement to an end 
and  restore  competition  in  the  market.  However,  commitments  can  still  be  appropriate  if  the 
undertakings have discontinued their presumed anti-competitive practice prior to, or during, the 
investigation. This is to ensure that the undertakings will continue also in the future abiding by the 
EU  competition  rules  which  in  itself  would  constitute  a  legitimate  interest  for  taking  a  formal 
Article 9 decision.5  

(16)  These considerations need to be kept in mind when evaluating a company's request to enter into 
commitments  discussions.  Attention  should  be  paid  to  attempts  by  companies  to  (mis)use 
commitment  proceedings  to  obtain  some  form  of  legal  certainty  for  contracts  brought  to  the 
attention  of  the  Commission  in  return  for  -  possibly  some  minor  -  commitments  (“notification 
through the  back door”).  Commitment decisions  neither find an infringement, nor do they find 

3  

4  

5  

See Recital 13 of Regulation 1/2003. 

OJ C 298, 8.12.2006, p.17. 

If there is no longer need for a formal Article 9 decision the proceedings need to be formally closed.  

 
                                                 
Antitrust Manual of Procedures 

that a behaviour has not infringed competition law6. Undertakings are by no means entitled to a 
commitment decision, even if the Commission previously settled a similar case.  

(17)  As  concerns  the  legal  effects  of  a  prohibition  decision  pursuant  to  Article  7 and a commitment 
decision  pursuant  to  Article  9  of  Regulation  1/2003,  the  main  difference  is  that  the  former 
contains  a  finding  of  an  infringement  while  the  latter  makes  the  commitments  binding  without 
concluding on whether there was or still is an infringement. A commitment decision therefore just 
describes the concerns found in the investigation and merely concludes that there are "no longer 
grounds for action" by the Commission.  

(18)  The  required  level  of  detail  of  a  commitment  decision  may  be  lower  than  in  the  case  of  a 
"prohibition"  decision  or  "imposed"  remedy  decision  under  Article  7  (e.g.  facts  pointing  at  a 
potential infringement is usually sufficient for a commitment decision, and some elements of the 
theory of harm – such as objective justifications - may not be discussed in detail). However, the 
Commission must have at its disposal sufficient facts to make an informed and sound assessment 
of  the  relevant  competition  concerns.  In  other  words,  the  Commission  must  have  reached  the 
conclusion  –  even  if  only  on  a  preliminary  basis  –  that  there  may  be  or  may  have  been  an 
infringement  of  EU  competition  law  which  should  be  addressed.  Often  the  preliminary 
assessment will contain considerably more detail than the commitment decision itself. 

3.  Commitment Decisions  

3.1.  Initiation of commitment discussions  

(19)  Undertakings may contact DG Competition at any point in time to explore its readiness to enter 
into commitment discussions. DG Competition encourages undertakings to signal at the earliest 
possible  stage  their  interest  in  discussing  commitments.  However,  even  in  a  case  where  a 
Statement of Objections has already been sent to the parties, commitments may still be accepted. 

3.1.1.  State of Play Meeting  

(20)  A  State  of  Play  meeting  will  be  offered  to  parties  which  signal  an  interest  in  discussing 
commitments. At this meeting to which the Legal Service and Hearing officer team will be invited 
and may decide to participate, DG Competition will present the preliminary competition concerns 
arising from the investigation. Since the description of the case in the State of Play meeting is, in 
practice,  the  main  basis  for  the  company  under  investigation  to  decide  whether  to  submit 
commitments or not (it will only receive a written "preliminary assessment" after it states its initial 
readiness to offer commitments), this summary of the competition concerns should be prepared 
with great care. Even if the Commission's competition concerns are only presented orally to the 
parties,  the  Commission's  presentation  should  be  well-structured  and  allow  the  parties  to 
understand exactly the theory of harm and the underlying factual evidence. The parties should also 
be given the opportunity to ask questions regarding the competition concern in order to be able to 
report  the  Commission's  concerns  clearly  to  their  internal  decision-making  bodies.  The 
Commission will also indicate to the undertaking the timeframe within which the discussions on 
potential commitments should be concluded. 

(21)  The case team should clarify that the State of Play meeting is without prejudice to the decision of 
the Commissioner for Competition whether to proceed along the commitment decision track. In 
addition, it is important for the case team to bear in mind that ultimately it is for the College to 

6  

The  inapplicability  of  Article  101  and  Article  102  TFEU  can,  in  exceptional  cases  only,  be  stated  in  decisions 
pursuant to Article 10 of Regulation 1/2003. 

                                                 
Page 5/13 – Commitment Decisions 

decide  whether  to  adopt  a  commitment  decision.  It  is  therefore  also  essential  that  during  the 
ensuing discussions on potential commitments, no final position is taken by the case team on their 
appropriateness.  

3.1.2.  Submission of an informal commitments offer  

(22) 

Should  the  parties,  after  being  confronted  with  the  Commission's  concerns  in  the  State  of  Play 
meeting, decide to offer commitments, they need to convince the Commission that this offer is 
serious  and  credible7.  For  this  purpose,  the  parties  should outline the main  elements of the - at 
this stage informal - commitment proposal. This may, in practice, happen by submitting a "term 
sheet" describing the main elements of the commitments, but sometimes already with a first draft 
of a commitment text.  

(23)  Once the case team is convinced that the commitments informally proposed by the undertaking 
may  address  the  competition  concerns  and  that  the  undertaking  is  seriously  interested  in 
submitting adequate formal commitments, it should propose to draft a Preliminary Assessment. 

3.2.  Preparation of Preliminary Assessment 

(24)  Article  9  of  Council  Regulation  1/2003  provides  that  the  Commission  must  have  informed  the 
undertakings of the competition concerns by a document which is called Preliminary Assessment 
(a  Statement  of  Objections  may  also  constitute  a  Preliminary  Assessment,  as  explained  further 
below).  The  Preliminary  Assessment  summarises  the  main  facts  of  the  case  and  identifies  the 
competition concerns that would warrant a decision requiring that the infringement is brought to 
an end. 

(25)  The Preliminary Assessment serves as an important basis for the parties to formulate appropriate 
commitments  fully  addressing  the  competition  concerns  expressed  by  the  Commission  or  to 
define previously discussed commitments better8. 

(26)  The Preliminary Assessment is a Commission act adopted by the Competition Commissioner by 
way  of  empowerment.  It  does  not  require  the  same  length  and  level  of  detail  as  a  Statement  of 
Objections9. The length of a Preliminary Assessment may vary from case to case10, depending, for 
example, on the complexity of the case or the Commission's interest to set a precedent case in the 
later commitment decision (which will, in turn, be based on the Preliminary Assessment).  

(27)  The case team should explore whether the undertaking under investigation may be ready to waive 
its rights to receive the text of the Preliminary Assessment (and the final commitment decision) in 
the authentic language and to opt for another language ("language waiver"). Such language waiver 
should be given in writing and should be signed by a representative (or lawyer with due power of 
attorney) of every addressee.  

7 

8 

9  

10  

See  the  Best  Practices  Notice,  at  paragraph  121:  "Once  the  Commission  is  convinced  of  the  undertakings' 
genuine  willingness  to  propose  commitments  which  will  effectively  address  the  competition  concerns,  a 
Preliminary Assessment will be issued". 

As  explained  in  the  previous  section,  the  undertaking  will  usually  have  already  submitted  a  first  outline  of  the 
commitments it intends to submit.  

Article 27 (1) of Council Regulation 1/2003 requires a Statement of Objections only for proceedings pursuant to 
Article 7 and 8 of Council Regulation 1/2003. 

In previous decisions the lengths of the Preliminary Assessment varied from around 10 to around 70 pages.  

 
                                                 
Antitrust Manual of Procedures 

(28) 

In  case  a  Statement  of  Objections  was  already  issued  in  a  case,  no  additional  Preliminary 
Assessment  needs  to  be  sent,  because  the  Statement  of  Objections  can  also  constitute  a 
Preliminary  Assessment.  This  is  because  a  Statement  of  Objections  contains  a  summary  of  the 
main facts as well as an assessment of the competition concerns identified.  

(29)  Taking  into  account  that  the  Preliminary  Assessment  is  a  Commission  act  adopted  by 
empowerment  procedure,  it  requires  consultation  of  the  Legal  Service  (10  working  days  for 
comments and at least 15 working days when the document exceeds 20 pages, save in "genuine 
emergencies"). 

(30) 

In addition, DG Competition  must inform  the Commission  department(s) primarily responsible 
for the product/service/policy area in issue and give them the opportunity to state their views11 
(10 working days for comments and at least 15 days when the document exceeds 20 pages, save in 
"genuine emergencies"). 

3.3.  Approval of the Preliminary Assessment 

(31)  The  approval  of  the  Preliminary  Assessment  constitutes  a  Commission  act  adopted  by 

empowerment by the Commissioner for competition. 

(32)  The Commissioner therefore needs to give his/her approval to adopt the Preliminary Assessment 

and to engage in formal commitment discussions with the parties. 

(33)  The note seeking approval of the Preliminary Assessment should not only describe the previous 
informal  commitment  discussions  and  the  commitments  offered  (informally)  by  the  parties,  but 
also specify the main elements required to meet the competition problems identified and outline 
which issues are still in discussion with the parties. 

(34) 

If proceedings have not been initiated before, the adoption of the Preliminary Assessment should 
be combined with the initiation of the proceedings.   

(35)  After receiving the Preliminary Assessment, the undertaking under investigation has – in contrast 
to an Article 7 decision - no right to request a hearing pursuant to Article 12. Neither Regulation 
1/2003 nor  Regulation  773/2004 expressly provide for access to file in the context of Article 9 
proceedings.  

(36) 

For complainants the issuing of a Preliminary Assessment does not trigger any special procedural 
rights either. The complainant has no right to a hearing or to receive a (non-confidential) copy of 
the  Preliminary  Assessment  or  to  have  access  to  information.  The  complainant  is  in  a  similar 
position to any other undertaking which is informed when the public market test takes place. The 
sole  purpose  of  the  Preliminary  Assessment  is  to  inform  the  undertaking  under  investigation 
formally of the competition concerns. It will not be published and not be made available to third 
parties. 

(37)  However,  it  may  –  in  specific  cases  -  be  advisable  to  inform  the  complainant  about  the  main 
content  of  the  Preliminary  Assessment.  The  case  team  could  in  particular  make  use  of  this 
possibility  if  it  can  be  expected  that  the  complainant  is  able  to  provide  important  input  for  the 
subsequent  discussions  on  the  exact  scope  of  the  commitments.  This  advantage  needs  to  be 
balanced  against  the  risk  that  the  commitment  discussions  are  undermined  by  providing  this 
information;  third  parties  should  also  not  be  discriminated  by  providing  information  on  the 
content of the Preliminary Assessment beyond what is summarised in the market test. 

11  

Empowerment decision, PV(2004)1655, Article 2(1). 

                                                 
Page 7/13 – Commitment Decisions 

(38) 

Prior to the issuing of the Preliminary Assessment, the parties will be offered an additional State 
of Play meeting. 

3.4.  Submission of a commitment text for the 

market test  

3.4.1.  Procedural framework / format of commitment decisions  

(39)  After  receiving  the  Preliminary  Assessment,  the  undertaking  under  investigation  will  have 
normally one month to react and to submit a text of a commitment proposal that can be market 
tested.  

(40)  Although  there  is  no  specific  standard  text  for  antitrust  commitments,  the  Standard  Model  for 
Divestiture Commitments, originally developed for merger remedies, can be an appropriate “base 
text” for antitrust commitments. Even where no pure divestiture commitment (such as licences or 
other  non-structural/behavioural  remedies)  is  proposed,  the  model  text  may  still  constitute  a 
useful starting point. However, certain amendments to the merger model text are necessary to take 
into account that antitrust commitments are based on Art. 9 of Regulation 1/2003. Examples of 
previous  antitrust  commitments  may  provide  useful  guidance  on  which  formulation  may  be 
appropriate in the individual case. Proposals for changes to the model put forward by the parties 
should, however, be carefully verified and only accepted if appropriate in the individual case.    

(41)  The  undertaking  may  submit  a  written  reply  to  the  Preliminary  Assessment.    Unless  the  reply 
contains new evidence that materially affects the Commission position set out in the Preliminary 
Assessment,  there  will  be  no  further  discussion  or  meeting  on  the  reply  to  the  Preliminary 
Assessment. The reply will, however, be taken into account when drafting the final commitment 
decision (e.g. concerning corrections of factual errors etc.).  

(42) 

It should be discussed with the parties whether they agree to submit the commitment proposal in 
English, since this will not only facilitate the market test but also avoid internal delays which may 
be caused by the need for internal translations.  

(43)  As  the  undertakings  may  try  to  limit  the  offered  commitments  as  much  as  possible,  the 
Commission may ask the company to modify the text before a market test. The discussions at this 
stage  are  crucial  for  the  success  of  the  remedies.  Although  the  commitments  are  voluntarily 
submitted  by  the  parties,  the  Commission  can  make  proposals  during  discussions  on  how  to 
modify certain elements of the text, and may even provide concrete drafting proposals on specific 
issues. It is up to the parties to decide whether to accept such proposals. 

(44)  The  parties  might  want  to  discuss  the  Commission’s  assessment.  If  the  case  team  considers  it 
necessary  to  drop  certain  concerns  expressed  in  the  Preliminary  Assessment  and  limit  the 
commitment  discussions  to  the  remaining  concerns  it  should  solicit  the  approval  of  senior 
management within DG Competition before continuing the discussion with the parties. 

3.4.2.  The content of the commitments 

(45)  The  commitments  should  address  the  competition concerns identified. Commitments which are 
not  related  to  the  concerns  or  do  not  meet  them will not be accepted by  the Commission. The 
parties can offer commitments of a behavioural (e.g. a supply obligation) or structural nature (e.g. 

 
Antitrust Manual of Procedures 

divestiture of a part of a company)12. Behavioural commitments usually have the disadvantage that 
they require long-term monitoring. 

(46) 

In principle, the commitments offered should be proportionate, i.e. not go beyond what is needed 
to remedy the competition concern. However, the ECJ has clarified that the proportionality test is 
less  strict  than  in  case  of  an  imposed  remedy  under  Article  713.  This  is  because  Article  7  and 
Article  9  have  different  objectives  and  use  different  mechanisms14,  and  in  addition,  because 
commitments are submitted voluntarily by the parties and not imposed by the Commission.15 The 
Commission  should  however  verify  that:  (a)  the  commitments  are  sufficient  to  address  its 
competition concerns; and (b) the undertakings have not offered less onerous commitments that 
also address the concerns adequately. 

(47)  Moreover, it is essential for the implementation that the commitments are unambiguous and self-
executing. This means that the implementation must not be dependent on the will of a third party. 
Moreover, the implementation process should be designed in such a way that the company has an 
incentive to properly implement the commitments. The model text for divestiture commitments 
for  mergers  as  published  on  the  DG  Competition's  website16  which  contains  an  in-built 
mechanism  to  ensure  such  incentive17  should  be  followed  as  closely  as  possible  as  far  as  it  is 
applicable for the commitments offered in a specific antitrust case.  Contradictory or incomplete 
commitments  may  result  in  a  failure  to  remove  the  competition  concerns  and  can  hardly  be 
corrected at a later stage. Pursuant to Article 9(2)(b) of Regulation 1/2003, the Commission may 
re-open proceedings if an undertaking acts contrary to the commitments. 

(48) 

(49) 

If  need  be,  a  trustee  can  be  appointed  to  assist  the  Commission  in  their  implementation 
trustee)18.  Furthermore,  when  commitments  cannot  be 
(monitoring  and/or  divestiture 
implemented without the agreement of third parties (e.g. pre-emption right of an undertaking that 
would not be a suitable buyer under the commitments), the undertaking should submit evidence 
that such agreement can be achieved at the latest when the commitments are formally submitted. 

It is of particular importance to keep sufficient records on the discussions, taking into account in 
particular that the enforcement of the commitments at a later stage might require an interpretation 
of  the  commitment  text,  for  which  such  records  can  be  useful.  This  is  all  the  more  true  for 
commitments which are of a behavioural nature, as they may run for many years and might require 
long-term monitoring. 

(50)  The final commitments should be signed by the undertaking concerned. 

12  

13  

14  

15  

16  

17  

18  

The  boundaries  between  both  commitment  types  are  not  always  entirely  clear.  See  e.g.  Commission  Notice  on 
remedies acceptable under the Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 
802/2004, Official Journal C 267, 22.10.2008, p. 1-27, para. 22 et seq. 

Case C-441/07 P Commission v Alrosa. 

Case C-441/07 P Commission v Alrosa, para. 37-38 and 46-47. 

See  also  Advocate  General  Kokott,  Opinion  of  17  September  2009  in  Case  C-441/07P  Commission  v  Alrosa, 
paragraph 51: "voluntary commitments". 

http://ec.europa.eu/competition/mergers/legislation/commitments.pdf  

The  model  text  foresees  a  certain  deadline  for  the  divestiture  procedure  and  ultimately  gives  to  a  trustee  the 
right to divest the respective business at no minimum price if the company does not comply with this deadline. It 
is, therefore, in the interest of the company to divest the business in a timely manner. No specific action by the 
Commission  is  needed  to  accomplish  the  divestiture  process  in  case  the  company  fails  to  do  so  since  the 
necessary steps are already foreseen in the Commitments text. 

For further details see the Commission's model text for (merger) trustee mandates: 
http://ec.europa.eu/competition/mergers/legislation/trustee_mandate.pdf 

                                                 
 
Page 9/13 – Commitment Decisions 

3.4.3.  Duration of the commitments – review clause 

(51)  The  duration  of  commitments  may  be  limited  in  time.  Article  9  of  Council  Regulation  1/2003 
refers  to  a  “specified  period”.  Commitments  should  provide  that  a  lasting  improvement  of  the 
market  structure  is  achieved  within  a  foreseeable  timeframe.  This  can  vary  significantly  from 
market  to  market,  depending  on  the  reactivity  of  the  markets  or  the  investments  needed  for 
certain improvements. Again, the principle of proportionality should be taken into account, i.e. the 
seriousness of the infringement and the need to remedy the adverse effects appropriately.  

(52)  Review  clauses,  including  clauses  extending  deadlines  of  the  commitments  should  normally  be 
limited to exceptional circumstances, as provided in the model text for divestiture commitments19. 
Circumstances which are likely or at least possible to occur during the time of the implementation 
of the commitment should normally be addressed in the commitments themselves and not be left 
to the review clause. It is worth noting that, in an antitrust case, a review clause as foreseen in the 
model  text  would  be  in  addition  and  without  prejudice  to  the  possibility  of  Article  9(2)(a)  of 
Regulation 1/2003 according to which the addressee can request a re-opening of the proceedings 
where a material change in the facts has occurred.  

3.4.4.  Approval to market test the commitments 

(53)  Once the case team considers the commitments offered are adequate to address the competition 
concerns, it should draft a note to the Competition Commissioner to ask for his/her approval to 
market  test  the  commitments  pursuant  to  Article  27(4)  of  Regulation  1/2003.  The  note  should 
explain why the commitments are considered sufficient and also if any competition concerns are 
not  addressed  and  why  (e.g.  because  the  case  team  had  suggested  to  drop  these  concerns).  The 
note should also draw attention to any areas where doubts remain as to the appropriateness of the 
commitments that the market test is envisaged to clarify. 

(54)  The Commission is also entitled to informally "market test" / discuss the offered commitments 

with specific third parties prior to publishing a notice pursuant to Article 27(4). 

(55) 

If the case team is not convinced that the commitments offered prima facie address the competition 
concerns  identified,  it  should  not  proceed  with  the  preparation  of  the  market  test  but  discuss 
internally the procedure further. 

3.5.  The market test  

3.5.1.  Form of the Market Test 

(56)  The Commission is obliged to publish a concise summary of the case and the main content of the 
commitment proposal and give third parties a chance to submit their observations before it can 
adopt an Article 9 decision.20 This is the so-called "market test."  

(57)  To this end a “market test notice” needs to be published in the Official Journal containing a concise 
summary  of  the  case  (suspected  behaviour  and  suspected  infringement  of  competition  law)  and 

19  

20  

See  standard  clause  34  of  the  Commissions  model  text  for  divestiture  commitments,  paragraph  34: 
http://ec.europa.eu/competition/mergers/legislation/commitments.pdf  

Article 27 (4) of Council Regulation 1/2003. 

 
                                                 
Antitrust Manual of Procedures 

the  main  content  of  the  commitment  proposal,  respecting  the  obligations  of  professional 
secrecy21.  The  summary  should  allow  third  parties  to  understand  the  essential  elements  of  the 
commitments  and  how  they  are  intended  to  meet  the  competition  concerns  identified  by  the 
Commission. 

(58)  The market test notice usually invites interested third parties to “submit their observations” on the 
proposed commitments. The case team is, however, free to add specific questions should it wish 
to verify certain contentious issues. 

(59)  The full text of the commitment proposal in its non-confidential version is to be published on the 
website of DG Competition. The undertaking submitting the commitment should be encouraged 
to also provide DG Competition with a translation of the full text of the commitments in English 
–  otherwise  it  is  published  only  in  the  authentic  language.  If  provided  in  a  timely  manner,  such 
translation  will,  for  convenience,  be  published  together  with  the  version  in  the  authentic 
language22.  

(60) 

(61) 

In order to enhance transparency of the process and to inform third parties of the market test, the 
Commission will usually also publish a press release, announcing the market test and setting out 
the key issues of the case and the proposed commitments.  

If  the  case  is  based  on  a  complaint,  the  market  test  should  be  sent  to  the  complainant.  The 
Commission  is  also  entitled  to  send  the  publication  in  the  OJ  directly  to  other  interested  third 
parties known to be potentially concerned by the outcome of the case (e.g. third parties admitted 
to  the  procedure,  consumer  associations  etc.)  and  explicitly  asking  for  their  comments.  This 
ensures full involvement of those undertakings most concerned.  

(62)  The case team might also decide to discuss the draft commitments orally with market participants 
(if appropriate also in triangular meetings). This may be done to clarify certain answers. In such a 
case the respondents should either be asked to summarise their comments in written form, or the 
case team should draft minutes which it can then send for approval23.  

(63) 

In  the  market  test  the  Commission  needs  to  invite  interested  third  parties  to  submit  their 
observations within a fixed time-limit which may not be less than one month.24  

3.5.2. 

Information and further discussion 

(64)  The undertakings offering commitments should be informed of the results of the market test. This 
can either be done orally or in writing. The identity of third parties may not be disclosed to ensure 
that they are not subject to retaliation.  

(65) 

In  addition,  after  receipt  of  the  replies  to  the  market  test,  a  State  of  Play  meeting  should  be 
organised with the parties. 

(66)  The obligation to carry out a market test should not be misunderstood as requiring the approval 
of the market for the commitments. The market test is not an opinion poll which determines the 
fate  of  the  remedies.  The  Commission  can  take  a  commitment  decision  even  in  cases  in  which 
participants in the market test requested to reject the commitment offer. On the other hand, the 

21  

22  

23  

24  

Article 28 of Regulation 1/2003. 

In case of differences between the text in the authentic language and the translation, the version in the authentic 
language prevails. 

If the companies do not return the signed version of the minutes, the case–team should make a note to the file 
explaining why (e.g. the company does not want to leave any traces in the market test for fear of retaliation). 

Article 27(4) of Regulation 1/2003. 

                                                 
Page 11/13 – Commitment Decisions 

market  test  often  provides  the  Commission  with  useful  indications  on  how  the  commitments 
could be improved.  

(67)  Depending on the case, significant or less significant modifications may become necessary to the 
proposed  commitment  text  after  the  market  test.  These  changes  should  be  discussed  with  the 
parties.  Smaller  (“technical”)  changes  to  the  commitment  text  do  not  require  new  procedural 
steps. In particular, no new market test is usually required in case of revised commitments, unless 
the revision of the commitments is substantial. A change is only substantial if the very nature or 
scope  of  the  commitments  changes.  If,  for  instance,  the  parties  originally  offered  to  reduce  the 
duration  of  non-compete  obligations  in  contracts  with  third  parties  from  5  to  2  years  and 
following the market test such duration is further reduced to 1 year, there is no need to repeat the 
market test. 

3.5.3.  Complainants 

(68) 

In cases of a formal complaint, a letter pursuant to Article 7(1) of Regulation 773/2004 has to be 
issued at this stage and, in any event, before the adoption of the Article 9 decision, informing the 
complainant  that  the  Commission  has  obtained  what  it  considers  adequate  commitments  and 
therefore considers that if the commitments were accepted by the Commission, there would be no 
longer grounds for the Commission to pursue the case.  

3.5.4. 

Internal approvals 

(69)  The case team should solicit approval within DG Competition on the issue of whether to proceed 
with  a  commitment  decision.  After  agreement,  the  case  team  should  draft  a  note  to  the 
Commissioner  informing  her/him  of  the  results  of  the  market  test  and  explicitly  asking  for 
approval to prepare the commitment decision and to consult the Advisory Committee, after the 
Legal Service's approval has been received. 

3.6.  Adoption of the Decision  

3.6.1.  Content of the commitment decision 

(70)  The case team drafts a commitment decision on the basis of the Preliminary Assessment25. The 
commitment  decision  should  contain  a  summary  of  the  facts  of  the  case  and  the  Commission’s 
legal  assessment.  In  particular,  the  Commission  needs  to  explain  in  its  decision  that  it  had 
identified competition concerns without going so far as to find an infringement26. The text should 
therefore  systematically  use  the  conditional  form  (“X  may  have  infringed...”).  The  decision  should 
also describe the commitments submitted by the undertaking(s) and explain why the commitments 
resolve the identified competition concerns in a proportionate manner.  

25  

26  

In principle, no substantially new elements (facts or theories of harm) should be introduced in the decision that 
were not mentioned in the Preliminary Assessment. 

This is due to the fact that recital 13 of Regulation 1/2003 sets out that “commitment decisions should find that 
there are no longer grounds for action by the Commission without concluding whether or not there has been or 
still is an infringement”. The reason for this is that the Commission is not in a position to make formal findings of 
infringement and non-infringement in a decision that is not based on a complete investigation and does not set 
out in detail the factual background and the legal and economic analysis underlying such conclusions. 

 
                                                 
Antitrust Manual of Procedures 

(71) 

In cases where the Commission may initially have intended to impose a fine, a brief statement on 
why this is no longer appropriate may be useful.  

(72)  A  commitment  decision  will  usually  be  shorter  than  a  decision  under  Article  7  of  Regulation 
1/2003.  However,  the  actual  length  of  the  commitment  decision  may  vary  from  case  to  case, 
depending,  for  example,  on  the  complexity  of  the  case  or  the  Commission's  interest  to  provide 
information on its assessment of certain anticompetitive practices. 

3.6.2.  Adoption process 

(73)  Commitment decisions are adopted by the College. The Advisory Committee is consulted on draft 

commitment decisions prior to adopting them.  

(74)  The adoption process for an Article 9 decision is similar to the one for an Article 7 prohibition 
decision (see module). It is complex and involves manifold procedural steps (and signatures). The 
Legal Service has to be consulted for all procedural steps. The adoption process should therefore 
be  planned  carefully,  taking  account  of  all  relevant  minimum  periods  for  the  different 
consultations (other Commission services, Member States' competition authorities, Cabinets, etc.).  

(75) 

In  the  summary  of  the  case  which  is  prepared  for  the  Advisory  Committee,  Member  States' 
competition authorities should also be informed of the results of the market test.  

3.6.3.  Complaint cases: Information of Complainant 

(76) 

In cases where a complaint was lodged to the Commission against the agreement or practice for 
which the undertakings have offered commitments, the Commission needs to adopt two different 
decisions  (unless  the  complaint  is  withdrawn):  one  rejecting  the  complaint  (Article  7(2)  Reg. 
773/2004) and one declaring the commitments binding (Article 9 Reg. 1/2003). This is due to the 
fact that the commitment decision does not find an infringement as requested in the complaint. 

(77)  The fact that two decisions have to be taken requires some vigilance as to the timing. In particular 
it  should  be  avoided  that  the  commitment  decision  is  already  adopted  and  the  Commission  is 
confronted with new arguments in the rejection procedure requiring a reassessment of the case. It 
is therefore necessary that following the market test, the Commission issues a letter pursuant to 
Article 7(1) of the Commission Implementing Regulation 773/2004 (see para.(68) above).  

(78) 

If  the  complainant  does  not  make  any  comments,  the  complaint  is  deemed  to  have  been 
withdrawn pursuant to Article 7(3) of the Commission Implementing Regulation 773/2004. If the 
complainant does make comments, but these comments are not so substantial that it is necessary 
to reassess the commitments27, the Article 9 procedure can be continued without any changes to 
the  commitments  and  the  complaint  will  have  to  be  rejected  pursuant  to  Article  7(2)  of  the 
Commission Implementing Regulation 773/2004. 

(79)  The rejection decision should follow soon after the Article 9 decision outlining that, following the 
commitments,  there  are  no  longer  grounds  for  the  Commission  to  pursue  the  case.  It  is 
recommended to annex a non-confidential version of the commitment decision. If the complaint 
raised  more  issues  than  addressed  in  the  commitment  decision,  adequate  reasoning  needs  to  be 
added in the Article 7(2) rejection decision. 

27  

This is unlikely given the fact that the complainant has been invited to submit comments during the market test. 

                                                 
Page 13/13 – Commitment Decisions 

3.6.4.  Closure of the file 

(80)  The  file  should  be  closed  as  soon  as  the  Decision  has  been  sent  out  for  the  parties.  See  the 

relevant Module on Administrative closure of the file. 

3.6.5.  Publication of the Decision 

(81)  Commitment decisions need to be published according to Article 30 (1) of Regulation 1/2003.   

3.7.  Implementation of the Commitments  

(82)  The  work  on  a  case  involving  a  commitment  decision  is  not  over  with  the  adoption  of  the 
commitment  decision.  From  a  competition  point  of  view,  the  successful  implementation  of  the 
commitment  after  the  adoption  of  the  decision  is  crucial  for  the  ultimate  success  of  the 
Commission’s intervention. For this reason, careful monitoring of the implementation process is 
essential.   

(83)  The exact monitoring requirements will depend on the nature of the commitments. In most cases 
and, in particular, when divestiture remedies are concerned, the commitments should foresee that 
a trustee will be suggested by the addressee of the Article 9 decision shortly after the adoption of 
the proposed decision. The Trustee should be independent of the addressee of the decision and 
qualified for the monitoring task. After approval by the Commission, the trustee (and its team) can 
be  appointed  by  the  addressee  of  the  decision.  It  will  monitor  in  detail  the  different  steps  of 
implementation of the commitments and regularly report on this to the Commission.  

(84) 

In cases of divestiture commitments, the case team in particular needs to verify that the purchaser 
fulfils all the criteria set out in the commitments. The case-team has to supervise this process and 
stay in regular contact with the trustee team in order to be able to avoid or address any potential 
problems  which  could  render  the  commitments  less  effective  than  foreseen.  Reference  is  made 
again to the model texts for divestiture commitments for mergers and for trustee mandates28. 

28  http://ec.europa.eu/competition/mergers/legislation/commitments.pdf.  

 
                                                 
 
Page 1/5 – Interim Measures 

17 Interim Measures 

1. 

Introduction 

2. 

Ex Officio Action 

3. 

Conditions 

3.1.  Prima facie case 

3.2.  Urgency 

4. 

Timescale for granting of interim measures 

5. 

Application of interim measures 

2 

2 

3 

4 

4 

5 

5 

 
Antitrust Manual of Procedures 

1.  Introduction 

(1) 

Regulation 17 did not directly address the issue of whether the Commission had power to adopt 
interim measures in relation to a suspected infringement of Article 101 and 102. However, in its 
1980 order in the Camera Care case, the Court of Justice held that Article 3(1) of that regulation 
conferred on the Commission the power to take interim measures1. 

(2) 

The Court held that there might be a need to adopt interim measures: 

"when the practice of certain undertakings in competition matters has the effect of injuring the 
interests  of  some  Member  States,  causing  damage  to  other  undertakings,  or  of  unacceptably 
jeopardising the Community's competition policy". 

(3) 

Article  8(1)  of  Reg.  1/2003  explicitly  empowers  the  Commission  to  adopt  interim  measures.  It 
provides that:  

"In  cases  of  urgency  due  to  the  risk  of  serious  and  irreparable  damage  to  competition,  the 
Commission, acting on its own initiative may by decision, on the basis of a prima facie finding 
of infringement, order interim measures". 

(4) 

In addition, the Commission has been expressly granted the power to order interim measures by 
specific regulation, such as Regulation (EC) 659/19992, on the application of rules on State aids 
control, and Regulation (EEC) 3975/87 concerning the application of competition rules to the air 
transport sector3. 

2.  Ex Officio Action 

(5) 

Article  8(1)  of  Regulation  1/2003  explicitly  confirms that  the Commission  may issue an  interim 
order ‘acting on its own initiative’. 

(6)  While it can be expected that undertakings being harmed by anti-competitive conduct will request 
the  Commission  to  impose  interim  orders,  Regulation  1/2003  does  not  formally  acknowledge 
undertakings’  right  to  make  such  requests.  Complainants  or  third  parties  who  can  demonstrate 
sufficient interest to be heard may encourage the Commission to adopt such measures. However, 
under  Article  8(1)  of  Regulation  1/2003,  the  Commission  acts  ex  officio.  This  means  that 

1  

2  

3  

Case 792/79 R Camera Care [1980] ECR 119. 

Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 
93  of  the  EC  Treaty  (OJ  L  83/1,  27.  3.  1999),  recital  12:  "Whereas  in  cases  of  unlawful  aid,  the  Commission 
should  have  the  right  to  obtain  all  necessary  information  enabling  it  to  take  a  decision  and  to  restore 
immediately,  where  appropriate,  undistorted  competition;  whereas  it  is  therefore  appropriate  to  enable  the 
Commission  to  adopt  interim  measures  addressed  to  the  Member  State  concerned;  whereas  the  interim 
measures  may  take  the  form  of  information  injunctions,  suspension  injunctions  and  recovery  injunctions; 
whereas  the  Commission  should  be  enabled  in  the  event  of  non-compliance  with  an  information  injunction,  to 
decide  on  the  basis  of  the  information  available  and,  in  the  event  of  non-compliance  with  suspension  and 
recovery  injunctions,  to  refer  the  matter  to  the  Court  of  Justice  direct,  in  accordance  with  the  second 
subparagraph of Article 93(2) of the Treaty". 

Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the 
rules on competition to undertakings in the air transport sector (OJ L 374, 31.12.1987, p. 1–8), as amended by 
Council  Regulation  (EEC)  No  1284/91  of  14  May  1991(OJ  L  122/2,  17.5.1991),  Article  4a  "Interim  measures 
against  anticompetitive  practices":  "Without  prejudice  to  the  application  of  Article  4(1),  where  the  Commission 
has clear prima facie evidence that certain practices are contrary to Article 85 or 86 of the Treaty and have the 
object or effect of directly jeopardizing the existence of an air service, and where recourse to normal procedures 
may not be sufficient to protect the air service or the airline company concerned, it may by decision take interim 
measures  to  ensure  that  these  practices  are  not  implemented  or  cease  to  be  implemented  and  give  such 
instructions  as  are  necessary  to  prevent  the  occurrence  of  these  practices  until  a  decision  under  Article  4(1)  is 
taken." 

                                                 
Page 3/5 – Interim Measures 

complainants do not have a right to ask for interim measures under Regulation 1/2003, and  the 
Commission  is  therefore  no  longer4  obliged  to  decide  on  any  (informal)  request  for  interim 
measures and, if necessary, to reject it by decision. However, the Commission's decision to adopt 
interim measures is subject to appeal before the EU Courts. 

(7) 

Complainants  can  on  the  other  hand  seek  interim  measures  before  national  courts5  pursuant  to 
national procedural rules. 

3.  Conditions 

(8) 

According  to  case  law6  previous  to  Regulation  1/2003,  interim  measures  could  only  be  granted 
provided the following conditions were fulfilled:  

–  the impugned practices had to be prima facie breaches of the EU competition rules that could be 

sanctioned by a final decision of the Commission; and, secondly, 

–  it was likely that serious and irreparable damage to the party applying for the adoption of interim 
measures, or intolerable damage to the public interest7 would be caused ("proven urgency")8. 

(9) 

According  to  Regulation  1/2003,  however,  the  objective  of  Articles  101  and  102  TFEU  is  the 
protection  of  competition  on  the  market9,  and  interim  measures  are  only  to  be  granted  in  the 
public  interest,  not  in  the  interest  of  individual  undertakings.  Potential  damage  to  an  individual 
undertaking is therefore only to be considered where it coincides with damage to competition, in 
which case the interests of an undertaking may be protected by implication. 

(10) 

In  Camera  Care10,  the  ECJ  indicated  that  the  Commission  can  order  interim  measures  where  the 
following conditions are satisfied: 

–  the measure is ‘indispensable’ for the effectiveness of any future decision bringing the conduct to 

an end; 

–  the measure must be ‘urgent in order to avoid a situation likely to cause serious and irreparable 

damage to the party seeking their adoption, or which is intolerable for the public interest’; 

–  it must be of a ‘temporary and conservatory nature and restricted to what is required in the given 

situation’11;  

–  it must be adopted through a decision that is subject to judicial review by the EU Court. 

4  

5  

6  

7  

8  

9  

10  

11  

Under  Regulation  No.  17,  according  to  the  case  law  parties  had  a  right  to  request  interim  measures,  and  the 
Commission was obliged to adopt a formal appealable decision on such a request. 

See paragraph 16 of the Commission Notice on the handling of complaints by the Commission under Articles 81 
and 82 of the EC Treaty (2004/C 101/05). 

Cases T-184/01 R IMS Health [2001] ECR II-3193 and 792/79 R Camera Care [1980] ECR 119. 

As held in Camera Care, the concept of 'public interest' related to the preservation of the EU competition policy 
objectives, as well as the interest of Member States and their citizens. 

Case T-184/01 R IMS Health [2001] ECR II-3193, paragraph 53. 

See Recital 9 of Regulation 1/2003. 

Case C-792/79 R Camera Care, [1980] ECR 119.  

The measures must be kept within the limits and not exceed what is strictly necessary to remedy a situation. The 
measures must aim at safeguarding the interests of the applicant or the public interest. The measures must be 
temporary or interim and can only be valid until a decision is adopted on the substance or until a higher instance 
annuls them. 

                                                 
Antitrust Manual of Procedures 

(11) 

In La Cinq12, the General Court recalled the conditions which must be fulfilled in order to grant 
interim measures. The General Court annulled the decision of the Commission that had rejected 
the  application  for  interim  measures  made  by  La  Cinq,  and  set  forth  the  criteria  to  be  applied 
when considering an application for interim measures. 

3.1.  Prima facie case 

(12)  The practices focused on by the action for interim measures must prima facie be likely to constitute 

an infringement of competition rules.  

(13)  According to the General Court in La Cinq13, and contrary to the Commission's assumption in its 
decision in that case that the infringement in question had to be “clear and flagrant”, the General 
Court only required the probability of a prima facie infringement. 

3.2.  Urgency 

(14)  Regulation 1/2003 provides that interim measures should only be granted in cases of urgency due 

to the risk of serious and irreparable harm to competition.  

(15) 

(16) 

In  order  to  qualify  as  “urgent”,  the  case  must  call  for  immediate  action  on  the  part  of  the 
Commission, in order to avoid either a “serious and irreparable damage” to the party seeking the 
adoption of interim measures, or to avoid a situation that is intolerable for the public interest. 

In order to establish whether “serious” damage may be caused, a case-by-case analysis has to be 
carried out, bearing in mind the particular circumstances of the individual case.  

(17)  The ECJ has stated that damage is deemed to be “irreparable” if it can no longer be remedied by a 
subsequent  decision  during  the  administrative  procedure  before  the  Commission.  Therefore, 
“irreparable”  damage  may  be  deemed  to  exist  even  in  a  scenario  where  the  damage  in  question 
may be repaired by a judgment before either a national or European Court14. Financial loss is not 
regarded as irreparable unless the survival of the undertaking concerned is threatened. But damage 
will  be  regarded  as  irreparable  if  it  leads  to  market  developments  that  will  be  very  difficult  to 
reverse15.  

(18) 

In Port of Roscoff16, following a complaint of the Irish Continental Group (“ICG”) seeking access to 
the port of Roscoff (Brittany) for the purpose of commencing a ferry service between Ireland and 
Brittany in the summer of 1995, the Commission ordered interim measures, obliging CCI Morlaix 
to  take  the  necessary  steps  to  grant  such  access  until  the  end  of  the  summer  season.  The 
Commission  took  into  consideration  the  special  circumstances  involving  the  holiday  period  for 
the provision of these ferry services. 

(19) 

Likewise,  in  Mars/Langnese-Iglo  and  Schoeller  Lebensmittel17,  the  Commission  imposed  interim 
measures  following  a  complaint  by  Mars,  based  on  the  allegation  that  its  access  to  the  German 

12  

13  

14  

15  

16  

17  

Case T-44/90 La Cinq SA v. Commission, [1992] ECR II-1, paragraph 32. 

T-44/90 La Cinq SA, [1992] ECR II-1, paragraphs 60 ff. The Court stated that, "the requirement of a finding of a 
prima  facie  infringement  cannot  be  placed  on  the  same  footing  as  the  requirement  of  certainty  that  a  final 
decision must satisfy" (paragraph 61). 

Ibid, paragraph 80. 

Case T-184/01 R IMS Health [2001] ECR II-3193, paragraphs 121, 128 and 129. 

Irish Continental Group v. CCI Morlaix, IP 1995/05/16. 

Mars / Langnese-Iglo and Schoeller Lebensmittel, Case IV/34.072, OJ 1993 L 183/19. 

                                                 
Page 5/5 – Interim Measures 

market for single-item ice-cream was illegally barred. The urgency18 of this case was mainly related 
to the seasonal nature of the product concerned (ice cream). 

4.  Timescale for granting of interim measures 

(20)  Although in certain cases interim measures have been adopted within a relatively short period of 
time (ten weeks in ECS/AKZO19), the practice of the Commission shows that the average period 
required for granting interim measures may vary to a certain extent, and in the approximate range 
of three to eight months. This can be explained by the procedural requirements which need to 
be fulfilled before adopting a decision taking interim measures (see further below).  

5.  Application of interim measures 

(21)  The  Commission  cannot  take  interim  measures  "without  having  regard  to  the  legitimate  interests  of  the 
undertaking concerned20". In other words, the Commission must respect the right to be heard of the 
prospective addressee of the decision. 

(22) 

In order to adopt interim measures, the Commission must open proceedings pursuant to Article 2 
of Regulation 773/2004. 

(23)  Article 27 of Regulation 1/2003 applies to interim measure cases so the undertaking against which 
interim measures  may be adopted must,  where the  case permits, have the  right  to be heard and 
reply  in  writing  to  the  Commission's  objections.  This  means  that  the  Commission  must  send  a 
statement of objections to the prospective addressee of the interim measures (see also Article 10 
of Regulation No 773/2004). 

(24) 

Furthermore,  under  Article  27  of  Regulation  1/2003,  the  undertaking  has  to  be  granted  an  oral 
hearing  upon  prior  request,  but  in  view  of  the  urgency,  Article  17(2)  of  the  Implementing 
Regulation  773/2004  foresees  shortened  time-limits. Likewise, third parties who show  sufficient 
interest to be heard should also be taken into consideration, and the Advisory Committee will also 
be consulted. 

(25)  Article  8(2)  of  Regulation  1/2003  expressly  stipulates  that  interim  measures  should  apply  "for  a 
specified  period  of  time".  However,  this  does  not  impose  any  absolute  constraint  on  the 
Commission, since unlike the rules governing investigative power in other fields, Article 8(2) also 
provides that interim measures "may be renewed in so far as this is necessary and appropriate". 

(26)  The  Commission  decision  ordering  interim  measures  must  be  reasoned,  and  may  be  appealed 

before the European Courts. 

(27) 

Furthermore,  should  the  undertakings  concerned  fail  to  comply  with  the  Commission  decision 
ordering interim measures, the Commission may be entitled to impose periodic penalty payments. 

18  

19  

20  

In  IMS,  the  President  of  the  General  Court  considered  that  "if  a  risk  of  serious  and  irreparable  harm  exists 
urgency is inevitably simultaneously established" (paragraph 54).  

OJ 1983 L 252/13, [1983] 3 CMLR 694. 

Case C-792/79 R Camera Care, [1980] ECR 119. paragraph 19. 

                                                 
 
Page 1/9 – Decision finding inapplicability 

18 Decision finding inapplicability  

(Article 10 Decision) 

1. 

Introduction 

1.1.  General background 

1.2. 

‘European Union public interest’ justifying intervention 
1.2.1.  The notion of ‘EU public interest’ 

1.3.  Overview of the main procedural steps 

2. 

Administrative Start 

3. 

Initiation of Proceedings 

3.1.  When to initiate the proceeding 

3.2.  Effects 

3.3.  Procedural steps 

4. 

Article 27(4) Publication 

4.1.  Structure and contents 

4.2.  Approval and Publication of the Notice 

4.2.1.  Inquiry on business secrets to the parties 
4.2.2.  Translation 

4.3.  Publication and information 

4.3.1.  Information to the Member States 

4.4.  Follow-up 

5. 

Preliminary Draft Decision 

5.1.  Effects of Article 10 Decisions 

5.2.  Content of Article 10 Decision 

5.3.  Preparation of the preliminary draft Article 10 Decision 

5.3.1.  Addressees 
5.3.2.  Motivation of a decision 
5.3.3.  Transmission to the Hearing Officer 

3 

3 

3 
3 

4 

5 

5 

5 

5 

5 

5 

6 

6 
6 
6 

7 
7 

7 

7 

7 

8 

8 
8 
8 
8 

Antitrust Manual of Procedures 

6. 

Procedure for Adoption of a Decision 

6.1.  Consultation of the Advisory Committee 

6.2.  Adoption of the decision by the Commission 

6.3.  Notification to addressees and transmission of copies to competition 

authorities of Member States 

7. 

Publication of the Decision 

8 

9 

9 

9 

9 

 
Page 3/9 – Decision finding inapplicability 

1.  Introduction 

1.1.  General background 

(1) 

(2) 

(3) 

(4) 

A declaratory decision finding inapplicability of the prohibitions laid down in Articles 101 or 102 
TFEU can be proposed in exceptional cases where a Commission decision is needed, on a specific 
issue, in order to avoid or solve a problem of coherence resulting from divergent interpretations 
by  national  courts  in  different  Member  States  or  by  members  of  the  European  Competition 
Network  (ECN).  Such  circumstances  can  justify  allocating  the  Commission’s  resources  to  the 
preparation of this type of “positive” decision.  

The  Commission  has  exclusive  competence  and,  within  the  limits  set  out  in  Article  10  of 
Regulation  1/2003  (Article  10  Decision)  as  interpreted  in  the  light  of  Recital  14,  substantial 
discretion to take this type of decisions.  

1.2.  ‘European Union public interest’ justifying 

intervention 

According to its terms, Article 10 can be applied where “the Community [i.e., European Union1] 
public interest relating to the application of Articles 81 and 82 of the Treaty [i.e. Articles 101 and 
102  TFEU]”  so  requires.  The  objective  of  competition  policy  is  to  benefit  consumers  and  the 
economy  as  a  whole,  in  the  framework  of  the  internal  market.  The  notion  ‘Community  public 
interest’  in  Article  10  refers  to  the  fundamental  commitment  of  the  European  Union  to  a 
system of undistorted competition as a common public goal2. 

The  notion  ‘EU  public  interest’  is  strictly  linked  to  the  implementation  of  Articles  101  and  102 
TFEU.  It  follows  that  other  public  policy  considerations  (e.g.  industrial  interests)  cannot  be 
invoked to establish that there is ‘EU public interest’ in the sense of Article 10.  

(5)  Moreover,  Article  10  decisions  are  not  intended  to  replace  negative  clearance  or  exemption 
decisions  under  the  previous  enforcement  system.  Neither  can  they  be  legally  “applied  for”  by 
undertakings nor should they be envisaged as a reaction to such requests. It is important to note 
that under the legal exception system, undertakings have the primary responsibility to assess the 
compatibility  of  their  agreements  and  practices  with  EU  competition  rules.  Thus,  the  risk  of 
having to defend their case before a national court is in principle the same for all undertakings. 
Therefore, the existence of that responsibility/risk in itself cannot be invoked as a valid reason for 
assuming a problem of consistent application of EU competition law possibly giving  rise to the 
adoption of an Article 10 decision.  

(6) 

(1) 

1  

2  

A simple letter will usually suffice as reply, indicating that the Commission does not issue Article 
10 decisions upon request. 

1.2.1.  The notion of ‘EU public interest’ 

The term ‘public’ included in the notion of ‘EU public interest’ has been introduced to underline 
the  public  policy  dimension  and  discretionary  nature  of  the  Commission’s  intervention  on  the 

Terminology according to the Treaty of Lisbon. 

See Commission Staff Working Paper SEC(2001) 1828 “The notion of 'Community public interest' in Article 10” 
of 13.11.2001, p.5, section II, paragraph 11. This notion should be clearly distinguished from the (lack of) “EU 
interest” concept developed in connection with the Automec case law and governing the rejection of complaints.  

                                                 
Antitrust Manual of Procedures 

basis of Article 10 and, conversely, the implicit judgment that individual interests of companies are 
not sufficient to activate the Commission decision-making process in this context. This is further 
confirmed  by  the  fact  that  Article  10  specifies  that  the  Commission  acts  ‘on  its  own  initiative’ 
rather than on application (further stressing the Commission’s discretion). 

The  term  ‘Community’  [i.e.,  European  Union]  constitutes  the  second  important  facet  of  the 
notion  ‘EU  public  interest’.  It  underlines  that  Commission  decisions  pursuant  to  Article  10  are 
designed  to  serve  exclusively  the  common  public  goal  of  undistorted  competition  within  the 
internal  market  and,  accordingly,  the  development  of  EU  competition  policy  to  safeguard  that 
public goal. 

In  accordance  with  the  Union  dimension  of  the  notion  of  ‘EU  public  interest’  and  given  the 
exceptional nature of Article 10 decisions in a legal exception system, the problem of inconsistent 
application  of  the  law  (see  Recital  14)  needs  to  have  a  substantial  impact  on  the  functioning  of 
competition  within  the  internal  market.  Inconsistent  application  of  the  competition  rules,  in 
particular if sustained over a long period of time, may lead to discrimination between economic 
operators and unequal opportunities to compete. The market process itself, which the competition 
rules are designed to protect, may be substantially impeded. 

The risk of divergence in the application of competition rules, entailing a substantial impediment 
to competition within the internal market may, exceptionally, also arise in the context of novel and 
unresolved  questions,  in  so  far  as  they  trigger  parallel  proceedings  before  national  competition 
authorities and courts, so that clarification by way of an Article 10 decision may be appropriate. 
However,  recourse  to  an  Article  10  decision  in  such  a  situation  should  normally  only  be  had  if 
other  means  of  preventing  the  risk  of  divergence,  such  as  an  amicus  curiae  intervention  of  the 
Commission in proceedings before national courts, will likely not be sufficient. 

On the other hand, minor divergences of interpretation of the rules with only a minimal impact 
on the functioning of competition within the internal market should not give rise to the adoption 
of Article 10 decisions. 

(2) 

(3) 

(4) 

(5) 

1.3.  Overview of the main procedural steps 

(6) 

The following section provides an overview of the main procedural steps leading to the adoption 
of an Article 10 decision: 

– 

– 

– 

– 

– 

Starting  the  investigation  on  an  ex-officio  basis  –  no  “request”  required,  but  not  excluded 
either (from a party or an NCA);  

Early information indicating that an Article 10 decision is being considered in a specific case 
and stating the reasons for such consideration;  

Investigation and consultation on priority assessment (see Chapters IV and V respectively); 

Initiation of formal proceedings as laid down by Article 11 (6) Regulation 1/2003 and Article 
2 Regulation 773/2004;  

Publication of a notice according to Article 27 (4) Regulation 1/2003 with a summary of the 
case and proposed course of action;  

Page 5/9 – Decision finding inapplicability 

– 

– 

– 

Consultation of the Advisory Committee pursuant to Article 14 of Regulation 1/2003;  

Adoption  of  a  Commission  decision,  notification  to  addressees,  transmission  of  copies  to 
competition authorities of the Member States; 

Publication in accordance with Article 30 of Regulation 1/2003.   

2.  Administrative Start 

(7) 

The case will normally be opened “ex officio”. In principle, no “request” is necessary, but it is not 
excluded either (from a party or an NCA). 

3.  Initiation of Proceedings 

(8) 

(9) 

(10) 

(11) 

3.1.  When to initiate the proceeding 

Pursuant  to  Article  2  of  Regulation  773/2004,  the  initiation  of  the  proceeding  can  not  be  done 
later than the date on which the Article 27(4) Notice is published. 

If the initiation of proceedings is a reaction to an envisaged decision communicated by a NCA to 
the Commission pursuant to Article 11(4), the proceedings need to be opened without delay. The 
procedural steps to follow in this case are explained in the chapters describing this procedure.  

3.2.  Effects 

It is only after this initiation of proceedings that all other competition authorities are relieved, in 
accordance  with  said  Article  11(6)  and  Articles  35(3)  and  35(4),  of  their  competence  to  apply 
Articles 101 and 102 TFEU to the same case.  

It is also only thereafter that, pursuant to Article 16 of Regulation 1/2003, all national courts must 
avoid giving decisions which would conflict with a decision contemplated by the Commission in 
proceedings it has initiated. 

3.3.  Procedural steps 

(12)  The initiation of the proceedings is immediately notified to the undertakings concerned. Pursuant to 
Article 2(2) Regulation 773/2004, the initiation of proceedings is to be communicated to the parties 
concerned prior to its making public in the appropriate way. 

(13)  The competition authorities of the Member States are to be informed of the initiation.  

(14) 

If the case has EEA  relevance, the EFTA  Surveillance Authority  (ESA)  should  be  informed on 
the initiation of the proceedings. 

4.  Article 27(4) Publication 

(15)  Where  there  is  an  intention  to  adopt  an  Article  10  decision,  pursuant  to  Article  27(4)  of 
Regulation  1/2003,  the  Commission  must  publish  a  concise  summary  of  the  case  and  the  main 
content of the proposed course of action (Article 27(4) Notice). 

Antitrust Manual of Procedures 

(16) 

Interested  third  parties  may  submit  their  observations  within  a  time-limit  which  is  fixed  in  the 
publication. That time-limit may not be less than one month.  

(17)  The  decision  to  publish  a  summary  of  the  case  pursuant  to  Article  27(4)  is  taken  by  the 

Commissioner responsible for competition by empowerment.  

(18)  The  Article  27(4)  Notice  is  not  a  decision  which  can  be  the  object  of  an  action  for  annulment 

(Article 263 TFEU)3.  

4.1.  Structure and contents 

(19)  The main points to mention in a Article 27(4) Notice are:  

– 

– 

– 

– 

– 

– 

– 

summary of the facts;  

the parties;  

the relevant market;  

the agreement/practice ;  

the proposed course of action;  

invitation  for  third  party  observations,  including  an  explicit  request  for  a  non-confidential 

version of those observations;  

deadline  for  observations:  the  deadline  will  usually  be,  and  should  not  be  less  than,  one 

month.  

(20)  Business secrets must not be included. 

4.2.  Approval and Publication of the Notice 

4.2.1. 

Inquiry on business secrets to the parties 

(21)  A  copy  of  the  draft  Article  27(4)  Notice  is  to  be  sent  to  the  parties,  asking  them  to  identify 
business secrets (pursuant to Article 16 of Regulation 773/2004), and to rectify any material errors 
of fact. The parties are not consulted on the wording of or assessment in the Article 27(4) Notice. 

(22) 

In  case  of  disagreement  between  the  Commission  and  the  parties  as  to  whether  the  text  of  the 
Article 27(4) Notice contains business secrets, the Hearing Officer is competent to decide. 

4.2.2.  Translation 

(23)  The Article 27(4) Notice is to be submitted for translation for all EU languages. 

3  

For the reasoning, see Case T-74/92 Ladbroke [1995] ECR II-115, paragraph 72, concerning notices published 
pursuant to Article 19(3) of Regulation 17. 

                                                 
Page 7/9 – Decision finding inapplicability 

4.3.  Publication and information 

(24)  Before  publication,  the  text  of  the  Article  27(4)  Notice  is  sent  to  the  parties.  At  the  same  time, 

parties are informed of the formal initiation of proceedings. 

4.3.1. 

Information to the Member States  

(25)  The competition authorities of the Member States are to be informed of the initiation of 

proceedings.  

(26) 

In addition, the initiation of proceedings will be made public on DG COMP's Website. Parties are 
to be informed prior to publication pursuant to Article 2(2) of Regulation 773/2004.  

4.4.  Follow-up 

(27)  Observations can be received from companies, private citizens or Member States.  

(28) 

For each submission received, an acknowledgment of receipt will be sent. 

(29)  The case team should examine the observations received, and determine whether any of the third 

party observations calls into question the overall orientation of the case.  

5.  Preliminary Draft Decision 

5.1.  Effects of Article 10 Decisions 

(30)  Although  an  Article  10  Decision  is  declaratory  in  nature  (as  a  corollary  of  the  legal  exception 
system),  it  is  nonetheless  capable  of  producing  the  legal  effects  laid  down  in  Article  16  of 
Regulation 1/2003. 

(31) 

It results from the Masterfoods4 judgment of the Court of Justice and of its codification in Article 16 
of  Regulation  1/2003  that  Commission  decisions  have  EU-wide  legally  binding  effect.  This 
binding  effect  is  equally  extended  to  decisions  based  on  Article  10.  In  concrete  terms,  when 
national courts rule on agreements or practices which are the subject of a Commission decision, 
they cannot take decisions running counter to that decision, unless they first refer to the Court of 
Justice  for  a  preliminary  ruling  on  the  validity  of  that  decision.  They  must  also  avoid  decisions 
which would conflict with a decision contemplated by the Commission.  

(32)  The Article 10 Decision is of a declaratory nature, and based on the circumstances known to the 
Commission  at  the  moment  of  its  adoption  and  explained  in  some  detail  in  the  decision.  If  the 
circumstances  change  to  an  extent  that  materially  affects  the  findings  set  out  in  the  decision,  it 
does not need to be revoked, but simply may no longer be invoked by the parties to their benefit, 
and  will  no  longer  block  national  proceedings  within  the  meaning  of  Article  16  of  Regulation 
1/2003.  

4  

Judgement of 14 December 2000, C-344/98 Masterfoods, [2000] ECR I-11369, paragraphs 51 ss. 

                                                 
Antitrust Manual of Procedures 

5.2.  Content of Article 10 Decision 

(33)  The Article 10 Decision states that Article 101 TFEU is not applicable to an agreement, a decision 
by an association of undertakings or a concerted practice, either because the conditions of Article 
101(1) are not fulfilled, or because the conditions of Article 101(3) are satisfied. In practice, this 
means  that  an  agreement  or  a  particular  clause  is  not  void  under  Article  101(2).  It  can  likewise 
state that the conditions of Article 102 TFEU are not fulfilled and that an agreement, a particular 
clause or a practice does not constitute an abuse of a dominant position.  

5.3.  Preparation of the preliminary draft Article 

10 Decision 

(34)  The drafting of EU acts must comply with numerous formal rules, for reasons of legal certainty, 
clarity, precision, or simply uniformity and in order to comply with the duty to state reasons for 
EU  acts.  In  general,  the  rules  and  guidelines  for  the  drafting  of  an  Article  10  Decision  follow 
those for drafting of a formal negative decision.  

5.3.1.  Addressees 

(35)  The  decision  is  addressed  to  the  undertaking(s)  and/or  associations  of  undertakings  whose 
practices  or  agreements  are  examined  and  to  which  Articles  101  or  102  are  found  to  be 
inapplicable.  

(36) 

In cases of distribution agreements with one supplier and numerous distributors, the decision can 
be addressed to the supplier only. The publication of the decision in full text will ensure that the 
other parties’ rights can be sufficiently protected and that they have the necessary information to 
seek judicial review if they deem it necessary.  

5.3.2.  Motivation of a decision 

(37)  According to Article 296 TFEU, Commission decisions must state the reasons on which they are 
based. Failure to give reasons for a decision can be sanctioned on the basis of Article 263 TFEU 
and could entail the annulment of the decision by the General Court.  

(38) 

In its statement of reasons, the decision should take into account, when appropriate, relevant third 
parties’ arguments submitted following the publication of the Article 27(4) Notice. 

5.3.3.  Transmission to the Hearing Officer 

(39)  A copy of the draft Article 10 Decision has to be sent to the Hearing Officer in all cases in which 
a draft decision is being submitted to the Advisory Committee, because the Hearing Officer has to 
prepare a final report. Given that the Hearing Officer is also guarantor of the right to be heard of 
third parties, his final report cannot be omitted even in cases of adoption of Article 10 decisions.  

6.  Procedure for Adoption of a Decision 

(40) 

In general, the procedure to follow in the case of an Article 10 Decision is the same as that for an 
Article 9 decision. 

Page 9/9 – Decision finding inapplicability 

6.1.  Consultation of the Advisory Committee 

(41) 

Pursuant  to  Article  14  of  Regulation  1/2003,  prior  to  taking  a  decision  under  Article  10,  the 
Advisory Committee must be consulted.  

(42)  Consultation may also take place by written procedure (ref. Article 14(4) of Regulation 1/2003), 

but in case any Member State so requests, the Commission has to convene a meeting.  

6.2.  Adoption of the decision by the Commission 

(43) 

It needs to be noted that in the case of Article 10 Decisions, the internal procedure to follow for 
adoption by the Commission could in principle be the written procedure.  

6.3.  Notification to addressees and transmission 
of copies to competition authorities of 
Member States 

(44)  The  decision  has  to  be  notified  to  the  addressees,  and  a  copy  should  be  transmitted  to  the 

competition authorities of the Member States and ESA. 

7.  Publication of the Decision 

(45)  Decisions finding inapplicability of Articles 101 and 102 have to be published as provided for in 
Article 30 of Regulation 1/2003. The publication must state the names of the parties and the main 
content  of  the  decision.  It  must  have  regard  to  the  legitimate  interest  of  undertakings  in  the 
protection of their business secrets. The legal basis of the decision should also be indicated.  

 
Page 1/3 – Periodic Penalty Payments 

20 Periodic Penalty Payments 

1. 

Legal framework 

2. 

Procedure for the adoption of an Article 24(1) decision 

3. 

Procedure for the adoption of an Article 24(2) decision 

2 

2 

3 

 
 
Antitrust Manual of Procedures 

1.  Legal framework 

(1) 

Pursuant to Article 24(1) of Regulation No 1/2003, the Commission may, by decision, impose on 
undertakings or associations of undertakings periodic penalty payments not exceeding 5% of the 
average  daily  turnover  in  the  preceding  business  year  per  day  and  calculated  from  the  date 
appointed by the decision, in order to compel them: 

–  to  put  an  end  to  an  infringement  of  Article 101  or  Article 102  TFEU,  in  accordance  with  a 

decision taken pursuant to Article 7; 

–  to comply with a decision ordering interim measures taken pursuant to Article 8; 

–  to comply with a commitment made binding by a decision pursuant to Article 9; 

–  to supply complete and correct information which it has requested by decision taken pursuant to 

Article 17 or Article 18(3); 

–  to submit to an inspection which it has ordered by decision taken pursuant to Article 20(4). 

(2) 

(3) 

(4) 

An  Article  24(1)  decision  announces  the  intention  of  the  Commission  to  impose  provisional 
periodic  penalty  payments  from  a  specified  date  in  the  future  if  by  that  date  the  undertaking 
concerned has not complied with an obligation. An Article 24(1) decision is a preliminary act; it is 
not challengeable before the EU Courts under Article 263 TFEU.1 

The final amount of the payment is only calculated at a later stage, at the time of the Article 24(2) 
decision. An Article 24(2) decision does have legal effects and is therefore attackable before the 
EU Courts. Accordingly, the undertaking concerned has the right to be heard (i.e. it should receive 
a statement of objections, been given access to file and given the opportunity to express its views 
in writing and at an oral hearing) before the Article 24(2) decision can be adopted. 

Article 24 of Regulation 1/2003 therefore creates a two stage proceeding whereby a first decision 
is taken to set the (provisional) amount of the daily periodic penalty payment and the starting date 
for the calculation and a second decision fixes the final amount. 

2.  Procedure for the adoption of an Article 

24(1) decision 

(5) 

(6) 

1  

2  

3  

Article  24(1)  decisions  are  considered  to  be  measures  of  management  and  administration.  The 
Competition Commissioner is empowered to adopt them2. Article 24(1) decisions taken to enforce 
compliance with a decision requesting information (Article 18(3)) are subject to a sub-delegation 
to the Director-General. 

Since the Article 24(1) decision is an intermediate step and does not adversely affect the rights of 
the parties there is no need at this stage to issue a statement of objections, nor grant access to file 
and no need to hear the parties.3 

See  Case  46/87  Hoechst  v  Commission  [1989]  ECR,  2859  para.  55.  An  action  for  annulment  would  be 
inadmissible due to the fact that, inter alia, the Article 24(1) decision does not in itself impose any obligations on 
the undertaking concerned, but only announces an intention to fine in case of non-compliance. 

PV(2004) 1655, SEC (2004) 520/2. 

A contrario Article 27(1) of Regulation 1/2003. 

                                                 
Page 3/3 – Periodic Penalty Payments 

(7) 

(8) 

The imposition of periodic penalty payment can be initiated by adopting an Article 24(1) decision 
on  a  stand-alone  basis  or  by  including  the  provisions  relating  to  the  imposition  of  a  penalty  in 
another  decision  (normally  the  decision  that  the  periodic  penalty  payments  are  intended  to 
enforce, such as an Article 18(3) decision). 

Since  usual  practice  is  to  combine  an  Article  24(1)  decision  with  the  decision  that  the  periodic 
penalty payments are intended to enforce, please refer to the relevant modules for such decisions 
regarding the detailed procedure for adoption. 

3.  Procedure for the adoption of an Article 

24(2) decision 

(9) 

As soon as the time-limit for complying with the first decision has expired, a letter signed by the 
Director  is  sent  to  the  undertaking  reminding  it  of  the  financial  consequences  of  the  non-
compliance with the decision. 

(10)  The second decision, fixing the definitive amount of the periodic penalty payment, may be taken 

after the undertaking has not complied with the first decision. 

(11)  The penalty set in the Article 24(1) decision is the maximum amount which the Commission could 
impose under Article 24(2). If the addressee has satisfied the obligation which the periodic penalty 
payments was intended to enforce, the definitive amount of the periodic penalty payment will be 
fixed  for  the  period  of  non-compliance.  The  Commission  also  has  the  discretion  to  reduce  the 
fine  amount,  e.g.  it  may  reduce  the  amount  if  the  undertaking  has  taken  some  steps  towards 
compliance  or  if,  having  heard  the  undertaking  concerned,  the  Commission  is  persuaded  that  a 
lower amount than that set in the Article 24(1) decision was appropriate for any reason. 

(12)  Before  the  Article  24(2)  decision  can  be  adopted,  the  undertaking  concerned  must  receive  a 
Statement of objections, informing it of the objections retained against it with a view to enabling it 
to exercise its rights of defence in writing and orally (hearing).4  

(13)  The  same  procedural  rules  apply  for  the  Statement  of  objections  as  in  a  substantive  case.  After 
having  received  the  approval  of  the  LS  and  having  informed  the  other  DGs  concerned,  the 
Statement  of  objections 
is  adopted  by  empowerment  procedure  by  the  Competition 
Commissioner and notified to the undertaking by the SG. 

(14)  The deadline for replying to a Statement of objections is usually two months. Given however that 
objections raised in an Article 24 proceeding do normally not require an in depth analysis by the 
undertakings concerned it is normally appropriate to set the time limit at four weeks. 

(15)  The procedure for the drafting and the adoption of the Statement of objections is set out in detail 

in the Module on Statement of Objections.  

(16)  The final Article 24(2) decision is adopted by the College of Commissioners, normally in written 
procedure. The procedural rules set out in the Module Decision-making procedure apply. 

4  

Article 27(1) of Regulation 1/2003. 

 
                                                 
 
Page 1/11 – Handling of complaints  

21 Handling of complaints 

1. 

Initial assessment 

1.1.  Admissibility 

1.2. 

Initial assessment 

1.3.  Further investigation 

2. 

Cooperation with NCAs 

2.1.  Re-allocation of case to a NCA 

2.2.  Rejection or suspension in light of a NCA case 

3. 

Rejection of complaints 

3.1.  Grounds for rejection of complaints 

3.1.1.  Insufficient grounds for acting by conducting a further investigation (‘lack 

of European Union interest’) 
3.1.2.  Rejection for lack of substantiation 
3.1.3.  Rejection on substantive grounds 

3.2.  Procedure for rejection of complaints 

3.2.1.  First step: Article 7(1) letter 
3.2.2.  Second step: Article 7(2) Decision 

2 

2 

3 

3 

4 

4 

6 

6 

6 

7 
9 
9 

9 
9 
10 

 
Antitrust Manual of Procedures 

1.  Initial assessment  

1.1.  Admissibility  

(1) 

(2) 

(3) 

(4) 

Citizens  and  undertakings  are  encouraged  to 
inform  the  Commission  about  suspected 
infringements  of  competition  rules.  There  are  two  ways:  market  information,  and  a  complaint 
under Article 7(2) of Regulation No 1/2003. 

Citizens and undertakings who wish to inform the Commission about suspected infringements of 
Articles 101 or 102 are invited to write to the Commission. This information can be the starting 
point for a Commission investigation, but it does not trigger the formal complaints procedure.  

Formal  complaints  formulated  on  the  basis  of  Article  7(2)  of  Regulation  No  1/2003  oblige  the 
Commission to react in specific ways. Commission Regulation No 773/2004, in its Articles 5 to 9, 
lays down specific rules concerning the handling of such complaints. In addition, a Commission 
Notice  on  the  handling  of  complaints  by  the  Commission  under  Articles  101  and  102  of  the 
Treaty1 (“Notice on Complaints”) provides guidance on the subject.  

A formal complaint can only be made about an alleged infringement of Article 101 and/or 102 of 
the Treaty by undertakings.2 In addition, the complainant must show a legitimate interest. Finally a 
complaint has to comply with Form C that is annexed to Regulation 773/2004.3  

(5)  Where  a  submission  does  not  concern  Articles  101  and/or  102  TFEU  at  all,  the  sender  is 
informed  accordingly.  If  applicable,  the  sender  is  informed  of  the  transfer  of  the  matter  to  the 
competent DG.4  

(6) 

The following are considered to, in principle, have a legitimate interest5: 

–  undertakings (themselves or through associations entitled to represent their interests6) can claim a 
legitimate interest where they are operating in the relevant product market or where the conduct 
complained of is liable to directly and adversely affect their interests;7 

–  consumer associations can also lodge complaints with the Commission;8 

1 

2 

3  

4 

5  

6  

7  

8  

OJ C 101, 27.4.2004, p. 65. 

No  formal  complaint  can  be  made  under  Regulation  No  1/2003  about  infringements  by  Member  States. 
Sometimes a complaint also concerns a state measure caught by Article 106 TFEU or by Article 4(3) TEU. In such 
circumstances, the different aspects of the complaint will be handled separately.  

Article 5(2) of Regulation 773/2004. Also explained in Notice on Complaints, paragraph 29. 

It  may  also  be  appropriate  to  point  the  sender  to  other  bodies  that  might  be  of  assistance  (e.g.  consumer 
protection bodies, Ombudsman etc.).  

Cf. also the explanations in the Notice on Complaints, paras 33 et seq. 

Joined  Cases  T-133/95  and  T-204/95,  International  Express  Carriers  Conference  (IECC)  v  Commission,  [1998] 
ECR  II-3645,  paragraphs  79-83.  As  confirmed  in  Joined  cases  T-213  and  214/01  (Austrian  Banks)  paragraph 
112. 

This  confirms  the  established  practice  of  the  Commission  according  to  which  a  legitimate  interest  can,  for 
instance,  be  claimed  by  the  parties  to  the  agreement  or  practice  which  is  the  subject  of  the  complaint,  by 
competitors  whose  interests  have  allegedly  been  damaged  by  the  behaviour  complained  of  or  by  undertakings 
excluded from a distribution system. Cf. Article 36 of the Notice on Complaints. 

Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission, [1994] ECR II-285, para 
36. 

                                                 
Page 3/11 – Handling of complaints  

–  individual consumers are considered to be in a position to show a legitimate interest when their 
economic interests have been harmed or are likely to be harmed as a result of the restriction of 
competition in question;9 

–  local  or  regional  public  authorities  may  be  able  to  show  a  legitimate  interest  in  their  capacity  as 

buyers or users of goods or services affected by the conduct complained of; 

–  Member States are deemed to have a legitimate interest for all complaints they choose to lodge. 

1.2.  Initial assessment 

(7) 

(8) 

(9) 

The initial assessment serves the purpose of screening the admissible complaints for those which 
seem most to merit being further investigated by the Commission. 

The Commission will endeavour to inform complainants of the action that it proposes to take on 
a complaint within an indicative time frame of four months from the receipt of the complaint.10 
This  is,  however,  subject  to  the  circumstances  of  the  individual  case  and  is,  in  particular, 
dependent on whether DG Competition has received sufficient information from the complainant 
or  third  parties,  notably  in  response  to  its  requests  for  information,  in  order  for  it  to  decide 
whether or not it intends to investigate the case further. 

The  Commission  can  undertake  preliminary  investigations  in  order  to  assess  whether  the  case 
should  be  a  priority.  The  investigations  could  look  for  example  for  prima facie indications of the 
alleged infringement and try to determine a possible theory of harm.  

(10)  As a result of the initial assessment, a clear direction should be found on whether the complaint: 

–  is a potential case for further investigation by the Commission; 

–  should be re-allocated to an NCA; 

–  contains insufficient grounds for acting. 

1.3.  Further investigation 

(11) 

(12) 

If  the  intention  is  to  investigate  the  case  further  the  complainant  should  be  informed.  A  short 
letter by the Head of Unit is sufficient. The complainant should also be informed of the initiation 
of proceedings, unless such information is inappropriate.  

In the spirit of encouraging an open exchange of views the Commission will, in cases based on 
formal complaints, provide the parties subject to the proceedings, at an early stage (unless such is 
considered  likely  to  prejudice  the  investigation)  and  at  the  latest  shortly  after  the  opening  of 
proceedings,  with  the  opportunity  of  commenting  on  a  non-confidential  version  of  the 
complaint11.  

(13)  According to Article 27 of Regulation 1/2003, before the Commission takes decisions as provided 
for  in  Article  7,  8,  23  and  Article  24(2),  complainants  should  be  associated  closely  with  the 

9  

10  

11  

Joined  cases  T-213  and  T-214/01  Österreichische  Postsparkasse  e.a.  v  Commission  [2006]  ECR  II-1601, 
paragraph 114.  

Notice on the handling of complaints, paragraph 61. 

Notice  on  best  practices  for  the  conduct  of  proceedings  concerning  Articles  101  and  102  TFEU  (OJ  C  308, 
20.10.2011, p. 6) ("Best Practices Notice"), paragraph 71. 

                                                 
Antitrust Manual of Procedures 

proceedings.  The  complainant  can  help  the  Commission  in  supplying  evidence  of  the  anti-
competitive practice and thus in establishing the infringement. However, the formal complainant 
has less extensive procedural guarantees than the company subject to the investigation. 

(14)  Where appropriate, documents such as replies to requests for information can be provided to the 
complainant  insofar  as  business  secrets  are  duly  protected  and  the  suppliers  of  the  information 
have been informed.  

(15)  A non-confidential version of the reply of the party subject to the investigation to the complaint 
may be provided to the complainant. However, this may not be the case where the complaint is 
rejected at an early stage without further in-depth investigation12. 

(16)  According to Article 6(1) of Regulation 773/2004, the Commission provides the complainant with 
a copy of the non-confidential version of the Statement of Objections and sets a time-limit within 
which the complainant may make known its views in writing. A deadline of a maximum of one 
month is given for comments. The transmission is made for the sole purpose of the proceedings 
under Regulation 1/2003, without prejudice to the case-law of the Courts13. 

(17)  Where appropriate, non-confidential versions of the replies to the Statement of Objections can be 
given to the complainant, provided that business secrets are not disclosed and that the suppliers of 
the information have been consulted. 

(18)  Where appropriate, non-confidential versions of the complainants' comments may be sent to the 

undertaking(s) complained of.  

(19) 

Pursuant  to  Article  6  of  Regulation  773/2004,  the  Commission  may,  where  appropriate,  afford 
complainants the opportunity of expressing their views at the oral hearing of the parties to which 
a Statement of Objections has been issued, if complainants so request in their written comments. 
See further in the Module Right to be heard. 

2.  Cooperation with NCAs  

(20)  The  Commission  informs  the  ECN  of  the  existence  of  the  complaint  as  soon  as  formal 
investigative measures are taken, such as a formal request for information or any other measure 
based on Articles 18 to 21 of Regulation 1/2003. By submitting this information, the Commission 
signals to the ECN that it intends in principle to deal with the case revealed by the complaint.  

(21)  This  information  allows  NCAs  also  to  contact  the  Commission  and  possibly  discuss  case-

allocation.  

2.1.  Re-allocation of case to a NCA  

In  most  instances  the  authority  that  receives  a complaint (or  starts an ex-officio procedure) will 
remain in charge of the case. Re-allocation of a case would only be envisaged at the outset of a 
procedure where either this authority considered that it was not well placed to act or where other 
authorities  also  considered  themselves  well  placed  to  act.14  A  copy  of  the  complaint  can  be 
transmitted for the NCA to assess whether they want to take up the case. See further the ECN 
Module and the Notice on handling of complaints. 

Best Practices Notice, paragraph 71. 

See e.g. Case T-353/94 Postbank [1996] ECR II-921 

See Commission  Notice on cooperation within the Network of Competition Authorities (OJ C 101, 27.4.2004, p. 
43) ("Network Notice"), paragraphs 5-15. 

(22) 

12  

13 

14  

                                                 
Page 5/11 – Handling of complaints  

(23)  Where re-allocation is found to be appropriate for an effective protection of competition and of 
the  EU  interest,  network  members  will  endeavour  to  re-allocate  cases  to  a  single  well  placed 
competition  authority  as  often  as  possible.  In  any  event,  re-allocation  should  be  a  quick  and 
efficient process and not hold up ongoing investigations. 

(24)  The Network Notice  notes that an authority can be considered to be well placed to deal with a 

case if the following three cumulative conditions are met: 

(25) 

(26) 

(27) 

the agreement or practice has substantial direct actual or foreseeable effects on competition within 
its territory, is implemented within or originates from its territory; 

the authority is able to effectively bring to an end the entire infringement, i.e. it can adopt a cease-
and-desist order the effect of which will be sufficient to bring an end to the infringement and it 
can, where appropriate, sanction the infringement adequately; 

it can gather, possibly with the assistance of other authorities, the evidence required to prove the 
infringement.15 

(28)  The  above  criteria  indicate  that  a  material  link  between  the  infringement  and  the  territory  of  a 
Member State must exist in order for that Member State's competition authority to be considered 
well placed. It can be expected that in most cases the authorities of those Member States where 
competition  is  substantially  affected  by  an  infringement  will  be  well  placed  provided  they  are 
capable of effectively bringing the infringement to an end through either single or parallel action 
unless the Commission is particularly well placed to act. 

(29) 

(30) 

(31) 

It  follows  that  a  single  NCA  is  usually  well  placed  to  deal  with  agreements  or  practices  that 
substantially affect competition mainly within its territory. 

Furthermore single action of an NCA might also be appropriate where, although more than one 
NCA can be regarded as well placed, the action of a single NCA is sufficient to bring the entire 
infringement to an end. 

Parallel  action  by  two  or  three  NCAs  may  be  appropriate  where  an  agreement  or  practice  has 
substantial effects on competition mainly in their respective territories and the action of only one 
NCA  would  not  be  sufficient  to  bring  the  entire  infringement  to  an  end  and/or  to  sanction  it 
adequately. 

(32)  The authorities dealing with a case in parallel action will endeavour to coordinate their action to 
the  extent  possible.  To  that  effect,  they  may  find  it  useful  to  designate  one  of  them  as  a  lead 
authority  and  to  delegate  tasks  to  the  lead  authority  such  as  for  example  the  coordination  of 
investigative  measures,  while  each  authority  remains  responsible  for  conducting  its  own 
proceedings. 

(33)  The Commission is particularly well placed if one or several agreement(s) or practice(s), including 
networks  of  similar  agreements  or  practices,  have  effects  on  competition  in  more  than  three 
Member States (cross-border markets covering more than three Member States or several national 
markets). 

(34)  The Court has held that even if the national authorities and courts are well placed to address the 
possible  infringements  complained  of  that  consideration  alone  is  insufficient  to  support  a  final 

15  

See Network Notice , paragraph 8. 

                                                 
Antitrust Manual of Procedures 

conclusion that there is no sufficient Community interest. Action at European Union level could 
on occasion be more effective than various actions at national level.16  

(35)  Moreover, the Commission is particularly well placed to deal with a case if it is closely linked to 
other EU provisions which may be exclusively or more effectively applied by the Commission, if 
the  EU  interest  requires  the  adoption  of  a  Commission  decision  to  develop  EU  competition 
policy when a new competition issue arises or to ensure effective enforcement17. 

2.2.  Rejection or suspension in light of a NCA case 

(36) 

Pursuant to Article 13 of Regulation 1/2003, the Commission may reject a complaint or suspend 
proceedings on the grounds that a competition authority of a Member State is dealing or has dealt 
with the same case. A rejection pursuant to Article 13 is not a referral decision18, it merely closes 
the complaint procedure by the Commission.  

(37)  The NCA should be asked to confirm that they are actively dealing/have actively dealt with the 
case by way of a standard form. The forms do not need to be translated. The NCA should also be 
asked when the complainant can be informed (possibility of an embargo, if a surprise inspection is 
planned). 

(38) 

If  the  Commission  comes  to  the  conclusion  that  it  should  not  pursue  the  case  for  the  reasons 
mentioned above, it will first inform the complainant in a meeting or by phone that it has come to 
the preliminary view that the case may be rejected. Once informed, the complainant may decide to 
withdraw the complaint. Otherwise, if the complainant upholds the complaint, prepare a formal 
rejection  pursuant  to  Article  13,  in  accordance  with  Article  9  of  Regulation  773/2004.  The 
rejection contains explanations on the following points: 

–  It identifies the agreements or practice complained of. 

–  It  states  that  the  same  case  is  or  has  been  dealt  with  by  the  NCA.  To  the  extent  necessary,  it 

specifies why the cases are identical (see above). 

–  It specifies the NCA’s proceedings by reference to the national case number(s), dates of measures 

taken, national rejection decision or equivalent identifiers. 

(39)  The rejection does not contain any substantive explanations.  

(40)  Article 13 creates a possibility to reject, not an obligation. It may happen that an NCA is already 
dealing with a complaint that could equally be a priority for the Commission. This situation is not 
covered in the current chapter, but in the ECN Module. 

3.  Rejection of complaints 

3.1.  Grounds for rejection of complaints 

16  

17  

18  

Case  T-427/08  Confédération  européenne  des  associations  d’horlogers-réparateurs  (CEAHR)  v  Commission, 
judgment of 15 December 2010, paragraph 176. 

See Network Notice, paragraph 15. 

In the antitrust area, the Commission and the NCAs have parallel competences to deal with cases under Articles 
101 and 102 of the Treaty (as long as the Commission does not formally initiate proceedings). “Re-allocation” in 
the ECN implies that one authority goes ahead with a case while another abstains from acting or closes its file. 
There is no need to “transfer” the case or, a fortiori, to “transfer” the competence to deal with the case.   

                                                 
Page 7/11 – Handling of complaints  

(41)  Complaints  can  be  rejected  on  the  basis  that  there  are  insufficient  grounds  for  acting.19  In 
particular,  there  can  be  insufficient  grounds  for  acting  if  conducting  a  further  investigation  into 
the  alleged  infringement  would,  in  view  of  the  public  interest  and  the  circumstances  of  the 
individual  case,  not  constitute  a  sufficiently  high  degree  of  priority  for  the  Commission  (also 
known as ‘lack of European Union interest’). There can also be insufficient grounds for acting if 
the  complaint  is  not  substantiated  or  if  there  is  no  evidence  to  establish  the  existence  of  an 
infringement.  

3.1.1. 

Insufficient grounds for acting by conducting a further 
investigation (‘lack of European Union interest’) 

(42)  The ECJ has ruled that the right to complain entails a right to receive a reasoned decision of the 
Commission that can be appealed to the European Union Courts.20 Notwithstanding, the case law 
has  recognised  that  the  Commission  is  entitled  to  give  differing  degrees  of  priority  to  the 
complaints  that  it  receives,  taking  into  account  the  duration  and  extent  of  the  infringements 
complained of and their effect on the competition situation in the European Union. It is therefore 
entitled to reject complaints when there are insufficient grounds for acting by conducting a further 
investigation into the alleged infringement (also known as ‘lack of European Union interest’).21 

(43)  The Court has held that in order to assess the European Union interest in further investigating a 
case, the Commission must take account of the circumstances of the case and, in particular, of the 
matters  of  law  and  fact  set  out  in  the  complaint  referred  to  it.  In  particular,  it  must  weigh  the 
significance of the alleged infringement as regards the functioning of the internal market against 
the probability of it being able to establish the existence of the infringement and the extent of the 
investigative measures necessary in order to fulfil, under the best possible conditions, its task of 
ensuring compliance with Articles 101 and 102 TFEU.22 

(44)  Under the case law, the Commission must take into consideration all the relevant matters of law 
and of fact in order to decide on what action to take in response to a complaint. More particularly, 
it must consider attentively all the matters of fact and of law which the complainant brings to its 
attention.23 The case team may contact complainants in order to explore the background and facts 
underpinning the complaint and to gain a fuller understanding of the matter. 

(45)  The  Commission  may  not,  under  the  case  law,  exclude  a  priori  and  in  general  certain  situations 
from its task as enforcer of the competition rules. A rejection for lack of European Union interest 
must therefore  be  based on the specific  circumstances of the  individual case, reflect a thorough 
examination of the facts and be based on a consistent set of reasons.  

(46)  The  Commission  has  publicly  identified  the  elements  it  looks  at  for  determining  whether  a 
complaint  submitted  to  it  contains  sufficient  grounds  for  acting.24  Under  the  case  law,  the 
Commission  is  not  limited  to  the  criteria  already  accepted  by  the  Court.25  It  is  therefore  not 
excluded that new grounds for rejection may still arise in individual cases.  

19  

20  

21  

22  

23  

24  

25  

Article  7(2)  of  Regulation  773/2004.  See  also  Best  Practices  Notice,  paragraph  135.  For  rejections  pursuant  to 
Article 13 of Regulation 1/2003, see section 2.2 above.  

Case C-282/95 P Guérin automobiles v. Commission [1997] ECR I-1503, paragraph 36. 

Cf. in particular Case T-24/90 Automec II [1992] ECR II-2223 and Case C-119/97 P Ufex [1999] ECR I-1341. 

Case  T-427/08  Confédération  européenne  des  associations  d’horlogers-réparateurs  (CEAHR)/Commission, 
judgment of 15 December 2010, paragraph 158. 

Case  C-119/97  P  Ufex  [1999]  ECR  I-1341,  paragraph  86;  Case  T-427/08  Confédération  européenne  des 
associations d’horlogers-réparateurs (CEAHR)/Commission, judgment of 15 December 2010, paragraph 28. 

See the Annual Report on Competition Policy 2005 and Notice on the handling of complaints, paragraph 44. 

Cf. previous footnote. 

                                                 
Antitrust Manual of Procedures 

(47)  When  deciding  whether  there  is  a  sufficient  degree  of  European  Union  interest  for  acting,  the 

Commission will normally look at the following criteria referred to above:  

(48) 

(49) 

(50) 

(51) 

(52) 

(53) 

the  extent  or  complexity  of  the  investigation  required,  the  likelihood  of  establishing  an 
infringement  and  whether  in  light  of  these  elements  it  is  proportionate  to  conduct  an  in-depth 
investigation; 

the  significance  of  the  impact  on  the  functioning  of  competition  in  the  internal  market,  as 
indicated in particular by: 

–  the geographic scope of the conduct complained of, or the economic significance of the 
conduct complained of, or the size of the market, or the importance for end consumers 
of the products concerned or of the conduct complained of; or 

–  the  market  position  of  the  undertakings  targeted  by  the  complainant  or  the  overall 

functioning of the market in question; 

the possibility of the complainant to bring the case before a national court, in particular taking into 
account whether the case is or has already been the subject of private enforcement or is of a type 
that can appropriately be dealt with by national courts; 

the  appropriateness  of  acting  on  an  individual  complaint  that  concerns  (a)  specific  legal  issue(s) 
which the Commission is already in the process of examining in one or several cases or which it 
has already examined and/or which is the subject of proceedings before European Union courts; 

the  cessation  or  modification  of  the  conduct  complained  of,  in  particular  where  commitments 
have been made binding by a Commission decision pursuant to Article 9 of Regulation 1/2003 or 
where the undertaking(s) complained of has/have changed its/their behaviour for other reasons, 
provided  that  neither  significant  persisting  anti-competitive  effects  nor  the  seriousness  of  the 
alleged infringement(s) constitute sufficient grounds for conducting a further investigation in spite 
of the cessation or modification; and 

the  importance  of  other  areas  of  European  Union  or  national  law  affected  by  the  conduct 
complained  of,  compared  to  the  importance  of  the  competition  concerns  raised  by  the 
complainant.  This  criterion  relates  for  example  to  issues  that  contain  some  competition  law 
elements but that would primarily and more appropriately be dealt with under the rules governing 
the functioning of the internal market. 

(54)  The  Commission  is  under  an  obligation  to  state  reasons  if  it  declines  to  continue  with  the 
examination of a complaint, and those reasons must be sufficiently precise and detailed to enable 
the  Court  effectively  to  review  the  Commission’s  use  of  its  discretion  to  define  priorities.  The 
General Court verifies whether this condition has been complied with.26 

(55)  Complaints  may  contain  a  range  of  allegations.  Sometimes  part  of  a  complaint  gives  rise  to  a 
priority  investigation,  while  the  remainder  is  not  considered  a  priority.  If  the  ‘remainder’  is  a 
separate alleged infringement, it will in principle be treated as a complaint in its own right and may 
hence  need  to  be  rejected  separately.  In  these  cases,  contacts  with  the  complainant  in  view  of 
withdrawal are particularly recommended. 

26  

Case  T-427/08  Confédération  européenne  des  associations  d’horlogers-réparateurs  (CEAHR)/Commission, 
judgment of 15 December 2010, paragraph 28. 

                                                 
Page 9/11 – Handling of complaints  

3.1.2.  Rejection for lack of substantiation  

An admissible complaint (i.e., a complaint that contains the information required by Form C) may 
also be rejected for lack of substantiation, when it fails to submit even a minimum of prima facie 
evidence necessary to substantiate one or several conditions for an infringement of Article 101 or 
102 TFEU.27 There is no need for DG Competition to inform associated or concerned DGs. The 
Article 7 letter and rejection decision should be carefully worded and point out why the complaint 
fails to provide a minimum of indications. 

3.1.3.  Rejection on substantive grounds  

(56)  A  rejection  on  substantive  grounds  will  normally  be  based  on  the  absence  of  evidence  for  an 
appreciable infringement. The conclusion is that there are insufficient grounds for acting on the 
complaint, in accordance with Article 7 of Regulation 773/2004. 

3.2.  Procedure for rejection of complaints 

(57) 

(58) 

(59) 

If the Commission, after careful examination of the case, comes to the preliminary conclusion that 
it  should  not  pursue  the  case  for  any  of  the  reasons  mentioned  above,  it  will  first  inform  the 
complainant in a meeting or by phone that it has come to the preliminary view that the complaint 
may be rejected. Once informed, the complainant may decide to withdraw the complaint. If the 
complainant withdraws, the file will be closed. 

If  the  complainant  upholds  the  complaint,  the  Commission  will  inform  the  complainant  by  a 
formal  letter  pursuant  to  Article  7(1)  of  Regulation  773/2004  of  its  preliminary  conclusion  that 
there are insufficient grounds for acting and set a time limit for its written observations. 

If  in  the  course  of  its  examination  of  the  complaint,  the  Commission  has  opened  proceedings 
pursuant  to  Article  11(6)  of  Regulation  1/2203,  a  State  of  Play  meeting  will  be  offered  to  the 
complainant prior to sending the Article 7(1) letter28. 

3.2.1.  First step: Article 7(1) letter 

(60)  The Article 7 letter sets out the Commission’s provisional position on the complaint, subject to 
the observations that the complainant may submit in reply to the letter.29 The drafting should be 
based on the template(s), which needs to be adapted to the circumstances of the case. 

(61)  The  Article  7  letter  is  a  formal  Commission  act  adopted  by  the  Director  General,  by  sub-
delegation.30 The Legal Service must be consulted and give its approval before the Article 7 letter 
is  adopted  by  the  Director  General.  It  makes  explicit  reference  to  Article  7  of  Regulation 
773/2004, indicates a time limit for written observations (at least four weeks31) and refers to the 
legal consequences if no reply is received within the deadline32. 

27  

28  

29  

30  

31  

32  

Case 298/83 Comité des industries cinématographiques des Communautés européennes (CICCE) v Commission 
[1985] ECR 1105, paragraphs 21-24; Case T-198/98 Micro Leader Business v Commission [1999] ECR II-3989, 
paragraphs 32-39. 

See Best Practices Notice, paragraph 139. 

Cf.  also  Notice  on  Complaints,  paras  53  et  seq.  for  an  overview  of  the  complaint  procedure  published  by  the 
Commission. 

Empowerment decision of 28.4.2004, PV (2004)1655); sub-delegation decision of 3.6.2004, PH/2004/769. 

Cf. Article 17 of Regulation 773/2004. 

Article 7(1) 2nd sentence and Article 7(3) of Regulation 773/2004. 

                                                 
Antitrust Manual of Procedures 

(62) 

(63) 

(64) 

If  the  complainant  does  not  react  to  the  Article  7  letter  within  the  time  limit,  the  complaint  is 
deemed to have been withdrawn (Article 7(3) of Regulation 773/2004) and the case is closed. The 
complainant should be informed accordingly of the administrative closure of the case. 

If  the  complainant  requests  an  extension  of  the  time  limit  to  respond,  such  extension  can  be 
granted via a letter signed by the Head of Unit. An extension should be granted if appropriate and 
provided that there is an explicit and sufficiently reasoned request by the complainant, containing 
a compelling justification. 

In  the  context  of  the  Article  7  letter,  the  complainant  has  a  right  to  request  access  to  the 
documents  on  which  the  Commission  bases  its  provisional  assessment  (Article  8  of  Regulation 
773/2004). The complainant has no right of access to file. The practical handling is as follows: 

–  If the file does not contain any documents on which the Commission bases its provisional 
assessment that are not already in the complainant's possession no further access needs to 
be given.  

–  If the file contains documents on which the Commission bases its provisional assessment 
that are not already in the complainant's possession copies of the documents are attached 
to the Article 7 letter.  

(65) 

If the Commission considers adopting an Article 9 commitment decision or an Article 10 finding 
of  inapplicability  decision,  the  procedure  for  the  rejection  of  the  complaint  should  be  done  in 
parallel with the Article 10 or Article 9 decision procedure.  

(66)  As  a  commitment  decision  is  only  adopted  when  the  commitments  offered  reduce  the  alleged 
competition  concerns  in  such  a  way  that  there  are  no  longer  grounds  for  action  by  the 
Commission  this  will  normally  also  entail  that  there  are  insufficient  grounds  for  acting  by 
conducting  a  further  investigation  into  the  alleged  infringement  ('lack  of  European  Union 
interest').  In  cases  where  the  Commission  intends  to  adopt  a  commitment  decision  the 
Commission will also inform the complainant about the market test and invite the complainant to 
submit comments.  

(67)  The complainant will be informed by way of an Article 7(1) letter in which the Commission will 
inform  the  complainant  about  its  intention  to  reject  the  complaint  should  the  commitments  be 
formally accepted. This letter should be sent before the Article 9 commitment decision is adopted. 

(68) 

If the complainant replies within the time limit and maintains the complaint but does not submit 
any  elements  that  would  change  the  assessment  of  the  complaint,  a  rejection  decision  must  be 
prepared. 

3.2.2.  Second step: Article 7(2) Decision 

(69)  The rejection decision is a formal decision by the Commission. It is adopted by the Commissioner 

under empowerment. It can be appealed before the European Union Courts. 

(70)  The  rejection  decision  is  limited  to  rejecting  the  complaint,  it  does  not  ‘bless’  the  agreement  or 
practice  complained  of.  Rejection  of  a  complaint  by  the  Commission  is  without  prejudice  to 
NCAs or national courts acting regarding the same case.  

(71)  According  to  case  law,  the  statement  of  reasons  of  the  Commission’s  rejection  decision  must 
disclose  the  reasoning  followed  so  as  to  enable  the  complainant  to  ascertain  the  reasons  for 
rejection and to enable the competent European Union Court to exercise its power of review. The 

Page 11/11 – Handling of complaints  

Commission is not obliged to adopt a position on all the arguments raised but only needs to set 
out the considerations which are decisive for the rejection of the complaint.33  

In practice, the rejection decision is developed from the Article 7 letter, taking into account any 
additional elements or arguments brought forward by the complainant in its reply.  

If the Commission has adopted an Article 10 or Article 9 decision, that decision can be referred to 
in the rejection and serve as reasoning34.  

(72) 

(73) 

33  

34  

Settled case law, cf. i.a. Case T-114/92 BEMIM, [1995] ECR II-147, paragraph 41; cf. also Notice on Complaints, 
para 75. 

Cf. also Notice on Complaints, para 76. 

                                                 
 
Page 1/7 – Informal guidance 

22 Informal guidance 

1. 

Introduction 

2. 

Contacts between DG Competition and market players 

3.  Guidance Letters 

3.1.  Conditions required for issuing a Guidance Letter 
3.1.1.  Formal conditions to request a Guidance Letter 
3.1.2.  Conditions of substance to issue a Guidance Letter 

3.2.  The effects of Guidance Letters 

3.3.  Processing of the request 

3.3.1.  Analysis of the request against criteria, priorities and facts 
3.3.2.  Refusal to issue a Guidance Letter 

3.4.  Adoption of a Guidance Letter 

3.4.1.  Publication on DG Competition website 

2 

2 

3 

3 
3 
4 

5 

5 
5 
6 

6 
7 

 
Antitrust Manual of Procedures 

1.  Introduction 

(1) 

(2) 

(3) 

(4) 

Under  the  Commission  Notice  on  Informal  Guidance  relating  to  novel  questions  concerning 
Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) that arise 
in  individual  cases  (hereafter:  "Notice  on  Informal  Guidance"),  undertakings1  can  ask  the 
Commission for a guidance letter on a novel issue of interpretation of Articles 101 or 102 TFEU. 
Guidance  letters  are  based  exclusively  on  the  Notice,  as  they  are  not  explicitly  foreseen  by 
Regulation 1/2003. They are nonetheless indirectly referred to in recital 38 of Regulation 1/2003, 
which recognises that the Commission may provide informal guidance to individual undertakings 
where cases give rise to genuine uncertainty because they present novel or unresolved questions 
for the application of EU competition rules. 

Such  guidance  is  issued  at  the  Commission’s  discretion  and  subject  to  its  other  enforcement 
priorities.  Providing  guidance  to  individual  companies  is  not  the  principal  business  of  the 
Commission  under  Regulation  1/2003,  which  is  to  ensure  effective  enforcement  of  EU 
competition  law.  Indeed,  a  main  principle  introduced  by  Regulation  1/2003  is  that,  as  a  rule, 
undertakings have to self-assess their compliance with EU competition law. Therefore, the criteria 
for the issuing of a guidance letter, set out in the  Notice, must be carefully  respected. Issuing a 
guidance letter should remain exceptional. 

Requests by individual undertakings for guidance should be clearly distinguished from suggestions 
by interested undertakings to the Commission to adopt a decision within the meaning of Article 
10 of Regulation 1/2003 (see relevant module on Decision Finding Inapplicability). Both Article 
10 decisions and guidance letters are to be adopted very exceptionally, but Article 10 decisions are 
taken on the Commission's own initiative and exclusively in the EU public interest relating to the 
application  of  Articles  101  and  102  TFEU.  The  latter  notion  refers  to  the  need  for  the 
Commission to act in order to solve a problem of coherent application or to set policy2, whereas 
guidance letters are designed in the first place to serve the interest of the individual undertakings 
in obtaining guidance that should assist them for the assessment of their actions in case of a novel 
question. In order not to blur the distinction between both situations, guidance letters should not 
refer  to  the  concept  of  EU  public  interest  relating  to  the  application  of  Articles  101  and  102 
TFEU or otherwise use terminology from the Article 10 Regulation 1/2003 context. 

A  request  for  a  guidance  letter  is  without  prejudice  to  the  power  of  the  Commission  to  open 
proceedings  in  accordance  with  Regulation  1/2003  with  regard  to  the  facts  presented  in  the 
request.  Therefore,  information  provided  by  means  of  guidance  requests  submitted  by 
undertakings can in principle also serve as a starting point for ex officio procedures under Article 
7, 9 and 10 of Regulation 1/2003 provided the respective requirements for opening a case and the 
relevant priority setting criteria are fulfilled. 

2.  Contacts between DG Competition and 

market players 

(5) 

Over  and  above  requests  for  guidance  in  the  format  of  a  guidance  letter,  DG  Competition 
receives numerous informal solicitations for guidance, for example:  

1  

2  

Requests by Member States’ governments or administrations do not fall under the Notice on Informal Guidance 
and  are  to  be  dealt  with  by  different  means  than  guidance  letters.  Member  States’  courts  can  request 
information or an opinion from the Commission, cf.  in this respect  the  Notice on the co-operation between  the 
Commission  and  the  courts  of  the  EU  Member  States  in  the  application  of  Articles  81  and  82  EC  (OJ  C  101, 
27.4.2004, p. 54). 

Cf. Recital 14 of Regulation 1/2003. 

                                                 
Page 3/7 – Informal guidance 

– 

– 

– 

Undertakings  send  information  about  and/or  the  text  of  their  agreements  and  solicit  a 
reaction from DG Competition; 

Undertakings ask for a meeting to discuss an agreement or practice; 

Undertakings  ask  for  specific  information  or  clarification  on  a  competition  law  issue  (in 
writing / orally). 

(6)  Moreover,  undertakings  may  seek  informal  contacts  with  a  view  to  discussing  the  possibility  of 
obtaining a guidance letter. They will want to describe the case and the issue for which they would 
envisage a request. 

(7) 

On the part of DG Competition, it should be made clear from the outset that: 

– 

– 

– 

– 

DG Competition does not object to an exchange of views about market developments and 
may provide general indications about its case practice and policy;  

No definitive views can be given on a particular agreement, decision or practice; 

An informal discussion with DG Competition cannot be construed as the Commission giving 
any form of ‘clearance’; and  

The fact of meeting DG Competition does not confer any rights or expectations. 

3.  Guidance Letters 

3.1.  Conditions required for issuing a Guidance 

Letter 

3.1.1.  Formal conditions to request a Guidance Letter 

(8) 

A  request  can  be  presented  by  an  undertaking  or  undertakings  or  associations  of  undertakings 
within the meaning of Articles 101 and 102 TFEU which have entered into or intend to enter into 
an agreement or practice that could fall within the scope of Articles 101 and/or 102 TFEU with 
regard to legal issues raised by such agreement or practice. 

(9) 

There is no form. A memorandum should be presented which clearly states: 

– 

– 

– 

– 

– 

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

the specific questions on which guidance is sought; 

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

detailed reasoning, explaining why the request presents a novel question; 

all  other  information  that  permits  an  evaluation  of  the  request  in  the  light  of  the  aspects 
explained in the Notice, including in particular a declaration that the agreement or practice to 
which the request refers is not subject to proceedings pending before a Member State court 
or competition authority; 

Antitrust Manual of Procedures 

– 

– 

where the request contains elements that are considered business secrets, a clear identification 
of these elements; 

any other information or documentation relevant to the individual case. 

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

3.1.2.  Conditions of substance to issue a Guidance Letter 

(11)  According to the Notice on Informal Guidance (paragraphs 8-10), issuing a guidance letter may 

only be considered if the following cumulative conditions are fulfilled: 

– 

– 

– 

– 

– 

The  substantive assessment  of an  agreement or  practice  with regard  to Articles  101 and/or 
102 TFEU, poses a question of application of the law for which there is no clarification in the 
existing EU legal framework including the case law of the EU Courts, nor publicly available 
general guidance or precedents in decision-making practice or previous guidance letters. 

A  prima  facie  evaluation  of  the  specificities  and  background  of  the  case  suggests  that  the 
clarification of the novel question through a guidance letter is useful, taking into account the 
following elements: 

–  the economic importance from the point of view of the consumers of the goods or 

services concerned by the agreement or practice, and/or 

–  the extent to which the agreement or practice corresponds or is liable to correspond 

to more wide spread economic usage in the marketplace and/or 

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

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

Furthermore, the Commission will not consider a request for a guidance letter in either of the 
following circumstances: 

–  the  questions  raised  in  the  request  are  identical  or  similar  to  issues  raised  in  a  case 

pending before the General Court or the European Court of Justice; 

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

The Commission will not consider hypothetical questions and will not issue guidance letters 
on agreements or practices that are no longer being implemented by the parties. Undertakings 
may  however  present  a  request  for  a  guidance  letter  to  the  Commission  in  relation  to 
questions  raised  by  an  agreement  or  practice  that  they  envisage, 
i.e.  before  the 
implementation of that agreement or practice. In this case the transaction must have reached 
a sufficiently advanced stage for a request to be considered. 

Page 5/7 – Informal guidance 

3.2.  The effects of Guidance Letters 

(12)  Guidance letters are in the first place intended to help undertakings carry out, by themselves, an 

informed assessment of their agreements and practices. 

(13)  A guidance letter cannot prejudge the assessment of the same question by the EU Courts. 

(14)  Where  an  agreement  or  practice  has  formed  the  factual  basis  for  a  guidance  letter,  the 
Commission is not precluded from subsequently examining that same agreement or practice in a 
procedure  under  Regulation  1/2003,  in  particular  following  a  complaint.  In  that  case,  the 
Commission will take the previous guidance letter into account, subject in particular to changes in 
the underlying facts, to any new aspects raised by a complaint, to developments in the case law of 
the European Courts or wider changes of the Commission’s policy. 

(15)  Guidance  letters  are  not  Commission  decisions  and  do  not  bind  Member  States’  competition 
authorities  or  courts  that  have  the  power  to  apply  Articles  101  and  102  TFEU.  However,  it  is 
open  to  Member  States’  competition  authorities  and  courts  to  take  account  of  guidance  letters 
issued by the Commission as they see fit in the context of a case. 

3.3.  Processing of the request 

3.3.1.  Analysis of the request against criteria, priorities and facts 

(16)  The Commission, seized of a request for a guidance letter, will consider whether it is appropriate 
to  process  it  or  not.  A  first  reply  should  be  sent  by  the  unit  dealing  with  the  request  to  the 
applicant(s)  within  fifteen  working  days  following  the  receipt  of  the  request.  Two  answers  are 
possible at that stage: 

– 

– 

A  letter  directly  rejecting  the  request:  this  will  allow  immediate  rejection  of  requests  which 
obviously  (i)  do  not  fulfil  the  criteria  or  (ii)  are  not  considered  as  a  priority.  The  letter 
rejecting the request will not refer to the substance but only to the fact that the Commission 
does not consider it as a priority. It should also state that Commission is not precluded from 
subsequently  examining  that  same  agreement  or  practice  in  a  procedure  under  Regulation 
1/2003.  

A  holding  reply,  if  the  request  seems  to  fulfil  the  criteria  detailed  above  and  merits  to  be 
further analysed. The letter will indicate that the Commission services are currently analysing 
the request and that the final evaluation (issuance of a guidance letter or refusal) will follow. 

(17) 

In order to make this first assessment of the request, the unit should: 

– 

– 

– 

make a first assessment of the request against the conditions set out in the Notice; 

check the facts set out by the undertakings; 

make a first assessment whether it is appropriate to prepare a Guidance letter in the light of 
DG Competition’s enforcement priorities.  

3.3.1.1  Analysis against the Notice 

(18)  The  Notice  on  Informal  Guidance  provides  that  the  issuing  of  a  guidance  letter  may  only  be 

considered if the cumulative conditions listed above are fulfilled.  

 
Antitrust Manual of Procedures 

(19) 

If one condition fails, the request should be rejected. 

3.3.1.2  Checking of facts 

(20)  The  Notice  on  Informal  Guidance  provides  that  the  Commission  will  in  principle  evaluate  the 
request on the basis of the information provided by the undertakings. It follows that a request that 
does not set out the facts in a conclusive manner should be rejected.  

(21)  The  Commission  may  use  additional  information  at  its  disposal  from  public  sources,  former 
proceedings  or  any  other  source  and  may  ask  the  applicant(s)  to  provide  supplementary 
information. 

3.3.1.3  Assessment against priorities 

(22)  The unit in charge of the request should also make a first assessment of whether the issuing of a 
guidance  letter  is  appropriate  in  the  light  of  the  enforcement  priorities.  For  this  purpose  the 
priority-setting principles can be applied correspondingly.  

(23)  A  request  that  is  not  considered  as  a  priority  in  the  light  of  the  enforcement  policy  should  be 

rejected. 

3.3.2.  Refusal to issue a Guidance Letter 

(24)  The  Notice  on  Informal  Guidance  provides  that  where  no  guidance  letter  is  issued,  the 
Commission should inform the applicant(s) accordingly. In practice, this will normally be done by 
a letter signed by the competent Director. 

3.4.  Adoption of a Guidance Letter 

(25) 

If  it  is  decided  to  issue  a  guidance  letter,  it  might  be  necessary  to  collect  supplementary 
information,  including  by  informal  enquiries  (while  respecting  the  normal  rules  on  professional 
secrecy with regard to the information supplied by the applicant(s)).  

(26) 

 According to the Notice on Informal Guidance, a guidance letter sets out: 

– 

– 

a summary description of the facts on which it is based; 

the  principal  legal  reasoning  underlying  the  understanding  of  the  Commission  on  novel 
questions relating to Articles 101 and/or 102 TFEU raised by the request. 

(27)  According  to  the  Notice  on  Informal  Guidance,  a  guidance  letter  may  be  limited  to  part  of  the 
questions  raised  in  the  request.  It  may  also  include  additional  aspects  to  those  set  out  in  the 
request. 

(28)  The Commission may share the information submitted to it with the Member States’ competition 

authorities and receive input from them.    

(29) 

 According  to  the  Notice  on  Informal  Guidance,  the  guidance  letter  will  be  posted  on  the 
Commission’s web-site, having regard to the legitimate interest of undertakings in the protection 
of  their  business  secrets.  Before  issuing  a  guidance  letter,  the  Commission  will  agree  with  the 
applicants on a public version. It follows that the service in charge of the preparation should ask 
the  undertakings  at  an  early  stage  for  a  definitive  position  on  whether  their  request  contains 
business  secrets  or  other  confidential  information  that  they  would  not  wish  to  see  used  in  the 
published  guidance  letter.  The  case-handling  unit  should  explore  with  the  undertaking  the 
possibilities  to  protect  the  information  for  which  confidentiality  is  claimed  while  making  public 
meaningful guidance. If the contacts with the undertakings on this matter lead to the conclusion 

Page 7/7 – Informal guidance 

that useful guidance could only be issued (and made public) if certain information is revealed that 
the undertakings do not wish to see disclosed, the request for a guidance letter should be rejected. 

(30)  Before the draft guidance letter is submitted for adoption, the Competition Commissioner should 
be  asked  to  give  his/her  approval.  The  guidance  letter  is  adopted  by  the  College  (normally  by 
written  procedure),  following  an  inter-service  consultation.  Once  adopted,  the  guidance  letter  is 
sent by the Secretariat general to the applicant(s). 

3.4.1.  Publication on DG Competition website 

(31)  According  to  the  Notice  on  Informal  Guidance,  the  Guidance  letter  will  be  posted  on  the 
Commission’s web-site, having regard to the legitimate interest of undertakings in the protection 
of  their  business  secrets.  Before  issuing  a  guidance  letter,  the  Commission  will  agree  with  the 
applicant(s) on a public version. 

(32)  DG Competition will consequently send a letter to the applicant(s) to ask them a non-confidential 

version of the guidance letter in order to publish it on DG Competition website. 

(33) 

It  should  be  indicated  on  the  website  that  the  publication  is  for  information  purposes  only  and 
should not be considered as an official publication. 

 
Page 1/3 – Closure of Proceedings 

23 Closure of Proceedings 

1. 

Introduction 

2. 

Consultation process 

2.1.  Legal Service 

2.2.  Other DGs 

3. 

Adoption of the decision to close 

4.  Notification to the party/ies 

5. 

Information of the Member States 

6. 

Publication 

2 

2 

2 

3 

3 

3 

3 

3 

 
Antitrust Manual of Procedures 

(1) 

The  present  module  only  relates  to  the  “closure  of  proceedings”,  which  is  distinct  from  the 
administrative  “closure  of  the  file”.  It  is  important  to  keep  in  mind  the  distinction  between  the 
two:  

–  the  closure  of  proceedings,  which  mirrors  the  decision  of  opening  of  proceedings  in  a  given 
case, under Art. 11(6) Reg. 1/2003 and Art. 2(1) Reg. 773/2004. This is done by the adoption of a 
decision  by  the  Director  General  for  Competition  on  the  basis  of  powers  that  have  been 
subdelegated to him/her;  

–  the closure of the file: this is a purely administrative closure (which implies that the case, which 
bears a case management application number, does not remain endlessly “open” in this database) 
(see the module on administrative closure of the file). 

1.  Introduction 

(2) 

(3) 

(4) 

(5) 

Normally at the end of the initial assessment phase (i.e. once the case has been considered to merit 
further  investigation)  or  at  a  later  stage  (at  the  latest  when  a  SO  is  adopted),  proceedings  are 
initiated by a Commission decision (to exercise this competence the Competition Commissioner 
has received an empowerment) (see Module Opening of proceedings). 

It  is  possible  that  such  a  proceeding  will  end  with  the  adoption  of,  for  instance,  a  prohibition 
decision, a commitment decision or/and a decision to reject a complaint. 

However,  it  may  be  that  in  the  end  no  such  decision  is  adopted,  for  instance  if  it  appears  that 
there is not sufficient evidence to find an infringement or if a complaint has been withdrawn. It 
may also be that a prohibition decision is adopted against some of the parties, but that the case 
needs  to  be  closed  against  others,  for  instance  because  of  the  lack  of  evidence  of  their 
involvement in the infringement (partial closure). 

In such situations, the  proceedings, that have been opened1, have to be closed (in full or in part) 
by a formal Commission decision (sub-delegated to the Director General for Competition) since 
proceedings were also initiated by Commission decision (taken by the Competition Commissioner 
under empowerment). This closure decision will be brief, giving no details as to the substance, but 
will simply state the fact of closure.  

2.  Consultation process 

2.1.  Legal Service 

(6) 

(7) 

The Legal Service should be consulted on the proposal to close the case on the basis of the draft 
decision. 

In cases of partial closure, the consultation may be done at the same time as the consultation on 
the rest of the case. In other words, if proceedings are to be closed against one company, while a 
prohibition decision is proposed against others, the consultation on the proposal to close and on 
the preliminary draft prohibition decision may be done simultaneously. 

1  

In cases where no proceedings have been opened such as in many complaint cases, a closure of proceedings is 
obviously not necessary. 

                                                 
Page 3/3 – Closure of Proceedings 

2.2.  Other DGs 

(8) 

In accordance with Article 2 of the Commissioner’s empowerment decision, no prior information 
of other services is required on the closure of the proceedings.  

3.  Adoption of the decision to close 

(9) 

The power to adopt the decision to close proceedings (in full or in part) has been sub-delegated to 
the Director General for Competition, by decision of the Commissioner of 27 May 2004.  

4.  Notification to the party/ies 

(10)  Once the decision to close proceedings has been adopted, the decision has to be notified to the 

parties in the authentic language. 

5.  Information of the Member States 

(11)  Member States are informed of the decision to close proceedings. 

6.  Publication 

(12)  When closing proceedings in relation to one or several parties at an early stage after proceedings 
have been formally opened and this has been made public, the Commission will normally note the 
closure on its website (by a short standard text) and, if appropriate, issue a press release 2.  

2  

See para. 76 of the Commission Notice on Best practices on the conduct of proceedings in Articles 101 and 102 
TFEU. 

                                                 
 
Page 1/3 – Administrative closure of the file 

24 Administrative closure of the 

file 

1. 

Introduction 

2. 

Closure of the file 

3. 

Information about the closure of the case 

2 

2 

3 

 
Antitrust Manual of Procedures 

1.  Introduction 

(1) 

The present module only relates to the administrative “closure of the file”, which is distinct from the 
official and formal “closure of proceedings”. It is important to keep in mind the distinction between 
the two: 

–  closure of proceedings, which mirrors the decision to initiate proceedings in a given case, under 
Article 11(6) of Regulation No 1/2003 and Art. 2(1) Reg. 773/2004. This is done by the adoption of 
a  decision  by  the  Director  General  for  Competition  on  the  basis  of  powers  that  have  been  sub-
delegated to him/her (see the module on closure of proceedings); 

–  closure of the file: this is a purely administrative closure (which implies that the case, which bears a 

case management application number, does not remain “open” in this database). 

(2) 

Once  a  case  has  been  attributed  a  number  by  the  Antitrust  Registry  of  DG  Competition  (and 
accordingly loaded in the case management application), the case is “ongoing” as long as it has not 
been  closed.  Therefore,  and  whatever  the  motive  for  concluding  the  case  (prohibition  decision, 
commitment decision, rejection of complaint, withdrawal of the complaint, DG Competition decides 
not  to  investigate  the  case  further,  decision  to  close  proceedings,  etc),  the  case  needs  to  be 
administratively closed in the case management system. 

(3) 

This closure of the file is a purely administrative act, which allows DG Competition to keep its files 
(and databases) in order and to inform Member States of the state of play of DG Competition cases. 

2.  Closure of the file 

(4) 

(5) 

(6) 

(7) 

In order to close the file, the relevant Head of Unit signs and sends a “note de classement” to the 
Registry, with an indication of the “closure motive” and “closure type”. This must be done even if it 
is expected that there may be an appeal against the decision adopted by the Commission in this case 
(prohibition decision, commitment decision, rejection of complaint, etc). 

The Head of Unit ensures that the case file is properly managed and that the file is complete at the 
stage of the administrative closure. A case is complete once all relevant documents to the case are 
uploaded into the case management application, which represents the master file for the case. This is 
mainly done during the case life for all incoming and outgoing documents, no matter the format and 
the sender. Clearly non-related documents and doubles should be taken out (see detailed information 
on the Intranet page of the Antitrust Registry on filing and closing a file). 

The file must then be archived. For cases numbered 39268 or more, the Registry holds the file via 
the case management application (the paper file does not any more constitute the original file). 

The case-team should inform the Registry whether the closure is definitive or whether an appeal or 
needs of monitoring are likely. 

Page 3/3 – Administrative closure of the file 

3.  Information about the closure of the case  

(8)  Whenever there had been a formal initiation of proceedings or a submission of a formal complaint, 
parties and/or complainants will be informed of the outcome of the case (for example by receiving a 
prohibition  decision,  a  commitment  decision,  a  decision  to  reject  the  complaint,  a  closure  of 
proceedings  decision  etc.).  There  is  therefore  no  need  to  inform  them  in  addition  of  the 
administrative  closure  of  the  file  (see  relevant  chapters  per  decision  types  on  the  information  and 
publication process). 

(9) 

(10) 

However,  where  this  has  not  been  the  case,  the  companies  subject  of  the  investigation,  notably  if 
involved  earlier  in  the  proceedings,  should  be  informed  by  informal  letter  of  the  administrative 
closure  of  the  case  (e.g.  when  a  company  has  been  informed  of  investigations  about  it  due  to  a 
complaint, which finally has been withdrawn or rejected or when finally solely an association remains 
the addressee of the decision, but not the members of that association subject to the investigation).  

In case inspections or other investigative measures involving companies have taken place and been 
confirmed  on  the  DG  Competition  website  and/or  through  a  press  release,  but  not  led  to  a  final 
decision, the closure of these investigations and case should normally be made public via the same 
means1.  

1  

See  para.  76  of  the  Commission  Notice  on  best  practices  on  the  conduct  of  proceedings  in  Articles  101  and  102 
TFEU (OJ C308, 20.10.2011, p. 6). 

                                                 
 
Page 1/6 – Follow-up of decisions  

25 Follow-up of decisions 

1. 

The recovery of fines/periodic penalty payments and the 
waiver of such recovery 

1.1.  List of applicable rules 

1.2.  Recovery 

1.2.1.  Obligation to pay within the time limit set by the decision and exceptions 
1.2.2.  Failure to pay within the time-limit 

1.3.  Waiver of the recovery of fines 

1.3.1.  Situations where a waiver of fines may be decided 
1.3.2.  Internal responsability for the adoption of the decision to waive the 

recovery of fines 

1.3.3.  Preparation of the decision to waive the recovery of fines 
1.3.4.  Adoption procedure of the decision to waive the recovery of fines 

2.  Monitoring of remedies 

2.1.  Monitoring cease and desist orders (Art. 7(1) Reg .1/2003) 

2.2.  Monitoring of binding commitments (Article 9 of Regulation 1/2003) 

2 

2 

2 
2 
3 

4 
4 

4 
5 
5 

5 

5 

6 

 
Antitrust Manual of Procedures 

The adoption of a decision is not necessarily the end of the case. Notwithstanding possible appeals (see 
Module on Court Litigation), the life of the case after the adoption and notification of a decision may 
include, where appropriate, the recovery of fines or periodic penalty payments and the monitoring of 
remedies imposed by the decision. These aspects are briefly dealt with below. 

1.  The recovery of fines/periodic penalty 

payments and the waiver of such recovery 

1.1.  List of applicable rules 

(1) 

The  recovery  of  fines  and  periodic  penalty  payments  (including  the  waiver  of  such  recovery)  is 
governed by a number of EU Budget rules, including: 

–  The Financial Regulation1 (notably Article 73); 

–  The Implementing Rules2 (notably Articles 82-89); 

1.2.  Recovery 

(2) 

Any  decision  imposing  fines  (for  more  background  information,  see  Module  on  Prohibition 
Decisions)  or  periodic  penalty  payment  (for  more  background  information,  see  Module  on 
Periodic Penalty Payment) already provides for the following in its operative part (which has to be 
submitted to DG Budget before adoption – see the relevant Modules referred above):  

–  amount of the fine (or periodic penalty payment), 

–  indication of the currency in which the fine should be paid (euros), 

–  deadline for payment (3 months from the notification), 

–  bank account to which it should be paid, 

–  interest rate if payment is not made in due time. 

(3) 

(4) 

1  

2  

Immediately after the adoption of a decision imposing a fine or a periodic penalty payment, it is 
necessary to establish a recovery order by the authorizing officer (the Director of the operational 
Directorate in charge of the underlying case).  

1.2.1.  Obligation to pay within the time limit set by the decision 

and exceptions 

At the latest on the date set by the decision for payment, the fine (or periodic penalty payment) 
must  be  paid  pursuant  to  Article  299  TFEU  (the  Commission's  decisions  are  enforceable)  and 
Article 278 TFEU (the appeal does not have suspensory effect).  

Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of 
the European Communities (OJ L 357, 31.12.2002, p. 1), as last amended by Council Regulation (EC, Euratom) 
No 1995/2006 of 13 December 2006 (OJ L 390, 30.12.2006, p. 1). 

Commission Regulation (EC, EURATOM) No 2342/2002 of 23 December 2002 laying down detailed rules for the 
implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the 
general budget of the European Communities (OJ L 357, 31.12.2002, p. 1), as last amended by Regulation (EC, 
EURATOM) No 478/2007 of 23 April 2007 (OJ L111, 28.4.2007, p. 13). 

                                                 
Page 3/6 – Follow-up of decisions  

(5) 

There may however be two particular scenarios. 

1.2.1.1  Challenge before the EU Courts  

(6) 

(7) 

(8) 

(9) 

(10) 

If  the  addressee  of  the  decision  decides  to  challenge  the  decision,  it  has  to  opt  between  a 
provisional payment or a bank guarantee complying with certain minimum requirements, both to 
be  deposited  before  the  due  date  (see  Article  85a  of  the  Implementing  Rules).  The  addressee  is 
informed of that possibility in the cover letter of notification of the decision imposing a fine sent 
by the Secretariat-General. 

The  discussions  between  the  Commission  and  the  addressee  of  the  decision  with  regard  to  the 
provisional  payment  or  bank  guarantee  are  of  the  competence  of  DG  Budget  (as  Accounting 
Officer).  If  the  company  opts  for  a  bank  guarantee  (and  which  is  accepted  by  DG  Budget,  as 
Accounting  Officer),  the  payment  of  the  fine  (and  default  interest  as  the  case  may  be3)  will  be 
deferred until the judgment; depending on the outcome of the Court case, the guarantee will be 
enforced or released.  

Note  however  that  the  addressee  of  the  decision  can  decide  to  ask  the  Court  to  suspend  its 
payment obligation (interim measures) without even the constitution of a bank guarantee. This is 
however only exceptionally granted by the Court, often under conditions.4 

1.2.1.2  The granting of payment facilities and/or fine reductions  

Exceptionally, the addressee of the decision may be granted payment facilities by the Accounting 
Officer  of  the  Commission  (Article  85  of  the  Implementing  Rules).  Such  facilities  will  take  the 
form  of  instalment  payments  (the  undertaking  agrees  to  pay  a  certain  sum  at  regular  points  in 
time). Such facilities will only be granted if the conditions of Article 85 of the Implementing Rules 
are  met  (notably  the  provision  of  a  bank  guarantee  covering  the  debt  outstanding  in  both  the 
principal sum and the interest).  

Instead of the above-referenced payment facilities (or in combination therewith), the Commission 
may also defer payment of a fine without coverage by a bank guarantee or it may fully or partially 
reduce a fine if the conditions of point 35 of the 2006 Fining Guidelines ("inability to pay") are 
fulfilled. Such exceptional deferred payment or reduction/cancellation of a fine on inability to pay 
grounds requires a College decision (for further details see Information Note on inability to pay 
and payment conditions by Commissioners Almunia and Lewandowski of June 2010, SEC(2010) 
737). The rejection of a post-decision request invoking inability to pay is done by administrative 
letter signed by the Director-General of DG Competition.  

1.2.2.  Failure to pay within the time-limit  

(11)  DG Budget is responsible for the recovery of fines and periodic penalty payments. 

(12) 

(13) 

3   

4  

If the fine is not discharged within the deadline set by the decision (and assuming the exceptions 
above do not apply), the Accounting Officer first proceeds with a letter of formal notice. 

If the fine remains unpaid after the sending of the letter of formal notice, DG Budget will launch 
the enforcement procedure ("exécution forcée"). Article 299 TFEU reads as follows: 

The default interest in case of a bank guarantee is lower than the default interest applicable to a company that 
simply does not pay (rate applied by the ECB to its principal refinancing operations in force on the first calendar 
day  of  the  month  in  which  the  decision  is  adopted  plus  1.5  percentage  points  in  case  of  a  bank  guarantee, 
instead of 3.5 percentage points in other cases) (see article 86 of the Implementing Rules). 

See,  for  recent  examples,  the  orders  of  the  President  of  the  General  Court  of  7.7.2006  in  Case  T-11/06 R 
Romana Tabacchi SpA v Commission; of 2.3.2011 in Case T-392/09 R 1. garantovaná a.s. v Commission; and of 
13.4.2011 in Case T-393/10 R Westfälische Drahtindustrie GmbH v Commission. 

                                                 
Antitrust Manual of Procedures 

"Acts  of  (…)the  Commission  (…)  which  impose  a  pecuniary obligation on persons  other  than States, shall be 
enforceable. 

Enforcement  shall  be  governed  by  the  rules of  civil procedure in  force in the  State in the territory  of  which it is 
carried out. The order for its enforcement shall be appended to the decision, without other formality than verification 
of  the  authenticity  of  the  decision,  by  the  national  authority  which  the  government  of  each  Member  State  shall 
designate for this purpose and shall make known to the Commission and to the Court of Justice. 

When  these  formalities  have  been  completed  on  application  by  the  party  concerned,  the  latter  may  proceed  to 
enforcement in accordance with the national law, by bringing the matter directly before the competent authority." 

1.3.  Waiver of the recovery of fines 

(14) 

Fines  are  imposed  to  be  enforced.  There  may  however  be  exceptional  situations  where  fines 
cannot be recovered and may therefore be waived (for exceptional fine reductions/cancellations 
on inability to pay grounds see 1.2.1.2. above). The waiver of recovery of fines is governed notably 
by Article 73 of the Financial Regulation and Articles 87 et seq of the Implementing Rules. 

1.3.1.  Situations where a waiver of fines may be decided 

(15)  Article 87(1) of the Implementing Rules provides that: 

"the authorising officer responsible may waive recovery of all or part of an established amount receivable only 
in the following cases: 

(a) where the foreseeable cost of recovery would exceed the amount to be recovered and the waiver would not 
harm the Community's image; 

(b) where the amount receivable cannot be recovered in view of its age or the insolvency of the debtor; 

(c) where recovery is inconsistent with the principle of proportionality." 

(16)  With  regard  to  fines  and  periodic  penalty  payments,  it  is  generally  in  the  situation  of  the 
liquidation of the debtor that the recovery of a fine could be waived if the necessary conditions are 
fulfilled and after careful examination and consultation with DG Budget and the Legal Service. 

(17)  The  waiver  may  concern  all  or  part  of  the  fine  (for  instance,  the  undertaking  may  have  already 
paid a part of the fine; only the recovery of the remainder – and of the default interests – would 
then be waived).  

1.3.2. 

Internal responsability for the adoption of the decision to 
waive the recovery of fines 

(18)  The determination of the competent authority within the Commission to waive the recovery of a 
fine depends on the amount to be waived (this amount includes the fine and the default interest).  

(19)  DG Competitionis responsible for the waiving decision (and not DG Budget) since the Director 
General of DG Competition is by delegation the Authorising Officer ('ordonnateur') of the fine in 
the Commission's financial procedure.  

(20)  However in practice, waivers of the recovery of antitrust fines are most often of the competence 
of  the  College,  as  the  waiving  of  recovery  of  an  established  amount  receivable  may  not  be 
delegated where the amount to be waived:  

– is EUR 1,000,000 or more; or  

Page 5/6 – Follow-up of decisions  

– is  EUR  100,000  or  more,  where  this  represents  25  %  or  more  of  the  established  amount 

receivable  (Article 87(4) of the Implementing Rules). 

1.3.3.  Preparation of the decision to waive the recovery of fines 

(21)  The case-team has to prepare a draft decision waiving recovery of the fine. Such a decision must 
be substantiated and refer to the diligence exercised to secure recovery and the points of law and 
fact on which the waiver is based (Article 87(3) of the Implementing Rules). The decision should 
contain  a  short  review  of  the  case  and  the  decision  of  the  Commission  imposing  the  fines,  and 
make a summary of DG Budget's and the Legal Service's efforts to recover the fine. It should also 
contain a reasoning why the conclusion is justified that the Commission, in accordance with the 
principles of proportionality and of sound financial management, decide to waive the recovery of 
the fine in question (in accordance with Articles 73 of the Financial Regulation and Article 87 1 (b) 
of the Implementing rules on the recovery of fines). 

(22)  The  decision  has  only  two  Articles  in  the  operative  part:  Article  1  stating  that  "the  European 
Commission hereby waives the recovery of the amount of the fine of EUR XXX imposed on that 
company"  and  Article  2  stating  that  "the  Director-General  of  DG  Competition,  acting  as  the 
competent authorising officer by delegation, is hereby authorised to draw up a negative recovery 
order  for  the  amount  mentioned  in  Article  1  and  to  record  it  in  the  general  accounts  of  the 
European Commission".  

(23)  A waiver decision could refer to the whole or to only one part of the fine imposed which remains 
unpaid (for instance, the company may have already paid a part of the fine; only the recovery of 
the remainder – and of the default interests – would then be waived).  

1.3.4.  Adoption procedure of the decision to waive the recovery 

of fines 

(24)  The draft decision to waive the recovery of a fine has to be approved by the Legal Service and by 

DG Budget. The adoption of the decision will be with the written procedure. 

2.  Monitoring of remedies  

2.1.  Monitoring cease and desist orders (Art. 7(1) 

Reg .1/2003) 

(25)  Most prohibition decisions include a so-called "cease and desist order", i.e. an injunction to stop 
or not to repeat the same or a similar illegal conduct5. Unless specified otherwise, this injunction 
applies  immediately.  If,  for  objective  reasons,  it  is  not  possible  to  end  immediately  the 
infringement, transitory deadlines may be granted to the companies. 

(26)  The  monitoring  of  such  cease  and  desist  orders  may  be  based  on  tools  provided  for  in  the 
decision itself, such as a reporting obligation. For example, a dominant company having abused its 
position through an illegal pricing policy may have to regularly report its prices to the Commission 
during a number of years. 

5  

It  is  generally  worded  as  follows:  "The  undertaking(s)  shall  immediately  bring  to  an  end  the  infringement 
[described in Article 1 of the decision] insofar as it (they) have not already done so. It (they) shall refrain from 
any  act  or  conduct  described  in  Article  1  and  from  any  act  or  conduct  having  the  same  or  a  similar  object  or 
effect." 

                                                 
Antitrust Manual of Procedures 

(27)  The violation of a cease and desist order may lead to the adoption of a periodic penalty payment 

decision (see Module on periodic penalty payment).  

(28)  The  follow-up  actions  (such  as  a  decision  on  periodic  penalty  payment)  do  not  require  the 
adoption of a decision to open proceedings neither do they require a decision to close proceedings 
once  monitoring  is  no  longer  deemed  necessary.    The  Commissioner  for  Competition  can 
however issue a public statement to take note that the addressees of the prohibition decision have 
adjusted their behaviour to the cease and desist orders. 

(29) 

Instead of pursuing an undertaking for violation of a cease and desist order the Commission may 
equally  decide  to  open  a  new  investigation  (with  a  decision  to  open  proceedings)  in  the  case  of 
infringements that were continued or repeated despite a prohibition decision including a cease and 
desist  order.  The  starting  date  of  such  a  new  infringement  would  be  the  date  of  the  previous 
Commission decision or a subsequent date from which the recommencing of the infringement can 
be proven. In such a case the legal entities within the undertaking that continued or repeated the 
same infringement may also be liable for the aggravating circumstance of recidivism6.  

2.2.  Monitoring of binding commitments (Article 9 

of Regulation 1/2003) 

(30)  Where the Commission intends to adopt a decision requiring that an infringement be brought to 
an  end  and  the  undertakings  concerned  offer  commitments  to  meet  the  concerns  expressed  to 
them  by  the  Commission  in  its  preliminary  assessment  or  in  a  statement  of  objections,  the 
Commission  may  by  decision  make  those  commitments  binding  on  those  undertakings  (Article 
9(1) of Regulation No 1/2003).  

(31)  The implementation of commitments often requires monitoring by the Commission. For details 

see the Module on commitment decisions. 

(32)  To enforce compliance with the commitments, the Commission can  

• 

• 

impose fines if the undertakings or associations of undertakings fail to comply with a 
commitment (Article 23(2)(c) of Regulation No 1/2003);  

impose daily penalty payments to compel the undertaking or the association of undertakings 
to comply with a commitment (Article 24(1)(c) of Regulation No 1/2003). 

(33) 

For details on the procedure to follow if fines and/or daily penalty payments need to be imposed, 
see Module on Periodic Penalty Payment. 

6  

See  point  28  of  the  2006  -  Guidelines  on  the  method  of  setting  fines  imposed  pursuant  to  Article  23(2)(a)  of 
Regulation No 1/2003. Official Journal C 210, 1.09.2006, p. 2-5. 

                                                 
Page 1/8 – Court litigation 

26 Court litigation 

1.  Overview of the EU Court system 

1.1.  EU Courts 

1.2.  Main types of legal actions 

1.2.1.  Action for annulment (article 263 TFEU) ("recours en annulation") 
1.2.2.  Request for preliminary ruling (article 267 TFEU) ("question préjudicielle") 
1.2.3.  Failure to act (article 265 TFEU) ("recours en carence") 
1.2.4.  Damage claims (article 268 TFEU) ("action en dommages et intérêts") 
1.2.5.  Appeals (article 256 TFEU) ("pourvoi") 
1.2.6.  Interventions 
1.2.7.  Interim measures ("référé") 

1.3.  Basic elements of EU Court procedures 

1.3.1.  Language 
1.3.2.  Chambers 
1.3.3.  Procedure 
1.3.4.  Outcome 
1.3.5.  Deadlines 

2. 

Internal procedure within the Commission in case of 
litigation 

2.1.  Features common to all types of legal actions 

2.1.1.  Relations with LS 

2.2.  Specific remarks applicable to some types of legal actions 

2.2.1.  Appeals before the Court of Justice against General Court judgments 
2.2.2.  Failure to act (article 265 TFEU) 

2 

2 

2 
2 
2 
3 
3 
3 
3 
3 

3 
4 
4 
4 
5 
5 

6 

6 
6 

6 
6 
7 

 
Antitrust Manual of Procedures 

1.  Overview of the EU Court system 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The present section is intended to give an overview on the EU judicial system that avoids the use 
of  technical  jargon.  The  lack  of  technical  legal  language  in  this  section  is  therefore  a  deliberate 
choice, reflecting the limited objective of this section. For further information, please revert to the 
website of the Court of Justice. 

1.1.  EU Courts 

The  Court  of  Justice  of  the  European  Union  is  one  of  the  EU  institutions.  It  is  based  in 
Luxembourg. It is now composed of three different courts: the Court of Justice of the European 
Union  ("Court  of  Justice"  also  known  as  the  “ECJ”)  (this  wording  therefore  refers  to  both  the 
European institution as a whole and to one of the Courts of that institution), the General Court of 
the European Union ("General Court", formerly known as the "Court of First Instance" or "CFI") 
and the European Union Civil Service Tribunal. In relation to DG Competition's activities, only 
the first two are relevant. 

To  keep  it  simple,  for  antitrust  activities,  the  Court  of  Justice  deals  only  with  appeals  from  the 
General Court and questions referred to it by a national court. All other antitrust litigation is under 
the  jurisdiction  of  the  General  Court.  Judgments  of  the  General  Court  can  be  appealed  to  the 
Court of Justice as of right. 

The  General  Court  and  the  Court  of  Justice  are  composed  of  27  judges  (i.e.  one  per  Member 
State). The Court of Justice also includes eight Advocates General who (as, opposed to the judges) 
do  not  decide  on  the  case,  but  who  provide  the  Court  with  their  opinion  of  the  case  and  the 
solution in law which should be applied in their view. Opinions of Advocates General are made 
public. The General Court does not have permanent Advocates General, but may appoint one in a 
given case of particular complexity, although it has not used that possibility for years. 

1.2.  Main types of legal actions 

In  non-technical  terms,  the  TFEU  provides  for  a  number  of  possible  legal  actions  before  the 
European Courts. The following paragraphs give an idea of the most relevant ones in relation to 
an antitrust case. 

1.2.1.  Action for annulment (article 263 TFEU) ("recours en 

annulation") 

This  is  by  far  the  most  frequent  type  of  proceedings.  In  such  a  case,  an  applicant  is  asking  the 
General  Court  to  annul  an  act  of  the  EU  institutions  (in  general  either  because  of  a  procedural 
irregularity  or  because  of  an  incorrect  assessment  of  the  substance  of  the  case).  For  DG 
Competition's antitrust activities, this can be for instance the addressee of a prohibition decision 
challenging  the  validity  of  that  decision;  or  a  complainant  asking  for  the  annulment  of  the 
Commission's  decision  by  which  its  complaint  has  been  rejected.  On  average,  in  the  area  of 
antitrust, there are around 50 new actions for annulment every year. 

1.2.2.  Request for preliminary ruling (article 267 TFEU) 

("question préjudicielle") 

(7) 

National  courts  frequently  deal  with  questions  involving  EU  law.  They  may  then  face  difficult 
questions of interpretation of the relevant EU law or even have doubts as to the validity of that 
legislation  or  a  decision  adopted  under  it.  In  order  to  have  a  uniform  interpretation  of  EU  law 

Page 3/8 – Court litigation 

throughout  the  EU,  the  Treaty  allows  national  courts  to  raise  such  questions  to  the  Court  of 
Justice. Such requests by a national court to the Court of Justice are the "requests for preliminary 
ruling ". With regard to DG Competition's activities, this may be for instance a question on the 
interpretation of a Block Exemption Regulation, or the powers of a NCA in applying EU antitrust 
law. On average, in the antitrust area, there are 5 to 10 preliminary ruling requests every year. 

1.2.3.  Failure to act (article 265 TFEU) ("recours en carence") 

(8) 

By such an action, the applicant challenges an EU institution for not having adopted a decision. 
For DG Competition's activities, this may for instance be the case where a complainant considers 
that  the  Commission  does  not  act  on  its  complaint.  Such  actions  are  rare  in  relation  to  DG 
Competition's activities. 

1.2.4.  Damage claims (article 268 TFEU) ("action en dommages 

et intérêts") 

(9) 

The applicant requests the Court to find that it has suffered harm as a result of an illegal action of 
an  EU  institution  and  therefore  asks  the  Court  to  award  damages.  In  relation  to  DG 
Competition's activities, such actions have been exceptional. 

1.2.5.  Appeals (article 256 TFEU) ("pourvoi") 

(10) 

(11) 

Judgments  of  the  General  Court  can  in  turn  be  appealed,  in  whole  or  in  part,  to  the  Court  of 
Justice  by  the  unsuccessful  party,  before  the  General  Court.  The  Commission  may  therefore  be 
the appellant if it has been unsuccessful before the General Court. 

Such appeals are limited to questions of law (the Court of Justice does not review the facts of the 
case unless it can be shown that the General Court clearly distorted the obvious meaning of the 
evidence before it). A significant number of General Court judgments in the competition field are 
appealed before the Court of Justice every year. 

1.2.6. 

Interventions 

(12)  This is not a distinct form of action in itself. With such a procedure, a party having an interest in 
the outcome a pending case can intervene in the case in support of the applicant or the defendant. 
The intervention must first be authorised by the Court. 

1.2.7. 

Interim measures ("référé") 

(13)  This  is  not  an  independent  form  of  action.  An  applicant  can  only  ask  for  interim  measures  in 
parallel to its main action. For instance, with regard to DG Competition's antitrust activities, an 
applicant  can introduce  an action for annulment of a  prohibition decision imposing a  fine on it 
(main  proceedings)  and,  in  parallel,  ask  the  Court  to  suspend  the  payment  of  the  fine  while  the 
main proceedings are pending. The reason for making such a request for interim measures is that 
the bringing of the main proceedings does not suspend the obligations under of the Commission's 
decision (so the company has to pay the fine or give a bank guarantee even if it brings an action 
for annulment before the Court). 

1.3.  Basic elements of EU Court procedures 

(14)  The Court procedures are managed by the Legal Service, whose agents represent the Commission. 
Therefore, the following paragraphs only provide very general information that can be of interest 
for DG Competition case-teams. 

Antitrust Manual of Procedures 

1.3.1.  Language 

(15)  The  language  of  the  Court  case  is  the  EU  official  language  in  which  the  application  before  the 

Court is lodged. The Commission must respond to the application in that language. 

1.3.2.  Chambers 

(16)  Although it is legally possible that a judgment is delivered by the full Court (the 27 judges), this 
has  become  exceptional  in  practice.  Both  the  General  Court  and  the  Court  of  Justice  generally 
decide  cases  in  Chambers,  composed  of  a  more  limited  number  of  judges  (frequently  3  or  5). 
Before the General Court, antitrust cases are commonly decided by a 3-judge Chamber. One of 
the judges is appointed "judge rapporteur" by the Chamber (she/he will be mainly responsible for the 
case, notably for the drafting of the Report for the Hearing – see below - or the judgment). 

(17) 

Interim measures are, in principle, decided by the President of the relevant Court. 

1.3.3.  Procedure 

(18)  The procedure before the General Court and the Court of Justice is written and (possibly) oral. 

1.3.3.1  Written procedure 

(19)  The written procedure is particularly important in fact-intensive cases, as many antitrust cases are.  

(20) 

In direct legal actions (action for annulment, damage claim, failure to act), the written procedure 
includes a number of successive written pleadings ("mémoires"):  

–  Application  ("requête"):  starting  point  of  the  procedure,  the  application  is  the  basis  of  the 

legal action; 

–  Defence  ("défense"):  Commission's  reply  to  the  application  (prepared  and  sent  by  the  LS 

with the assistance of DG Competition) 

–  Reply ("réplique"): applicant's reply to the Commission's arguments 

–  Rejoinder ("duplique"): Commission's final reply to the applicant. 

(21) 

(22) 

(23) 

It is to be noted however that the General Court and the Court of Justice try to limit the number 
of  written  pleadings  (and  therefore  the  volume  and  length  of  the  procedure).  For  instance,  in 
appeal cases before the Court of Justice, there is normally only one round of written pleadings (so 
no  reply  and  no  rejoinder,  unless  decided  otherwise  by  the  Court).  Similarly,  the  General  Court 
has created a "fast track procedure" for cases that justify urgent treatment (for DG Competition 
activities, this may be the case for mergers)1; one feature of this expedited procedure is that there 
will normally be only one round of written pleadings. 

If a party intervenes in the case, it will lodge a statement in intervention ("mémoire en intervention"), 
to which the applicant and the defendant will usually be invited to comment on in writing. 

In references for preliminary rulings, the starting point of the case (and accordingly of the written 
procedure)  is  the  request  of  the  national  Court  itself.  All  parties  to  the  national  court  case  are 
invited  by  the  Court  of  Justice  to  submit  written  observations  on  the  questions  referred.  In 
addition all EU institutions and Member States receive a copy of the request for preliminary ruling 

1  

Article 76a of the Rules of Procedure of the General Court. 

                                                 
Page 5/8 – Court litigation 

and have a right to submit written observations to the Court of Justice. The Commission always 
submits observations in references from national courts. 

1.3.3.2  Oral procedure 

(24)  The  second  part  of  the  procedure  before  the  General  Court  and  Court  of  Justice  is  the  oral 
hearing.  A  few  weeks  before  the  hearing,  the  Court  provides  the  parties  with  a  "Report  for  the 
Hearing"; this Report, drafted by the Judge Rapporteur, is a brief summary of the parties' arguments. 
Sometimes, the Court may also send a few written questions to the parties, usually to be answered 
in writing in advance of the hearing or sometimes orally at the hearing. During the hearing, each 
party  presents  oral  pleadings  before  the  Court  -  around  30  -  45  minutes  is  typically  allowed  in 
competition cases; parties may then be asked a series of questions by the judges and (in the case of 
the  Court  of  Justice)  the  Advocate  General  (questions  are  an  invariable  feature  of  the  hearing 
before the General Court but not always before the Court of Justice). 

1.3.4.  Outcome 

(25)  The  normal  outcome  of  a  Court  case  is  the  delivery  of  a  judgment  after  the  written  and  oral 

procedure. 

(26) 

In  particular  situations,  the  outcome  may  however  take  the  form  of  an  "order"  ("ordonnance"), 
adopted without an oral procedure. There are a variety of possible orders that put an end to a case, 
such as: orders by which the Court finds that the action is inadmissible; orders by which the Court 
takes note of the withdrawal of the proceedings; orders by which the Court finds that there is no 
longer any reason to decide on the substance of the case, etc. Note that the Court may also adopt 
different sorts of orders during the lifetime of the case by which the Court decides on incidental 
issues  (such  orders  do  not  put  an  end  to  the  case):  orders  by  which  the  Court  accepts  the 
intervention  of  a  third  party;  orders  dealing  with  confidentiality  issues;  orders  deciding  on  an 
interim measure request, etc. 

1.3.5.  Deadlines 

(27)  Deadlines to lodge written pleadings (including, for instance, rules on the starting point of such 
deadlines),  are  governed  by  the  TFEU,  the  Protocol  on  the  Statute  of  the  Court  of  Justice, 
annexed to the TFEU, the Rules of Procedure of the Court of Justice and those of the General 
Court.  Such  deadlines  are  mandatory  and  any  late  application  will  be  inadmissible.  It  is  not  the 
purpose of this module to describe those rules (whether an application is late or not is a question 
for the LS to assess), especially since the Commission is usually a defendant. 

(28)  The only situation where the Commission may initiate proceedings is an appeal before the Court 
of Justice against a General Court judgment. Such an appeal must be lodged within two months of 
the  notification  of  the  General  Court  judgment/order  to  the  Commission  (that  date  should  be 
checked with the LS – it may be a few days after the date of the General Court judgment), plus ten 
days  on  account  of  distance2.  Special  rules  apply  when  the  deadline  ends  on  an  official  public 
holiday or a week-end (deadline extended to the end of the first following working day). All in all, 
in practice, this means that an appeal must be lodged before the Court, on average, 2 ½ months 
after the date of the judgment. 

(29)  Deadlines  during  the  Court  procedure  are  governed  by  the  Statute  of  the  Court  of  Justice,  the 
Rules of Procedure of the Court of Justice and those of the General Court. Most of them are at 
the  discretion  of  the  Courts  themselves  (for  instance:  deadline  for  the  Commission  to  lodge  its 
defence  or  its  rejoinder),  which  gives  the  possibility  to  the  Commission  (via  the  LS)  to  ask  for 

2  

Article 81(2) of the Rules of Procedure of the Court of Justice and Article 102(2) of the Rules of procedure of the 
General Court. 

                                                 
Antitrust Manual of Procedures 

extension.  It  must  be  noted  however  that,  in  order  to  speed  up  the  Court  process,  the  General 
Court has become more reluctant to grant extensions. Typically, the LS will have 2-3 months to 
draft and submit the Commission’s defence and a little less for the rejoinder.  DG Competition 
therefore needs to respond promptly to requests for assistance from the LS in litigation in order to 
allow  time  for  DG  Competition's  contribution  to  be  useful  to  the  LS  in  drafting  pleadings.  In 
addition, some deadlines are fixed in the relevant rules and cannot be extended. This is the case 
before the Court of Justice in preliminary ruling cases (the deadline to lodge observations on the 
request of the national court is two months, running from the date of notification of the reference 
to  the  parties)3  or  in  appeals  against  General  Court  judgments (the deadline to  reply to such an 
appeal is two months and cannot be extended)4. 

(30)  The  overall  duration  of  a  Court  case  varies  depending  on  the  nature  of  the  legal  action,  the 
volume of the pleadings, the number of parties, etc. On average, one can say that, in relation to 
antitrust  cases,  preliminary  ruling  cases  are  decided  within  18  to  30  months;  actions  for 
annulment/failure to act/damages are decided normally within 24 to 36 months and cartel cases 
generally take even more time (3 to 5 years). 

2.  Internal procedure within the Commission in 

case of litigation 

2.1.  Features common to all types of legal actions 

2.1.1.  Relations with LS 

(31) 

For all Court cases, the Legal Service represents the Commission. It is therefore the responsibility 
of  the  LS  to  draft  the  various  written  pleadings  in  a  case  and  to  notify  them  to  the  Court,  to 
present the oral arguments of the Commission at the hearing or to reply to the questions of the 
Courts. 

(32)  The relevant DG assists the Legal Service in carrying out this responsibility. 

2.2.  Specific remarks applicable to some types of 

legal actions 

(33)  The  two  most  frequent  types  of  legal  actions  before  the  Court  that  are  relevant  for  DG 
Competition's antitrust activities (action for annulment and preliminary ruling case) are governed 
by  the  common  features  described  above.  Two  more  specific  types  of  actions  however  deserve 
some particular attention, since they imply additional internal steps: appeals against General Court 
judgments and failure to act actions. 

2.2.1.  Appeals before the Court of Justice against General Court 

judgments 

If  the  Commission  is  unsuccessful  before  the  General  Court  (for  instance,  the  General  Court 
annuls a decision, or considers that the Commission failed to act in a given case, or finds that the 
Commission  is  liable  for  the  harm  suffered  by  an  undertaking),  the  Commission  must  decide 
whether to appeal or not that judgment. 

Article 23 of the Statute of the Court of Justice. 

Article 155 of the Court of Justice Rules of Procedure. 

(34) 

3  

4   

                                                 
Page 7/8 – Court litigation 

(35)  As explained above [see point (28)], the appeal will normally have to be lodged 2 ½ to 3 months 
after the date of the judgment (the exact deadline for appeal can be checked with LS). A decision 
to appeal or not should therefore be taken as quickly as possible, in order to leave sufficient time 
for the drafting of the appeal itself. 

(36)  The decision to appeal is adopted by the College. It should not be confused with the appeal itself. 
The decision is the necessary preliminary step, by which the Commission accepts the principle of 
an  appeal.  The  appeal  itself  is  the  written  application  sent  by  the  LS  (on  behalf  of  the 
Commission)  to  the  Court  of  Justice,  which  contains  a  full  description  of  the  Commission's 
arguments and grounds of appeal to the Court. 

2.2.2.  Failure to act (article 265 TFEU) 

(37)  A  failure  to  act  action  can  only  be  validly  brought  before  the  Court  if  the  applicant  has  first 
followed a pre-litigation procedure. This pre-litigation procedure is thus the last possibility for the 
Commission to remedy its failure (if there is indeed one) and to avoid an action before the Court. 
Therefore,  it  is  important  to  understand  how  and  when  the  pre-litigation  procedure  starts  and 
what the case-team should do from that moment on. 

2.2.2.1  Formal request to act 

(38)  A party can only bring a failure to act action before the Court if it has first sent a formal request to 
act to the Commission (Article 265(2) TFEU), which opens a two-months deadline during which 
the Commission is invited to put an end to the alleged failure. 

1. What constitutes a formal request to act? 

(39)  A formal request to act within the meaning of Article 265 TFEU must: 

–  be sufficiently explicit and precise to enable the Commission to know the nature of the act 

which it is being asked to take, and 

–  make  understood  that  the  invitation  is  intended  to  compel  the  Commission  to  take  a 

position5. 

(40)  We  typically  receive  formal  requests  to  act  in  the  context  of  complaints.  The  responsibility  for 

identifying a formal request to act lies on the relevant Unit. 

(41) 

In many cases it will be clear that a letter does constitute a formal request to act (for example, a 
letter expressly referring to Article 265 and threatening an action for failure to act if no position is 
taken within 2 months).  

2. What action can put an end to the failure to act? 

(42)  Assuming that there is indeed a failure to act6, the act ending the failure to act must normally be a 

formal act defining the Commission's position, although it does not have to be a definitive act. 

(43)  With regard to complainants, it results from the case law that an Article 7 letter addressed to the 
complainant  and  announcing  the  Commission's  intention  to  reject  the  complaint  constitutes  a 
definition of the Commission's position on the complaint and therefore puts an end to the alleged 

5  

6  

Case C-249/99 Pescados Congelados v. Commission [1999] ECR I-8333. 

Case T-127/98, UPS Europe / Commission, ECR [1999] p. II-2633, points 34 to 41. 

                                                 
Antitrust Manual of Procedures 

failure7 (on Article 7 letters and rejection of complaints in general, see the Module on Handling of 
complaints). 

(44) 

If  the  intention  is  to  take  up  the  complaint  and  start  proceedings  against  the  subject  of  the 
complaint: 

– 

– 

Provided  the  investigation  is  completed,  a  letter  informing  the  complainant  of  the 
initiation of proceedings against the subject of the complaint, with a copy of the position 
taken (i.e. a non-confidential version of the Statement of Objections); or 

If the complainant is ready to allow some additional delay, or if it can be justified that the 
investigation  is  still  on-going,  a  letter  explaining  the  steps  taken  by  the  Commission  and 
showing  that  the  Commission  has  not  been  inactive  might  be  sufficient  to  convince  the 
complainant not to go to Court8.  

(45) 

If  the  complainant  continues  correspondence  with  the  Commission  after  the  formal  request  for 
the  Commission  to  act,  then  the  Commission  is  entitled  to  regard  the  formal  request  to  act  as 
having  been  withdrawn.  The  Commission  should  then  write  to  the  complainant  informing  it  of 
this. 

3. Acknowledgement of receipt 

(46) 

In accordance with the Code of Good Administrative Conduct, the acknowledgement of receipt 
should  identify  the  Head  of  Unit  and  her/his  telephone  number,  and  should  indicate  a  date  by 
which the addressee can expect to be sent a reply.  

4. Decision taken under empowerment 

(47) 

If the formal act defining the Commission's position is a formal decision rejecting the complaint, 
then it is taken by empowerment procedure. 

(48) 

(49) 

2.2.2.2  Application for failure to act before the Court 

If no act has been adopted within the deadline of two months as provided for by Article 265 (2) 
TFEU,  the  applicant  can  immediately  bring  a  case  before  the  Court.  If  it  does  so,  the  general 
Court procedure will apply. 

If the Commission acts after the applicant has brought the case before the Court but before the 
Court  decides  on  substance,  the  Court  will  close  the  case  since  it  will  have  become  devoid  of 
purpose; the Court's practice is however to order that the Commission must pay the applicant's 
lawyers' fees. 

7  

8  

Case  125/78  GEMA  v  Commission  [1979]  ECR  3173,  paragraph  21;  Case  T-186/94  Guérin  Automobiles  v 
Commission [1995] ECR II-1753, paragraphs 30 and 31. 

Legally speaking, such a letter does not put an end to the failure to act (see Case T-95/96, Gestevisión Telecinco 
/ Commission, [1998] ECR p. II-3407, point 88: "A letter from an institution called upon to act under Article 175 
of the Treaty stating that the questions raised are being examined does not in fact amount to the defining of a 
position such as to release it from its duty to act"). But such a letter can be enough to convince the complainant 
that  the  Commission  has  (and  is  still)  actively  dealing  with  the  case,  so  that  he  does  not  need  to  go  to  Court. 
(judgments  in  Snupat  v  High  Authority,  cited  above,  and  Case  13/83  Parliament  v  Council  [1985]  ECR  1513, 
paragraph 25). 

                                                 
Page 1/7 – Use of languages in antitrust proceedings 

27 Use of languages in antitrust 

proceedings 

1.  General Rules 

1.1.  Official languages 

1.2. 

Internal procedural languages ("Working languages") 

1.3.  Authentic languages 

1.4.  Language waivers 

2. 

Specific Rules 

2.1. 

Inspections 

2.2.  Article 18 letters 

2.3.  Correspondence with the complainants and leniency applicants 

2.4.  The Oral Hearing 

2.5.  Language requirements for Interservice consultation 

2.6.  Language requirements for the Advisory Committee (AC) 

2.7.  Language requirements for the adoption of the Commission's Decision 

2.8.  Translating documents from the file 

2.9.  Official journal and publication 

3. 

Planning of translation requests 

2 

2 

2 

3 

3 

4 

4 

4 

5 

5 

5 

5 

6 

6 

6 

7 

 
 
Antitrust Manual of Procedures 

1.  General Rules 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

1  

2  

3  

It  is  essential  to  understand  a  key  distinction  between  official  languages,  internal  procedural 
languages  (generally  known  as  "working  languages")  and  authentic  languages.  In  relation  to  the 
latter, it is also important to understand the role of so-called "language waivers". 

1.1.  Official languages 

Official languages of the European Union include virtually all the official languages of the various 
EU  Member  States.  Council  Regulation  No  1  of  15  April  1958  determining  the  language  to  be 
used by the European Economic Community, as amended on a number of occasions (as a result 
of the various EU enlargements),1 lists the following 23 official languages (in alphabetical order): 
Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, 
Irish,  Italian,  Latvian,  Lithuanian,  Maltese,  Polish,  Portuguese,  Romanian,  Slovak,  Slovenian, 
Spanish and Swedish. 

As  a  result,  the  Official  Journal  of  the  European  Union  exists  in  all  these  languages.  EU 
regulations and other documents of general application (directives, for instance) are published in 
the official languages. There is however an exception for Irish (until 1 January 2012): before that 
date, only regulations adopted jointly by the European Parliament and Council (not relevant for 
DG Competition's activities) had to be published in Irish.  For other types of acts, such as all acts 
prepared by DG Competition the institutions of the European Union were not bound to publish 
in Irish2.  

A  Member  State  or  a  European  citizen  can  write  to  an  EU  institution  in  any  of  the  official 
languages  listed  above.  The  reply  should  be  drafted  in  the  same  language3  (so  for  example,  a 
Bulgarian citizen can write to the Commission in Spanish and will receive a reply in that language). 

1.2.  Internal procedural languages ("Working 

languages") 

In practice, it is impractical to work internally in all the official languages. Therefore, internally, the 
Commission  works  in  only  three  procedural  languages,  English,  French  and  German  (so-called 
"working  languages"),  and  material  generated  inside  the  Commission  for  internal  use  only  is 
drafted  in  one  or  more  of  these  and,  if  necessary,  is  translated  only  between  those  three.  This 
limited  working  language  regime  is  dictated  by  the  imperatives  of  speed  and  efficiency;  it  is 
nevertheless  without  prejudice  to  practising  full  multilingualism  in  the  Commission’s  external 
communications. 

Incoming documents in a non-procedural language are only translated into one of the procedural 
languages if this is necessary to process them. 

Pursuant  to  the  Guide  to  inter-service  consultation,  the  consultation  of  the  LS  and  other 
concerned DGs should however be only in English or French. 

OJ 17, 6.10.1958, p. 385–386, as amended by Regulation No 1791/2006.  

Article 2 of Council Regulation (EC) No 920/2005 of 13 June 2005, OJ L 156 , 18.06.2005, p. 3. 

See, with regard to Member States, Article 2 of Regulation No 1 and, with regard to European citizens, Article 24 
of the Treaty on the Functioning of the European Union and Article 2 of Regulation No 1. 

                                                 
Page 3/7 – Use of languages in antitrust proceedings 

1.3.  Authentic languages  

(8) 

The authentic version(s) of a text is (are) the only legally binding versions. The consequence is that 
an  act  can  only  be  validly  adopted  if  it  exists  in  the  authentic  language(s)  of  the  case  and  its 
interpretation will be determined by reference only to those language versions. The availability of 
the text in the authentic language(s) at the stage of the adoption of the decision is indeed not just 
an administrative burden. It is a key condition of the validity of the act.4  

(9) 

The  authentic  language  is  determined  according  to  the  following  basic  principle  enshrined  in 
Regulation No 1:  

–  Pursuant  to  Article  3(1)  of  Regulation  1,  documents  which  the  Commission  sends  to  an 
undertaking based in the European Union will be drafted in the language of the Member State in 
which the undertaking is seated. 

–  Pursuant  to  Article  2  of  that  same  Regulation,  documents  which  an  undertaking  sends  to  the 
Commission may be drafted in any one of the official languages of the European Union selected 
by the sender. The reply and subsequent correspondence will be drafted in the same language. 

(10) 

If a Member State has more than one official language (such as Belgium, Finland and Luxemburg, 
for  instance),  the  language  to  be  used  should  be  governed  by  the  general  rules  of  that  Member 
State (Article 8 of Regulation 1/58). In bilingual countries or regions a decision is notified in the 
most appropriate language according to the national rules or determined in prior correspondence 
with  the  concerned  addressee.  Correspondence  with  the  Belgian  public  authorities  is  however 
always sent in both French and Dutch. 

(11)  Undertakings  located  in  Norway,  Iceland  and  Liechtenstein  should  be  addressed  in  English, 
except for undertakings located in Liechtenstein which may also be addressed in German. 

(12)  Undertakings  located  outside  the  EEA  should  preferably  be  addressed  in  an  EU  language  that 
they may understand, eg. Spanish in South America, except Portuguese in Brazil. Particular care 
should be taken when notifying decisions to Swiss undertakings, as one of three languages may be 
used,  depending  on  the  Canton  in  which  the  undertaking  is  established.  A  different  language 
regime  might  however  be  agreed  to  with  the  Commission  in  correspondence  before  the 
notification of a decision (see below section 1.4). 

1.4.  Language waivers 

(13) 

In a given case, there may be a number of authentic languages. For instance, in a cartel case that 
includes undertakings from 8 Member States, there may be 8 authentic languages. This will lead to 
a heavy work for translation in all these languages (and will generate delay).  

(14)  Even in cases involving fewer (or even one) authentic language, this may generate delay (due to 
translation  from  the  working  language  into  which  the  text  has  been  drafted  to  the  authentic 
language). 

(15) 

In  might  also  be  that  for  the  parties  another  language  than  the  authentic  language  is  more 
convenient (e.g. the common language used in the communication between the mother and the 
daughter companies, or the mandated law-firm, in agreement with the company, prefers another 
language than the authentic language).  

4  

see Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555. 

 
                                                 
Antitrust Manual of Procedures 

(16) 

In order to avoid or limit these constraints, it is possible to ask the parties, if they do not ask for it 
themselves, to waive their right to receive the text in the relevant language of their home Member 
State and to opt for another language among the official language of the EU. In order to avoid any 
risk as to the validity of the decision, the so-called language waiver must be crystal clear.  

(17)  To  ensure  that  the  Secretariat  General  recognizes  easily  the  validity  of  the  language  waiver,  it  is 

recommended to propose to the parties a standard text:   

"We, company [NAME OF FUTURE ADDRESSEE OF THE DECISION] legally represented by 
[NAME OF THE EMPLOYEE OF THE COMPANY SIGNING THE LANGUAGE 
WAIVER], hereby declare that in the context of Case [XXXXX] – [CASE NAME] the European 
Commission may address any documents, [e.g. Statement of Objections/Preliminary 
Assessment/Letter rejecting a complaint ….]] or any Decisions it may take and notify to us 
pursuant to Article 297 of the Treaty on the Functioning of the European Union in [e.g. English], 
and we waive all rights to receive such documents in our own language." 

(18)  This "language waiver" should be signed by a representative, authorised to make such declarations, 
of every legal entity to which the SO or decision is addressed (regardless of the fact that two or 
more companies/legal entities belong to the same group) and should be drafted on the letter-head 
of the undertaking/addressee. 

(19)  The  lawyer  acting  for  the  undertaking/addressee  may  sign  the  language  waiver  only  if  he  is 
properly authorised to receive all communication on behalf of the addressee (so-called "power of 
attorney").    As  regards  undertakings  based  outside  the  EEA,  a  formal  language  waiver  is  not 
required, but the language regime to be used should be clarified with the undertaking as early as 
possible.  

2.  Specific Rules  

(20)  Considering the principles and general background above, the specific language requirements are 

as follows. 

2.1.  Inspections 

(21) 

Inspections occur in the official language of the Member State where the undertaking is located. 
When the company is situated in a bilingual territory (eg. Finland or the Brussels bilingual region 
in Belgium), the rules set out above apply. 

2.2.  Article 18 letters 

(22)  As  regards  Art.  18  (2)  letters,  simple  requests  for  information  letters,  it  is  standard  practice,  to 
send  the  cover  letter  in  the  language  of  the  addressee's  location  or  in  English  (including  a 
reference to Art. 3 Regulation 1) and to attach the questionnaire in English. The addressee is also 
clearly informed – in the language of the addressee's location - of its right to obtain a translation 
of the cover letter and/or questionnaire into the language of the addressee's location.  

This practice allows for more expeditious treatment of information requests, while preserving the 
rights of addressees. 

(23)  The standard paragraph, available in all official languages, reads: 

“According to Article 3 of Regulation No 1 determining the languages to be used by the European Economic 
Community, documents which an institution of the European Union sends to a person subject to the jurisdiction of a 

Page 5/7 – Use of languages in antitrust proceedings 

Member State should be drafted in the language of such State. This request is made in the working language of the 
proceedings. Upon your request, you may obtain an [language of the addressee’s location] version.  Your reply can be 
drafted, at your choice, in any one of the official languages of the European Union.” 

2.3.  Correspondence with the complainants and 

leniency applicants 

(24) 

Pursuant to Art. 2 of Regulation 1/58, the reply and the subsequent correspondence addressed to 
the complainant will be in the language of their complaint, even if this is not the language of the 
Member  State  where  they  are  located.  This  applies  as  far  as  the  complaint  is  in  one  of  the  EU 
official  languages  and  the  complainant  has  not  agreed  to  another  EU  language  by  way  of  a 
language waiver. 

(25)  The  language  used  for  filing  the  leniency  application  should  be  the  authentic  language  of  the 
proceedings (subject to any language waiver that has been granted). As a matter of courtesy, some 
immunity/leniency applicants accept receiving questions in English even if they reply in another 
language. 

2.4.  The Oral Hearing 

(26)  The  Hearing  Officer  may  hear  parties  in  person  and  witnesses  in  an  EU  official  language  other 
than the authentic language of the proceedings. In that case, interpretation into the language of the 
proceedings  from  another  official  EU  language  should  be  provided  during  the  Oral  Hearing. 
Interventions,  questions  and  debate  are  simultaneously  translated  into  EN,  FR,  DE  as  well  any 
other languages of the EU chosen by the parties during the administrative procedure. 

(27)  The  Hearing  Officer's  final  report  is  drafted  in the three working languages of  the Commission 

(EN, FR, DE) and (if different) in the authentic languages of the case. 

2.5.  Language requirements for Interservice 

consultation 

(28) 

Pursuant  to  the  Guide  to  Inter-service  consultation,  the  consultation  of  the  LS  and  other 
concerned DGs must be in English or French. 

2.6.  Language requirements for the Advisory 

Committee (AC) 

(29)  A summary of the case, the preliminary draft decision and the draft final report of the HO should 
be  sent  to  the  representatives  of  Member  States  in  the  three  working  languages  of  the 
Commission in addition with a the list of the most important documents.  

 
Antitrust Manual of Procedures 

2.7.  Language requirements for the adoption of 

the Commission's Decision 

(30)  The draft decision has to be adopted by the Commission in all the relevant authentic languages of 
the case and, unless the President of the Commission5 has granted a language derogation, the draft 
decision  must  be  available  to  the  Commission  in  the  3  working  languages  of  the  Commission 
(EN, FR, DE). 

(31)  The  translation  service  should  be  asked  to  translate  the  draft  decision  in  all  these  languages.  It 
should  be  kept  in  mind  that,  considering  the  length  of  DG  Competition  draft  decisions, 
translation  is  a  lengthy  exercise.  This  would  militate  in  favour  of  an  early  transmission  to  the 
translation service; on the other hand, the transmission of the text at too early a stage will generate 
additional  work  for  the  case  team  later  on  if  changes  are  made  to  the  text  (and  will  therefore 
increase  the  risk  of  errors  and  discrepancies  between  linguistic  versions).  See  further  hereunder 
Section Planning of translation requests. 

2.8.  Translating documents from the file 

(32)  As a general rule, an undertaking is not entitled to a translation of documents not emanating from 
the  Commission  (e.g.  corporate  statements,  documents  found  during  an  inspection  at  the 
headquarters  of  an  undertaking  located  in  a  different  Member  State,  etc).  Access  is  granted  to 
evidence  as  contained  in  the  Commission  file,  in  its  original  form:  the  Commission  is  under  no 
obligation to provide a translation of documents in the file6. 

(33) 

It is good drafting practice, when an extract of the document is quoted in the SO (or later in the 
decision)  to  translate  that  extract  into  the  authentic  language(s)  in  the  text  of  the  Statement  of 
Objections  (or  later  in  the  decision)  and  to  quote  in  a  footnote  the  corresponding  text  in  its 
original  version  (see  also  General  rules  and  citation  of  evidence  in  the  Module  Statement  of 
Objections). 

(34)  Concerning different  language version of SO/decisions, DG Competition follows a strict policy 
of  not  supplying  courtesy  copies  of  SO/decisions  in  another  authentic  language  version  to  the 
addressees.  

2.9.  Official journal and publication 

(35) 

It follows from Article 297 TFEU and Regulation 1/2003 that "publication" implies publication in 
the Official Journal (in the "L" series for publication of the decision in full, in "C" series for all 
other texts and information, such as summaries of decisions.  

(36)  All publications in the Official Journal are in all EU languages. The publication on the DG COMP 
website  (e.g.  of  the  full  non-confidential  version  of  a  final  decision  or  decision  or  of  texts  not 
published  in  the  Official  Journal)  is  done  in  the  authentic  language(s)  and  generally  also  in  the 
drafting language (if different from the authentic language). See more in the Module Publication. 

5  

6  

The  case-team  can  submit  a  request  to  the  responsible  Cabinet  member,  who  can  ask  the  responsible  Cabinet 
member  of  the  President's  Cabinet  for  a  language  derogation,  in  order  to  keep  only  one  working  language, 
instead of three, generally for the reason of a necessary expedited adoption procedure. 

Cf. Case T-25/95 et al. Cimenteries, para. 635.and Commission Notice on the rules for access to the Commission 
file in cases pursuant to Art. 81 and 82 of the EC Treaty (OJEU, C 325/7 of 22.12.2005), pt. 46  

                                                 
Page 7/7 – Use of languages in antitrust proceedings 

3.  Planning of translation requests 

(37) 

(38) 

It is of the utmost importance that case-teams take sufficient time into account in their planning 
of the adoption of a decision for translation issues. For best planning contact the Administrative 
Assistant to the Director-General. 

 In order to avoid timing problems, ask for translation of the draft decision in the, if applicable, 2 
other working languages and other authentic language(s) of the case: 

– in  parallel  to  the  consultation  to  the  Legal  Service  by  sending  the  translation  to  DGT  and 
indicating  clearly  the  factual  part of the text, as DG Translation will first only translate this 
part first. 

– After reply of the Legal Service, send the updated text to DG Translation, who will then translate 

the legal part. 

(39)  The deadline depends on the length of the document and the current workload of DGT. 

(40)  Legal Revisers: The Legal Revisers review only the authentic language versions of final decision 
adopted by the College (so not at the stage of SO). Language improvement: In case the English 
or French original text needs linguistic improvement, the DG for Translation has an Editing Unit 
which  will  produce  a  version  in  Track  Changes  suggesting  corrections.  Priority  is  given  to 
documents for interservice consultation, especially if they are to be translated into other languages, 
which affect the Commission's core business or are intended for publication in English or French.  

 
 
Page 1/16 – Publication of Decisions 

28 Publication of Decisions 

1.1.  Scope of publication 

1.2.  Content of the publication in the OJ 
1.2.1.  Summary of the decision 
1.2.2.  Final Report of the Hearing Officer 
1.2.3.  Opinion of the Advisory Committee 

2.1.  Timing of the publication in the Official Journal 

2.2.  Place of publication in the Official Journal 

2.3.  Corrigenda 

3.1.  Scope of the publication 

3.2.  Content of the publication 

3.3.  What may not be published? 

3.4.  Timing of the publication on the website 

3.5.  Place of publication on the website 

3.6.  Corrigenda 

4.1. 

Identifying information that may not be published 
4.1.1.  First letter to the addressees 
4.1.2.  Request for extension 
4.1.3.  Follow-up in case of non-reply 
4.1.4.  Dealing with confidentiality claims 

4.2.  Personal data – Commission's own initiative 

4.3. 

Information whose publication may jeopardize Commission 
investigations – Commission's own initiative 

5.1.  How should confidential information be identified? 

5.2.  How to establish a consolidated version from which all information that 

may not be published has been removed 

5.3.  Translations 

5.3.1.  Publication in the Official Journal 
5.3.2.  Publication on the DG Competition website 

5.4.  Practicalities of the actual publication 
5.4.1.  Publication in the Official Journal 
5.4.2.  Publication on the DG Competition website 

6.1.  Confidential information 

6.2.  Personal data 

6.3. 

Information whose publication may jeopardize Commission 
investigations 

6.4.  Principle of presumption of innocence 

6.5.  Transparency Regulation 

2 

3 
3 
3 
3 

4 

4 

4 

5 

5 

5 

5 

5 

6 

6 
7 
7 
8 
9 

10 

10 

10 

11 

11 
12 
12 

12 
12 
13 

14 

15 

15 

16 

16 

 
Antitrust Manual of Procedures 

1.  Publication in the Official Journal 

1.1.  Scope of publication 

(1) 

Article 30(1) of Regulation No 1/20031 requires the Commission to publish the main content of 
the following decisions in the OJ: 

–  Article 7, Finding and termination of an infringement,  

–  Article 8, interim measures,  

–  Article 9, commitments,  

–  Article 10, Finding of inapplicability,  

–  Article 23, fines,  

–  Article 24, periodic penalty payments.  

(2) 

(3) 

(4) 

(5) 

1 

2 

3 

4 

The obligation to publish in the OJ extends to the final report of the Hearing Officer,2 as well as 
to the opinion of the Advisory Committee, if the Advisory Committee so recommends.3  

According  to  Article  27(4)  Reg.1/2003,  when  the  Commission  intends  to  adopt  a  decision 
pursuant  to  Article  9  or  10  Reg.  1/2003,  it  has  to  publish  a  summary  of  the  case  and  the  main 
content of the commitment or of the proposed course of action (so-called Art. 27(4) Market test 
notice). 

Publications going beyond the legal requirements are published on the DG Competition website 
(see further section 3 ). 

Addressees  of  decisions  adopted  under  the  above  mentioned  articles  have  no  specific  right  to 
prevent  the  publication  by  the  Commission  in  the  Official  Journal  and,  where  relevant,  on  DG 
Competition’s website, of information which, even though not confidential, includes more than the 
‘main content’ essential for understanding the operative part of those decisions.  

As the Court has established: "(…) the interest of an undertaking which the Commission has fined 
for breach of competition law in the details of the offending conduct of which it is accused not 
being disclosed to the public does not warrant any particular protection, given the public interest 
in  knowing  as  fully  as  possible  the  reasons  behind  any  Commission  action,  the  interest  of  the 
economic operators in knowing the sort of behaviour for which they are liable to be penalised and 
the interest of persons harmed by the infringement in being informed of the details thereof so that 
they may, where appropriate, assert their rights against the undertakings punished, and in view of 
the fined undertaking’s ability to seek judicial review of such a decision"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, 4.1.2003, p. 1-25. 

Art. 17(3) of the Decision of the President of the European Commission of 13 October 2011 on the function and 
terms  of  reference  of  the  hearing  officer  in  certain  competition  proceedings,  OJ  L  275,  20.10.2011,  p.  29 
("Hearing Officer Terms of Reference"). 

Art.  14(6)  Regulation  No.  1/2003.  Nota:  For  decisions  imposing  fines,  the  opinion  of  the  Advisory  Committee 
consists of two parts (one on the substance and one on the fines). In line with Art. 14 Regulation No. 1/2003 this 
section refers to both parts as the "opinion of the Advisory Committee". 

See Case T-198/03 Bank Austria Creditanstalt / Commission [2006] ECR II-1429, paragraph 77. 

                                                 
Page 3/16 – Publication of Decisions 

1.2.  Content of the publication in the OJ 

1.2.1.  Summary of the decision  

(6) 

Pursuant to Article 30(2) Reg. 1/2003, the publication in the OJ shall state the  

–  names of the parties, 

–  main content of the decision,  

–  including any penalties imposed. 

(7) 

(8) 

(9) 

These elements therefore have to be contained in the published summary of the decision.  

The summary is often based on the Communication to the College or the summary prepared for 
the Advisory Committee. 

In order to make clear that the summary of the decision is not a decision itself, the heading should 
read “Summary of the Commission’s decision”.  

1.2.2.  Final Report of the Hearing Officer 

(10)  The final report is published in the form the Hearing Officer has established it. 

1.2.3.  Opinion of the Advisory Committee  

(11)  The  opinion  of  the  Advisory  Committee  is  published  in  the  form  it  has  been  established,  but 

without the signatures. 

2.  What may not be published 

(12)  The information that may not be published can be summarized as follows: 

–  Confidential information, in particular business secrets,5 

–  Personal data,6 

–  Information the publication of which may jeopardize Commission investigations. 

(13)  Details can be found in Section 6. 

(14)  The summary, the final report of the Hearing Officer and the opinion of the Advisory Committee 
should already be drafted in such a way that no information is contained therein that may not be 
published. In principle, disputes on the contents of the summary, the final report of the Hearing 
Officer and the opinion of the Advisory Committee should not arise. Should - exceptionally - a 
dispute arise, the Sections 4.1.4 et seq. apply accordingly. 

5  

6  

Pursuant to Art. 30(2) Reg. 1/2003, the publication of the decision shall have regard to the legitimate interest of 
undertakings  in  the  protection  of  their  business  secrets.  The  same  applies  for  the  final  report  of  the  Hearing 
Officer  (Art.  17(3)  Hearing  Officer  Terms  of  Reference)  and  the  opinion  of  the  Advisory  Committee  (Art.  14(6) 
Reg. 1/2003). 

Regulation  (EC)  No.  45/2001  of  the  European  Parliament  and  of  the  Council  of  18  December  2000  on  the 
protection of individuals with regard to the processing of personal data by the Community institutions and bodies 
and on the free movement of such data, OJ L 8, 12.1.2001, p. 1–22 . 

                                                 
Antitrust Manual of Procedures 

2.1.  Timing of the publication in the Official 

Journal 

(15)  There are no explicit legal requirements regarding the timing of the publication in the OJ. 

(16)  The  publication  of  the  summary  of  the  decision  in  the  OJ  may  under  certain  circumstances  be 

relevant to triggering the deadline for an appeal before the European Courts.  

(17)  There is no uniform practice of making the non-confidential text of the full decision accessible on 
the website at the same time as the publication in the OJ. DG Competition strives to publish both 
the  OJ  publications  and  the  full  non-confidential  version  on  the  website  at  the  same  time. 
However,  publication  on  the  website  may  be  delayed  due  to  possible  disputes  with  the  parties 
regarding the contents of the web-publication and this should not prevent the timely publication 
in the OJ.  

(18)  The  final  report  of  the  Hearing  Officer  must  be  published  together  with  the  summary  of  the 

decision in the OJ.7 

(19)  The  opinion  of  the  Advisory  Committee  may  be  published  separately from the summary of the 
decision  in  the  OJ.  It  is  however  common  practice  to  publish  all  three  documents  at  the  same 
time.  

2.2.  Place of publication in the Official Journal  

(20)  The summary, the final report of the Hearing Officer and the opinion of the Advisory Committee 
are  published  in  the  OJ  in  series  C  under  the  heading  IV  –  Notices  –  Notices  from  European 
Union institutions, bodies and agencies. 

2.3.  Corrigenda 

(21) 

In  case  an  adopted  decision  contains  mistakes,  corrections  will  be  implemented  following  the 
relevant  procedure.    If  the  OJ  publication  is  not  yet  undertaken,  the  summary  will  be  corrected 
and  reference  is  made  to  the  corrigendum  decision.  In  case  the  summary  of  the  decision  has 
already been published in the OJ, a summary of the corrigendum decision should be published. 

7  

Art. 17(3) of the Hearing Officer Terms of Reference. 

                                                 
Page 5/16 – Publication of Decisions 

3.  Publication on the website 

3.1.  Scope of the publication  

(22)  The  Commission  has  a  long  established  practice  to  publish  its  final  antitrust  decisions  on  DG 
Competition's  website  in  order  to  ensure  transparency,  predictability  and  legal  certainty,  even 
though the Commission is under no legal obligation to do so.8 

(23) 

In addition, all documents published in the OJ are also available on the DG Competition website 
via a direct link.9 

3.2.  Content of the publication  

(24) 

Publication on the website is of the full text of the decision, as it was notified to the parties, but 
cleared  of  information  that  may  not  be  published.  See  further  below  on  how  to  prepare  such  a 
non-confidential version (see section 5). 

3.3.  What may not be published? 

(25)  The same rules apply as for the publication in the OJ. To recall, the information that may not be 

published can be summarized as follows: 

–  confidential information, in particular business secrets, 

–  personal data, 

–  information the publication of which may jeopardize Commission investigations. 

(26)  Details can be found in section 6 below. 

3.4.  Timing of the publication on the website 

(27)  There  are  no  legal  requirements  regarding  the  timing  of  the  publication  on  the  website.  The 

publication should be done as soon as possible.10  

(28)  As indicated, the case team strives to make the full non-confidential text of the decision accessible 

on the website at the same time as the publication in the OJ. 

3.5.  Place of publication on the website  

8  

9  

10  

See  Case  T-198/03  Bank  Austria  Creditanstalt  /  Commission  [2006]  ECR  II-1429,  paragraph  76:  "(…)  that 
provision  [Art.  21(2)  of  Regulation  17]  does  not  limit  the  Commission’s  power  to  publish  the  full  text  of  its 
decisions, if, resources permitting, it considers it appropriate to do so" and para. 79: "the aim of Article 21(2) of 
Regulation No 17 is not to limit the Commission’s freedom to publish, of its own volition, a version of its decision 
that is fuller than the minimum necessary and also to include information whose publication is not required, in so 
far as the disclosure of that information is not inconsistent with the protection of professional secrecy". 

The bibliographic link allows that viewers can choose the format and the language desired. 

See  Notice  on  best  practices  for  the  conduct  of  proceedings  concerning  Articles  101  and  102  TFEU  (OJ  C  308, 
20.10.2011, p. 6) ("Notice on Antitrust Best Practices"), paragraph 135 

                                                 
Antitrust Manual of Procedures 

(29)  Once  ready  for  publication,  the  relevant  documents  are  published  on  the  antitrust  pages  (link: 
http://ec.europa.eu/competition/antitrust/cases/index.html),  and,  if  applicable,  on  the  cartels 
cases webpage (link: http://ec.europa.eu/competition/cartels/cases/cases.html).  

3.6.  Corrigenda 

(30) 

In  case  an  adopted  decision  contains  mistakes,  corrections  will  be  implemented  following  the 
relevant procedure.  

(31)  The  non-confidential  version  of  the  formal  corrigendum  decision  should  be  published  in  its 

entirety on the webpage at the same place where the Commission decision is published. 

(32) 

In case of clerical mistakes, discovered before the publication of the non-confidential version and 
for  which  a  formal  correction  via  adoption  of  a  corrigendum  decision  is  not  necessary,  the 
correction is indicated in the non-confidential public version ( via footnote:  “* Clerical mistake: 
should read as …”). 

4.  How to prepare documents for publication  

(33)  This section deals with (i) the steps in the identification of information that may not be published, 

and (ii) the practical aspects of publication. 

(34)  As noted above, published texts may not contain:  

–  confidential information, in particular business secrets, 

–  personal data, 

–  information the publication of which may jeopardize Commission investigations. 

(35)  Before  publication,  the  case  team  consolidates  (i)  the  accepted  confidentiality  requests  of  all 
parties, (ii) deletions of personal data and (iii) deletions of information the publication of which 
may jeopardize Commission investigations, and requests confirmation of all parties for this text. 

4.1.  Identifying information that may not be 

published  

(36) 

In order to identify confidential information, correspondence and contacts with the addressees of 
decisions are necessary. 

(37)  Under Article 16(3) of Regulation No 773/2004, the addressees may be required, within a deadline 

set by the Commission: 

–  to  identify  any  part  of  that  decision  which  in  their  view  contains  business  secrets  and  other 

confidential information; 

–  to substantiate each claim for confidentiality; 

–  to  provide  the  Commission  with  a  non-confidential  version  of  the  decision  in  which  the 

confidential passages are deleted; 

–  to provide a concise description of each piece of deleted information. 

Page 7/16 – Publication of Decisions 

–  If the parties fail to comply with these requirements, the Commission may assume that the decision 

does not contain confidential information (Article 16(4) of the Reg.773/2004). 

(38)  The  case  team  should  take  a  position  as  to  whether  the  confidentiality  claims  of  the  parties  are 

justified and follow up with the parties accordingly (see further section 4.1.4). 

4.1.1.  First letter to the addressees  

(39)  Without undue delay after the adoption of the decision by the Commission, all parties receive a 

letter signed by the case manager or Head of Unit.  

(40) 

In this letter, the addressees are requested to confirm that  

–  the summary of the decision, 

–  the final report of the Hearing Officer, and  

–  the opinion of the Advisory Committee 

do not contain any confidential information, and, in particular, no business secrets. 

(41)  They are furthermore requested to 

–  provide a complete non-confidential version of the decision that has been addressed to them. This 
means that they will have to identify any confidential information in the decision that has been 
addressed  to  them  (by  highlighting  –  and  not  blanking  out  –  the  relevant  parts  in  the  entire 
decision), 

–  to  substantiate  their  confidentiality  claims  for  each  piece  of  information  claimed  to  be 

confidential, and 

–  to provide a concise summary of each piece of deleted information. 

In this letter, the addressees will be reminded that confidential information refers, in particular, to 

•  business secrets (see section 6.1 ), and 

•  information that the addressee submitted under the Leniency Notice (see section 6.3). 

(42)  The summary of the decision should be attached to the letter in paper or ".pdf" format. 

(43)  The deadline for the reply is usually two weeks starting from the day the first Commission letter 

was received. 

(44)  This letter indicates that in accordance with Article 16(4) of Regulation 773/2004 in absence of a 
reply the Commission will consider that none of the documents in question contain confidential 
information. Note: Whereas the summary, the final report of the Hearing Officer and the opinion 
of the Advisory Committee are unlikely to contain confidential information, the decision notified 
to the addressees ('confidential version') will contain such information. 

4.1.2.  Request for extension 

(45) 

In case of a request for an extension of the deadline:  

–  Such a request must be in writing (e-mail is sufficient).  

Antitrust Manual of Procedures 

–  The request must be reasoned to allow for its appropriate assessment by the case team. 

–  In general, the need to prepare, at the same time, for a procedure before the Court (appeal, 
preparation for a hearing) is not an acceptable reason for an extension, since this applies to 
all parties.  

–  In general, a justified extension should not exceed one week, however, account should be 
taken  of  the  length  of  the  decision,  which  in  certain  circumstances  may  justify  a  longer 
extension.  

–  The  reply  to  the  extension  request  should  be  in  writing  (e-mail  by  the  case  team  is 

sufficient). 

4.1.3.  Follow-up in case of non-reply 

(46) 

In case the parties do not reply within the deadline (taking account of possible extensions): 

–  The case manager may follow this up with the parties informally. 

–  Otherwise or if the informal follow-up is unsuccessful, the parties will receive a reminder 

letter. 

•  For the details of the request, the reminder letter refers back to the first letter.  

•  It indicates that the original (or extended) deadline has not been met.  

•  It sets a new deadline of 48 hours for reply. 

•  It indicates that should the addressee fail to reply within the new deadline, the 

Commission will publish the decision, assuming that it does not contain confidential 
information in accordance with Article 16(4) of the Reg.773/2004.  

•  In case the decision contains information that is, in the view of the case team, obviously 
confidential with respect to that addressee, the reminder letter also (i) indicates this 
information, and (ii) invites the addressee to specifically consider its position with 
respect to this information. 

•  This letter is signed by the Head of Unit or the case manager.  

(47)  The next step to be taken depends on the reaction of the parties: 

–  Should there be no reaction by the parties within the new deadline, the documents can be 
published  in  line  with  Article  16(4)  of  Regulation  773/2004.  However,  the  case  team 
should delete information that is, in the view of the case team, obviously confidential.11.  

–  Should the parties reply with confidentiality claims within the new deadline, the following 

steps apply. 

11  

Article 16(4) of the Reg.773/2004 does not oblige the Commission to leave obviously confidential information in 
the public version: 'If undertakings […]  fail to comply […], the Commission may assume that the documents or 
statements concerned do not contain confidential information.' (Emphasis added).  

                                                 
Page 9/16 – Publication of Decisions 

4.1.4.  Dealing with confidentiality claims 

4.1.4.1  Confidentiality claims acceptable 

(48)  Where  the  addressees  make  confidentiality  claims  (either  in  response  to  the  first  or  to  the 
reminder letter), the case team will have to assess these and decide whether to accept them or not. 

(49) 

If the case team accepts all confidentiality claims, it prepares a consolidated version of the decision 
and takes all the necessary steps for the publication on the website (see 5). 

4.1.4.2  Confidentiality claims not acceptable 

(50) 

It is for the case team to determine whether any of the confidentiality claims are justified on the 
basis  of  substantiated  reasons  provided  by  the  parties,  in  line  with  the  substantive  requirements 
detailed in section 6 below. 

(51)  Disagreements  on  confidentiality  claims  with  the  parties  should  usually  not  arise  for  the 
documents  to  be  published  in  the  OJ  (summary  of  the  decision,  final  report  of  the  Hearing 
Officer  and  opinion  of  the  Advisory  Committee),  which  generally  do  not  contain  confidential 
information.  Such  disagreements,  however,  may  occur  when  establishing  the  non-confidential 
version of the decision for publication on the website.  

(52) 

(53) 

In case of a disagreement with any party on confidentiality issues, the case team informs the party 
of  its  disagreement  with  a  view  to  obtaining  the  agreement  of  all  parties  on  a  version  that  is 
acceptable to the Commission.  

Initially this can be done informally, though it should be done in writing and reasoned. A deadline 
should  be  set  for  the  party  to  submit  any  written  comments.  An  e-mail  by  the  case  handler 
suffices.  

4.1.4.3  Disputes over confidentiality claims not settled – involvement of 

the Hearing Officer  

(54)  Where a disagreement over confidentiality claims cannot be resolved: 

–  The relevant addressee(s) are informed by a letter signed by a Head of Unit or case manager of 
those  confidentiality  claims  that  are  not  considered  to  be  justified,  the  reasons  thereof12  and of 
the fact that: 

–  they may address themselves, within a reasonable deadline to be set in view of the circumstances 
of the case (in some cases one week may be appropriate), to the Hearing Officer, who can decide 
on the disputed confidentiality claims13, and, 

–  if  they  fail  to  address  the  Hearing  Officer  within the  given  deadline,  the  relevant  confidentiality 
claims are considered to be withdrawn and the relevant information covered by those claims will 
be published.  

(55) 

If the Hearing Officer is addressed within the given deadline: 

–  The relevant procedure regarding the involvement of the Hearing Officer – pursuant to Article 8 

of the Terms of Reference applies  

12 

13 

See Article 8(1) of the Hearing Officer Terms of Reference. 

 See Article 8 of the Hearing Officer Terms of Reference. 

                                                 
Antitrust Manual of Procedures 

–  In case the Hearing Officer is involved, a provisional version of the decision without the disputed 

parts will be published on the website. 

–  The final non-confidential version will be disclosed on the date specified in the reasoned decision 
of the Hearing Officer notified to the provider of information, unless the addressee(s) brings an 
action against the Hearing Officer’s decision before the General Court and makes a request for 
interim relief to the Court to suspend the effect of that decision. 

4.2.  Personal data – Commission's own initiative  

(56)  While  it  is  often  the  case  that  in  the  process  of  identifying  confidential  information  with  the 
addressees,  their  confidentiality  claims  also  cover  the  personal  data  of  their  former  and  current 
employees,  it  is  necessary  that  the  case  team,  on  its  own  initiative,  identifies  and  removes  any 
personal data from documents prior to their publication (in particular from the decision).  

(57) 

For more information and guidance on the substantive identification of personal data see section 
6.2.   

(58)  The case team should identify and remove any personal data on of its own initiative although it 
may  be  time  efficient  to  do  so  after  the  parties’  confidentiality  claims  have  been  accepted  since 
they generally cover significant amount of personal data, i.e. with respect to the employees of the 
relevant addressees. 

4.3.  Information whose publication may 

jeopardize Commission investigations – 
Commission's own initiative 

(59) 

For more information and guidance on the substantive identification of this type of information 
see section 6.3 below. 

(60)  The case team should start identifying this type of information as soon as possible. 

5.  Practical aspects 

(61)  This section deals with the practicalities involved in preparing a text for publication and publishing 

it. 

5.1.  How should confidential information be 

identified? 

(62) 

In  the  first  letter  to  the  addressees,  they  are  asked  to  submit  a  draft  in  which  they  identify  the 
confidentiality claims by highlighting them. 

(63)  Only  once  the  issue  of  confidentiality  claims  is  settled,  all  parties  are  asked  to  confirm  their 
agreement with the final consolidated version of the decision in which the case team has blanked 
out any confidential information.  

 
Page 11/16 – Publication of Decisions 

5.2.  How to establish a consolidated version from 

which all information that may not be 
published has been removed 

(64)  The  case  team  will  prepare  a  consolidated  version  for  publication  by  introducing  the  following 

into the relevant document (decision, summary of the decision etc): 

–  deletions  of  confidential  information  (information  with  respect  to  which  confidentiality  claims 

have been accepted) of all addressees; 

–  deletions of personal data; and 

–  deletions  of  information  where  disclosure  may  undermine  the  protection  of  the  purpose  of 

Commission investigations. 

(65)  Deleted text are replaced by a non-confidential summary in square brackets or are shown as […]. 

(66)  As  regards  summaries  of  confidential  information,  should  various  parties  provide  different 
summaries of the same confidential information, it is for the case team to decide whether to put in 
a summary at all, whether to choose one supplied by the parties or to establish one on the basis of 
those suggested by the parties.  

(67)  The following text should appear as an asterisked note on the first page of the non-confidential 

version of the decision:  

"Parts of this text have been edited to ensure that confidential information is not disclosed. 
Those parts are replaced by a non-confidential summary in square brackets or are shown as 
[…]."  

(68)  Under specific circumstances, an indication of appropriate ranges may be used to replace detailed 
information  on  the  companies'  turnover  or  market  share  (e.g.  a  market  share  of  12.5%  can  be 
replaced by a market share range of 10-20%).  

(69)  The  case  team  will  send  this  single  consolidated  version  to  all  parties,  informing  them  that  this 
version  will  be  published  by  the  Commission,  should  they  not  raise  any  objections  within  the 
deadline given. 

(70)  A short but reasonable deadline is set in the accompanying letter signed by the case manager. 

(71)  The preparation of the consolidated version has to be carried out with particular caution to avoid 
any possibility of accidentally disclosing confidential information of one party to another. Before 
the final consolidated "blanked out" version is sent to the parties, at least two persons will have to 
have  verified  the  text.  In  this  context,  a  similarly  high  degree  of  care  and  attention  has  to  be 
applied as in access to file. 

(72)  Once the deadline has expired and no party has objected to the final consolidated "blanked out" 

version of the non-confidential version, the process of actual publication can be started. 

5.3.  Translations 

(73) 

 For  the  language  requirements  for  publication  per  decision  type,  see  the  Module  on  Use  of 
languages. 

Antitrust Manual of Procedures 

5.3.1.  Publication in the Official Journal 

5.3.1.1  Languages required 

(74)  Everything that is published in the OJ is published in all official languages of the European Union. 

(75)  The  summary  of  the  decision,  the  final  report  of  the  Hearing  Officer  and  the  opinion  of  the 

Advisory Committee therefore have to be translated into all EU languages. 

5.3.1.2  Timing 

(76) 

In order to allow for a speedy publication in the OJ, the translation requests should be made as 
soon as the decision is adopted. 

(77)  Any  possible  confidentiality  claims  will  have  to  be  taken  into  account,  but  –  as  indicated  above 

(see (14)) – should not normally occur.  

(78)  As orientation, the publication in the OJ could in principle be possible within three months. 

5.3.2.  Publication on the DG Competition website 

5.3.2.1  Languages required 

(79)  The non-confidential version of the decision is published on the DG Competition website in the 

authentic language(s) of the case. 

(80) 

In  addition,  the  decision  adopted  by  the  College  should  be  published  on  the  DG  Competition 
website in a drafting language, if the drafting language is not an authentic language.  

5.3.2.2  Who and how? 

(81)  Once the case team is in possession of the consolidated non-confidential version of the decision, 
it will produce a non-confidential version of the language versions to be published on the basis of 
that text. All deletions in the "master copy" have to be introduced in the other language version(s), 
if there is (are) such.  

5.4.  Practicalities of the actual publication  

(82)  This section deals with the technicalities of publishing the relevant text in the Official Journal and 

on the website. 

5.4.1.  Publication in the Official Journal 

(83)  Once all official language versions have been received the case team sends the texts that need to 
be published (summary, final report of the Hearing Officer, opinion of the Advisory Committee) 
to the relevant functional mailbox indicating the name and number of the case as well as the date 
of adoption of the decision.  

(84)  The SG transmits the documents to be published to the Publications Office in Luxemburg, which 

fixes the date of publication and communicates it to the SG. 

(85) 

In order to publish the announcement regarding the publication in the OJ, the case team should 
contact the SG in order to know the planned date of publication in the OJ. 

 
Page 13/16 – Publication of Decisions 

5.4.2.  Publication on the DG Competition website 

5.4.2.1  Publishing the decision on the website 

(86)  On  the  date  of  the  adoption  of  the decision, a document called  "no public version available" is 
published  on  the  web.  This  document  is  later  replaced  by  the  summary  of  the  decision  /  non-
confidential version of the decision.  

5.4.2.2  Removal of documents from the website 

(87)  Although  the  addition  of  documents  to  the  website  is  automated  through  case  management 
applications, once documents have been published on the website, case management applications 
cannot be used to remove them. 

(88) 

If  you  need  to  remove  document(s)  from  the  website,  it  is  necessary  to  specifically  request  to 
update the document management system.  

5.4.2.3  Checking of document to be published 

(89)  A check on correctness of published documents should be made in order to assure that the right 

documents and texts are published. 

(90) 

Please  note  that  once  documents  have  been  published,  they  can  be  copied  or  cached  by  third 
parties,  such  as  search  engine  or  database  providers.  Therefore,  if  an  error  is  identified  after 
publication, a correction of that error in the version published on DG Competition’s website may 
not guarantee that the previous, erroneous version will disappear from the public space. Although 
the Commission may request to delete copies once it becomes aware of such re-publication, there 
is  no  guarantee  that  the  Commission  will  in  fact  become  aware  of  a  re-publication  and  if  so, 
whether any requests to take such publications of the internet will be respected. 

5.4.2.4  Web search 

(91)  A  search  on  the  DG  Competition  internet  site  (antitrust  web-pages)  is  possible  via  the  recently 
installed  search  tool  http://ec.europa.eu/geninfo/query/advSearch_en.jsp.  A  search  can  also  be 
made through the following link: http://ec.europa.eu/competition/antitrust/cases/index.html . 

6.  The contents of the non-confidential version 

of the decision 

(92) 

(93) 

In  preparing  non-confidential  version  of  the  decision  for  publication  the  Commission  must 
balance  its  obligation  of  professional  secrecy  and  interest  in  protecting  its  investigations  on  the 
one side with the aim of providing maximum transparency on the other side. 

In making its decisions and their contents public, the Commission has to consider (i) a number of 
legal requirements for deletion of information, such as the protection of confidential information, 
in  particular  business  secrets,  the  protection  of  personal  data,  the  principle  of  presumption  of 
innocence and (ii) the effect that the publication of certain information may have on its ability to 
conduct investigations both in specific cases and generally. Such information is deleted from the 
non-confidential version of the decision for the purpose of publication.  

(94)  On  the  other  hand,  requirements  of  transparency,  in  particular  those  contained  in  the 
Transparency  Regulation  (Regulation  No  1049/2001)14,  and  the  interest  of  the  economic 

14 

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public 
access to European Parliament, Council and Commission documents, OJ L145, 31.5.2001, p. 43. 

                                                 
Antitrust Manual of Procedures 

operators  in  knowing  the  sort  of  behaviour  for  which  they  are  liable  to  be  penalised  and  the 
interest  of  persons  harmed  by  the  infringement  in being informed of  the  details thereof so that 
they  may,  where  appropriate,  assert  their  rights  against  the  undertakings  punished15  should  be 
taken into consideration when establishing the non-confidential version for publication. 

6.1.  Confidential information 

(95)  Under  Article  339  TFEU,  the  Commission  and  its  staff  are  bound  by  the  obligation  of 
professional secrecy.16 This obligation covers business secrets17 and other confidential information 
provided it meets the criteria set out by case law. 

(96)  According  to  the  Court18,  in  order  to  fall  under  the  obligation  of  professional  secrecy  the 

information must: 

–  be known only to a limited number of persons, 

–  if disclosed, be liable to cause serious harm to the person who provided it or to third parties, and 

–  if  disclosed,  the  interests  liable  to  be  harmed  by  disclosure  must,  objectively,  be  worthy  of 

protection. 

(97)  The  parties  have  therefore  the  right  to  claim  that  their  business  secrets  and  other  confidential 

information are redacted in a non-confidential version.  

(98) 

 The concept of business secrets or other confidential information concerns information of which 
not only disclosure to the public but also mere transmission to a person other than the one who 
provided the information may seriously harm the latter’s interests.19  

(99)  Therefore,  the  content  of  the  published  decisions  is  limited  by  the  Commission's  obligation  to 
protect business secrets of undertakings or other confidential information that may be part of the 
reasoning  in  the  decision.  Typical  examples  for  information  that  would  be  deleted  from  a  non-
confidential version concern precise and sufficiently contemporaneous turnover figures, customer 
information  (e.g.  their  names,  quantities  purchased  or  prices  paid)  and  market  shares20.  Instead, 
the  non-confidential  version  could  contain  ranges  of  figures,  data  and  shares,  or  a  neutral 
description for a name. 

(100)  Whether confidentiality claims are acceptable is to be decided on the basis of the applicable legal 

rules and the relevant case law.21 

15 

16 

17 

18 

19 

20  

21  

See Case T-198/03 Bank Austria Creditanstalt / Commission [2006] ECR II-1429, paragraph 78. 

Art.  339  TFEU  provides:  "The  members  of  the  institutions  of  the  Union,  the  members  of  committees,  and  the 
officials  and  other  servants  of  the  Union  shall  be  required,  even  after  their  duties  have  ceased,  not  to  disclose 
information  of  the  kind  covered  by  the  obligation  of  professional  secrecy,  in  particular  information  about 
undertakings, their business relations or their cost components". 

Which are expressly mentioned in Article 30(2) of Regulation 1/2003.   

Case T-198/03 Bank Austria Creditanstalt / Commission [2006] ECR II-1429, para. 71; and also Case T-474/04 
Pergan Hilfsstoffe für industrielle Prozesse / Commission [2007] ECR II-4225, paras. 65 et seq. 

See Case T-353/94 Postbank v Commission [1996] ECR II-921, para. 87. 

See Case T-383/03 Hynix Semiconductor v Council [2005] ECR II-627 and Case T-271/03 Deutsche Telekom v 
Commission [2006] ECR II-1749. 

See  Case  T-474/04  Pergan  Hilfsstoffe  für  industrielle  Prozesse  /  Commission  [2007]  ECR  II-4225,  para.  65, 
where  the  Court sets out: "it is necessary, first of all, that such business secrets or confidential information be 
known  only  to  a  limited  number  of  persons.  Next,  it  must  be  information  whose  disclosure  is  liable  to  cause 
serious harm to the person who has provided it or to third parties (…). Finally, the interests liable to be harmed 
by disclosure must be worthy of protection."  

                                                 
Page 15/16 – Publication of Decisions 

(101)  The Commission has delegated the power to refuse claims for business secrets for the purposes of 
publications  to  the  Hearing  Officers,  who  therefore  can  take  this  decision  for  the  Commission 
with the approval of the Legal Service (see for more details on the process section 4.1.4. above) 22.  

6.2.  Personal data 

(102)  The Commission must consider the requirements of Regulation EC No 45/2001.23 Personal data 

must, in principle, be removed from documents before their publication.   

(103)  In  Regulation  EC  No  45/2001,  personal  data  is  defined  as:  "any  information  relating  to  an 
identified  or  identifiable  natural  person".  Data  relating  to  individuals  have  to  be  treated  with 
particular care in any administrative procedure, including any cartel investigation. This duty of care 
is of particular concern when a decision that includes such data is made available to the public. As 
a general rule, such information should therefore not be included in a non-confidential version of 
a decision. Information that could identify a person may therefore be replaced by a more general 
description  (e.g.  "Ms.  Y"  or  "X's  marketing  director  between  1998-2000"  could  be  replaced  by 
"one  of  X's  representatives").  Particular  reasons  may,  however,  be  present  that  would  make  the 
inclusion  of  such  data  in  a  non-confidential  version  proportional.  This  may  be  the  case  if  the 
indication  of  a  person's  function  is  necessary  for  the  understanding  of  the  decision24  or  if  the 
undertaking to which a decision is addressed is an individual.  

(104)  The 

individuals  concerned  have  certain  access  rights  regarding 
DG Competition's data protection co-ordinator would be involved in such issues. 

their  personal  data. 

6.3.  Information whose publication may 

jeopardize Commission investigations  

(105)  The  publication  of  certain  types  of  information  may  jeopardize  the  Commission's  ability  to 
conduct its investigations both in specific cases and in general. This can in particular be the case of 
admissions  provided  by  the  parties  under  the  Leniency  Notice  and  voluntary  admissions  of  the 
participation  in  an  infringement  made  by  parties  during  inspections,  in  replies  to  requests  for 
information  and  during  the  oral  hearing.  Therefore,  the  Commission  may  redact  certain 
information falling within this category in the public version of the decision.  

(106)  The Commission's leniency policy as expressed in the Leniency Notice is its crucial investigative 
tool in cartel investigations and its optimal functioning is of vital importance to the Commission's 
ability  to  successfully  detect,  investigate  and  punish  hard-core  cartels.  A  properly  functioning 
leniency policy enhances deterrence of cartel behaviour. 

(107)  Protecting  the  confidentiality  of  leniency  submissions  is  very  important  for  maintaining  the 
attractiveness of the Commission's leniency policy and its optimal functioning. On the other hand, 
the public (especially future leniency applicants, victims of competition law infringements and the 
legal community) have an interest in knowing about the leniency procedure and the treatment of 
leniency applicants. 

22  

23  

24  

Delegation  of  powers  C(2011)7442 to  the  hearing  officer  relating  to  the  adoption  of  certain  measures  in 
competition  proceedings  under  Articles  101  and  102  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU) and Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between 
undertakings. 

Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the  Council  of  18  December  2000  on  the 
protection of individuals with regard to the processing of personal data by the Community institutions and bodies 
and on the free movement of such data, OJ L 8, 12.1.2001, p. 1–22. 

See Case T-474/04 Pergan, paragraph 72.  

                                                 
Antitrust Manual of Procedures 

(108)  It is up to the parties themselves to mark proposals for redaction of information such as quotes 
stemming  from  their  own  corporate  statements  or  other  information  stemming  from  their 
corporate  statements  to  the  extent  that  they  are  traceable  to  them.  The  Commission,  however, 
ultimately  decides  whether  the  publication  of  certain  information  would  jeopardize  the 
Commission's investigation and whether other information than that marked by the parties should 
be redacted to avoid such adverse effects on the functioning of the Commission. 

6.4.  Principle of presumption of innocence 

(109)  As established by the General Court in case T-474/04 Pergan, findings relating to an infringement 
by any third parties who may have participated in the infringement but who are not mentioned in 
the operative part of the decision must be removed from the published version of the decision. 

(110)  In general, the adopted version of the decision should avoid references to any such undertakings, 
in particular in the Commission's narratives. It is however possible that, e.g. quoted documents, 
such  as  price  tables  found  during  inspections,  contain  names  of  undertakings  that  may  have 
participated in the infringement but which is not mentioned in the operative part.  

6.5.  Transparency Regulation 

(111)  It is desirable that the non-confidential version of a decision can be used to reply to a request for 

access to documents under Regulation 1049/2001.  

(112)  This  Regulation  allows  any  person  access  to  all Commission  documents without  having  to state 
specific reasons. Such access may only be refused under the specific exceptions provided by the 
Regulation. These include inter alia the protection of commercial interests and the protection of 
the  purpose  of  inspections  and  investigations.  While  there  is  a  certain  overlap  with  the  above-
mentioned  reasons  for  redaction  of  information  from  a  non-confidential  version,  case  teams 
should  be  mindful  that  there  are  certain  differences  between  the  exceptions  under  Article  4  of 
Regulation 1049/2001 and the ones listed above.  

(113)  For  reasons  of  administrative  efficiency,  the non-confidential  versions  of  Commission  decisions 
should  therefore  be  prepared  with  possible  access  requests  in  mind.  Should  a  request  under 
Regulation 1049/2001 exceptionally lead to the release of information that was not in the public 
version of the decision, an adapted public version should be published on the internet. 

European Commission 

Antitrust Manual of Procedures 
March 2012 
Internal DG Competition working documents on procedures for the 
application of Articles 101 and 102 TFEU 

2012 —  274 pp.— 21 x 29.7 cm 

ISBN 978-92-79-23360-9 
doi 10.2763/78829 

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
KD-30-12-466-EN-N

10.2763/78829