EU competition law rules applicable to antitrust enforcement . Vol. I, General rules.
Date: 2015-03-11
Institutions: Directorate-General for Competition
Subjects: EU law, anti-trust legislation, competition law

EU Competition Law

Rules Applicable  
to Antitrust  
Enforcement

Volume I:
General Rules

Situation as at  
1st July 2013

Competition

EU Competition Law 
Rules Applicable to Antitrust Enforcement 
Volume I: General Rules 
Situation as at 1st July 2013 

 
 
 
 
 
 
 
 
 
 
 
 
EU Competition law  

Rules Applicable to Antitrust Enforcement – General Rules 

Situation as at 1st July 2013 

The texts which are reproduced in this booklet are also available on the internet: 
http://ec.europa.eu/competition/antitrust/legislation/legislation.html 

This booklet has been produced for the facility of the reader. Only the texts published in the 
Official Journal of the European Union are authentic 

Luxembourg, Publications Office of the European Union, 2013 

ISBN 978-92-79-28608-7 
doi 10.2763/35312 

© European Union, 2013.  
Reproduction is authorised, provided the source is acknowledged.  

ANTT01013

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Contents  

Page 
number 

A. Overview                                                                  

Flowchart summarizing the procedure under the Council Regulation (EC) No 1/2003  

8

B. Provisions of the Treaty on the Functioning of the European 
Union (TFEU) and of the Treaty on European Union (TEU) 

B.1 Core provisions

Article 101 of the TFEU  

Article 102 of the TFEU 

Article 106 of the TFEU 

B.2 Other relevant provisions of the TFEU

Article  3 of the TFEU  

Article 14 of the TFEU  

Article 37 of the TFEU 

Article 103 of the TFEU   

Article 104 of the TFEU  

Article 105 of the TFEU 

Article 119 of the TFEU 

Article 339 of the TFEU 

Article 346 of the TFEU  

B.3 Other relevant provisions of the TEU 

Article 3 of the TEU 

Article 4 of the TEU 

B.4 Protocol 27   

C. General rules 

Framework Legislation 

C.1  Council  Regulation  1/2003/EC  of  16  December  2002  on  the  implementation  of 
the  rules  on  competition  laid  down  in  Articles  81  and  82  of  the  Treaty  (OJ  L  1/1, 
4.1.2003) amended by Council Regulation 411/2004/EC of 26 February 2004 (OJ L 68/1, 
6.3.2004)  and  Council  Regulation  1419/2006/EC  of  25  September  2006  (OJ  L  269/1 
28.9.2006) – Consolidated version of 18 October 2006

10

12

16

18

20

 
 
 
 
 
Implementing Legislation 

C.2 Commission Regulation 773/2004/EC 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  123/18,  27.4.2004)  amended  by  Commission  Regulation  1792/2006/EC  of  23 
October 2006 (OJ L 362/1, 20.12.2006) and by Commission Regulation 622/2008/EC 
of 30 June 2008 (OJ L 171/3, 1.7.2008) -  Consolidated version of 1 July 2008 

C.3 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 275/29, 20.10.2011)  

C.4 Regulation 1182/71/EEC, Euratom of the Council of 3 June 1971 determining 
the rules applicable to periods, dates and time limits (OJ L 124/1, 8.6.1971)  

C.5 Regulation No 1/58/EEC, Euratom of determining the languages to be used by 
the  European  Economic  Community  (OJ  L  17,  6.10.1958,  p.  385)  -  Consolidated 
version of 1 January 2007 

D. Notices and Guidelines 

D.1 Commission Notice on the best practices for the conduct of proceedings 
concerning Articles 101 and 102 TFEU (OJ C 308/6, 20.10.2011) 

D.2  Commission  Notice  on  cooperation  within  the  Network  of  Competition 
Authorities (2004/C 101/03), (OJ C 101/43, 27.4.2004) 

D.3 Commission Notice on the co-operation between the Commission and the 
courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 
101/54, 27.4.2004) 

D.4 Commission Notice on the definition of relevant market for the purposes of 
Community competition law (OJ C 372, 9.12.1997)

D.5  Commission  Notice  on  agreements  of  minor  importance  which  do  not 
appreciably  restrict  competition  under  Article  81(1)  of  the  Treaty  establishing  the 
European Community (de minimis) (OJ C 368/13, 22.12.2001)

D.6 Commission Notice: Guidelines on the effect on trade concept contained in 
Articles 81 and 82 of the Treaty (OJ C 101/81, 27.4.2004)

D.7  Commission  Notice:  Guidelines  on  the  application  of  Article  81(3)  of  the 
Treaty 
 (OJ C 101/97, 27.4.2004) 

D.8  Guidance  on  the  Commission's  enforcement  priorities  in  applying  Article 
82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (OJ C 
45/7, 24.2.2009) 

D.9  Guidelines  on  the  method  of  setting  fines  imposed  pursuant  to  Article 
23(2)(a) of Regulation 1/2003/EC (OJ C 210/2, 1.9.2006)

D.10 Commission Notice on the handling of complaints by the Commission under 
Articles 81 and 82 of the EC Treaty (OJ C 101/65, 27.4.2004)

49

62

71

73

78

106

117

128

137

140

156

178

192

196

 
 
 
 
 
 
 
D.11  Commission  Notice  on  informal guidance  relating  to  novel  questions 
concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance 
letters) (OJ C 101/78, 27.4.2004) 

D.12  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 325/7, 22.12.2005) 

D.13 Commission Notice on the conduct of settlement procedures in view of the 
adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation 
1/2003/EC in cartel cases ( OJ C 167/1, 2.7.2008) 

D.14 Commission Notice on Immunity from fines and reduction of fines in 
cartel cases ( OJ C 298/17, 8.12.2006) 

E. EEA Agreement  

E.1 Articles 53-65 of the EEA Agreement (OJ L 1/3, 3.1.1994 and EFTA States' 
official gazettes, last updated version of 1.8.2007)

E.2 Protocol 21 on the implementation of competition rules applicable to 
undertakings  

E.3 Protocol 22 concerning the definition of "undertaking" and "turnover" 
(Article 56)  

E.4 Protocol 23 concerning the cooperation between the surveillance 
authorities (Article 58)  

F. International Cooperation 

Overview of bilateral and multilateral agreements

G. Others 

G.1 Best Practices for the submission of economic evidence and data 
collection in cases concerning the application of articles 101 and 102 TFEU 
and in merger cases (Staff working paper) 

G.2 Antitrust correspondence (contact details etc.)

209

212

221

227

234

239

244

246

254

258

280

 
 
 
 
 
 
 
I.A OVERVIEW 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The enforcement of Articles 101 & 102 TFEU in
prohibition and commitment decisions: a roadmap

Origin of the case

Complaints       Ex officio

Initial assessment:
- investigative instruments may be used
- case may be allocated to another ECN member and vice versa
- cases discarded which do not merit further action
- complainant informed of proposed course of action

Opening of proceedings*

State of Play meeting
- shortly after opening

Investigation
- including State of Play meeting at a sufficiently advanced stage

Statement of Objections 
(SO)

if parties show willingness to discuss 
commitments

Case closed for 
some/ all parties

Complainants 
informed about 
Commission's intention to 
reject the complaint

If no reply, 
complaint is 
deemed to be 
withdrawn

If reply by 
complainant, 
rejection 
decision is 
taken 

Access
to file

Reply by parties to SO

Oral 
hearing

State of Play meeting
- offered either after parties 
have replied to the SO or 
after the Hearing

Case closed

Advisory 
Committee

State of Play meeting

Preliminary Assessment

Submission of 
commitments

Market test

State of Play meeting

Advisory Committee

Article 7 
prohibition 
decision

Article 9 Commitment 
decision

* With the exception of cartel proceedings, where the opening of proceedings normally takes place simultaneously with the adoption of the 
SO

A8 
 
 
 
I.B PROVISIONS OF THE 
TREATY ON THE 
FUNCTIONING OF THE 
EUROPEAN UNION (TFEU) 
AND OF THE TREATY ON 
EUROPEAN UNION (TEU) 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
B.1 Core provisions 

Article 101 (ex Article 81 TEC) 

1. The following shall be prohibited as incompatible with the internal market: 
all  agreements  between  undertakings,  decisions  by  associations  of 
undertakings  and  concerted  practices  which  may  affect  trade  between 
Member  States  and  which  have  as  their  object  or  effect  the  prevention, 
restriction  or  distortion  of  competition  within  the  internal  market,  and  in 
particular those which: 

(a) directly or indirectly fix purchase or selling prices or any other trading 

conditions; 

(b) limit or control production, markets, technical development, or investment; 

(c) share markets or sources of supply; 

(d) apply dissimilar conditions to equivalent transactions with other trading 
parties, thereby placing them at a competitive disadvantage; 

(e) make  the  conclusion  of  contracts  subject  to  acceptance  by  the  other 
parties  of  supplementary  obligations  which,  by  their  nature  or  according  to 
commercial usage, have no connection with the subject of such contracts. 

2. Any agreements or decisions prohibited pursuant to this Article shall be 

automatically void. 

3. The provisions of paragraph 1 may, however, be declared inapplicable in the 

case of: 

— any agreement or category of agreements between undertakings, 

— any decision or category of decisions by associations of undertakings, 

— any concerted practice or category of concerted practices, 

which  contributes  to  improving  the  production  or  distribution  of  goods  or 
to  promoting  technical  or  economic  progress,  while  allowing  consumers  a 
fair share of the resulting benefit, and which does not: 

(a)  impose  on  the  undertakings  concerned  restrictions  which  are  not 
indispensable to the attainment of these objectives; 

(b) afford  such  undertakings  the  possibility  of  eliminating  competition  in 
respect of a substantial part of the products in question. 

B.110 
 
 
 
Article 102 (ex Article 82 TEC) 

Any  abuse  by  one  or  more  undertakings  of  a  dominant  position  within  the 
internal  market  or  in  a  substantial  part  of  it  shall  be  prohibited  as 
incompatible  with  the  internal  market  in  so  far  as  it  may  affect  trade 
between Member States. 

Such abuse may, in particular, consist in: 

(a)  directly or indirectly imposing unfair purchase or selling prices or other 
unfair trading conditions; 

(b) limiting production, markets or technical development to the prejudice of 
consumers; 

(c)  applying  dissimilar  conditions  to  equivalent  transactions  with  other 
trading parties, thereby placing them at a competitive disadvantage; 

(d) making the conclusion of contracts subject to acceptance by the other 
parties of supplementary obligations which, by their nature or according to 
commercial usage, have no connection with the subject of such contracts. 

Article 106 (ex Article 86 TEC) 

1. In  the  case  of  public  undertakings  and  undertakings  to  which  Member 
States  grant  special  or  exclusive  rights,  Member  States  shall  neither  enact 
nor  maintain  in  force  any  measure  contrary  to  the  rules  contained  in  the 
Treaties, in particular to those rules provided for in Article 18 and Articles 
101 to 109. 

2. Undertakings  entrusted  with  the  operation  of  services  of  general 
economic  interest  or  having  the  character  of  a  revenue-producing 
monopoly  shall  be  subject  to  the  rules  contained  in  the  Treaties,  in 
particular  to  the  rules  on  competition,  in  so  far  as  the  application  of  such 
rules does not obstruct the performance, in law or in fact, of the particular 
tasks assigned to them. The development of trade must not be affected to 
such an extent as would be contrary to the interests of the Union. 

3. The  Commission  shall  ensure  the  application  of  the  provisions  of  this 
Article  and  shall,  where  necessary,  address  appropriate  directives  or 
decisions to Member States. 

B.111 
B.2 Other relevant provisions of the TFEU 

Article 3 

1. The Union shall have exclusive competence in the following areas: 

(a) customs union; 

(b) the establishing of the competition rules necessary for the functioning 

of the internal market; 

(c) monetary policy for the Member States whose currency is the euro; 

(d) the conservation of marine biological resources under the common 

fisheries policy; 

(e) common commercial policy. 

2. The Union shall also have exclusive competence for the conclusion 
of an international  agreement when its conclusion is provided for in a 
legislative  act  of  the  Union  or  is  necessary  to  enable  the  Union  to 
exercise  its  internal  competence,  or  in  so  far  as  its  conclusion  may 
affect common rules or alter their scope. 

Article 14 (ex Article 16 TEC) 

Without  prejudice  to  Article  4  of  the  Treaty  on  European  Union  or  to 
Articles 93, 106 and 107 of this Treaty, and given the place occupied by 
services of general economic interest in the shared values of the Union 
as  well  as  their  role  in  promoting  social  and  territorial  cohesion,  the 
Union and the Member States, each within their respective powers and 
within  the  scope  of  application  of  the  Treaties,  shall  take  care  that 
such  services  operate  on  the  basis  of  principles  and  conditions, 
particularly  economic  and  financial  conditions,  which  enable  them  to 
fulfil their missions. The European Parliament and the Council, acting 
by  means  of  regulations  in  accordance  with  the  ordinary  legislative 
procedure,  shall  establish  these  principles  and  set  these  conditions 
without  prejudice  to  the  competence  of  Member  States, 
in 
compliance with the Treaties, to provide, to commission and to fund 
such services. 

B.212Article 37 (ex Article 31 TEC) 

1.  Member  States  shall  adjust  any  State  monopolies  of  a  commercial 
character  so  as  to  ensure  that  no    discrimination  regarding  the 
conditions  under    which  goods  are  procured  and  marketed  exists 
between nationals of Member States. 

The  provisions  of  this  Article  shall  apply  to  any  body  through  which  a 
Member State, in law or in fact, either directly or  indirectly supervises, 
determines  or    appreciably  inf  luences  imports    or    exports  between 
Member  States.  These  provisions  shall  likewise  apply  to  monopolies 
delegated by the State to others. 

2.  Member  States  shall  refrain  from    introducing  any  new  measure 
which is contrary to  the principles laid down in paragraph 1 or  which 
restricts the scope of the articles dealing with the prohibition of customs 
duties and quantitative restrictions between Member States. 

3.  If  a  State  monopoly  of  a  commercial  character  has  rules  which  are 
designed to make it easier to dispose of agricultural products or obtain 
for  them  the  best  return,  steps  should  be  taken  in  applying  the  rules 
contained  in  this  Article  to  ensure  equivalent  safeguards  for  the 
employment and standard of living of the producers concerned. 

Article 103 (ex Article 83 TEC) 

1.  The  appropriate  regulations  or  directives  to  give  effect  to  the 
principles  set  out  in  Articles  101  and  102  shall  be  laid  down  by  the 
Council, on a proposal from the Commission and after consulting the 
European  Parliament.  2.  The  regulations  or  directives  referred  to  in 
paragraph 1 shall be designed in particular: 

(a)  to  ensure  compliance  with  the  prohibitions  laid  down  in  Article 
101(1) and in Article 102 by making provision for fines and periodic 
penalty payments; 

(b) to  lay  down  detailed  rules  for  the  application  of  Article  101(3), 
taking into account the need to ensure effective supervision on the 
one  hand,  and  to  simplify  administration  to  the  greatest  possible 
extent on the other; 

(c)  to  define,  if  need  be,  in  the  various  branches  of  the  economy,  the 

scope of the provisions of Articles 101 and 102; 

(d) to  define  the  respective  functions  of  the  Commission  and  of  the 
Court of Justice of the European Union in applying the provisions laid 
down in this paragraph; 

(e)  to  determine  the  relationship  between  national  laws  and  the 
provisions  contained  in  this  Section  or  adopted  pursuant  to  this 
Article. 

B.213Article 104 (ex Article 84 TEC) 

Until  the  entry  into  force  of  the  provisions  adopted  in  pursuance  of  Article 
103,  the  authorities  in  Member  States  shall  rule  on  the  admissibility  of 
agreements, decisions and concerted practices and on abuse of a dominant 
position  in  the  internal  market  in  accordance  with  the  law  of  their  country 
and  with  the  provisions  of  Article  101,  in  particular  paragraph  3,  and  of 
Article 102. 

Article 105 (ex Article 85 TEC) 

1. Without  prejudice  to  Article  104,  the  Commission  shall  ensure  the 
application of the principles laid down in Articles 101 and 102. On application 
by  a  Member  State  or  on  its  own  initiative,  and  in  cooperation  with  the 
competent  authorities  in  the  Member  States,  which  shall  give  it  their 
assistance, 
investigate  cases  of  suspected 
infringement  of  these  principles.  If  it  finds  that  there  has  been  an 
infringement, it shall propose appropriate measures to bring it to an end. 

the  Commission  shall 

2. If the infringement is not brought to an end, the Commission shall record 
such infringement of the principles in a reasoned decision. The Commission 
may  publish  its  decision  and  authorise  Member  States  to  take  the 
measures,  the  conditions  and  details  of  which  it  shall  determine,  needed 
to remedy the situation. 

3. The  Commission  may  adopt  regulations  relating  to  the  categories  of 
agreement  in  respect  of  which  the  Council  has  adopted  a  regulation  or  a 
directive pursuant to Article 103(2)(b). 

Article 119 (ex Article 4 TEC) 

1. For the purposes set out in Article 3 of the Treaty on European Union, the 
activities of the Member States and the Union shall include, as provided in 
the Treaties, the adoption of an economic policy which is based on the close 
coordination  of  Member  States'  economic  policies,  on  the  internal  market 
and  on  the  definition  of  common  objectives,  and  conducted  in  accordance 
with the principle of an open market economy with free competition. 

2. Concurrently  with  the  foregoing,  and  as  provided  in  the  Treaties  and  in 
accordance  with  the  procedures  set  out  therein,  these  activities  shall 
include  a  single  currency,  the  euro,  and  the  definition  and  conduct  of  a 
single  monetary  policy  and  exchange-rate  policy  the  primary  objective  of 
both  of  which  shall  be  to  maintain  price  stability  and,  without  prejudice  to 
this  objective,  to  support  the  general  economic  policies  in  the  Union,  in 
accordance  with  the  principle  of  an  open  market  economy  with  free 
competition. 

3. These  activities  of  the  Member  States  and  the  Union  shall  entail 
compliance with the following guiding principles: stable prices, sound public 
finances and monetary conditions and a sustainable balance of payments. 

B.214 
Article 339 (ex Article 287 TEC) 

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. 

Article 346 (ex Article 296 TEC) 

1. The provisions of the Treaties shall not preclude the application of the 
following rules: 

(f)  no Member State shall be obliged to supply information the disclosure of 
which it considers contrary to the essential interests of its security; 

(g) any Member State may take such measures as it considers necessary for 
the protection of the  essential interests of its security which are connected 
with the production of or trade in arms, munitions and war material; such 
measures  shall  not  adversely  affect  the  conditions  of  competition  in  the 
internal  market  regarding  products  which  are  not  intended  for  specifically 
military purposes. 

2. The Council may, acting unanimously on a proposal from the Commission, 
make changes to the list, which it drew up on 15 April 1958, of the products 
to which the provisions of paragraph 1(b) apply. 

B.215 
 
 
B.3 Other relevant provisions of the TEU 

Article 3 (ex Article 2 TEU) 

1. The Union's aim is to promote peace, its values and the well-being of its peoples. 

2. The Union shall offer its citizens an area of freedom, security and justice without 
internal frontiers, in which the free movement of persons is ensured in conjunction 
with  appropriate  measures  with  respect  to  external  border  controls,  asylum, 
immigration and the prevention and combating of crime. 

3.  The  Union  shall  establish  an  internal  market.  It  shall  work  for  the  sustainable 
development  of  Europe  based  on  balanced  economic  growth  and  price  stability,  a 
highly  competitive  social  market  economy,  aiming  at  full  employment  and  social 
progress,  and  a  high  level  of  protection  and  improvement  of  the  quality  of  the 
environment. It shall promote scientific and technological advance. 

It shall combat social exclusion and discrimination, and shall promote social justice 
and  protection,  equality  between  women  and  men,  solidarity  between  generations 
and protection of the rights of the child. 

It  shall  promote  economic,  social  and  territorial  cohesion,  and  solidarity  among 
Member States. 

It  shall  respect  its  rich  cultural  and  linguistic  diversity,  and  shall  ensure  that 
Europe's cultural heritage is safeguarded and enhanced. 

4. The Union shall establish an economic and monetary union whose currency is the 
euro. 

5.  In  its  relations  with  the  wider  world,  the  Union  shall  uphold  and  promote    its 
values  and  interests  and  contribute  to  the  protection  of  its  citizens.  It  shall 
contribute  to  peace,  security,  the  sustainable  development  of  the  Earth,  solidarity 
and mutual respect among peoples, free and fair trade, eradication of poverty and 
the protection of human rights, in particular the rights of the child, as well as to the 
strict  observance  and  the  development  of  international  law,  including  respect  for 
the principles of the United Nations Charter. 

6. The  Union  shall  pursue  its  objectives by  appropriate  means  commensurate  
with  the competences which are conferred upon it in the Treaties. 

B.316 
 
 
 
 
 
 
 
 
 
Article 4 

1.  In  accordance  with  Article  5,  competences  not  conferred  upon  the 
Union in the Treaties remain with the Member States. 

2.  The  Union  shall  respect  the  equality  of  Member  States  before  the 
Treaties as well as their national identities, inherent in their fundamental 
structures,  political  and  constitutional,  inclusive  of  regional  and  local 
self-government.  It  shall  respect  their  essential  State  functions, 
including  ensuring  the  territorial  integrity  of  the  State,  maintaining  law 
and  order  and  safeguarding  national  security.  In  particular,  national 
security remains the sole responsibility of each Member State. 

3.  Pursuant  to  the  principle  of  sincere  cooperation,  the  Union  and  the 
Member States shall, in full mutual respect, assist each other in carrying 
out tasks which f low from the Treaties. 

The  Member  States  shall  take  any  appropriate  measure,  general  or 
particular,  to  ensure  fulfilment  of  the  obligations  arising  out  of  the 
Treaties or resulting from the acts of the institutions of the Union. 

The Member States shall facilitate the achievement of the Union's tasks 
and refrain from any measure which could jeopardise  the attainment of 
the Union's objectives. 

B.317 
 
 
 
 
 
 
B.4 Protocol 27 

Consolidated version of the Treaty on European Union - PROTOCOLS - Protocol 
(No 27) on the internal market and competition  

Official Journal 115 , 09/05/2008 P. 0309 - 0309 

PROTOCOL (No 27) 

ON THE INTERNAL MARKET AND COMPETITION 

THE HIGH CONTRACTING PARTIES, 

CONSIDERING  that  the  internal  market  as  set  out  in  Article  3  of  the 
Treaty on European Union includes a system ensuring that competition 
is not distorted, 

HAVE AGREED that: 

To  this  end,  the  Union  shall,  if  necessary,  take  action  under  the 
provisions of the Treaties, including under Article 352 of the Treaty on 
the Functioning of the European Union. 

This protocol shall be annexed to the Treaty on European Union and to 
the Treaty on the Functioning of the European Union. 

B.418 
 
 
 I.C GENERAL RULES 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

2003R0001 — EN — 18.10.2006 — 002.001 — 1

►B

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

(Text with EEA relevance)

(OJ L 1, 4.1.2003, p. 1)

Amended by:

►M1
►M2

Council Regulation (EC) No 411/2004 of 26 February 2004
Council Regulation (EC) No 1419/2006 of 25 September 2006

L 68
L 269

1
1

6.3.2004
28.9.2006

Official Journal

No

page

date

C.1202003R0001 — EN — 18.10.2006 — 002.001 — 2

▼B

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

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and
in particular Article 83 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the European Economic and Social
Committee (3),

Whereas:

(1)

(2)

(3)

(4)

In order to establish a system which ensures that competition in
the common market is not distorted, Articles 81 and 82 of the
Treaty must be applied effectively and uniformly in the
Community. Council Regulation No 17 of 6 February 1962,
First Regulation implementing Articles 81 and 82 (*) of the
Treaty (4), has allowed a Community competition policy to
develop that has helped to disseminate a competition culture
within the Community. In the light of experience, however,
that Regulation should now be replaced by legislation designed
to meet
the challenges of an integrated market and a future
enlargement of the Community.

there is a need to rethink the arrangements for
In particular,
applying the exception from the prohibition on agreements,
which restrict competition,
laid down in Article 81(3) of the
Treaty. Under Article 83(2)(b) of the Treaty, account must be
taken in this regard of the need to ensure effective supervision,
on the one hand, and to simplify administration to the greatest
possible extent, on the other.

The centralised scheme set up by Regulation No 17 no longer
secures a balance between those two objectives. It hampers appli-
cation of the Community competition rules by the courts and
competition authorities of the Member States, and the system
of notification it involves prevents the Commission from concen-
trating its resources on curbing the most serious infringements. It
also imposes considerable costs on undertakings.

The present system should therefore be replaced by a directly
applicable exception system in which the competition authorities
and courts of the Member States have the power to apply not
only Article 81(1) and Article 82 of the Treaty, which have direct
applicability by virtue of the case-law of the Court of Justice of
the European Communities, but also Article 81(3) of the Treaty.

(1) OJ C 365 E, 19.12.2000, p. 284.
(2) OJ C 72 E, 21.3.2002, p. 305.
(3) OJ C 155, 29.5.2001, p. 73.
(*) The title of Regulation No 17 has been adjusted to take account of the
renumbering of the Articles of the EC Treaty, in accordance with Article
12 of the Treaty of Amsterdam; the original reference was to Articles 85 and
86 of the Treaty.

(4) OJ 13, 21.2.1962, p. 204/62. Regulation as last amended by Regulation (EC)

No 1216/1999 (OJ L 148, 15.6.1999, p. 5).

C.121▼B

(5)

(6)

(7)

(8)

(9)

2003R0001 — EN — 18.10.2006 — 002.001 — 3

In order to ensure an effective enforcement of the Community
competition rules and at the same time the respect of fundamental
rights of defence, this Regulation should regulate the burden of
proof under Articles 81 and 82 of the Treaty. It should be for the
party or the authority alleging an infringement of Article 81(1)
and Article 82 of the Treaty to prove the existence thereof to the
required legal standard. It should be for the undertaking or asso-
ciation of undertakings invoking the benefit of a defence against
a finding of an infringement to demonstrate to the required legal
standard that
the conditions for applying such defence are
satisfied. This Regulation affects neither national rules on the
standard of proof nor obligations of competition authorities and
courts of the Member States to ascertain the relevant facts of a
case, provided that such rules and obligations are compatible with
general principles of Community law.

In order to ensure that
the Community competition rules are
applied effectively, the competition authorities of the Member
States should be associated more closely with their application.
To this end, they should be empowered to apply Community law.

they protect

National courts have an essential part to play in applying the
Community competition rules. When deciding disputes between
the subjective rights under
private individuals,
Community law,
for example by awarding damages to the
victims of infringements. The role of the national courts here
complements that of the competition authorities of the Member
States. They should therefore be allowed to apply Articles 81 and
82 of the Treaty in full.

In order to ensure the effective enforcement of the Community
competition rules and the proper functioning of the cooperation
mechanisms contained in this Regulation, it is necessary to oblige
the competition authorities and courts of the Member States to
also apply Articles 81 and 82 of the Treaty where they apply
national competition law to agreements and practices which may
affect trade between Member States. In order to create a level
playing field for agreements, decisions by associations of under-
takings and concerted practices within the internal market, it is
also necessary to determine pursuant to Article 83(2)(e) of the
Treaty the relationship between national laws and Community
competition law. To that effect it is necessary to provide that
the application of national competition laws to agreements,
decisions or concerted practices within the meaning of Article
81(1) of the Treaty may not
lead to the prohibition of such
agreements, decisions and concerted practices if they are not
also prohibited under Community competition law. The notions
of agreements, decisions and concerted practices are autonomous
concepts of Community competition law covering the coordi-
nation of behaviour of undertakings on the market as interpreted
by the Community Courts. Member States should not under this
Regulation be precluded from adopting and applying on their
territory stricter national competition laws which prohibit or
impose sanctions on unilateral conduct engaged in by under-
takings. These stricter national
laws may include provisions
which prohibit or
impose sanctions on abusive behaviour
toward economically dependent undertakings. Furthermore, this
Regulation does not apply to national
laws which impose
criminal sanctions on natural persons except to the extent that
such sanctions are the means whereby competition rules applying
to undertakings are enforced.

Articles 81 and 82 of the Treaty have as their objective the
protection of competition on the market. This Regulation,
which is adopted for
these Treaty
provisions, does not preclude Member States from implementing
legislation, which protects other
on their
legitimate interests provided that such legislation is compatible

the implementation of

territory national

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2003R0001 — EN — 18.10.2006 — 002.001 — 4

with general principles and other provisions of Community law.
In so far as such national legislation pursues predominantly an
objective different from that of protecting competition on the
market, the competition authorities and courts of the Member
States may apply such legislation on their territory. Accordingly,
Member States may under this Regulation implement on their
territory national legislation that prohibits or imposes sanctions
on acts of unfair
trading practice, be they unilateral or
contractual. Such legislation pursues a specific objective, irre-
spective of the actual or presumed effects of such acts on compe-
tition on the market. This is particularly the case of legislation
which prohibits undertakings from imposing on their trading
partners, obtaining or attempting to obtain from them terms and
conditions that are unjustified, disproportionate or without consid-
eration.

(10) Regulations such as 19/65/EEC (1), (EEC) No 2821/71 (2), (EEC)
No 3976/87 (3), (EEC) No 1534/91 (4), or (EEC) No 479/92 (5)
empower the Commission to apply Article 81(3) of the Treaty by
Regulation to certain categories of agreements, decisions by asso-
ciations of undertakings and concerted practices. In the areas
defined by such Regulations, the Commission has adopted and
may continue to adopt so called ‘block’ exemption Regulations
by which it declares Article 81(1) of the Treaty inapplicable to
categories of agreements, decisions and concerted practices.
Where agreements, decisions and concerted practices to which
such Regulations apply nonetheless have effects that are incom-
patible with Article 81(3) of the Treaty, the Commission and the
competition authorities of the Member States should have the
power to withdraw in a particular case the benefit of the block
exemption Regulation.

(11)

For it to ensure that the provisions of the Treaty are applied, the
Commission should be able to address decisions to undertakings

(1) Council Regulation No 19/65/EEC of 2 March 1965 on the application of
Article 81(3) (The titles of the Regulations have been adjusted to take
account of the renumbering of the Articles of the EC Treaty, in accordance
with Article 12 of the Treaty of Amsterdam; the original reference was to
Article 85(3) of the Treaty) of the Treaty to certain categories of agreements
and concerted practices (OJ 36, 6.3.1965, p. 533). Regulation as last amended
by Regulation (EC) No 1215/1999 (OJ L 148, 15.6.1999, p. 1).

(2) Council Regulation (EEC) No 2821/71 of 20 December 1971 on the appli-
cation of Article 81(3) (The titles of the Regulations have been adjusted to
take account of the renumbering of the Articles of the EC Treaty,
in
accordance with Article 12 of
the original
reference was to Article 85(3) of the Treaty) of the Treaty to categories of
agreements, decisions and concerted practices (OJ L 285, 29.12.1971, p. 46).
Regulation as last amended by the Act of Accession of 1994.

the Treaty of Amsterdam;

(3) Council Regulation (EEC) No 3976/87 of 14 December 1987 on the appli-
cation of Article 81(3) (The titles of the Regulations have been adjusted to
take account of the renumbering of the Articles of the EC Treaty,
in
accordance with Article 12 of
the original
reference was to Article 85(3) of the Treaty) of the Treaty to certain cate-
gories of agreements and concerted practices in the air transport sector (OJ
L 374, 31.12.1987, p. 9). Regulation as last amended by the Act of Accession
of 1994.

the Treaty of Amsterdam;

(4) Council Regulation (EEC) No 1534/91 of 31 May 1991 on the application of
Article 81(3) (The titles of the Regulations have been adjusted to take
account of the renumbering of the Articles of the EC Treaty, in accordance
with Article 12 of the Treaty of Amsterdam; the original reference was to
Article 85(3) of the Treaty) of the Treaty to certain categories of agreements,
decisions and concerted practices in the insurance sector (OJ L 143, 7.6.1991,
p. 1).

(5) Council Regulation (EEC) No 479/92 of 25 February 1992 on the application
of Article 81(3) (The titles of the Regulations have been adjusted to take
account of the renumbering of the Articles of the EC Treaty, in accordance
with Article 12 of the Treaty of Amsterdam; the original reference was to
Article 85(3) of the Treaty) of the Treaty to certain categories of agreements,
shipping companies
decisions
(Consortia) (OJ L 55, 29.2.1992, p. 3). Regulation amended by the Act of
Accession of 1994.

and concerted practices between liner

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or associations of undertakings for the purpose of bringing to an
end infringements of Articles 81 and 82 of the Treaty. Provided
there is a legitimate interest in doing so, the Commission should
also be able to adopt decisions which find that an infringement
has been committed in the past even if it does not impose a fine.
This Regulation should also make explicit provision for the
Commission's power
to adopt decisions ordering interim
measures, which has been acknowledged by the Court of Justice.

(12) This Regulation should make explicit provision for the Commis-
sion's power to impose any remedy, whether behavioural or
structural, which is necessary to bring the infringement effec-
tively to an end, having regard to the principle of proportionality.
Structural remedies should only be imposed either where there is
no equally effective behavioural remedy or where any equally
effective behavioural remedy would be more burdensome for
the undertaking concerned than the structural remedy. Changes
to the structure of an undertaking as it existed before the infrin-
gement was committed would only be proportionate where there
is a substantial risk of a lasting or repeated infringement that
derives from the very structure of the undertaking.

(13) Where,

its concerns,

in the course of proceedings which might

lead to an
agreement or practice being prohibited, undertakings offer the
Commission commitments such as to meet
the
Commission should be able to adopt decisions which make
those commitments binding on the undertakings concerned.
there are no longer
Commitment decisions should find that
grounds for action by the Commission without concluding
whether or not
is an infringement.
Commitment decisions are without prejudice to the powers of
competition authorities and courts of
the Member States to
make such a finding and decide upon the case. Commitment
decisions are not appropriate in cases where the Commission
intends to impose a fine.

there has been or still

(14)

In exceptional cases where the public interest of the Community
so requires, it may also be expedient for the Commission to adopt
a decision of a declaratory nature finding that the prohibition in
Article 81 or Article 82 of the Treaty does not apply, with a view
to clarifying the law and ensuring its consistent application
throughout
in particular with regard to new
types of agreements or practices that have not been settled in
the existing case-law and administrative practice.

the Community,

(15) The Commission and the competition authorities of the Member
States should form together a network of public authorities
applying the Community competition rules in close cooperation.
For that purpose it is necessary to set up arrangements for infor-
mation and consultation. Further modalities for the cooperation
within the network will be laid down and revised by the
Commission, in close cooperation with the Member States.

(16) Notwithstanding any national provision to the contrary,

the
exchange of information and the use of such information in
evidence should be allowed between the members of
the
network even where the information is confidential. This infor-
mation may be used for the application of Articles 81 and 82 of
the Treaty as well as for the parallel application of national
competition law, provided that the latter application relates to
the same case and does not lead to a different outcome. When
the information exchanged is used by the receiving authority to
impose sanctions on undertakings, there should be no other limit
to the use of the information than the obligation to use it for the
purpose for which it was collected given the fact
the
sanctions imposed on undertakings are of the same type in all
systems. The rights of defence enjoyed by undertakings in the
various systems can be considered as sufficiently equivalent.

that

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2003R0001 — EN — 18.10.2006 — 002.001 — 6

(17)

they may be subject

to
However, as regards natural persons,
substantially different
types of sanctions across the various
systems. Where that is the case, it is necessary to ensure that
information can only be used if it has been collected in a way
which respects the same level of protection of the rights of
defence of natural persons as provided for under the national
rules of the receiving authority.

If the competition rules are to be applied consistently and, at the
same time, the network is to be managed in the best possible
way, it is essential to retain the rule that the competition autho-
rities of the Member States are automatically relieved of their
competence if the Commission initiates its own proceedings.
Where a competition authority of a Member State is already
acting on a case and the Commission intends
to initiate
proceedings, it should endeavour to do so as soon as possible.
Before initiating proceedings, the Commission should consult the
national authority concerned.

(18) To ensure that cases are dealt with by the most appropriate
authorities within the network, a general provision should be
laid down allowing a competition authority to suspend or close
a case on the ground that another authority is dealing with it or
has already dealt with it,
the objective being that each case
should be handled by a single authority. This provision should
not prevent the Commission from rejecting a complaint for lack
of Community interest, as the case-law of the Court of Justice has
acknowledged it may do, even if no other competition authority
has indicated its intention of dealing with the case.

(19) The Advisory Committee on Restrictive Practices and Dominant
Positions set up by Regulation No 17 has functioned in a very
satisfactory manner. It will fit well into the new system of decen-
tralised application. It is necessary, therefore, to build upon the
rules laid down by Regulation No 17, while improving the effec-
tiveness of the organisational arrangements. To this end, it would
be expedient
to allow opinions to be delivered by written
procedure. The Advisory Committee should also be able to act
as a forum for discussing cases that are being handled by the
competition authorities of the Member States, so as to help
safeguard the consistent application of the Community compe-
tition rules.

(20) The Advisory Committee should be composed of representatives
of the competition authorities of the Member States. For meetings
in which general
issues are being discussed, Member States
should be able to appoint an additional representative. This is
without prejudice to members of the Committee being assisted
by other experts from the Member States.

that

established for

arrangements be

(21) Consistency in the application of the competition rules also
requires
cooperation
between the courts of the Member States and the Commission.
This is relevant for all courts of the Member States that apply
Articles 81 and 82 of the Treaty, whether applying these rules in
lawsuits between private parties, acting as public enforcers or as
review courts. In particular, national courts should be able to ask
the Commission for information or for its opinion on points
concerning the application of Community competition law. The
Commission and the competition authorities of
the Member
States should also be able to submit written or oral observations
to courts called upon to apply Article 81 or Article 82 of the
Treaty. These observations should be submitted within the
framework of national procedural rules and practices including
those safeguarding the rights of the parties. Steps should therefore
be taken to ensure that
the Commission and the competition
the Member States are kept sufficiently well
authorities of
informed of proceedings before national courts.

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(22)

It

to ensure compliance with the principles of

In order
legal
certainty and the uniform application of the Community compe-
tition rules in a system of parallel powers, conflicting decisions
in
must be avoided.
accordance with the case-law of
the
effects of Commission decisions and proceedings on courts and
competition authorities of
the Member States. Commitment
decisions adopted by the Commission do not affect the power
of the courts and the competition authorities of the Member
States to apply Articles 81 and 82 of the Treaty.

therefore necessary to clarify,
the Court of Justice,

is

(23) The Commission

be

should

throughout

empowered

the
Community to require such information to be supplied as is
necessary to detect any agreement, decision or concerted
practice prohibited by Article 81 of the Treaty or any abuse of
a dominant position prohibited by Article 82 of the Treaty. When
complying with a decision of the Commission, undertakings
cannot be forced to admit that they have committed an infrin-
gement, but
they are in any event obliged to answer factual
questions and to provide documents, even if this information
may be used to establish against them or against another under-
taking the existence of an infringement.

(24) The Commission should also be empowered to undertake such
inspections as are necessary to detect any agreement, decision or
concerted practice prohibited by Article 81 of the Treaty or any
abuse of a dominant position prohibited by Article 82 of the
the Member States
Treaty. The competition authorities of
should cooperate actively in the exercise of these powers.

(25) The detection of

in

should

infringements of

the competition rules is
growing ever more difficult, and, in order to protect competition
effectively, the Commission's powers of investigation need to be
supplemented. The Commission
be
empowered to interview any persons who may be in possession
of useful information and to record the statements made. In the
course of an inspection, officials authorised by the Commission
should be empowered to affix seals for the period of time
necessary for
the inspection. Seals should normally not be
affixed for more than 72 hours. Officials authorised by the
Commission should also be empowered to ask for any infor-
the
mation relevant
inspection.

to the subject matter and purpose of

particular

In

(26) Experience has shown that there are cases where business records
are kept in the homes of directors or other people working for an
of
to safeguard
undertaking.
inspections, therefore, officials and other persons authorised by
the Commission should be empowered to enter any premises
where business records may be kept, including private homes.
However, the exercise of this latter power should be subject to
the authorisation of the judicial authority.

effectiveness

order

the

(27) Without prejudice to the case-law of the Court of Justice, it is
useful to set out the scope of the control that the national judicial
authority may carry out when it authorises, as foreseen by
national
law including as a precautionary measure, assistance
from law enforcement authorities in order to overcome possible
opposition on the part of the undertaking or the execution of the
decision to carry out
inspections in non-business premises. It
judicial authority
results from the case-law that
may in particular ask the Commission for further information
which it needs to carry out its control and in the absence of
which it could refuse the authorisation. The case-law also
confirms the competence of the national courts to control the
application of national rules governing the implementation of
coercive measures.

the national

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(28)

In order to help the competition authorities of the Member States
to apply Articles 81 and 82 of the Treaty effectively,
is
expedient to enable them to assist one another by carrying out
inspections and other fact-finding measures.

it

(29) Compliance with Articles 81 and 82 of the Treaty and the
fulfilment of the obligations imposed on undertakings and asso-
ciations of undertakings under
this Regulation should be
enforceable by means of fines and periodic penalty payments.
To that end, appropriate levels of fine should also be laid
down for infringements of the procedural rules.

(30)

for

that

infringements

In order to ensure effective recovery of fines imposed on asso-
they have
ciations of undertakings
committed, it is necessary to lay down the conditions on which
the Commission may require payment of the fine from the
members of
the association where the association is not
solvent. In doing so, the Commission should have regard to the
relative size of the undertakings belonging to the association and
in particular to the situation of small and medium-sized enter-
prises. Payment of the fine by one or several members of an
association is without prejudice to rules of national
law that
provide for recovery of the amount paid from other members
of the association.

(31) The rules on periods of limitation for the imposition of fines and
periodic penalty payments were laid down in Council Regulation
(EEC) No 2988/74 (1), which also concerns penalties in the field
of transport. In a system of parallel powers, the acts, which may
interrupt a limitation period, should include procedural steps
taken independently by the competition authority of a Member
State. To clarify the legal framework, Regulation (EEC) No
2988/74 should therefore be amended to prevent it applying to
matters covered by this Regulation, and this Regulation should
include provisions on periods of limitation.

(32) The undertakings concerned should be accorded the right to be
heard by the Commission, third parties whose interests may be
affected by a decision should be given the opportunity of
submitting their observations beforehand, and the decisions
taken should be widely publicised. While ensuring the rights of
defence of the undertakings concerned, in particular, the right of
access to the file, it is essential that business secrets be protected.
The confidentiality of information exchanged in the network
should likewise be safeguarded.

(33)

Since all decisions taken by the Commission under this Regu-
lation are subject to review by the Court of Justice in accordance
with the Treaty, the Court of Justice should, in accordance with
Article 229 thereof be given unlimited jurisdiction in respect of
decisions by which the Commission imposes fines or periodic
penalty payments.

(34) The principles laid down in Articles 81 and 82 of the Treaty, as
they have been applied by Regulation No 17, have given a
central role to the Community bodies. This central role should
be retained, whilst associating the Member States more closely
with the application of the Community competition rules. In
accordance with the principles of subsidiarity and proportionality
as set out in Article 5 of the Treaty, this Regulation does not go
beyond what is necessary in order to achieve its objective, which
is to allow the Community competition rules to be applied effec-
tively.

(1) Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning
limitation periods in proceedings and the enforcement of sanctions under
the rules of the European Economic Community relating to transport and
competition (OJ L 319, 29.11.1974, p. 1).

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(35)

In order to attain a proper enforcement of Community compe-
tition law, Member States should designate and empower autho-
rities to apply Articles 81 and 82 of
the Treaty as public
enforcers. They should be able to designate administrative as
well as judicial authorities to carry out
the various functions
conferred upon competition authorities in this Regulation. This
Regulation recognises the wide variation which exists in the
public enforcement systems of Member States. The effects of
Article 11(6) of this Regulation should apply to all competition
authorities. As an exception to this general rule, where a prose-
cuting authority brings a case before a separate judicial authority,
Article 11(6) should apply to the prosecuting authority subject to
the conditions in Article 35(4) of this Regulation. Where these
conditions are not fulfilled, the general rule should apply. In any
case, Article 11(6) should not apply to courts insofar as they are
acting as review courts.

(36) As the case-law has made it clear that the competition rules apply
to transport, that sector should be made subject to the procedural
provisions of this Regulation. Council Regulation No 141 of 26
November 1962 exempting transport from the application of
Regulation No 17 (1) should therefore be repealed and Regu-
lations (EEC) No 1017/68 (2), (EEC) No 4056/86 (3) and (EEC)
No 3975/87 (4) should be amended in order to delete the specific
procedural provisions they contain.

(37) This Regulation respects the fundamental rights and observes the
principles recognised in particular by the Charter of Fundamental
Rights of the European Union. Accordingly,
this Regulation
should be interpreted and applied with respect to those rights
and principles.

(38) Legal certainty for undertakings operating under the Community
competition rules contributes to the promotion of innovation and
investment. Where cases give rise to genuine uncertainty because
they present novel or unresolved questions for the application of
these rules, individual undertakings may wish to seek informal
guidance from the Commission. This Regulation is without
prejudice to the ability of
the Commission to issue such
informal guidance,

(1) OJ 124, 28.11.1962, p. 2751/62; Regulation as last amended by Regulation

No 1002/67/EEC (OJ 306, 16.12.1967, p. 1).

(2) Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of
competition to transport by rail, road and inland waterway (OJ L 175,
23.7.1968, p. 1). Regulation as last amended by the Act of Accession of
1994.

(3) Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down
detailed rules for the application of Articles 81 and 82 (The title of the
Regulation has been adjusted to take account of the renumbering of the
Articles of the EC Treaty, in accordance with Article 12 of the Treaty of
Amsterdam; the original reference was to Articles 85 and 86 of the Treaty) of
the Treaty to maritime transport (OJ L 378, 31.12.1986, p. 4). Regulation as
last amended by the Act of Accession of 1994.

(4) 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). Regulation as last
amended by Regulation (EEC) No 2410/92 (OJ L 240, 24.8.1992, p. 18).

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HAS ADOPTED THIS REGULATION:

CHAPTER I

PRINCIPLES

Article 1

Application of Articles 81 and 82 of the Treaty

1.
Agreements, decisions and concerted practices caught by Article
81(1) of the Treaty which do not satisfy the conditions of Article 81(3)
of the Treaty shall be prohibited, no prior decision to that effect being
required.

2.
Agreements, decisions and concerted practices caught by Article
81(1) of the Treaty which satisfy the conditions of Article 81(3) of the
Treaty shall not be prohibited, no prior decision to that effect being
required.

3.
The abuse of a dominant position referred to in Article 82 of the
Treaty shall be prohibited, no prior decision to that effect being
required.

Article 2

Burden of proof

In any national or Community proceedings for the application of
Articles 81 and 82 of the Treaty, the burden of proving an infringement
of Article 81(1) or of Article 82 of the Treaty shall rest on the party or
the authority alleging the infringement. The undertaking or association
of undertakings claiming the benefit of Article 81(3) of the Treaty shall
bear the burden of proving that the conditions of that paragraph are
fulfilled.

Article 3

Relationship between Articles 81 and 82 of the Treaty and national
competition laws

courts

apply national

the Member States or
1. Where the competition authorities of
national
competition law to agreements,
decisions by associations of undertakings or concerted practices within
the meaning of Article 81(1) of the Treaty which may affect trade
between Member States within the meaning of that provision,
they
shall also apply Article 81 of
the Treaty to such agreements,
decisions or concerted practices. Where the competition authorities of
the Member States or national courts apply national competition law to
any abuse prohibited by Article 82 of the Treaty, they shall also apply
Article 82 of the Treaty.

2.
The application of national competition law may not lead to the
prohibition of agreements, decisions by associations of undertakings or
concerted practices which may affect trade between Member States but
which do not restrict competition within the meaning of Article 81(1) of
the Treaty, or which fulfil the conditions of Article 81(3) of the Treaty
or which are covered by a Regulation for the application of Article 81
(3) of the Treaty. Member States shall not under this Regulation be
precluded from adopting and applying on their
territory stricter
national laws which prohibit or sanction unilateral conduct engaged in
by undertakings.

3. Without prejudice to general principles and other provisions of
Community law, paragraphs 1 and 2 do not apply when the competition

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authorities and the courts of the Member States apply national merger
laws nor do they preclude the application of provisions of
control
national
law that predominantly pursue an objective different from
that pursued by Articles 81 and 82 of the Treaty.

CHAPTER II

POWERS

Article 4

Powers of the Commission

For the purpose of applying Articles 81 and 82 of the Treaty,
Commission shall have the powers provided for by this Regulation.

the

Powers of the competition authorities of the Member States

Article 5

The competition authorities of the Member States shall have the power
to apply Articles 81 and 82 of the Treaty in individual cases. For this
purpose, acting on their own initiative or on a complaint, they may take
the following decisions:

— requiring that an infringement be brought to an end,

— ordering interim measures,

— accepting commitments,

— imposing fines, periodic penalty payments or any other penalty

provided for in their national law.

Where on the basis of the information in their possession the conditions
for prohibition are not met they may likewise decide that there are no
grounds for action on their part.

Article 6

Powers of the national courts

National courts shall have the power to apply Articles 81 and 82 of the
Treaty.

CHAPTER III

COMMISSION DECISIONS

Article 7

Finding and termination of infringement

1. Where the Commission, acting on a complaint or on its own
initiative, finds that
there is an infringement of Article 81 or of
Article 82 of the Treaty, it may by decision require the undertakings
and associations of undertakings concerned to bring such infringement
to an end. For this purpose, it may impose on them any behavioural or
structural
remedies which are proportionate to the infringement
committed and necessary to bring the infringement effectively to an
end. Structural remedies can only be imposed either where there is no
equally effective behavioural remedy or where any equally effective
behavioural remedy would be more burdensome for the undertaking
the Commission has a
concerned than the structural

remedy.

If

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legitimate interest in doing so, it may also find that an infringement has
been committed in the past.

2.
Those entitled to lodge a complaint for the purposes of paragraph
1 are natural or legal persons who can show a legitimate interest and
Member States.

Article 8

Interim measures

1.
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.

2.
A decision under paragraph 1 shall apply for a specified period of
time and may be renewed in so far this is necessary and appropriate.

Article 9

Commitments

1. Where the Commission intends to adopt a decision requiring that
an infringement be brought to an end and the undertakings concerned
the concerns expressed to them by the
offer commitments to meet
Commission in its preliminary assessment,
the Commission may by
decision make those commitments binding on the undertakings. Such
a decision may be adopted for a specified period and shall conclude that
there are no longer grounds for action by the Commission.

The Commission may, upon request or on its own initiative,

2.
reopen the proceedings:

(a) where there has been a material change in any of the facts on which

the decision was based;

(b) where

the

undertakings

concerned

act

contrary

to

their

commitments; or

(c) where the decision was based on incomplete,
misleading information provided by the parties.

incorrect or

Article 10

Finding of inapplicability

Where the Community public interest relating to the application of
Articles 81 and 82 of the Treaty so requires, the Commission, acting
on its own initiative, may by decision find that Article 81 of the Treaty
is not applicable to an agreement, a decision by an association of under-
takings or a concerted practice, either because the conditions of Article
81(1) of the Treaty are not fulfilled, or because the conditions of Article
81(3) of the Treaty are satisfied.

The Commission may likewise make such a finding with reference to
Article 82 of the Treaty.

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CHAPTER IV

COOPERATION

Article 11

Cooperation between the Commission and the

competition

authorities of the Member States

1.
The Commission and the competition authorities of the Member
States shall apply the Community competition rules in close coop-
eration.

The Commission shall transmit to the competition authorities of
2.
the Member States copies of the most
important documents it has
collected with a view to applying Articles 7, 8, 9, 10 and Article 29
(1). At the request of the competition authority of a Member State, the
Commission shall provide it with a copy of other existing documents
necessary for the assessment of the case.

The competition authorities of the Member States shall, when
3.
acting under Article 81 or Article 82 of
inform the
Commission in writing before or without delay after commencing the
first formal investigative measure. This information may also be made
available to the competition authorities of the other Member States.

the Treaty,

the envisaged decision or,

4.
No later than 30 days before the adoption of a decision requiring
that an infringement be brought to an end, accepting commitments or
withdrawing the benefit of a block exemption Regulation, the compe-
tition authorities of the Member States shall inform the Commission. To
that effect, they shall provide the Commission with a summary of the
case,
in the absence thereof, any other
document indicating the proposed course of action. This information
may also be made available to the competition authorities of the other
Member States. At the request of the Commission, the acting compe-
tition authority shall make available to the Commission other documents
it holds which are necessary for the assessment of the case. The infor-
mation supplied to the Commission may be made available to the
competition authorities of the other Member States. National compe-
tition authorities may also exchange between themselves information
necessary for the assessment of a case that
they are dealing with
under Article 81 or Article 82 of the Treaty.

5.
The competition authorities of the Member States may consult the
Commission on any case involving the application of Community law.

The initiation by the Commission of proceedings for the adoption
6.
of a decision under Chapter III shall relieve the competition authorities
of the Member States of their competence to apply Articles 81 and 82
of the Treaty. If a competition authority of a Member State is already
acting on a case, the Commission shall only initiate proceedings after
consulting with that national competition authority.

Article 12

Exchange of information

1.
For the purpose of applying Articles 81 and 82 of the Treaty the
Commission and the competition authorities of the Member States shall
have the power to provide one another with and use in evidence any
matter of fact or of law, including confidential information.

2.
Information exchanged shall only be used in evidence for the
purpose of applying Article 81 or Article 82 of the Treaty and in
respect of the subject-matter for which it was collected by the trans-
mitting authority. However, where national competition law is applied
in the same case and in parallel to Community competition law and

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▼B

does not lead to a different outcome, information exchanged under this
Article may also be used for the application of national competition law.

Information exchanged pursuant to paragraph 1 can only be used

3.
in evidence to impose sanctions on natural persons where:
— the law of the transmitting authority foresees sanctions of a similar
kind in relation to an infringement of Article 81 or Article 82 of the
Treaty or, in the absence thereof,

— the information has been collected in a way which respects the same
level of protection of the rights of defence of natural persons as
provided for under the national rules of the receiving authority.
However, in this case, the information exchanged cannot be used
by the receiving authority to impose custodial sanctions.

Article 13

Suspension or termination of proceedings

1. Where competition authorities of two or more Member States have
received a complaint or are acting on their own initiative under Article
81 or Article 82 of the Treaty against the same agreement, decision of
an association or practice, the fact that one authority is dealing with the
case shall be sufficient grounds
to suspend the
proceedings before them or to reject the complaint. The Commission
may likewise reject a complaint on the ground that a competition
authority of a Member State is dealing with the case.

the others

for

2. Where a competition authority of a Member State or
the
Commission has received a complaint against an agreement, decision
of an association or practice which has already been dealt with by
another competition authority, it may reject it.

Article 14

Advisory Committee

1.
The Commission shall consult an Advisory Committee on
Restrictive Practices and Dominant Positions prior to the taking of
any decision under Articles 7, 8, 9, 10, 23, Article 24(2) and Article
29(1).

2.
For the discussion of individual cases, the Advisory Committee
shall be composed of representatives of the competition authorities 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. Representatives
may, if unable to attend, be replaced by other representatives.

The consultation may take place at a meeting convened and
3.
than 14 days after
chaired by the Commission, held not earlier
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. 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. Where the Commission dispatches a notice convening the
meeting which gives a shorter period of notice than those specified
above,
the meeting may take place on the proposed date in the
absence of an objection by any Member State. The Advisory
Committee shall deliver a written opinion on the Commission's preli-
minary draft decision. It may deliver an opinion even if some members
are absent and are not represented. At the request of one or several
members, the positions stated in the opinion shall be reasoned.

4.
if any Member State so requests,
meeting.

Consultation may also take place by written procedure. However,
the Commission shall convene a
the Commission shall

In case of written procedure,

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2003R0001 — EN — 18.10.2006 — 002.001 — 15

determine a time-limit of not
less than 14 days within which the
Member States are to put forward their observations for circulation to
all other Member States. In case of decisions to be taken pursuant to
Article 8, the time-limit of 14 days is replaced by seven days. Where
the Commission determines a time-limit for the written procedure which
is shorter than those specified above, the proposed time-limit shall be
applicable in the absence of an objection by any Member State.

The Commission shall take the utmost account of the opinion
5.
delivered by the Advisory Committee. It shall inform the Committee
of the manner in which its opinion has been taken into account.

6. Where the Advisory Committee delivers a written opinion, this
the Advisory
opinion shall be appended to the draft decision.
If
the Commission
Committee recommends publication of the opinion,
shall carry out such publication taking into account
the legitimate
interest of undertakings in the protection of their business secrets.

At the request of a competition authority of a Member State, the
7.
Commission shall include on the agenda of the Advisory Committee
cases that are being dealt with by a competition authority of a Member
State under Article 81 or Article 82 of the Treaty. The Commission may
also do so on its own initiative. In either case, the Commission shall
inform the competition authority concerned.

A request may in particular be made by a competition authority of a
Member State in respect of a case where the Commission intends to
initiate proceedings with the effect of Article 11(6).

The Advisory Committee shall not issue opinions on cases dealt with by
competition authorities of the Member States. The Advisory Committee
may also discuss general issues of Community competition law.

Article 15

Cooperation with national courts

1.
In proceedings for the application of Article 81 or Article 82 of
the Treaty, courts of the Member States may ask the Commission to
transmit
its opinion on
questions concerning the application of the Community competition
rules.

to them information in its possession or

2. Member States shall forward to the Commission a copy of any
written judgment of national courts deciding on the application of
Article 81 or Article 82 of the Treaty. Such copy shall be forwarded
without delay after the full written judgment is notified to the parties.

3.
Competition authorities of the Member States, acting on their own
initiative, may submit written observations to the national courts of their
Member State on issues relating to the application of Article 81 or
in
the Treaty. With the permission of
Article 82 of
they may also submit oral observations to the national
question,
courts of
their Member State. Where the coherent application of
Article 81 or Article 82 of the Treaty so requires, the Commission,
acting on its own initiative, may submit written observations to courts
of the Member States. With the permission of the court in question, it
may also make oral observations.

the court

For the purpose of the preparation of their observations only,
the
competition authorities of the Member States and the Commission
the relevant court of the Member State to transmit or
may request
ensure the transmission to them of any documents necessary for the
assessment of the case.

This Article is without prejudice to wider powers to make obser-
the

4.
vations before courts conferred on competition authorities of
Member States under the law of their Member State.

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2003R0001 — EN — 18.10.2006 — 002.001 — 16

Article 16

Uniform application of Community competition law

1. When national courts rule on agreements, decisions or practices
under Article 81 or Article 82 of the Treaty which are already the
subject of a Commission decision, they cannot take decisions running
counter to the decision adopted by the Commission. They must also
avoid giving decisions which would conflict with a decision contem-
plated by the Commission in proceedings it has initiated. To that effect,
the national court may assess whether
is necessary to stay its
proceedings. This obligation is without prejudice to the rights and obli-
gations under Article 234 of the Treaty.

it

2. When competition authorities of
the Member States rule on
agreements, decisions or practices under Article 81 or Article 82 of
the Treaty which are already the subject of a Commission decision,
they cannot take decisions which would run counter to the decision
adopted by the Commission.

CHAPTER V

POWERS OF INVESTIGATION

Article 17

Investigations into sectors of

the economy and into types of

agreements

1. Where the trend of trade between Member States, the rigidity of
prices or other circumstances suggest that competition may be restricted
or distorted within the common market, the Commission may conduct
its inquiry into a particular sector of the economy or into a particular
type of agreements across various sectors. In the course of that inquiry,
the Commission may request the undertakings or associations of under-
takings concerned to supply the information necessary for giving effect
to Articles 81 and 82 of the Treaty and may carry out any inspections
necessary for that purpose.

The Commission may in particular request the undertakings or asso-
ciations of undertakings concerned to communicate to it all agreements,
decisions and concerted practices.

The Commission may publish a report on the results of its inquiry into
particular sectors of the economy or particular types of agreements
across various sectors and invite comments from interested parties.

Articles 14, 18, 19, 20, 22, 23 and 24 shall apply mutatis

2.
mutandis.

Article 18

Requests for information

1.
In order to carry out the duties assigned to it by this Regulation,
the Commission may, by simple request or by decision, require under-
takings and associations of undertakings to provide all necessary infor-
mation.

2. When sending a simple request for information to an undertaking
or association of undertakings, the Commission shall state the legal
basis and the purpose of the request, specify what
information is
required and fix the time-limit within which the information is to be
provided, and the penalties provided for in Article 23 for supplying
incorrect or misleading information.

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2003R0001 — EN — 18.10.2006 — 002.001 — 17

3. Where the Commission requires undertakings and associations of
undertakings to supply information by decision, it shall state the legal
basis and the purpose of the request, specify what
information is
required and fix the time-limit within which it is to be provided. It
shall also indicate the penalties provided for
in Article 23 and
indicate or impose the penalties provided for in Article 24. It shall
further indicate the right to have the decision reviewed by the Court
of Justice.

4.
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 shall 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 shall remain fully responsible if the information supplied is
incomplete, incorrect or misleading.

The Commission shall without delay forward a copy of the simple
5.
request or of the decision to the competition authority of the Member
State in whose territory the seat of the undertaking or association of
undertakings is situated and the competition authority of the Member
State whose territory is affected.

6.
At the request of the Commission the governments and compe-
tition authorities of the Member States shall provide the Commission
with all necessary information to carry out the duties assigned to it by
this Regulation.

Article 19

Power to take statements

In order to carry out the duties assigned to it by this Regulation,
1.
the Commission may 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.

2. Where an interview pursuant to paragraph 1 is conducted in the
premises of an undertaking, the Commission shall inform the compe-
tition authority of the Member State in whose territory the interview
takes place. If so requested by the competition authority of that Member
State,
the officials and other accompanying
persons authorised by the Commission to conduct the interview.

its officials may assist

Article 20

The Commission's powers of inspection

In order to carry out the duties assigned to it by this Regulation,
1.
the Commission may conduct all necessary inspections of undertakings
and associations of undertakings.

The officials and other accompanying persons authorised by the

2.
Commission to conduct an inspection are empowered:

(a) to enter any premises, land and means of transport of undertakings

and associations of undertakings;

(b) to examine the books and other records related to the business,

irrespective of the medium on which they are stored;

(c) to take or obtain in any form copies of or extracts from such books

or records;

(d) to seal any business premises and books or records for the period

and to the extent necessary for the inspection;

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2003R0001 — EN — 18.10.2006 — 002.001 — 18

(e) to ask any representative or member of staff of the undertaking or
association of undertakings for explanations on facts or documents
relating to the subject-matter and purpose of the inspection and to
record the answers.

3.
The officials and other accompanying persons authorised by the
Commission to conduct an inspection shall exercise their powers upon
production of a written authorisation specifying the subject matter and
purpose of the inspection and the penalties provided for in Article 23 in
case the production of the required books or other records related to the
business is incomplete or where the answers to questions asked under
paragraph 2 of the present Article are incorrect or misleading. In good
time before the inspection, the Commission shall give notice of the
inspection to the competition authority of the Member State in whose
territory it is to be conducted.

Undertakings and associations of undertakings are required to
4.
submit
to inspections ordered by decision of the Commission. The
decision shall specify the subject matter and purpose of the inspection,
appoint the date on which it is to begin and indicate the penalties
provided for in Articles 23 and 24 and the right to have the decision
reviewed by the Court of Justice. The Commission shall
take such
decisions after consulting the competition authority of the Member
State in whose territory the inspection is to be conducted.

5.
Officials of as well as those authorised or appointed by the compe-
tition authority of the Member State in whose territory the inspection is
to be conducted shall, at
the request of that authority or of the
the officials and other accompanying
Commission, actively assist
persons authorised by the Commission. To this end, they shall enjoy
the powers specified in paragraph 2.

6. Where the officials and other accompanying persons authorised by
the Commission find that an undertaking opposes an inspection ordered
pursuant to this Article, the Member State concerned shall afford them
the necessary assistance, requesting where appropriate the assistance of
the police or of an equivalent enforcement authority, so as to enable
them to conduct their inspection.

7.
If the assistance provided for in paragraph 6 requires authorisation
from a judicial authority according to national rules, such authorisation
shall be applied for. Such authorisation may also be applied for as a
precautionary measure.

the national

In its control of

the proportionality of

through the Member State competition authority,

8. Where authorisation as referred to in paragraph 7 is applied for,
the national judicial authority shall control that the Commission decision
is authentic and that
the coercive measures envisaged are neither
arbitrary nor excessive having regard to the subject matter of the
inspection.
the coercive
judicial authority may ask the Commission,
measures,
directly or
for
detailed explanations in particular on the grounds the Commission has
for suspecting infringement of Articles 81 and 82 of the Treaty, as well
as on the seriousness of the suspected infringement and on the nature of
the involvement of the undertaking concerned. However, the national
judicial authority may not call
into question the necessity for the
inspection nor demand that it be provided with the information in the
Commission's file. The lawfulness of the Commission decision shall be
subject to review only by the Court of Justice.

Article 21

Inspection of other premises

1.
If a reasonable suspicion exists that books or other records related
to the business and to the subject-matter of the inspection, which may
be relevant to prove a serious violation of Article 81 or Article 82 of the
land and means of
Treaty, are being kept

in any other premises,

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2003R0001 — EN — 18.10.2006 — 002.001 — 19

transport,
including the homes of directors, managers and other
members of staff of the undertakings and associations of undertakings
concerned, the Commission can by decision order an inspection to be
conducted in such other premises, land and means of transport.

2.
The decision shall specify the subject matter and purpose of the
inspection, appoint the date on which it is to begin and indicate the right
in
to have the decision reviewed by the Court of Justice. It shall
particular state the reasons that have led the Commission to conclude
that a suspicion in the sense of paragraph 1 exists. The Commission
shall take such decisions after consulting the competition authority of
the Member State in whose territory the inspection is to be conducted.

the Commission decision is authentic and that

3.
A decision adopted pursuant to paragraph 1 cannot be executed
without prior authorisation from the national judicial authority of the
Member State concerned. The national judicial authority shall control
the coercive
that
measures envisaged are neither arbitrary nor excessive having regard
in particular to the seriousness of the suspected infringement, to the
importance of the evidence sought, to the involvement of the under-
taking concerned and to the reasonable likelihood that business books
and records relating to the subject matter of the inspection are kept in
the premises for which the authorisation is requested. The national
judicial authority may ask the Commission, directly or through the
Member State competition authority,
for detailed explanations on
those elements which are necessary to allow its control of the propor-
tionality of the coercive measures envisaged.

However, the national judicial authority may not call into question the
necessity for the inspection nor demand that it be provided with infor-
mation in the Commission's file. The lawfulness of the Commission
decision shall be subject to review only by the Court of Justice.

4.
The officials and other accompanying persons authorised by the
Commission to conduct an inspection ordered in accordance with
paragraph 1 of this Article shall have the powers set out in Article 20
(2)(a), (b) and (c). Article 20(5) and (6) shall apply mutatis mutandis.

Investigations by competition authorities of Member States

Article 22

The competition authority of a Member State may in its own
1.
territory carry out any inspection or other fact-finding measure under
its national
law on behalf and for the account of the competition
authority of another Member State in order to establish whether there
has been an infringement of Article 81 or Article 82 of the Treaty. Any
exchange and use of the information collected shall be carried out in
accordance with Article 12.

shall undertake

2.
At the request of the Commission, the competition authorities of
inspections which the
the Member States
Commission considers to be necessary under Article 20(1) or which it
has ordered by decision pursuant to Article 20(4). The officials of the
competition authorities of the Member States who are responsible for
conducting these inspections as well as those authorised or appointed by
them shall exercise their powers in accordance with their national law.

the

If so requested by the Commission or by the competition authority of
the Member State in whose territory the inspection is to be conducted,
officials and other accompanying persons authorised by the Commission
may assist the officials of the authority concerned.

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CHAPTER VI

PENALTIES

Article 23

Fines

The Commission may by decision impose on undertakings and
1.
associations of undertakings fines not exceeding 1 % of the total
turnover in the preceding business year where, intentionally or negli-
gently:

(a) they supply incorrect or misleading information in response to a

request made pursuant to Article 17 or Article 18(2);

(b) in response to a request made by decision adopted pursuant

to
Article 17 or Article 18(3), they supply incorrect, incomplete or
misleading information or do not supply information within the
required time-limit;

(c) they produce the required books or other records related to the
business in incomplete form during inspections under Article 20
or refuse to submit to inspections ordered by a decision adopted
pursuant to Article 20(4);

(d) in response to a question asked in accordance with Article 20(2)(e),

— they give an incorrect or misleading answer,
— they fail to rectify within a time-limit set by the Commission an
incorrect, incomplete or misleading answer given by a member
of staff, or

— they fail or refuse to provide a complete answer on facts relating
to the subject-matter and purpose of an inspection ordered by a
decision adopted pursuant to Article 20(4);

(e) seals affixed in accordance with Article 20(2)(d) by officials or
other accompanying persons authorised by the Commission have
been broken.

2.
The Commission may by decision impose fines on undertakings
and associations of undertakings where, either intentionally or negli-
gently:

(a) they infringe Article 81 or Article 82 of the Treaty; or

(b) they contravene a decision ordering interim measures under Article

8; or

(c) they fail to comply with a commitment made binding by a decision

pursuant to Article 9.

For each undertaking and association of undertakings participating in
the infringement, the fine shall not exceed 10 % of its total turnover in
the preceding business year.

Where the infringement of an association relates to the activities of its
members,
the fine shall not exceed 10 % of the sum of the total
turnover of each member active on the market affected by the infrin-
gement of the association.

In fixing the amount of the fine, regard shall be had both to the

3.
gravity and to the duration of the infringement.

4. When a fine is imposed on an association of undertakings taking
account of the turnover of its members and the association is not
solvent,
the association is obliged to call for contributions from its
members to cover the amount of the fine.

Where such contributions have not been made to the association within
a time-limit fixed by the Commission, the Commission may require

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2003R0001 — EN — 18.10.2006 — 002.001 — 21

payment of the fine directly by any of the undertakings whose repre-
sentatives were members of the decision-making bodies concerned of
the association.

After the Commission has required payment under the second subpar-
the
agraph, where necessary to ensure full payment of
Commission may require payment of
the
members of the association which were active on the market on
which the infringement occurred.

the fine,
the balance by any of

However, the Commission shall not require payment under the second
or the third subparagraph from undertakings which show that they have
not implemented the infringing decision of the association and either
were not aware of its existence or have actively distanced themselves
from it before the Commission started investigating the case.

The financial liability of each undertaking in respect of the payment of
the fine shall not exceed 10 % of its total turnover in the preceding
business year.

Decisions taken pursuant to paragraphs 1 and 2 shall not be of a

5.
criminal law nature.

Article 24

Periodic penalty payments

The Commission may, by decision, impose on undertakings or
1.
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:

(a) to put an end to an infringement of Article 81 or Article 82 of the
Treaty, in accordance with a decision taken pursuant to Article 7;

(b) to comply with a decision ordering interim measures taken pursuant

to Article 8;

(c) to comply with a commitment made binding by a decision pursuant

to Article 9;

(d) to supply complete and correct information which it has requested

by decision taken pursuant to Article 17 or Article 18(3);

(e) to submit to an inspection which it has ordered by decision taken

pursuant to Article 20(4).

2. Where the undertakings or associations of undertakings have
satisfied the obligation which the periodic penalty payment was
intended to enforce, the Commission may fix the definitive amount of
the periodic penalty payment at a figure lower than that which would
the original decision. Article 23(4) shall apply corre-
arise under
spondingly.

CHAPTER VII

LIMITATION PERIODS

Article 25

Limitation periods for the imposition of penalties

The powers conferred on the Commission by Articles 23 and 24

1.
shall be subject to the following limitation periods:

(a) three years in the case of infringements of provisions concerning

requests for information or the conduct of inspections;

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2003R0001 — EN — 18.10.2006 — 002.001 — 22

(b) five years in the case of all other infringements.

Time shall begin to run on the day on which the infringement is
2.
in the case of continuing or repeated infrin-
committed. However,
gements, time shall begin to run on the day on which the infringement
ceases.

3.
Any action taken by the Commission or by the competition
authority of a Member State for the purpose of the investigation or
proceedings in respect of an infringement shall interrupt the limitation
period for the imposition of fines or periodic penalty payments. The
limitation period shall be interrupted with effect from the date on which
the action is notified to at least one undertaking or association of under-
takings which has participated in the infringement. Actions which
interrupt
include in particular the
following:

the running of the period shall

(a) written requests for information by the Commission or by the

competition authority of a Member State;

(b) written authorisations to conduct inspections issued to its officials
by the Commission or by the competition authority of a Member
State;

(c) the initiation of proceedings by the Commission or by the compe-

tition authority of a Member State;

(d) notification of the statement of objections of the Commission or of

the competition authority of a Member State.

4.
The interruption of the limitation period shall apply for all the
undertakings or associations of undertakings which have participated
in the infringement.

Each interruption shall start time running afresh. However, the
5.
the latest on the day on which a
limitation period shall expire at
period equal
the
Commission having imposed a fine or a periodic penalty payment.
That period shall be extended by the time during which limitation is
suspended pursuant to paragraph 6.

to twice the limitation period has elapsed without

6.
The limitation period for the imposition of fines or periodic
penalty payments shall be suspended for as long as the decision of
the Commission is the subject of proceedings pending before the
Court of Justice.

Article 26

Limitation period for the enforcement of penalties

1.
The power of the Commission to enforce decisions taken pursuant
to Articles 23 and 24 shall be subject to a limitation period of five
years.

Time shall begin to run on the day on which the decision becomes

2.
final.

The limitation period for the enforcement of penalties shall be

3.
interrupted:

(a) by notification of a decision varying the original amount of the fine
or periodic penalty payment or refusing an application for variation;

(b) by any action of the Commission or of a Member State, acting at
the request of the Commission, designed to enforce payment of the
fine or periodic penalty payment.

4.

Each interruption shall start time running afresh.

The limitation period for the enforcement of penalties shall be

5.
suspended for so long as:

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▼B

(a) time to pay is allowed;

(b) enforcement of payment is suspended pursuant to a decision of the

Court of Justice.

CHAPTER VIII

HEARINGS AND PROFESSIONAL SECRECY

Article 27

Hearing of the parties, complainants and others

Before taking decisions as provided for in Articles 7, 8, 23 and
1.
Article 24(2),
the Commission shall give the undertakings or asso-
ciations 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. The Commission
shall base its decisions only on objections on which the parties
concerned have been able to comment. Complainants shall be associated
closely with the proceedings.

2.
The rights of defence of the parties concerned shall be fully
respected in the proceedings. They shall be entitled to have access to
the Commission's file, subject to the legitimate interest of undertakings
in the protection of their business secrets. The right of access to the file
shall not extend to confidential information and internal documents of
the Commission or the competition authorities of the Member States. In
the right of access shall not extend to correspondence
particular,
between the Commission and the competition authorities of
the
Member States, or between the latter, including documents drawn up
pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent
the Commission from disclosing and using information necessary to
prove an infringement.

3.
If the Commission considers it necessary, it may also hear other
natural or legal persons. Applications to be heard on the part of such
persons shall, where they show a sufficient interest, be granted. The
competition authorities of
the Member States may also ask the
Commission to hear other natural or legal persons.

4. Where the Commission intends to adopt a decision pursuant to
Article 9 or Article 10, it shall publish a concise summary of the case
and the main content of the commitments or of the proposed course of
action. Interested third parties may submit their observations within a
time limit which is fixed by the Commission in its publication and
which may not be less than one month. Publication shall have regard
to the legitimate interest of undertakings in the protection of their
business secrets.

Article 28

Professional secrecy

1. Without prejudice to Articles 12 and 15, information collected
pursuant to Articles 17 to 22 shall be used only for the purpose for
which it was acquired.

2. Without prejudice to the exchange and to the use of information
foreseen in Articles 11, 12, 14, 15 and 27, the Commission and the
competition authorities of the Member States, their officials, 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 shall not disclose information acquired or exchanged by them
pursuant to this Regulation and of the kind covered by the obligation
of professional secrecy. This obligation also applies to all represen-

C.142▼B

tatives and experts of Member States attending meetings of
Advisory Committee pursuant to Article 14.

the

2003R0001 — EN — 18.10.2006 — 002.001 — 24

CHAPTER IX

EXEMPTION REGULATIONS

Article 29

Withdrawal in individual cases

(EEC) No 2821/71,

1. Where the Commission, empowered by a Council Regulation,
such as Regulations 19/65/EEC,
(EEC) No
3976/87, (EEC) No 1534/91 or (EEC) No 479/92, to apply Article 81
(3) of the Treaty by regulation, has declared Article 81(1) of the Treaty
inapplicable to certain categories of agreements, decisions by asso-
ciations of undertakings or concerted practices, it may, acting on its
own initiative or on a complaint, withdraw the benefit of such an
exemption Regulation when it finds that
in any particular case an
agreement, decision or concerted practice to which the exemption Regu-
lation applies has certain effects which are incompatible with Article 81
(3) of the Treaty.

2. Where,
in any particular case, agreements, decisions by asso-
ciations of undertakings or concerted practices to which a Commission
Regulation referred to in paragraph 1 applies have effects which are
incompatible with Article 81(3) of the Treaty in the territory of a
Member State, or in a part thereof, which has all the characteristics
of a distinct geographic market,
the competition authority of that
Member State may withdraw the benefit of the Regulation in question
in respect of that territory.

CHAPTER X

GENERAL PROVISIONS

Article 30

Publication of decisions

The Commission shall publish the decisions, which it

1.
pursuant to Articles 7 to 10, 23 and 24.

takes

2.
The publication shall state the names of the parties and the main
content of the decision, including any penalties imposed. It shall have
regard to the legitimate interest of undertakings in the protection of their
business secrets.

Article 31

Review by the Court of Justice

The Court of Justice shall have unlimited jurisdiction to review
decisions whereby the Commission has fixed a fine or periodic
penalty payment.
increase the fine or
It may cancel,
periodic penalty payment imposed.

reduce or

▼M2

__________

C.1432003R0001 — EN — 18.10.2006 — 002.001 — 25

▼B

Article 33

Implementing provisions

1.
The Commission shall be authorised to take such measures as may
be appropriate in order to apply this Regulation. The measures may
concern, inter alia:

(a) the form, content and other details of complaints lodged pursuant to

Article 7 and the procedure for rejecting complaints;

(b) the practical arrangements for the exchange of information and

consultations provided for in Article 11;

(c) the practical arrangements for the hearings provided for in Article

27.

2.
Before the adoption of any measures pursuant to paragraph 1, the
Commission shall publish a draft thereof and invite all interested parties
to submit their comments within the time-limit it lays down, which may
not be less than one month. Before publishing a draft measure and
before adopting it,
the Advisory
Committee on Restrictive Practices and Dominant Positions.

the Commission shall consult

CHAPTER XI

TRANSITIONAL, AMENDING AND FINAL PROVISIONS

Article 34

Transitional provisions

Applications made to the Commission under Article 2 of Regu-
1.
lation No 17, notifications made under Articles 4 and 5 of that Regu-
lation and the corresponding applications and notifications made under
Regulations (EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No
3975/87 shall lapse as from the date of application of this Regulation.

2.
Procedural steps taken under Regulation No 17 and Regulations
(EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No 3975/87 shall
continue to have effect for the purposes of applying this Regulation.

Article 35

Designation of competition authorities of Member States

The Member States shall designate the competition authority or
1.
authorities responsible for the application of Articles 81 and 82 of the
Treaty in such a way that the provisions of this regulation are effec-
tively complied with. The measures necessary to empower those autho-
rities to apply those Articles shall be taken before 1 May 2004. The
authorities designated may include courts.

2. When enforcement of Community competition law is entrusted to
national administrative and judicial authorities, the Member States may
allocate different powers and functions to those different national autho-
rities, whether administrative or judicial.

3.
The effects of Article 11(6) apply to the authorities designated by
the Member States including courts that exercise functions regarding the
preparation and the adoption of the types of decisions foreseen in
Article 5. The effects of Article 11(6) do not extend to courts insofar
as they act as review courts in respect of the types of decisions foreseen
in Article 5.

4.
Notwithstanding paragraph 3, in the Member States where, for the
adoption of certain types of decisions foreseen in Article 5, an authority
brings an action before a judicial authority that is separate and different

C.144▼B

2003R0001 — EN — 18.10.2006 — 002.001 — 26

the terms of this
from the prosecuting authority and provided that
paragraph are complied with,
the effects of Article 11(6) shall be
limited to the authority prosecuting the case which shall withdraw its
claim before the judicial authority when the Commission opens
proceedings and this withdrawal shall bring the national proceedings
effectively to an end.

Article 36

Amendment of Regulation (EEC) No 1017/68

Regulation (EEC) No 1017/68 is amended as follows:

1. Article 2 is repealed;

2. in Article 3(1), the words ‘The prohibition laid down in Article 2’
are replaced by the words ‘The prohibition in Article 81(1) of the
Treaty’;

3. Article 4 is amended as follows:

(a) In paragraph 1,

the words ‘The agreements, decisions and
concerted practices referred to in Article 2’ are replaced by the
words ‘Agreements, decisions and concerted practices pursuant
to Article 81(1) of the Treaty’;

(b) Paragraph 2 is replaced by the following:

If

‘2.
the implementation of any agreement, decision or
concerted practice covered by paragraph 1 has,
in a given
case, effects which are incompatible with the requirements of
Article 81(3) of the Treaty, undertakings or associations of
undertakings may be required to make such effects cease.’

4. Articles 5 to 29 are repealed with the exception of Article 13(3)
which continues to apply to decisions adopted pursuant to Article
5 of Regulation (EEC) No 1017/68 prior to the date of application of
this Regulation until the date of expiration of those decisions;

5. in Article 30, paragraphs 2, 3 and 4 are deleted.

Article 37

Amendment of Regulation (EEC) No 2988/74

In Regulation (EEC) No 2988/74, the following Article is inserted:

‘Article 7a

Exclusion

This Regulation shall not apply to measures taken under Council
Regulation (EC) No 1/2003 of 16 December 2002 on the implemen-
tation of the rules on competition laid down in Articles 81 and 82 of
the Treaty (*)

___________
(*) OJ L 1, 4.1.2003, p. 1.’

Article 38

Amendment of Regulation (EEC) No 4056/86

Regulation (EEC) No 4056/86 is amended as follows:

1. Article 7 is amended as follows:

(a) Paragraph 1 is replaced by the following:

C.145▼B

‘1.

Breach of an obligation

2003R0001 — EN — 18.10.2006 — 002.001 — 27

Where the persons concerned are in breach of an obli-
to Article 5, attaches to the
gation which, pursuant
exemption provided for in Article 3,
the Commission
may, in order to put an end to such breach and under
the conditions laid down in 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 (*) adopt a decision that either prohibits
requires them to perform
them from carrying out or
certain specific acts, or withdraws the benefit of
the
block exemption which they enjoyed.

___________
(*) OJ L 1, 4.1.2003, p. 1.’

(b) Paragraph 2 is amended as follows:

(i) In point (a), the words ‘under the conditions laid down in
Section II’ are replaced by the words ‘under the conditions
laid down in Regulation (EC) No 1/2003’;

(ii) The second sentence of the second subparagraph of point (c)

(i) is replaced by the following:

‘At the same time it shall decide, in accordance with Article
9 of Regulation (EC) No 1/2003, whether
to accept
commitments offered by the undertakings concerned with a
view, inter alia, to obtaining access to the market for non-
conference lines.’

2. Article 8 is amended as follows:

(a) Paragraph 1 is deleted.

(b) In paragraph 2 the words ‘pursuant to Article 10’ are replaced by

the words ‘pursuant to Regulation (EC) No 1/2003’.

(c) Paragraph 3 is deleted;

3. Article 9 is amended as follows:

(a) In paragraph 1, the words ‘Advisory Committee referred to in
Article 15’ are replaced by the words ‘Advisory Committee
referred to in Article 14 of Regulation (EC) No 1/2003’;

(b) In paragraph 2, the words ‘Advisory Committee as referred to in
Article 15’ are replaced by the words ‘Advisory Committee
referred to in Article 14 of Regulation (EC) No 1/2003’;

4. Articles 10 to 25 are repealed with the exception of Article 13(3)
which continues to apply to decisions adopted pursuant to Article 81
(3) of the Treaty prior to the date of application of this Regulation
until the date of expiration of those decisions;

5. in Article 26,

the words ‘the form, content and other details of
complaints pursuant to Article 10, applications pursuant to Article
12 and the hearings provided for in Article 23(1) and (2)’ are
deleted.

Article 39

Amendment of Regulation (EEC) No 3975/87

Articles 3 to 19 of Regulation (EEC) No 3975/87 are repealed with the
exception of Article 6(3) which continues to apply to decisions adopted
pursuant to Article 81(3) of the Treaty prior to the date of application of
this Regulation until the date of expiration of those decisions.

C.1462003R0001 — EN — 18.10.2006 — 002.001 — 28

▼B

Article 40

Amendment of Regulations No 19/65/EEC, (EEC) No 2821/71 and
(EEC) No 1534/91

Article 7 of Regulation No 19/65/EEC, Article 7 of Regulation (EEC)
No 2821/71 and Article 7 of Regulation (EEC) No 1534/91 are
repealed.

Article 41

Amendment of Regulation (EEC) No 3976/87

Regulation (EEC) No 3976/87 is amended as follows:

1. Article 6 is replaced by the following:

‘Article 6

The Commission shall consult the Advisory Committee referred to in
Article 14 of 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 (*) before publishing a draft Regu-
lation and before adopting a Regulation.

___________
(*) OJ L 1, 4.1.2003, p. 1.’

2. Article 7 is repealed.

Article 42

Amendment of Regulation (EEC) No 479/92

Regulation (EEC) No 479/92 is amended as follows:

1. Article 5 is replaced by the following:

‘Article 5

the Commission shall consult

Before publishing the draft Regulation and before adopting the Regu-
lation,
the Advisory Committee
referred to in Article 14 of Council Regulation (EC) No 1/2003 of
16 December 2002 on the implementation of the rules on compe-
tition laid down in Articles 81 and 82 of the Treaty (*)

___________
(*) OJ L 1, 4.1.2003, p. 1.’

2. Article 6 is repealed.

Article 43

Repeal of Regulations No 17 and No 141

1.
Regulation No 17 is repealed with the exception of Article 8(3)
which continues to apply to decisions adopted pursuant to Article 81(3)
of the Treaty prior to the date of application of this Regulation until the
date of expiration of those decisions.

2.

Regulation No 141 is repealed.

References to the repealed Regulations shall be construed as

3.
references to this Regulation.

C.1472003R0001 — EN — 18.10.2006 — 002.001 — 29

▼B

Article 44

Report on the application of the present Regulation

Five years from the date of application of
the
Commission shall report to the European Parliament and the Council
on the functioning of this Regulation, in particular on the application of
Article 11(6) and Article 17.

this Regulation,

On the basis of this report, the Commission shall assess whether it is
appropriate to propose to the Council a revision of this Regulation.

Article 45

Entry into force

This Regulation shall enter into force on the 20th day following that of
its publication in the Official Journal of the European Communities.

It shall apply from 1 May 2004.

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

C.148This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

2004R0773 — EN — 01.07.2008 — 002.001 — 1

►B

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

(Text with EEA relevance)

(OJ L 123, 27.4.2004, p. 18)

Amended by:

►M1
►M2

Commission Regulation (EC) No 1792/2006 of 23 October 2006
Commission Regulation (EC) No 622/2008 of 30 June 2008

L 362
L 171

1
3

20.12.2006
1.7.2008

Official Journal

No

page

date

C.2492004R0773 — EN — 01.07.2008 — 002.001 — 2

▼B

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

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to the Agreement on the European Economic Area,

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

After consulting the Advisory Committee on Restrictive Practices and
Dominant Positions,

Whereas:

(1)

(2)

(3)

(4)

Regulation (EC) No 1/2003 empowers
the Commission to
regulate certain aspects of proceedings for the application of
Articles 81 and 82 of the Treaty. It is necessary to lay down
rules concerning the initiation of proceedings by the Commission
as well as the handling of complaints and the hearing of the
parties concerned.

According to Regulation (EC) No 1/2003, national courts are
under an obligation to avoid taking decisions which could run
counter to decisions envisaged by the Commission in the same
case. According to Article 11(6) of that Regulation, national
competition authorities are relieved from their competence once
the Commission has initiated proceedings for the adoption of a
decision under Chapter III of Regulation (EC) No 1/2003. In this
context, it is important that courts and competition authorities of
the Member States are aware of the initiation of proceedings by
the Commission. The Commission should therefore be able to
make public its decisions to initiate proceedings.

Before taking oral statements from natural or legal persons who
consent to be interviewed, the Commission should inform those
persons of the legal basis of the interview and its voluntary
nature. The persons interviewed should also be informed of the
purpose of the interview and of any record which may be made.
In order to enhance the accuracy of the statements, the persons
interviewed should also be given an opportunity to correct the
recorded. Where information gathered from oral
statements
statements is exchanged pursuant
to Article 12 of Regulation
(EC) No 1/2003,
information should only be used in
evidence to impose sanctions on natural persons where the
conditions set out in that Article are fulfilled.

that

Pursuant to Article 23(1)(d) of Regulation (EC) No 1/2003 fines
may be imposed on undertakings and associations of under-
takings where they fail to rectify within the time limit fixed by
the Commission an incorrect, incomplete or misleading answer
given by a member of their staff to questions in the course of
inspections. It is therefore necessary to provide the undertaking
concerned with a record of any explanations given and to

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No

411/2004 (OJ L 68, 6.3.2004, p. 1).

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2004R0773 — EN — 01.07.2008 — 002.001 — 3

(5)

(6)

(7)

(8)

(9)

(10)

(11)

to add any rectification,
establish a procedure enabling it
amendment or supplement
to the explanations given by the
member of staff who is not or was not authorised to provide
the undertaking. The explanations
explanations on behalf of
given by a member of staff should remain in the Commission
file as recorded during the inspection.

Complaints are an essential source of information for detecting
infringements of competition rules. It is important to define clear
and efficient procedures for handling complaints lodged with the
Commission.

In order to be admissible for the purposes of Article 7 of Regu-
lation (EC) No 1/2003, a complaint must contain certain specified
information.

In order to assist complainants in submitting the necessary facts
to the Commission, a form should be drawn up. The submission
of the information listed in that form should be a condition for a
complaint to be treated as a complaint as referred to in Article 7
of Regulation (EC) No 1/2003.

Natural or legal persons having chosen to lodge a complaint
should be given the possibility to be associated closely with
the proceedings initiated by the Commission with a view to
finding an infringement. However, they should not have access
to business secrets or other confidential information belonging to
other parties involved in the proceedings.

Complainants should be granted the opportunity of expressing
their views if the Commission considers that there are insufficient
grounds for acting on the complaint. Where the Commission
rejects a complaint on the grounds that a competition authority
of a Member State is dealing with it or has already done so, it
should inform the complainant of the identity of that authority.

In order to respect
the
Commission should give the parties concerned the right to be
heard before it takes a decision.

the rights of defence of undertakings,

Provision should also be made for the hearing of persons who
have not submitted a complaint as referred to in Article 7 of
Regulation (EC) No 1/2003 and who are not parties to whom a
statement of objections has been addressed but who can never-
theless show a sufficient
interest. Consumer associations that
apply to be heard should generally be regarded as having a
sufficient
interest, where the proceedings concern products or
services used by the end-consumer or products or services that
constitute a direct input into such products or services. Where it
considers this to be useful for the proceedings, the Commission
should also be able to invite other persons to express their views
in writing and to attend the oral hearing of the parties to whom a
statement of objections has been addressed. Where appropriate, it
should also be able to invite such persons to express their views
at that oral hearing.

(12) To improve the effectiveness of oral hearings, the Hearing Officer
concerned,
should have
complainants, other persons
the
Commission services and the authorities of the Member States
to ask questions during the hearing.

invited to the hearing,

to allow the parties

the power

(13) When granting access to the file, the Commission should ensure
the protection of business secrets and other confidential infor-
information’
‘other
mation. The
includes information other than business secrets, which may be
considered as confidential, insofar as its disclosure would signif-
icantly harm an undertaking or person. The Commission should
be able to request undertakings or associations of undertakings

category of

confidential

C.251▼B

that submit or have submitted documents or statements to identify
confidential information.

2004R0773 — EN — 01.07.2008 — 002.001 — 4

(14) Where business secrets or other confidential

for each individual document whether

necessary to prove an infringement,
assess
disclose is greater
disclosure.

than the harm which might

information are
the Commission should
the need to
from

result

(15)

In the interest of legal certainty, a minimum time-limit for the
various submissions provided for in this Regulation should be
laid down.

(16) This Regulation replaces Commission Regulation (EC) No
2842/98 of 22 December 1998 on the hearing of parties in
certain proceedings under Articles 85 and 86 of
the EC
Treaty (1), which should therefore be repealed.

(17) This Regulation aligns the procedural rules in the transport sector
with the general rules of procedure in all sectors. Commission
Regulation (EC) No 2843/98 of 22 December 1998 on the form,
content and other details of applications and notifications
provided for in Council Regulations (EEC) No 1017/68, (EEC)
No 4056/86 and (EEC) No 3975/87 applying the rules on compe-
tition to the transport sector (2) should therefore be repealed.

(18) Regulation (EC) No 1/2003 abolishes the notification and author-
isation system. Commission Regulation (EC) No 3385/94 of 21
December 1994 on the form, content and other details of appli-
cations and notifications provided for in Council Regulation No
17 (3) should therefore be repealed,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SCOPE

Article 1

Subject-matter and scope

This regulation applies to proceedings conducted by the Commission for
the application of Articles 81 and 82 of the Treaty.

CHAPTER II

INITIATION OF PROCEEDINGS

Article 2

Initiation of proceedings

▼M2

The Commission may decide to initiate proceedings with a view to
1.
adopting a decision pursuant
to Chapter III of Regulation (EC) No
1/2003 at any point in time, but no later than the date on which it
issues a preliminary assessment as referred to in Article 9(1) of that
Regulation, a statement of objections or a request for the parties to
in engaging in settlement discussions, or the
express their interest
date on which a notice pursuant to Article 27(4) of that Regulation is
published, whichever is the earlier.

(1) OJ L 354, 30.12.1998, p. 18.
(2) OJ L 354, 30.12.1998, p. 22.
(3) OJ L 377, 31.12.1994, p. 28.

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2004R0773 — EN — 01.07.2008 — 002.001 — 5

The Commission may make public the initiation of proceedings, in
inform the parties

2.
any appropriate way. Before doing so,
concerned.

it shall

3.
The Commission may exercise its powers of investigation pursuant
to Chapter V of Regulation (EC) No 1/2003 before initiating
proceedings.

The Commission may reject a complaint pursuant to Article 7 of

4.
Regulation (EC) No 1/2003 without initiating proceedings.

CHAPTER III

INVESTIGATIONS BY THE COMMISSION

Article 3

Power to take statements

1. Where the Commission interviews a person with his consent in
accordance with Article 19 of Regulation (EC) No 1/2003, it shall, at
the beginning of the interview, state the legal basis and the purpose of
the interview, and recall its voluntary nature. It shall also inform the
person interviewed of its intention to make a record of the interview.

The interview may be conducted by any means including by

2.
telephone or electronic means.

3.
The Commission may record the statements made by the persons
interviewed in any form. A copy of any recording shall be made
available to the person interviewed for approval. Where necessary, the
Commission shall set a time-limit within which the person interviewed
may communicate to it any correction to be made to the statement.

Article 4

Oral questions during inspections

1. When, pursuant to Article 20(2)(e) of Regulation (EC) No 1/2003,
officials or other accompanying persons authorised by the Commission
ask representatives or members of staff of an undertaking or of an
association of undertakings for explanations,
the explanations given
may be recorded in any form.

2.
A copy of any recording made pursuant to paragraph 1 shall be
made available to the undertaking or association of undertakings
concerned after the inspection.

3.
In cases where a member of staff of an undertaking or of an
association of undertakings who is not or was not authorised by the
undertaking or by the association of undertakings to provide expla-
nations on behalf of the undertaking or association of undertakings
has been asked for explanations,
the Commission shall set a time-
limit within which the undertaking or the association of undertakings
may communicate to the Commission any rectification, amendment or
supplement to the explanations given by such member of staff. The
rectification, amendment or supplement shall be added to the expla-
nations as recorded pursuant to paragraph 1.

CHAPTER IV

HANDLING OF COMPLAINTS

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▼M2

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2004R0773 — EN — 01.07.2008 — 002.001 — 6

Article 5

Admissibility of complaints

1.
Natural and legal persons shall show a legitimate interest in order
to be entitled to lodge a complaint for the purposes of Article 7 of
Regulation (EC) No 1/2003.

Such complaints shall contain the information required by Form C, as
set out in the Annex. The Commission may dispense with this obli-
gation as regards part of the information, including documents, required
by Form C.

2.
Three paper copies as well as, if possible, an electronic copy of
the complaint shall be submitted to the Commission. The complainant
shall also submit a non-confidential version of the complaint, if confi-
dentiality is claimed for any part of the complaint.

Complaints shall be submitted in one of the official languages of

3.
the Community.

Article 6

Participation of complainants in proceedings

1. 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
settlement
statement of objections,
procedure applies, where it shall inform the complainant in writing of
the nature and subject matter of the procedure. The Commission shall
also set a time limit within which the complainant may make known its
views in writing.

in cases where

except

the

2.
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.

Article 7

Rejection of complaints

1. Where the Commission considers that on the basis of the infor-
mation in its possession there are insufficient grounds for acting on a
complaint, it shall inform the complainant of its reasons and set a time-
limit within which the complainant may make known its views in
writing. The Commission shall not be obliged to take into account
any further written submission received after the expiry of that time-
limit.

2.
If the complainant makes known its views within the time-limit set
by the Commission and the written submissions made by the
complainant do not lead to a different assessment of the complaint,
the Commission shall reject the complaint by decision.

3.
If the complainant fails to make known its views within the time-
limit set by the Commission, the complaint shall be deemed to have
been withdrawn.

C.2542004R0773 — EN — 01.07.2008 — 002.001 — 7

▼B

Article 8

Access to information

1. Where the Commission has informed the complainant of
its
intention to reject a complaint pursuant to Article 7(1) the complainant
may request access to the documents on which the Commission bases
its provisional assessment. For
the complainant may
however not have access to business secrets and other confidential
information belonging to other parties involved in the proceedings.

this purpose,

2.
The documents to which the complainant has had access in the
context of proceedings conducted by the Commission under Articles 81
and 82 of the Treaty may only be used by the complainant for the
purposes of judicial or administrative proceedings for the application
of those Treaty provisions.

Article 9

Rejections of complaints pursuant to Article 13 of Regulation (EC)
No 1/2003

Where the Commission rejects a complaint pursuant to Article 13 of
Regulation (EC) No 1/2003, it shall inform the complainant without
delay of the national competition authority which is dealing or has
already dealt with the case.

CHAPTER V

EXERCISE OF THE RIGHT TO BE HEARD

Article 10

Statement of objections and reply

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The Commission shall

inform the parties concerned of
the
1.
objections raised against
them. The statement of objections shall be
notified in writing to each of the parties against whom objections are
raised.

2.
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 shall not be obliged
to take into account written submissions received after the expiry of that
time-limit.

3.
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,
►M1 30 ◄ paper copies of their submission and of the documents
attached to it. They may propose that the Commission hear persons who
may corroborate the facts set out in their submission.

Article 10a

Settlement procedure in cartel cases

1.
After the initiation of proceedings pursuant to Article 11(6) of
Regulation (EC) No 1/2003,
the Commission may set a time limit
they are
within which the parties may indicate in writing that
prepared to engage in settlement discussions with a view to possibly

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2004R0773 — EN — 01.07.2008 — 002.001 — 8

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

they shall appoint a joint

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

Parties taking part in settlement discussions may be informed by

2.
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 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
settlement
submissions, the parties concerned shall be entitled to have the infor-
mation 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.

to introduce their

their settlement submissions,

3. When the statement of objections notified to the parties reflects the
contents of
the written reply to the
statement of objections by the parties concerned shall, within a time
limit set by the Commission, confirm that the statement of objections
addressed to them reflects the contents of their settlement submissions.
The Commission may then proceed to the adoption of a Decision
pursuant to Article 7 and Article 23 of Regulation (EC) No 1/2003
after consultation of the Advisory Committee on Restrictive Practices
and Dominant Positions pursuant to Article 14 of Regulation (EC) No
1/2003.

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

to one or more of the parties involved,

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Article 11

Right to be heard

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

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2004R0773 — EN — 01.07.2008 — 002.001 — 9

2.
The Commission shall, in its decisions, deal only with objections
in respect of which the parties referred to in paragraph 1 have been able
to comment.

Article 12

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

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

the contents of

reflect

Article 13

Hearing of other persons

1.
If natural or legal persons other than those referred to in Articles 5
and 11 apply to be heard and show a sufficient interest, the Commission
shall inform them in writing of the nature and subject matter of the
procedure and shall set a time-limit within which they may make known
their views in writing.

2.
The Commission may, where appropriate, invite persons referred
to in paragraph 1 to develop their arguments at the oral hearing of the
parties to whom a statement of objections has been addressed, if the
persons referred to in paragraph 1 so request in their written comments.

3.
The Commission may invite any other person to express its views
in writing and to attend the oral hearing of the parties to whom a
statement of objections has been addressed. The Commission may
also invite such persons to express their views at that oral hearing.

Article 14

Conduct of oral hearings

Hearings shall be conducted by a Hearing Officer in full inde-

1.
pendence.

The Commission shall invite the persons to be heard to attend the

2.
oral hearing on such date as it shall determine.

3.
The Commission shall invite 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.

4.
Persons invited to attend shall either appear in person or be repre-
sented by legal representatives or by representatives authorised by their
constitution as appropriate. Undertakings and associations of under-
takings may also be represented by a duly authorised agent appointed
from among their permanent staff.

Persons heard by the Commission may be assisted by their

5.
lawyers or other qualified persons admitted by the Hearing Officer.

Oral hearings shall not be public. Each person may be heard
6.
separately or
in the presence of other persons invited to attend,
having regard to the legitimate interest of the undertakings in the
protection of their business secrets and other confidential information.

The Hearing Officer may allow the parties to whom a statement of
7.
objections has been addressed, the complainants, other persons invited

C.2572004R0773 — EN — 01.07.2008 — 002.001 — 10

to the hearing,
Member States to ask questions during the hearing.

the Commission services and the authorities of the

The statements made by each person heard shall be recorded.
8.
Upon request, the recording of the hearing shall be made available to
the persons who attended the hearing. Regard shall be had to the
legitimate interest of the parties in the protection of their business
secrets and other confidential information.

CHAPTER VI

ACCESS TO THE FILE AND TREATMENT OF CONFIDENTIAL
INFORMATION

Article 15

Access to the file and use of documents

1.
If so requested, the Commission shall grant access to the file to the
parties to whom it has addressed a statement of objections. Access shall
be granted after the notification of the statement of objections.

to

them the

1a.
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
in
disclose
Article 10a(2) upon request and subject to the conditions established
in the relevant subparagraphs. In view thereof, when introducing their
settlement submissions, the parties shall confirm to the Commission that
they will only require access to the file after the receipt of the statement
of objections, if the statement of objections does not reflect the contents
of their settlement submissions.

documents

described

evidence

and

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information

confidential

The right of access to the file shall not extend to business secrets,
2.
other
the
Commission or of the competition authorities of the Member States.
The right of access to the file shall also not extend to correspondence
between the Commission and the competition authorities of the Member
States or between the latter where such correspondence is contained in
the file of the Commission.

documents

internal

and

of

Nothing in this Regulation prevents

3.
the Commission from
disclosing and using information necessary to prove an infringement
of Articles 81 or 82 of the Treaty.

4.
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 81 and 82 of the Treaty.

Article 16

Identification and protection of confidential information

1.
Information, including documents, shall not be communicated or
made accessible by the Commission in so far as it contains business
secrets or other confidential information of any person.

to
Any person which makes known its views pursuant
2.
Article 6(1), Article 7(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, shall 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.

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2004R0773 — EN — 01.07.2008 — 002.001 — 11

3. Without prejudice to paragraph 2 of this Article, the Commission
may require undertakings and associations of undertakings which
produce documents or statements pursuant
to Regulation (EC) No
1/2003 to identify the documents or parts of documents which they
consider to contain business secrets or other confidential information
belonging to them and to identify the undertakings with regard to
which such documents
considered confidential. The
to be
Commission may likewise require undertakings or associations of
undertakings to identify any part of a statement of objections, a case
summary drawn up pursuant to Article 27(4) of Regulation (EC) No
1/2003 or a decision adopted by the Commission which in their view
contains business secrets.

are

The Commission may set a time-limit within which the undertakings
and associations of undertakings are to:

(a) substantiate their claim for confidentiality with regard to each indi-
statement or part of

vidual document or part of document,
statement;

(b) provide the Commission with a non-confidential version of the
in which the confidential passages are

documents or statements,
deleted;

(c) provide a concise description of each piece of deleted information.

If undertakings or associations of undertakings fail to comply with
4.
paragraphs 2 and 3, the Commission may assume that the documents or
statements concerned do not contain confidential information.

CHAPTER VII

GENERAL AND FINAL PROVISIONS

Article 17

Time-limits

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

2.
The time-limits referred to in Article 6(1), Article 7(1) and
Article 10(2) shall be at least four weeks. However, for proceedings
initiated with a view to adopting interim measures pursuant to Article 8
of Regulation (EC) No 1/2003, the time-limit may be shortened to one
week.

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

4. Where appropriate and upon reasoned request made before the
expiry of the original time-limit, time-limits may be extended.

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Article 18

Repeals

Regulations (EC) No 2842/98, (EC) No 2843/98 and (EC) No 3385/94
are repealed.

References to the repealed regulations shall be construed as references
to this regulation.

Article 19

Transitional provisions

Procedural steps taken under Regulations (EC) No 2842/98 and (EC)
No 2843/98 shall continue to have effect for the purpose of applying
this Regulation.

Article 20

Entry into force

This Regulation shall enter into force on 1 May 2004.

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

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2004R0773 — EN — 01.07.2008 — 002.001 — 13

ANNEX

FORM C

COMPLAINT PURSUANT TO ARTICLE 7 OF REGULATION (EC) No 1/2003

I. Information regarding the complainant and the undertaking(s) or association of undertakings
giving rise to the complaint

1. Give full details on the identity of the legal or natural person submitting the complaint. Where the
complainant is an undertaking, identify the corporate group to which it belongs and provide a concise
overview of the nature and scope of its business activities. Provide a contact person (with telephone
number, postal and e-mail-address) from which supplementary explanations can be obtained.

2.

Identify the undertaking(s) or association of undertakings whose conduct the complaint relates to,
including, where applicable, all available information on the corporate group to which the under-
taking(s) complained of belong and the nature and scope of the business activities pursued by them.
Indicate the position of the complainant vis-à-vis the undertaking(s) or association of undertakings
complained of (e.g. customer, competitor).

II. Details of the alleged infringement and evidence

3. Set out in detail the facts from which, in your opinion, it appears that there exists an infringement of
Article 81 or 82 of the Treaty and/or Article 53 or 54 of the EEA agreement. Indicate in particular the
nature of the products (goods or services) affected by the alleged infringements and explain, where
necessary, the commercial relationships concerning these products. Provide all available details on the
agreements or practices of the undertakings or associations of undertakings to which this complaint
relates. Indicate, to the extent possible, the relative market positions of the undertakings concerned by
the complaint.

texts of agreements, minutes of negotiations or meetings,

4. Submit all documentation in your possession relating to or directly connected with the facts set out in
the complaint (for example,
terms of
transactions, business documents, circulars, correspondence, notes of telephone conversations…).
State the names and address of the persons able to testify to the facts set out in the complaint, and
in particular of persons affected by the alleged infringement. Submit statistics or other data in your
possession which relate to the facts set out, in particular where they show developments in the
marketplace (for example information relating to prices and price trends, barriers to entry to the
market for new suppliers etc.).

5.

Set out your view about the geographical scope of the alleged infringement and explain, where that is
not obvious, to what extent trade between Member States or between the Community and one or more
EFTA States that are contracting parties of the EEA Agreement may be affected by the conduct
complained of.

III. Finding sought from the Commission and legitimate interest

6. Explain what finding or action you are seeking as a result of proceedings brought by the Commission.

7.

8.

Set out the grounds on which you claim a legitimate interest as complainant pursuant to Article 7 of
Regulation (EC) No 1/2003. State in particular how the conduct complained of affects you and explain
how, in your view, intervention by the Commission would be liable to remedy the alleged grievance.

IV. Proceedings before national competition authorities or national courts

Provide full information about whether you have approached, concerning the same or closely related
subject-matters, any other competition authority and/or whether a lawsuit has been brought before a
national court. If so, provide full details about the administrative or judicial authority contacted and
your submissions to such authority.

Declaration that the information given in this form and in the Annexes thereto is given entirely in good
faith.

Date and signature.

C.26120.10.2011 

EN 

Official Journal of the European Union 

L  275/29 

DECISIONS 

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 

(Text  with  EEA  relevance) 

(2011/695/EU) 

THE  PRESIDENT  OF  THE  EUROPEAN  COMMISSION, 

Having  regard  to  the  Treaty  on  European  Union, 

Having  regard to  the  Treaty  on  the  Functioning  of  the  European 
Union, 

Having  regard  to  the  Agreement  on  the  European  Economic 
Area, 

Having  regard  to  the  Rules  of  Procedure  of  the  Commission ( 1 ), 
and  in  particular  Article  22  thereof, 

Whereas: 

(1) 

(2) 

Under  the  system  for  competition 
law  enforcement 
established  under  the  Treaty  on  the  Functioning  of  the 
European  Union 
the 
(hereinafter 
Commission  investigates  and  decides  on  cases  by  admin­
istrative  decision,  subject  to  judicial  review  by  the  Court 
of  Justice  of  the  European  Union  (hereinafter  ‘the  Court 
of  Justice’). 

Treaty’), 

‘the 

to  conduct 

The  Commission  has 
its  competition 
proceedings  fairly,  impartially  and  objectively  and  must 
ensure  respect  of  the  procedural  rights  of  the  parties 
concerned  as  set  out  in  Council  Regulation  (EC)  No 
1/2003  of  16  December  2002  on  the  implementation 
of  the  rules  on  competition  laid  down  in  Articles  81  and 
the  Treaty ( 2 ),  Council  Regulation 
(EC)  No 
82  of 
139/2004  of  20  January  2004  on  the  control  of  concen­
trations  between  undertakings  (the  EC  Merger  Regu­
lation) ( 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 ( 4 ),  and  Commission  Regulation  (EC)  No 
802/2004  of  7  April  2004  implementing  Council  Regu­
lation  (EC)  No  139/2004  on  the  control  of  concen­
trations  between  undertakings ( 5 ),  as  well  as 
in  the 

( 1 )  OJ  L  308,  8.12.2000,  p.  26. 
( 2 )  OJ  L  1,  4.1.2003,  p.  1. 
( 3 )  OJ  L  24,  29.1.2004,  p.  1. 
( 4 )  OJ  L  123,  27.4.2004,  p.  18. 
( 5 )  OJ  L  133,  30.4.2004,  p.  1. 

relevant  case-law  of  the  Court  of  Justice. In  particular, the 
right  of  the  parties  concerned  to  be  heard  before  the 
adoption  of  any  individual  decision  adversely  affecting 
them  is  a  fundamental  right  of  European  Union  law 
recognised  by  the  Charter  of  Fundamental  Rights,  and 
in  particular  Article  41  thereof ( 6 ). 

‘other 

(hereinafter 

In  order  to  ensure  the  effective  exercise  of  the  procedural 
rights  of  the  parties  concerned,  other  involved  parties 
within  the  meaning  of  Article  11(b)  of  Regulation  (EC) 
No  802/2004 
involved  parties’), 
complainants within the  meaning  of  Article 7(2)  of  Regu­
lation  (EC)  No  1/2003  (hereinafter  ‘complainants’)  and 
persons  other  than  those  referred  to  in  Articles  5  and 
11  of  Regulation  (EC)  No  773/2004  and  third  persons 
within  the  meaning  of  Article  11  of  Regulation  (EC)  No 
in 
802/2004 
competition  proceedings,  responsibility  for  safeguarding 
the  observance  of  such  rights  should  be  entrusted  to  an 
independent  person  experienced  in  competition  matters 
who  has  the  integrity  necessary  to  contribute  to  the 
those 
objectivity, 
proceedings. 

‘third  persons’) 

efficiency  of 

transparency 

(hereinafter 

involved 

and 

before 

the  Commission ( 7 ) 

The  Commission  created  the  function  of  hearing  officer 
for  these  purposes  in  1982,  revised  it  in  Commission 
Decision  94/810/ECSC,  EC  of  12  December  1994  on 
the  terms  of  reference  of  hearing  officers  in  competition 
in 
procedures 
Commission  Decision  2001/462/EC,  ECSC  of  23  May 
2001  on  the  terms  of  reference  of  hearing  officers  in 
certain  competition  proceedings ( 8 ).  It  is  now  necessary 
to  clarify  and  further  strengthen  the  role  of  the  hearing 
officer  and  to  adapt  the  terms  of  reference  of  the  hearing 
officer in  the  light of  developments in  Union  competition 
law. 

and 

as 

an 

The  function  of  the  hearing  officer  has  been  generally 
perceived 
the 
competition  proceedings  before  the  Commission  due  to 
the  independence  and  expertise  that  hearing  officers  have 
brought  to  these  proceedings.  In  order  to  ensure  the

contribution 

important 

to 

(3) 

(4) 

(5) 

( 6 )  OJ  C  303,  14.12.2007,  p.  1. 
( 7 )  OJ  L  330,  21.12.1994,  p.  67. 
( 8 )  OJ  L  162,  19.6.2001,  p.  21.

C.362L  275/30 

EN 

Official Journal of the European Union 

20.10.2011

(6) 

(7) 

(8) 

(9) 

(10) 

continued  independence  of  the  hearing  officer  from  the 
Directorate-General  for  Competition,  he  or  she  should  be 
attached,  for  administrative  purposes,  to  the  member  of 
the  Commission  with 
for 
competition. 

responsibility 

special 

The  hearing  officer  should  be  appointed  in  accordance 
with  the  rules  laid  down  in  the  Staff  Regulations  of 
Officials  and  the  Conditions  of  Employment  of  Other 
Servants  of  the  European  Union.  In  accordance  with 
those 
to 
candidates  who  are  not  officials  of  the  Commission. 
Transparency  as  regards  the  appointment,  termination 
of  appointment  and  transfer  of  hearing  officers  should 
be  ensured. 

rules,  consideration  may  also  be  given 

The  Commission  may  appoint  one  or  more  hearing 
officers  and  should  provide  for  their  supporting  staff. 
Where 
the  hearing  officer  perceives  a  conflict  of 
interests  in  the  performance  of  his  or  her  functions, 
the  hearing  officer  should  cease  from  acting  on  a  case. 
If  the  hearing  officer  is  unable  to  act,  his  or  her  role 
should  be  carried  out  by  another  hearing  officer. 

to 

resolve 

issues  affecting 

The  hearing  officer  should  operate  as  an  independent 
arbiter  who  seeks 
the 
effective  exercise  of  the  procedural  rights  of  the  parties 
involved  parties,  complainants  or 
concerned,  other 
interested  third  persons  where  such  issues  could  not  be 
resolved  through  prior  contacts  with  the  Commission 
services  responsible  for  the  conduct  of  competition 
proceedings,  which  must  respect  these  procedural  rights. 

the  hearing  officer 

terms  of  reference  of 

The 
in 
competition  proceedings  should  be  framed  in  such  a 
way  as  to  safeguard  the  effective  exercise  of  procedural 
rights  throughout  proceedings  before  the  Commission 
pursuant  to  Articles  101  and  102  of  the  Treaty  and 
Regulation  (EC)  No  139/2004,  in  particular  the  right  to 
be  heard. 

In  order  to  strengthen  this  role,  the  hearing  officer 
should  be  attributed  with  the  function  of  safeguarding 
the  effective  exercise  of  procedural  rights  of  undertakings 
and  associations  of  undertakings  in  the  context  of  the 
Commission’s  powers  of  investigation  under  Chapter  V 
of  Regulation  (EC)  No  1/2003,  as  well  as  pursuant  to 
Article  14  of  Regulation  (EC)  No  139/2004  which 
empowers  the  Commission  to  impose  fines  on  under­
takings  and  associations  of  undertakings.  The  hearing 
officer  should  also  be  attributed  with  specific  functions 
during  this  investigative  phase  in  relation  to  claims  for 
legal  professional  privilege,  the  privilege  against  self- 
incrimination,  deadlines 
to  decisions 
for 
requesting 
information  pursuant  to  Article  18(3)  of 
Regulation  (EC)  No  1/2003,  as  well  as  with  regard  to 
the  right  of  undertakings  and  associations  of  under­
investigative  measure  by  the 
takings  subject  to  an 

replying 

Commission  under  Chapter  V  of  Regulation  (EC)  No 
1/2003  to  be 
informed  of  their  procedural  status, 
namely  whether  they  are  subject  to  an  investigation 
and,  if  so,  the  subject  matter  and  purpose  of  that  inves­
tigation.  In  assessing  claims  made  in  relation  to  privilege 
against 
the  hearing  officer  may 
consider  whether  undertakings  make  clearly  unfounded 
claims  for  protection  merely  as  a  delaying  tactic. 

self-incrimination, 

(11)  The  hearing  officer  should  be  able  to  facilitate  the 
resolution  of  claims  that  a  document  is  covered  by 
legal  professional  privilege.  To  this  end,  if  the  under­
taking  or  association  of  undertakings  making  the  claim 
agrees,  the  hearing  officer  will  be  allowed  to  examine  the 
document  concerned  and  make  an  appropriate  recom­
mendation,  referring  to  the  applicable  case-law  of  the 
Court  of  Justice. 

(12)  The  hearing  officer  should  be  responsible  for  deciding 
whether  a  third  person  shows  a  sufficient  interest  to  be 
heard.  Consumer  associations  that  apply  to  be  heard 
should  be  generally  regarded  as  having  a  sufficient 
interest,  where  the  proceedings  concern  products  or 
services  used  by  end-consumers  or  products  or  services 
that  constitute  a  direct  input  into  such  products  or 
services. 

(13)  The  hearing  officer  should  decide  whether  to  admit 
complainants  and  interested  third  persons  to  the  oral 
hearing,  taking  into  account  the  contribution  they  can 
make  to  the  clarification  of  the  relevant  facts  of  the  case. 

(14)  The  right  of  the  parties  concerned  to  be  heard  before  a 
final  decision  adversely  affecting  their  interests  is  taken  is 
guaranteed  through  their  right  to  reply  in  writing  to  the 
preliminary position  of  the  Commission,  as  set  out  in  the 
statement  of  objections  and  their  right  to  develop  their 
arguments,  if  they  so  request,  at  the  oral  hearing.  In 
order  to  exercise  these  rights  effectively,  parties  to 
whom  a  statement  of  objections  has  been  addressed 
have  the  right  of  access  to  the  Commission’s  investi­
gation  file. 

(15) 

In  order  to  safeguard  the  effective  exercise  of  the  rights 
of  defence  of  parties  to  whom  a  statement  of  objections 
has  been  addressed,  the  hearing  officer  should  be 
responsible  for  ensuring  that  disputes  about  access  to 
the  file  or  about  the  protection  of  business  secrets  and 
other  confidential  information  between  those  parties  and 
the  Commission’s  Directorate-General  for  Competition 
are  resolved.  In  exceptional  circumstances,  the  hearing 
officer  may  suspend  the  running  of  the  time  period  in 
which  an  addressee  of  a  statement  of  objections  should 
reply  to  that  statement  until  a  dispute about  access  to  file 
has  been  resolved,  if  the  addressee  would  not  be  in  a 
position  to  reply  within  the  deadline  granted  and  an 
extension  would  not  be  an  adequate  solution  at  that 
point  in  time.

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(16) 

In  order  to  safeguard  the  effective  exercise  of  procedural 
rights  while  respecting  the  legitimate  interests  of  confi­
dentiality,  the  hearing  officer  should,  where  appropriate, 
be  able  to  order  specific  measures  for  access  to  the 
In  particular,  the  hearing  officer 
Commission’s 
should  have  the  power  to  decide  that  parts  of  the  file 
are  made  accessible  to  the  party  requesting  access  in  a 
restricted manner,  for  example  by  limiting  the  number  or 
category  of  persons  having  access,  and  the  use  of  the 
information  being  accessed. 

file. 

(17)  The  hearing  officer  should  be  responsible  for  deciding  on 
requests  for  the  extension  of  time  limits  set  for  the  reply 
to  a  statement  of  objections,  a  supplementary  statement 
of  objections  or  a  letter  of  facts  or  time  limits  within 
which  other  involved  parties,  complainants  or  interested 
in  case  of 
third  persons  may  make  comments, 
disagreement  between  any  such  person  and  the  Direc­
torate-General  for  Competition. 

(18)  The  hearing  officer  should  promote  the  effectiveness  of 
the  oral  hearing,  by,  inter  alia,  taking  all  appropriate 
preparatory  measures,  including  the  circulation,  in  due 
time  before 
list  of 
participants  and  a  provisional  agenda. 

the  hearing,  of  a  provisional 

(19)  The  oral  hearing  allows  the  parties  to  whom  the 
Commission  has  addressed  a  statement  of  objections 
and  other  involved  parties  to  further  exercise  their  right 
to  be  heard  by  developing  their  arguments  orally  before 
the  Commission,  which  should  be  represented  by  the 
Directorate-General  for  Competition  as  well  as  other 
services  that  contribute  to  the  further  preparation  of  a 
decision  to  be  taken  by  the  Commission.  It  should 
provide  an  additional  opportunity  to  ensure  that  all 
relevant  facts  –  whether  favourable  or  unfavourable  to 
the  parties  concerned,  including  the  factual  elements 
relating  to  the  gravity  and  duration  of  the  alleged 
infringement  –  are  clarified  as  much  as  possible.  The 
oral  hearing  should  also  allow  the  parties  to  present 
their  arguments  as  to  the  matters  that  may  be  of 
importance  for  the  possible  imposition  of  fines. 

(20)  To  ensure  the  effectiveness  of  oral  hearings,  the  hearing 
officer  may  allow  the  parties  to  whom  a  statement  of 
objections  has  been  addressed,  other  involved  parties, 
complainants,  other  persons  invited  to  the  hearing,  the 
Commission  services  and  the  authorities  of  the  Member 
States  to  ask  questions  during  the  hearing.  The  oral 
hearing  should  not  be  public  so  as  to  guarantee  that 
all  participants  can  express  themselves  freely.  Therefore, 
information  disclosed  during  the  oral  hearing  should  not 
be  used  for  a  purpose  other  than  judicial  and/or  adminis­
trative  proceedings  for  the  application  of  Articles  101 
and  102  of  the  Treaty.  Where 
justified  to  protect 
business  secrets  and  other  confidential  information,  the 
hearing  officer  should  be  able  to  hear  persons  in  a  closed 
session. 

(21) 

Parties  to  the  proceedings  which  offer  commitments 
pursuant  to  Article  9  of  Regulation  (EC)  No  1/2003,  as 
well  as  parties  which  engage  in  settlement  procedures  in 
cartel  cases  pursuant  to  Article  10a  of  Regulation  (EC) 
No  773/2004,  should  be  able  to  call  upon  the  hearing 
officer 
in  relation  to  the  effective  exercise  of  their 
procedural  rights. 

(22)  The  hearing  officer  should  report  on  the  respect  for  the 
effective  exercise  of  procedural 
throughout 
competition  proceedings.  Moreover,  and  separately  from 
his  or  her  reporting  function,  the  hearing  officer  should 
also  be  able  to  make  observations on  the  further progress 
and  objectivity  of  the  proceedings  and  thereby  contribute 
to  ensuring  that  competition  proceedings  are  concluded 
on  the  basis  of  a  sound  assessment  of  all  relevant  facts. 

rights 

(23)  When  disclosing  information  about  natural  persons,  the 
hearing  officer  should  have  regard,  in  particular, to  Regu­
lation  (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 ( 1 ). 

(24)  Decision  2001/462/EC,  ECSC  should  be  repealed, 

HAS  DECIDED  AS  FOLLOWS: 

CHAPTER  1 

ROLE,  APPOINTMENT  AND  DUTIES  OF  THE  HEARING 
OFFICER 

Article  1 

The  Hearing  Officer 

1. 
for 
There  shall  be  one  or  more  hearing  officers 
competition  proceedings,  whose  powers  and  functions  are  laid 
down  in  the  present  decision. 

2. 
The  hearing  officer  shall  safeguard  the  effective  exercise  of 
procedural  rights  throughout  competition  proceedings  before 
the  Commission  for  the  implementation  of  Articles  101  and 
102  of  the  Treaty,  and  under  Regulation  (EC)  No  139/2004 
(hereinafter  ‘competition  proceedings’). 

Article  2 

Appointment, Termination  of  Appointment and  Deputising 

1. 
The  Commission  shall  appoint  the  hearing  officer.  The 
appointment  shall  be  published  in  the  Official  Journal  of  the 
European  Union.  Any  interruption,  termination  or  transfer  of 
the  hearing  officer  shall  be  the  subject  of  a  reasoned  decision 
of  the  Commission.  That  decision  shall  be  published  in  the 
Official  Journal  of  the  European  Union.

( 1 )  OJ  L  8,  12.1.2001,  p.  1.

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The  hearing  officer  shall  be  attached,  for  administrative 
2. 
purposes,  to  the  member  of  the  Commission  with  special 
responsibility 
‘the  competent 
member  of  the  Commission’). 

for  competition 

(hereinafter 

is  able 

3.  Where  the  hearing  officer  is  unable  to  act,  his  or  her  role 
shall  be  carried  out  by  another  hearing  officer.  If  no  hearing 
officer 
the 
the  competent  member  of 
the 
Commission,  where  appropriate  after  consultation  of 
hearing  officer,  shall  designate  another  competent  Commission 
official, who  is  not  involved  in  the  case in  question, to  carry out 
the  hearing  officer’s  duties. 

to  act, 

4. 
In  case  of  an  actual  or  potential  conflict  of  interests,  the 
hearing  officer  shall  refrain  from  acting  on  a  case.  Paragraph  3 
shall  apply. 

resolved,  it  may  be  referred  to  the  hearing  officer  for  inde­
pendent  review.  Requests  related  to  a  measure  for  which  a 
time  limit  applies  must  be  made  in  due  time,  within  the 
original  time  limit. 

CHAPTER  2 

INVESTIGATION 

Article  4 

Procedural  rights  in  the  investigation  phase 

1. 
The  hearing  officer  shall  safeguard  the  effective  exercise  of 
procedural  rights  which  arise  in  the  context  of  the  exercise  of 
the  Commission’s  powers  of  investigation  under  Chapter  V  of 
Regulation  (EC)  No  1/2003  and  in  proceedings  that  can  result 
in  the  imposition  of  fines  pursuant  to  Article  14  of  Regulation 
(EC)  No  139/2004. 

Article  3 

Method  of  Operation 

In  particular,  the  hearing  officer  shall  have  the  following 

2. 
functions,  subject  to  Article  3(7): 

In  exercising  his  or  her  functions,  the  hearing  officer  shall 

1. 
act  independently. 

In  exercising  his  or  her  functions,  the  hearing  officer  shall 
2. 
take  account  of  the  need  for  effective  application  of  the 
competition  rules 
legislation  in 
force  and  the  principles  laid  down  by  the  Court  of  Justice. 

in  accordance  with  Union 

In  exercising  his  or  her  functions,  the  hearing  officer  shall 

3. 
have  access  to  any  files  relating  to  competition  proceedings. 

4. 
The  hearing  officer  shall  be  kept  informed  by  the  director 
responsible  for  investigating  the  case  in  the  Directorate-General 
for  Competition  (hereinafter  ‘the  director  responsible’)  about  the 
development  of  the  procedure. 

5. 
The  hearing  officer  may  present  observations  on  any 
matter  arising  out  of  any  Commission  competition  proceeding 
to  the  competent  member  of  the  Commission. 

6. 
If  the  hearing  officer  makes  reasoned  recommendations  to 
the  competent  member  of  the  Commission  or  takes  decisions as 
foreseen in  this decision, the hearing officer shall provide a copy 
of  these  documents  to  the  director  responsible  and  the  Legal 
Service  of  the  Commission. 

7.  Any  issue regarding the  effective exercise of  the  procedural 
rights  of  the  parties concerned, other  involved  parties  within  the 
meaning  of  Article  11(b)  of  Regulation  (EC)  No  802/2004 
(hereinafter  ‘the  other  involved  parties’),  complainants  within 
the  meaning  of  Article  7(2)  of  Regulation  (EC)  No  1/2003 
(hereinafter  ‘complainants’)  and  interested  third  persons  within 
the  meaning  of  Article  5  of  this  Decision  involved  in  such 
proceedings  shall  first  be  raised  by  those  persons  with  the 
is  not 
Directorate-General 

for  Competition. 

issue 

the 

If 

is  covered  by 

(a)  The  hearing  officer  may  be  asked  by  undertakings  or 
associations  of  undertakings  to  examine  claims  that  a 
document  required  by  the  Commission  in  the  exercise  of 
powers  conferred  on  it  pursuant  to  Article  18,  20  or  21  of 
Regulation  (EC)  No  1/2003,  in  inspections  pursuant  to 
Article  13  of  Regulation  (EC)  No  139/2004  or  in  the 
context  of  investigatory  measures  in  proceedings  that  can 
result  in  the  imposition  of  fines  pursuant  to  Article  14  of 
Regulation  (EC)  No  139/2004  and  which  was  withheld 
from  the  Commission 
legal  professional 
privilege,  within  the  meaning  of  the  case-law  of  the  Court 
of  Justice.  The  hearing  officer  may  only  review  the  matter  if 
the  undertaking  or  association  of  undertakings  making  the 
claim  consent  to  the  hearing  officer  viewing  the  information 
claimed  to  be  covered  by  legal  professional  privilege  as  well 
as  related  documents  that  the  hearing  officer  considers 
necessary  for  his  or  her  review.  Without  revealing  the 
the 
potentially  privileged  content  of 
hearing  officer 
the  director 
responsible  and  the  undertaking  or  association  of  under­
takings  concerned  his  or  her  preliminary  view,  and  may 
take  appropriate  steps  to  promote  a  mutually  acceptable 
resolution.  Where  no  resolution  is  reached,  the  hearing 
officer  may  formulate  a  reasoned  recommendation  to  the 
competent  member  of  the  Commission,  without  revealing 
the  potentially  privileged  content  of  the  document.  The 
party  making  the  claim  shall  receive  a  copy  of  this  recom­
mendation. 

information, 
to 

communicate 

shall 

the 

(b)  Where  the  addressee  of  a  request  for  information  pursuant 
to  Article  18(2)  of  Regulation  (EC)  No  1/2003  refuses  to 
reply  to  a  question  in  such  a  request  invoking  the  privilege 
against  self-incrimination,  as  determined  by  the  case-law  of 
the  Court  of  Justice,  it  may  refer  the  matter,  in  due  time 
following  the  receipt  of  the  request,  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  as  to  whether  the  privilege 
against  self-incrimination  applies  and  inform  the  director

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in  case  of  any  decision 

responsible  of  the  conclusions  drawn,  to  be  taken  into 
account 
taken  subsequently 
pursuant  to  Article  18(3)  of  Regulation  (EC)  No  1/2003. 
The  addressee  of  the  request  shall  receive  a  copy  of  the 
reasoned  recommendation. 

(c)  Where  the  addressee  of  a  decision  requesting  information 
pursuant  to  Article  18(3)  of  Regulation  (EC)  No  1/2003 
considers  that  the  time  limit  imposed  for  its  reply  is  too 
short,  it  may  refer  the  matter  to  the  hearing  officer,  in  due 
time  before  the  expiry  of  the  original  time  limit  set.  The 
hearing  officer  shall  decide  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. 

(d)  Undertakings  or  associations  of  undertakings  subject  to  an 
investigative  measure  by  the  Commission  under  Chapter  V 
of  Regulation  (EC)  No  1/2003  shall  have  the  right  to  be 
informed  of  their  procedural  status,  namely  whether  they 
are  subject  to  an  investigation  and,  if  so,  the  subject  matter 
and  purpose  of  that  investigation.  If  such  an  undertaking  or 
association  of  undertakings  considers  that  it  has  not  been 
for 
properly 
Competition  of 
its  procedural  status,  it  may  refer  the 
matter  to  the  hearing  officer  for  resolution.  The  hearing 
officer  shall  take  a  decision  that  the  Directorate-General 
for  Competition  will  inform  the  undertaking  or  association 
of  undertakings  that  made  the  request  of  their  procedural 
status.  This  decision  shall  be  communicated  to  the  under­
taking  or  association  of  undertakings  that  made  the  request. 

the  Directorate-General 

informed 

by 

CHAPTER  3 

APPLICATIONS  TO  BE  HEARD 

Article  5 

Interested  third  persons 

1.  Applications  to  be  heard  from  persons  other  than  those 
in  Articles  5  and  11  of  Regulation  (EC)  No 
referred  to 
773/2004 
the  meaning  of 
third  persons  within 
and 
Article  11  of  Regulation  (EC)  No  802/2004  (hereinafter  ‘third 
persons’)  shall  be  made  in  accordance  with  Article  13(1)  of 
Regulation  (EC)  No  773/2004  and  Article  16  of  Regulation 
(EC)  No  802/2004.  Applications  shall  be  submitted  in  writing 
and  explain  the  applicant’s  interest  in  the  outcome  of  the 
procedure. 

2. 
The  hearing  officer  shall  decide  as  to  whether  third 
persons  are to  be  heard after  consulting  the  director responsible. 
In  assessing  whether  a  third  person  shows  a  sufficient  interest, 
the  hearing  officer  shall  take  into  account  whether  and  to  what 
extent  the  applicant is  sufficiently affected  by  the  conduct  which 
is  the  subject  of  the  competition  proceedings  or  whether  the 
applicant  fulfils  the  requirements  of  Article  18(4)  of  Regulation 
(EC)  No  139/2004. 

3.  Where  the  hearing  officer  considers  that  an  applicant  has 
not  shown  a  sufficient  interest  to  be  heard,  he  or  she  shall 
inform  the  applicant  in  writing  of  the  reasons  thereof.  A  time 
limit  shall  be  fixed  within  which  the  applicant  may  make 
known  its  views  in  writing.  If  the  applicant  makes  known  its 
views  in  writing  within  the  time  limit  set  by  the  hearing  officer 
and  the  written  submission  does  not 
lead  to  a  different 
assessment,  that  finding  shall  be  stated  in  a  reasoned  decision 
which  shall  be  notified  to  the  applicant. 

4. 
The  hearing  officer  shall  inform  parties  to  competition 
proceedings  as  from  the  initiation  of  proceedings  pursuant  to 
Article  11(6)  of  Regulation  (EC)  No  1/2003  or  Article  6(1)(c)  of 
Regulation  (EC)  No  139/2004  of  the  identities  of  interested 
third  persons  to  be  heard,  unless  such  disclosure  would 
significantly  harm  a  person  or  undertaking. 

Article  6 

Right  to  an  oral  hearing;  participation  of  complainants  and 
third  persons  in  the  oral  hearing 

1.  At  the  request  of  parties  to  whom  the  Commission  has 
addressed  a  statement  of  objections  or  other  involved  parties, 
the  hearing  officer  shall  conduct  an  oral  hearing  so  that  such 
parties  can  further  develop  their  written  submissions. 

to 

the  director 

responsible,  decide 

The  hearing  officer  may,  where  appropriate  and  after 
2. 
consulting 
afford 
complainants  and  interested  third  persons  within  the  meaning 
of  Article  5  the  opportunity  to  express  their  views  at  the  oral 
hearing  of  the  parties  to  which  a  statement  of  objections  has 
their  written 
been 
comments.  The  hearing  officer  may  also  invite  representatives 
from  competition  authorities  from  third  countries  to  attend  the 
oral  hearing  as  observers 
in  accordance  with  agreements 
concluded  between  the  Union  and  third  countries. 

they  so  request 

issued,  provided 

in 

CHAPTER  4 

ACCESS  TO  FILE,  CONFIDENTIALITY  AND  BUSINESS  SECRETS 

Access  to  File  and  Access  to  Documents  and  Information 

Article  7 

1.  Where  a  party  which  has  exercised  its  right  of  access  to 
the  file  has  reason  to  believe  that  the  Commission  has  in  its 
possession  documents  which  have  not  been  disclosed  to  it  and 
that  those  documents  are  necessary  for  the  proper  exercise  of 
the  right  to  be  heard,  it  may  make  a  reasoned  request  for  access 
to 
to 
Article  3(7). 

the  hearing  officer,  subject 

these  documents 

to 

Subject 

to  Article  3(7),  other 

2. 
involved  parties, 
complainants  and  interested  third  persons  within  the  meaning 
of  Article  5  may  make  a  reasoned  request  to  the  hearing  officer 
in  the  circumstances  listed  hereafter:

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(a)  Other  involved  parties  who  have  reason  to  believe  that  they 
have  not  been  informed  of  the  objections  addressed  to  the 
notifying  parties  in  accordance  with  Article  13(2)  of  Regu­
lation  (EC)  No  802/2004. 

person  concerned.  The  decision  shall  specify  the  date  after 
which  the  information  will  be  disclosed.  This  date  shall  not 
be  less  than  1  week  from  the  date  of  notification. 

to 

its 

intention 

reject  a  complaint  pursuant 

(b)  A  complainant  who  has  been  informed  by  the  Commission 
of 
to 
Article  7(1)  of  Regulation  (EC)  No  773/2004  and  has 
reason  to  believe  that  the  Commission  has  in  its  possession 
documents  which  have  not  been  disclosed  to  it  and  that 
those  documents  are  necessary  for  the  proper  exercise  of  its 
rights  in  accordance  with  Article  8(1)  of  Regulation  (EC)  No 
773/2004. 

(c)  A  complainant  who  considers  that  it  has  not  received  a 
copy  of  the  non-confidential  version  of  the  statement  of 
objections  in  accordance  with  Article  6(1)  of  Regulation 
(EC)  No  773/2004  or  that  the  non-confidential  version  of 
the  statement  of  objections  has  not  been  established  in  a 
manner  which  enables  it  to  exercise  its  rights  effectively, 
settlement 
with 
procedure  applies. 

the  exception  of  cases  where 

the 

(d)  An  interested  third  person  within  the  meaning  of  Article  5 
of  this  Decision  who  has  reason  to  believe  that  it  has  not 
been  informed  of  the  nature  and  subject  matter  of  a 
procedure  in  accordance  with  Article  13(1)  of  Regulation 
(EC)  No  773/2004  and  Article  16(1)  of  Regulation  (EC)  No 
802/2004.  The  same  applies  to  a  complainant  in  a  case  to 
which  the  settlement  procedure  applies  who  has  reason  to 
believe  that  it  has  not  been  informed  of  the  nature  and 
subject  matter  of 
in  accordance  with 
the  procedure 
Article  6(1)  of  Regulation  (EC)  No  773/2004. 

3. 
The  hearing  officer  shall  take  a  reasoned  decision  on  a 
request  addressed  to  him  or  her  under  paragraph  1  or  2  and 
communicate  such  decision  to  the  person  that  made  the  request 
and  to  any  other  person  concerned  by  the  procedure. 

3. 
Paragraphs  1  and  2  shall  apply  mutatis  mutandis  to  the 
disclosure  of  information  by  publication  in  the  Official  Journal 
of  the  European  Union. 

4.  Where  appropriate 
in  order  to  balance  the  effective 
exercise  of  a  party’s  rights  of  defence  with  legitimate  interests 
of  confidentiality,  the  hearing  officer  may  decide  that  parts  of 
the  file  which  are  indispensable  for  the  exercise  of  the  party’s 
rights  of  defence  will  be  made  accessible  to  the  party  requesting 
access  in  a  restricted  manner,  the  details  of  which  shall  be 
determined  by  the  hearing  officer. 

CHAPTER  5 

EXTENSION  OF  TIME  LIMITS 

Article  9 

Requests  for  extension  of  time  limits 

If  an  addressee  of  a  statement  of  objections  considers  that 
1. 
the  time 
limit  imposed  for  its  reply  to  the  statement  of 
objections  is  too  short,  it  may  seek  an  extension  of  that  time 
limit  by  means  of  a  reasoned  request  addressed  to  the  director 
responsible.  Such  a  request  must  be  made  in  due  time  before 
the  expiry  of  the  original  time  limit  in  proceedings  pursuant  to 
Articles  101  and  102  of  the  Treaty  and  at  least  5  working  days 
before  the  expiry of  the  original  time  limit  in  proceedings  under 
Regulation  (EC)  No  139/2004.  If  such  a  request  is  not  granted 
or  the  addressee  of  the  statement  of  objections  making  the 
request  disagrees  with  the  length  of  the  extension  granted,  it 
may  refer  the  matter  to  the  hearing  officer  for  review  before  the 
expiry  of  the  original  time  limit.  After  hearing  the  director 
responsible,  the  hearing  officer  shall  decide  on  whether  an 
extension  of  the  time  limit  is  necessary  to  allow  the  addressee 
of  a  statement  of  objections  to  exercise  its  right  to  be  heard 
effectively,  while  also  having  regard  to  the  need  to  avoid  undue 
delay  in  proceedings.  In  proceedings  pursuant  to  Articles  101 
and  102  of  the  Treaty,  the  hearing  officer  shall  take  into 
account,  among  others,  the  following  elements: 

Article  8 

Business  secrets  and  other  confidential  information 

(a)  the  size  and  complexity  of  the  file; 

1.  Where  the  Commission  intends  to  disclose  information 
which  may  constitute  a  business  secret  or  other  confidential 
information  of  any  undertaking  or  person,  the  latter  shall  be 
informed  in  writing  of  this  intention  and  the  reasons  thereof  by 
the  Directorate-General  for  Competition.  A  time  limit  shall  be 
fixed  within  which  the  undertaking  or  person  concerned  may 
submit  any  written  comments. 

2.  Where  the  undertaking  or  person  concerned  objects  to  the 
disclosure  of  the  information  it  may  refer  the  matter  to  the 
hearing  officer.  If  the  hearing  officer  finds  that  the  information 
may be  disclosed because it does  not  constitute a  business secret 
or  other  confidential  information  or  because  there  is  an  over­
riding  interest  in  its  disclosure  that  finding  shall  be  stated  in  a 
reasoned  decision  which  shall  be  notified  to  the  undertaking  or 

(b)  whether  the  addressee  of  the  statement  of  objections 
making  the  request  has  had  prior  access  to  information; 

(c)  any  other  objective  obstacles  which  may  be  faced  by  the 
addressee  of  the  statement  of  objections  making  the  request 
in  providing  its  observations. 

For  the  purposes of  assessing  point  (a)  of  the  first  subparagraph, 
the  number  of 
infringements,  the  alleged  duration  of  the 
infringement(s),  the  size  and  number  of  documents  and  the 
size  and  complexity  of  expert  studies  may  be  taken  into 
consideration.

C.36720.10.2011 

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If  other  involved  parties,  a  complainant  or  an  interested 
2. 
third  person  within  the  meaning  of  Article  5  considers  that  the 
time  limit  to  make  its  views  known  is  too  short,  it  may  seek  an 
extension  of  that  time  limit  by  means  of  a  reasoned  request 
addressed  to  the  director  responsible  in  due  time  before  the 
expiry  of  the  original  time  limit.  If  such  a  request  is  not 
granted  or  the  other  involved  party,  complainant  or  interested 
third  person  disagrees  with  this  decision,  it  may  refer  the  matter 
to  the  hearing  officer  for  review.  After  hearing  the  director 
responsible,  the  hearing  officer  shall  decide  on  whether  an 
extension  of  the  time  limit  should  be  granted. 

The  hearing  officer  may  also  ask  for  prior  written  notifi­
3. 
cation  of  the  essential  contents  of  the  intended  statements  of 
persons  invited  to  the  hearing. 

4. 
The  hearing  officer  may  set  a  time  limit  for  all  persons 
invited  to  the  oral  hearing  to  provide  a  list  of  participants  who 
will  attend  on  their  behalf.  The  hearing  officer  shall  make  this 
list  available  to  all  persons  invited  to  the  oral  hearing  in  due 
time  before  the  date  of  the  hearing. 

CHAPTER  6 

THE  ORAL  HEARING 

Article  10 

Organisation  and  function 

1. 
the 
The  hearing  officer  shall  organise  and  conduct 
hearings  provided  for  in  the  provisions  implementing  Articles 
101  and  102  of  the  Treaty  and  Regulation  (EC)  No  139/2004. 

The  oral  hearing  shall  be  conducted  by  the  hearing  officer 

2. 
in  full  independence. 

Article  12 

Timing  and  conduct 

1.  After  consulting  the  director  responsible,  the  hearing 
officer  shall  determine  the  date,  the  duration  and  the  place  of 
the  hearing.  Where  a  postponement  is  requested,  the  hearing 
officer  shall  decide  whether  or  not  to  allow  it. 

2. 
The  hearing  officer  shall  decide  whether  new  documents 
should  be  admitted  during  the  hearing  and  which  persons 
should  be  heard  on  behalf  of  a  party. 

3. 
is 
The  hearing  officer  shall  ensure  that  the  hearing 
properly  conducted  and  shall  contribute  to  the  objectivity  of 
the  hearing  itself  and  of  any  decision  taken  subsequently. 

4. 
The  hearing  officer  shall  ensure  that  the  oral  hearing 
provides  addressees  of  the  statement  of  objections,  other 
involved  parties,  as  well  as  complainants  and  interested  third 
persons  within  the  meaning  of  Article  5  which  have  been 
admitted  to  the  oral  hearing,  with  sufficient  opportunity  to 
develop  their  views  as  to  the  preliminary  findings  of  the 
Commission. 

3. 
The  hearing  officer  may  allow  the  parties  to  whom  a 
statement  of  objections  has  been  addressed,  other  involved 
parties,  complainants,  other  persons  invited  to  the  hearing, 
the  Commission  services  and  the  authorities  of  the  Member 
States  to  ask  questions  during  the  hearing.  To  the  extent  that, 
exceptionally,  a  question  cannot  be  answered  in  whole  or  in 
part  at  the  oral  hearing,  the  hearing  officer  may  allow  the  reply 
to  be  given  in  writing  within  a  set  time  limit.  Such  written  reply 
shall  be  distributed  to  all  participants  in  the  oral  hearing,  unless 
the  hearing  officer  decides  otherwise  in  order  to  protect  the 
rights  of  defence  of  an  addressee  of  a  statement  of  objections 
or  the  business  secrets  or  other  confidential  information  of  any 
person. 

Article  11 

Preparation  of  the  oral  hearing 

1. 
The hearing officer shall be  responsible for  the  preparation 
of  the  oral  hearing  and  shall  take  all  appropriate  measures  in 
that  regard.  In  order  to  ensure  the  proper  preparation  of  the 
oral  hearing,  the  hearing  officer  may,  after  consulting  the 
director  responsible,  supply  in  advance  to  the  persons  invited 
to  the  hearing  a  list  of  questions  on  which  they  are  invited  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  a  statement  of  objections  who  have  requested 
an  oral  hearing  want  to  raise. 

2. 
For  this  purpose,  after  consulting  the  director  responsible, 
the  hearing  officer  may  hold  a  meeting  with  the  persons  invited 
to  the  hearing  and,  where  appropriate, the  Commission  services, 
in  order  to  prepare  for  the  hearing  itself. 

the  parties  concerned,  other 

4.  Where  required  by  the  need  to  ensure  the  right  to  be 
heard,  the  hearing  officer  may,  after  consulting  the  director 
responsible,  afford 
involved 
parties,  complainants  or  interested  third  persons  within  the 
meaning  of  Article  5  the  opportunity  to  submit  further 
written  comments  after  the  oral  hearing.  The  hearing  officer 
shall  fix  a  date  by  which  such  submissions  may  be  made.  The 
Commission  shall  not  be  obliged  to  take  into  account  written 
comments  received  after  that  date. 

Article  13 

Protection  of  business  secrets  and  confidentiality  at  the 
oral  hearing 

Each  person  shall  normally  be  heard  in  the  presence  of  all  other 
persons  invited  to  attend  the  oral  hearing.  The  hearing  officer 
may  also  decide  to  hear  persons  separately  in  a  closed  session, 
having  regard  to  their  legitimate  interest  in  the  protection  of 
their  business  secrets  and  other  confidential  information.

C.368L  275/36 

EN 

Official Journal of the European Union 

20.10.2011

CHAPTER  7 

INTERIM  REPORT  AND  RIGHT  TO  MAKE  OBSERVATIONS 

Article  14 

Interim  report  and  observations 

1. 
The  hearing  officer  shall  submit  an  interim  report  to  the 
competent  member  of  the  Commission  on  the  hearing  and  the 
conclusions  he  or  she  draws  with  regard  to  the  respect  for  the 
effective  exercise  of  procedural  rights.  The  observations  in  this 
report  shall  concern  procedural  issues  including  the  following: 

(a)  disclosure  of  documents  and  access  to  the  file; 

(b)  time  limits  for  replying  to  the  statement  of  objections; 

(c)  the  observance  of  the  right  to  be  heard; 

(d)  the  proper  conduct  of  the  oral  hearing. 

A  copy  of  the  report  shall  be  given  to  the  Director-General  for 
Competition,  to  the  director  responsible  and  to  the  other 
competent  services  of  the  Commission. 

2. 
In  addition  to,  and  separately  from,  the  report  referred  to 
in  paragraph  1,  the  hearing  officer  may  make  observations  on 
the  further  progress  and  impartiality  of  the  proceedings.  In  so 
doing,  the  hearing  officer  shall  seek  to  ensure  in  particular  that, 
in  the  preparation  of  draft  Commission  decisions,  due  account 
is  taken  of  all  the  relevant  facts,  whether  favourable  or  unfa­
vourable to  the parties concerned, including the factual elements 
relevant  to  the  gravity  and  duration  of  any  infringement.  Such 
observations  may  relate  to,  inter  alia,  the  need  for  further 
information,  the  withdrawal  of  certain  objections,  the  formu­
lation  of  further  objections  or  suggestions  for  further  investi­
gative  measures  pursuant  to  Chapter  V  of  Regulation  (EC)  No 
1/2003. 

The  Director-General  for  Competition,  the  director  responsible 
and  the  Legal  Service  shall  be  informed  of  such  observations. 

CHAPTER  8 

COMMITMENTS  AND  SETTLEMENTS 

Article  15 

Commitments  and  settlements 

1. 
Parties  to  the  proceedings  which  offer  commitments  to 
meet  the  concerns  expressed  to  them  by  the  Commission  in 
its  preliminary  assessment  pursuant  to  Article  9  of  Regulation 
(EC)  No  1/2003  may  call  upon  the  hearing  officer  at  any  stage 
in  the  procedure  pursuant  to  Article  9,  in  order  to  ensure  the 
effective  exercise  of  their  procedural  rights. 

2. 
Parties  to  proceedings  in  cartel  cases  which  engage  in 
settlement  discussions  pursuant  to  Article  10a  of  Regulation 
(EC)  No  773/2004  may  call  upon  the  hearing  officer  at  any 
stage  during  the  settlement  procedure  in  order  to  ensure  the 
effective  exercise  of  their  procedural  rights. 

CHAPTER  9 

FINAL  REPORT 

Article  16 

Content  and  transmission  prior  to  the  adoption  of  a 
decision 

1. 
The  hearing  officer  shall,  on  the  basis  of  the  draft  decision 
to  be  submitted  to  the  Advisory  Committee  in  the  case  in 
question,  prepare  a  final  report  in  writing  on  the  respect  for 
the  effective  exercise  of  procedural  rights,  as  referred  to  in 
Article  14(1),  at  any  stage  of  the  proceedings.  That  report  will 
also  consider  whether  the  draft  decision  deals  only  with 
objections  in  respect  of  which  the  parties  have  been  afforded 
the  opportunity  of  making  known  their  views. 

the  Commission, 

the  Director-General 

The  final  report  shall  be  submitted  to  the  competent 
2. 
for 
member  of 
Competition,  the  director  responsible  and  the  other  competent 
services  of  the  Commission.  It  shall  be  communicated  to  the 
competent  authorities  of  the  Member  States  and,  in  accordance 
with  the  provisions  on  cooperation  laid  down  in  Protocols  23 
and  24  of  the  EEA  Agreement,  to  the  EFTA  Surveillance 
Authority. 

Article  17 

Submission  to  the  Commission  and  publication 

1. 
The  hearing  officer’s  final  report  shall  be  presented  to  the 
Commission  together  with  the  draft  decision  submitted  to  it,  in 
order  to  ensure that, when  it  reaches a  decision on  an  individual 
case, 
relevant 
information  as  to  the  course  of  the  procedure  and  that  the 
effective  exercise  of  procedural  rights  has  been  respected 
throughout  the  proceedings. 

fully  apprised  of  all 

the  Commission 

is 

2. 
The  final  report  may  be  modified  by  the  hearing  officer  in 
the  light  of  any  amendments  to  the  draft  decision  prior  to  its 
adoption  by  the  Commission. 

3. 
The  Commission  shall  communicate  the  hearing  officer’s 
final  report,  together  with  the  decision,  to  the  addressees  of  the 
decision.  It  shall  publish  the  hearing  officer’s  final  report  in  the 
Official  Journal  of  the  European  Union,  together  with  the  decision, 
having  regard  to  the  legitimate  interest  of  undertakings  in  the 
protection  of  their  business  secrets. 

CHAPTER  10 

FINAL  PROVISIONS 

Article  18 

Repeal  and  transitional  provision 

1.  Decision  2001/462/EC,  ECSC  is  repealed. 

steps 

Procedural 

2. 
under  Decision 
already 
2001/462/EC,  ECSC  shall  continue  to  have  effect.  In  relation 
to  investigatory  measures  that  were  taken  before  the  entry  into 
force  of  this  Decision,  the  hearing  officer  may  decline  to 
exercise  his  or  her  powers  pursuant  to  Article  4.

taken 

C.36920.10.2011 

EN 

Official Journal of the European Union 

L  275/37

In  cases  where  the  initiation  of  proceedings  pursuant  to  Article  11(6)  of  Regulation  (EC)  No  1/2003  or  the 
initiation  of  proceedings  pursuant  to  Article  6(1)(c)  of  Regulation  (EC)  No  139/2004  took  place  before  the 
entry  into  force  of  the  present  Decision,  the  interim  report  pursuant  to  Article  14  of  the  present  Decision 
and  the  final  report  pursuant  to  Article  16  shall  not  cover  the  investigation  phase, unless  the  hearing  officer 
decides  otherwise. 

Article  19 

Entry  into  force 

This  Decision  shall  enter  into  force  on  the  day  following  its  publication  in  the  Official  Journal  of  the  European 
Union. 

Done  at  Brussels,  13  October  2011. 

For  the  Commission 
The  President 

José  Manuel  BARROSO

C.370C.471C.472This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

1958R0001 — EN — 01.01.2007 — 006.001 — 1

►B

REGULATION No 1

determining the languages to be used by the European Economic Community

(OJ L 17, 6.10.1958, p. 385)

Amended by:

Official Journal

No

page

date

►M1
►M2

Council Regulation (EC) No 920/2005 of 13 June 2005
Council Regulation (EC) No 1791/2006 of 20 November 2006

L 156
L 363

3
1

18.6.2005
20.12.2006

Amended by:

►A1

►A2
►A3
►A4

►A5

Act of Accession of Denmark, Ireland and the United Kingdom of
Great Britain and Northern Ireland
(adapted by Council Decision of 1 January 1973)
Act of Accession of Greece
Act of Accession of Spain and Portugal
Act of Accession of Austria, Sweden and Finland
(adapted by Council Decision 95/1/EC, Euratom, ECSC)
Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,
the Republic of Lithuania, the Republic of Hungary, the Republic of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European
Union is founded

L 73

L 2
L 291
L 302
C 241
L 1
L 236

14

1
17
23
21
1
33

27.3.1972

1.1.1973
19.11.1979
15.11.1985
29.8.1994
1.1.1995
23.9.2003

C.573▼B

▼M2

▼B

▼M2

▼B

1958R0001 — EN — 01.01.2007 — 006.001 — 2

REGULATION No 1

determining the languages to be used by the European Economic
Community

THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY,

Having regard to Article 217 of the Treaty which provides that the rules
governing the languages of the institutions of the Community shall,
without prejudice
rules of
procedure of the Court of Justice, be determined by the Council,
acting unanimously;

to the provisions

contained in the

Whereas each of the four languages in which the Treaty is drafted is
recognised as an official language in one or more of the Member States
of the Community;

HAS ADOPTED THIS REGULATION:

Article 1

The official languages and the working languages of the institutions of
the Union shall be Bulgarian, Czech, Danish, Dutch, English, Estonian,
Finnish, French, German, Greek, Hungarian,
Irish, Italian, Latvian,
Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian,
Spanish and Swedish.

Article 2

Documents which a Member State or a person subject to the jurisdiction
of a Member State sends to institutions of the Community may be
drafted in any one of the official languages selected by the sender.
The reply shall be drafted in the same language.

Article 3

Documents which an institution of the Community sends to a Member
State or to a person subject to the jurisdiction of a Member State shall
be drafted in the language of such State.

Article 4

Regulations and other documents of general application shall be drafted
in the official languages.

Article 5

The Official Journal of the European Union shall be published in the
official languages.

Article 6

The institutions of the Community may stipulate in their rules of
procedure which of the languages are to be used in specific cases.

C.5741958R0001 — EN — 01.01.2007 — 006.001 — 3

▼B

Article 7

The languages to be used in the proceedings of the Court of Justice
shall be laid down in its rules of procedure.

Article 8

If a Member State has more than one official language, the language to
be used shall, at the request of such State, be governed by the general
rules of its law.

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

C.57576 
  I.D NOTICES AND 
GUIDELINES 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
C  308/6 

EN 

Official Journal of the European Union 

20.10.2011

Commission  notice  on  best  practices  for  the  conduct  of  proceedings  concerning  Articles  101  and 
102  TFEU 

(Text  with  EEA  relevance) 

(2011/C  308/06) 

TABLE  OF  CONTENTS 

1. 

2. 

SCOPE  AND  PURPOSE  OF  THE  NOTICE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  8 

THE  INVESTIGATIVE  PHASE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  9 

2.1. 

Origin  of  cases 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

9 

2.2. 

Initial  assessment  and  case  allocation  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  10 

2.3. 

Opening  of  proceedings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  11 

2.4. 

Languages 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  12 

2.5. 

Information  requests 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  12 

2.5.1. 

Scope  of  request  for  information  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  13 

2.5.2. 

Self-incrimination  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  13 

2.5.3.  Time  limits 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  13 

2.5.4.  Confidentiality  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  14 

2.5.5.  Meetings  and  other  contacts  with  the  parties  and  third  parties 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  14 

2.5.6. 

Power  to  take  statements  (interviews)  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  15 

2.6. 

Inspections 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  15 

2.7. 

Legal  professional  privilege  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  15 

2.8. 

Information  exchange  between  competition  authorities  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  17 

2.9. 

State  of  play  meetings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  17 

2.9.1. 

Format  of  the  state  of  play  meetings 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  18 

2.9.2.  Timing  of  the  state  of  play  meetings 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  18 

2.10. 

Triangular  meetings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  19 

2.11.  Meetings  with  the  Commissioner  or  the  Director-General 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  19 

2.12. 

Review  of  key  submissions  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  19 

2.13. 

Possible  outcomes  of  the  investigation  phase 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  20 

3. 

PROCEDURES  LEADING  TO  A  PROHIBITION  DECISION 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  20

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3.1. 

Right  to  be  heard 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  20 

3.1.1. 

Statement  of  Objections  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  21 

3.1.1.1.  Purpose  and  content  of  the  Statement  of  Objections  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  21 

3.1.1.2.  Possible  imposition  of  remedies  and  arguments  of  the  parties  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  21 

3.1.1.3.  Possible  imposition  of  fines  and  arguments  of  the  parties  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  21 

3.1.1.4.  Transparency  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  22 

3.1.2.  Access  to  file  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  22 

3.1.3. 

Procedures  for  facilitating  the  exchange  of  confidential  information  between  parties  to  the 
proceedings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  23 

3.1.4.  Written  reply  to  the  Statement  of  Objections  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  23 

3.1.5.  Rights  of  complainants  and  interested  third  persons  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  24 

3.1.6.  Oral  hearing 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  25 

3.1.7. 

Supplementary  Statement  of  Objections  and  letter  of  facts 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  25 

3.2. 

Possible  outcomes  of  this  phase  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  26 

4. 

COMMITMENT  PROCEDURES  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  26 

4.1. 

Initiation  of  commitment  discussions  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  27 

4.2. 

Preliminary  Assessment 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  27 

4.3. 

Submission  of  the  commitments 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  27 

4.4. 

The  ‘market  test’  and  subsequent  discussions  with  the  parties 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  28 

5. 

PROCEDURE  FOR  REJECTION  OF  COMPLAINTS  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  28 

5.1. 

Grounds  for  rejection  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  29 

5.2. 

Procedure 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  29 

6. 

7. 

8. 

LIMITS  ON  THE  USE  OF  INFORMATION 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  30 

ADOPTION,  NOTIFICATION  AND  PUBLICATION  OF  DECISIONS  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  30 

FUTURE  REVISION 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  31 

ANNEX  1 

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  32

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1.  SCOPE  AND  PURPOSE  OF  THE  NOTICE 

1.  The  principal  purpose  of  this  notice  is  to  provide  practical  guidance  on  the  conduct  of  proceedings 
before the  European Commission  (Commission)  concerning  Articles 101  and  102  of  the  Treaty on  the 
Functioning  of  the  European  Union  (TFEU) ( 1 )  in  accordance  with  Regulation  (EC)  No  1/2003 ( 2 ),  its 
Implementing  Regulation ( 3 )  and  the  case  law  of  the  Court  of  Justice  of  the  European  Union.  In  this 
regard,  the  notice  seeks  to  increase  understanding  of  the  Commission's  investigation  process ( 4 )  and 
thereby  enhance  the  efficiency  of  investigations  and  ensure  a  high  degree  of  transparency  and 
in  the  process.  The  notice  covers  the  main  proceedings ( 5 )  concerning  alleged 
predictability 
infringements  of  Articles  101  and  102  TFEU. 

2.  Infringement  proceedings  against  Member  States  based  notably  on  Article  106  TFEU  in  conjunction 
with Articles 101  and  102  TFEU  fall  outside the  scope of  this notice. Nor  does  it  apply to  proceedings 
under  the  Merger  Regulation ( 6 )  or  to  State  aid  proceedings ( 7 ). 

3.  Proceedings  concerning  the  application  of  Articles  101  and  102  TFEU  (hereafter  generally  referred  to 
as  ‘proceedings’)  are  in  particular  regulated  by  Regulation  (EC)  No  1/2003  and  the  Implementing 
Regulation.  The  Commission's  notices  on  access  to  file ( 8 )  and  handling  of  complaints ( 9 ),  as  well  as 
the  terms  of  reference  of  the  hearing  officer ( 10 )  are  also  relevant  for  the  conduct  of  proceedings.  As 
regards  submissions  of  reports  of  economic  experts  and  submission  of  quantitative  data,  reference  is 
made  to  the  Best  Practices  on  the  submission  of  economic  evidence ( 11 ).  This  notice  should  therefore 
not  be  taken  as  an  exhaustive  account  of  all  measures  governing  proceedings  before  the  Commission. 
The  notice  should  be  read  in  conjunction  with  other  such  instruments  and  any  relevant  jurisprudence.

( 1 )  With  effect  from  1  December  2009,  Articles  81  and  82  of  the  EC  Treaty  have  become  Articles  101  and  102 
respectively  of  the  TFEU.  The  two  sets  of  provisions  are  in  substance  identical.  For  the  purposes  of  this  document, 
references  to  Articles  101  and  102  TFEU  should  be  understood  as  references  to  Articles  81  and  82  of  the  EC  Treaty 
when  appropriate. 

( 2 )  Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on  competition  laid 
down  in  Articles  81  and  82  of  the  Treaty  (OJ  L  1,  4.1.2003,  p.  1),  as  amended  by  Council  Regulation  (EC)  No 
411/2004  of  26  February  2004  repealing  Regulation  (EEC)  No  3975/87  and  amending  Regulations  (EEC)  No 
3976/87  and  (EC)  No  1/2003,  in  connection  with  air  transport  between  the  Community  and  third  countries 
(OJ  L  68,  6.3.2004,  p.  1)  and  Council  Regulation  (EC)  No  1419/2006  of  25  September  2006  repealing  Regulation 
(EEC)  No  4056/86  laying  down  detailed  rules  for  the  application  of  Articles  85  and  86  of  the  Treaty  to  maritime 
transport,  and  amending  Regulation  (EC)  No  1/2003  as  regards  the  extension  of  its  scope  to  include  cabotage  and 
international  tramp  services  (OJ  L  269,  28.9.2006,  p.  1). 

( 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,  27.4.2004,  p.  18),  as  amended  by 
Commission  Regulation  (EC)  No  622/2008  of  30  June  2008  amending  Regulation  (EC)  No  773/2004,  as  regards 
the  conduct  of  settlement  procedures  in  cartel  cases  (OJ  L  171,  1.7.2008,  p.  3). 

( 4 )  This  notice  applies  exclusively  to  the  Commission's  procedures  for  the  enforcement  of  Articles  101  and  102  TFEU 

and  does  not  concern  the  national  competition  authorities  when  they  apply  these  provisions. 

( 5 )  This  notice  does  not  deal  with  specific  procedures,  for  example  for  imposing  fines  on  undertakings  having  provided 
misleading  information,  refused  to  submit  to  inspections  or  breached  seals  affixed  by  officials  (see  Article  23(1)  of 
Regulation  (EC)  No  1/2003).  It  covers  neither  decisions  on  interim  measures  pursuant  to  Article  8  of  Regulation  (EC) 
No  1/2003  nor  decisions  on  finding  of  inapplicability  pursuant  to  Article  10  of  Regulation  (EC)  No  1/2003. 
( 6 )  See  Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of  concentrations  between  under­
takings  (OJ  L  24,  29.1.2004,  p.  1).  See  in  this  respect  the  Directorate-General for  Competition's  Best  Practices  on  the 
conduct  of  EC  Merger  Proceedings  of  20  January  2004,  published  on  the  Directorate-General  for  Competition's 
website  (http://ec.europa.eu/competition/mergers/legislation/proceedings.pdf). 

( 7 )  See  Council  Regulation  (EC)  No  659/1999  of  22  March  1999  laying  down  detailed  rules  for  the  application  of 
Article  93  (now  Article  108  TFEU)  of  the  EC  Treaty  (OJ  L  83,  27.3.1999,  p.  1).  See  in  this  respect  the  Commission 
notice  on  a  Code  of  Best  Practice  for  the  conduct  of  State  aid  control  procedures  (OJ  C  136,  16.6.2009,  p.  13). 
( 8 )  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). 

( 9 )  Commission  notice  on  the  handling  of  complaints  by  the  Commission  under  Articles  81  and  82  of  the  EC  Treaty 

(OJ  C  101,  27.4.2004,  p.  65). 

( 10 )  Decision  C(2011)  5742  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. 

( 11 )  Staff  working  paper  on  Best  Practices  for  the  submission  of  economic  evidence  and  data  collection  in  cases 
concerning  the  application  of  Articles  101  and  102  TFEU  and  merger  cases,  http://ec.europa.eu/competition/ 
index_en.html

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4.  The  investigation  of  cartels,  as  defined  in  the  Leniency  Notice ( 12 ),  may  also  be  subject  to  the  specific 
procedures  on  applications  for  leniency  and  on  settlements ( 13 ).  These  specific  procedures  are  not 
covered  by  this  notice.  Moreover,  the  particular  nature  of  cartel  proceedings  in  some  circumstances 
requires  special  provisions,  in  order  not  to  interfere  with  possible  leniency  applications ( 14 )  or 
settlement  discussions ( 15 ).  These  special  provisions  are  indicated  where  applicable. 

5.  This  notice  is  structured  in  the  following  way.  Section  2  sets  out  the  procedure  followed  during  the 
investigative  phase.  This  part  is  relevant  for  any  investigation  regardless  of  whether  it  leads  to  a 
prohibition  decision  (Article  7  of  Regulation  (EC)  No  1/2003),  a  commitment  decision  (Article  9 
of  Regulation  (EC)  No  1/2003)  or  a  rejection  of  complaint  decision  (Article  7  of  the  Implementing 
Regulation).  Section  3  describes  the  main  procedural  steps  and  rights  of  defence  in  the  context  of 
leading  to  prohibition  decisions.  Section  4  describes  the  specific  features  of  the 
procedures 
commitment  procedure.  Section  5  covers  rejection  of  complaints.  The  remaining  sections  are  of 
general  application:  Section  6  describes  the  limits  to  use  of  information,  Section  7  deals  with  the 
adoption,  notification  and  publication  of  decisions  and  Section  8  with  future  revisions. 

6.  This  notice  is  notably  built  upon  the  experience  to  date  in  the  application  of  Regulation  (EC)  No 
1/2003  and  the  Implementing  Regulation.  It  reflects  the  views  of  the  Commission  at  the  time  of 
publication  and  will  be  applied  as  from  the  date  of  publication  for  pending ( 16 )  and  future  cases.  The 
specific  features  of  an  individual  case  may  however  require  an  adaptation  of,  or  deviation  from  this 
notice,  depending  on  the  case  at  issue. 

7.  This  notice  does  not  create  any  new  rights  or  obligations,  nor  alter,  the  rights  or  obligations  which 
arise  from  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  Regulation  (EC)  No  1/2003, 
the  Implementing  Regulation  and  the  case  law  of  the  Court  of  Justice  of  the  European  Union. 

8.  The  Commission  encourages  the  use  of  electronic  information  (e-mails  or  digital  devices)  for  any  case- 

related  correspondence. 

2.  THE  INVESTIGATIVE  PHASE 

2.1.  Origin  of  cases 

9.  A  case  concerning  an  alleged  infringement  of  Article  101  or  102  TFEU  may  be  based  on  a  complaint 

by  undertakings,  other  natural  and  legal  persons  and  even  Member  States.

( 12 )  Commission  notice  on  immunity  from  fines  and  reduction  of  fines  in  cartel  cases  (OJ  C  298,  8.12.2006,  p.  17) 
(Leniency  Notice),  i.e.  secret  ‘agreements  and/or  concerted  practices  between  two  or  more  competitors  aimed  at 
coordinating  their  competitive  behaviour  on  the  market  and/or  influencing  the  relevant  parameters  of  competition 
through  practices  such  as  the  fixing  of  purchase  or  selling  prices  or  other  trading  conditions,  the  allocation  of 
production  or  sales  quotas,  the  sharing  of  markets  including  bid-rigging,  restrictions  of  imports  or  exports  and/or 
anti-competitive  actions  against  other  competitors.  Such  practices  are  among  the  most  serious  violations  of 
(Article  101  TFEU)’. 

( 13 )  Commission  Regulation  (EC)  No  622/2008  of  30  June  2008  amending  Regulation  (EC)  No  773/2004,  as  regards the 
conduct  of  settlement  procedures  in  cartel  cases  (OJ  L  171,  1.7.2008,  p.  3);  Commission  notice  on  the  conduct  of 
settlement  procedures  in  view  of  the  adoption  of  Decisions  pursuant  to  Article  7  and  Article  23  of  Council 
Regulation  (EC)  No  1/2003  in  cartel  cases  OJ  C  167,  2.7.2008,  p.  1. 

( 14 )  It  should be  noted  that  the Commission  may  disregard any  application for  immunity  from  fines  on  the  ground  that it 
has  been  submitted  after  the  statement  of  objections  has  been  issued  (see  paragraphs  14  and  29  of  the  Leniency 
Notice). 

( 15 )  The  Commission  may  disregard  any  application  for  immunity  from  fines  or  reductions  of  fines  under  the  Leniency 
Notice  on  the  ground  that  it  has  been  submitted  after  the  expiry  of  the  time  limit  set  for  parties  to  declare  in  writing 
whether  they  envisage  engaging  in  settlement  discussions  (see  paragraph  13  of  the  Settlement  Notice). 

( 16 )  With  regard  to  cases  which  are  pending  at  the  time  of  the  publication  of  this  document,  the  latter  will  apply  to  any 

procedural  steps  that  remain  to  be  taken  after  publication.

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10.  Information  from  citizens  and  undertakings 

important 

in  triggering 

investigations  by  the 
is 
Commission.  The  Commission  therefore  encourages  citizens  and  undertakings  to  inform  it  about 
suspected  infringements  of  the  competition  rules ( 17 ).  This  can  be  done  either  by  lodging  a  formal 
complaint ( 18 )  or  by  simply  providing  market  information  to  the  Commission.  Anyone  who  is  able  to 
show  a  legitimate  interest  as  a  complainant,  and  who  submits  a  complaint  in  compliance  with  form 
C ( 19 ),  enjoys  certain  procedural  rights.  The  details  of  the  procedure  to  be  followed  are  set  out  in  the 
Implementing  Regulation  and  in  the  notice  on  the  handling  of  complaints.  Natural  and  legal  persons, 
other  than  complainants,  which  show  a  sufficient  interest  to  be  heard  and  which  are  admitted  to  the 
proceedings  by  the  hearing  officer  also  enjoy  certain  procedural  rights  in  accordance  with  Article  13 
of  the  Implementing  Regulation. 

11.  The  Commission  may  also  open  a  case on  its own  initiative (ex  officio).  It  may  do  so  when  certain facts 
have  been  brought  to  its  attention,  or  further  to  information  gathered  in  the  context  of  sector 
enquiries,  informal  meetings  with  industry,  monitoring  of  markets  or  on  the  basis  of  information 
exchanged  within  the  European  Competition  Network  (ECN)  or  with  competition  authorities  of  third 
countries.  Cartel  cases  can  also  be  initiated  on  the  basis  of  an  application  for  leniency  by  one  of  the 
cartel  members. 

2.2.  Initial  assessment  and  case  allocation 

12.  All  cases,  irrespective  of  their  origin,  are  subject  to  an  initial  assessment  phase.  During  this  phase  the 
Commission  examines  whether  the  case  merits  further  investigation ( 20 )  and,  if  so,  provisionally 
defines  its  focus,  in  particular  with  regard  to  the  parties,  the  markets  and  the  conduct  to  be  inves­
tigated.  During  this  phase,  the  Commission  may  make  use  of  investigative  measures  such  as  requests 
for  information  in  accordance  with  Article  18(2)  of  Regulation  (EC)  No  1/2003. 

13.  In  practice,  the  system  of  initial  assessment  means  that  some  cases  will  be  discarded  at  a  very  early 
stage  because  they  are  not  deemed  to  merit  further  investigation.  In  this  regard,  the  Commission 
focuses  its  enforcement  resources  on  cases  where  it  appears  likely  that  an  infringement  may  be  found, 
in  particular  on  cases  with  the  most  significant  impact  on  the  functioning  of  competition  in  the 
internal  market  and  risk  of  consumer  harm,  as  well  as  on  cases  which  are  likely  to  contribute  to 
defining  EU  competition  policy  and/or  to  ensuring  the  coherent  application  of  Articles  101  and/or 
102  TFEU ( 21 ). 

14.  This  initial  assessment  phase  also  attempts  to  address,  at  an  early  stage,  the  allocation  of  cases  within 
the  ECN.  Regulation  (EC)  No  1/2003  introduced  the  possibility  of  reallocating  cases  to  other  network 
members  if  they  are  well  placed  to  deal  with  them.  Accordingly,  the  Commission  may  reallocate  a 
case  to  a  national  competition  authority  and  vice  versa ( 22 ). 

15.  When  the  first  investigative  measure  is  addressed  to  them  (normally  a  request  for  information ( 23 )  or 
an  inspection),  addressees  are  informed  of  the  fact  that  they  are  subject  to  a  preliminary  investigation 
and  about  the  subject  matter  and  purpose  of  such  investigation.  In  the  context  of  requests  for 
is
information, 

the  behaviour  under 

further  be  reminded 

investigation 

they  will 

that 

if 

( 17 )  Or,  when  appropriate,  the  relevant  national  competition  authority. 
( 18 )  Pursuant  to  Article 7(2)  of  Regulation (EC)  No  1/2003.  Under  Articles 5  to  9  of  the  Implementing  Regulation, formal 
complaints  have  to  fulfil  certain  requirements.  Information  contained  in  submissions  that  do  not  respect  these 
requirements  may  nevertheless  be  taken  into  account  as  market  information. 

( 19 )  See  Article  5(1)  of  the  Implementing  Regulation. 
( 20 )  The  Court  of  Justice  of  the  European  Union  has  recognised  that  the  Commission  is  entitled  to  give  differing  degrees 
of  priority  to  the  complaints  that  it  receives.  This  is  settled  case  law  since  Case  T-24/90,  Automec  v  Commission 
(hereinafter  ‘Automec  II’)  (1992)  ECR  II-2223,  para  85. 

( 21 )  The Commission  has made  public a non-exhaustive list of  criteria which it intends to  use when examining whether or 
not  complaints  show  a  sufficient  ‘European  Union  interest’.  The  criteria  were  published  in  the  Annual  Report  on 
Competition  Policy  2005,  adopted  in  June  2006.  See  as  well  paragraph  44  of  the  notice  on  handling  of  complaints. 
( 22 )  See  paragraphs 5  to  15  of  the  Commission  notice  on  cooperation within the  Network  of  Competition  Authorities (OJ 

C  101,  27.4.2004,  p.  43). 

( 23 )  See  Case  T-99/04  AC  Treuhand  v  Commission  [2008]  ECR  II-1501,  para.  56.

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confirmed to  have taken place this might constitute an infringement of Articles 101  and/or 102  TFEU. 
After  having  received  a  request  for  information  or  being  subject  to  an  inspection,  parties ( 24 )  may  at 
any  time  inquire  with  the  Directorate-General  for  Competition  about  the  status  of  the  investigation, 
including  before  the  opening  of  proceedings.  If  such  an  undertaking  considers  that  it  has  not  been 
properly informed  by  the  Directorate-General for  Competition  of  its  procedural status, it  may  refer the 
matter  to  the  hearing  officer  for  resolution,  after  having  raised  the  matter  with  the  Directorate-General 
for  Competition ( 25 ).  The  hearing  officer  shall  take  a  decision  that  the  Directorate-General  for 
Competition  will  inform  the  undertaking  or  association  of  undertakings  that  made  the  request  of 
their  procedural  status.  This  decision  shall  be  communicated  to  the  undertaking  or  association  of 
undertakings  that  made  the  request.  If  at  any  stage  during  the  initial  assessment  phase,  the 
Commission  decides  not  to  investigate  the  case  further  (and  thus  not  to  open  proceedings),  the 
Commission  will,  at  its  own  initiative,  inform  the  party  subject  to  the  preliminary  investigation 
thereof. 

16.  In  cases  based  on  a  complaint,  the  Commission  will  endeavour  to  inform  complainants  within  four 
months  from  the  receipt  of  the  complaint  of  the  action  that  it  proposes  to  take  with  regard  to  the 
complaint ( 26 ).  This  time  frame  is  indicative  and  will  depend  on  the  circumstances  of  the  individual 
case and  whether the  Directorate-General for  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  to  investigate  the  case  further. 

2.3.  Opening  of  proceedings 

17.  The  Commission  will  open  proceedings ( 27 )  under  Article  11(6)  of  Regulation  (EC)  No  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. 

18.  The  opening  of  proceedings  determines  the  allocation  of  the  case  within  the  ECN ( 28 )  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.  The  Commission  will  thus  allocate  resources  to  the  case 
and  will  endeavour  to  deal  with  the  case  in  a  timely  manner. 

19.  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. 

20.  Pursuant  to  Article  2  of  the  Implementing  Regulation,  the  Commission  may  make  the  opening  of 
proceedings  public.  The  Commission’s  policy  is  to  publish  the  opening  of  proceedings  on  the  website 
of  the  Directorate-General  for  Competition  and  issue  a  press  release,  unless  such  publication  may 
harm  the  investigation. 

21.  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). 

22.  It  should  be  emphasised  that  the  opening  of  proceedings  does  not  prejudge  in  any  way  the  existence 
of  an  infringement.  It  merely  indicates  that  the  Commission  will  further  pursue  the  case.  This 
important  clarification  will  be  mentioned  in  the  decision  opening  the  proceedings  (notified  to  the 
parties),  as  well  as  in  all  public  communications  concerning  the  opening  of  the  case.

( 24 )  In  this  notice,  ‘parties’  are  defined  as  the  parties  subject  to  the  investigation.  If  not  explicitly  mentioned,  ‘parties’  does 

not  include  complainants  and  admitted  third  persons  (also  referred  to  as  ‘third  parties’  in  this  notice). 

( 25 )  Article  4(2)(d)  of  the  terms  of  reference  of  the  hearing  officer. 
( 26 )  Notice  on  the  handling  of  complaints,  paragraph  61. 
( 27 )  According  to  Article  2  of  the  Implementing  Regulation,  the  Commission  may  decide  to  initiate  proceedings  with  a 
view  to  adopting  a  decision  (e.g.  a  decision  finding  an  infringement  or  a  commitment  decision)  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  (EC)  No  1/2003)  or  a  notice  pursuant  to  Article  27(4)  of  Regulation  (EC)  No  1/2003, 
whichever  is  the  earlier. 

( 28 )  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  (EC)  No  1/2003.

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23.  The  opening  of  proceedings  does  not  limit  the  right  of  the  Commission  to  extend  the  scope  and/or 
the  addressees of  the  investigation at  a  later point  in  time. In  case of  such an  extension  of  the  scope  of 
the  investigation,  the  measures  in  paragraphs  (20)  to  (21)  apply. 

24.  In  cartel  cases,  the  opening  of  proceedings  normally  takes  place  simultaneously  with  the  adoption  of 

the  Statement  of  Objections  (see  paragraph  (4)  above),  though  it  may  take  place  earlier. 

25.  Pursuant  to  Article  3  of  Regulation  No  1 ( 29 ),  documents  which  the  Commission  sends  to  an  under­
taking  based  in  the  European  Union  will  be  drafted  in  the  language  of  the  Member  State  in  which  the 
undertaking  is  based. 

2.4.  Languages 

26.  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. 

27.  In  order  to  avoid  delays  due  to  translation,  the  addressees  may  waive  their  right  to  receive  the  text  in 
the  language  resulting  from  the  above  rule  and  opt  for  another  language.  Duly  authorised  language 
waivers  can  be  given  for  some  specific  documents  and/or  for  the  whole  procedure. 

28.  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  No 
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  ques­
tionnaire  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  requests,  while  preserving  the 
rights  of  addressees. 

29.  The  Statement  of  Objections,  Preliminary  Assessment  and  decisions  pursuant  to  Articles  7,  9  and 
23(2)  of  Regulation  (EC)  No  1/2003  are  notified  in  the  authentic  language  of  the  addressee  unless  it 
has  signed  the  above  mentioned  language  waiver. 

30.  Pursuant  to  Article  2  of  Regulation  No  1,  the  reply  and  the  subsequent  correspondence  addressed  to 

the  complainant  will  be  in  the  language  of  their  complaint. 

31.  Participants  in  the  oral  hearing  may  request  to  be  heard  in  an  EU  official  language  other  than  the 
language  of  proceedings.  In  that  case,  interpretation  will  be  provided  during  the  oral  hearing,  as  long 
as  sufficient  advance  notice  of  this  requirement  is  given  to  the  hearing  officer. 

2.5.  Information  requests 

32.  Pursuant  to  Article  18  of  Regulation  (EC)  No  1/2003,  the  Commission  is  empowered  to  require 
information. 
undertakings  and  associations  of  undertakings  to  provide 
(Article  18(2))  or  by  decision 
(‘simple 
requested  by 
Information  can  be 
(Article  18(3)) ( 30 ).  It  should  be  underlined  that  requests  for  information  are  regularly  sent  not  only 
to  the  undertakings  under  investigation, but  also  to  other  undertakings  or  associations of  undertakings 
which  may  have  information  relevant  for  the  case.

it  with  all  necessary 

request’ 

letter 

( 29 )  EEC  Council:  Regulation  No  1  determining  the  languages  to  be  used  by  the  European  Economic  Community  (OJ  17, 

6.10.1958,  p.  385;  Consolidated  version  of  1.1.2007). 

( 30 )  Non-respect  of  an  Article  18(3)  decision  requesting  information  (supplying  incomplete  information  or  not  respecting 
the  time  limit  set  out)  can  lead  to  fines  and  periodic  penalties,  see  Articles  23  and  24  of  Regulation  (EC)  No  1/2003. 
Submitting  incorrect  or  misleading  information  may  lead  to  fines  being  imposed  both  in  case  of  an  Article  18(2) 
letter  and  an  Article  18(3)  decision  (see  Article  23  of  Regulation  (EC)  No  1/2003).

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2.5.1.  Scope  of  request  for  information 

33.  Pursuant  to  Article  18  of  Regulation  (EC)  No  1/2003,  the  Commission  may  require  undertakings  and 
associations  of  undertakings  to  provide  all  necessary  information.  Information  is  necessary,  in 
particular,  if  it  may  enable  the  Commission  to  verify  the  existence  of  the  alleged  infringement 
referred  to  in  the  request.  The  Commission  enjoys  a  margin  of  appreciation  in  this  respect ( 31 ). 

34.  It  is  for  the  Commission  to  define  the  scope  and  the  format  of  the  request  for  information.  Where 
appropriate,  the  Directorate-General  for  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 ( 32 ). 

35.  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),  the 
Directorate-General  for  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. 

2.5.2.  Self-incrimination 

36.  Where  the  addressee  of  a  request  for  information  pursuant  to  Article  18(2)  of  Regulation  (EC)  No 
1/2003  refuses  to  reply  to  a  question  in  such  a  request  invoking  the  privilege  against  self-incrim­
ination,  as  defined  by  the  case  law  of  the  Court  of  Justice  of  the  European  Union ( 33 ),  it  may  refer  the 
matter  in  due  time  following  the  receipt  of  the  request  to  the  hearing  officer,  after  having  raised  the 
matter  with  the  Directorate-General  for  Competition  before  the  expiry  of  the  original  time  limit 
set ( 34 ).  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)  of  Regulation  (EC)  No 
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  Union ( 35 ). 

2.5.3.  Time  limits 

37.  The  request  for  information  specifies  which  information  is  required  and  fixes  the  time  limit  within 

which  the  information  is  to  be  provided. 

38.  Addressees  are  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  reply  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).

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

( 32 )  See  the  Best  Practices  on  the  submission  of  economic  evidence. 
( 33 )  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. 
( 34 )  Article  4(2)(b)  of  the  terms  of  reference  of  the  hearing  officer. 
( 35 )  See  footnote  33.

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39.  If  they  have  difficulties  responding  within  the  time  limit  set,  addressees  may  ask  for  it  to  be  extended. 
A  reasoned  request  should  be  made  or  confirmed  in  writing  (letter  or  e-mail),  sufficiently  in  advance 
of  the  expiry  of  the  time  limit.  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. 

40.  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  set ( 36 ).  The  hearing  officer  shall  decide  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. 

2.5.4.  Confidentiality 

41.  The  cover  letter  of  the  request  for  information  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  the  Implementing  Regulation,  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  shall  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  the  Implementing  Regulation. 

2.5.5.  Meetings  and  other  contacts  with  the  parties  and  third  parties 

42.  During  the  investigative  phase,  the  Directorate-General  for  Competition  may  hold  meetings  (or 
conduct  phone  calls)  with  the  parties  subject  to  the  proceedings,  complainants,  or  third  parties.  In 
particular,  it  will  hold  State  of  Play  meetings  or  may  hold  triangular  meetings  as  outlined  in  Sections 
2.9  or  2.10  below. 

43.  When  a  meeting  takes  place  at  the  request  of  the  parties, complainants  or  third  parties,  they  should  as 
a  general  rule  submit  in  advance  a  proposed  agenda  of  topics  to  be  discussed  at  the  meeting,  as  well 
as  a  memorandum  or  a  presentation  which  covers  these  issues  in  more  detail.  After  meetings  or 
phone  calls  on  substantive  issues,  the  parties,  complainants  or  third  parties  may  substantiate  their 
statements  or  presentations  in  writing. 

44.  Any  written  documentation  prepared  by  the  undertakings  which  attended  a  meeting  that  is 
communicated  to  the  Directorate-General  for  Competition  will  be  put  on  the  file.  A  non-confidential 
version  of  such  documentation,  together  with  a  brief  note  prepared  by  the  Directorate-General  for 
Competition,  will  be  made  accessible  to  the  parties  subject  to  the  investigation  during  their  access  to 
the  file, if  the  case  is further pursued. Subject to  any anonymity  requests ( 37 )  this note  will  mention  the 
undertaking(s)  attending  the  meeting  (or  participating  in  the  phone  call  relating  to  substantive  issues) 
and  the  timing  and  topic(s)  covered  by  the  meeting  (or  phone  call) ( 38 ).  Such  a  brief  note  will  also  be 
prepared  when  the  meeting  takes  place  on  the  Commission's  initiative  (e.g.  State  of  Play  meetings).

( 36 )  Article  4(2)(c)  of  the  terms  of  reference  of  the  hearing  officer. 
( 37 )  See  paragraph  143  below. 
( 38 )  The  provisions  of  this  section  also  apply  to  State  of  Play  meetings  and  triangular  meetings  (see  Section  2.10  below).

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45.  The  Commission  may,  after  a  meeting  or  other  informal  contact  with  the  parties,  complainants  or 
third  parties,  request  that  they  provide  information  in  writing  pursuant  to  Article  18  of  Regulation 
(EC)  No  1/2003  or  invite  them  to  make  a  statement  pursuant  to  Article  19  of  that  Regulation. 

2.5.6.  Power  to  take  statements  (interviews) 

46.  Regulation  (EC)  No  1/2003  and  the  Implementing  Regulation  establish  a  specific  procedure  for  taking 
statements  from  natural  or  legal  persons  who  may  be  in  possession  of  useful  information  concerning 
an  alleged  infringement  of  Articles  101  and  102  TFEU  (see  Article  19  of  Regulation  (EC)  No  1/2003 
and  Article  3  of  the  Implementing  Regulation) ( 39 ). 

47.  The  Commission  may,  under  this  procedure,  interview  by  any  means,  such  as  by  telephone  or  video 
conference,  any  natural  or  legal  person  who  consents  to  be  interviewed  for  the  purpose  of  collecting 
information  relating  to  the  subject  matter  of  an  investigation. 

48.  Before  taking  such  statements,  the  Directorate-General  for  Competition  will  inform  the  interviewee  of 
the  legal  basis  of  the  interview,  its  voluntary  nature  and  the  right  of  the  interviewee  to  consult  a 
lawyer.  The  Directorate-General  for  Competition  will  further  inform  the  interviewee  of  the  purpose  of 
the  interview  and  of  its  intention  to  make  a  record  of  the  interview.  In  practice  this  will  be  done  by 
providing  a  document  explaining  the  procedure  to  be  signed  by  the  interviewee.  In  order  to  enhance 
the  accuracy of  the  statements,  a  copy of  any  recording  will  be  made  available shortly  thereafter to  the 
person  interviewed  for  approval. 

49.  The  procedure  for  taking  statements  pursuant  to  Article  19  of  Regulation  (EC)  No  1/2003  and 
Article  3  of  the  Implementing  Regulation  applies  only  when  it  is  expressly  agreed  between  the 
interviewee  and  the  Directorate-General  for  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  the  Directorate-General  for 
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. 

2.6.  Inspections 

50.  In  the  context  of  an  investigation  the  Commission  has  the  power  to  conduct  inspections  at  the 
premises  of  an  undertaking  and  in  certain  circumstances  at  other  premises,  including  private 
premises.  The  Commission's  practice  in  relation  to  inspections  at  the  premises  of  an  undertaking  is 
currently  described  in  an  explanatory  note  available  on  the  website  of  the  Directorate-General  for 
Competition ( 40 ). 

2.7.  Legal  professional  privilege 

51.  According  to  the  case  law  of  the  Court  of  Justice  of  the  European  Union ( 41 ),  the  main  features  of 
which are  summarised below,  certain  communications  between  lawyer and  client  may, subject to  strict 
‘LPP’)  and  thus
conditions,  be  protected  by 

legal  professional  privilege  (also  referred  to  as 

( 39 )  This power to  take statements  pursuant to  Article 19  of  Regulation (EC)  No  1/2003  should be  distinguished from  the 
power  of  the  Commission,  during  an  inspection,  to  ask  any  representative  or  member  of  staff  of  the  undertaking  or 
association  of  undertakings  for  explanations  on  facts  or  documents  relating  to  the  subject  matter  and  purpose  of  the 
inspection  and  to  record  the  answers,  pursuant  to  Article  20(2)(e)  of  Regulation  (EC)  No  1/2003. 

( 40 )  See:  http://ec.europa.eu/competition/antitrust/legislation/legislation.html 
( 41 )  The  exclusion  of  certain  communications  between  lawyers  and  clients  from  the  Commission's  powers  of  enquiry 
derives  from  the  general  principles  of  law  common  to  the  laws  of  the  Member  States  as  clarified  by  the  Court  of 
Justice  of  the  European  Union:  Case  155/79  AM&S  Europe  Limited  v  Commission  (hereinafter  ‘AM&S’)  [1982]  ECR 
1575;  Order  in  Case  T-30/89  Hilti  v  Commission  (hereinafter  ‘Hilti’)  [1990]  ECR  II-163;  Joined  Cases  T-125/03  and 
T-253/03  Akzo  Nobel  Chemicals  and  Akcros  Chemicals  v  Commission  (hereinafter  ‘Akzo’)  [2007]  ECR  II-3523,  as 
confirmed  by  Case  C-550/07  P,  Akzo  Nobel  Chemicals  and  Akcros  Chemicals  v  Commission, 
judgment  of 
14  September  2010.

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be  confidential  as  regards  the  Commission,  as  an  exception  to  the  latter’s  powers  of  investigation  and 
examination  of  documents ( 42 ).  Communications  between  lawyer  and  client  are  protected  by  legal 
professional  privilege  provided  that  they  are  made  for  the  purpose  and  interest  of  the  exercise  of  the 
client’s  rights  of  defence  in  competition  proceedings  and  that  they  emanate  from  independent 
lawyers ( 43 ). 

52.  It  is  for  the  undertaking  claiming  the  protection  of  legal  professional  privilege  with  regard  to  a  given 
document  to  provide  the  Commission  with  appropriate  justification  and  relevant  material  to 
substantiate  its  claim,  while  not  being  bound  to  disclose  the  contents  of  such  document ( 44 ). 
Redacted  versions  removing  the  parts  covered  by  legal  professional  privilege  should  be  submitted. 
Where  the  Commission  considers  that  such  evidence  has  not  been  provided,  it  may  order  production 
of  the  document  in  question  and,  if  necessary,  impose  on  the  undertaking  fines  or  periodic  penalty 
payments  for  its  refusal  either  to  supply  such  additional  necessary  evidence  or  to  produce  the 
contested  document ( 45 ). 

53.  In  many  cases,  a  mere  cursory  look  by  Commission  officials,  normally  during  an  inspection,  at  the 
general  layout,  heading,  title  or  other  superficial  features  of  a  document  will  enable  them  to  confirm 
or  not  the  accuracy of  the  reasons  invoked  by  the  undertaking.  However,  an  undertaking  is  entitled  to 
refuse to  allow the  Commission  officials to  take  even  a  cursory look,  provided that it  gives appropriate 
reasons  to  justify  why  such  a  cursory  look  would  be  impossible  without  revealing  the  content  of  the 
document ( 46 ). 

54.  Where,  in  the  course  of  an  inspection,  the  Commission  officials  consider  that  the  undertaking  has:  (i) 
not  substantiated  its  claim  that  the  document  concerned  is  covered  by  legal  professional  privilege;  (ii) 
has  only  invoked  reasons  that,  according  to  the  case  law,  cannot  justify  such  protection;  or  (iii)  bases 
itself  on  factual  assertions  that  are  manifestly  wrong,  the  Commission  officials  may  immediately  read 
the  contents  of  the  document  and  take  a  copy  of  it  (without  using  the  sealed  envelope  procedure).

( 42 )  The  Court  of  Justice  of  the  European  Union  has  considered  that  the  protection  of  the  confidentiality  of  communi­
cations  between  lawyer  and  client  is  an  essential  corollary  to  the  full  exercise  of  the  rights  of  defence  (AM&S, 
paragraphs  18  and  23).  In  any  event,  the  principle  of  legal  professional  privilege  does  not  prevent  a  lawyer’s  client 
from  disclosing  the  written  communications  between  them  if  the  client  considers  that  it  is  in  his  interest  to  do  so 
(AM&S,  paragraph  28). 

( 43 )  AM&S,  paragraphs  21,  22  and  27.  According  to  the  case  law,  the  substantive  scope  of  the  protection  of  legal 
professional  privilege  covers  also,  further  to  written  communications  with  an  independent  lawyer  made  for  the 
purposes  of  the  exercise  of  the  client’s  rights  of  defence,  (i)  internal  notes  circulated  within  an  undertaking  which 
are  confined  to  reporting  the  text  or  the  content  of  communications  with  independent  lawyers  containing  legal 
advice  (Hilti,  paragraphs  13,  16  to  18)  and  (ii)  preparatory  documents  prepared  by  the  client,  even  if  not  exchanged 
with  a  lawyer  or  not  created  for  the  purpose  of  being  sent  physically  to  a  lawyer,  provided  that  they  were  drawn  up 
exclusively  for  the  purpose  of  seeking  legal  advice  from  a  lawyer  in  exercise  of  the  rights  of  the  defence  (Akzo, 
paragraphs 120  to  123).  As  for  the  personal  scope  of  the  protection  of  legal  professional  privilege,  it  only  applies  to 
the  extent  that  the  lawyer  is  independent  (i.e.  not  bound  to  his  client  by  a  relationship  of  employment);  in-house 
lawyers  are  explicitly  excluded  from  legal  professional  privilege,  irrespective  of  their  membership  of  a  Bar  or  Law 
Society  or  their  subjection  to  professional  discipline  and  ethics  or  protection  under  national  law:  AM&S,  paragraphs 
21,  22,  24  and  27;  Akzo,  paragraphs  166  to  168;  confirmed  by  ECJ  in  its  judgment  of  14  September  2010,  Case 
C-550/07  P,  paragraphs  44  to  51.  Moreover,  according  to  the  case  law,  protection  under  legal  professional  privilege 
applies only  to  lawyers  entitled  to  practise their  profession  in  one  of  the  EU  Member  States,  regardless of  the  country 
in  which  the  client  lives  (AM&S,  paragraphs  25  and  26),  and  does  not  extend  to  other  professional  advisers  such  as 
patent  attorneys,  accountants,  etc.  Finally,  it  shall  be  observed  that  the  protection  of  legal  professional  privilege 
covers,  in  principle,  written  communications  exchanged  after  the  initiation  of  the  administrative  procedure  that  may 
lead  to  a  decision  on  the  application  of  Articles  101  and/or  102  TFEU  or  to  a  decision  imposing  a  pecuniary 
sanction  on  the  undertaking;  this  protection  can  also  extend  to  earlier  written  communications  made  for  the  purpose 
of  exercising  rights  of  the  defence  and  which  have  a  relationship  to  the  subject  matter  of  that  procedure  (AM&S, 
paragraph  23). 

( 44 )  Hence,  the  mere  fact  that  an  undertaking  claims  that  a  document  is  protected  by  legal  professional  privilege  is  not 
sufficient to  prevent the Commission  from  reading that  document if  the  undertaking produces no  relevant material of 
such  a  kind  (Akzo,  paragraph  80;  see  below).  In  order  to  substantiate  its  claim,  the  undertaking  concerned  may,  in 
particular,  inform  the  Directorate-General  for  Competition  of  the  author  of  the  document  and  for  whom  it  was 
intended, explain the respective duties and  responsibilities of  each, and  refer to  the  objective and  the  context  in  which 
the  document  was  drawn  up.  Similarly,  it  may  also  mention  the  context  in  which  the  document  was  found,  the  way 
in  which  it  was  filed  and  any  related  documents  (Akzo,  paragraph  80). 

( 45 )  AM&S,  paragraphs  29  to  31.  The  undertaking  may  subsequently  bring  an  action  for  the  annulment  of  such  a 

decision,  where  appropriate,  coupled  with  a  request  for  interim  relief  (AM&S,  paragraphs  32;  see  below). 

( 46 )  Akzo,  paragraphs  81  and  82.

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However,  where,  in  the  course  of  an  inspection,  the  Commission  officials  consider  that  the  material 
presented  by  the  undertaking  is  not  of  such  a  nature  as  to  prove  that  the  document  in  question  is 
protected  by  legal  professional  privilege  as  defined  by  the  case  law  of  the  Court  of  Justice  of  the 
European  Union,  in  particular  where  that  undertaking  refuses  to  give  the  Commission  officials  a 
cursory  look  at  a  document,  but  where  it  cannot  be  excluded  that  the  document  may  be  protected, 
the  officials  may  place  a  copy  of  the  contested  document  in  a  sealed  envelope  and  bring  it  to  the 
Commission's  premises,  with  a  view  to  a  subsequent  resolution  of  the  dispute. 

55.  The  hearing  officer  may  be  asked  by  undertakings  or  associations  of  undertakings  to  examine  claims 
that  a  document  required  by  the  Commission  in  the  exercise  of  Articles  18,  20  or  21  of  Regulation 
(EC)  No  1/2003  and  which  was  withheld  from  the  Commission  is  covered  by  legal  professional 
privilege,  within  the  meaning  of  the  case  law,  if  the  undertaking  has  been  unable  to  resolve  the 
matter  with  the  Directorate-General for  Competition ( 47 ).  The  undertaking  making  the  claim  may  refer 
the  matter  to  the  hearing  officer if  they  consent  to  the  hearing  officer viewing the  information  claimed 
to  be  covered  by  legal  professional  privilege  and  any  other  material  necessary  for  the  hearing  officer’s 
assessment. Without  revealing the  potentially  privileged content  of  the  information,  the  hearing  officer 
shall  communicate  to  the  director  responsible  and  the  undertaking  or  association  of  undertakings 
concerned  his  or  her  preliminary  view,  and  may  take  appropriate  steps  to  promote  a  mutually 
acceptable  resolution. 

56.  Where  no  resolution  is  reached,  the  hearing  officer  may  formulate  a  reasoned  recommendation  to  the 
competent  member  of  the  Commission,  without  revealing  the  potentially  privileged  content  of  the 
document.  The  party  making  the  claim  shall  receive  a  copy  of  this  recommendation.  If  the  matter  is 
not  resolved  on  this  basis, the  Commission  will  examine  the  matter  further. Where  appropriate, it  may 
adopt  a  decision  rejecting  the  claim. 

57.  In  cases  where  the  undertaking  has  claimed  the  protection  of  legal  professional  privilege  and  has 
provided reasons substantiating its claims, the Commission  (with the exception of  the hearing officer if 
a  claim  has  been  referred  to  him  or  her  on  the  basis  of  Article  4(2)(a)  of  the  terms  of  reference  of  the 
hearing  officer)  will  not  read  the  contents  of  the  document  before  it  has  adopted  a  decision  rejecting 
this  claim  and  allowed  the  undertaking  concerned  to  refer  the  matter  to  the  Court  of  Justice  of  the 
European  Union.  Thus,  if  the  company  brings  an  action  for  annulment  and  applies  for  interim  relief 
within  the  specified  time  limit,  the  Commission  will  not  open  the  sealed  envelope  and  will  not  read 
the  documents  until  the  Court  of  Justice  of  the  European  Union  has  decided  on  this  application  for 
interim  measures ( 48 ). 

58.  Undertakings  making  clearly unfounded  claims  for  protection  under  legal  professional  privilege merely 
as  delaying  tactics  or  opposing,  without  objective  justification,  any  cursory  look  at  the  documents 
during  an  investigation  may  be  subject  to  fines  pursuant  to  Article  23(1)  of  Regulation  (EC)  No 
1/2003,  if  the  other  conditions  of  this  provision  are  met.  Similarly,  such  actions  may  be  taken  into 
account  as  aggravating circumstances  in  any  decision  imposing  a  fine  for  infringement  of  Articles  101 
and/or  102  TFEU ( 49 ). 

2.8.  Information  exchange  between  competition  authorities 

59.  In  the  context  of  an  investigation  the  Commission  may  also  exchange  information  with  national 
competition  authorities  pursuant  to  Article  12  of  Regulation  (EC)  No  1/2003.  The  Commission’s 
practice  in  relation  to  these  exchanges  is  currently  described  in  the  Commission  notice  on 
cooperation  within  the  Network  of  Competition  Authorities ( 50 ). 

2.9.  State  of  Play  meetings 

60.  Throughout  the  procedure  the  Directorate-General  for  Competition  endeavours  to  give,  on  its  own 
initiative  or  upon  request,  parties  subject  to  the  proceedings  ample  opportunity  for  open  and  frank 
discussions  —  taking  into  account  the  stage  of  the  investigation  —  and  to  make  their  points  of  view 
known.

( 47 )  Article  4(2)(a)  of  the  terms  of  reference  of  the  hearing  officer. 
( 48 )  Thus,  the  Commission  will  wait  until  the  time  limit  for  bringing  an  action  against  the  rejection  decision  has  expired 
before  reading  the  contents  of  the  contested  document.  However,  since  such  an  action  does  not  have  suspensory 
effect,  it  is  for  the  undertaking  concerned  to  make  a  prompt  application  for  interim  relief  seeking  suspension  of 
operation  of  the  decision  rejecting  the  request  for  legal  professional  privilege. 

( 49 )  Akzo,  paragraph  89. 
( 50 )  OJ  C  101,  27.4.2004,  p.  43.

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61.  In  this  respect  the  Commission  will  offer  State  of  Play  meetings  at  certain  stages  of  the  procedure. 
State  of  Play  meetings,  which  are  completely  voluntary  in  nature  for  the  parties,  can  contribute  to  the 
quality  and  efficiency  of  the  decision  making  process  and  to  ensure  transparency  and  communication 
between  the  Directorate-General for  Competition  and  the  parties, notably  to  inform  them  of  the  status 
of  the  proceedings  at  key  points  in  the  procedure.  State  of  Play  meetings  will  only  be  offered  to  the 
parties  being  investigated  and  not  to  the  complainant  (except  where  the  Commission  has  opened 
proceedings  pursuant  to  Article  11(6)  of  Regulation  (EC)  No  1/2003  and  intends  to  inform  the 
complainant  that  it  will  reject  its  complaint  by  formal  letter  under  Article  7(1)  of  the  Implementing 
Regulation)  nor  to  third  parties.  Where  several  parties  are  investigated,  State  of  Play  meetings  will  be 
offered  to  each  party  separately.  In  cartel  proceedings,  a  State  of  Play  meeting  will  be  offered  as 
provided  for  in  paragraph  (65). 

2.9.1.  Format  of  the  State  of  Play  meetings 

62.  State  of  Play  meetings  are  normally  conducted  at  the  Commission's  premises,  but  if  appropriate,  they 
may  also  be  held  by  telephone  or  videoconference.  Senior  management  of  the  Directorate-General  for 
Competition  (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. 

2.9.2.  Timing  of  the  State  of  Play  meetings 

63.  The  Directorate-General  for  Competition  will  offer  State  of  Play  meetings  at  several  key  stages  of  the 
case.  These  correspond,  in  principle  (although  not  normally  in  the  context  of  cartel  proceedings),  to 
the  following  events: 

1)  Shortly  after  the  opening  of  proceedings:  the  Directorate-General  for  Competition  will  inform  the 
parties  subject  to  the  proceedings  of  the  issues  identified  at  this  stage  and  of  the  anticipated  scope 
of  the  investigation.  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.  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.  The  Directorate-General  for  Competition  will  normally  at  this  stage  indicate  a 
tentative  timetable  for  the  case.  Such  tentative  timetable  will,  if  appropriate,  be  updated  at 
following  State  of  Play  meetings. 

2)  At  a  sufficiently  advanced  stage  in  the  investigation:  this  meeting  gives  the  parties  subject  to  the 
proceedings  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  the  Directorate-General  for  Competition  and  by  the  parties  to  clarify  certain  issues  and 
facts  relevant  for  the  outcome  of  the  case. 

64.  Where  a  Statement  of  Objections  is  issued, the  parties will  also  be  offered  a  State  of  Play meeting  after 
their  reply  to  the  Statement  of  Objections  or  after  the  Oral  Hearing,  should  one  be  held:  the  parties 
will  at  this  meeting  normally  be  informed  of  the  Commission's  preliminary  view  on  how  it  intends  to 
pursue  the  case  further. 

65.  In  the  context  of  cartel  proceedings  one  State  of  Play  meeting  will  be  offered  after  the  oral  hearing. 
Furthermore, two  specific State of  Play Meetings will be  offered in  the  context of  procedures leading to 
commitment  decisions  (see  Section  4  below)  and  to  complainants  where  the  Commission  has  opened 
proceedings under  Article 11(6)  of  Regulation  (EC)  No  1/2003  and  intends  to  inform  the  complainant 
that  it  will  reject  its  complaint  by  formal  letter  under  Article  7(1)  of  the  Implementing  Regulation  (see 
Section  5  below). 

66.  State  of  Play  meetings  do  not  in  any  way  preclude  discussions  between  the  parties,  complainants  or 
third  parties  and  the  Directorate-General  for  Competition  on  substance  or  on  timing  issues  on  other 
occasions  throughout  the  procedure  as  appropriate.

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2.10.  Triangular  meetings 

67.  In  addition  to  bilateral  meetings  between  the  Directorate-General  for  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.  Such  a  meeting  will  be  organised  if  the  Directorate-General for  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. 

68.  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  the  Directorate- 
General  for  Competition  (Director  or  Deputy  Director-General).  A  triangular  meeting  does  not  replace 
the  formal  Oral  Hearing. 

69.  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  Directorate-General  for  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. 

2.11.  Meetings  with  the  Commissioner  or  the  Director-General 

70.  If  the  parties  so  request,  it  is  normal  practice  to  offer  senior  officers  of  the  parties  subject  to  the 
proceedings  and  the  complainant  an  opportunity  to  discuss  the  case  either  with  the  Director-General 
for  competition,  the  Deputy  Director-General  for  antitrust,  or  if  appropriate,  with  the  Commissioner 
responsible  for  Competition.  The  senior  officers  may  be  accompanied  by  their  legal  and/or  economic 
advisors. 

2.12.  Review  of  key  submissions 

71.  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 
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  complaint ( 51 ).  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’,  also  known  as  ‘lack  of  European  Union  interest’). 

72.  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. 

73.  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  example,  replies  to  requests 
for  information.  After  this  early  stage,  other  such  submissions  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.

( 51 )  A  non-confidential  version  of  the  reply  of  the  party  subject  to  the  investigation  to  the  complaint  may  thereafter  be 

provided  to  the  complainant.

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74.  The  review  of  key  submissions  will  not  be  offered  in  the  context  of  cartel  proceedings  (see  paragraph 

(4)  above). 

2.13.  Possible  outcomes  of  the  investigation  phase 

75.  Once  the  Commission  has  reached  a  preliminary  view  of  the  main  issues  raised  by  a  case,  different 

procedural  paths  may  be  envisaged. 

—  The  Commission  may  decide  to  proceed  towards the  adoption  of  a  Statement  of  Objections  with  a 
view  to  adopting  a  prohibition  decision  relating  to  all  or  some  of  the  issues  identified  at  the 
opening  of  proceedings  (see  Section  3  below). 

—  The  parties  subject  to  the  investigation  may  consider  offering  commitments  which  address  the 
competition  concerns  arising  from  the  investigation,  or  at  least  show  their  willingness  to  discuss 
such  a  possibility; in  that  case,  the  Commission  may  decide  to  engage  in  discussion  with  a  view  to 
a  commitment  decision  (see  Section  4  below). 

—  The  Commission  may  decide  that  there  are  no  grounds  to  continue  the  proceedings with  regard to 
all  or  some  of  the  parties  and  close  the  proceedings  accordingly.  If  the  case  originated  via  a 
complaint,  the  Commission  shall,  before  closing  the  case,  give  the  complainant  the  possibility  to 
express  its  views  (see  Section  5  on  rejection  of  complaints). 

76.  When  closing  a  case  in  relation  to  one  or  several  parties  in  multi-party  proceedings  at  an  early  stage 
after  proceedings  have  been  formally  opened,  the  Commission  will  normally  not  only  notify  the 
decision  to  those  parties  but  also  in  those  cases  where  the  opening  of  proceedings  has  been  made 
public,  note  the  closure  on  its  website  and/or  issue  a  press  release.  The  same  applies  in  cases  where 
proceedings  have  not  been  formally  opened  but  the  Commission  has  already  made  public  its 
investigation  (e.g.  by  having  confirmed  that  inspections  have  taken  place). 

3.  PROCEDURES  LEADING  TO  A  PROHIBITION  DECISION 

77.  An  important  procedural  step  in  procedures  which  may  lead  to  a  prohibition  decision  is  the  adoption 
of  a  Statement  of  Objections.  However,  the  adoption  of  a  Statement  of  Objections  does  not  prejudge 
the  final  outcome  of  the  investigation. It  may  well  lead  to  the  closing  of  the  case  without  the  adoption 
of  a  prohibition  decision  or  a  commitment  decision. 

3.1.  Right  to  be  heard 

78.  The  right  of  the  parties  to  the  proceedings  to  be  heard  before  a  final  decision  adversely  affecting  their 
interests  is  taken  is  a  fundamental  principle of  EU  law.  The  Commission  is  committed  to  ensuring  that 
the  effective  exercise  of  the  right  to  be  heard  is  respected  in  its  proceedings ( 52 ). 

79.  The  hearing  officers  have  the  function  of  safeguarding  the  effective  exercise  of  procedural  rights,  in 
particular  the  right  to  be  heard,  in  competition  proceedings ( 53 ).  The  hearing  officers  carry  out  their 
tasks  in  full  independence  from  the  Directorate-General for  Competition,  and  disputes  arising  between 
the  latter  and  any  party  subject  to  the  proceedings  can  be  brought  before  the  relevant  hearing  officer 
for  resolution. 

80.  The  hearing  officer  is  directly  involved  throughout  antitrust  proceedings,  including  in  particular  the 
organisation  and  conduct  of  the  oral  hearing,  if  one  is  held.  After  the  oral  hearing,  and  taking  into 
account  the  parties'  written  replies  to  the  Statement  of  Objections,  the  hearing  officer  reports  to  the 
Commissioner  responsible  for  Competition  on  the  hearing  and  the  conclusions  to  be  drawn  from  it. 
Moreover,  prior  to  a  final  decision  being  taken  by  the  College  of  Commissioners,  the  hearing  officer 
informs  it  whether the  right to  exercise procedural rights effectively has  been  respected throughout the 
administrative  proceedings.  The  final  report  is  sent  to  the  parties  subject  to  the  proceedings,  together 
with  the  Commission's  final  decision,  and  is  published  in  the  Official  Journal  of  the  European  Union.

( 52 )  Article  27  of  Regulation  (EC)  No  1/2003,  mentioned  above. 
( 53 )  Article  1  of  terms  of  reference  of  the  hearing  officer.

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3.1.1.  Statement  of  Objections 

81.  Before  adopting  a  decision  adversely  affecting  the  interests  of  an  addressee,  in  particular,  a  decision 
finding  an  infringement  of  Article  101  and  102  TFEU  and  ordering  its  termination  (Article  7  of 
Regulation  (EC)  No  1/2003)  and/or  imposing  fines  (Article  23  of  Regulation  (EC)  No  1/2003),  the 
Commission  will  give  the  parties  subject  to  the  proceedings  the  opportunity  to  be  heard  on  the 
matters  to  which  the  Commission  has  objected ( 54 ).  The  Commission  will  do  this  by  adopting  a 
Statement  of  Objections,  which  is  notified  to  each  of  the  parties  subject  to  the  proceedings. 

3.1.1.1.  P u r p o s e  a n d  c o n t e n t  o f  t h e  S t a t e m e n t  o f  O b j e c t i o n s 

82.  The  Statement  of  Objections  sets  out  the  preliminary  position  of  the  Commission  on  the  alleged 
infringement  of  Articles  101  and/or  102  TFEU,  after  an  in-depth  investigation.  Its  purpose  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).  It  thus  constitutes  an  essential 
procedural  safeguard  which  ensures  that  the  right  to  be  heard  is  observed.  The  parties  concerned  will 
be  provided  with  all  the  information  they  need  to  defend  themselves  effectively  and  to  comment  on 
the  allegations  made  against  them. 

3.1.1.2.  P o s s i b l e  i m p o s i t i o n  o f  r e m e d i e s  a n d  a r g u m e n t s  o f  t h e  p a r t i e s 

83.  If  the  Commission  intends  to  impose  remedies  on  the  parties,  in  accordance  with  Article  7(1)  of 
Regulation (EC)  No  1/2003,  the Statement  of  Objections will indicate the  remedies envisaged that  may 
be  necessary  to  bring  the  suspected  infringement  to  an  end.  The  information  given  should  be 
sufficiently  detailed  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  (EC)  No  1/2003,  the  Statement  of  Objections  will  spell  out  why  there  is  no  equally 
effective  behavioural  remedy  or  why  the  Commission  considers  any  equally  effective  behavioural 
remedy  would  be  more  burdensome  for  the  undertaking  concerned  than  the  structural  remedy. 

3.1.1.3.  P o s s i b l e  i m p o s i t i o n  o f  f i n e s  a n d  a r g u m e n t s  o f  t h e  p a r t i e s 

84.  The  Statement  of  Objections  will  clearly  indicate  whether  the  Commission  intends  to  impose  fines  on 
the  undertakings,  should  the  objections  be  upheld  (Article  23  of  Regulation  (EC)  No  1/2003).  In  such 
cases,  the  Statement  of  Objections  will  refer  to  the  relevant  principles  laid  down  in  the  Guidelines  on 
setting  fines ( 55 ).  In  the  Statement  of  Objections  the  Commission  will  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  and  that  the  infringement  was  committed  intentionally  or  by  negligence.  The  Statement 
of  Objections  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. 

85.  Although  under  no  legal  obligation  in  this  respect,  in  order  to  increase  transparency,  the  Commission 
will  endeavour  to  include  in  the  Statement  of  Objections  (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  comment. 

86.  Should  the  Commission  intend  to  depart  in  its  final  decision  from  the  elements  of  fact  or  of  law  set 
out  in  the  Statement  of  Objections  to  the  disadvantage  of  one  or  more  parties  or  should  the 
Commission 
inculpatory  evidence,  the  party  or  parties 
concerned  will  always  be  given  the  opportunity  to  make  their  views  known  thereon  in  an  appropriate 
manner.

intend  to  take  account  of  additional 

( 54 )  Article  27  of  Regulation  (EC)  No  1/2003. 
( 55 )  Guidelines  on  the  method  of  setting  fines  imposed  pursuant  to  Article  23(2)(a)  of  Regulation  (EC)  No  1/2003  (OJ 

C  210,  1.9.2006,  p.  2).

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87.  In  the  Statement  of  Objections  the  Commission  will  also  inform  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,  according  to  point  35  of  the  Guidelines  on  setting  fines ( 56 ). 

88.  The  undertakings  making  such  a  request  should  be  prepared  to  provide,  detailed  and  up-to-date 
financial  information  to  support  their  request.  Usually,  the  Directorate-General  for  Competition  will 
be  in  contact  with  the  parties  in  order  to  collect  additional  information  and/or  clarify  the  information 
obtained,  which  will  allow  the  parties  to  bring  further  relevant  information  to  the  attention  of  the 
Commission.  When  assessing  an  undertaking's  claim  that  it  is  unable  to  pay, the  Commission  looks  in 
particular  at  the  financial  statements  for  recent  years  and  forecasts  for  the  current  and  coming  years; 
at  ratios  measuring  the  financial  strength,  profitability,  solvency  and  liquidity;  and  the  undertaking's 
relations  with  outside  financial  partners  and  with  shareholders.  The  Commission  also  examines  the 
specific  social  and  economic  context  of  each  undertaking  and  assesses  whether  the  fine  would  likely 
cause  its  assets  to  lose  significantly  their  value ( 57 ). 

89.  The  assessment  of  the  financial  situation  is  carried out  for  all  undertakings  that  have  made  an  inability 
to  pay  request  close  to  the  adoption  of  the  decision  and  on  the  basis  of  up-to-date  information, 
irrespective  of  when  the  request  was  submitted. 

90.  The  parties  may  also  present  their  arguments  as  to  the  matters  that  may  be  of  importance  for  the 

possible  imposition  of  fines  at  the  oral  hearing ( 58 ). 

3.1.1.4.  T r a n s p a r e n c y 

91.  In  order  to  enhance  the  transparency  of  the  proceedings,  the  Commission  will,  as  a  general  rule, 
publish  a  press  release  setting  out  the  key  issues  in  the  Statement  of  Objections  shortly  after  it  is 
received  by  its  addressees.  This  press  release  will  explicitly  state  that  the  Statement  of  Objections  does 
not  predetermine  the  final  outcome  of  the  proceedings,  once  the  parties  have  been  heard. 

3.1.2.  Access  to  file 

92.  The  addressees  of  the  Statement  of  Objections  are  granted  access  to  the  Commission's  file,  in 
accordance  with  Article  27(2)  of  Regulation  (EC)  No  1/2003  and  Articles  15  and  16  of  the  Imple­
menting  Regulation,  so  as  to  allow  them  to  effectively  express  their  views  on  the  preliminary 
conclusions  reached  by  the  Commission  in  its  Statement  of  Objections. 

93.  The practicalities of  access to  the  file, as well  as detailed indications on  the  type of  documents  that will 
be  accessible  and  confidentiality  issues,  are  covered  by  a  separate  notice  on  access  to  file ( 59 ).  Granting 
is  primarily  the  responsibility  of  the  Directorate-General  for 
access  to  the  Commission  file 
Competition.  The  hearing  officers  will  decide  disputes  between  the  parties,  the 
information 
providers  and  the  Directorate-General  for  Competition  over  access  to  information  contained  in  the 
Commission’s  file  in  accordance  with  the  notice  on  access  to  file,  the  applicable  regulations  and  the 
principles  laid  down  in  the  relevant  case  law.  Lastly,  special  rules  govern  access  to  corporate 
statements  in  cartel  cases  and  settlement  procedures ( 60 ). 

94.  Efficient  access  to  file  depends  to  a  large  extent  on  the  cooperation  of  the  parties  and  other  under­
takings  having  provided  information  included  in  the  file.  As  noted  in  paragraph  (41)  above, 
information  providers  must,  in  accordance  with  Article  16(3)  of  the  Implementing  Regulation, 
substantiate  their  confidentiality  claims  and  provide  a  non-confidential  version  of  the  information. 
Such  a  non-confidential  version  must  be  provided  in  the  same  format  as  the  confidential  information, 
replacing deleted  passages with  summaries thereof. Unless  otherwise agreed, a  non-confidential  version 
should  be  provided  at  the  same  time  as  the  original  submission.  In  the  case  of  a  failure  to  provide  a 
non-confidential 
contain 
assumed 
version, 
confidential  information ( 61 ).

the  documents  do  not 

it  may  be 

that 

( 56 )  See  footnote  55. 
( 57 )  See  Note  SEC(2010)  737/2  of  12  June  2010. 
( 58 )  See  paragraph  107  below. 
( 59 )  Notice  on  the  rules  for  access  to  the  Commission  file,  mentioned  above. 
( 60 )  Commission  Notice  on  Immunity  from  fines  and  reduction  of  fines  in  cartel  cases  (mentioned  above),  paragraphs 31 
to  35  and  Commission  Notice  on  the  conduct  of  settlement  procedures  (mentioned  above),  paragraphs  35  to  40. 

( 61 )  See  Article  16(4)  of  the  Implementing  Regulation.

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3.1.3.  Procedures  for  facilitating  the  exchange  of  confidential  information  between  parties  to  the  proceedings 

95.  Further  to  the  possibilities  contemplated  in  the  notice  on  access  to  the  file,  two  additional  procedures 
may  be  used  for  the  purpose  of  alleviating  the  burden  of  drawing  up  non-confidential  versions  of 
submissions:  the  negotiated  disclosure  to  a  restricted  circle  of  persons  and  the  data  room  procedure. 

96.  First,  the  Directorate-General  for  Competition  may  accept  in  certain  cases,  especially  those  with  a  very 
voluminous  file  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  which  the  latter  have  provided  to  the 
Commission,  including  confidential  information.  The  party  being  granted  access  to  file  limits  access 
to  the  information  to  a  restricted  circle  of  persons  (to  be  decided  by  the  parties  on  a  case-by-case 
basis,  if  requested,  under  the  supervision  of  the  Directorate-General  for  Competition).  To  the  extent 
that  such  negotiated  access  to  the  file  would  amount  to  restricting  a  party's  right  to  have  access  to  the 
investigation  file,  that  party  must  waive  its  right  to  access  to  the  file  vis-à-vis  the  Commission. 
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  must  waive  their  rights  to  confidentiality  vis-à-vis  the  Commission. 

97.  Second,  the  Directorate-General  for  Competition  may  organise  the  so-called  data  room  procedure. 
This  procedure  is  typically  used  for  the  disclosure  of  quantitative  data  relevant  for  econometric 
analysis.  Under  this  procedure,  part  of  the  file,  including  confidential  information,  is  gathered  in  a 
room,  at  the  Commission's  premises  (the  data  room).  Access  to  the  data  room  is  granted  to  a 
restricted  group  of  persons,  i.e.  the  external  legal  counsel  and/or  the  economic  advisers  of  the 
party  (collectively  known  as  the  ‘advisers’),  under  the  supervision  of  a  Commission  official.  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.  The  data 
room  is  equipped  with  several  PC  workstations  and  the  necessary  software  (and  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  data  room  during  normal  working  hours  and,  if  justified,  access  may  be  provided  for 
several  days.  The  advisers  are  strictly  prohibited  from  taking  copies,  notes  or  summaries  of  the 
documents  and  may  only  remove  a  final  report  from  the  data  room,  which  is  to  be  verified  by 
the  case  team  in  order  to  ensure  that  it  does  not  contain  any  confidential  information.  Each  adviser 
will  sign  a  confidentiality  agreement  and  will  be  presented  with  the  conditions  of  special  access  to  the 
data  room  before  entering.  To  the  extent  that  the  use  of  such  a  data  room  procedure  would  restrict  a 
party's  right  to  have  full  access  to  the  investigation  file,  the  procedural  guarantees  provided  for  in 
Article  8  of  the  terms  of  reference  of  the  hearing  officer  apply. 

98.  The  hearing  officer  may  decide  pursuant to  Article 8(4)  of  the  terms  of  reference of  the  hearing  officer 
that  the  data  room  procedure  shall  be  used  in  those  limited  cases  where  access  to  certain  confidential 
information is indispensible 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  decisions  if  he  or  she  considers  that  the  data  room  is 
not  appropriate  and  that  access  to  the  information  should  be  given  in  a  different  form  (e.g.  a  non- 
confidential  version). 

3.1.4.  Written  reply  to  the  Statement  of  Objections 

99.  Pursuant to  Article 27(1)  of  Regulation (EC)  No  1/2003,  the  Commission  shall give the addressees of a 
Statement  of  Objections  the  opportunity  of  being  heard  on  matters  to  which  the  Commission  has 
taken  objection.  The  written  reply  gives  the  parties  subject  to  the  proceedings  the  opportunity  to  set 
out  their  views  on  the  objections  raised  by  the  Commission. 

100.  The  time  limit  for  the  reply  to  the  Statement  of  Objections  will  take  into  account  both  the  time 
required  for  the  preparation  of  the  submission  and  the  urgency  of  the  case ( 62 ).  The  addressees  of  the 
to
to 
Statement  of  Objections  have 

a  minimum  period  of 

four  weeks 

right 

the 

( 62 )  See  Case  T-44/00  Mannesmannröhren-Werke  AG  v  Commission  [2004]  ECR  II-2223,  para.  65.

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reply  in  writing ( 63 ).  A  longer  period  (normally,  a  period  of  two  months,  although  this  may  be  longer 
or  shorter  depending  on  the  circumstances  of  the  case)  will  be  granted  by  the  Directorate-General  for 
Competition  taking  into  account,  inter  alia,  the  following  elements: 

—  the  size  and  complexity  of  the  file  (e.g.  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);  and/or 

—  whether  the  addressee  of  the  statement  of  objection  making  the  request  has  had  prior  access  to 

information  (e.g.  key  submissions,  leniency  applications);  and/or 

—  any  other  objective  obstacles  which  may  be  faced  by  the  addressee  of  the  Statement  of  Objections 

making  the  request  in  providing  its  observations. 

101.  An  addressee  of  a  Statement  of  Objections  may,  within  the  original  time  limit,  seek  an  extension  of 
the  time  limit  to  reply  by  means  of  a  reasoned  request  to  the  Directorate-General  for  Competition  at 
least  10  working  days  before  the  expiry  of  the  original  time  limit.  If  such  a  request  is  not  granted  or 
the addressee of  the  Statement  of  Objections disagrees with the  length  of  the  extension  granted, it  may 
refer  the  matter  to  the  hearing  officer  for  review  before  the  expiry  of  the  original  time  limit. 

102.  The  time  limit  will  start  to  run  from  the  date  when  access  to  the  main  documents  of  the  file  has  been 
granted ( 64 ).  In  particular,  time  limits  will  normally  not  start  running  before  the  addressee  of  the 
Statement  of  Objections  has  been  offered  access  to  documents  which  are  only  accessible  on 
Commission  premises,  e.g.  corporate  statements.  The  fact  that  access  to  the  entire  file  has  not  been 
granted  does  not  have  the  automatic  consequence  that  a  time  limit  has  not  started  running ( 65 ). 

103.  Where  required by  the  rights of  defence ( 66 ),  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. 

3.1.5.  Rights  of  complainants  and  interested  third  persons 

104.  Complainants  are  closely  associated  with  the  proceedings.  Pursuant  to  Article  6(1)  of  the  Imple­
menting  Regulation,  they  are  entitled  to  receive  a  non-confidential  version  of  the  Statement  of 
Objections,  and  the  Commission  shall  set  a  time  limit  in  which  the  complainant  may  make  its 
views  known  in  writing.  A  request  for  an  extension  of  this  time  limit  may  be  made  by  way  of  a 
reasoned  request  to  the  Commission  in  due  time  before  the  expiry  of  the  original  time  limit.  If  such  a 
request  is  not  granted  or  the  Directorate-General  for  Competition  and  the  complainant  disagree  about 
a  requested  extension,  the  complainant  may  refer  the  matter  to  the  hearing  officer,  by  means  of  a 
reasoned  request ( 67 ).

( 63 )  See  Article  17(2)  of  the  Implementing  Regulation.  For  the  rule  applicable  to  settlement  procedures,  see  Article  10(a) 

of  the  Implementing  Regulation. 

( 64 )  In  most  cases,  parties  will  be  given  access  to  the  complete  file  by  means  of  a  CD-Rom  containing  all  documents  in 

the  file. 

( 65 )  See  Case T-44/00,  Mannesmannröhren-Werke  AG  v  Commission, [2004]  ECR  II-2223,  para 65.  See  also recital 15  of  the 
terms  of  reference  of  the  hearing  officer  which  states  ‘In  exceptional  circumstances,  the  hearing  officer  may  suspend 
the  running  of  the  time  period  in  which  an  addressee  of  a  statement  of  objections  should  reply  to  that  statement 
until  a  dispute  about  access  to  file  has  been  resolved,  if  the  addressee  would  not  be  in  a  position  to  reply  within  the 
deadline  granted  and  an  extension  would  not  be  an  adequate  solution  at  that  point  in  time.’ 

( 66 )  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,  paras  69-73;  Case  T-52/03  Knauf  v  Commission  [2008] 
ECR  II-115,  paras  41-47,  67-79;  Case  C-407/08P  Knauf  v  Commission,  judgment  of  1  July  2010  (not  yet  reported), 
paras  23-28. 

( 67 )  Article  9(2)  of  the  terms  of  reference  of  the  hearing  officer.

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105.  Upon  application,  the  Commission  shall  also  hear  other  natural  or  legal  persons  which  can  demon­
strate  a  sufficient  interest  in  the  outcome  of  the  procedure  in  accordance  with  Article  13  of  the 
Implementing  Regulation.  The  hearing  officer  takes  the  decision  on  whether  such  third  persons  are 
admitted  to  the  proceedings.  Persons  who  have  been  admitted  shall  be  informed  in  writing  of  the 
nature  and  subject  matter  of  the  procedure  and  a  time  limit  shall  be  set  by  the  Commission  in  which 
they  may  make  their  views  known  in  writing.  A  request  for  an  extension  of  this  time  limit  may  be 
made  by  way  of  a  reasoned  request  to  the  Directorate-General  for  Competition  in  due  time  before  the 
expiry  of  the  original  time  limit.  If  such  a  request  is  not  granted  or  the  Directorate-General  for 
Competition  and  the  third  person  admitted  to  the  proceedings  disagree  about  a  requested 
extension  the  third  person  may  refer  the  matter  to  the  hearing  officer,  by  means  of  a  reasoned 
request ( 68 ). 

3.1.6.  Oral  hearing 

106.  Every  party  to  which  a  Statement  of  Objections  has  been  addressed  has  the  right  to  an  oral  hearing. 
An  oral  hearing  may  be  requested  within  the  time  limit  set  for  their  written  reply  to  the  Statement  of 
Objections. 

107.  The  oral  hearing  allows  the  parties to  develop  orally  the  arguments  that  they  submitted  in  writing  and 
to  supplement,  where  appropriate,  the  written  evidence,  or  to  inform  the  Commission  of  other 
matters  that  may  be  relevant.  The  oral  hearing  also  allows  the  parties  to  present  their  arguments 
as  to  the  matters  that  may  be  of  importance  for  the  possible  imposition  of  fines.  The  fact  that  the 
hearing  is  not  public  guarantees  that  all  attendees  can  express  themselves  freely.  Any  information 
disclosed  during  the  hearing  shall  only  be  used  for  the  purposes  of  judicial  and/or  administrative 
proceedings  for  the  application  of  Articles  101  and  102  TFEU  and  shall  not  be  disclosed  or  used  for 
any  other  purpose  by  any  participant  in  a  hearing.  This  restriction  also  applies  to  the  recording  of  the 
oral  hearing,  as  well  as  any  visual  presentations.  Should  information  disclosed  during  the  oral  hearing 
be  used  for  a  purpose  other  than  judicial  and/or  administrative  proceedings  for  the  application  of 
Articles  101  and  102  TFEU  at  any  point  in  time  with  the  involvement  of  outside  counsel,  the 
Commission  may  report  the  incident  to  the  bar  of  that  counsel,  with  a  view  to  disciplinary  action. 

108.  In  view  of  the  importance  of  the  oral  hearing,  it  is  the  practice  of  the  Directorate-General  for 
Competition  to  ensure  the  continuous  presence  of  senior  management  of  the  Directorate-General 
for  Competition  (Director  or  Deputy  Director-General),  together  with  the  case  team  of  Commission 
officials  responsible  for  the  investigation.  The  competition  authorities  of  the  Member  States,  the  Chief 
Economist's  team,  and  associated Commission  services ( 69 ),  including  the  Legal  Service, are  also  invited 
to  attend  by  the  hearing  officer. 

3.1.7.  Supplementary  Statement  of  Objections  and  letter  of  facts 

109.  If, after the  Statement  of  Objections  has been  issued, new  evidence is  identified  which the  Commission 
intends  to  rely  upon  or  if  the  Commission  intends  to  change  its  legal  assessment  to  the  disadvantage 
of  the  undertakings  concerned,  the  undertakings  in  question  shall  be  given  an  opportunity  to  present 
their  observations  on  these  new  aspects. 

110.  If  additional  objections  are  issued  or  the  intrinsic  nature  of  the  infringement  with  which  an  under­
taking  is  charged  is  modified ( 70 ),  the  Commission  shall  notify  this  to  the  parties  in  a  Supplementary 
Statement  of  Objections.  Before  doing  so,  a  State  of  Play  meeting  will  normally  be  offered  to  the 
parties.  The  rules  on  setting  the  time  limit  for  the  reply  to  a  Statement  of  Objections  apply  (see 
above),  although  a  shorter  time  limit  will  typically  be  set  in  this  context. 

111.  If,  however,  the  objections  already  raised  against  the  undertakings  in  the  Statement  of  Objections  are 
only  corroborated  by  new  evidence  that  the  Commission  intends  to  rely  on,  it  will  bring  this  to  the 
attention  of  the  parties  concerned  by  a  simple  letter  (letter  of  facts) ( 71 ).  The  letter  of  facts  gives 
undertakings  the  opportunity  to  provide  written  comments  on  the  new  evidence  within  a  fixed

( 68 )  See  footnote  67. 
( 69 )  See  further the  document  ‘Key  actors and  checks and  balances’,  available on  the  Directorate-General for  Competition's 

website. 

( 70 )  For  example a  supplementary Statement  of  Objections would  be  issued if  the  new  evidence allows the  Commission  to 

extend  the  duration  of  the  infringement,  the  geographic  scope  or  the  nature  or  scope  of  the  infringement. 

( 71 )  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  its  comments 
(see  paragraph  103  above),  this  does  not  constitute  a  letter  of  facts.

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time  limit.  A  request  for  an  extension  of  this  time  limit  may  be  made  by  way  of  a  reasoned  request  to 
the  Commission.  If  the  Directorate-General  for  Competition  and  the  addressee  disagree  about  a 
requested  extension,  the  addressee  may  refer  the  matter  to  the  hearing  officer,  by  means  of  a 
reasoned  request. 

112.  The  procedural  rights  which  are  triggered  by  the  sending  of  the  Statement  of  Objections  apply  mutatis 
mutandis where a Supplementary Statement  of  Objections is issued, including the right of  the parties to 
request  an  oral  hearing.  Access  to  all  evidence  gathered  between  the  initial  Statement  of  Objections 
and  the  Supplementary  Statement  of  Objections  will  also  be  provided.  If  a  letter  of  facts  is  issued, 
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  relating  to  the  issue(s)  in  question. 

3.2.  Possible  outcomes  of  this  phase 

113.  If,  having regard  to  the  parties’  replies given  in  writing  and/or  at  the  oral  hearing and  on  the  basis  of  a 
thorough  assessment  of  all  information  obtained  up  to  this  stage  the  objections  are  substantiated,  the 
Commission  will  proceed  towards  adopting  a  decision  finding  an  infringement  of  the  relevant 
competition  rules.  The  Commission  can  also  decide  to  withdraw  certain  objections  and  to  continue 
towards  a  decision  finding  an  infringement  for  the  remaining  part. 

114.  If,  however,  the  objections  at  this  stage  are  not  substantiated,  the  Commission  will  close  the  case.  In 

this  case,  the  information  measures  described  above  in  paragraph  (76)  would  also  apply. 

4.  COMMITMENT  PROCEDURES 

115.  Article  9  of  Regulation 

(EC)  No  1/2003  provides  the  possibility  for  undertakings  to  offer 
commitments  that  are  intended  to  address  the  competition  concerns  identified  by  the  Commission. 
If  the  Commission  accepts these  commitments,  it  may  adopt  a  decision  which makes  them  binding  on 
the  parties  subject  to  the  proceedings.  It  is  at  the  discretion  of  the  Commission  whether  or  not  to 
accept  commitments.  In  light  of  the  principle  of  proportionality, the  Commission  must  verify  that  the 
commitments  address  the  identified  competition  concerns  and  that  the  commitments  offered  do  not 
manifestly  go  beyond  what  is  necessary to  address  these  concerns.  When  carrying out  that  assessment, 
the  Commission  will  take  into  consideration the  interests  of  third parties. However, it  is  not  obliged  to 
compare  such  voluntary  commitments  with  measures  it  could  impose  under  Article  7  of  Regulation 
(EC)  No  1/2003  and  to  regard  as  disproportionate  any  commitments  which  go  beyond  such 
measures ( 72 ). 

116.  Commitment  decisions  are  not  appropriate  in  cases  where  the  Commission  considers  that  the  nature 
of  the  infringement  calls  for  the  imposition  of  a  fine ( 73 ).  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. 

117.  The  main  difference  between  a  prohibition  decision  pursuant  to  Article  7  and  a  commitment  decision 
pursuant  to  Article  9  of  Regulation  (EC)  No  1/2003  is  that  the  former  contains  a  finding  of  an 
infringement  while  the  latter  makes  the  commitments  binding  without  concluding  whether  there  was 
or  still  is  an  infringement.  A  commitment  decision  concludes  that  there  are  no  longer  grounds  for 
action  by  the  Commission.  Moreover,  commitments  are  offered  by  undertakings  on  a  voluntary  basis. 
Conversely,  by  an  Article  7  decision,  the  Commission  can  impose  remedies  which  are  necessary  to 
bring  the  infringement  to  an  end  (and/or  fines)  on  undertakings.

( 72 )  Case  C-441/07  P  Commission  v  Alrosa,  judgment  of  29  June  2010,  paragraph  120. 
( 73 )  See  recital  13  of  Regulation  (EC)  No  1/2003.

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4.1.  Initiation  of  commitment  discussions 

118.  Undertakings  may  contact  the  Directorate-General  for  Competition  at  any  time  to  explore  the 
Commission’s  readiness  to  pursue  the  case  with  the  aim  of  reaching  a  commitment  decision.  The 
Commission  encourages  undertakings  to  signal  at  the  earliest  possible  stage  their  interest  in  discussing 
commitments. 

119.  A  State  of  Play  meeting  will  be  offered  to  the  parties  at  that  point.  The  Directorate-General  for 
Competition  will  indicate  to  the  undertaking  the  timeframe  within  which  the  discussions  on 
potential  commitments  should  be  concluded  and  will  present  to  them  the  preliminary  competition 
concerns  arising  from  the  investigation. 

120.  In  order  to  avoid  delays  due  to  translation, that  meeting  and  the  following  steps  of  the  procedure may 
be  conducted  in  an  agreed  language  on  the  basis  of  a  duly  provided  ‘language  waiver’  by  which  the 
parties  accept  to  receive  and  submit  documents  in  a  language  other  than  the  language  of  the  Member 
State  in  which  they  are  located  (see  above  Section  2.4). 

4.2.  Preliminary  Assessment 

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. 
Pursuant  to  Article  9  of  Regulation  (EC)  No  1/2003  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.  Prior  to  issuing  the  Preliminary  Assessment, 
the  parties  will  also  be  offered  a  State  of  Play  meeting. 

122.  The  Preliminary Assessment  will  serve as  a  basis for  the  parties to  formulate appropriate commitments 
addressing  the  competition  concerns  expressed  by  the  Commission,  or  to  better  define  previously 
discussed  commitments. 

123.  If  a  Statement  of  Objections  has  already  been  sent  to  the  parties,  commitments  may  nevertheless  still 
be  accepted,  in  appropriate  cases.  In  these  circumstances,  a  Statement  of  Objections  fulfils  the 
requirements  of  a  Preliminary  Assessment,  as  it  contains  a  summary  of  the  main  facts  as  well  as 
an  assessment  of  the  competition  concerns  identified. 

124.  Parties  to  the  proceedings  which  offer  commitments  to  meet  the  concerns  expressed  to  them  by  the 
Commission  in  its  Preliminary Assessment  may  call upon  the  hearing officer at  any  time  during  which 
the  procedure  under  Article  9  is  followed  in  relation  to  the  effective  exercise  of  their  procedural 
rights ( 74 ). 

125.  The  Commission  or  the  undertaking(s)  concerned  may  decide  at  any  moment  during  the  commitment 
procedure  to  discontinue  their  discussions.  The  Commission  can  then  normally  continue  formal 
proceedings  pursuant  to  Article  7  of  Regulation  (EC)  No  1/2003 ( 75 ). 

4.3.  Submission  of  the  commitments 

126.  After  receiving  the  Preliminary  Assessment,  the  parties  will  normally  have  one  month  to  formally 
submit  their  commitments.  If  the  parties  have  received  a  Statement  of  Objections  and  subsequently 
decide  to  submit  commitments,  the  time  limit  to  reply  to  the  Statement  of  Objections  will  generally 
not  be  extended.  The  submission  of  commitments  does  not  necessarily  imply  that  the  parties  agree 
with  the  Commission's  Preliminary  Assessment. 

127.  The  parties  can  offer  commitments  of  a  behavioural  or  structural  nature  that  address  adequately  the 
competition  concerns  identified.  Commitments  which  do  not  adequately  remedy  these  concerns  will 
not  be  accepted  by  the  Commission.

( 74 )  Article  15(1)  of  the  terms  of  reference  of  the  hearing  officer. 
( 75 )  See  Section  3  of  this  notice.

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128.  Commitments  must  be  unambiguous  and  self-executing ( 76 ).  If  need  be,  a  trustee  can  be  appointed  to 
assist  the  Commission  in  their  implementation  (monitoring  and/or  divestiture  trustee).  Furthermore, 
when  commitments  cannot  be  implemented  without  the  agreement  of  third  parties  (e.g.  where  a  third 
party  that  would  not  be  a  suitable  buyer  under  the  commitments  holds  a  pre-emption  right),  the 
undertaking  should  submit  evidence  of  the  third  party's  agreement. 

4.4.  The  ‘market  test’  and  subsequent  discussions  with  the  parties 

identified.  The  Commission  must  publish 

129.  In  accordance  with  Article  27(4)  of  Regulation  (EC)  No  1/2003  the  Commission  must  conduct  a 
market  test  of  the  commitments  before  making  them  binding  by  decision.  The  Commission  will  only 
conduct  a  market  test  if  it  considers  that  the  commitments  offered  prima  facie  address  the 
competition  concerns 
in  the  Official  Journal  of  the 
European  Union  a  notice  (market  test  notice)  containing  a  concise  summary  of  the  case  and  the 
main  content  of  the  commitments,  whilst  respecting  the  obligations  of  professional  secrecy ( 77 ).  It 
will  also  publish  on  the  Directorate-General  for  Competition's  website  the  full  text  of  the 
commitments ( 78 )  in  the  authentic  language ( 79 ).  In  order  to  enhance  the  transparency  of  the 
process,  the  Commission  will  also  publish  a  press  release  setting  out  the  key  issues  of  the  case  and 
the  proposed  commitments.  If  the  case is  based  on  a  complaint, the  Commission  will  at  this  stage  also 
inform  the  complainant  about  the  market  test  and  invite  the  complainant  to  submit  comments. 
Similarly,  third  parties  admitted  to  the  procedure  will  be 
invited  to  submit 
comments.  At  the  Commission's  discretion,  triangular  meetings  with  the  parties  and  the  complainant 
and/or  admitted  third  parties  may  be  held. 

informed  and 

130.  Interested  third  parties  are  invited  to  submit  their  observations  within  a  fixed  time  limit  of  not  less 

than  one  month  in  accordance  with  Article  27(4)  of  Regulation  (EC)  No  1/2003. 

131.  The  Commission  may  send  the  market  test  document  to  other  parties  that  may  be  potentially 

concerned  by  the  outcome  of  the  case  (e.g.  consumer  associations). 

132.  After  receipt  of  the  replies  to  the  market  test,  a  State  of  Play  meeting  will  be  organised  with  the 
parties.  The  Commission  will  inform  the  parties  orally  or  in  writing  of  the  substance  of  the  replies. 

133.  Where  the  Commission  is  of  the  view,  on  the  basis  of  the  results  of  the  market  test  (and  any  other 
information  available)  that  the  competition  concerns  identified  have  not  been  addressed  or  that 
changes  in  the  text  of  the  commitments  are  necessary  to  make  them  effective,  this  will  be  brought 
to  the  attention  of  the  undertakings  offering  the  commitments.  If  the  latter  are  willing  to  address  the 
problems  identified  by  the  Commission,  they  should  submit  an  amended  version  of  the  commitments. 
If  the  amended  version  of  the  commitments  alters  the  very  nature  or  scope  of  the  commitments,  a 
new  market  test  will  be  conducted.  If  the  undertakings  are  unwilling  to  submit  an  amended  version  of 
the  commitments,  where  this  is  required  by  the  Commission’s  assessment  of  the  result  of  the  market 
test,  the  Commission  can  revert  to  the  Article  7  procedure. 

5.  PROCEDURE  FOR  REJECTION  OF  COMPLAINTS 

134.  Formal  complaints  are  an  important  tool  in  the  implementation  of  the  competition  rules  and  are 
therefore  carefully  examined  by  the  Commission.  However,  after  appropriate  assessment  of  the  factual 
and  legal circumstances of  the  individual case, the  Commission  may  reject a  complaint  pursuant to  the 
grounds  and  procedure  set  out  below ( 80 ).

( 76 )  That  is,  their  implementation  must  not  be  dependant  on  the  will  of  a  third  party  which  is  not  bound  by  the 

commitments. 

( 77 )  Article  28  of  Regulation  (EC)  No  1/2003. 
( 78 )  Non-confidential  version. 
( 79 )  Without  translation. 
( 80 )  See  also  Commission  notice  on  the  handling  of  complaints  (mentioned  above).

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5.1.  Grounds  for  rejection 

135.  The  rejection  of  complaints  can  be  based  on  ‘insufficient  grounds  for  acting’  (also  known  as  ‘lack  of 
European  Union  interest’),  lack  of  competence  or  lack  of  evidence  to  establish  the  existence  of  an 
infringement. 

136.  Rejections  based  on  ‘insufficient  grounds  for  acting’ ( 81 )  concern  in  particular  complaints  where,  given 
the  limited  likelihood  of  establishing  the  proof  of  the  alleged  infringements  and  the  substantial 
investigatory  resources  which  the  Commission  would  have  to  invest  in  order  to  verify  their  existence, 
allocating  the  resources  necessary  to  further  investigate  the  case  would  be  disproportionate, in  light  of 
its  expected  limited  impact  on  the  functioning  of  the  internal  market  and/or  the  possibility  of  the 
complainant  to  have  recourse  to  other  means ( 82 ). 

137.  The  Commission  may  also  reject  complaints  for  lack  of  substantiation  (when  the  complainant  fails  to 
submit  even  a  minimum  of  prima  facie  evidence  necessary  to  substantiate  an  infringement  of  Articles 
101  and/or  102  TFEU)  or  on  substantive  grounds  (absence  of  an  infringement). 

138.  If  a  national  competition  authority  is  dealing  or  has  already  dealt  with  the  same  case ( 83 ),  the 
Commission  shall  inform  the  complainant  accordingly.  In  such  a  situation,  the  complainant  may 
withdraw  the  complaint.  If  the  complainant  maintains  the  complaint,  the  Commission  may  reject  it 
by  decision  pursuant  to  Article  13  of  Regulation  (EC)  No  1/2003  and  in  accordance  with  Article  9  of 
the  Implementing  Regulation ( 84 ).  If  a  national  court  is  dealing  or  has  already dealt  with  the  same  case, 
the  Commission  may  reject  the  complaint  based  on  ‘insufficient  grounds  for  acting’ ( 85 ). 

5.2.  Procedure 

139.  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  case  may 
be  rejected.  Once  informed,  the  complainant  may  decide  to  withdraw  the  complaint.  Otherwise,  the 
Commission  will  inform  the  complainant  by  a  formal  letter  pursuant  to  Article  7(1)  of  the  Imple­
menting  Regulation  of  its  preliminary  conclusion  that  there  are  insufficient  grounds  for  acting  and  set 
a  time  limit  for  its  written  observations ( 86 ).  In  this  context,  the  complainant  has  the  right  to  request 
access  to  the  documents  on  which  the  Commission  bases  its  provisional  assessment ( 87 ).  If  in  the 
course  of  its  examination  of  the  complaint,  the  Commission  has  opened  proceedings  pursuant  to 
Article  11(6)  of  Regulation  (EC)  No  1/2003  a  State  of  Play  meeting  will  be  offered  to  the  complainant 
prior  to  sending  such  a  formal  letter.  The  time  limit  set  in  the  formal  letter  shall  be  at  least  four 
weeks ( 88 ).  The  time  limit  will  start  to  run  from  the  date  when  access  to  the  main  documents  on 
which  the  assessment  was  made  has  been  granted.  Where  appropriate  and  upon  reasoned  request  to 
the  Directorate-General  for  Competition  made  before  the  expiry  of  the  original  time  limit,  the  time 
limit  may  be  extended ( 89 ).  If  such  a  request  is  not  granted  or  the  Directorate-General  for  Competition 
and  the  complainant  disagree  about  the  extension  requested,  the  addressee  may  refer  the  matter  to  the 
hearing  officer,  by  means  of  a  reasoned  request ( 90 ).

( 81 )  Cf.  in  particular  Case  T-24/90,  Automec  II,  [1992]  ECR  II-2223  and  Case  C-119/97  P,  Ufex,  [1999]  ECR  I-1341. 
( 82 )  The  Commission  notice  on  the  handling  of  complaints  lists  in  paragraph  44  certain  criteria  that  can  be  used  in 
isolation  or  combination  for  rejections  on  the  grounds  of  lack  of 
‘European  Union  interest’.  Moreover,  the 
Commission  identified  in  its  Report  on  Competition  Policy  2005  some  criteria  that  it  could  use  to  decide 
whether  or  not  there  is  ‘European  Union  interest’.  See  also  Case  T-427/08,  Confédération  européenne  des  associations 
d'horlogeurs-réparateurs  (CEAHR)  v  Commission,  not  yet  reported. 

( 83 )  The  notion  of  same  case  essentially  implies:  infringement  of  the  same  nature,  same  product  market,  same  geographic 

market,  at  least  one  of  the  same  undertakings,  same  period  of  time. 
( 84 )  Paragraph  25  of  the  Commission's  notice  on  the  handling  of  complaints. 
( 85 )  See  Annual  Report  on  Competition  Policy  2005,  adopted  in  June  2006,  p.  25  ff. 
( 86 )  Article  7(1)  of  the  Implementing  Regulation;  paragraph  68  of  the  Commission's  notice  on  the  handling  of 

complaints. 

( 87 )  Article 8  of  Regulation of  the  Implementing  Regulation; paragraph 69  of  the  Commission's  notice  on  the  handling  of 

complaints. 

( 88 )  Article  17(2)  of  the  Implementing  Regulation. 
( 89 )  Article  17(4)  of  the  Implementing  Regulation. 
( 90 )  See  footnote  67.

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140.  If  the  complainant  does  not  react  to  the  above  mentioned  letter  of  the  Commission  within  the  time 
limit,  the  complaint  shall  be  deemed  to  have  been  withdrawn  pursuant  to  Article  7(3)  of  the 
Implementing  Regulation.  The  complainant  will  be  informed  accordingly  about  the  administrative 
closure  of  the  case. 

141.  If  the  submissions  of  the  complainant  in  response  to  the  above  mentioned  letter  of  the  Commission, 
does  not  lead  the  Commission  to  a  different  assessment  of  the  complaint,  it  will  reject  the  complaint 
by  formal  decision  pursuant  to  Article  7(2)  of  the  Implementing  Regulation.  If  the  submissions  of  the 
complainant  lead  to  a  different  assessment  of  the  complaint,  the  Commission  will  continue  its 
investigation. 

6.  LIMITS  ON  THE  USE  OF  INFORMATION 

142.  Information  exchanged  in  the  course  of  these  procedures,  in  particular  in  the  context  of  access  to  file 
and  review  of  key  submissions,  shall  only  be  used  for  the  purposes  of  judicial  or  administrative 
proceedings  for  the  application  of  Articles  101  and  102  TFEU ( 91 ). 

143.  At  all  stages  of  the  proceedings,  the  Commission  will  respect  genuine  and  justified  requests  from 
complainants  or  from  information  providers  regarding  the  confidential  nature  of  their  submissions  or 
contacts  with  the  Commission,  including,  where  appropriate,  their  identity,  in  order  to  protect  their 
legitimate  interests  (in  particular  in  case  of  possible  retaliation)  and  to  avoid  discouraging  them  from 
coming  forward  to  the  Commission ( 92 ). 

144.  Commission  officials  and  the  members  of  the  Advisory  Committee  are  bound  by  the  obligation  of 
professional  secrecy  set  out  in  Article  28  of  Regulation  (EC)  No  1/2003.  They  are  therefore  prohibited 
from  disclosing  any  information  of  the  kind  covered  by  this  obligation  which  they  have  acquired  or 
exchanged  in  the  context  of  the  investigation  and  the  preparation  of,  and  the  deliberations  in,  the 
Advisory  Committee.  As  regards  the  Advisory  Committee,  its  members  also  must  not  reveal  the 
opinion  of  the  Advisory  Committee  prior  to  its  publication,  if  any,  or  any  information  concerning 
the  deliberations  which  led  to  the  formulation  of  the  opinion. 

7.  ADOPTION,  NOTIFICATION  AND  PUBLICATION  OF  DECISIONS 

145.  All  decisions  pursuant  to  Articles  7,  9,  23  and  24  of  Regulation  (EC)  No  1/2003  are  adopted  by  the 

Commission,  on  a  proposal  of  the  Commissioner  responsible  for  competition  policy. 

146.  Immediately  after  the  decision  has  been  adopted,  the  addressees  will  be  informed  of  the  decision.  The 
Directorate-General  for  Competition  endeavours  to  send  a  courtesy  copy  to  the  parties.  A  certified 
copy of  the  full text  of  the  decision as  well  as  a  copy of  the  final report of  the  hearing officer will then 
be  notified  to  the  addressees  by  express  courier  service. 

147.  A  press  release  will  be  published  after  the  adoption  of  the  decision  by  the  Commission.  The  press 
release  describes  the  scope  of  the  case  and  the  nature  of  the  infringement.  It  also  indicates  (where 
appropriate)  the  amount  of  fines  for  each  undertaking  concerned  and/or  the  remedies  imposed  or,  in 
decisions  pursuant  to  Article  9  of  Regulation  (EC)  No  1/2003,  the  commitments  rendered  binding. 

148.  The  summary  of  the  decision,  the  hearing  officer's  final  report  as  well  as  the  Opinion  of  the  Advisory 
Committee  will  be  published  shortly  after  the  adoption  of  the  decision  in  the  Official  Journal  of  the 
European  Union  in  all  official  languages ( 93 ).

( 91 )  Cf.  Article  15(4)  of  the  Implementing  Regulation. 
( 92 )  See  Article  16(1)  of  Regulation  (EC)  No  1/2003. 
( 93 )  With  the  exception  of  Irish  (see  Article  2  of  Council  Regulation  (EC)  No  920/2005  of  13  June  2005).

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149.  In  addition  to  the  requirements set  out  in  Article 30(1)  of  Regulation  (EC)  No  1/2003,  the  Directorate- 
General  for  Competition  will  endeavour  to  publish  as  soon  as  possible  on  its  website  a  non-confi­
dential  version  of  the  decision  in  the  authentic  languages  as  well  as  in  additional  languages,  if  such 
versions  are  available.  A  non-confidential  version  of  the  decision  will  also  be  sent  to  the  complainant. 
The  addressees  of  the  decision  will  normally  be  asked  to  provide  the  Commission  within  two  weeks 
with  a  non-confidential  version  of  the  decision  and  to  approve  the  summary.  Should  disputes  arise 
regarding  the  deletion  of  business  secrets,  a  provisional  version  of  the  decision  excluding  all 
information  for  which  confidentiality  has  been  requested  will  be  made  available  on  the  website  of 
the  Directorate-General  for  Competition  in  any  of  the  official  languages  in  anticipation  of  a  final 
version  after  resolution  of  the  disputed  parts. 

150.  In  the  interest  of  transparency,  the  Commission  intends  to  make  public  on  its  website  its  decisions 
rejecting  complaints  (pursuant  to  Article  7  of  the  Implementing  Regulation)  or  a  summary  thereof.  If 
required  for  the  protection  of  legitimate  interests  of  the  complainant,  the  published  version  of  the 
decision  will  not  identify  the  complainant.  Decisions  adopted  pursuant  to  Article  7  of  Regulation  (EC) 
No  1/2003  or  modifying  commitments  that  have  been  made  binding  under  Article  9  of  that  Regu­
lation  will  also  be  made  public  on  the  website.  Other  types  of  decisions  may  also  be  published  in 
appropriate  cases. 

8.  FUTURE  REVISION 

151.  This  notice  may  be  revised  to  reflect  changes  in  the  applicable  legislation,  significant  developments  in 
the  case  law  of  the  Court  of  Justice  of  the  European  Union,  or  further  experience  gained  in  applying 
the  competition  rules.  The  Commission  intends  to  engage  in  regular  dialogue  with  the  business  and 
legal  community  and  other  interested  parties  on  the  experience  gained  through  the  application  of  this 
notice,  of  Regulation  (EC)  No  1/2003,  the  Implementing  Regulation  and  its  various  notices  and 
guidelines.

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ANNEX  1

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27.4.2004

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C 101/43

Commission Notice on cooperation within the Network of Competition Authorities

(2004/C 101/03)

(Text with EEA relevance)

1. INTRODUCTION

a

system of

1. Council Regulation (EC) No 1/2003 of 16 December 2002
on the implementation of the rules on competition laid
down in Articles 81 and 82 of the Treaty (1) (hereafter the
‘Council Regulation’)
parallel
creates
competences in which the Commission and the Member
States' competition authorities (hereafter the ‘NCAs’) (2) can
apply Article 81 and Article 82 of the EC Treaty (hereafter
the ‘Treaty’). Together the NCAs and the Commission form
a network of public authorities: they act in the public
interest
to protect
competition. The network is a forum for discussion and
cooperation in the application and enforcement of EC
competition policy. It provides a framework for the coop-
eration of European competition authorities in cases where
Articles 81 and 82 of the Treaty are applied and is the
basis for the creation and maintenance of a common
competition culture in Europe. The network is called
‘European Competition Network’ (ECN).

closely in order

and cooperate

2. The structure of the NCAs varies between Member States.
In some Member States, one body investigates cases and
takes all types of decisions. In other Member States, the
functions are divided between two bodies, one which is in
charge of the investigation of the case and another, often a
college, which is responsible for deciding the case. Finally,
in certain Member States, prohibition decisions and/or
decisions imposing a fine can only be taken by a court:
a prosecutor
competition authority acts
another
to the
bringing the case before that court. Subject
general principle of effectiveness, Article 35 of
the
Council Regulation allows Member States to choose the
body or bodies which will be designated as national
competition authorities and to allocate functions between
them. Under general principles of Community law,
Member States are under an obligation to set up a sanc-
tioning system providing for sanctions which are effective,
infringements of EC
proportionate and dissuasive for
law (3). The enforcement systems of the Member States
differ but
they have recognised the standards of each
other's systems as a basis for cooperation (4).

as

3. The network formed by the competition authorities should
ensure both an efficient division of work and an effective
and consistent application of EC competition rules. The
Council Regulation together with the joint statement of
the Council and the Commission on the functioning of
the European Competition Network sets out
the main
principles of the functioning of the network. This notice
presents the details of the system.

4. Consultations and exchanges within the network are
matters between public enforcers and do not alter any

rights or obligations arising from Community or national
law for companies. Each competition authority remains
fully responsible for ensuring due process in the cases it
deals with.

2. DIVISION OF WORK

2.1. Principles of allocation

5. The Council Regulation is based on a system of parallel
competences in which all competition authorities have the
power to apply Articles 81 or 82 of the Treaty and are
responsible for an efficient division of work with respect
to those cases where an investigation is deemed to be
necessary. At
the same time each network member
retains full discretion in deciding whether or not to inves-
tigate a case. Under this system of parallel competences,
cases will be dealt with by:

— a single NCA, possibly with the assistance of NCAs of

other Member States; or

— several NCAs acting in parallel; or

— the Commission.

6. In most instances the authority that receives a complaint
or starts an ex-officio procedure (5) will remain in charge
of
the case. Re-allocation of a case would only be
envisaged at the outset of a procedure (see paragraph 18
below) where either that authority considered that it was
not well placed to act or where other authorities also
considered themselves well placed to act (see paragraphs
8 to 15 below).

of

protection

competition

7. Where re-allocation is found to be necessary for an
the
effective
Community interest, network members will endeavour to
re-allocate cases
to a single well placed competition
authority as often as possible (6). In any event, re-allocation
should be a quick and efficient process and not hold up
ongoing investigations.

and

of

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8. An authority can be considered to be well placed to deal
with a case if the following three cumulative conditions
are met:

The NCAs in A and B are both well placed to deal with the
case but single action by the NCA in A would be sufficient
and more efficient
than single action by NCA in B or
parallel action by both NCAs.

foreseeable

1. the agreement or practice has substantial direct actual
or
effects on competition within its
territory, is implemented within or originates from its
territory;

2. 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;

3.

it can gather, possibly with the assistance of other auth-
orities, the evidence required to prove the infringement.

for

in order

considered well placed.

9. The above criteria indicate that a material link between the
infringement and the territory of a Member State must
that Member State's competition
exist
can be
authority to be
expected that
those
substantially
Member
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 better placed to act (see below paragraphs
14 and 15).

in most cases the authorities of
competition

States where

is

It

10. It follows that a single NCA is usually well placed to deal
substantially affect

with agreements or practices
competition mainly within its territory.

that

Example 1: Undertakings situated in Member State A are
involved in a price fixing cartel on products that are mainly
sold in Member State A.

The NCA in A is well placed to deal with the case.

11. Furthermore single action of an NCA might also be appro-
priate 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.

Example 2: Two undertakings have set up a joint venture in
Member State A. The joint venture provides services in
Member States A and B and gives rise to a competition
problem. A cease-and-desist order
considered to be
sufficient
to deal with the case effectively because it can
bring an end to the entire infringement. Evidence is located
mainly at the offices of the joint venture in Member State A.

is

12. 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.

Example 3: Two undertakings agree on a market sharing
agreement, restricting the activity of the company located in
Member State A to Member State A and the activity of the
company located in Member State B to Member State B.

The NCAs in A and B are well placed to deal with the case
in parallel, each one for its respective territory.

13. 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 investi-
gative measures, while each authority remains responsible
for conducting its own proceedings.

14. The Commission is particularly well placed if one or
several agreement(s) or practice(s), including networks of
similar
on
competition in more than three Member States (cross-
border markets covering more than three Member States
or several national markets).

agreements

practices,

effects

have

or

Example 4: Two undertakings agree to share markets or fix
prices
the Community. The
territory of
Commission is well placed to deal with the case.

the whole

for

Example 5: An undertaking, dominant
in four different
national markets, abuses its position by imposing fidelity
rebates on its distributors
these markets. The
Commission is well placed to deal with the case. It could
also deal with one national market so as to create a ‘leading’
case and other national markets could be dealt with by
NCAs, particularly if
requires a
separate assessment.

each national market

in all

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15. Moreover, the Commission is particularly well placed to
deal with a case if it is closely linked to other Community
provisions which may be exclusively or more effectively
applied by the Commission,
if the Community interest
the adoption of a Commission decision to
requires
develop Community competition policy when a new
competition issue arises or to ensure effective enforcement.

months, starting from the date of the first information sent
to the network pursuant to Article 11 of the Council
Regulation. During this period, competition authorities
will endeavour
to reach an agreement on a possible
re-allocation and, where relevant, on the modalities for
parallel action.

2.2. Mechanisms of cooperation for the purpose of case
allocation and assistance

2.2.1. Information at the beginning of the procedure (Article 11 of

the Council Regulation)

19. In general, the competition authority or authorities that
is/are dealing with a case at the end of the re-allocation
period should continue to deal with the case until the
completion of the proceedings. Re-allocation of a case
after the initial allocation period of two months should
only occur where the facts known about the case change
materially during the course of the proceedings.

the members of

16. In order to detect multiple procedures and to ensure that
cases are dealt with by a well placed competition
authority,
the network have to be
informed at an early stage of the cases pending before
the various competition authorities (7). If a case is to be
re-allocated, it is indeed in the best interest both of the
network and of
the
re-allocation takes place quickly.

the undertakings concerned that

17. The Council Regulation creates a mechanism for

the
competition authorities to inform each other in order to
ensure an efficient and quick re-allocation of cases. Article
11(3) of the Council Regulation lays down an obligation
for NCAs to inform the Commission when acting under
Article 81 or 82 of the Treaty before or without delay
after commencing the first formal
investigative measure.
It also states that the information may be made available
to other NCAs (8). The rationale of Article 11(3) of the
Council Regulation is to allow the network to detect
multiple procedures and address possible case re-allocation
issues as soon as an authority starts investigating a case.
Information should therefore be provided to NCAs and the
Commission before or just after any step similar to the
measures of investigation that can be undertaken by the
Commission under Articles 18 to 21 of the Council Regu-
lation. The Commission has accepted an equivalent obli-
gation to inform NCAs under Article 11(2) of the Council
Regulation. Network members will inform each other of
pending cases by means of a standard form containing
limited details of the case, such as the authority dealing
and parties
with the
concerned,
suspected
duration of the infringement and the origin of the case.
They will also provide each other with updates when a
relevant change occurs.

the product,
alleged

infringement,

case,
the

territories

the

18. Where case re-allocation issues arise,

resolved swiftly, normally within a period of

they should be
two

2.2.2. Suspension or termination of proceedings (Article 13 of the

Council Regulation)

20. If the same agreement or practice is brought before several
competition authorities, be it because they have received a
complaint or have opened a procedure on their own
initiative, Article 13 of the Council Regulation provides
a legal basis for suspending proceedings or rejecting a
that another authority is
complaint on the grounds
In
dealing with the case or has dealt with the case.
Article 13 of the Council Regulation,
‘dealing with the
case’ does not merely mean that a complaint has been
lodged with another authority.
It means that the other
authority is investigating or has investigated the case on
its own behalf.

21. Article 13 of the Council Regulation applies when another
authority has dealt or is dealing with the competition issue
raised by the complainant, even if
the authority in
question has acted or acts on the basis of a complaint
lodged by a different complainant or as a result of an
ex-officio procedure. This implies that Article 13 of the
Council Regulation can be invoked when the agreement
or practice involves the same infringement(s) on the same
relevant geographic and product markets.

22. An NCA may suspend or close its proceedings but it has
no obligation to do so. Article 13 of the Council Regu-
lation leaves scope for appreciation of the peculiarities of
if a
each individual case. This flexibility is important:
complaint was rejected by an authority following an inves-
tigation of the substance of the case, another authority
may not want
to re-examine the case. On the other
hand, if a complaint was rejected for other reasons (e.g.
the authority was unable to collect the evidence necessary

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to prove the infringement), another authority may wish to
carry out its own investigation and deal with the case. This
flexibility is also reflected, for pending cases, in the choice
open to each NCA as to whether it closes or suspends its
proceedings. An authority may be unwilling to close a case
before the outcome of another authority's proceedings is
clear. The ability to suspend its proceedings allows the
authority to retain its ability to decide at a later point
whether or not to terminate its proceedings. Such flexi-
bility also facilitates consistent application of the rules.

including confidential

another with and use in evidence any matter of fact or of
law,
information. This means that
exchanges of
information may not only take place
between an NCA and the Commission but also between
and amongst NCAs. Article 12 of the Council Regulation
takes precedence over any contrary law of a Member State.
The question whether information was gathered in a legal
manner by the transmitting authority is governed on the
basis of the law applicable to this authority. When trans-
mitting information the transmitting authority may inform
the receiving authority whether
the
the gathering of
information was contested or could still be contested.

23. Where an authority closes or

suspends proceedings
because another authority is dealing with the case,
it
may transfer — in accordance with Article 12 of the
Council Regulation — the information provided by the
complainant to the authority which is to deal with the
case.

24. Article 13 of the Council Regulation can also be applied to
part of a complaint or to part of the proceedings in a case.
It may be that only part of a complaint or of an ex-officio
procedure overlaps with a case already dealt or being dealt
with by another competition authority. In that case, the
competition authority to which the complaint is brought is
entitled to reject part of the complaint on the basis of
Article 13 of the Council Regulation and to deal with
the rest of the complaint in an appropriate manner. The
same principle applies to the termination of proceedings.

25. Article 13 of the Council Regulation is not the only legal
basis for suspending or closing ex-officio proceedings or
rejecting complaints. NCAs may also be able to do so
according
The
procedural
national
Commission may also reject a complaint
for lack of
Community interest or other reasons pertaining to the
nature of the complaint (9).

their

law.

to

2.2.3. Exchange and use of confidential information (Article 12 of

the Council Regulation)

26. A key element of the functioning of the network is the
power of all the competition authorities to exchange and
use information (including documents, statements and
digital
information) which has been collected by them
for the purpose of applying Article 81 or Article 82 of
the Treaty. This power is a precondition for efficient and
effective allocation and handling of cases.

28. The

exchange

in
particular the following safeguards for undertakings and
individuals.

information contains

and use of

(a) First, Article 28 of the Council Regulation states that
‘the Commission and the competition authorities of
the Member States, their officials, servants and other
persons working under the supervision of these auth-
orities (. . .) shall not disclose information acquired or
exchanged by them pursuant to the’ Council Regu-
lation which is ‘of the kind covered by the obligation
legitimate
of professional
secrecy’. However,
interest of undertakings in the protection of
their
business secrets may not prejudice the disclosure of
information necessary to prove an infringement of
term
Articles 81 and 82 of
‘professional
the
Council Regulation is a Community law concept and
includes in particular business secrets and other confi-
common
dential
minimum level
the
Community.

information. This will
of

secrecy’ used in Article 28 of

a
throughout

the Treaty. The

protection

create

the

(b) The second safeguard given to undertakings relates to
information which has been exchanged
the use of
the
within the network. Under Article 12(2) of
information so exchanged can
Council Regulation,
only be used in evidence for
the application of
Articles 81 and 82 of the Treaty and for the subject
matter for which it was collected (10). According to
the
Article
the Council Regulation,
the
information exchanged may also be used for
purpose of applying national competition law in
in the same case. This is, however, only
parallel
possible if the application of national
law does not
lead to an outcome as regards the finding of an
from that under Articles 81
infringement different
and 82 of the Treaty.

12(2)

of

27. Article 12 of the Council Regulation states that for the
purpose of applying Articles 81 and 82 of the Treaty,
the Commission and the competition authorities of the
to provide one
Member States shall have the power

(c) The third safeguard given by the Council Regulation
relates to sanctions on individuals on the basis of
information exchanged pursuant to Article 12(1). The
Council Regulation only provides for sanctions on
undertakings for violations of Articles 81 and 82 of

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are

the

the

they

rights of

the Treaty.

standard as

guaranteed by

law (‘administrative’ or ‘criminal’)

laws also provide for
the Treaty. Some national
sanctions on individuals in connection with violations
of Articles 81 and 82 of
Individuals
normally enjoy more extensive rights of defence (e.g.
to remain silent compared to undertakings
a right
which may only refuse to answer questions which
would lead them to admit that they have committed
an infringement (11)). Article 12(3) of
the Council
Regulation ensures that
information collected from
undertakings cannot be used in a way which would
circumvent the higher protection of individuals. This
provision precludes sanctions being imposed on indi-
viduals on the basis of
information exchanged
pursuant to the Council Regulation if the laws of the
transmitting and the receiving authorities do not
provide for sanctions of a similar kind in respect of
individuals, unless
individual
concerned as regards the collection of evidence have
been respected by the transmitting authority to the
same
the
receiving authority. The qualification of the sanctions
by national
is not
relevant for the purpose of applying Article 12(3) of
the Council Regulation. The Council Regulation
intends
to create a distinction between sanctions
which result in custody and other types of sanctions
such as
fines on individuals and other personal
sanctions. If both the legal system of the transmitting
for
the
and that of
in both Member
sanctions of a similar kind (e.g.
States,
the
staff of an undertaking who has been involved in the
violation of Article 81 or 82 of
the Treaty),
information exchanged pursuant to Article 12 of the
Council Regulation can be used by the receiving
authority. In that case, procedural safeguards in both
systems are considered to be equivalent. If on the other
hand, both legal systems do not provide for sanctions
of a similar kind, the information can only be used if
the same level of protection of the rights of the indi-
vidual has been respected in the case at hand (see
Article 12(3) of
In that
latter case however, custodial sanctions can only be
imposed where both the
and the
receiving authority have the power to impose such a
sanction.

fines can be imposed on a member of

receiving authority provide

the Council Regulation).

transmitting

2.2.4. Investigations (Article 22 of the Council Regulation)

29. The Council Regulation provides that an NCA may ask
another NCA for assistance in order to collect information
on its behalf. An NCA can ask another NCA to carry out
fact-finding measures on its behalf. Article 12 of
the
Council Regulation empowers
the assisting NCA to
transmit the information it has collected to the requesting
NCA. Any exchange between or amongst NCAs and use in
evidence by the requesting NCA of such information shall
be carried out
the
Council Regulation. Where an NCA acts on behalf of
another NCA,
to its own rules of
procedure, and under its own powers of investigation.

in accordance with Article 12 of

it acts pursuant

30. Under Article 22(2) of

the Council Regulation,

the
Commission can ask an NCA to carry out an inspection
on its behalf. The Commission can either adopt a decision
pursuant to Article 20(4) of the Council Regulation or
to the NCA. The NCA officials
simply issue a request
will exercise
in accordance with their
national
law. The agents of the Commission may assist
the NCA during the inspection.

their powers

2.3. Position of undertakings

2.3.1. General

31. All network members will endeavour to make the allo-
cation of cases a quick and efficient process. Given the
fact that the Council Regulation has created a system of
the allocation of cases between
parallel competences,
members of the network constitutes a mere division of
labour where some authorities abstain from acting. The
allocation of cases therefore does not create individual
rights for the companies involved in or affected by an
infringement to have the case dealt with by a particular
authority.

32. If a case is re-allocated to a given competition authority, it
is because the application of the allocation criteria set out
above led to the conclusion that this authority is well
placed to deal with the case by single or parallel action.
The competition authority to which the case is re-allocated
would have been in a position, in any event, to commence
an ex-officio procedure against the infringement.

33. Furthermore, all competition authorities apply Community
competition law and the Council Regulation sets out
mechanisms to ensure that
the rules are applied in a
consistent way.

34. If a case is re-allocated within the network, the under-
takings concerned and the complainant(s) are informed
as
competition authorities
involved.

soon as possible by the

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2.3.2. Position of complainants

the

investigate

35. If a complaint is lodged with the Commission pursuant to
Article 7 of the Council Regulation and if the Commission
the
does not
agreement or practice complained of,
the complainant
has a right to obtain a decision rejecting his complaint.
This
the
Commission implementing regulation (12). The rights of
complainants who lodge a complaint with an NCA are
governed by the applicable national law.

complaint or prohibit

is without prejudice

to Article 7(3) of

suspending or
another

36. In addition, Article 13 of the Council Regulation gives all
rejecting a
NCAs
the possibility of
complaint on the ground that
competition
authority is dealing or has dealt with the same case.
That provision also allows the Commission to reject a
complaint on the ground that a competition authority of
a Member State is dealing or has dealt with the case.
Article 12 of the Council Regulation allows the transfer
of information between competition authorities within the
network subject to the safeguards provided in that Article
(see paragraph 28 above).

2.3.3. Position of applicants

claiming the benefit of a leniency

programme

favourable treatment

37. The Commission considers (13) that it is in the Community
to undertakings
interest
to grant
which co-operate with it
in the investigation of cartel
infringements. A number of Member States have also
adopted leniency programmes (14) relating to cartel inves-
tigations. The aim of these leniency programmes is to
facilitate the detection by competition authorities of
cartel activity and also thereby to act as a deterrent to
participation in unlawful cartels.

the applicant

38. In the absence of a European Union-wide system of fully
harmonised leniency programmes, an application for
leniency to a given authority is not to be considered as
an application for leniency to any other authority. It is
therefore in the interest of
to apply for
competition authorities which have
leniency to all
the Treaty in the
competence to apply Article 81 of
territory which is affected by the infringement and
which may be considered well placed to act against the
infringement in question (15). In view of the importance of
timing in most existing leniency programmes, applicants
will also need to consider whether it would be appropriate
to file leniency applications with the relevant authorities
simultaneously. It is for the applicant to take the steps
which it considers appropriate to protect
its position
with respect to possible proceedings by these authorities.

39. As for all cases where Articles 81 and 82 of the Treaty are
applied, where an NCA deals with a case which has been

it must
initiated as a result of a leniency application,
inform the Commission and may make the information
available to other members of the network pursuant to
Article 11(3) of the Council Regulation (cf. paragraphs
16 et subseq.). The Commission has accepted an equivalent
the
obligation to inform NCAs under Article 11(2) of
Council Regulation. In such cases, however,
information
submitted to the network pursuant to Article 11 will not
be used by other members of the network as the basis for
starting an investigation on their own behalf whether
under the competition rules of the Treaty or, in the case
of NCAs, under their national competition law or other
laws (16). This is without prejudice to any power of the
authority to open an investigation on the basis of
to
information received from other sources or, subject
paragraphs 40 and 41 below,
to request, be provided
with and use information pursuant to Article 12 from
any member of
including the network
member to whom the leniency application was submitted.

the network,

40. Save

following any other

as provided under paragraph 41,

transmitted to another member of

information
voluntarily submitted by a leniency applicant will only
be
the network
pursuant to Article 12 of the Council Regulation with
the consent of the applicant. Similarly other information
that has been obtained during or following an inspection
or by means of or
fact-finding
measures which,
in each case, could not have been
carried out except as a result of the leniency application
will only be transmitted to another authority pursuant to
Article 12 of the Council Regulation if the applicant has
consented to the
transmission to that authority of
information it has voluntarily submitted in its application
for
encourage
leniency applicants to give such consent, in particular as
regards disclosure to authorities in respect of which it
would be open to the applicant
to obtain lenient
treatment. Once the leniency applicant has given consent
to the transmission of information to another authority,
that consent may not be withdrawn. This paragraph is
without prejudice, however, to the responsibility of each
applicant to file leniency applications to whichever auth-
orities it may consider appropriate.

leniency. The network members will

41. Notwithstanding the above, the consent of the applicant
for the transmission of information to another authority
pursuant to Article 12 of the Council Regulation is not
required in any of the following circumstances:

1. No consent is required where the receiving authority
has also received a leniency application relating to the
same infringement
from the same applicant as the
transmitting authority, provided that at the time the
information is
is not open to the
applicant to withdraw the information which it has
submitted to that receiving authority.

transmitted it

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2. No consent is required where the receiving authority
has provided a written commitment that neither the
information transmitted to it nor any other information
it may obtain following the date and time of trans-
mission as noted by the transmitting authority, will
be used by it or by any other authority to which the
information is
subsequently transmitted to impose
sanctions:

(a) on the leniency applicant;

(b) on any other legal or natural person covered by the
favourable treatment offered by the transmitting
authority as a result of the application made by
the applicant under its leniency programme;

(c) on any employee or former employee of any of the

persons covered by (a) or (b).

A copy of the receiving authority's written commitment
will be provided to the applicant.

3. In the case of

information collected by a network
member under Article 22(1) of the Council Regulation
on behalf of and for the account of
the network
member to whom the leniency application was made,
no consent is required for the transmission of such
information to, and its use by, the network member
to whom the application was made.

42. Information relating to cases initiated as a result of a
leniency application and which has been submitted to
the Commission under Article 11(3) of the Council Regu-
lation (17) will only be made available to those NCAs that
have committed themselves to respecting the principles set
out above (see paragraph 72). The same principle applies
where a case has been initiated by the Commission as a
result of a leniency application made to the Commission.
This does not affect the power of any authority to be
provided with information under Article 12 of
the
Council Regulation, provided however that the provisions
of paragraphs 40 and 41 are respected.

3. CONSISTENT APPLICATION OF

EC

COMPETITION

RULES (18)

3.1. Mechanism of cooperation (Article 11(4) and 11(5) of
the Council Regulation)

43. The Council Regulation pursues the objective that Articles
the Treaty are applied in a consistent
respect
the convergence rule contained in
In line with

81 and 82 of
manner
NCAs will
Article 3(2) of

the Council Regulation.

throughout
respect

the Community.

In this

Article 16(2) they cannot — when ruling on agreements,
decisions and practices under Article 81 or Article 82 of
the Treaty which are already the subject of a Commission
decision — take decisions, which would run counter to the
decisions adopted by the Commission. Within the network
of
the
guardian of the Treaty, has the ultimate but not the sole
responsibility for developing policy and safeguarding
consistency when it comes to the application of EC
competition law.

competition authorities

the Commission,

as

44. According to Article 11(4) of the Council Regulation, no
later than 30 days before the adoption of a decision
applying Articles 81 or 82 of the Treaty and requiring
that an infringement be brought
to an end, accepting
commitments or withdrawing the benefit of a block-
exemption regulation, NCAs shall inform the Commission.
They have to send to the Commission, at the latest 30
days before the adoption of the decision, a summary of
the case, the envisaged decision or, in the absence thereof,
any other document indicating the proposed course of
action.

45. As under Article 11(3) of

the Council Regulation,
to inform the Commission, but

the
obligation is
the
information may be shared by the NCA informing the
Commission with the other members of the network.

46. Where an NCA has informed the Commission pursuant to
Article 11(4) of the Council Regulation and the 30 days
deadline has expired, the decision can be adopted as long
as the Commission has not
initiated proceedings. The
Commission may make written observations on the case
before the adoption of the decision by the NCA. The NCA
and the Commission will make the appropriate efforts to
ensure the consistent application of Community law (cf.
paragraph 3 above).

47. If special circumstances require that a national decision is
taken in less than 30 days following the transmission of
information pursuant to Article 11(4) of the Council Regu-
lation, the NCA concerned may ask the Commission for a
swifter reaction. The Commission will endeavour to react
as quickly as possible.

48. Other

of

i.e.

types

decisions

decisions,

interim measures,

rejecting
complaints, decisions closing an ex-officio procedure or
decisions ordering
can also be
important from a competition policy point of view, and
the network members may have an interest in informing
each other about
them and possibly discussing them.
NCAs can therefore on the basis of Article 11(5) of the
Council Regulation inform the Commission and thereby
inform the network of any other case in which EC
competition law is applied.

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49. All members of the network should inform each other
about the closure of their procedures which have been
notified to the network pursuant to Article 11(2) and (3)
of the Council Regulation (19).

3.2. The initiation of proceedings by the Commission
under Article 11(6) of the Council Regulation

50. According to the case law of the Court of Justice, the
Commission, entrusted by Article 85(1) of
the Treaty
with the task of ensuring the application of the principles
laid down in Articles 81 and 82 of
is
responsible for defining and implementing the orientation
of Community competition policy (20). It can adopt indi-
vidual decisions under Articles 81 and 82 of the Treaty at
any time.

the Treaty,

51. Article 11(6) of the Council Regulation states that the
the
initiation by the Commission of proceedings
the Council Regulation
adoption of a decision under
shall
their competence to apply
relieve all NCAs of
Articles 81 and 82 of the Treaty. This means that once
the Commission has opened proceedings, NCAs cannot act
under the same legal basis against the same agreement(s)
or practice(s) by the same undertaking(s) on the same
relevant geographic and product market.

for

52. The initiation of proceedings by the Commission is a
formal act (21) by which the Commission indicates its
intention to adopt a decision under Chapter III of the
Council Regulation. It can occur at any stage of the inves-
tigation of the case by the Commission. The mere fact that
the Commission has received a complaint is not in itself
sufficient to relieve NCAs of their competence.

53. Two situations can arise. First, where the Commission is
the first competition authority to initiate proceedings in a
case for the adoption of a decision under the Council
competition authorities may no
Regulation, national
longer deal with the case. Article 11(6) of the Council
Regulation provides
the Commission has
that once
initiated proceedings, the NCAs can no longer start their
own procedure with a view to applying Articles 81 and 82
of the Treaty to the same agreement(s) or practice(s) by the
same undertaking(s) on the same relevant geographic and
product market.

54. The second situation is where one or more NCAs have
informed the network pursuant to Article 11(3) of the
Council Regulation that they are acting on a given case.

During the initial allocation period (indicative time period
of two months, see paragraph 18 above), the Commission
can initiate proceedings with the effects of Article 11(6) of
the Council Regulation after having consulted the auth-
the
orities
Commission will in principle only apply Article 11(6) of
the Council Regulation if one of the following situations
arises:

allocation phase,

concerned. After

the

(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 inter-
vention of the Commission;

(c) Network member(s)

is
proceedings in the case;

(are) unduly drawing out

(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.

55. If an NCA is already acting on a case, the Commission will
explain the reasons for the application of Article 11(6) of
the Council Regulation in writing to the NCA concerned
and to the other members of the Network (22).

56. The Commission will announce to the network its
intention of applying Article 11(6) of the Council Regu-
lation in due time, so that Network members will have the
possibility of asking for a meeting of
the Advisory
Committee on the matter before
the Commission
initiates proceedings.

57. The Commission will normally not — and to the extent
is not at stake — adopt a
that Community interest
decision which is in conflict with a decision of an NCA
after proper information pursuant to both Article 11(3)
and (4) of the Council Regulation has taken place and
the Commission has not made use of Article 11(6) of
the Council Regulation.

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4. THE ROLE AND THE FUNCTIONING OF THE ADVISORY
COMMITTEE IN THE NEW SYSTEM

4.2. Procedure

58. The Advisory Committee is the forum where experts from
the various competition authorities discuss individual cases
and general issues of Community competition law (23).

4.1. Scope of the consultation

4.1.1. Decisions of the Commission

59. The Advisory Committee

consulted prior

to the
is
Commission taking any decision pursuant to Articles 7,
8, 9, 10, 23, 24(2) or 29(1) of the Council Regulation.
The Commission must 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.

60. For decisions adopting interim measures,

the Advisory
Committee is consulted following a swifter and lighter
procedure, on the basis of a short explanatory note and
the operative part of the decision.

4.1.2. Decisions of NCAs

61. It is in the interest of the network that important cases
dealt with by NCAs under Articles 81 and 82 of the Treaty
can be discussed in the Advisory Committee. The Council
Regulation enables the Commission to put a given case
being dealt with by an NCA on the agenda of
the
Advisory Committee. Discussion can be requested by the
Commission or by any Member State. In either case, the
Commission will put the case on the agenda after having
informed the NCA(s) concerned. This discussion in the
Advisory Committee will not lead to a formal opinion.

62. In important cases, the Advisory Committee could also
serve as a forum for the discussion of case allocation. In
particular, where the Commission intends to apply Article
11(6) of the Council Regulation after the initial allocation
period,
the case can be discussed in the Advisory
Committee before the Commission initiates proceedings.
The Advisory Committee may
informal
statement on the matter.

issue

an

4.1.3. Implementing

measures,

regulations,
guidelines and other notices (Article 33 of the Council Regu-
lation)

block-exemption

4.2.1. Normal procedure

65. For consultation on Commission draft decisions,

the
meeting of the Advisory Committee takes place at the
earliest 14 days after the invitation to the meeting is
sent by the Commission. The Commission attaches to
the invitation a summary of the case, a list of the most
important documents, i.e. the documents needed to assess
the case, and a draft decision. The Advisory Committee
gives an opinion on the Commission draft decision. At
the request of one or several members, the opinion shall
be reasoned.

66. The Council Regulation allows for the possibility of the
Member States agreeing upon a shorter period of time
between the sending of the invitation and the meeting.

4.2.2. Written procedure

67. The Council Regulation provides for the possibility of a
written consultation procedure.
If no Member State
objects, the Commission can consult the Member States
to them and setting a
by sending the documents
deadline within which they can comment on the draft.
This deadline would not normally be shorter than 14
days, except for decisions on interim measures pursuant
to Article 8 of the Council Regulation. Where a Member
State requests that a meeting takes place, the Commission
will arrange for such a meeting.

4.3. Publication

of

opinion

the
Committee

of

the Advisory

68. The Advisory Committee can recommend the publication
of its opinion. In that event, the Commission will carry out
such publication simultaneously with the decision, taking
into account the legitimate interest of undertakings in the
protection of their business secrets.

5. FINAL REMARKS

69. This Notice is without prejudice to any interpretation of
the applicable Treaty and regulatory provisions by the
Court of First Instance and the Court of Justice.

63. The Advisory Committee will be consulted on draft
Commission regulations as provided for in the relevant
Council Regulations.

64. Beside regulations, the Commission may also adopt notices
and guidelines. These more flexible tools are very useful
for explaining and announcing the Commission's policy,
and for explaining its interpretation of the competition
rules. The Advisory Committee will also be consulted on
these notices and guidelines.

70. This Notice will be the subject of periodic review carried
out jointly by the NCAs and the Commission. On the basis
of the experience acquired,
it will be reviewed no later
than at the end of the third year after its adoption.

71. This notice replaces the Commission notice on coop-
eration between national competition authorities and the
Commission in handling cases falling within the scope of
Articles 81 and 82 of the Treaty published in 1997 (24).

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6. STATEMENT BY OTHER NETWORK MEMBERS

72. The principles set out in this notice will also be abided by
those Member States' competition authorities which have
the Annex to this
in the form of
signed a statement

this notice,

Notice. In this statement they acknowledge the principles
of
including the principles relating to the
protection of applicants claiming the benefit of a leniency
programme (25) and declare that they will abide by them. A
list of these authorities is published on the website of the
European Commission. It will be updated if appropriate.

(1) OJ L 1, 4.1.2003, p. 1.
(2) In this notice, the European Commission and the NCAs are collectively referred to as ‘the competition authorities’.
(3) Cf. ECJ case 68/88 — Commission v. Greece [1989] ECR 2965 (recitals 23 to 25)
(4) See paragraph 8 of the Joint Statement of the Council and the Commission on the functioning of the network available from the Council register

at http://register.consilium.eu.int (document No 15435/02 ADD 1).

(5) In this Notice the term ‘procedure’ is used for investigations and/or formal proceedings for the adoption of a decision pursuant to the Council

Regulation conducted by an NCA or the Commission, as the case may be.

(6) See Recital 18 of the Council Regulation.
(7) For cases initiated following a leniency application see paragraphs 37 et subseq.
(8) The intention of making any information exchanged pursuant to Article 11 available and easily accessible to all network members is however

expressed in the Joint Statement on the functioning of the network mentioned above in footnote 4.

(9) See Commission notice on complaints.
(10) See ECJ case 85/87 — Dow Benelux, [1989] ECR 3137 (recitals 17-20).
(11) See ECJ case 374/87 — Orkem [1989] ECR 3283 and CFI, case T-112/98 — Mannesmannröhren-Werke AG, [2001] ECR II-729.
(12) Commission Regulation (EC) No 773/2004, OJ L 123, 27.4.2004.
(13) OJ C 45, 19.2.2002, p. 3 at paragraph 3.
(14) In this Notice, the term ‘leniency programme’ is used to describe all programmes (including the Commission's programme) which offer either full
immunity or a significant reduction in the penalties which would otherwise have been imposed on a participant in a cartel, in exchange for the
freely volunteered disclosure of information on the cartel which satisfies specific criteria prior to or during the investigative stage of the case. The
term does not cover reductions in the penalty granted for other reasons. The Commission will publish on its website a list of those authorities that
operate a leniency programme.
(15) See paragraphs 8 to 15 above.
(16) Similarly, information transmitted with a view to obtaining assistance from the receiving authority under Articles 20 or 21 of the Council
Regulation or of carrying out an investigation or other fact-finding measure under Article 22 of the Council Regulation may only be used for the
purpose of the application of the said Articles.

(17) See paragraph 17.
(18) Article 15 of the Council Regulation empowers NCAs and the Commission to submit written and, with the permission of the Court, oral
submissions in court proceedings for the application of Articles 81 and 82 of the Treaty. This is a very important tool for ensuring consistent
application of Community rules. In exercising this power NCAs and the Commission will cooperate closely.
(19) See paragraph 24 of the Joint Statement on the functioning of the network mentioned above in footnote 4.
(20) See ECJ case C-344/98 — Masterfoods Ltd, [2000] ECR I-11369.
(21) The ECJ has defined that concept in the case 48/72 — SA Brasserie de Haecht, [1973] ECR 77: ‘the initiation of a procedure within the meaning

of Article 9 of Regulation No 17 implies an authoritative act of the Commission, evidencing its intention of taking a decision.’

(22) See paragraph 22 of the Joint Statement mentioned above in footnote 4.
(23) In accordance with Article 14(2) of the Council Regulation, where horizontal issues such as block-exemption regulations and guidelines are being
discussed, Member States can appoint an additional representative competent in competition matters and who does not necessarily belong to the
competition authority.

(24) OJ C 313, 15.10.1997, p. 3.
(25) See paragraphs 37 et subseq.

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ANNEX

D.2116C 101/54

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Official Journal of the European Union

27.4.2004

Commission Notice on the co-operation between the Commission and the courts of the EU
Member States in the application of Articles 81 and 82 EC

(2004/C 101/04)

(Text with EEA relevance)

I. THE SCOPE OF THE NOTICE

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

Justice of

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

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

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

II. THE APPLICATION OF EC COMPETITION RULES BY
NATIONAL COURTS

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

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

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

a national

court

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

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law (13). As

to the parallel

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

B. PROCEDURAL ASPECTS OF

THE APPLICATION OF

EC

COMPETITION RULES BY NATIONAL COURTS

extent, Community

law also determines

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

competition authorities

to the extent

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

that

decisions

concerted

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

10. In the

absence of Community

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

the application of

law. However,

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

national
effective, proportionate and dissuasive (25);

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

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(c) the rules on procedures and sanctions which national

courts apply to enforce Community law

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

— must not make

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

such enforcement

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

favourable
enforcement of

less
to the

than the

rules
equivalent

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

OR

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

CONSECUTIVE

APPLICATION

OF

the legality of

if a national court

the Commission's decision,

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

to Article 230 EC and the outcome of

in the circumstances of

the Commission

decision

validity

that,

of

if

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

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

the Commission has
its

until
The Commission,

for

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

in order

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

15. Other

courts

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

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

A. THE COMMISSION AS AMICUS CURIAE

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

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

writing to

European Commission
Directorate General for Competition
B-1049 Brussels
Belgium

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

thereof,

it will

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

1. The Commission's duty to transmit

information to

national courts

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

conditions

for

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

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

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

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23. In transmitting information to national

courts,

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

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

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

If

26. There

are

further

exceptions

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

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

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

case

law of

the Community courts or

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

to ask the Court of

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

receives

that

it

the national

court with the

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

of Community

interpretation

law by

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

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

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

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

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

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

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

established the
court

the national

framework,

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

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

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

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

36. Since the duty of

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

the

(1)

1. The transmission of

judgements of national courts

applying Articles 81 or 82 EC

37. According to Article 15(2) of

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

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

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

inspections

the

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

In that case,
the Commission's

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

that

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

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

the national court

IV. FINAL PROVISIONS

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

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

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

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of

the Treaty (OJ L 1, 4.1.2003, p. 1).

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

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

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

(5) See Article 6 of the regulation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

on this issue point 21 of this notice.

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

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

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

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

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

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

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

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

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

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

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

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

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

[1996] ECR II-921, 93.

(46) See point 8 of this notice.

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

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

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

competition authorities under national law.

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

the obligation of professional secrecy.

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

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

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

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

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

(56) See also ibidem, 91 and 92.

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

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C 101/63

COMMISSION BLOCK EXEMPTION REGULATIONS, NOTICES AND GUIDELINES

ANNEX

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

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

1. Notices of a general nature

A. Non-sector specific rules

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

9.12.1997, p. 5)

— Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of

the Treaty establishing the European Community (de minimis) (OJ C 368, 22.12.2001, p. 13)

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

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

2. Vertical agreements

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

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

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

3. Horizontal co-operation agreements

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

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

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

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

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

4. Licensing agreements for the transfer of technology

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

technology transfer agreements (OJ L 123, 27.4.2004)

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

27.4.2004, p. 2)

1. Insurance

B. Sector specific rules

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

2. Motor vehicles

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

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

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3. Telecommunications and postal services

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

p. 2)

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

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

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

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

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

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

4. Transport

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

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

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

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

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C 368/13

Commission Notice on agreements of minor importance which do not appreciably restrict
the Treaty establishing the European Community (de
competition under Article 81(1) of

minimis) (1)

(2001/C 368/07)

(Text with EEA relevance)

I

their object or effect

1. Article 81(1) prohibits agreements between undertakings
trade between Member States and
which may affect
the prevention,
which have as
restriction or distortion of
competition within the
common market. The Court of Justice of the European
Communities has clarified that
this provision is not
applicable where the impact of the agreement on intra-
Community trade or on competition is not appreciable.

share thresholds, what

2. In this notice the Commission quantifies, with the help of
is not an appreciable
market
restriction of competition under Article 81 of
the EC
Treaty. This negative definition of appreciability does not
imply that agreements between undertakings which exceed
the thresholds set out in this notice appreciably restrict
competition. Such agreements may still have only a
negligible effect on competition and may therefore not
be prohibited by Article 81(1) (2).

agreement is covered by this notice, the Commission will
this
impose fines. Although not binding on them,
not
notice also intends to give guidance to the courts and
authorities of the Member States in their application of
Article 81.

5. This notice also applies to decisions by associations of

undertakings and to concerted practices.

6. This notice is without prejudice to any interpretation of
Article 81 which may be given by the Court of Justice or
the Court of First Instance of the European Communities.

II

7. The Commission holds the view that agreements between
undertakings which affect trade between Member States do
not appreciably restrict competition within the meaning of
Article 81(1):

3. Agreements may in addition not fall under Article 81(1)
because they are not capable of appreciably affecting trade
between Member States. This notice does not deal with this
issue. It does not quantify what does not constitute an
appreciable effect on trade. It is however acknowledged
that agreements between small and medium-sized under-
takings, as defined in the Annex to Commission Recom-
mendation 96/280/EC (3), are rarely capable of appreciably
affecting
and
medium-sized undertakings are currently defined in that
recommendation as undertakings which have fewer than
250 employees and have either an annual turnover not
exceeding EUR 40 million or an annual balance-sheet
total not exceeding EUR 27 million.

trade between Member

States.

Small

(a)

if the aggregate market share held by the parties to the
agreement does not exceed 10 % on any of the relevant
markets
the
the
agreement is made between undertakings which are
these
actual or potential competitors on any of
markets (agreements between competitors) (4); or

agreement, where

affected by

(b) if the market share held by each of the parties to the
agreement does not exceed 15 % on any of the relevant
markets
the
the
agreement is made between undertakings which are
not actual or potential competitors on any of these
markets (agreements between non-competitors).

agreement, where

affected by

4. In cases covered by this notice the Commission will not
institute proceedings either upon application or on its own
initiative. Where undertakings assume in good faith that an

(1) This notice replaces the notice on agreements of minor importance

published in OJ C 372, 9.12.1997.

(2) See, for instance, the judgment of the Court of Justice in Joined
Cases C-215/96 and C-216/96 Bagnasco (Carlos) v Banca Popolare di
Novara and Casa di Risparmio di Genova e Imperia (1999) ECR I-135,
points 34-35. This notice is also without prejudice to the principles
for assessment under Article 81(1) as expressed in the Commission
notice (cid:145)Guidelines on the applicability of Article 81 of the EC Treaty
to horizontal cooperation agreements(cid:146), OJ C 3, 6.1.2001,
in
particular points 17-31 inclusive, and in the Commission notice
in
(cid:145)Guidelines on vertical
particular points 5-20 inclusive.

restraints(cid:146), OJ C 291, 13.10.2000,

(3) OJ L 107, 30.4.1996, p. 4. This recommendation will be revised. It
is envisaged to increase the annual
threshold from
EUR 40 million to EUR 50 million and the annual balance-sheet
total threshold from EUR 27 million to EUR 43 million.

turnover

In cases where it is difficult to classify the agreement as
either an agreement between competitors or an agreement
between non-competitors the 10 % threshold is applicable.

(4) On what are actual or potential competitors, see the Commission
notice (cid:145)Guidelines on the applicability of Article 81 of the EC Treaty
to horizontal cooperation agreements(cid:146), OJ C 3, 6.1.2001, paragraph
9. A firm is treated as an actual competitor if it is either active on
the same relevant market or if, in the absence of the agreement, it is
able to switch production to the relevant products and market them
in the short term without incurring significant additional costs or
risks in response to a small and permanent increase in relative
prices (immediate supply-side substitutability). A firm is treated as
a potential competitor
the
agreement, this firm could and would be likely to undertake the
necessary additional investments or other necessary switching costs
so that it could enter the relevant market in response to a small and
permanent increase in relative prices.

there is evidence that, absent

if

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8. Where in a relevant market competition is restricted by the
cumulative effect of agreements for the sale of goods or
services entered into by different suppliers or distributors
(cumulative foreclosure effect of parallel networks of
the
agreements having similar effects on the market),
market share thresholds under point 7 are reduced to
5 %, both for agreements between competitors and for
agreements between non-competitors. Individual suppliers
or distributors with a market share not exceeding 5 % are
in general not considered to contribute significantly to a
cumulative foreclosure effect (1). A cumulative foreclosure
effect is unlikely to exist if less than 30 % of the relevant
market
(networks of) agreements
having similar effects.

is covered by parallel

9. The Commission also holds the view that agreements are
not restrictive of competition if the market shares do not
exceed the thresholds of respectively 10 %, 15 % and 5 %
set out in point 7 and 8 during two successive calendar
years by more than 2 percentage points.

10. In order to calculate the market share, it is necessary to
determine the relevant market. This consists of the relevant
product market and the relevant geographic market. When
defining the relevant market, reference should be had to
the notice on the definition of the relevant market for the
purposes of Community competition law (2). The market
shares are to be calculated on the basis of sales value data
or, where appropriate, purchase value data. If value data
are not available, estimates based on other reliable market
information, including volume data, may be used.

11. Points 7, 8 and 9 do not apply to agreements containing

any of the following hardcore restrictions:

(1) as regards agreements between competitors as defined
in point 7, restrictions which, directly or indirectly, in
isolation or in combination with other factors under
the control of the parties, have as their object (3):

(a) the fixing of prices when selling the products to

third parties;

(b) the limitation of output or sales;

(c)

the allocation of markets or customers;

(c)

(1) See also the Commission notice (cid:145)Guidelines on vertical restraints(cid:146),
OJ C 291, 13.10.2000, in particular paragraphs 73, 142, 143 and
189. While in the guidelines on vertical restraints in relation to
certain restrictions reference is made not only to the total but
also to the tied market share of a particular supplier or buyer, in
this notice all market share thresholds refer to total market shares.

(2) OJ C 372, 9.12.1997, p. 5.
(3) Without prejudice to situations of joint production with or without
joint distribution as defined in Article 5, paragraph 2, of
Commission Regulation (EC) No 2658/2000 and Article 5,
paragraph 2, of Commission Regulation (EC) No 2659/2000, OJ
L 304, 5.12.2000, pp. 3 and 7 respectively.

(2) as regards agreements between non-competitors as
restrictions which, directly or
defined in point 7,
indirectly,
in isolation or in combination with other
factors under the control of the parties, have as their
object:

(a) the restriction of the buyer’s ability to determine its
sale price, without prejudice to the possibility of
the supplier imposing a maximum sale price or
recommending a sale price, provided that they do
not amount to a fixed or minimum sale price as a
result of pressure from, or incentives offered by,
any of the parties;

(b) the restriction of the territory into which, or of the
customers
the
contract goods or services, except the following
restrictions which are not hardcore:

the buyer may sell

to whom,

(cid:151) the restriction of active sales into the exclusive
territory or to an exclusive customer group
reserved to the supplier or allocated by the
such a
to another buyer, where
supplier
restriction does not
the
by
sales
customers of the buyer,

limit

(cid:151) the restriction of sales to end users by a buyer
operating at the wholesale level of trade,

(cid:151) the

restriction

unauthorised
distributors by the members of a selective
distribution system, and

sales

to

of

the buyer’s ability to sell
(cid:151) the restriction of
the purposes of
supplied for
components,
incorporation,
to customers who would use
them to manufacture the same type of goods
as those produced by the supplier;

the restriction of active or passive sales to end
users by members of a selective distribution
system operating at
trade,
without prejudice to the possibility of prohibiting
a member of the system from operating out of an
unauthorised place of establishment;

the retail

level of

(d) the

of

restriction

between
distributors within a selective distribution system,
including
at
different levels of trade;

cross-supplies

distributors

operating

between

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(e)

restriction agreed between a

supplier of
the
components and a buyer who incorporates those
components, which limits the supplier’s ability to
sell the components as spare parts to end users or
service providers not
to repairers or other
entrusted by the buyer with the
repair or
servicing of its goods;

(3) as regards agreements between competitors as defined
for the
in point 7, where the competitors operate,
purposes of the agreement, at a different level of the
production or distribution chain, any of the hardcore
restrictions listed in paragraph (1) and (2) above.

12. (1) For the purposes of

this notice,

the terms (cid:145)under-
taking(cid:146), (cid:145)party to the agreement(cid:146), (cid:145)distributor(cid:146), (cid:145)supplier(cid:146)
and (cid:145)buyer(cid:146) shall
include their respective connected
undertakings.

(2) (cid:145)Connected undertakings(cid:146) are:

(a) undertakings in which a party to the agreement,

directly or indirectly:

(cid:151) has the power to exercise more than half the

voting rights, or

(cid:151) has

the right

to manage the undertaking’s

affairs;

(b) undertakings which directly or indirectly have, over
a party to the agreement, the rights or powers
listed in (a);

(c) undertakings in which an undertaking referred to
the rights or

in (b) has, directly or indirectly,
powers listed in (a);

(d) undertakings in which a party to the agreement
together with one or more of the undertakings
referred to in (a), (b) or (c), or in which two or
more of the latter undertakings,
jointly have the
rights or powers listed in (a);

(e) undertakings in which the rights or the powers

listed in (a) are jointly held by:

(cid:151) parties to the agreement or their respective
connected undertakings referred to in (a)
to
(d), or

(cid:151) one or more of the parties to the agreement or
one or more of their connected undertakings
referred to in (a) to (d) and one or more third
parties.

(cid:151) has the power to appoint more than half the
members of the supervisory board, board of
management or bodies legally representing the
undertaking, or

(3) For the purposes of paragraph 2(e), the market share
held by these jointly held undertakings shall be appor-
tioned equally to each undertaking having the rights or
the powers listed in paragraph 2(a).

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C 101/81

Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty

COMMISSION NOTICE

(2004/C 101/07)

(Text with EEA relevance)

1. INTRODUCTION

1. Articles 81 and 82 of the Treaty are applicable to hori-
zontal and vertical agreements and practices on the part
of undertakings which ‘may affect trade between Member
States’.

2.

interpretation of Articles 81 and 82,

In their
the
Community Courts have already substantially clarified
the content and scope of the concept of effect on trade
between Member States.

3. The present guidelines set out the principles developed by
the Community Courts in relation to the interpretation of
the effect on trade concept of Articles 81 and 82. They
further spell out a rule indicating when agreements are in
general unlikely to be capable of appreciably affecting
trade between Member States (the non-appreciable affec-
tation of trade rule or NAAT-rule). The guidelines are not
intended to be exhaustive. The aim is to set out the
methodology for the application of the effect on trade
concept and to provide guidance on its application in
frequently occurring situations. Although not binding
on them, these guidelines also intend to give guidance
to the courts and authorities of the Member States in
their
concept
contained in Articles 81 and 82.

effect on trade

application of

the

4. The present guidelines do not address the issue of what
constitutes an appreciable restriction of competition
under Article 81(1). This issue, which is distinct from
the ability of agreements to appreciably affect
trade
between Member States, is dealt with in the Commission
Notice on agreements of minor importance which do not
appreciably restrict competition under Article 81(1) of
the Treaty (1)
(the de minimis rule). The guidelines are
also not intended to provide guidance on the effect on
trade concept contained in Article 87(1) of the Treaty on
State aid.

5. These guidelines,

including the NAAT-rule, are without
prejudice to the interpretation of Articles 81 and 82
which may be given by the Court of Justice and the
Court of First Instance.

2. THE EFFECT ON TRADE CRITERION

2.1. General principles

6. Article 81(1) provides

‘the following shall be
that
prohibited as incompatible with the common market:

all
agreements between undertakings, decisions of
associations of undertakings and concerted practices
trade between Member States and
which may affect
the prevention,
which have as their object or effect
restriction or distortion of
competition within the
common market’. For the sake of simplicity the terms
‘agreements, decisions of associations of undertakings
and concerted practices’ are collectively referred to as
‘agreements’.

7. Article 82 on its part stipulates that ‘any abuse by one or
more undertakings of a dominant position within the
common market or in a substantial part thereof shall
be prohibited as incompatible with the common market
insofar as it may affect trade between Member States.’ In
what follows the term ‘practices’ refers to the conduct of
dominant undertakings.

8. The effect on trade criterion also determines the scope of
application of Article 3 of Regulation 1/2003 on the
implementation of the rules on competition laid down
in Articles 81 and 82 of the Treaty (2).

9. According to Article 3(1) of

that Regulation the
competition authorities and courts of
the Member
States must apply Article 81 to agreements, decisions
by associations of undertakings or concerted practices
within the meaning of Article 81(1) of
the Treaty
which may affect trade between Member States within
the meaning of
that provision, when they apply
national competition law to such agreements, decisions
or concerted practices. Similarly, when the competition
authorities and courts of
the Member States apply
national competition law to any abuse prohibited by
Article 82 of the Treaty, they must also apply Article
the
82 of
competition authorities and courts of
the Member
States to also apply Articles 81 and 82 when they
apply national competition law to agreements and
abusive practices which may affect
trade between
Member States. On the other hand, Article 3(1) does
not oblige national competition authorities and courts
to apply national competition law when they apply
Articles 81 and 82 to agreements, decisions
and
concerted practices and to abuses which may affect
trade between Member States. They may in such cases
apply the Community competition rules on a stand alone
basis.

the Treaty. Article 3(1)

thus obliges

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10. It

that

follows from Article 3(2)

the application of
national competition law may not lead to the prohibition
of agreements, decisions by associations of undertakings
or concerted practices which may affect trade between
Member States but which do not restrict competition
within the meaning of Article 81(1) of the Treaty, or
which fulfil
the
Treaty or which are covered by a Regulation for the
application of Article 81(3) of
the Treaty. Member
are not under Regulation 1/2003
States, however,
precluded from adopting and applying on their territory
stricter national
sanction
laws which prohibit or
unilateral conduct engaged in by undertakings.

the conditions of Article 81(3) of

11. Finally it should be mentioned that Article 3(3) stipulates
that without prejudice to general principles and other
provisions of Community law, Article 3(1) and (2) do
not apply when the competition authorities and the
the Member States apply national merger
courts of
laws, nor do they preclude the application of
control
law that predominantly pursue
provisions of national
an objective different from that pursued by Articles 81
and 82 of the Treaty.

12. The

criterion is

effect on trade

an autonomous
Community law criterion, which must be assessed sepa-
rately in each case. It is a jurisdictional criterion, which
application of Community
defines
competition law (3). Community competition law is not
applicable to agreements and practices that are not
capable of appreciably affecting trade between Member
States.

scope

the

of

13. The effect on trade criterion confines the scope of
application of Articles 81 and 82 to agreements and
practices that are capable of having a minimum level
In the
of cross-border effects within the Community.
words of
the
agreement or practice to affect trade between Member
States must be ‘appreciable’ (4).

the ability of

the Court of

Justice,

14. In the case of Article 81 of the Treaty, it is the agreement
that must be capable of affecting trade between Member
States. It is not required that each individual part of the
agreement,
including any restriction of competition
is capable of
which may flow from the agreement,
doing so (5). If the agreement as a whole is capable of
affecting
is
States,
between Member
the entire
Community law jurisdiction in respect of
that
agreement,
individually do not affect trade between Member States.
In cases where the contractual relations between the same
parties cover several activities, these activities must,
in
order to form part of the same agreement, be directly
linked and form an integral part of the same overall

including any parts of the agreement

there

trade

business arrangement (6). If not, each activity constitutes
a separate agreement.

15. It is also immaterial whether or not the participation of a
particular undertaking in the agreement has an appre-
ciable effect on trade between Member States (7). An
undertaking cannot escape Community law jurisdiction
merely because of the fact that its own contribution to
an agreement, which itself is capable of affecting trade
between Member States, is insignificant.

16. It

affect

is not necessary,

also
example,

agreements may
For
States.

for the purposes of establishing
Community law jurisdiction, to establish a link between
the alleged restriction of competition and the capacity of
the agreement to affect trade between Member States.
trade
Non-restrictive
between Member
selective
distribution agreements based on purely qualitative
selection criteria justified by the nature of the products,
restrictive of competition within the
which are not
meaning of Article 81(1), may nevertheless affect trade
between Member States. However, the alleged restrictions
arising from an agreement may provide a clear indication
as to the capacity of
trade
instance, a distribution
between Member States. For
agreement prohibiting exports is by its very nature
capable of affecting trade between Member States,
although not necessarily to an appreciable extent (8).

the agreement

to affect

that

17. In the case of Article 82 it is the abuse that must affect
trade between Member States. This does not
imply,
however, that each element of the behaviour must be
assessed in isolation. Conduct
forms part of an
overall strategy pursued by the dominant undertaking
must be assessed in terms of its overall impact. Where
a dominant undertaking adopts various practices
in
pursuit of the same aim, for instance practices that aim
at eliminating or foreclosing competitors,
in order for
Article 82 to be applicable to all the practices forming
part of this overall strategy, it is sufficient that at least
one of
is capable of affecting trade
between Member States (9).

these practices

18. It follows from the wording of Articles 81 and 82 and
in the
criterion three

the case law of
application of
elements in particular must be addressed:

the Community Courts that

effect on trade

the

(a) The concept of ‘trade between Member States’,

(b) The notion of ‘may affect’, and

(c) The concept of ‘appreciability’.

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2.2. The concept of ‘trade between Member States’

19. The concept of

‘trade’

limited to traditional
is not
exchanges of goods and services across borders (10). It is
a wider concept, covering all cross-border economic
activity including establishment (11). This interpretation
is consistent with the fundamental objective of
the
Treaty to promote free movement of goods, services,
persons and capital.

20. According to settled case law the concept of ‘trade’ also
encompasses cases where agreements or practices affect
the competitive structure of the market. Agreements and
practices that affect the competitive structure inside the
Community by eliminating or threatening to eliminate a
competitor operating within the Community may be
subject to the Community competition rules (12). When
an undertaking
eliminated the
competitive structure within the Community is affected
and so are the economic activities in which the under-
taking is engaged.

risks being

is or

two Member States.

21. The requirement that there must be an effect on trade
‘between Member States’ implies that there must be an
impact on cross-border economic activity involving at
least
the
It
agreement or practice affect trade between the whole of
one Member State and the whole of another Member
State. Articles 81 and 82 may be applicable also in
cases involving part of a Member State, provided that
the effect on trade is appreciable (13).

is not required that

22. The application of the effect on trade criterion is inde-
pendent of the definition of relevant geographic markets.
Trade between Member States may be affected also in
cases where
is national or
relevant market
sub-national (14).

the

2.3. The notion ‘may affect’

23. The function of the notion ‘may affect’ is to define the
nature of the required impact on trade between Member
States. According to the standard test developed by the
Court of Justice, the notion ‘may affect’ implies that it
must be possible to foresee with a sufficient degree of
probability on the basis of a set of objective factors of
law or fact that the agreement or practice may have an
influence, direct or indirect, actual or potential, on the
trade between Member States (15) (16). As
pattern of
mentioned in paragraph 20 above the Court of Justice
has in addition developed a test based on whether or not
the
competitive
affects
In cases where the agreement or practice is
structure.
liable to affect
the competitive structure inside the
Community, Community law jurisdiction is established.

agreement or practice

the

24. The ‘pattern of

trade’-test developed by the Court of
Justice contains the following main elements, which are
dealt with in the following sections:

(a)

‘A sufficient degree of probability on the basis of a set
of objective factors of law or fact’,

(b) An influence on the ‘pattern of

trade between

Member States’,

(c)

‘A direct or indirect, actual or potential influence’ on
the pattern of trade.

2.3.1. A sufficient degree of probability on the basis of a set of

objective factors of law or fact

25. The assessment of effect on trade is based on objective
factors. Subjective intent on the part of the undertakings
concerned is not required. If, however, there is evidence
that undertakings have intended to affect trade between
Member States, for example because they have sought to
hinder exports to or imports from other Member States,
this is a relevant factor to be taken into account.

26. The words ‘may affect’ and the reference by the Court of
Justice to ‘a sufficient degree of probability’ imply that, in
order for Community law jurisdiction to be established, it
the agreement or practice will
is not
actually have or has had an effect on trade between
Member States.
the agreement or
practice is ‘capable’ of having such an effect (17).

required that

is sufficient

that

It

27. There is no obligation or need to calculate the actual
volume of trade between Member States affected by the
agreement or practice. For example,
in the case of
agreements prohibiting exports to other Member States
there is no need to estimate what would have been the
level of parallel
trade between the Member States
concerned, in the absence of the agreement. This inter-
pretation is consistent with the jurisdictional nature of
the effect on trade criterion. Community law jurisdiction
extends to categories of agreements and practices that are
capable of having cross-border effects,
irrespective of
whether a particular agreement or practice actually has
such effects.

28. The assessment under

the effect on trade criterion
depends on a number of factors that individually may
not be decisive (18). The relevant
factors include the
nature of the agreement and practice, the nature of the
products covered by the agreement or practice and the
position
undertakings
and
concerned (19).

importance

the

of

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the agreement or practice to affect

29. The nature of the agreement and practice provides an
the
indication from a qualitative point of view of
ability of
trade
between Member States. Some agreements and practices
are by their very nature capable of affecting trade
between Member States, whereas others require more
detailed analysis in this respect. Cross-border cartels are
an example of
joint ventures
the former, whereas
confined to the territory of a single Member State are
further
an example of
examined in section 3 below, which deals with various
categories of agreements and practices.

latter. This

aspect

the

is

30. The nature of the products covered by the agreements or
practices also provides an indication of whether trade
between Member States is capable of being affected.
When by their nature products are easily traded across
borders or are important for undertakings that want to
enter or expand their activities in other Member States,
Community jurisdiction is more readily established than
in cases where due to their nature there is limited
demand for products offered by suppliers from other
Member States or where the products are of
limited
interest from the point of view of cross-border estab-
the economic activity
lishment or
carried out from such place of establishment (20). Estab-
lishment includes the setting-up by undertakings in one
Member State of agencies, branches or subsidiaries in
another Member State.

the expansion of

31. The market position of the undertakings concerned and
their sales volumes are indicative from a quantitative
point of view of
the agreement or
the ability of
practice concerned to affect
trade between Member
States. This aspect, which forms an integral part of the
assessment of appreciability, is addressed in section 2.4
below.

32.

it

If

relevant

in which the

into the potential

economic and legal

In addition to the factors already mentioned,

is
the legal and factual
necessary to take account of
agreement or practice
environment
context
operates. The
for an effect on
provides insight
trade between Member States.
there are absolute
barriers to cross-border trade between Member States,
which are external to the agreement or practice, trade
is only capable of being affected if those barriers are
likely to disappear in the foreseeable future.
In cases
where the barriers are not absolute but merely render
cross-border activities more difficult, it is of the utmost
importance to ensure that agreements and practices do
not
such activities. Agreements and
practices
that do so are capable of affecting trade
between Member States.

further hinder

2.3.2. An influence on the ‘pattern of trade between Member States’

33. For Articles 81 and 82 to be applicable there must be an
trade between Member

influence on the ‘pattern of
States’.

34. The term ‘pattern of trade’ is neutral. It is not a condition
that trade be restricted or reduced (21). Patterns of trade
can also be affected when an agreement or practice
causes an increase in trade. Indeed, Community law juris-
diction is established if trade between Member States is
likely to develop differently with the agreement or
practice compared to the way in which it would
probably have developed in the
the
agreement or practice (22).

absence of

35. This interpretation reflects the fact that the effect on
trade criterion is a jurisdictional one, which serves to
distinguish those agreements and practices which are
capable of having cross-border effects, so as to warrant
an examination under the Community competition rules,
from those agreements and practices which do not.

2.3.3. A ‘direct or indirect, actual or potential

influence’ on the

pattern of trade

36. The influence of agreements and practices on patterns of
trade between Member States can be ‘direct or indirect,
actual or potential’.

37. Direct effects on trade between Member States normally
occur
in relation to the products covered by an
agreement or practice. When, for example, producers of
a particular product in different Member States agree to
share markets, direct effects are produced on trade
between Member States on the market for the products
in question. Another example of direct effects being
produced is when a supplier limits distributor rebates
to products sold within the Member State in which the
distributors are established. Such practices increase the
exports,
relative
rendering export sales less attractive and less competitive.

products

destined

price

for

of

38. Indirect effects often occur in relation to products that
are related to those covered by an agreement or practice.
Indirect effects may,
for example, occur where an
agreement or practice has an impact on cross-border
or
economic
the
otherwise
for
agreement
instance, arise where the agreement or practice relates
to an intermediate product, which is not traded, but

activities
of
rely on the products
or practice (23).
Such

use
that
covered by
can,
effects

undertakings

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which is used in the supply of a final product, which is
traded. The Court of Justice has held that trade between
Member States was capable of being affected in the case
of an agreement involving the fixing of prices of spirits
used in the production of cognac (24). Whereas the raw
material was not exported, the final product — cognac
— was exported. In such cases Community competition
law is thus applicable,
if trade in the final product is
capable of being appreciably affected.

the situation may change as a result of
affected if
changing market conditions (28). What matters is the
ability of
trade
between Member States and not whether at any given
point in time it actually does so.

the agreement or practice to affect

or

For

practice.

instance,

39. Indirect effects on trade between Member States may also
in relation to the products covered by the
occur
agreement
agreements
whereby a manufacturer limits warranties to products
sold by distributors within their Member State of estab-
lishment create disincentives for consumers from other
Member States to buy the products because they would
not be able to invoke the warranty (25). Export by official
distributors and parallel traders is made more difficult
because in the eyes of consumers the products are less
attractive without the manufacturer's warranty (26).

40. Actual effects on trade between Member States are those
that are produced by the agreement or practice once it is
implemented. An agreement between a supplier and a
distributor within the same Member State, for instance
one that prohibits exports to other Member States,
is
likely to produce actual
effects on trade between
Member States. Without the agreement the distributor
It
would have been free to engage in export sales.
should be recalled, however, that it is not required that
actual effects are demonstrated. It is sufficient that the
agreement or practice be capable of having such effects.

41. Potential effects are those that may occur in the future
with a sufficient degree of probability. In other words,
foreseeable market developments must be taken into
account (27). Even if
trade is not capable of being
affected at the time the agreement is concluded or the
practice is implemented, Articles 81 and 82 remain
applicable if the factors which led to that conclusion
are likely to change in the foreseeable future.
In this
respect it is relevant to consider the impact of liberali-
sation measures adopted by the Community or by the
Member State in question and other foreseeable measures
aiming at eliminating legal barriers to trade.

42. Moreover, even if at a given point

in time market
for
conditions are unfavourable to cross-border trade,
example because prices are similar
in the Member
States in question, trade may still be capable of being

43. The inclusion of

effects. The

indirect or potential effects in the
analysis of effects on trade between Member States does
not mean that the analysis can be based on remote or
hypothetical
likelihood of a particular
agreement to produce indirect or potential effects must
be explained by the authority or party claiming that trade
between Member States is capable of being appreciably
affected. Hypothetical or
speculative effects are not
for establishing Community law jurisdiction.
sufficient
that raises the price of a
For instance, an agreement
product which is not
tradable reduces the disposable
income of consumers. As consumers have less money
to spend they may purchase fewer products imported
from other Member States. However, the link between
such income effects and trade between Member States
is generally in itself too remote to establish Community
law jurisdiction.

2.4. The concept of appreciability

2.4.1. General principle

a

fall outside

law jurisdiction

limiting Community

certain magnitude. Agreements
scope of

44. The effect on trade criterion incorporates a quantitative
to
element,
agreements and practices that are capable of having
effects of
and
practices
application of
Articles 81 and 82 when they affect the market only
insignificantly having regard to the weak position of
the
the undertakings concerned on the market
be
products
appraised in particular by reference to the position and
the importance of
the relevant undertakings on the
market for the products concerned (30).

question (29). Appreciability

for
can

the

in

45. The assessment of appreciability depends on the circum-
stances of each individual case, in particular the nature of
the agreement and practice, the nature of the products
covered and the market position of
the undertakings
concerned. When by its very nature the agreement or
practice is capable of affecting trade between Member
States, the appreciability threshold is lower than in the
case of agreements and practices that are not by their
very nature capable of affecting trade between Member
States. The stronger the market position of the under-
an
takings
agreement or practice
trade
between Member
can be held to do so
appreciably (31).

is
affecting

capable of

concerned,

the more

likely it

States

that

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46. In a number of cases concerning imports and exports the
Court of Justice has considered that the appreciability
requirement was fulfilled when the sales of the under-
takings concerned accounted for about 5 % of
the
market (32). Market
alone, however, has not
always been considered the decisive factor. In particular,
it is necessary also to take account of the turnover of the
undertakings in the products concerned (33).

share

that

the assessment
the agreement or practice to affect

47. Appreciability can thus be measured both in absolute
terms (turnover) and in relative terms, comparing the
position of
the undertaking(s) concerned to that of
other players on the market (market share). This focus
on the position and importance of
the undertakings
concerned is consistent with the concept ‘may affect’,
is based on the
which implies
trade
ability of
between Member States rather than on the impact on
actual flows of goods and services across borders. The
market position of the undertakings concerned and their
turnover in the products concerned are indicative of the
trade
ability of an agreement or practice to affect
between Member
are
States. These
reflected in the presumptions set out in paragraphs and
53 below.

two elements

is

the

appreciable. This

impact on trade

48. The application of the appreciability test does not neces-
sarily require that relevant markets be defined and market
shares calculated (34). The sales of an undertaking in
absolute terms may be sufficient to support a finding
that
is
particularly so in the case of agreements and practices
that by their very nature are liable to affect trade between
they concern
Member States,
imports or
several
Member States. The fact
in such circumstances
turnover
in the products covered by the agreement
may be sufficient for a finding of an appreciable effect
on trade between Member States is reflected in the
positive presumption set out in paragraph below.

exports or because

example because

they cover

that

for

49. Agreements and practices must always be considered in
the economic and legal context in which they occur. In
the case of vertical agreements it may be necessary to
have regard to any cumulative effects of parallel networks
of similar agreements (35). Even if a single agreement or
network of agreements is not capable of appreciably
affecting trade between Member States,
the effect of
parallel networks of agreements, taken as a whole, may
be capable of doing so. For that to be the case, however,
it is necessary that the individual agreement or network
of agreements makes a significant contribution to the
overall effect on trade (36).

2.4.2. Quantification of appreciability

50. It is not possible to establish general quantitative rules
covering all categories of agreements indicating when

do

not

affecting

appreciably

96/280/EC (38)

(SMEs)
Recommendation
capable of

is capable of being
trade between Member States
appreciably affected. It is possible, however, to indicate
when trade is normally not capable of being appreciably
in its notice on agreements of minor
affected. Firstly,
restrict
importance which
competition in the meaning of Article 81(1) of
the
rule) (37)
the Commission has
Treaty (the de minimis
stated that agreements between small and medium-sized
as defined in the Annex to
undertakings
are
Commission
normally not
trade between
Member States. The reason for this presumption is the
fact that the activities of SMEs are normally local or at
most regional in nature. However, SMEs may be subject
to Community law jurisdiction in particular where they
engage in cross-border economic activity. Secondly, the
Commission considers it appropriate to set out general
principles indicating when trade is normally not capable
of being appreciably affected, i.e. a standard defining the
absence of an appreciable effect on trade between
Member States (the NAAT-rule). When applying Article
the Commission will consider this standard as a
81,
all
negative
presumption
irres-
agreements within the meaning of Article 81(1)
the restrictions contained in
pective of the nature of
the agreement,
including restrictions that have been
identified as hardcore restrictions in Commission block
exemption regulations and guidelines. In cases where this
presumption applies the Commission will normally not
institute proceedings either upon application or on its
own initiative. Where the undertakings assume in good
faith that an agreement
is covered by this negative
presumption, the Commission will not impose fines.

rebuttable

applying

to

51. Without prejudice to paragraph below, this negative defi-
nition of appreciability does not imply that agreements,
which do not fall within the criteria set out below, are
automatically capable of appreciably affecting trade
between Member States. A case by case analysis is
necessary.

52. The Commission holds

in principle
agreements are not capable of appreciably affecting
trade between Member States when the following cumu-
lative conditions are met:

the view that

(a) The aggregate market share of the parties on any
relevant market within the Community affected by
the agreement does not exceed 5 %, and

(b) In the case of horizontal agreements, the aggregate
the undertakings
annual Community turnover of
concerned (39)
covered by the
in the products
agreement does not exceed 40 million euro. In the
case of agreements concerning the joint buying of
products the relevant turnover shall be the parties'
combined purchases of the products covered by the
agreement.

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the aggregate
In the case of vertical agreements,
annual Community turnover of the supplier in the
products covered by the agreement does not exceed
40 million euro. In the case of licence agreements the
relevant turnover shall be the aggregate turnover of
the licensees
incorporating the
licensed technology and the licensor's own turnover
in such products.
involving agreements
concluded between a buyer and several suppliers
the relevant turnover shall be the buyer's combined
purchases of the products covered by the agreements.

in the products

In cases

The Commission will apply the same presumption where
during two successive calendar years the above turnover
threshold is not exceeded by more than 10 % and the
above market threshold is not exceeded by more than 2
percentage points. In cases where the agreement concerns
an emerging not yet existing market and where as a
consequence
relevant
turnover nor accumulate any relevant market share, the
In such
Commission will not apply this presumption.
cases appreciability may have to be assessed on the
basis of the position of the parties on related product
markets or their strength in technologies relating to the
agreement.

the parties neither

generate

53. The Commission will also hold the view that where an
agreement by its very nature is capable of affecting trade
between Member States, for example, because it concerns
imports and exports or covers several Member States,
there is a rebuttable positive presumption that such
effects on trade are appreciable when the turnover of
the parties in the products covered by the agreement
calculated as
indicated in paragraphs 52 and 54
exceeds 40 million euro. In the case of agreements that
by their very nature are capable of affecting trade
between Member States it can also often be presumed
that such effects are appreciable when the market share
of the parties exceeds the 5 % threshold set out in the
previous paragraph. However, this presumption does not
apply where the agreement covers only part of a Member
State (see paragraph 90 below).

54. With regard to the threshold of 40 million euro (cf.
paragraph 52 above), the turnover is calculated on the
basis of total Community sales excluding tax during the
previous financial year by the undertakings concerned, of
the products covered by the agreement
(the contract
products). Sales between entities that form part of the
same undertaking are excluded (40).

55. In order

is
necessary to determine the relevant market (41). This

to apply the market share threshold,

it

consists of the relevant product market and the relevant
geographic market. The market
to be
calculated on the basis of sales value data or, where
appropriate, purchase value data. If value data are not
reliable market
estimates based on other
available,
information, including volume data, may be used.

shares

are

56. In the case of networks of agreements entered into by the
same supplier with different distributors, sales made
through the entire network are taken into account.

57. Contracts that form part of the same overall business
the
constitute a single agreement
arrangement
the NAAT-rule (42). Undertakings cannot
purposes of
bring themselves inside these thresholds by dividing up
an agreement
that forms a whole from an economic
perspective.

for

3. THE APPLICATION OF THE ABOVE PRINCIPLES TO
COMMON TYPES OF AGREEMENTS AND ABUSES

58. The Commission will apply the negative presumption set
out in the preceding section to all agreements, including
agreements that by their very nature are capable of
affecting trade between Member States as well as
agreements that involve trade with undertakings located
in third countries (cf. section 3.3 below).

59. Outside

the

that

agreement

the products

scope of negative presumption,

the
take account of qualitative elements
Commission will
relating to the nature of the agreement or practice and
the nature of
they concern (see
paragraphs and above). The relevance of the nature of
the
in the positive
also reflected
presumption set out in paragraph 53 above relating to
appreciability in the case of agreements that by their very
nature are capable of affecting trade between Member
States. With a view to providing additional guidance on
the application of
is
therefore useful to consider various common types of
agreements and practices.

the effect on trade concept

is

it

60. In the following sections a primary distinction is drawn
between agreements and practices that cover several
Member States and agreements and practices that are
confined to a single Member State or to part of a
single Member State. These two main categories are
broken down into further subcategories based on the
nature of the agreement or practice involved. Agreements
and practices involving third countries are also dealt
with.

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3.1. Agreements and abuse covering or implemented in
several Member States

61. Agreements and practices covering or implemented in
several Member States are in almost all cases by their
very nature capable of affecting trade between Member
States. When the relevant turnover exceeds the threshold
set out in paragraph above it will therefore in most cases
not be necessary to conduct a detailed analysis of
trade between Member States is capable of
whether
being affected. However,
in order to provide guidance
also in these cases and to illustrate the principles
developed in section 2 above,
to explain
what are the factors that are normally used to support
a finding of Community law jurisdiction.

is useful

it

3.1.1. Agreements concerning imports and exports

62. Agreements between undertakings

Such

States.

irrespective

agreements,

in two or more
Member States that concern imports and exports are by
their very nature capable of affecting trade between
Member
of
whether they are restrictive of competition or not, have
a direct impact on patterns of trade between Member
States.
example, which
concerned an agreement between a French producer
and a German distributor covering more than 10 % of
exports of cement from France to Germany, amounting
in total to 350 000 tonnes per year, the Court of Justice
held that it was impossible to take the view that such an
agreement was not capable of
(appreciably) affecting
trade between Member States (43).

In Kerpen & Kerpen,

for

63. This

that

includes

category

agreements

impose
restrictions on imports and exports, including restrictions
on active and passive sales and resale by buyers to
customers in other Member States (44).
In these cases
there is an inherent link between the alleged restriction
of competition and the effect on trade, since the very
purpose of the restriction is to prevent flows of goods
and services between Member States, which would
otherwise be possible.
the
is
parties
to the agreement are located in the same
Member State or in different Member States.

immaterial whether

It

When undertakings agree to allocate geographic terri-
tories, sales from other areas into the allocated territories
are capable of being eliminated or reduced. When under-
takings agree to fix prices, they eliminate competition
and any resulting price differentials that would entice
both competitors and customers to engage in cross-
border trade. When undertakings agree on sales quotas
traditional patterns of trade are preserved. The under-
takings concerned abstain from expanding output and
in other
thereby from serving potential
Member States.

customers

65. The effect on trade produced by cross-border cartels is
generally also by its very nature appreciable due to the
market position of the parties to the cartel. Cartels are
normally only formed when the participating under-
takings together hold a large share of the market, as
this allows them to raise price or reduce output.

3.1.3. Horizontal cooperation agreements covering several Member

States

all

the

66. This section covers various types of horizontal coop-
eration agreements. Horizontal cooperation agreements
may for instance take the form of agreements whereby
two or more undertakings cooperate in the performance
of a particular economic activity such as production and
distribution (46). Often such agreements are referred to as
joint ventures. However, joint ventures that perform on a
lasting basis
an autonomous
economic entity are covered by the Merger Regu-
lation (47). At
the Community such full
are not dealt with under
function joint ventures
Articles 81 and 82 except in cases where Article 2(4)
of the Merger Regulation is applicable (48). This section
therefore does not deal with full-function joint ventures.
In the case of non-full function joint ventures the joint
entity does not operate as an autonomous supplier (or
buyer) on any market. It merely serves the parents, who
themselves operate on the market (49).

functions of

the level of

3.1.2. Cartels covering several Member States

64. Cartel agreements such as those involving price fixing
and market sharing covering several Member States are
by their very nature capable of affecting trade between
Member States. Cross-border
the
conditions of competition and affect the interpenetration
of trade by cementing traditional patterns of trade (45).

cartels harmonise

67. Joint ventures which engage in activities in two or more
Member States or which produce an output that is sold
by the parents in two or more Member States affect the
commercial activities of the parties in those areas of the
Community. Such agreements are therefore normally by
their very nature capable of affecting trade between
Member States compared to the situation without the
agreement (50). Patterns of trade are affected when under-
takings switch their activities to the joint venture or use
it for the purpose of establishing a new source of supply
in the Community.

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68. Trade may also be capable of being affected where a joint
venture produces an input
for the parent companies,
which is subsequently further processed or incorporated
into a product by the parent undertakings. This is likely
to be the case where the input in question was previously
sourced from suppliers in other Member States, where
the parents previously produced the input
in other
Member States or where the final product is traded in
more than one Member State.

69. In the assessment of appreciability it is important to take
account of the parents' sales of products related to the
agreement and not only those of the joint entity created
by the agreement, given that the joint venture does not
operate as an autonomous entity on any market.

3.1.4. Vertical agreements implemented in several Member States

70. Vertical agreements and networks of similar vertical
agreements implemented in several Member States are
normally capable of affecting trade between Member
States if they cause trade to be channelled in a particular
way. Networks of selective distribution agreements imple-
mented in two or more Member States for example,
trade in a particular way because they limit
channel
thereby affecting
trade to members of
patterns of trade compared to the situation without the
agreement (51).

the network,

71. Trade between Member States is also capable of being
affected by vertical agreements that have foreclosure
effects. This may for instance be the case of agreements
whereby distributors in several Member States agree to
buy only from a particular supplier or to sell only its
products. Such agreements may limit trade between the
Member States in which the agreements are implemented,
trade from Member States not covered by the
or
agreements. Foreclosure may result
from individual
agreements or from networks of agreements. When an
agreement or networks of agreements that cover several
Member States have foreclosure effects, the ability of the
agreement or agreements to affect trade between Member
States is normally by its very nature appreciable.

72. Agreements between suppliers and distributors which
provide for resale price maintenance (RPM) and which
cover two or more Member States are normally also by
their very nature capable of affecting trade between
Member States (52). Such agreements alter
the price
levels
in the
that would have been likely to exist
absence of the agreements and thereby affect patterns
of trade.

3.1.5. Abuses of dominant positions covering several Member States

the

dominant

73. In the case of abuse of a dominant position it is useful to
distinguish between abuses that raise barriers to entry or
eliminate competitors (exclusionary abuses) and abuses
its
whereby
economic power for instance by charging excessive or
discriminatory prices (exploitative abuses). Both kinds of
abuse may be carried out either through agreements,
which are equally subject to Article 81(1), or through
unilateral
as Community
competition law is concerned is subject only to Article
82.

conduct, which

undertaking

exploits

far

as

74. In the case of exploitative abuses such as discriminatory
rebates, the impact is on downstream trading partners,
which either benefit or suffer, altering their competitive
position and affecting patterns of trade between Member
States.

less

likely

system are

to purchase

the dominant

75. When a dominant undertaking engages in exclusionary
conduct in more than one Member State, such abuse is
normally by its very nature capable of affecting trade
between Member States. Such conduct has a negative
impact on competition in an area extending beyond a
single Member State, being likely to divert trade from
the course it would have followed in the absence of
the abuse. For example, patterns of trade are capable of
being affected where the dominant undertaking grants
loyalty rebates. Customers covered by the exclusionary
rebate
from
firm than they would
competitors of
that aims
otherwise have done. Exclusionary conduct
directly at eliminating a competitor such as predatory
pricing is also capable of affecting trade between
Member States because of its impact on the competitive
market structure inside the Community (53). When a
dominant firm engages in behaviour with a view to elim-
inating a competitor operating in more than one Member
State, trade is capable of being affected in several ways.
First, there is a risk that the affected competitor will cease
to be a source of supply inside the Community. Even if
its future
the targeted undertaking is not eliminated,
competitive conduct is likely to be affected, which may
also have an impact on trade between Member States.
the abuse may have an impact on other
Secondly,
competitors.
the
abusive
its
dominant undertaking can signal to its competitors that
it will discipline attempts to engage in real competition.
Thirdly, the very fact of eliminating a competitor may be
sufficient for trade between Member States to be capable
of being affected. This may be the case even where the
undertaking that risks being eliminated mainly engages in
effective
exports
structure inside the Community
competitive market
risks being further impaired,
there is Community law
jurisdiction.

to third countries (54). Once

behaviour

Through

the

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76. Where a dominant undertaking engages in exploitative or
exclusionary abuse in more than one Member State, the
capacity of the abuse to affect trade between Member
States will normally also by its very nature be appre-
ciable. Given the market position of the dominant under-
taking concerned, and the fact that the abuse is imple-
mented in several Member States, the scale of the abuse
and its likely impact on patterns of trade is normally such
that trade between Member States is capable of being
In the case of an exploitative
appreciably affected.
abuse such as price discrimination, the abuse alters the
competitive position of
in several
Member States.
In the case of exclusionary abuses,
including abuses that aim at eliminating a competitor,
the economic activity engaged in by competitors in
several Member States is affected. The very existence of
a dominant position in several Member States implies
that competition in a substantial part of the common
market is already weakened (55). When a dominant under-
taking further weakens competition through recourse to
a
abusive
competitor,
trade
between Member States is normally appreciable.

the abuse to affect

trading partners

the ability of

eliminating

conduct,

example

for

by

3.2. Agreements and abuses covering a single, or only part
of a, Member State

77. When agreements or abusive practices cover the territory
of a single Member State, it may be necessary to proceed
with a more detailed inquiry into the ability of
the
agreements or abusive practices to affect trade between
Member States. It should be recalled that for there to be
an effect on trade between Member States it
is not
required that trade is reduced.
It is sufficient that an
appreciable change is capable of being caused in the
pattern of trade between Member States. Nevertheless,
in many cases involving a single Member State the
nature of the alleged infringement, and in particular, its
propensity to foreclose the national market, provides a
good indication of
the agreement or
the capacity of
trade between Member States. The
practice to affect
examples mentioned hereafter are not exhaustive. They
merely provide examples of cases where agreements
confined to the territory of a single Member State can
be considered capable of affecting trade between Member
States.

3.2.1. Cartels covering a single Member State

78. Horizontal cartels covering the whole of a Member State
are normally capable of affecting trade between Member
States. The Community Courts have held in a number of
cases that agreements extending over the whole territory
of a Member State by their very nature have the effect of
reinforcing the partitioning of markets on a national
basis by hindering the economic penetration which the
Treaty is designed to bring about (56).

79. The capacity of such agreements to partition the internal
market follows from the fact that undertakings partici-

If

pating in cartels in only one Member State, normally
need to take action to exclude competitors from other
Member States (57).
they do not, and the product
the cartel
covered by the agreement
risks being undermined by competition from under-
takings from other Member States. Such agreements are
normally also by their very nature capable of having an
appreciable effect on trade between Member States, given
the market coverage required for such cartels to be
effective.

is tradable (58),

80. Given the

the

fact

that

effect on trade

concept
encompasses potential effects, it is not decisive whether
such action against competitors from other Member
States is in fact adopted at any given point in time. If
the cartel price is similar to the price prevailing in other
Member States, there may be no immediate need for the
members of the cartel to take action against competitors
from other Member States. What matters is whether or
not they are likely to do so, if market conditions change.
that depends on the existence or
The likelihood of
otherwise of natural barriers to trade in the market,
including in particular whether or not the product in
In a case involving certain retail
question is tradable.
banking services (59)
for
the Court of
example, held that
trade was not capable of being
appreciably affected because the potential for trade in
the specific products concerned was very limited and
because they were not an important
in the
choice made by undertakings from other Member States
regarding whether or not to establish themselves in the
Member State in question (60).

Justice has,

factor

the extent

81. The extent to which the members of a cartel monitor
prices and competitors from other Member States can
to which the
provide an indication of
products covered by the cartel are tradable. Monitoring
suggests that competition and competitors from other
Member States are perceived as a potential threat to the
cartel. Moreover, if there is evidence that the members of
in the
the cartel have deliberately fixed the price level
light of the price level prevailing in other Member States
(limit pricing),
it is an indication that the products in
question are tradable and that trade between Member
States is capable of being affected.

82. Trade is normally also capable of being affected when the
members of a national cartel
temper the competitive
constraint imposed by competitors from other Member
States by inducing them to join the restrictive agreement,
their exclusion from the agreement places the
or if
competitors at a competitive disadvantage (61).
In such
cases the agreement either prevents these competitors
from exploiting any competitive advantage that
they
have, or raises their costs, thereby having a negative
impact on their competitiveness and their sales. In both

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the

the

hampers

agreement

of
cases
competitors from other Member States on the national
in question. The same is true when a cartel
market
agreement
is
resell products
that
concluded between undertakings
imported from other Member States (62).

single Member State

confined to a

operations

3.2.2. Horizontal cooperation agreements covering a single Member

State

function joint ventures

83. Horizontal cooperation agreements and in particular
(cf. paragraph 66
non-full
above), which are confined to a single Member State
and which do not directly relate to imports and
exports, do not belong to the category of agreements
that by their very nature are capable of affecting trade
between Member States. A careful examination of the
capacity of
trade
to affect
the individual agreement
between Member States may therefore be required.

84. Horizontal cooperation agreements may, in particular, be
capable of affecting trade between Member States where
they have foreclosure effects. This may be the case with
agreements that establish sector-wide standardisation and
certification regimes, which either exclude undertakings
from other Member States or which are more easily
fulfilled by undertakings from the Member State in
question due to the fact
they are based on
national rules and traditions. In such circumstances the
agreements make it more difficult for undertakings from
other Member States to penetrate the national market.

that

a

establish

purchasing

85. Trade may also be affected where a joint venture results
in undertakings from other Member States being cut off
from an important channel of distribution or source of
demand. If, for example, two or more distributors estab-
lished within the same Member State, and which account
for a substantial share of imports of the products in
question,
venture
combining their purchases of that product, the resulting
reduction in the number of distribution channels limits
the possibility for suppliers from other Member States of
gaining access to the national market in question. Trade
is therefore capable of being affected (63). Trade may also
undertakings which previously
be
form a joint venture
imported a particular product
which is entrusted with the production of that same
product. In this case the agreement causes a change in
the patterns of trade between Member States compared
to the situation before the agreement.

affected where

joint

3.2.3. Vertical agreements covering a single Member State

86. Vertical agreements covering the whole of a Member
State may, in particular, be capable of affecting patterns
of trade between Member States when they make it more
difficult for undertakings from other Member States to
in question, either by
penetrate the national market

means of exports or by means of establishment (fore-
closure effect). When vertical agreements give rise to
they contribute to the parti-
such foreclosure effects,
tioning of markets on a national basis,
thereby
interpenetration which the
hindering the
Treaty is designed to bring about (64).

economic

87. Foreclosure may,

the Court of

for example, occur when suppliers
impose exclusive purchasing obligations on buyers (65).
In Delimitis (66), which concerned agreements between a
brewer
and owners of premises where beer was
consumed whereby the latter undertook to buy beer
exclusively from the brewer,
Justice
defined foreclosure as the absence, due to the agreements,
of real and concrete possibilities of gaining access to the
market. Agreements normally only create significant
barriers to entry when they cover a significant proportion
of the market. Market share and market coverage can be
In making the
used as an indicator in this respect.
the
assessment account must be taken not only of
in
agreement or network of agreements
particular
question, but
also of other parallel networks of
agreements having similar effects (67).

88. Vertical agreements which cover the whole of a Member
State and which relate to tradable products may also be
capable of affecting trade between Member States, even if
they do not create direct obstacles to trade. Agreements
whereby undertakings engage in resale price maintenance
(RPM) may have direct effects on trade between Member
States by increasing imports from other Member States
and by decreasing exports from the Member State in
question (68). Agreements involving RPM may also affect
patterns of trade in much the same way as horizontal
cartels. To the extent that the price resulting from RPM is
higher than that prevailing in other Member States this
price level
imports from other
is only sustainable if
Member States can be controlled.

3.2.4. Agreements covering only part of a Member State

89. In qualitative

the

terms

assessment of

agreements
covering only part of a Member State is approached in
the same way as in the case of agreements covering the
whole of a Member State. This means that the analysis in
section 2 applies.
In the assessment of appreciability,
however, the two categories must be distinguished, as it
must be taken into account that only part of a Member
State is covered by the agreement. It must also be taken
into account what proportion of the national territory is
susceptible to trade. If, for example, transport costs or the
operating radius of equipment render it economically
unviable for undertakings from other Member States to
serve the entire territory of another Member State, trade
is capable of being affected if the agreement forecloses
access to the part of the territory of a Member State that
is susceptible to trade, provided that this part is not
insignificant (69).

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90. Where an agreement

forecloses access to a regional
market, then for trade to be appreciably affected, the
volume of sales affected must be significant in proportion
to the overall volume of sales of the products concerned
inside the Member State in question. This assessment
cannot be based merely on geographic coverage. The
market share of the parties to the agreement must also
be given fairly limited weight. Even if the parties have a
high market share in a properly defined regional market,
the size of that market in terms of volume may still be
the
insignificant when compared to total
products
in
concerned within the Member
question. In general, the best indicator of the capacity
of the agreement to (appreciably) affect trade between
Member States is therefore considered to be the share
of the national market in terms of volume that is being
foreclosed. Agreements covering areas with a high
concentration of demand will thus weigh more heavily
than those covering areas where demand is less concen-
trated. For Community jurisdiction to be established the
share of the national market that is being foreclosed must
be significant.

sales of
State

91. Agreements that are local in nature are in themselves not
capable of appreciably affecting trade between Member
States. This is the case even if the local market is located
in a border region. Conversely, if the foreclosed share of
the national market is significant,
trade is capable of
being affected even where the market in question is not
located in a border region.

substantial part of

92. In cases in this category some guidance may be derived
from the case law concerning the concept in Article 82
common market (70).
of
a
Agreements
effect of
hindering competitors from other Member States from
to part of a Member State, which
gaining access
constitutes a substantial part of the common market,
should be considered to have an appreciable effect on
trade between Member States.

example, have

that,

the

the

for

3.2.5. Abuses of dominant positions covering a single Member State

it more difficult

93. Where an undertaking, which holds a dominant position
covering the whole of a Member State, engages in
trade between Member States is
exclusionary abuses,
normally capable of being
affected. Such abusive
for
conduct will generally make
competitors from other Member States to penetrate the
market,
in which case patterns of trade are capable of
being affected (71). In Michelin (72), for example, the Court
of Justice held that a system of loyalty rebates foreclosed
competitors from other Member States and therefore
affected trade within the meaning of Article 82.
In
Rennet (73) the Court similarly held that an abuse in the
form of an exclusive purchasing obligation on customers
foreclosed products from other Member States.

94. Exclusionary abuses that affect the competitive market
structure inside a Member State, for instance by elim-
inating or threatening to eliminate a competitor, may
also be capable of affecting trade between Member
States. Where the undertaking that risks being eliminated
only operates in a single Member State, the abuse will
normally not affect
trade between Member States.
However,
trade between Member States is capable of
being affected where the targeted undertaking exports
to or imports from other Member States (74) and where
it also operates in other Member States (75). An effect on
trade may arise from the dissuasive impact of the abuse
on other competitors. If through repeated conduct the
dominant undertaking has acquired a reputation for
competitors
adopting exclusionary practices
that attempt to engage in direct competition, competitors
from other Member States are likely to compete less
aggressively, in which case trade may be affected, even
if the victim in the case at hand is not from another
Member State.

towards

Price

affect

between

discrimination

95. In the case of exploitative abuses such as price discrimi-
nation and excessive pricing, the situation may be more
complex.
domestic
customers will normally not
trade between
it may do so if the buyers
Member States. However,
are engaged in export activities and are disadvantaged
by the discriminatory pricing or if this practice is used
to prevent imports (76). Practices consisting of offering
lower prices to customers that are the most likely to
import products from other Member States may make
it more difficult
for competitors from other Member
States to enter the market. In such cases trade between
Member States is capable of being affected.

access

the whole of a Member State it

96. As long as an undertaking has a dominant position
which covers
is
normally immaterial whether the specific abuse engaged
in by the dominant undertaking only covers part of its
territory or affects certain buyers within the national
firm can significantly impede
territory. A dominant
trade by engaging in abusive conduct in the areas or
vis-à-vis the customers that are the most likely to be
targeted by competitors from other Member States. For
example, it may be the case that a particular channel of
distribution constitutes a particularly important means of
gaining
consumers.
Hindering access to such channels can have a substantial
impact on trade between Member States.
In the
assessment of appreciability it must also be taken into
account that the very presence of the dominant under-
taking covering the whole of a Member State is likely to
make market penetration more difficult. Any abuse
which makes it more difficult
to enter the national
market should therefore be considered to appreciably
affect trade. The combination of the market position of
the dominant undertaking and the anti-competitive
nature of
implies that such abuses have
normally by their very nature an appreciable effect on
trade. However, if the abuse is purely local in nature or

to broad categories of

its conduct

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involves only an insignificant share of the sales of the
dominant undertaking within the Member State in
question, trade may not be capable of being appreciably
affected.

influence, direct or indirect, actual or potential, on the
pattern of trade between Member States, also applies in
the case of agreements and abuses which involve under-
takings located in third countries or which relate to
imports or exports with third countries.

3.2.6. Abuse of a dominant position covering only part of a Member

State

97. Where a dominant position covers only part of a
Member State some guidance may, as in the case of
agreements, be derived from the condition in Article
82 that the dominant position must cover a substantial
part of the common market. If the dominant position
covers part of a Member State that constitutes a
substantial part of the common market and the abuse
makes
from other
Member States to gain access to the market where the
undertaking is dominant, trade between Member States
must
being
considered
be
appreciably affected.

it more difficult

for competitors

normally

capable

of

98. In the application of this criterion regard must be had in
particular to the size of the market in question in terms
of volume. Regions and even a port or an airport situated
in a Member State may, depending on their importance,
constitute a substantial part of the common market (77).
In the latter cases it must be taken into account whether
the infrastructure in question is used to provide cross-
border services and, if so, to what extent. When infra-
structures such as airports and ports are important in
providing cross-border services, trade between Member
States is capable of being affected.

99. As in the case of dominant positions covering the whole
of a Member State (cf. paragraph 95 above), trade may
not be capable of being appreciably affected if the abuse
is purely local in nature or involves only an insignificant
share of the sales of the dominant undertaking.

3.3. Agreements
and
exports with undertakings located in third countries,
involving undertakings
and agreements and practices

and abuses

involving

imports

located in third countries

3.3.1. General remarks

100. Articles 81 and 82 apply to agreements and practices
that are capable of affecting trade between Member
States even if one or more of the parties are located
outside the Community (78). Articles 81 and 82 apply
irrespective of where the undertakings are located or
where the agreement has been concluded, provided that
the agreement or practice is either implemented inside
the Community (79), or produce
the
Community (80). Articles 81 and 82 may also apply to
third countries,
agreements and practices
provided that
affecting trade
they are
between Member States. The general principle set out
in section 2 above according to which the agreement
or practice must be capable of having an appreciable

that cover
capable of

effects

inside

is sufficient

101. For the purposes of establishing Community law juris-
that an agreement or practice
diction it
located in
involving third countries or undertakings
is capable of affecting cross-border
third countries
economic activity inside the Community.
Import into
one Member State may be sufficient to trigger effects of
this nature.
conditions of
competition in the importing Member State, which in
turn can have an impact on exports and imports of
competing products to and from other Member States.
In other words,
imports from third countries resulting
from the agreement or practice may cause a diversion
of trade between Member States, thus affecting patterns
of trade.

can affect

Imports

the

102. In the application of the effect on trade criterion to the
above mentioned agreements and practices it is relevant
to examine, inter alia, what is the object of the agreement
or practice as indicated by its content or the underlying
intent of the undertakings involved (81).

103. Where

is

the object of

the agreement

to restrict
competition inside the Community the requisite effect
on trade between Member States is more readily estab-
lished than where the object is predominantly to regulate
competition outside the Community.
Indeed in the
former case the agreement or practice has a direct
impact on competition inside the Community and trade
between Member States. Such agreements and practices,
which may concern both imports and exports, are
normally by their very nature capable of affecting trade
between Member States.

3.3.2. Arrangements that have as their object
competition inside the Community

the restriction of

104. In the case of imports, this category includes agreements
that bring about an isolation of the internal market (82).
This is, for instance, the case of agreements whereby
competitors in the Community and in third countries
in each
share markets, e.g. by agreeing not
other's home markets or by concluding reciprocal
(exclusive) distribution agreements (83).

to sell

105. In the case of exports, this category includes cases where
undertakings that compete in two or more Member
States agree to export certain (surplus) quantities to
third countries with a view to co-ordinating their
inside the Community. Such export
market conduct
agreements
competition by
to reduce price
limiting output inside the Community, thereby affecting
trade between Member States. Without
export
agreement these quantities might have been sold inside
the Community (84).

serve

the

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3.3.3. Other arrangements

106. In the case of agreements and practices whose object is
not to restrict competition inside the Community, it is
normally necessary to proceed with a more detailed
economic
analysis of whether or not
activity inside the Community, and thus patterns of
trade between Member States, are capable of being
affected.

cross-border

107. In this regard it is relevant to examine the effects of the
agreement or practice on customers and other operators
inside the Community that rely on the products of the
undertakings
to the agreement or
that are parties
In Compagnie maritime belge (86), which
practice (85).
concerned agreements between shipping companies
operating between Community ports and West African
the agreements were held to be capable of
ports,
States
indirectly
the
because
Community ports
and
covered by the
because they affected the activities of other undertakings
inside those areas. More specifically,
the agreements
affected the activities of undertakings that relied on the
parties for transportation services, either as a means of
transporting goods purchased in third countries or sold
there, or as an important input into the services that the
ports themselves offered.

between Member
catchment

trade
they altered the

areas of
agreements

affecting

108. Trade may also be capable of being affected when the
agreement prevents re-imports into the Community. This
may, for example, be the case with vertical agreements

and

third

suppliers

country
between Community
imposing restrictions on resale outside an
distributors,
including the Community. If in the
allocated territory,
absence of
resale to the Community
would be possible and likely, such imports may be
capable of
the
Community (87).

affecting patterns of

the agreement

inside

trade

109. However, for such effects to be likely, there must be an
appreciable difference between the prices of the products
charged in the Community and those charged outside the
Community, and this price difference must not be eroded
by customs duties and transport costs. In addition, the
product volumes exported compared to the total market
for those products in the territory of the common market
must not be insignificant (88). If these product volumes
are insignificant compared to those sold inside the
Community, the impact of any re-importation on trade
between Member States is considered not to be appre-
ciable. In making this assessment, regard must be had not
only to the individual agreement concluded between the
parties, but also to any cumulative effect of similar
agreements concluded by the same and competing
the product
suppliers.
volumes covered by a single agreement are quite small,
but that the product volumes covered by several such
agreements are significant. In that case the agreements
taken as a whole may be capable of appreciably
It should be
affecting trade between Member States.
recalled, however (cf. paragraph 49 above), that the indi-
vidual agreement or network of agreements must make a
significant contribution to the overall effect on trade.

for example,

It may be,

that

(1) OJ C 368, 22.12.2001, p. 13.
(2) OJ L 1, 4.1.2003, p. 1.
(3) See e.g. Joined Cases 56/64 and 58/64, Consten and Grundig, [1966] ECR p. 429, and Joined Cases 6/73 and 7/73, Commercial Solvents, [1974]

ECR p. 223.

(4) See in this respect Case 22/71, Béguelin, [1971] ECR p. 949, paragraph 16.
(5) See Case 193/83, Windsurfing, [1986] ECR p. 611, paragraph 96, and Case T-77/94, Vereniging van Groothandelaren in Bloemkwekerijpro-

dukten, [1997] ECR II-759, paragraph 126.

(6) See paragraphs 142 to 144 of the judgment in Vereniging van Groothandelaren in Bloemkwekerijprodukteten cited in the previous footnote.
(7) See e.g. Case T-2/89, Petrofina, [1991] ECR II-1087, paragraph 226.
(8) The concept of appreciability is dealt with in section 2.4 below.
(9) See in this respect Case 85/76, Hoffmann-La Roche, [1979] ECR p. 461, paragraph 126.
(10) Throughout these guidelines the term ‘products’ covers both goods and services.
(11) See Case 172/80, Züchner, [1981] ECR p. 2021, paragraph 18. See also Case C-309/99, Wouters, [2002] ECR I-1577, paragraph 95, Case
C-475/99, Ambulanz Glöckner, [2001] ECR I-8089, paragraph 49, Joined Cases C-215/96 and 216/96, Bagnasco, [1999] ECR I-135, paragraph
51, Case C-55/96, Job Centre, [1997] ECR I-7119, paragraph 37, and Case C-41/90, Höfner and Elser, [1991] ECR I-1979, paragraph 33.
(12) See e.g. Joined Cases T-24/93 and others, Compagnie maritime belge, [1996] ECR II-1201, paragraph 203, and paragraph 23 of the judgment in

Commercial Solvents cited in footnote.

(13) See e.g. Joined Cases T-213/95 and T-18/96, SCK and FNK, [1997] ECR II-1739, and sections 3.2.4 and 3.2.6 below.
(14) See section 3.2 below.
(15) See e.g. the judgment in Züchner cited in footnote 11 and Case 319/82, Kerpen & Kerpen, [1983] ECR 4173, Joined Cases 240/82 and others,
Stichting Sigarettenindustrie, [1985] ECR 3831, paragraph 48, and Joined Cases T-25/95 and others, Cimenteries CBR, [2000] ECR II-491,
paragraph 3930.

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(16) In some judgments mainly relating to vertical agreements the Court of Justice has added wording to the effect that the agreement was capable of
hindering the attainment of the objectives of a single market between Member States, see e.g. Case T-62/98, Volkswagen, [2000] ECR II-2707,
paragraph 179, and paragraph 47 of the Bagnasco judgment cited in footnote 11, and Case 56/65, Société Technique Minière, [1966] ECR 337.
The impact of an agreement on the single market objective is thus a factor which can be taken into account.

(17) See e.g. Case T-228/97, Irish Sugar, [1999] ECR II-2969, paragraph 170, and Case 19/77, Miller, [1978] ECR 131, paragraph 15.
(18) See e.g. Case C-250/92, Gøttrup-Klim [1994] ECR II-5641, paragraph 54.
(19) See e.g. Case C-306/96, Javico, [1998] ECR I-1983, paragraph 17, and paragraph 18 of the judgment in Béguelin cited in footnote 4.
(20) Compare in this respect the judgments in Bagnasco and Wouters cited in footnote 11.
(21) See e.g. Case T-141/89, Tréfileurope, [1995] ECR II-791, Case T-29/92, Vereniging van Samenwerkende Prijsregelende Organisaties in de
Bouwnijverheid (SPO), [1995] ECR II-289, as far as exports were concerned, and Commission Decision in Volkswagen (II) (OJ L 264, 2.10.2001,
p. 14).

(22) See in this respect Case 71/74, Frubo, [1975] ECR 563, paragraph 38, Joined Cases 209/78 and others, Van Landewyck, [1980] ECR 3125,
paragraph 172, Case T-61/89, Dansk Pelsdyravler Forening, [1992] ECR II-1931, paragraph 143, and Case T-65/89, BPB Industries and British
Gypsum, [1993] ECR II-389, paragraph 135.

(23) See in this respect Case T-86/95, Compagnie Générale Maritime and others, [2002] ECR II-1011, paragraph 148, and paragraph 202 of the

judgment in Compagnie maritime belge cited in footnote 12.
(24) See Case 123/83, BNIC v Clair, [1985] ECR 391, paragraph 29.
(25) See Commission Decision in Zanussi, OJ L 322, 16.11.1978, p. 36, paragraph 11.
(26) See in this respect Case 31/85, ETA Fabrique d'Ébauches, [1985] ECR 3933, paragraphs 12 and 13.
(27) See Joined Cases C-241/91 P and C-242/91 P, RTE (Magill), [1995] ECR I-743, paragraph 70, and Case 107/82, AEG, [1983] ECR 3151,

paragraph 60.

(28) See paragraph 60 of the AEG judgment cited in the previous footnote.
(29) See Case 5/69, Völk, [1969] ECR 295, paragraph 7.
(30) See e.g. paragraph 17 of the judgment in Javico cited in footnote 19, and paragraph 138 of the judgment in BPB Industries and British Gypsum

cited in footnote 22.

(31) See paragraph 138 of the judgment in BPB Industries and British Gypsum cited in footnote 22.
(32) See e.g. paragraphs 9 and 10 of the Miller judgment cited in footnote 17, and paragraph 58 of the AEG judgment cited in footnote 27.
(33) See Joined Cases 100/80 and others, Musique Diffusion Française, [1983] ECR 1825, paragraph 86. In that case the products in question
accounted for just above 3 % of sales on the national markets concerned. The Court held that the agreements, which hindered parallel trade, were
capable of appreciably affecting trade between Member States due to the high turnover of the parties and the relative market position of the
products, compared to those of products produced by competing suppliers.

(34) See in this respect paragraphs 179 and 231 of the Volkswagen judgment cited in footnote 16, and Case T-213/00, CMA CGM and others, [2003]

ECR I-, paragraphs 219 and 220.

(35) See e.g. Case T-7/93, Langnese-Iglo, [1995] ECR II-1533, paragraph 120.
(36) See paragraphs 140 and 141 of the judgment in Vereniging van Groothandelaren in Bloemkwekerijprodukten cited in footnote 5.
(37) See Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty (OJ

C 368, 22.12.2001, p. 13, paragraph 3).

(38) OJ L 107, 30.4.1996, p. 4. With effect from 1.1.2005 this recommendation will be replaced by Commission Recommendation 2003/361/EC

concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

(39) The term ‘undertakings concerned’ shall include connected undertakings as defined in paragraph 12.2 of the Commission's Notice on agreements
of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (OJ C
368, 22.12.2001, p. 13).
(40) See the previous footnote.
(41) When defining the relevant market, reference should be made to the notice on the definition of the relevant market for the purposes of

Community competition law (OJ C 372, 9.12.1997, p. 5).

(42) See also paragraph 14 above.
(43) See paragraph 8 of the judgment in Kerpen & Kerpen cited in footnote 15. It should be noted that the Court does not refer to market share but to

the share of French exports and to the product volumes involved.

(44) See e.g. the judgment in Volkswagen cited in footnote 16 and Case T-175/95, BASF Coatings, [1999] ECR II-1581. For a horizontal agreement to

prevent parallel trade see Joined Cases 96/82 and others, IAZ International, [1983] ECR 3369, paragraph 27.

(45) See e.g. Case T-142/89, Usines Gustave Boël, [1995] ECR II-867, paragraph 102.
(46) Horizontal cooperation agreements are dealt with in the Commission Guidelines on the applicability of Article 81 of the EC Treaty to horizontal
cooperation agreements (OJ C 3, 6.1.2001, p. 2). Those guidelines deal with the substantive competition assessment of various types of
agreements but do not deal with the effect on trade issue.

(47) See Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1).
(48) The Commission Notice on the concept of full-function joint ventures under the Merger Regulation (OJ C 66, 2.3.1998, p. 1) gives guidance on

the scope of this concept.

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(49) See e.g. the Commission Decision in Ford/Volkswagen (OJ L 20, 28.1.1993, p. 14).
(50) See in this respect paragraph 146 of the Compagnie Générale Maritime judgment cited in footnote 23 above.
(51) See in this respect Joined Cases 43/82 and 63/82, VBVB and VBBB, [1984] ECR 19, paragraph 9.
(52) See in this respect Case T-66/89, Publishers Association, [1992] ECR II-1995.
(53) See in this respect the judgment in Commercial Solvents cited in footnote 3, in the judgment in Hoffmann-La Roche, cited in footnote, paragraph
125, and in RTE and ITP cited in footnote, as well as Case 6/72, Continental Can, [1973] ECR 215, paragraph 16, and Case 27/76, United Brands,
[1978] ECR 207, paragraphs 197 to 203.

(54) See paragraphs 32 and 33 of the judgment in Commercial Solvents cited in footnote 3.
(55) According to settled case law dominance is a position of economic strength enjoyed by an undertaking which enables it to prevent effective
competition being maintained on the relevant market by affording it the power to act to an appreciable extent independently of its competitors,
its customers and ultimately of the consumers, see e.g. paragraph 38 of the judgment in Hoffmann-La Roche cited in footnote 9.

(56) See for a recent example paragraph 95 of the Wouters judgment cited in footnote 11.
(57) See e.g. Case 246/86, Belasco, [1989] ECR 2117, paragraph 32-38.
(58) See paragraph 34 of the Belasco judgment cited in the previous footnote and more recently Joined Cases T-202/98 a.o., British Sugar, [2001] ECR
II-2035, paragraph 79. On the other hand this is not so when the market is not susceptible to imports, see paragraph 51 of the Bagnasco
judgment cited in footnote 11.

(59) Guarantees for current account credit facilities.
(60) See paragraph 51 of the Bagnasco judgment cited in footnote 11.
(61) See in this respect Case 45/85, Verband der Sachversicherer, [1987] ECR 405, paragraph 50, and Case C-7/95 P, John Deere, [1998] ECR I-3111.
See also paragraph 172 of the judgment in Van Landewyck cited in footnote 22, where the Court stressed that the agreement in question reduced
appreciably the incentive to sell imported products.

(62) See e.g. the judgment in Stichting Sigarettenindustrie, cited in footnote 15, paragraphs 49 and 50.
(63) See in this respect Case T-22/97, Kesko, [1999] ECR II-3775, paragraph 109.
(64) See e.g. Case T-65/98, Van den Bergh Foods, [2003] ECR II-. . ., and the judgment in Langnese-Iglo, cited in footnote 35 paragraph 120.
(65) See e.g. judgment of 7.12.2000, Case C-214/99, Neste, ECR I-11121.
(66) See judgment of 28.2.1991, Case C-234/89, Delimitis, ECR I-935.
(67) See paragraph 120 of the Langnese-Iglo judgment cited in footnote 35.
(68) See e.g. Commission Decision in Volkswagen (II), cited in footnote 21, paragraphs 81 et seq.
(69) See in this respect paragraphs 177 to 181 of the judgment in SCK and FNK cited in footnote 13.
(70) See as to this notion the judgment in Ambulanz Glöckner, cited in footnote 11, paragraph 38, and Case C-179/90, Merci convenzionali porto di

Genova, [1991] ECR I-5889, and Case C-242/95, GT-Link, [1997] ECR I-4449.

(71) See e.g. paragraph 135 of the judgment in BPB Industries and British Gypsum cited in footnote.
(72) See Case 322/81, Nederlandse Banden Industrie Michelin, [1983] ECR 3461
(73) See Case 61/80, Coöperative Stremsel- en Kleurselfabriek, [1981] ECR 851, paragraph 15.
(74) See in this respect judgment in Irish Sugar, cited in footnote 17 paragraph 169.
(75) See paragraph 70 of the judgment in RTE (Magill) cited in footnote 27.
(76) See the judgment in Irish Sugar cited in footnote 17.
(77) See e.g. the case law cited in footnote 70.
(78) See in this respect Case 28/77, Tepea, [1978] ECR 1391, paragraph 48, and paragraph 16 of the judgment in Continental Can cited in footnote

53.

(79) See Joined Cases C-89/85 and others, Ahlström Osakeyhtiö (Woodpulp), [1988] ECR 651, paragraph 16.
(80) See in this respect Case T-102/96, Gencor, [1999] ECR II-753, which applies the effects test in the field of mergers.
(81) See to that effect paragraph 19 of the judgment in Javico cited in footnote 19.
(82) See in this respect Case 51/75, EMI v CBS, [1976] ECR 811, paragraphs 28 and 29.
(83) See Commission Decision in Siemens/Fanuc (OJ L 376, 31.12.1985, p. 29).
(84) See in this respect Joined Cases 29/83 and 30/83, CRAM and Rheinzinc, [1984] ECR 1679, and Joined Cases 40/73 and others, Suiker Unie,

[1975] ECR 1663, paragraphs 564 and 580.

(85) See paragraph 22 of the judgment in Javico cited in footnote 19.
(86) See paragraph 203 of the judgment in Compagnie maritime belge cited in footnote 12.
(87) See in this respect the judgment in Javico cited in footnote 19.
(88) See in this respect paragraphs 24 to 26 of the Javico judgment cited in footnote 19.

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COMMUNICATION FROM THE COMMISSION

Notice

Guidelines on the application of Article 81(3) of the Treaty

(2004/C 101/08)

(Text with EEA relevance)

1. INTRODUCTION

1. Article 81(3) of the Treaty sets out an exception rule,
which provides a defence to undertakings against a
finding of an infringement of Article 81(1) of
the
Treaty. Agreements, decisions of associations of under-
takings and concerted practices (1) caught by Article
81(1) which satisfy the conditions of Article 81(3) are
valid and enforceable, no prior decision to that effect
being required.

2. Article 81(3) can be applied in individual cases or to
categories of agreements and concerted practices by
way of block exemption regulation. Regulation 1/2003
the competition rules laid
on the implementation of
down in Articles 81 and 82 (2) does not affect
the
validity and legal nature of block exemption regulations.
All existing block exemption regulations remain in force
and agreements covered by block exemption regulations
are legally valid and enforceable even if
they are
restrictive of competition within the meaning of Article
81(1) (3). Such agreements can only be prohibited for the
future and only upon formal withdrawal of the block
exemption by the Commission or a national competition
authority (4). Block exempted agreements cannot be held
invalid by national courts in the context of private liti-
gation.

and

technology

agreements

3. The existing guidelines on vertical restraints, horizontal
transfer
cooperation
agreements (5) deal with the application of Article 81 to
various types of agreements and concerted practices. The
purpose of
the
guidelines
Commission's
assessment
the
criteria applied to the various types of agreements and
practices.

those
view of

to set out

substantive

is

4. The present guidelines set out the Commission's interpre-
tation of the conditions for exception contained in Article
81(3). It thereby provides guidance on how it will apply
Article 81 in individual cases. Although not binding on
them, these guidelines also intend to give guidance to the
courts and authorities of
the Member States in their
application of Article 81(1) and (3) of the Treaty.

5. The guidelines establish an analytical framework for the
application of Article 81(3). The purpose is to develop a
methodology for the application of this Treaty provision.
This methodology is based on the economic approach
already introduced and developed in the guidelines on

restraints, horizontal co-operation agreements
vertical
and technology transfer agreements. The Commission
will follow the present guidelines, which provide more
application of
detailed guidance on the
four
than the guidelines on
conditions of Article 81(3)
vertical
restraints, horizontal co-operation agreements
and technology transfer agreements, also with regard to
agreements covered by those guidelines.

the

6. The standards set forth in the present guidelines must be
applied in light of the circumstances specific to each case.
This excludes a mechanical application. Each case must
be assessed on its own facts and the guidelines must be
applied reasonably and flexibly.

7. With regard to a number of issues, the present guidelines
outline the current state of the case law of the Court of
Justice. However, the Commission also intends to explain
its policy with regard to issues that have not been dealt
with in the case law, or that are subject to interpretation.
The Commission's
is without
prejudice to the case law of the Court of Justice and
the Court of First Instance concerning the interpretation
of Article 81(1) and (3), and to the interpretation that the
Community Courts may give to those provisions in the
future.

however,

position,

2. THE GENERAL FRAMEWORK OF ARTICLE 81 EC

2.1. The Treaty provisions

8. Article 81(1) prohibits all agreements between under-
takings, decisions by associations of undertakings and
concerted practices which may affect
trade between
Member States (6) and which have as their object or
effect
restriction or distortion of
competition (7).

the prevention,

9. As an exception to this rule Article 81(3) provides that
the prohibition contained in Article 81(1) may be
declared inapplicable
in case of agreements which
contribute to improving the production or distribution
of goods or
economic
progress, while allowing consumers a fair share of the
resulting benefits, and which do not impose restrictions
which are not indispensable to the attainment of these
objectives, and do not afford such undertakings the possi-
bility of
a
substantial part of the products concerned.

eliminating competition in respect of

to promoting technical or

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10. According

to Article 1(1) of Regulation 1/2003
agreements which are caught by Article 81(1) and
which do not satisfy the conditions of Article 81(3) are
prohibited, no prior decision to that
effect being
required (8). According to Article 1(2) of the same Regu-
lation agreements which are caught by Article 81(1) but
which satisfy the conditions of Article 81(3) are not
prohibited, no prior decision to that
effect being
required. Such agreements are valid and enforceable
from the moment that the conditions of Article 81(3)
are satisfied and for as long as that remains the case.

11. The assessment under Article 81 thus consists of two
parts. The first step is to assess whether an agreement
between undertakings, which is capable of affecting trade
between Member States, has an anti-competitive object or
actual or potential (9) anti-competitive effects. The second
step, which only becomes relevant when an agreement is
found to be restrictive of competition, is to determine the
pro-competitive benefits produced by that agreement and
to assess whether these pro-competitive effects outweigh
the anti-competitive
effects. The balancing of anti-
competitive and pro-competitive effects is conducted
exclusively within the framework laid down by Article
81(3) (10).

resources
market promotes an efficient allocation of
throughout the Community for the benefit of consumers.

14. The prohibition rule of Article 81(1) applies to restrictive
agreements and concerted practices between undertakings
and decisions by associations of undertakings in so far as
they are capable of affecting trade between Member
States. A general principle underlying Article 81(1)
which is expressed in the case law of the Community
Courts is that each economic operator must determine
independently the policy, which he intends to adopt on
the market (12). In view of this the Community Courts
have defined ‘agreements’, ‘decisions’ and ‘concerted prac-
tices’ as Community law concepts which allow a
distinction to be made between the unilateral conduct
of an undertaking and co-ordination of behaviour or
collusion between undertakings (13). Unilateral conduct
is subject only to Article 82 of the Treaty as far as
Community competition law is concerned. Moreover,
the convergence rule set out in Article 3(2) of Regulation
1/2003 does not apply to unilateral conduct. This
provision applies only to agreements, decisions and
concerted practices, which are capable of affecting trade
between Member States. Article 3(2) provides that when
such agreements, decisions and concerted practices are
not prohibited by Article 81, they cannot be prohibited
by national competition law. Article 3 is without
prejudice to the fundamental principle of primacy of
that
Community
agreements and abusive practices that are prohibited by
Articles 81 and 82 cannot be upheld by national law (14).

law, which entails

in particular

12. The assessment of any countervailing benefits under
Article 81(3) necessarily requires prior determination of
the restrictive nature and impact of the agreement. To
place Article 81(3) in its proper context it is appropriate
to briefly outline the objective and principal content of
the prohibition rule of Article 81(1). The Commission
guidelines on vertical restraints, horizontal co-operation
agreements (11)
agreements
contain substantial guidance on the application of
types of agreements. The
Article 81(1)
present guidelines are therefore limited to recalling the
basic analytical framework for applying Article 81(1).

and technology

to various

transfer

2.2. The prohibition rule of Article 81(1)

2.2.1. General remarks

13. The objective of Article 81 is to protect competition on
the market as a means of enhancing consumer welfare
and of ensuring an efficient allocation of
resources.
Competition and market
integration serve these ends
since the creation and preservation of an open single

15. The type of co-ordination of behaviour or collusion
between undertakings falling within the scope of Article
is that where at least one undertaking vis-à-vis
81(1)
another undertaking undertakes
to adopt a certain
conduct on the market or that as a result of contacts
between them uncertainty as to their conduct on the
market is eliminated or at least substantially reduced (15).
It follows that co-ordination can take the form of obli-
gations that regulate the market conduct of at least one
of the parties as well as of arrangements that influence
the market conduct of at least one of the parties by
causing a change in its incentives.
is not required
that co-ordination is in the interest of all the under-
concerned (16). Co-ordination must also not
takings
necessarily be express.
It can also be tacit. For an
agreement to be capable of being regarded as having
been concluded by tacit acceptance there must be an
invitation from an undertaking to another undertaking,
whether express or implied, to fulfil a goal jointly (17). In
certain circumstances an agreement may be inferred from
and imputed to an ongoing commercial relationship
between the parties (18). However, the mere fact that a
measure adopted by an undertaking falls within the
context
not
of
sufficient (19).

on-going

relations

business

is

It

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16. Agreements between undertakings are caught by the
prohibition rule of Article 81(1) when they are likely
to have an appreciable adverse impact on the parameters
of competition on the market, such as price, output,
innovation.
product
Agreements
appreciably
this
reducing rivalry between the parties to the agreement
or between them and third parties.

can have

product

and
by

quality,

variety

effect

to an agreement are actual or potential
parties
competitors the economic and legal context must
be taken into account. For instance,
if due to the
financial risks involved and the technical capabilities
of the parties it is unlikely on the basis of objective
factors that each party would be able to carry out on
its own the activities covered by the agreement the
parties are deemed to be non-competitors in respect
is for the parties to bring
of
forward evidence to that effect.

that activity (22).

It

2.2.2. The basic principles for assessing agreements under Article

81(1)

17. The assessment of whether an agreement is restrictive of
competition must be made within the actual context in
which competition would occur in the absence of the
agreement with its alleged restrictions (20).
In making
this assessment it is necessary to take account of the
likely
inter-brand
competition (i.e.
competition between suppliers of
competing brands) and on intra-brand competition (i.e.
competition between distributors of
the same brand).
Article 81(1) prohibits restrictions of both inter-brand
competition and intra-brand competition (21).

agreement

impact

the

on

of

18. For the purpose of assessing whether an agreement or its
inter-brand competition
individual parts may restrict
and/or intra-brand competition it needs to be considered
how and to what extent the agreement affects or is likely
to affect competition on the market. The following two
questions provide a useful framework for making this
assessment. The first question relates to the impact of
the agreement on inter-brand competition while the
second question relates to the impact of the agreement
on intra-brand competition. As restraints may be capable
of affecting both inter-brand competition and intra-brand
it may be necessary to
competition at the same time,
analyse a restraint in light of both questions before it
can be
competition is
restricted within the meaning of Article 81(1):

concluded whether or not

(1) Does

it

the agreement

In making this assessment

restrict actual or potential
the
competition that would have existed without
agreement? If so, the agreement may be caught by
Article 81(1).
is
necessary to take into account competition between
the parties and competition from third parties. For
instance, where two undertakings established in
different Member States undertake not
to sell
products in each other's home markets,
(potential)
competition that existed prior to the agreement is
restricted. Similarly, where a supplier imposes obli-
gations on his distributors not
to sell competing
products and these obligations foreclose third party
access to the market, actual or potential competition
the
that would have existed in the absence of
the
In assessing whether
agreement

is restricted.

(2) Does

is

accepted

the agreement

restricted. Such restrictions

that nature (23). Such exclusion of

restrict actual or potential
competition that would have existed in the absence
of the contractual restraint(s)? If so, the agreement
may be caught by Article 81(1). For instance, where
a supplier restricts its distributors from competing
(potential) competition that could
with each other,
the
have existed between the distributors absent
restraints
include
resale price maintenance and territorial or customer
restrictions between distributors. However,
sales
certain restraints may in certain cases not be caught
by Article 81(1) when the restraint
is objectively
necessary for the existence of an agreement of that
the
type or
application of Article 81(1) can only be made on
the basis of objective factors external to the parties
themselves and not the subjective views and charac-
teristics of the parties. The question is not whether
the parties in their particular situation would not
restrictive
conclude
have
agreement, but whether given the nature of
the
agreement and the characteristics of the market a
less
restrictive agreement would not have been
concluded by undertakings in a similar setting. For
instance,
in an agreement
restraints
between a supplier and a distributor may for a
certain period of time fall outside Article 81(1),
if
the restraints are objectively necessary in order for
a new market (24).
the distributor
Similarly, a prohibition imposed on all distributors
not to sell to certain categories of end users may
not be restrictive of competition if such restraint is
objectively necessary for reasons of safety or health
related to the dangerous nature of the product in
question. Claims that in the absence of a restraint
the supplier would have resorted to vertical
inte-
gration are not sufficient. Decisions on whether or
not to vertically integrate depend on a broad range
of complex economic factors, a number of which are
internal to the undertaking concerned.

to penetrate

territorial

less

to

a

19. In the application of the analytical framework set out in
the previous paragraph it must be taken into account
that Article 81(1) distinguishes between those agreements
that have a restriction of competition as their object and
those agreements that have a restriction of competition
as their effect. An agreement or contractual restraint is
only prohibited by Article 81(1) if its object or effect is to
restrict
intra-brand
competition.

competition and/or

inter-brand

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20. The distinction between restrictions by object and
restrictions by effect is important. Once it has been estab-
lished that an agreement has as its object the restriction
of competition, there is no need to take account of its
concrete effects (25). In other words, for the purpose of
applying Article 81(1) no actual anti-competitive effects
need to be demonstrated where the agreement has a
restriction of competition as its object. Article 81(3), on
the other hand, does not distinguish between agreements
that restrict competition by object and agreements that
restrict competition by effect. Article 81(3) applies to all
agreements
the four conditions contained
therein (26).

fulfil

that

23. Non-exhaustive guidance on what constitutes restrictions
by object can be found in Commission block exemption
regulations, guidelines and notices. Restrictions that are
black-listed in block exemptions or identified as hardcore
in guidelines and notices are generally
restrictions
considered by the Commission to constitute restrictions
agreements
by object.
restrictions of competition by object
include price
limitation and sharing of markets and
fixing, output
customers (28). As
the
category of restrictions by object includes, in particular,
fixed and minimum resale price maintenance
and
restrictions providing absolute
territorial protection,
including restrictions on passive sales (29).

case of horizontal

agreements

In the

regards

vertical

the potential of

21. Restrictions of competition by object are those that by
their very nature have
restricting
competition. These are restrictions which in light of the
objectives pursued by the Community competition rules
have such a high potential of negative effects on
competition that it is unnecessary for the purposes of
applying Article 81(1) to demonstrate any actual effects
on the market. This presumption is based on the serious
nature of the restriction and on experience showing that
restrictions of competition by object are likely to produce
negative effects on the market and to jeopardise the
objectives pursued by the Community competition
rules. Restrictions by object such as price fixing and
market sharing reduce output and raise prices,
leading
to a misallocation of
resources, because goods and
services demanded by customers are not produced.
They also lead to a reduction in consumer welfare,
because consumers have to pay higher prices for the
goods and services in question.

22. The assessment of whether or not an agreement has as its
the restriction of competition is based on a
object
number of factors. These factors include,
in particular,
the content of the agreement and the objective aims
pursued by it. It may also be necessary to consider the
context in which it is (to be) applied and the actual
conduct and behaviour of the parties on the market (27).
In other words, an examination of the facts underlying
the agreement and the specific circumstances in which it
operates may be required before it can be concluded
whether a particular restriction constitutes a restriction
competition by object. The way in which an
of
a
agreement
restriction by object even where the formal agreement
does not contain an express provision to that effect.
Evidence of subjective intent on the part of the parties
to restrict competition is a relevant
factor but not a
necessary condition.

implemented may

actually

reveal

is

of

there

effects.

to be restrictive by effect

competition by effect
anti-competitive

24. If an agreement is not restrictive of competition by object
it must be examined whether it has restrictive effects on
competition. Account must be taken of both actual and
potential effects (30). In other words the agreement must
In the case of
have likely anti-competitive effects.
is no
restrictions of
presumption
an
For
it must affect
agreement
actual or potential competition to such an extent that
on the relevant market negative effects on prices,
output,
innovation or the variety or quality of goods
and services can be expected with a reasonable degree
of probability (31). Such negative effects must be appre-
ciable. The prohibition rule of Article 81(1) does not
apply when the identified anti-competitive effects are
insignificant (32).
economic
test
approach which the Commission is applying. The
prohibition of Article 81(1) only applies where on the
basis of proper market analysis it can be concluded that
the agreement has likely anti-competitive effects on the
market (33). It is insufficient for such a finding that the
market shares of the parties exceed the thresholds set out
in the Commission's de minimis notice (34). Agreements
falling within safe harbours of block exemption regu-
lations may be caught by Article 81(1) but this is not
necessarily so. Moreover, the fact that due to the market
shares of the parties, an agreement falls outside the safe
harbour of a block exemption is in itself an insufficient
basis for finding that the agreement is caught by Article
81(1) or that it does not fulfil the conditions of Article
81(3). Individual assessment of the likely effects produced
by the agreement is required.

reflects

This

the

25. Negative effects on competition within the relevant
market are likely to occur when the parties individually
or jointly have or obtain some degree of market power
and the agreement contributes to the creation, main-
tenance or
that market power or
allows the parties to exploit such market power. Market

strengthening of

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power is the ability to maintain prices above competitive
levels for a significant period of time or to maintain
output in terms of product quantities, product quality
and variety or innovation below competitive levels for
a significant period of time. In markets with high fixed
costs undertakings must price significantly above their
to ensure a
marginal costs of production in order
that
competitive return on their investment. The fact
undertakings price
is
above
therefore not in itself a sign that competition in the
market
is not functioning well and that undertakings
have market power that allows them to price above the
competitive level. It is when competitive constraints are
insufficient to maintain prices and output at competitive
levels that undertakings have market power within the
meaning of Article 81(1).

their marginal

costs

26. The creation, maintenance or strengthening of market
power can result
from a restriction of competition
between the parties to the agreement. It can also result
from a restriction of competition between any one of the
parties and third parties, e.g. because the agreement leads
to foreclosure of competitors or because
raises
competitors' costs,
limiting their capacity to compete
effectively with the contracting parties. Market power is
a question of degree. The degree of market power
normally required for the finding of an infringement
under Article 81(1) in the case of agreements that are
restrictive of competition by effect is less than the degree
of market power required for a finding of dominance
under Article 82.

it

the parties,
the market position of buyers,

27. For the purposes of analysing the restrictive effects of an
agreement it is normally necessary to define the relevant
market (35). It is normally also necessary to examine and
assess, inter alia, the nature of the products, the market
the market position of
position of
competitors,
the
existence of potential competitors and the level of entry
barriers. In some cases, however, it may be possible to
show anti-competitive effects directly by analysing the
conduct of the parties to the agreement on the market.
It may for example be possible to ascertain that an
agreement has led to price increases. The guidelines on
horizontal
and on vertical
restraints set out a detailed framework for analysing the
competitive impact of various types of horizontal and
vertical agreements under Article 81(1) (36).

cooperation agreements

2.2.3. Ancillary restraints

28. Paragraph 18 above sets out a framework for analysing
the impact of an agreement and its individual restrictions
on inter-brand competition and intra-brand competition.
If on the basis of those principles it is concluded that the
is not
main transaction covered by the agreement

restrictive of competition, it becomes relevant to examine
whether individual restraints contained in the agreement
are also compatible with Article 81(1) because they are
ancillary to the main non-restrictive transaction.

If an agreement

its object or effect

a main non-restrictive

29. In Community competition law the concept of ancillary
restraints covers any alleged restriction of competition
which is directly related and necessary to the implemen-
transaction and
tation of
proportionate to it (37).
in its main
parts, for instance a distribution agreement or a joint
venture, does not have as
the
restriction of competition, then restrictions, which are
directly related to and necessary for the implementation
transaction, also fall outside Article 81(1) (38).
of that
These related restrictions are called ancillary restraints.
A restriction is directly related to the main transaction
if it is subordinate to the implementation of that trans-
action and is inseparably linked to it. The test of necessity
implies that the restriction must be objectively necessary
for the implementation of the main transaction and be
proportionate to it. It follows that the ancillary restraints
test is similar to the test set out in paragraph 18(2)
above. However, the ancillary restraints test applies in
all cases where the main transaction is not restrictive of
competition (39).
limited to determining the
impact of the agreement on intra-brand competition.

is not

It

30. The application of the ancillary restraint concept must be
distinguished from the application of the defence under
Article 81(3) which relates to certain economic benefits
produced by restrictive
and which are
balanced against the restrictive effects of the agreements.
The application of the ancillary restraint concept does
not involve any weighing of pro-competitive and anti-
reserved for
effects. Such balancing is
competitive
Article 81(3) (40).

agreements

activity,

transaction or

in the specific context of

31. The assessment of ancillary restraints is limited to deter-
the main
mining whether,
non-restrictive
a particular
restriction is necessary for the implementation of that
transaction or activity and proportionate to it. If on the
basis of objective factors it can be concluded that without
the restriction the main non-restrictive transaction would
be difficult or impossible to implement, the restriction
its
may be
implementation and proportionate to it (41).
for
example, the main object of a franchise agreement does
not restrict competition,
then restrictions, which are
necessary for the proper functioning of the agreement,
such as obligations aimed at protecting the uniformity
and reputation of the franchise system, also fall outside
Article 81(1) (42). Similarly,
if a joint venture is not in
itself restrictive of competition, then restrictions that are
the agreement are
necessary for

regarded as objectively necessary for
If,

the functioning of

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to be

deemed to be ancillary to the main transaction and are
therefore not caught by Article 81(1). For instance in
TPS (43) the Commission concluded that an obligation
involved in companies
on the parties not
television
engaged in distribution and marketing of
programmes by satellite was ancillary to the creation of
the joint venture during the initial phase. The restriction
was therefore deemed to fall outside Article 81(1) for a
period of three years. In arriving at this conclusion the
Commission took account of the heavy investments and
commercial risks involved in entering the market
for
pay-television.

2.3. The exception rule of Article 81(3)

32. The assessment of restrictions by object and effect under
Article 81(1) is only one side of the analysis. The other
side, which is reflected in Article 81(3), is the assessment
of the positive economic effects of restrictive agreements.

(b) Consumers must receive a fair share of the resulting

benefits,

(c) The

restrictions must be

indispensable

to the

attainment of these objectives, and finally

(d) The agreement must not afford the parties the possi-
bility of eliminating competition in respect of a
substantial part of the products in question.

When these four conditions are fulfilled the agreement
competition within the
enhances
relevant market,
because it
leads the undertakings concerned to offer
cheaper or better products to consumers, compensating
the latter for the adverse effects of the restrictions of
competition.

33. The aim of

the

and of

ensuring

lowering

additional

value by

consumer welfare

the Community competition rules is to
protect competition on the market as a means of
enhancing
an
efficient allocation of resources. Agreements that restrict
competition may at the same time have pro-competitive
effects by way of efficiency gains (44). Efficiencies may
cost of
create
improving the quality of
producing an output,
the
a new product. When the
creating
product or
pro-competitive effects of an agreement outweigh its
anti-competitive effects the agreement
is on balance
pro-competitive and compatible with the objectives of
the Community competition rules. The net effect of
such agreements is to promote the very essence of the
competitive process, namely to win customers by offering
better products or better prices than those offered by
rivals. This analytical framework is reflected in Article
81(1) and Article 81(3). The latter provision expressly
acknowledges that restrictive agreements may generate
objective economic benefits
to outweigh the
negative effects of the restriction of competition (45).

so as

34. The application of the exception rule of Article 81(3) is
subject to four cumulative conditions, two positive and
two negative:

(a) The agreement must contribute to improving the
production or distribution of goods or contribute to
promoting technical or economic progress,

35. Article 81(3)

can be

applied either

to individual
agreements or to categories of agreements by way of a
is
block exemption regulation. When an agreement
covered by a block exemption the parties
to the
restrictive agreement are relieved of their burden under
Article 2 of Regulation 1/2003 of showing that their
individual agreement satisfies each of the conditions of
Article 81(3). They only have to prove that the restrictive
agreement benefits
from a block exemption. The
application of Article 81(3) to categories of agreements
by way of block exemption regulation is based on the
presumption that restrictive agreements that fall within
their scope (46)
the four conditions laid
down in Article 81(3).

fulfil each of

36. If in an individual case the agreement is caught by Article
81(1) and the conditions of Article 81(3) are not fulfilled
the block exemption may be withdrawn. According to
Article 29(1) of Regulation 1/2003 the Commission is
empowered to withdraw the benefit of
a block
exemption when it finds that in a particular case an
agreement covered by a block exemption regulation has
certain effects which are incompatible with Article 81(3)
of the Treaty. Pursuant to Article 29(2) of Regulation
1/2003 a competition authority of a Member State may
also withdraw the benefit of a Commission block
exemption regulation in respect of its territory (or part
of its territory), if this territory has all the characteristics
of a distinct geographic market. In the case of withdrawal
it is for the competition authorities concerned to demon-
strate that the agreement infringes Article 81(1) and that
it does not fulfil the conditions of Article 81(3).

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37. The courts of

the Member States have no power to
withdraw the benefit of block exemption regulations.
Moreover, in their application of block exemption regu-
lations Member State courts may not modify their scope
by extending their sphere of application to agreements
not covered by the block exemption regulation in
question (47). Outside the scope of block exemption regu-
lations Member State courts have the power to apply
Article 81 in full (cf. Article 6 of Regulation 1/2003).

3. THE APPLICATION OF THE FOUR CONDITIONS OF
ARTICLE 81(3)

38. The remainder of these guidelines will consider each of
the four conditions of Article 81(3) (48). Given that these
four conditions are cumulative (49) it is unnecessary to
examine any remaining conditions once it is found that
one of the conditions of Article 81(3) is not fulfilled. In
individual cases
it may therefore be appropriate to
consider the four conditions in a different order.

39. For the purposes of

these guidelines it

is considered
appropriate to invert the order of the second and the
third condition and thus deal with the issue of indispen-
sability before the issue of pass-on to consumers. The
analysis of pass-on requires a balancing of the negative
and positive effects of an agreement on consumers. This
analysis should not include the effects of any restrictions,
which already fail the indispensability test and which for
that reason are prohibited by Article 81.

3.1. General principles

40. Article 81(3) of the Treaty only becomes relevant when
an agreement between undertakings restricts competition
In the case of
within the meaning of Article 81(1).
non-restrictive agreements there is no need to examine
any benefits generated by the agreement.

41. Where in an individual case a restriction of competition
within the meaning of Article 81(1) has been proven,
Article 81(3) can be invoked as a defence. According to
Article 2 of Regulation 1/2003 the burden of proof
under Article 81(3) rests on the undertaking(s) invoking
the benefit of the exception rule. Where the conditions of
Article 81(3) are not satisfied the agreement is null and
void, cf. Article 81(2). However, such automatic nullity
only applies to those parts of the agreement that are
incompatible with Article 81, provided that such parts
are severable from the agreement as a whole (50). If only
it is for the
part of the agreement

is null and void,

applicable national
thereof for the remaining part of the agreement (51).

law to determine the consequences

42. According to settled case law the four conditions of
Article 81(3) are cumulative (52),
i.e. they must all be
fulfilled for the exception rule to be applicable. If they
are not, the application of the exception rule of Article
81(3) must be refused (53). The four conditions of Article
the
81(3) are also exhaustive. When they are met
exception is
be made
dependant on any other condition. Goals pursued by
other Treaty provisions can be taken into account to
the extent that they can be subsumed under the four
conditions of Article 81(3) (54).

and may not

applicable

43. The assessment under Article 81(3) of benefits flowing
from restrictive agreements is in principle made within
to which the
the confines of each relevant market
agreement
relates. The Community competition rules
have as their objective the protection of competition
on the market and cannot be detached from this
the condition that consumers (55)
objective. Moreover,
the benefits implies in
must receive a fair share of
general
that efficiencies generated by the restrictive
agreement within a relevant market must be sufficient
to outweigh the anti-competitive effects produced by
the agreement within that same relevant market (56).
Negative
in one geographic
market or product market cannot normally be balanced
against
for
consumers in another unrelated geographic market or
two markets are
product market. However, where
related, efficiencies achieved on separate markets can be
taken into account provided that the group of consumers
affected by the restriction and benefiting from the effi-
ciency gains are substantially the same (57).
in
some cases only consumers in a downstream market
are affected by the agreement in which case the impact
of the agreement on such consumers must be assessed.
This
instance so in the case of purchasing
is
agreements (58).

effects on consumers

compensated

by positive

Indeed,

effects

and

for

in time. The assessment

44. The assessment of restrictive agreements under Article
81(3) is made within the actual context in which they
occur (59) and on the basis of the facts existing at any
given point
is sensitive to
material changes in the facts. The exception rule of
Article 81(3) applies as long as the four conditions are
fulfilled and ceases to apply when that is no longer the
case (60). When applying Article 81(3) in accordance with
these principles it is necessary to take into account the
initial sunk investments made by any of the parties and
the time needed and the restraints required to commit
and recoup an efficiency enhancing investment. Article
81 cannot be applied without taking due account of such
ex ante investment. The risk facing the parties and the
sunk investment that must be committed to implement

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the agreement can thus lead to the agreement falling
fulfilling the conditions of
outside Article 81(1) or
Article 81(3), as the case may be,
for the period of
time required to recoup the investment.

47. Any claim that restrictive agreements are justified because
they aim at ensuring fair conditions of competition on
the market
is by nature unfounded and must be
discarded (65). The purpose of Article 81 is to protect
effective competition by ensuring that markets remain
open and competitive. The protection of fair conditions
of competition is a task for the legislator in compliance
with Community law obligations (66) and not for under-
takings to regulate themselves.

agrees

to revive

each party

a project once

agreement whereby

45. In some cases the restrictive agreement is an irreversible
event. Once the restrictive agreement has been imple-
mented the ex ante situation cannot be re-established. In
such cases the assessment must be made exclusively on
the basis of the facts pertaining at the time of implemen-
tation. For instance, in the case of a research and devel-
opment
to
abandon its respective research project and pool its capa-
it may from an
bilities with those of another party,
objective point of view be technically and economically
impossible
it has been
abandoned. The assessment of the anti-competitive and
pro-competitive effects of the agreement to abandon the
individual research projects must therefore be made as of
the time of the completion of its implementation. If at
that point
is compatible with
Article 81, for instance because a sufficient number of
third parties have competing research and development
projects, the parties' agreement to abandon their indi-
vidual projects
remains compatible with Article 81,
even if at a later point in time the third party projects
fail. However, the prohibition of Article 81 may apply to
other parts of the agreement in respect of which the issue
of irreversibility does not arise. If for example in addition
to joint
agreement
provides for joint exploitation, Article 81 may apply to
this part of the agreement if due to subsequent market
restrictive of
the agreement becomes
developments
(any longer)
competition and does not
satisfy the
conditions of Article 81(3)
taking due account of ex
ante sunk investments, cf. the previous paragraph.

research and development,

in time the agreement

the

restrictions

as hardcore
and notices. Agreements of

46. Article 81(3) does not exclude a priori certain types of
agreements from its scope. As a matter of principle all
restrictive agreements that fulfil the four conditions of
Article 81(3) are covered by the exception rule (61).
However, severe restrictions of competition are unlikely
to fulfil the conditions of Article 81(3). Such restrictions
are usually black-listed in block exemption regulations or
in Commission
identified
guidelines
this nature
the two first conditions of
generally fail
Article 81(3). They neither create objective economic
benefits (62) nor do they benefit consumers (63). For
to fix prices limits
example, a horizontal agreement
It also
leading to misallocation of resources.
output
transfers value from consumers to producers, since it
leads to higher prices without producing any counter-
vailing value to consumers within the relevant market.
Moreover, these types of agreements generally also fail
the indispensability test under the third condition (64).

least)

(at

3.2. First condition of Article 81(3): Efficiency gains

3.2.1. General remarks

48. According to the first condition of Article 81(3)

the
restrictive agreement must contribute to improving the
production or distribution of goods or to promoting
technical or economic progress. The provision refers
expressly only to goods, but applies by analogy to
services.

49. It follows from the case law of the Court of Justice that
only objective benefits can be taken into account (67).
This means that efficiencies are not assessed from the
subjective point of view of the parties (68). Cost savings
that arise from the mere exercise of market power by the
parties cannot be taken into account. For instance, when
companies agree to fix prices or share markets they
reduce output and thereby production costs. Reduced
competition may also lead to lower sales and marketing
expenditures. Such cost reductions are a direct conse-
quence of a reduction in output and value. The cost
any
reductions
produce
pro-competitive effects on the market.
In particular,
they do not lead to the creation of value through an
integration of assets and activities. They merely allow
the undertakings concerned to increase their profits and
are therefore irrelevant from the point of view of Article
81(3).

question

not

do

in

50. The purpose of the first condition of Article 81(3) is to
define the types of efficiency gains that can be taken into
account and be subject to the further tests of the second
and third conditions of Article 81(3). The aim of the
analysis is to ascertain what are the objective benefits
created by the agreement and what
is the economic
importance of such efficiencies. Given that for Article
81(3) to apply the pro-competitive effects flowing from
the agreement must outweigh its anti-competitive effects,
it is necessary to verify what is the link between the
agreement and the claimed efficiencies and what is the
value of these efficiencies.

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51. All efficiency claims must therefore be substantiated so

that the following can be verified:

(a) The nature of the claimed efficiencies;

(b) The link between the agreement and the efficiencies;

(c) The likelihood and magnitude of each claimed effi-

ciency; and

(d) How and when each claimed efficiency would be

achieved.

52. Letter (a) allows the decision-maker to verify whether the
claimed efficiencies are objective in nature, cf. paragraph
49 above.

53. Letter (b) allows the decision-maker to verify whether
there is a sufficient causal
link between the restrictive
agreement and the claimed efficiencies. This condition
normally requires that the efficiencies result from the
economic activity that forms the object of the agreement.
Such activities may,
take the form of
for example,
distribution, licensing of technology, joint production or
joint research and development. To the extent, however,
that an agreement has wider efficiency enhancing effects
within the relevant market, for example because it leads
to a reduction in industry wide costs, these additional
benefits are also taken into account.

the anti-competitive effects of

the third condition of Article 81(3) must be balanced
against
the agreement,
see paragraph 101 below. Given that Article 81(1) only
applies in cases where the agreement has likely negative
effects on competition and consumers (in the case of
hardcore restrictions such effects are presumed) efficiency
claims must be substantiated so that they can be verified.
Unsubstantiated claims are rejected.

56. In the case of claimed cost efficiencies the undertakings
invoking the benefit of Article 81(3) must as accurately
as reasonably possible calculate or estimate the value of
the efficiencies and describe in detail how the amount
has been computed. They must also describe
the
method(s) by which the efficiencies have been or will
be achieved. The data submitted must be verifiable so
that there can be a sufficient degree of certainty that
the
likely to
materialise.

efficiencies have materialised or

are

57. In the case of claimed efficiencies in the form of new or
improved products and other non-cost based efficiencies,
the undertakings claiming the benefit of Article 81(3)
must describe and explain in detail what is the nature
of the efficiencies and how and why they constitute an
objective economic benefit.

58. In cases where the agreement has yet to be fully imple-
mented the parties must substantiate any projections as
to the date from which the efficiencies will become oper-
ational so as to have a significant positive impact in the
market.

3.2.2. The different categories of efficiencies

54. The causal link between the agreement and the claimed
efficiencies must normally also be direct (69). Claims
rule too
based on indirect effects are as a general
uncertain and too remote to be taken into account. A
direct causal link exists for instance where a technology
transfer agreement allows the licensees to produce new
or improved products or a distribution agreement allows
lower cost or valuable
products to be distributed at
services to be produced. An example of indirect effect
would be a case where it is claimed that a restrictive
agreement
to
increase their profits, enabling them to invest more in
to the ultimate benefit of
research and development
consumers. While there may be a link between profit-
ability and research and development,
link is
generally not
taken into
to be
account in the context of Article 81(3).

sufficiently direct

undertakings

concerned

allows

this

the

55. Letters (c) and (d) allow the decision-maker to verify the
value of the claimed efficiencies, which in the context of

59. The types of efficiencies listed in Article 81(3) are broad
categories which are intended to cover all objective
is considerable overlap
economic efficiencies. There
between the various categories mentioned in Article
81(3) and the same agreement may give rise to several
kinds of efficiencies.
It is therefore not appropriate to
draw clear and firm distinctions between the various
categories. For
a
distinction is made between cost efficiencies and effi-
ciencies of a qualitative nature whereby value is created
in the form of new or
improved products, greater
product variety etc.

these guidelines,

the purpose of

60. In general, efficiencies

to achieve what

stem from an integration of
economic activities whereby undertakings combine their
assets
they could not achieve as
efficiently on their own or whereby they entrust
another undertaking with tasks that can be performed
more efficiently by that other undertaking.

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61. The

and

research

production

development,

and
distribution process may be viewed as a value chain
that can be divided into a number of stages. At each
stage of this chain an undertaking must make a choice
between performing the activity itself, performing it
together with (an)other undertaking(s) or outsourcing
the activity entirely to (an)other undertaking(s).

62. In each case where the choice made involves cooperation
on the market with another undertaking, an agreement
within the meaning of Article 81(1) normally needs to be
concluded. These agreements can be vertical, as is the
case where the parties operate at different levels of the
value chain or horizontal, as is the case where the firms
operate at
the value chain. Both
categories of agreements may create efficiencies by
allowing the undertakings in question to perform a
particular task at lower cost or with higher added value
for consumers. Such agreements may also contain or lead
the
to restrictions of
prohibition rule of Article 81(1) and the exception rule
of Article 81(3) may become relevant.

competition in which case

the same level of

63. The types of efficiencies mentioned in the following are
only examples and are not intended to be exhaustive.

3.2.2.1. C o s t e f f i c i e n c i e s

64. Cost efficiencies flowing from agreements between under-
takings can originate from a number of different sources.
One very important source of cost savings is the devel-
opment of new production technologies and methods. In
general, it is when technological leaps are made that the
greatest potential
is achieved. For
instance, the introduction of the assembly line led to a
very substantial reduction in the cost of producing motor
vehicles.

for cost

savings

materials per unit of output. Synergies are created if by
establishing a production joint venture combining the
production assets of A and B the parties can attain a
level of output per hour with a low(er) input
high(er)
if one
of raw materials per unit of output. Similarly,
undertaking has optimised one part of the value chain
and another undertaking has optimised another part of
the value chain, the combination of their operations may
lead to lower costs. Firm A may for instance have a
highly automated production facility resulting in low
production costs per unit whereas B has developed an
efficient order processing system. The system allows
production to be
demand,
ensuring timely delivery and reducing warehousing and
obsolescence costs. By combining their assets A and B
may be able to obtain cost reductions.

to customer

tailored

it

is

almost

undertakings

empty, half-full or

66. Cost efficiencies may also result from economies of scale,
i.e. declining cost per unit of output as output increases.
To give an example: investment in equipment and other
assets often has to be made in indivisible blocks. If an
undertaking cannot fully utilise a block, its average costs
will be higher than if it could do so. For instance, the
cost of operating a truck is virtually the same regardless
full.
of whether
Agreements whereby
their
logistics operations may allow them to increase the
vehicles
the number of
load factors
employed. Larger
scale may also allow for better
division of
labour leading to lower unit costs. Firms
may achieve economies of scale in respect of all parts
of the value chain, including research and development,
production,
Learning
economies constitute a related type of efficiency. As
experience is gained in using a particular production
process or in performing particular tasks, productivity
may increase because the process is made to run more
efficiently or because the task is performed more quickly.

and marketing.

and reduce

distribution

combine

65. Another very important source of efficiency is synergies
resulting from an integration of existing assets. When the
parties to an agreement combine their respective assets
they may be able to attain a cost/output configuration
that would not otherwise be possible. The combination
of two existing technologies that have complementary
strengths may reduce production costs or lead to the
production of a higher quality product. For instance, it
may be that the production assets of firm A generate a
high output per hour but require a relatively high input
of
the
raw materials per unit of output, whereas
production assets of firm B generate lower output per
raw
hour but

require a relatively lower

input of

cost

67. Economies of scope are another source of cost efficiency,
savings by
which occur when firms achieve
producing different products on the basis of the same
input. Such efficiencies may arise from the fact that it
is possible to use the same components and the same
facilities and personnel to produce a variety of products.
Similarly, economies of scope may arise in distribution
when several types of goods are distributed in the same
vehicles. For instance, a producer of frozen pizzas and a
producer of frozen vegetables may obtain economies of
scope by jointly distributing their products. Both groups
of products must be distributed in refrigerated vehicles
and it is likely that there are significant overlaps in terms
of customers. By combining their operations the two
producers may obtain lower distribution costs per
distributed unit.

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reducing

68. Efficiencies in the form of cost reductions can also follow
that allow for better planning of
from agreements
production,
the need to hold expensive
inventory and allowing for better capacity utilisation.
Efficiencies of this nature may for example stem from
the use of ‘just in time’ purchasing,
i.e. an obligation
on a supplier of components to continuously supply
the buyer according to its needs thereby avoiding the
need for the buyer to maintain a significant stock of
components which risks becoming obsolete. Cost
savings may also result from agreements that allow the
parties to rationalise production across their facilities.

3.2.2.2. Q u a l i t a t i v e e f f i c i e n c i e s

69. Agreements between undertakings may generate various
efficiencies of a qualitative nature which are relevant to
the application of Article 81(3). In a number of cases the
main efficiency enhancing potential of the agreement is
not cost reduction; it is quality improvements and other
efficiencies of a qualitative nature. Depending on the
individual case such efficiencies may therefore be of
equal or greater importance than cost efficiencies.

70. Technical and technological advances form an essential
and dynamic part of the economy, generating significant
benefits in the form of new or improved goods and
services. By cooperating undertakings may be able to
create efficiencies that would not have been possible
without the restrictive agreement or would have been
possible only with substantial delay or at higher cost.
source of
Such efficiencies constitute an important
economic benefits covered by the first condition of
Article 81(3). Agreements capable of producing effi-
ciencies of this nature include,
in particular, research
and development agreements. An example would be A
and B creating a joint venture for the development and, if
successful,
joint production of a cell-based tyre. The
puncture of one cell does not affect other cells, which
means that there is no risk of collapse of the tyre in the
event of a puncture. The tyre is thus safer than traditional
tyres. It also means that there is no immediate need to
change the tyre and thus to carry a spare. Both types of
efficiencies
constitute objective benefits within the
meaning of the first condition of Article 81(3).

71. In the same way that the combination of complementary
assets can give rise to cost savings, combinations of assets
may also create synergies that create efficiencies of a
qualitative nature. The combination of production assets
may for instance lead to the production of higher quality

the

case

licence

agreements,

products or products with novel features. This may for
instance be
and
for
agreements providing for joint production of new or
improved goods or services. Licence agreements may,
in particular, ensure more rapid dissemination of new
technology in the Community and enable the licensee(s)
to make available new products or to employ new
production techniques that lead to quality improvements.
Joint production agreements may,
in particular, allow
new or improved products or services to be introduced
on the market more quickly or at lower cost (70). In the
telecommunications
for example, cooperation
agreements have been held to create efficiencies by
making available more quickly new global services (71).
that
In the banking sector cooperation agreements
made available improved facilities for making cross-
border payments have also been held to create effi-
ciencies falling within the scope of the first condition
of Article 81(3) (72).

sector,

72. Distribution agreements may also give rise to qualitative
efficiencies. Specialised distributors, for example, may be
able to provide services
tailored to
customer needs or to provide quicker delivery or better
quality assurance throughout the distribution chain (73).

that are better

3.3. Third condition of Article 81(3): Indispensability of
the restrictions

impose

agreement must not

73. According to the third condition of Article 81(3) the
restrictive
restrictions,
which are not indispensable to the attainment of the
efficiencies created by the agreement in question. This
condition implies a two-fold test. First,
the restrictive
agreement as such must be reasonably necessary in
order to achieve the efficiencies. Secondly, the individual
restrictions of competition that flow from the agreement
must also be reasonably necessary for the attainment of
the efficiencies.

74. In the context of the third condition of Article 81(3) the
decisive factor is whether or not the restrictive agreement
and individual restrictions make it possible to perform
the activity in question more efficiently than would
likely have been the case in the absence of
the
agreement or the restriction concerned. The question is
not whether
the restriction the
agreement would not have been concluded, but
are produced with the
whether more
agreement or restriction than in the absence of
the
agreement or restriction (74).

in the absence of

efficiencies

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and less

75. The first test contained in the third condition of Article
81(3) requires that
the efficiencies be specific to the
agreement in question in the sense that there are no
other
restrictive
economically practicable
In making this
means of achieving the efficiencies.
latter assessment
the market conditions and business
realities facing the parties to the agreement must be
taken into account. Undertakings invoking the benefit
of Article 81(3) are not required to consider hypothetical
theoretical alternatives. The Commission will not
or
second guess the business judgment of the parties.
It
will only intervene where it
is reasonably clear that
there are realistic and attainable alternatives. The parties
must only explain and demonstrate why such seemingly
realistic and significantly less restrictive alternatives to the
agreement would be significantly less efficient.

It

is estimated that

these economies will
developed.
reduce production costs by a further 5 %. The output
of the joint venture is sold independently by A and B.
In this case the indispensability condition necessitates an
the benefits could be
assessment of whether or not
substantially achieved by means of a licence agreement,
which would be likely to be less restrictive because A and
B would continue to produce independently.
In the
circumstances described this is unlikely to be the case
since under a licence agreement the parties would not
be able to benefit in the same seamless and continued
way from their respective experience in operating the
two technologies,
learning
economies.

in significant

resulting

explain

undertakings

concerned must

76. It is particularly relevant to examine whether, having due
regard to the circumstances of the individual case, the
parties could have achieved the efficiencies by means of
another less restrictive type of agreement and, if so, when
they would likely be able to obtain the efficiencies. It may
also be necessary to examine whether the parties could
have achieved the efficiencies on their own. For instance,
where the claimed efficiencies take the form of cost
reductions resulting from economies of scale or scope
the
and
substantiate why the same efficiencies would not be
likely to be attained through internal growth and price
competition. In making this assessment it is relevant to
consider, inter alia, what is the minimum efficient scale
on the market concerned. The minimum efficient scale is
the level of output required to minimise average cost and
exhaust economies of scale (75). The larger the minimum
efficient scale compared to the current size of either of
the parties to the agreement, the more likely it is that the
efficiencies will be deemed to be
to the
agreement.
that produce
substantial synergies through the combination of comple-
mentary assets and capabilities the very nature of the
efficiencies
the
agreement is necessary to attain them.

In the case of agreements

to a presumption that

specific

give

rise

77. These principles can be illustrated by the following hypo-

thetical example:

A and B combine within a joint venture their respective
production technologies to achieve higher output and
lower raw material consumption. The joint venture is
respective
granted
licence
exclusive
production technologies. The parties
their
existing production facilities to the joint venture. They
also transfer key staff in order to ensure that existing
exploited and further
learning

economies

can be

transfer

their

an

to

78. Once it

is found that

the agreement

in question is
necessary in order to produce the efficiencies, the indis-
pensability of each restriction of competition flowing
from the agreement must be assessed. In this context it
restrictions are
must be assessed whether
reasonably necessary in order to produce the efficiencies.
The parties to the agreement must substantiate their
claim with regard to both the nature of the restriction
and its intensity.

individual

79. A restriction is

indispensable if

its absence would
eliminate or significantly reduce the efficiencies
that
follow from the agreement or make it significantly less
likely that they will materialise. The assessment of alter-
native solutions must take into account the actual and
potential improvement in the field of competition by the
elimination of a particular restriction or the application
of a less restrictive alternative. The more restrictive the
restraint the stricter the test under the third condition (76).
Restrictions that are black listed in block exemption regu-
lations
in
Commission guidelines and notices are unlikely to be
considered indispensable.

restrictions

identified

hardcore

or

as

80. The assessment of indispensability is made within the
actual context
in which the agreement operates and
must in particular take account of the structure of the
market, the economic risks related to the agreement, and
the incentives facing the parties. The more uncertain the
success of the product covered by the agreement, the
more a restriction may be required to ensure that the
efficiencies will materialise. Restrictions may also be
indispensable in order to align the incentives of
the
parties and ensure that they concentrate their efforts on
the implementation of the agreement. A restriction may
for instance be necessary in order to avoid hold-up
problems once a substantial sunk investment has been
made by one of
instance a
relationship-specific
supplier has made a substantial

the parties. Once for

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investment with a view to supplying a customer with an
input, the supplier is locked into the customer. In order
to avoid that
this
the
dependence to obtain more favourable terms, it may be
necessary to impose an obligation not to purchase the
component from third parties or to purchase minimum
quantities of the component from the supplier (77).

customer

ex post

exploits

81. In some cases a restriction may be indispensable only for
a certain period of time, in which case the exception of
Article 81(3) only applies during that period. In making
this assessment it is necessary to take due account of the
period of time required for the parties to achieve the
efficiencies justifying the application of
the exception
rule (78). In cases where the benefits cannot be achieved
without
in
particular, be taken of the period of time required to
ensure an adequate return on such investment, see also
paragraph 44 above.

account must,

considerable

investment,

82. These principles can be illustrated by the following hypo-

thetical examples:

frequent

relatively

deliveries

P produces and distributes frozen pizzas, holding 15 % of
the market
in Member State X. Deliveries are made
directly to retailers. Since most retailers have limited
capacity,
storage
are
leading to low capacity utilisation and use of
required,
relatively small vehicles. T is a wholesaler of
frozen
pizzas and other frozen products, delivering to most of
the same customers as P. The pizza products distributed
by T hold 30 % of the market. T has a fleet of larger
vehicles and has excess capacity. P concludes an exclusive
distribution agreement with T for Member State X and
undertakes to ensure that distributors in other Member
States will not sell
into T's territory either actively or
passively. T undertakes to advertise the products, survey
consumer tastes and satisfaction rates and ensure delivery
to retailers of all products within 24 hours. The
agreement
leads to a reduction in total distribution
costs of 30 % as capacity is better utilised and duplication
of routes is eliminated. The agreement also leads to the
consumers.
provision
Restrictions on passive sales are hardcore restrictions
under
the block exemption regulation on vertical
restraints (79) and can only be considered indispensable
in exceptional circumstances. The established market
position of T and the nature of the obligations imposed
on it indicate this is not an exceptional case. The ban on
active selling, on the other hand,
is likely to be indis-
pensable. T is likely to have less incentive to sell and
if distributors in other Member
advertise the P brand,

additional

services

to

of

States could sell actively in Member State X and thus
get a free ride on the efforts of T. This is particularly
so, as T also distributes competing brands and thus has
the possibility of pushing more of the brands that are the
least exposed to free riding.

S is a producer of carbonated soft drinks, holding 40 %
of the market. The nearest competitor holds 20 %. S
concludes supply agreements with customers accounting
for 25 % of demand, whereby they undertake to purchase
exclusively from S for 5 years. S concludes agreements
with other customers accounting for 15 % of demand
whereby they are granted quarterly target rebates,
if
their purchases exceed certain individually fixed targets.
S claims that the agreements allow it to predict demand
more accurately and thus to better plan production,
reducing raw material storage and warehousing costs
and avoiding supply shortages. Given the market
the
position of S and the combined coverage of
restrictions,
the restrictions are very unlikely to be
considered indispensable. The exclusive purchasing obli-
gation exceeds what is required to plan production and
the same is true of the target rebate scheme. Predictability
of demand can be achieved by less restrictive means. S
could, for example, provide incentives for customers to
order large quantities at a time by offering quantity
rebates or by offering a rebate to customers that place
firm orders in advance for delivery on specified dates.

3.4. Second condition of Article 81(3): Fair share for
consumers

3.4.1. General remarks

83. According to the second condition of Article 81(3)
consumers must receive a fair share of the efficiencies
generated by the restrictive agreement.

84. The concept of

‘consumers’ encompasses all direct or
indirect users of the products covered by the agreement,
including producers that use the products as an input,
i.e. natural
wholesalers, retailers and final consumers,
persons who are acting for purposes which can be
regarded as outside their trade or profession. In other
words, consumers within the meaning of Article 81(3)
are the customers of the parties to the agreement and
subsequent purchasers. These customers can be under-
takings as in the case of buyers of industrial machinery
or an input for further processing or final consumers as
for instance in the case of buyers of impulse ice-cream or
bicycles.

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85. The concept of ‘fair share’

the net

effect of

agreements,

implies that the pass-on of
benefits must at
least compensate consumers for any
actual or likely negative impact caused to them by the
restriction of competition found under Article 81(1). In
line with the overall objective of Article 81 to prevent
anti-competitive
the
agreement must at least be neutral from the point of
view of those consumers directly or likely affected by
the agreement (80).
If such consumers are worse off
second condition of
following the
Article 81(3) is not fulfilled. The positive effects of an
agreement must be balanced against and compensate for
its negative effects on consumers (81). When that is the
case consumers are not harmed by the agreement.
Moreover, society as a whole benefits where the effi-
ciencies lead either to fewer resources being used to
produce the output consumed or to the production of
more valuable products and thus to a more efficient
allocation of resources.

agreement,

the

86. It is not required that consumers receive a share of each
and every efficiency gain identified under
the first
condition. It suffices that sufficient benefits are passed
the negative effects of
on to compensate for
the
In that case consumers obtain a
restrictive agreement.
the overall benefits (82).
If a restrictive
fair share of
agreement is likely to lead to higher prices, consumers
must be fully compensated through increased quality or
other benefits.
If not, the second condition of Article
81(3) is not fulfilled.

87. The decisive factor is the overall impact on consumers of
the products within the relevant market and not the
impact on individual members of
this group of
consumers (83). In some cases a certain period of time
may be required before the efficiencies materialise. Until
such time the agreement may have only negative effects.
The fact that pass-on to the consumer occurs with a
certain time lag does not in itself exclude the application
of Article 81(3). However, the greater the time lag, the
greater must be the efficiencies to compensate also for
the loss to consumers during the period preceding the
pass-on.

88. In making this assessment it must be taken into account
that the value of a gain for consumers in the future is not
the same as a present gain for consumers. The value of
saving 100 euro today is greater than the value of saving

the same amount a year later. A gain for consumers in
fully compensate for a
the future therefore does not
loss to consumers of equal nominal size.
present
In
to allow for an appropriate comparison of a
order
to consumers with a future gain to
present
consumers, the value of future gains must be discounted.
The discount
the rate of
inflation,
if any, and lost interest as an indication of
the lower value of future gains.

rate applied must

reflect

loss

89. In other cases the agreement may enable the parties to
obtain the efficiencies earlier than would otherwise be
possible. In such circumstances it is necessary to take
the likely negative impact on consumers
account of
within the relevant market once this
lead-time has
lapsed. If through the restrictive agreement the parties
obtain a strong position on the market, they may be
able to charge a significantly higher price than would
otherwise have been the case. For the second condition
of Article 81(3) to be satisfied the benefit to consumers
of having earlier access to the products must be equally
significant. This may for instance be the case where an
agreement allows two tyre manufacturers to bring to
market three years earlier a new substantially safer tyre
but at the same time, by increasing their market power,
allows them to raise prices by 5 %. In such a case it is
likely that having early access to a substantially improved
product outweighs the price increase.

90. The second condition of Article 81(3)

if

incorporates a
sliding scale. The greater the restriction of competition
found under Article 81(1) the greater must be the effi-
ciencies and the pass-on to consumers. This sliding scale
approach implies that
the restrictive effects of an
agreement are relatively limited and the efficiencies are
substantial it is likely that a fair share of the cost savings
will be passed on to consumers.
is
therefore normally not necessary to engage
in a
detailed analysis of
the second condition of Article
81(3), provided that the three other conditions for the
application of this provision are fulfilled.

In such cases it

91. If, on the other hand,

the restrictive effects of

the
savings are
agreement are substantial and the cost
relatively insignificant,
the
second condition of Article 81(3) will be fulfilled. The
impact of the restriction of competition depends on the
intensity of the restriction and the degree of competition
that remains following the agreement.

is very unlikely that

it

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92. If the agreement has both substantial anti-competitive
effects and substantial pro-competitive effects a careful
analysis is required. In the application of the balancing
test in such cases it must be taken into account that
long-term driver of effi-
competition is an important
ciency and innovation. Undertakings
are not
that
to effective competitive constraints – such as
subject
firms – have less incentive to
for instance dominant
maintain or build on the
efficiencies. The more
substantial the impact of the agreement on competition,
the more likely it is that consumers will suffer in the long
run.

93. The following two sections describe in more detail the
analytical framework for assessing consumer pass-on of
efficiency gains. The first section deals with cost effi-
ciencies, whereas the section that follows covers other
types of efficiencies such as new or improved products
framework, which is
(qualitative
developed
particularly
important in cases where it is not immediately obvious
that
to
the competitive harms exceed the benefits
consumers or vice versa (84).

efficiencies). The
in

sections,

these

two

is

consumer pass-on may occur. In assessing the extent to
which cost efficiencies are likely to be passed on to
consumers and the outcome of
the balancing test
contained in Article 81(3) the following factors are in
particular taken into account:

(a) The characteristics and structure of the market,

(b) The nature and magnitude of the efficiency gains,

(c) The elasticity of demand, and

(d) The magnitude of the restriction of competition.

94. In the application of the principles set out below the
Commission will have regard to the fact that in many
cases it is difficult to accurately calculate the consumer
types of consumer pass-on.
pass-on rate and other
Undertakings are only required to substantiate their
claims by providing estimates and other data to the
extent reasonably possible, taking account of the circum-
stances of the individual case.

All factors must normally be considered. Since Article
81(3) only applies in cases where competition on the
market is being appreciably restricted, see paragraph 24
residual
there can be no presumption that
above,
competition will ensure that consumers receive a fair
share of the benefits. However, the degree of competition
remaining on the market and the nature of
this
competition influences the likelihood of pass-on.

3.4.2. Pass-on and balancing of cost efficiencies

95. When markets, as is normally the case, are not perfectly
competitive, undertakings are able to influence the
market price to a greater or lesser extent by altering
their output (85). They may also be able to price
discriminate amongst customers.

96. Cost efficiencies may in some circumstances lead to
increased output and lower prices
the affected
consumers. If due to cost efficiencies the undertakings
in question can increase profits by expanding output,

for

subject

97. The greater the degree of residual competition the more
likely it is that individual undertakings will try to increase
their sales by passing on cost efficiencies. If undertakings
compete mainly on price and are not
to
capacity constraints, pass-on may occur
significant
relatively quickly. If competition is mainly on capacity
and capacity adaptations occur with a certain time lag,
pass-on will be slower. Pass-on is also likely to be slower
when the market
to tacit
collusion (86).
likely to retaliate
against an increase in output by one or more parties to
the agreement, the incentive to increase output may be
tempered, unless the competitive advantage conferred by
the efficiencies is such that the undertakings concerned
have an incentive to break away from the common
policy adopted on the market by the members of the
oligopoly. In other words, the efficiencies generated by
the agreement may turn the undertakings concerned into
so-called ‘mavericks’ (87).

structure
competitors

conducive

is
are

If

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is

two

each

revenue

produce

set, pricing

equals marginal

98. The nature of the efficiency gains also plays an important
role. According
theory undertakings
to economic
maximise their profits by selling units of output until
marginal
cost. Marginal
revenue is the change in total revenue resulting from
selling an additional unit of output and marginal cost is
the change in total cost resulting from producing that
additional unit of output. It follows from this principle
that as a general rule output and pricing decisions of a
profit maximising undertaking are not determined by its
fixed costs (i.e. costs that do not vary with the rate of
production) but by its variable costs (i.e. costs that vary
fixed costs are
with the rate of production). After
incurred and capacity
and output
decisions are determined by variable cost and demand
conditions. Take for instance a situation in which two
companies
two
production lines operating only at half their capacities.
A specialisation agreement may allow the two under-
takings
the two
to specialise in producing one of
products and scrap their second production line for the
other product. At the same time the specialisation may
allow the companies
to reduce variable input and
stocking costs. Only the latter savings will have a direct
effect on the pricing and output decisions of the under-
takings, as they will
influence the marginal costs of
production. The scrapping by each undertaking of one
of their production lines will not reduce their variable
costs and will not have an impact on their production
costs.
It follows that undertakings may have a direct
incentive to pass on to consumers in the form of
higher output and lower prices efficiencies that reduce
marginal costs, whereas
they have no such direct
incentive with regard to efficiencies that reduce fixed
costs. Consumers are therefore more likely to receive a
fair share of the cost efficiencies in the case of reductions
in variable costs than they are in the case of reductions in
fixed costs.

products

on

100. It must also be taken into account that efficiency gains
often do not affect the whole cost structure of the under-
takings concerned. In such event the impact on the price
to consumers is reduced. If for example an agreement
allows the parties to reduce production costs by 6 %,
but production costs only make up one third of the
costs on the basis of which prices are determined, the
impact on the product price is 2 %, assuming that the full
amount is passed-on.

101. Finally, and very importantly, it is necessary to balance
the two opposing forces resulting from the restriction of
competition and the cost efficiencies. On the one hand,
any increase in market power caused by the restrictive
agreement gives the undertakings concerned the ability
and incentive to raise price. On the other hand, the types
of cost efficiencies that are taken into account may give
the undertakings concerned an incentive to reduce price,
see paragraph 98 above. The effects of
these two
opposing forces must be balanced against each other. It
the consumer pass-on
is recalled in this regard that
scale. When the
condition incorporates
agreement
reduction in the
competitive constraint facing the parties, extraordinarily
large cost efficiencies are normally required for sufficient
pass-on to occur.

sliding
substantial

causes

a

a

99. The fact that undertakings may have an incentive to pass
on certain types of cost efficiencies does not imply that
the pass-on rate will necessarily be 100 %. The actual
pass-on rate depends on the extent to which consumers
respond to changes in price, i.e. the elasticity of demand.
The greater the increase in demand caused by a decrease
in price, the greater the pass-on rate. This follows from
the fact that the greater the additional sales caused by a
price reduction due to an increase in output the more
likely it is that these sales will offset the loss of revenue
caused by the lower price resulting from the increase in
output.
In the absence of price discrimination the
lowering of prices affects all units sold by the under-
taking, in which case marginal revenue is less than the
price obtained for the marginal product. If the under-
takings concerned are able to charge different prices to
different customers,
i.e. price discriminate, pass-on will
normally only benefit price-sensitive consumers (88).

3.4.3. Pass-on and balancing of other types of efficiencies

102. Consumer pass-on can also take the form of qualitative
efficiencies such as new and improved products, creating
sufficient value for consumers to compensate for the anti-
competitive effects of the agreement,
including a price
increase.

this nature. However,

103. Any such assessment necessarily requires value judgment.
It is difficult to assign precise values to dynamic effi-
ciencies of
fundamental
objective of the assessment remains the same, namely
to ascertain the overall impact of the agreement on the
consumers within the relevant market. Undertakings
claiming the benefit of Article 81(3) must substantiate
that consumers obtain countervailing benefits (see in
this respect paragraphs 57 and 86 above).

the

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104. The

in price

improved

availability

of new and

caused by the

products
constitutes an important source of consumer welfare.
As long as the increase in value stemming from such
improvements exceeds any harm from a maintenance
restrictive
or an increase
agreement, consumers are better off than without the
agreement and the consumer pass-on requirement of
Article 81(3)
In cases where the
likely effect of the agreement is to increase prices for
it must be
consumers within the
carefully assessed whether the claimed efficiencies create
real value for consumers
to
compensate for the adverse effects of the restriction of
competition.

is normally fulfilled.

relevant market

in that market

so as

3.5. Fourth condition of Article 81(3): No elimination of
competition

105. According to the fourth condition of Article 81(3) the
agreement must not afford the undertakings concerned
the possibility of eliminating competition in respect of a
substantial part of the products concerned. Ultimately the
protection of rivalry and the competitive process is given
priority over potentially pro-competitive efficiency gains
which could result from restrictive agreements. The last
condition of Article 81(3) recognises the fact that rivalry
between undertakings is an essential driver of economic
efficiency, including dynamic efficiencies in the shape of
innovation. In other words, the ultimate aim of Article
81 is
competitive process. When
competition is eliminated the competitive process is
brought to an end and short-term efficiency gains are
outweighed by longer-term losses stemming inter alia
from expenditures
to
incurred by
maintain its position (rent seeking), misallocation of
resources, reduced innovation and higher prices.

to protect

incumbent

the

the

106. The

it

concept

this concept

in Article 81(3) of

elimination of
competition in respect of a substantial part of
the
products concerned is an autonomous Community law
concept specific to Article 81(3) (89). However,
in the
application of
is necessary to take
the relationship between Article 81 and
account of
Article 82. According to settled case law the application
of Article 81(3) cannot prevent the application of Article
82 of the Treaty (90). Moreover, since Articles 81 and 82
both pursue the aim of maintaining effective competition
on the market, consistency requires that Article 81(3) be
interpreted as precluding
this
provision to restrictive agreements that constitute an
abuse of a dominant position (91) (92). However, not all
restrictive agreements concluded by a dominant under-
taking constitute an abuse of a dominant position. This is
for instance the case where a dominant undertaking is
party to a non-full function joint venture (93), which is
found to be restrictive of competition but at the same
time involves a substantial integration of assets.

application of

any

and on the

impact of
the
i.e.

107. Whether competition is being eliminated within the
meaning of the last condition of Article 81(3) depends
to the
on the degree of competition existing prior
the
agreement
restrictive
reduction in
agreement on competition,
competition that the agreement brings about. The more
competition is
in the market
already weakened
concerned,
the slighter the further reduction required
for competition to be eliminated within the meaning of
the greater the reduction of
Article 81(3). Moreover,
competition caused by the agreement, the greater the
likelihood that competition in respect of a substantial
part of the products concerned risks being eliminated.

108. The application of the last condition of Article 81(3)
the various sources of
the level of competitive
to the
the agreement on this
and potential

requires a realistic analysis of
competition in the market,
constraint
that
agreement and the impact of
competitive
competition must be considered.

they impose on the parties

constraint. Both actual

109. While market shares are relevant,

the magnitude of
remaining sources of actual competition cannot be
assessed exclusively on the basis of market share. More
extensive qualitative and quantitative analysis is normally
called for. The capacity of actual competitors to compete
and their incentive to do so must be examined. If, for
example, competitors face capacity constraints or have
relatively higher costs of production their competitive
response will necessarily be limited.

110. In the assessment of the impact of the agreement on
competition it is also relevant to examine its influence
on the various parameters of competition. The last
is not
condition for exception under Article 81(3)
fulfilled, if the agreement eliminates competition in one
of its most important expressions. This is particularly the
case when an agreement eliminates price competition (94)
or competition in respect of innovation and development
of new products.

111. The actual market conduct of the parties can provide
insight into the impact of the agreement.
If following
the conclusion of the agreement the parties have imple-
mented and maintained substantial price increases or
engaged in other conduct indicative of the existence of
a considerable degree of market power, it is an indication
that the parties are not subject to any real competitive
pressure and that competition has been eliminated with
regard to a substantial part of the products concerned.

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the impact of

112. Past competitive interaction may also provide an indi-
cation of
the agreement on future
competitive interaction. An undertaking may be able to
eliminate competition within the meaning of Article
81(3) by concluding an agreement with a competitor
in the past has been a ‘maverick’ (95). Such an
that
agreement may change the competitive incentives and
capabilities of the competitor and thereby remove an
important source of competition in the market.

113. In cases involving differentiated products,

the

that

offer

constraint

competitive

undertakings

sold by the parties

i.e. products
that differ in the eyes of consumers, the impact of the
agreement may depend on the competitive relationship
between the products
to the
differentiated
agreement. When
individual
products
products impose on each other differs according to the
degree of substitutability between them. It must therefore
be considered what
is the degree of substitutability
between the products offered by the parties, i.e. what is
they impose on each
the competitive constraint
other. The more the products of
the parties to the
agreement are close substitutes the greater the likely
restrictive effect of the agreement. In other words, the
more substitutable the products the greater the likely
in terms of
change brought about by the agreement
restriction of competition on the market and the more
likely it is that competition in respect of a substantial
part of the products concerned risks being eliminated.

that

114. While sources of actual competition are usually the most
important, as they are most easily verified, sources of
potential competition must also be taken into account.
The assessment of potential competition requires an
analysis of barriers to entry facing undertakings that are
not already competing within the relevant market. Any
assertions by the parties that there are low barriers to
market entry must be supported by information ident-
ifying the sources of potential competition and the
parties must
sources
also substantiate why
constitute a real competitive pressure on the parties.

these

subsequently exits the market. The higher the sunk
costs the higher the commercial risk for potential
entrants.

rate of output where

(iii) The minimum efficient scale within the industry, i.e.
the
are
minimised. If the minimum efficient scale is large
compared to the size of the market, efficient entry
is likely to be more costly and risky.

average

costs

the

(iv) The competitive strengths of potential entrants.
Effective entry is particularly likely where potential
entrants have access to at least as cost efficient
other
technologies
or
competitive
allow them to
compete effectively. When potential entrants are
on the same or an inferior technological trajectory
compared to the incumbents and possess no other
significant competitive advantage entry is more
risky and less effective.

incumbents
that

as
advantages

(v) The position of buyers and their ability to bring
onto the market new sources of competition. It is
irrelevant that certain strong buyers may be able to
extract more favourable conditions from the parties
to the agreement than their weaker competitors (96).
The presence of strong buyers can only serve to
counter a prima facie finding of elimination of
competition if
in
question will pave the way for effective new entry.

the buyers

likely that

is

it

(vi) The likely response of

incumbents to attempted
new entry. Incumbents may for example through
past
reputation of
aggressive behaviour, having an impact on future
entry.

conduct have

acquired a

115. In the assessment of entry barriers and the real possibility
it is relevant to

for new entry on a significant scale,
examine, inter alia, the following:

(vii) The economic outlook for the industry may be an
indicator of its longer-term attractiveness. Industries
that are stagnating or in decline are less attractive
candidates for entry than industries characterised by
growth.

(i) The regulatory framework with a view to deter-

mining its impact on new entry.

(viii) Past entry on a significant scale or the absence

thereof.

(ii) The cost of entry including sunk costs. Sunk costs
are those that cannot be recovered if the entrant

116. The above principles can be illustrated by the following
intended to

examples, which are not

hypothetical
establish thresholds:

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Firm A is brewer, holding 70 % of the relevant market,
comprising the sale of beer through cafés and other
on-trade premises. Over
the past 5 years A has
increased its market share from 60 %. There are four
other competitors in the market, B, C, D and E with
market shares of 10 %, 10 %, 5 % and 5 %. No new
entry has occurred in the recent past and price changes
implemented by A have generally been followed by
competitors. A concludes agreements with 20 % of the
on-trade premises representing 40 % of sales volumes
whereby the contracting parties undertake to purchase
beer only from A for a period of 5 years. The agreements
raise the costs and reduce the revenues of rivals, which
are foreclosed from the most attractive outlets. Given the
market position of A, which has been strengthened in
recent years, the absence of new entry and the already
weak position of competitors it is likely that competition
in the market is eliminated within the meaning of Article
81(3).

tariffs.

Following the

Shipping firms A, B, C, and D, holding collectively more
than 70 % of the relevant market, conclude an agreement
whereby they agree to coordinate their schedules and
the
their
agreement prices rise between 30 % and 100 %. There
are four other suppliers, the largest holding about 14 %
of the relevant market. There has been no new entry in
recent years and the parties to the agreement did not lose
significant market share following the price increases.
The existing competitors brought no significant new

implementation of

the market position of

capacity to the market and no new entry occurred. In
light of
the parties and the
absence of competitive response to their joint conduct
it can reasonably be concluded that the parties to the
agreement are not subject to real competitive pressures
and that the agreement affords them the possibility of
eliminating competition within the meaning of Article
81(3).

A is a producer of electric appliances for professional
users with a market
share of 65 % of a relevant
national market. B is a competing manufacturer with
5 % market share which has developed a new type of
motor that is more powerful while consuming less elec-
tricity. A and B conclude an agreement whereby they
establish a production joint venture for the production
of the new motor. B undertakes to grant an exclusive
licence to the joint venture. The joint venture combines
the new technology of B with the efficient manufacturing
and quality control process of A. There is one other main
competitor with 15 % of the market. Another competitor
with 5 % market share has recently been acquired by C, a
major
competing electric
technologies. C
appliances, which itself owns efficient
has thus far not been active on the market mainly due
to the fact that local presence and servicing is desired by
customers. Through the acquisition C gains access to the
service organisation required to penetrate the market. The
entry of C is likely to ensure that competition is not
being eliminated.

international producer of

(1) In the following the term ‘agreement’ includes concerted practices and decisions of associations of undertakings.

(2) OJ L 1, 4.1.2003, p. 1.

(3) All existing block exemption regulations and Commission notices are available on the DG Competition web-site: http://www.europa.eu.int/comm/

dgs/competition

(4) See paragraph 36 below.

(5) See Commission Notice on Guidelines on vertical restraints (OJ C 291, 13.10.2000, p. 1), Commission Notice on Guidelines on the application of
Article 81 of the Treaty to horizontal cooperation agreements (OJ C 3, 6.1.2001, p. 2), and Commission Notice on Guidelines on the application
of Article 81 of the Treaty to technology transfer agreements, not yet published.

(6) The concept of effect on trade between Member States is dealt with in separate guidelines.

(7) In the following the term ‘restriction’ includes the prevention and distortion of competition.

(8) According to Article 81(2) such agreements are automatically void.

(9) Article 81(1) prohibits both actual and potential anti-competitive effects, see e.g. Case C-7/95 P, John Deere, [1998] ECR I-3111, paragraph 77.

(10) See Case T-65/98, Van den Bergh Foods, [2003] ECR II . . ., paragraph 107 and Case T-112/99, Métropole télévision (M6) and others, [2001] ECR
II-2459, paragraph 74, where the Court of First Instance held that it is only in the precise framework of Article 81(3) that the pro- and
anti-competitive aspects of a restriction may be weighed.

(11) See note above.

(12) See e.g. Case C-49/92 P, Anic Partecipazioni, [1999] ECR I-4125, paragraph 116; and Joined Cases 40/73 to 48/73 and others, Suiker Unie,

[1975] ECR page 1663, paragraph 173.

(13) See in this respect paragraph 108 of the judgment in Anic Partecipazioni cited in the previous note and Case C-277/87, Sandoz Prodotti, [1990]

ECR I-45.

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(14) See in this respect e.g. Case 14/68, Walt Wilhelm, [1969] ECR 1, and more recently Case T-203/01, Michelin (II), [2003] ECR II . . ., paragraph 112.

(15) See Joined Cases T-25/95 and others, Cimenteries CBR, [2000] ECR II-491, paragraphs 1849 and 1852; and Joined Cases T-202/98 and others,

British Sugar, [2001] ECR II-2035, paragraphs 58 to 60.

(16) See to that effect Case C-453/99, Courage v Crehan, [2001] ECR I-6297, and paragraph 3444 of the judgment in Cimenteries CBR cited in the

previous note.

(17) See in this respect Joined Cases C-2/01 P and C-3/01 P, Bundesverband der Arzneimittel-Importeure, [2004] ECR I . . ., paragraph 102.

(18) See e.g. Joined Cases 25/84 and 26/84, Ford, [1985] ECR 2725.

(19) See in this respect paragraph 141 of the judgment in Bundesverband der Arzneimittel-Importeure cited in note.

(20) See Case 56/65, Société Technique Minière, [1966] ECR 337, and paragraph 76 of the judgment in John Deere, cited in note 9.

(21) See in this respect e.g. Joined Cases 56/64 and 58/66, Consten and Grundig, [1966] ECR 429.

(22) See in this respect e.g. Commission Decision in Elopak/Metal Box – Odin (OJ 1990 L 209, p. 15) and in TPS (OJ 1999 L 90, p. 6).

(23) See in this respect the judgment in Société Technique Minière cited in note 20 and Case 258/78, Nungesser, [1982] ECR 2015.

(24) See rule 10 in paragraph 119 of the Guidelines on vertical restraints cited in note above, according to which inter alia passive sales restrictions —
a hardcore restraint — are held to fall outside Article 81(1) for a period of 2 years when the restraint is linked to opening up new product or
geographic markets.

(25) See e.g. paragraph 99 of the judgment in Anic Partecipazioni cited in note 12.

(26) See paragraph 46 below.

(27) See Joined Cases 29/83 and 30/83, CRAM and Rheinzink, [1984] ECR 1679, paragraph 26, and Joined Cases 96/82 and others, ANSEAU-

NAVEWA, [1983] ECR 3369, paragraphs 23-25.

(28) See the Guidelines on horizontal cooperation agreements, cited in note, paragraph 25, and Article 5 of Commission Regulation 2658/2000 on

the application of Article 81(3) of the Treaty to categories of specialisation agreements (OJ L 304, 5.12.2000, p. 3).

(29) See Article 4 Commission Regulation 2790/1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and
concerted practices (OJ L 336, 29.12.1999, p. 21) and the Guidelines on Vertical Restraints, cited in note, paragraph 46 et seq. See also Case
279/87, Tipp-Ex, [1990] ECR I-261, and Case T-62/98, Volkswagen v Commission, [2000] ECR II-2707, paragraph 178.

(30) See paragraph 77 of the judgment in John Deere cited in note 9.

(31) It is not sufficient in itself that the agreement restricts the freedom of action of one or more of the parties, see paragraphs 76 and 77 of the
judgment in Métropole television (M6) cited in note10. This is in line with the fact that the object of Article 81 is to protect competition on the
market for the benefit of consumers.

(32) See e.g. Case 5/69, Völk, [1969] ECR 295, paragraph 7. Guidance on the issue of appreciability can be found in the Commission Notice on
agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty (OJ C 368, 22.12.2001, p. 13)
The notice defines appreciability in a negative way. Agreements, which fall outside the scope of the de minimis notice, do not necessarily have
appreciable restrictive effects. An individual assessment is required.

(33) See in this respect Joined Cases T-374/94 and others, European Night Services, [1998] ECR II-3141.

(34) See note 32.

(35) See in this respect Commission notice on the definition of the relevant market for the purposes of Community competition law (OJ C 372,

9.12.1997, p. 1).

(36) For the reference in the OJ see note 5.

(37) See paragraph 104 of the judgment in Métropole télévision (M6) and others, cited in note 10.

(38) See e.g. Case C-399/93, Luttikhuis, [1995] ECR I-4515, paragraphs 12 to 14.

(39) See in this respect paragraphs 118 et seq. of the Métropole television judgment cited in note 10.

(40) See paragraph 107 of the judgment in Métropole télévision judgement cited in note 10.

(41) See e.g. Commission Decision in Elopak/Metal Box – Odin cited in note 22.

(42) See Case 161/84, Pronuptia, [1986] ECR 353.

(43) See note 22. The decision was upheld by the Court of First Instance in the judgment in Métropole télévision (M6) cited in note 10.

(44) Cost savings and other gains to the parties that arise from the mere exercise of market power do not give rise to objective benefits and cannot be

taken into account, cf. paragraph 49 below.

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(45) See the judgment in Consten and Grundig, cited in note 21.

(46) The fact that an agreement is block exempted does not in itself indicate that the individual agreement is caught by Article 81(1).

(47) See e.g. Case C-234/89, Delimitis, [1991] ECR I-935, paragraph 46.

(48) Article 36(4) of Regulation 1/2003 has, inter alia, repealed Article 5 of Regulation 1017/68 applying rules of competition to transport by rail,
road and inland waterway. However, the Commission's case practice adopted under Regulation 1017/68 remains relevant for the purposes of
applying Article 81(3) in the inland transport sector.

(49) See paragraph 42 below.

(50) See the judgment in Société Technique Minière cited in note 20.

(51) See in this respect Case 319/82, Kerpen & Kerpen, [1983] ECR 4 173, paragraphs 11 and 12.

(52) See e.g. Case T-185/00 and others, Métropole télévision SA (M6), [2002] ECR II-3805, paragraph 86, Case T-17/93, Matra, ECR [1994] II-595,

paragraph 85; and Joined Cases 43/82 and 63/82, VBVB and VBBB, [1984] ECR 19, paragraph 61.

(53) See Case T-213/00, CMA CGM and others, [2003] ECR II . . ., paragraph 226.

(54) See to that effect implicitly paragraph 139 of the Matra judgment cited in note 52 and Case 26/76, Metro (I), [1977] ECR 1875, paragraph 43.

(55) As to the concept of consumers see paragraph 84 below where it is stated that consumers are the customers of the parties and subsequent buyers.

The parties themselves are not ‘consumers’ for the purposes of Article 81(3).

(56) The test is market specific, see to that effect Case T-131/99, Shaw, [2002] ECR II-2023, paragraph 163, where the Court of First Instance held
that the assessment under Article 81(3) had to be made within the same analytical framework as that used for assessing the restrictive effects, and
Case C-360/92 P, Publishers Association, [1995] ECR I-23, paragraph 29, where in a case where the relevant market was wider than national the
Court of Justice held that in the application of Article 81(3) it was not correct only to consider the effects on the national territory.

(57) In Case T-86/95, Compagnie Générale Maritime and others, [2002] ECR II-1011, paragraphs 343 to 345, the Court of First Instance held that
Article 81(3) does not require that the benefits are linked to a specific market and that in appropriate cases regard must be had to benefits ‘for
every other market on which the agreement in question might have beneficial effects, and even, in a more general sense, for any service the
quality or efficiency of which might be improved by the existence of that agreement’. Importantly, however, in this case the affected group of
consumers was the same. The case concerned intermodal transport services encompassing a bundle of, inter alia, inland and maritime trans-
portation provided to shipping companies across the Community. The restrictions related to inland transport services, which were held to
constitute a separate market, whereas the benefits were claimed to occur in relation to maritime transport services. Both services were demanded
by shippers requiring intermodal transport services between northern Europe and South-East and East Asia. The judgment in CMA CGM, cited in
note 53 above, also concerned a situation where the agreement, while covering several distinct services, affected the same group of consumers,
namely shippers of containerised cargo between northern Europe and the Far East. Under the agreement the parties fixed charges and surcharges
relating to inland transport services, port services and maritime transport services. The Court of First Instance held (cf. paragraphs 226 to 228)
that in the circumstances of the case there was no need to define relevant markets for the purpose of applying Article 81(3). The agreement was
restrictive of competition by its very object and there were no benefits for consumers.

(58) See paragraphs 126 and 132 of the Guidelines on horizontal co-operation agreements cited in note 5 above.

(59) See the Ford judgment cited in note 18.

(60) See in this respect for example Commission Decision in TPS (OJ L 90, 2.4.1999, p. 6). Similarly, the prohibition of Article 81(1) also only applies

as long as the agreement has a restrictive object or restrictive effects.

(61) See paragraph 85 of the Matra judgment cited in note 52.

(62) As to this requirement see paragraph 49 below.

(63) See e.g. Case T-29/92, Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid (SPO), [1995] ECR II-289.

(64) See e.g. Case 258/78, Nungesser, [1982] ECR 2015, paragraph 77, concerning absolute territorial protection.

(65) See in this respect e.g. the judgment in SPO cited in note 63.

(66) National measures must, inter alia, comply with the Treaty rules on free movement of goods, services, persons and capital.

(67) See e.g. the judgment in Consten and Grundig cited in note 21.

(68) See in this respect Commission Decision in Van den Bergh Foods (OJ 1998 L 246, p. 1).

(69) See in this respect Commission Decision in Glaxo Wellcome (OJ 2001 L 302, p. 1).

(70) See e.g. Commission Decision in GEAE/P&W (OJ 2000 L 58, p. 16); in British Interactive Broadcasting/Open (OJ 1999 L 312, p. 1) and in

Asahi/Saint Gobain (OJ 1994 L 354, page 87).

(71) See e.g. Commission Decision in Atlas (OJ 1996 L 239, p. 23), and in Phoenix/Global One (OJ 1996 L 239, p. 57).

(72) See e.g. Commission Decision in Uniform Eurocheques (OJ 1985 L 35, p. 43).

(73) See e.g. Commission Decision in Cégétel + 4 (OJ 1999 L 88, p. 26).

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(74) As to the former question, which may be relevant in the context of Article 81(1), see paragraph 18 above.

(75) Scale economies are normally exhausted at a certain point. Thereafter average costs will stabilise and eventually rise due to, for example, capacity

constraints and bottlenecks.

(76) See in this respect paragraphs 392 to 395 of the judgment in Compagnie Générale Maritime cited in note 57.

(77) See for more detail paragraph 116 of the Guidelines on Vertical Restraints cited in note 5.

(78) See Joined Cases T-374/94 and others, European Night Services, [1998] ECR II-3141, paragraph 230.

(79) See Commission Regulation No 2790/1999 on the application of Article 81(3) of the Treaty on categories of vertical agreements and concerted

practices (OJ 1999 L 336, page 21).

(80) See in this respect the judgment in Consten and Grundig cited in note 21, where the Court of Justice held that the improvements within the
meaning of the first condition of Article 81(3) must show appreciable objective advantages of such a character as to compensate for the
disadvantages which they cause in the field of competition.

(81) It is recalled that positive and negative effects on consumers are in principle balanced within each relevant market (cf. paragraph 43 above).

(82) See in this respect paragraph 48 of the Metro (I) judgment cited in note 54.

(83) See paragraph 163 of the judgment in Shaw cited in note 56.

(84) In the following sections, for convenience the competitive harm is referred to in terms of higher prices; competitive harm could also mean lower

quality, less variety or lower innovation than would otherwise have occurred.

(85) In perfectly competitive markets individual undertakings are price-takers. They sell their products at the market price, which is determined by
overall supply and demand. The output of the individual undertaking is so small that any individual undertaking's change in output does not
affect the market price.

(86) Undertakings collude tacitly when in an oligopolistic market they are able to coordinate their action on the market without resorting to an explicit

cartel agreement.

(87) This term refers to undertakings that constrain the pricing behaviour of other undertakings in the market who might otherwise have tacitly

colluded.

(88) The restrictive agreement may even allow the undertakings in question to charge a higher price to customers with a low elasticity of demand.

(89) See Joined Cases T-191/98, T-212/98 and T-214/98, Atlantic Container Line (TACA), [2003] ECR II-. . ., paragraph 939, and Case T-395/94,

Atlantic Container Line, [2002] ECR II-875, paragraph 330.

(90) See Joined Cases C-395/96 P and C-396/96 P, Compagnie maritime belge, [2000] ECR I-1365, paragraph 130. Similarly, the application of
Article 81(3) does not prevent the application of the Treaty rules on the free movement of goods, services, persons and capital. These provisions
are in certain circumstances applicable to agreements, decisions and concerted practices within the meaning of Article 81(1), see to that effect
Case C-309/99, Wouters, [2002] ECR I-1577, paragraph 120.

(91) See in this respect Case T-51/89, Tetra Pak (I), [1990] ECR II-309, and Joined Cases T-191/98, T-212/98 and T-214/98, Atlantic Container Line

(TACA), [2003] ECR II-. . ., paragraph 1456.

(92) This is how paragraph 135 of the Guidelines on vertical restraints and paragraphs 36, 71, 105, 134 and 155 of the Guidelines on horizontal
cooperation agreements, cited in note 5, should be understood when they state that in principle restrictive agreements concluded by dominant
undertakings cannot be exempted.

(93) Full function joint ventures, i.e. joint ventures that perform on a lasting basis all the functions of an autonomous economic entity, are covered by

Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1990 L 257, p 13).

(94) See paragraph 21 of the judgment in Metro (I) cited in note 54.

(95) See paragraph 97 above.

(96) See in this respect Case T-228/97, Irish Sugar, [1999] ECR II-2969, paragraph 101.

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II

(Information)

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

COMMISSION

Communication from the Commission — Guidance on the Commission's enforcement priorities in
applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings

(Text with EEA relevance)

(2009/C 45/02)

I. INTRODUCTION

prejudice to the possibility for the Commission to reject a
complaint when it considers that a case lacks priority on
grounds of lack of Community interest.

1. Article 82 of the Treaty establishing the European Com-
munity (‘Article 82’) prohibits abuses of a dominant posi-
tion. In accordance with the case-law,
it is not in itself
illegal for an undertaking to be in a dominant position and
such a dominant undertaking is entitled to compete on the
merits. However, the undertaking concerned has a special
responsibility not to allow its conduct to impair genuine
undistorted competition on the common market. Article 82
is the legal basis for a crucial component of competition
policy and its effective enforcement helps markets to work
better for the benefit of businesses and consumers. This is
particularly important in the context of the wider objective
of achieving an integrated internal market.

II. PURPOSE OF THIS DOCUMENT

specific enforcement decisions,

2. This document sets out the enforcement priorities that will
guide the Commission's action in applying Article 82 to
exclusionary conduct by dominant undertakings. Alongside
the Commission's
is
intended to provide greater clarity and predictability as
framework of analysis which the
regards
Commission employs in determining whether it should
pursue cases concerning various forms of exclusionary
conduct and to help undertakings better assess whether
certain behaviour is likely to result in intervention by the
Commission under Article 82.

the general

it

3. This document is not intended to constitute a statement of
the law and is without prejudice to the interpretation of
Article 82 by the Court of Justice or the Court of First
Instance of the European Communities.
In addition, the
general framework set out in this document applies without

4. Article 82 applies to undertakings which hold a dominant
position on one or more relevant markets. Such a position
may be held by one undertaking (single dominance) or by
two or more undertakings (collective dominance). This
document only relates to abuses committed by an under-
taking holding a single dominant position.

that are most harmful

5. In applying Article 82 to exclusionary conduct by domi-
nant undertakings, the Commission will focus on those
to consumers.
types of conduct
Consumers benefit from competition through lower prices,
better quality and a wider choice of new or improved
goods and services. The Commission, therefore, will direct
its enforcement to ensuring that markets function properly
and that consumers benefit from the efficiency and produc-
tivity which result
from effective competition between
undertakings.

6. The emphasis of the Commission's enforcement activity in
relation to exclusionary conduct
is on safeguarding the
competitive process in the internal market and ensuring
that undertakings which hold a dominant position do not
exclude their competitors by other means than competing
on the merits of the products or services they provide. In
doing so the Commission is mindful
that what really
matters is protecting an effective competitive process and
not simply protecting competitors. This may well mean
that competitors who deliver less to consumers in terms of
price, choice, quality and innovation will leave the market.

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7. Conduct which is directly exploitative of consumers, for
example charging excessively high prices or certain beha-
viour that undermines the efforts to achieve an integrated
is also liable to infringe Article 82. The
internal market,
Commission may decide to intervene in relation to such
conduct, in particular where the protection of consumers
and the proper functioning of the internal market cannot
the purpose of
otherwise be adequately ensured. For
the
providing guidance on its
Commission at
to exclusionary
stage limits
conduct and in, particular, certain specific types of exclu-
sionary conduct which, based on its experience, appear to
be the most common.

enforcement priorities

itself

this

the Commission will

8. In applying the general enforcement principles set out in
into
this Communication,
account the specific facts and circumstances of each case.
For example,
the
Commission will take into account the specific regulatory
environment in conducting its assessment (1). The Commis-
in this
sion may therefore adapt
Communication to the extent that this would appear to be
reasonable and appropriate in a given case.

in cases involving regulated markets,

the approach set out

take

III. GENERAL APPROACH TO EXCLUSIONARY CONDUCT

A. Market power

9. The assessment of whether an undertaking is in a dominant
position and of the degree of market power it holds is a
first step in the application of Article 82. According to the
case-law, holding a dominant position confers a special
responsibility on the undertaking concerned, the scope of
which must be considered in the light of
the specific
circumstances of each case (2).

10. Dominance has been defined under Community law as a
position of economic strength enjoyed by an undertaking,
which enables it
to prevent effective competition being
maintained on a relevant market, by affording it the power
to behave to an appreciable extent independently of its
competitors, its customers and ultimately of consumers (3).
This notion of independence is related to the degree of
competitive constraint exerted on the undertaking in ques-
tion. Dominance entails that these competitive constraints
are not sufficiently effective and hence that the undertaking
in question enjoys substantial market power over a period
of time. This means that the undertaking's decisions are

(1) See for instance paragraph 82.
(2) Case 322/81 Nederlandsche Banden Industrie Michelin (Michelin I) v
Commission [1983] ECR 3461, paragraph 57; Case T-83/91 Tetra Pak v
Commission (Tetra Pak II) [1993] ECR II-755, paragraph 114; Case
T-111/96 ITT Promedia v Commission [1998] ECR II-2937, para-
graph 139; Case T-228/97 Irish Sugar v Commission [1999]
ECR II-2969, paragraph 112; and Case T-203/01 Michelin v Commission
(Michelin II) [2003] ECR II-4071, paragraph 97.

(3) See Case 27/76 United Brands Company and United Brands Continentaal v
Commission [1978] ECR 207, paragraph 65; Case 85/76 Hoffmann-La
Roche & Co. v Commission [1979] ECR 461, paragraph 38.

largely insensitive to the actions and reactions of competi-
tors, customers and, ultimately, consumers. The Commis-
sion may consider that effective competitive constraints are
some actual or potential competition
absent even if
remains (4). In general, a dominant position derives from a
combination of several factors which, taken separately, are
not necessarily determinative (5).

11. The Commission considers that an undertaking which is
capable of profitably increasing prices above the competi-
tive level for a significant period of time does not face suffi-
ciently effective competitive constraints and can thus gener-
ally be regarded as dominant (6). In this Communication,
the expression ‘increase prices’ includes the power to main-
tain prices above the competitive level and is used as short-
hand for the various ways in which the parameters of
the
competition — such as prices, output,
variety or quality of goods or services — can be influenced
to the advantage of the dominant undertaking and to the
detriment of consumers (7).

innovation,

12. The assessment of dominance will take into account the
competitive structure of the market, and in particular the
following factors:

— constraints imposed by the existing supplies from, and
the position on the market of, actual competitors (the
market position of the dominant undertaking and its
competitors),

— constraints imposed by the credible threat of

future
expansion by actual competitors or entry by potential
competitors (expansion and entry),

— constraints imposed by the bargaining strength of the
undertaking's customers (countervailing buyer power).

(a) Market position of

the dominant undertaking and its

competitors

13. Market shares provide a useful

the
Commission of the market structure and of the relative
importance of
the various undertakings active on the
market (8). However, the Commission will interpret market
shares in the light of the relevant market conditions, and

indication for

first

(4) See Case 27/76 United Brands Company and United Brands Continentaal v
Commission [1978] ECR 207, paragraphs 113 to 121; Case T-395/94
Atlantic Container Line and Others v Commission [2002] ECR II-875, para-
graph 330.

(5) Case 27/76 United Brands and United Brands Continentaal v Commission
[1978] ECR 207, paragraphs 65 and 66; Case C-250/92 Gøttrup-Klim
e.a. Grovvareforeninger
v Dansk Landbrugs Grovvareselskab [1994]
ECR I-5641, paragraph 47; Case T-30/89 Hilti v Commission [1991]
ECR II-1439, paragraph 90.

(6) What is a significant period of time will depend on the product and on
the circumstances of the market in question, but normally a period of
two years will be sufficient.

(7) Accounting profitability may be a poor proxy for the exercise of market
power. See to that effect Case 27/76 United Brands Company and United
Brands Continentaal v Commission [1978] ECR 207, paragraph 126.
(8) Case 85/76 Hoffmann-La Roche & Co. v Commission [1979] ECR 461,
paragraph 39-41; Case C-62/86 AKZO v Commission [1991]
ECR I-3359, paragraph 60; Case T-30/89 Hilti v Commission [1991]
ECR II-1439, paragraphs 90, 91 and 92; Case T-340/03 France Télécom
v Commission [2007] ECR II-107, paragraph 100.

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in particular of the dynamics of the market and of the
extent to which products are differentiated. The trend or
development of market shares over time may also be taken
into account in volatile or bidding markets.

low market shares are
14. The Commission considers that
generally a good proxy for
the absence of substantial
market power. The Commission's experience suggests that
dominance is not likely if the undertaking's market share is
below 40 % in the relevant market. However, there may be
specific cases below that threshold where competitors are
not in a position to constrain effectively the conduct of a
dominant undertaking, for example where they face serious
capacity limitations. Such cases may also deserve attention
on the part of the Commission.

15. Experience suggests that the higher the market share and
the longer the period of time over which it is held, the
more likely it is that it constitutes an important preliminary
indication of the existence of a dominant position and, in
certain circumstances, of possible serious effects of abusive
conduct,
justifying an intervention by the Commission
under Article 82 (1). However, as a general
the
Commission will not come to a final conclusion as to
should be pursued without
whether or not a case
examining all
to
constrain the behaviour of the undertaking.

the factors which may be sufficient

rule,

(b) Expansion or entry

timely and sufficient. For

16. Competition is a dynamic process and an assessment of the
competitive constraints on an undertaking cannot be based
solely on the existing market
situation. The potential
impact of expansion by actual competitors or entry by
potential competitors, including the threat of such expan-
sion or entry,
is also relevant. An undertaking can be
deterred from increasing prices if expansion or entry is
the Commission to
likely,
consider expansion or entry likely it must be sufficiently
profitable for
taking into
the competitor or entrant,
account factors such as the barriers to expansion or entry,
the likely reactions of the allegedly dominant undertaking
and other competitors, and the risks and costs of failure.
For expansion or entry to be considered timely, it must be
sufficiently swift to deter or defeat the exercise of substan-
tial market power. For expansion or entry to be considered
sufficient, it cannot be simply small-scale entry, for example
into some market niche, but must be of such a magnitude
as to be able to deter any attempt to increase prices by the
putatively dominant undertaking in the relevant market.

(1) As to the relationship between the degree of dominance and the
finding of abuse, see Joined Cases C-395/96 P and C-396/96 P
Compagnie Maritime Belge Transports, Compagnie Maritime Belge and
Dafra-Lines v Commission [2000] ECR I-1365, paragraph 119; Case
T-228/97 Irish Sugar v Commission [1999] ECR II-2969, paragraph 186.

important

to essential

17. Barriers to expansion or entry can take various forms. They
may be legal barriers, such as tariffs or quotas, or they may
take the form of advantages specifically enjoyed by the
dominant undertaking, such as economies of scale and
scope, privileged access
inputs or natural
technologies (2) or an established
resources,
distribution and sales network (3). They may also include
costs and other impediments, for instance resulting from
network effects, faced by customers in switching to a new
supplier. The dominant undertaking's own conduct may
also create barriers to entry, for example where it has made
significant
investments which entrants or competitors
would have to match (4), or where it has concluded
long-term contracts with its customers that have appreci-
able foreclosing effects. Persistently high market shares may
be indicative of
the existence of barriers to entry and
expansion.

(c) Countervailing buyer power

18. Competitive constraints may be exerted not only by actual
or potential competitors but also by customers. Even an
undertaking with a high market share may not be able to
act to an appreciable extent independently of customers
with sufficient bargaining strength (5). Such countervailing
buying power may result from the customers' size or their
commercial significance for the dominant undertaking, and
their ability to switch quickly to competing suppliers, to
promote new entry or
to vertically integrate, and to
credibly threaten to do so. If countervailing power is of a
sufficient magnitude, it may deter or defeat an attempt by
the undertaking to profitably increase prices. Buyer power
may not, however, be considered a sufficiently effective
constraint if it only ensures that a particular or limited
segment of customers is shielded from the market power of
the dominant undertaking.

B. Foreclosure leading to consumer harm (‘anti-compe-

titive foreclosure’)

19. The aim of the Commission's enforcement activity in rela-
tion to exclusionary conduct is to ensure that dominant
undertakings do not impair effective competition by fore-
closing their competitors in an anti-competitive way, thus
having an adverse impact on consumer welfare, whether in
the form of higher price levels than would have otherwise
prevailed or in some other form such as limiting quality or
the term
reducing consumer choice.

In this document

(2) Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 19.
(3) Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, para-

graph 48.

(4) Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 91.
(5) See Case T-228/97 Irish Sugar v Commission [1999] ECR II-2969, para-
graphs 97 to 104, in which the Court of First Instance considered
whether the alleged lack of independence of the undertaking vis-à-vis its
customers should be seen as an exceptional circumstance preventing
the finding of a dominant position in spite of the fact that the under-
taking was responsible for a very large part of the sales recorded on the
industrial sugar market in Ireland.

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‘anti-competitive foreclosure’ is used to describe a situation
where effective access of actual or potential competitors to
supplies or markets is hampered or eliminated as a result of
the dominant undertaking whereby the
the conduct of
dominant undertaking is likely to be in a position to profit-
ably increase prices (1) to the detriment of consumers. The
identification of likely consumer harm can rely on qualita-
tive and, where possible and appropriate, quantitative
evidence. The Commission will address such anti-competi-
tive foreclosure either at the intermediate level or at the
level of final consumers, or at both levels (2).

20. The Commission will normally intervene under Article 82
where, on the basis of cogent and convincing evidence, the
allegedly abusive conduct is likely to lead to anti-competi-
tive foreclosure. The Commission considers the following
factors to be generally relevant to such an assessment:

— the position of the dominant undertaking: in general, the
stronger the dominant position, the higher the likeli-
hood that conduct protecting that position leads to
anti-competitive foreclosure,

— the conditions on the relevant market: this includes the
conditions of entry and expansion, such as the existence
of economies of scale and/or scope and network effects.
Economies of scale mean that competitors are less likely
to enter or stay in the market if the dominant under-
taking forecloses a significant part of
the relevant
market. Similarly, the conduct may allow the dominant
undertaking to ‘tip’ a market characterised by network
effects in its favour or to further entrench its position
on such a market. Likewise,
if entry barriers in the
upstream and/or downstream market are significant,
this means that it may be costly for competitors to
overcome
vertical
foreclosure
integration,

possible

through

— the position of the dominant undertaking's competitors: this
includes the importance of competitors for the mainte-
nance of effective competition. A specific competitor
may play a significant competitive role even if it only
holds a small market share compared to other competi-
tors. It may, for example, be the closest competitor to
the dominant undertaking, be a particularly innovative
competitor, or have the reputation of systematically
cutting prices. In its assessment, the Commission may
also consider in appropriate cases, on the basis of

(1) For the meaning of the expression ‘increase price’ see paragraph 11.
(2) The concept of ‘consumers’ encompasses all direct or indirect users of
the products affected by the conduct, including intermediate producers
that use the products as an input, as well as distributors and final consu-
mers both of the immediate product and of products provided by inter-
mediate producers. Where intermediate users are actual or potential
competitors of the dominant undertaking, the assessment focuses on
the effects of the conduct on users further downstream.

information available, whether there are realistic, effec-
tive and timely counterstrategies that competitors would
be likely to deploy,

likely to respond to offers

— the position of the customers or input suppliers: this may
include consideration of the possible selectivity of the
conduct in question. The dominant undertaking may
apply the practice only to selected customers or input
suppliers who may be of particular importance for the
entry or expansion of competitors, thereby enhancing
the likelihood of anti-competitive foreclosure (3). In the
case of customers, they may, for example, be the ones
most
from alternative
suppliers,
they may represent a particular means of
distributing the product that would be suitable for a
new entrant, they may be situated in a geographic area
well suited to new entry or they may be likely to influ-
ence the behaviour of other customers. In the case of
input suppliers, those with whom the dominant under-
taking has concluded exclusive supply arrangements
may be the ones most likely to respond to requests by
customers who are competitors of the dominant under-
taking in a downstream market, or may produce a
grade of the product — or produce at a location —
particularly suitable for a new entrant. Any strategies at
the disposal of the customers or input suppliers which
could help to counter the conduct of the dominant
undertaking will also be considered,

— the extent of the allegedly abusive conduct: in general, the
higher the percentage of
total sales in the relevant
market affected by the conduct, the longer its duration,
and the more regularly it has been applied, the greater
is the likely foreclosure effect,

— possible evidence of actual foreclosure:

foreclosure. For

if the conduct has
been in place for a sufficient period of time, the market
performance of
the dominant undertaking and its
competitors may provide direct evidence of anti-compe-
to the
titive
allegedly abusive conduct,
the
dominant undertaking may have risen or a decline in
market
similar
share may have been slowed. For
reasons, actual competitors may have been marginalised
or may have exited, or potential competitors may have
tried to enter and failed,

attributable
the market share of

reasons

— direct evidence of any exclusionary strategy: this includes
internal documents which contain direct evidence of a
strategy to exclude competitors, such as a detailed plan
to engage in certain conduct in order to exclude a
competitor, to prevent entry or to pre-empt the emer-
gence of a market, or evidence of concrete threats of
exclusionary action. Such direct evidence may be
helpful
in interpreting the dominant undertaking's
conduct.

(3) Case T-228/97 Irish Sugar v Commission [1999] ECR II-2969, para-

graph 188.

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21. When pursuing a case the Commission will develop the
analysis of the general factors mentioned in paragraph 20,
together with the more specific factors described in the
sections dealing with certain types of exclusionary conduct,
and any other factors which it may consider to be appro-
priate. This assessment will usually be made by comparing
the actual or likely future situation in the relevant market
(with the dominant undertaking's conduct in place) with an
appropriate counterfactual, such as the simple absence of
the conduct in question or with another realistic alternative
scenario, having regard to established business practices.

likely to be foreclosed by the conduct in question, the
Commission will examine economic data relating to cost
and sales prices, and in particular whether the dominant
undertaking is engaging in below-cost pricing. This will
require that sufficiently reliable data be available. Where
available, the Commission will use information on the costs
of the dominant undertaking itself. If reliable information
on those costs is not available, the Commission may decide
to use the cost data of competitors or other comparable
reliable data.

22. There may be circumstances where it is not necessary for
the Commission to carry out a detailed assessment before
concluding that the conduct in question is likely to result in
consumer harm. If it appears that the conduct can only
raise obstacles to competition and that it creates no efficien-
cies, its anti-competitive effect may be inferred. This could
be the case,
the dominant undertaking
if
prevents its customers from testing the products of compe-
titors or provides financial incentives to its customers on
condition that they do not test such products, or pays a
distributor or a customer to delay the introduction of a
competitor's product.

for instance,

C. Price-based exclusionary conduct

23. The considerations in paragraphs 23 to 27 apply to price-
based exclusionary conduct. Vigorous price competition is
to consumers. With a view to
generally beneficial
preventing anti-competitive foreclosure,
the Commission
will normally only intervene where the conduct concerned
has already been or is capable of hampering competition
from competitors which are considered to be as efficient as
the dominant undertaking (1).

24. However,

that

the Commission recognises

in certain
circumstances a less efficient competitor may also exert a
constraint which should be taken into account when
considering whether particular price-based conduct leads to
anti-competitive foreclosure. The Commission will take a
dynamic view of that constraint, given that in the absence
of an abusive practice such a competitor may benefit from
demand-related advantages, such as network and learning
effects, which will tend to enhance its efficiency.

25. In order to determine whether even a hypothetical compe-
titor as efficient as the dominant undertaking would be

(1) Case 62/86 AKZO Chemie v Commission [1991] ECR I-3359, para-
graph 72: in relation to pricing below average total cost (ATC) the
Court of Justice stated: ‘Such prices can drive from the market undertakings
which are perhaps as efficient as the dominant undertaking but which, because
of their smaller financial resources, are incapable of withstanding the competi-
tion waged against them’. See also Judgment of 10 April 2008 in Case
T-271/03 Deutsche Telekom v Commission not yet reported, para-
graph 194.

26. The cost benchmarks that the Commission is likely to use
are average avoidable cost
(AAC) and long-run average
incremental cost (LRAIC) (2). Failure to cover AAC indicates
that the dominant undertaking is sacrificing profits in the
short term and that an equally efficient competitor cannot
serve the targeted customers without
incurring a loss.
LRAIC is usually above AAC because, in contrast to AAC
incurred during the
(which only includes fixed costs if
period under examination), LRAIC includes product specific
fixed costs made before the period in which allegedly
abusive conduct took place. Failure to cover LRAIC indi-
cates that the dominant undertaking is not recovering all
fixed costs of producing the good or
the (attributable)
service in question and that an equally efficient competitor
could be foreclosed from the market (3).

27. If the data clearly suggest that an equally efficient compe-
titor can compete effectively with the pricing conduct of
the dominant undertaking, the Commission will, in prin-
ciple, infer that the dominant undertaking's pricing conduct
is not likely to have an adverse impact on effective competi-
tion, and thus on consumers, and will therefore be unlikely
to intervene. If, on the contrary, the data suggest that the
price charged by the dominant undertaking has the poten-
tial
then the
Commission will integrate this in the general assessment of
anti-competitive foreclosure (see Section B above), taking
into account other relevant quantitative and/or qualitative
evidence.

to foreclose equally efficient competitors,

(2) Average avoidable cost is the average of the costs that could have been
avoided if the company had not produced a discrete amount of (extra)
output, in this case the amount allegedly the subject of abusive conduct.
In most cases, AAC and the average variable cost (AVC) will be the
same, as it is often only variable costs that can be avoided. Long-run
average incremental cost is the average of all the (variable and fixed)
costs that a company incurs to produce a particular product. LRAIC
and average total cost (ATC) are good proxies for each other, and are the
same in the case of single product undertakings. If multi-product under-
takings have economies of scope, LRAIC would be below ATC for each
individual product, as true common costs are not taken into account in
LRAIC. In the case of multiple products, any costs that could have been
avoided by not producing a particular product or range are not consid-
ered to be common costs. In situations where common costs are signifi-
cant, they may have to be taken into account when assessing the ability
to foreclose equally efficient competitors.

(3) In order to apply these cost benchmarks it may also be necessary to
look at revenues and costs of the dominant company and its competi-
tors in a wider context. It may not be sufficient to only assess whether
the price or revenue covers the costs for the product in question, but it
may be necessary to look at incremental revenues in case the dominant
company's conduct in question negatively affects its revenues in other
markets or of other products. Similarly,
in the case of two sided
markets it may be necessary to look at revenues and costs of both sides
at the same time.

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D. Objective necessity and efficiencies

28. In the enforcement of Article 82, the Commission will also
examine claims put forward by a dominant undertaking
that its conduct is justified (1). A dominant undertaking
may do so either by demonstrating that its conduct is
objectively necessary or by demonstrating that its conduct
produces substantial efficiencies which outweigh any anti-
competitive effects on consumers.
the
Commission will assess whether the conduct in question is
indispensable and proportionate to the goal allegedly
pursued by the dominant undertaking.

In this context,

29. The question of whether conduct is objectively necessary
and proportionate must be determined on the basis of
factors external to the dominant undertaking. Exclusionary
conduct may, for example, be considered objectively neces-
sary for health or safety reasons related to the nature of the
product in question. However, proof of whether conduct of
this kind is objectively necessary must take into account
that it is normally the task of public authorities to set and
enforce public health and safety standards. It is not the task
of a dominant undertaking to take steps on its own initia-
tive to exclude products which it
rightly or
wrongly, as dangerous or inferior to its own product (2).

regards,

30. The Commission considers that a dominant undertaking
may also justify conduct leading to foreclosure of competi-
tors on the ground of efficiencies that are sufficient to guar-
antee that no net harm to consumers is likely to arise. In
this context, the dominant undertaking will generally be
expected to demonstrate, with a sufficient degree of prob-
ability, and on the basis of verifiable evidence, that the
following cumulative conditions are fulfilled (3):

— the efficiencies have been, or are likely to be, realised as
a result of the conduct. They may, for example, include
technical
improvements in the quality of goods, or a
reduction in the cost of production or distribution,

— the conduct is indispensable to the realisation of those
efficiencies: there must be no less anti-competitive alter-
natives to the conduct that are capable of producing the
same efficiencies,

(1) See Case 27/76 United Brands v Commission [1978] ECR 207, para-
graph 184; Case 311/84 Centre Belge d'études de marché — Télémarketing
(CBEM) v Compagnie luxembourgeoise de télédiffusion (CLT) and Information
publicité Benelux (IPB) [1985] ECR 3261, paragraph 27; Case T-30/89
Hilti v Commission [1991] ECR II-1439, paragraphs 102 to 119; Case
T-83/91 Tetra Pak International v Commission (Tetra Pak II) [1994]
ECR II-755, paragraphs 136 and 207; Case C-95/04 P British Airways v
Commission [2007] ECR I-2331, paragraphs 69 and 86.

(2) See, for instance, Case T-30/89 Hilti v Commission [1991] ECR II-1439,
paragraph 118-119; Case T-83/91 Tetra Pak International v Commission
(Tetra Pak II) [1994] ECR II-755, paragraphs 83 and 84 and 138.

(3) See, in the different context of Article 81, the Communication from the
Commission — Notice — Guidelines on the application of
Article 81(3) of the Treaty (OJ C 101, 27.4.2004, p. 97).

— the likely efficiencies brought about by the conduct
outweigh any likely negative effects on competition and
consumer welfare in the affected markets,

— the conduct does not eliminate effective competition, by
removing all or most existing sources of actual or
potential competition. Rivalry between undertakings is
including
an essential driver of economic efficiency,
dynamic efficiencies in the form of innovation. In its
absence the dominant undertaking will
lack adequate
incentives to continue to create and pass on efficiency
gains. Where there is no residual competition and no
foreseeable threat of entry, the protection of rivalry and
the competitive process outweighs possible efficiency
gains. In the Commission's view, exclusionary conduct
which maintains, creates or strengthens a market posi-
tion approaching that of a monopoly can normally not
be justified on the grounds that it also creates efficiency
gains.

31. It is incumbent upon the dominant undertaking to provide
all the evidence necessary to demonstrate that the conduct
concerned is objectively justified.
then falls to the
Commission to make the ultimate assessment of whether
the conduct concerned is not objectively necessary and,
based on a weighing-up of any apparent anti-competitive
effects against any advanced and substantiated efficiencies,
is likely to result in consumer harm.

It

IV. SPECIFIC FORMS OF ABUSE

A. Exclusive dealing

32. A dominant undertaking may try to foreclose its competi-
tors by hindering them from selling to customers through
use of exclusive purchasing obligations or rebates, together
referred to as exclusive dealing (4). This section sets out the
circumstances which are most likely to prompt an interven-
tion by the Commission in respect of exclusive dealing
arrangements entered into by dominant undertakings.

(a) Exclusive purchasing

33. An exclusive purchasing obligation requires a customer on
a particular market to purchase exclusively or to a large

(4) The notion of exclusive dealing also includes exclusive supply obliga-
tions or incentives with the same effect, whereby the dominant under-
taking tries to foreclose its competitors by hindering them from
purchasing from suppliers. The Commission considers that such input
foreclosure is in principle liable to result in anti-competitive foreclosure
if the exclusive supply obligation or incentive ties most of the efficient
input suppliers and customers competing with the dominant under-
taking are unable to find alternative efficient sources of input supply.

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extent only from the dominant undertaking. Certain other
obligations, such as stocking requirements, which appear to
fall short of requiring exclusive purchasing, may in practice
lead to the same effect (1).

(b) Conditional rebates

34. In order

customers

to accept

to convince

in whole or in part,

the dominant undertaking may have

exclusive
to
purchasing,
compensate them,
for the loss in
competition resulting from the exclusivity. Where such
compensation is given, it may be in the individual interest
of a customer to enter into an exclusive purchasing obliga-
tion with the dominant undertaking. But
it would be
wrong to conclude automatically from this that all exclusive
purchasing obligations, taken together, are beneficial
for
customers overall, including those currently not purchasing
from the dominant undertaking, and the final consumers.
The Commission will focus its attention on those cases
is likely that consumers as a whole will not
where it
benefit. This will,
in particular, be the case if there are
many customers and the exclusive purchasing obligations
of
taken together, have the
effect of preventing the entry or expansion of competing
undertakings.

the dominant undertaking,

35. In addition to the factors mentioned in paragraph 20, the
following factors will generally be of particular relevance in
determining whether the Commission will
intervene in
respect of exclusive purchasing arrangements.

an

the

important

obligations,

36. The capacity for exclusive purchasing obligations to result
in anti-competitive foreclosure arises in particular where,
without
competitive
constraint is exercised by competitors who either are not
yet present in the market at the time the obligations are
concluded, or who are not in a position to compete for the
full supply of the customers. Competitors may not be able
to compete for an individual customer's entire demand
because the dominant undertaking is an unavoidable
trading partner at least for part of the demand on the
market, for instance because its brand is a ‘must stock item’
preferred by many final consumers or because the capacity
constraints on the other suppliers are such that a part of
demand can only be provided for by the dominant
supplier (2). If competitors can compete on equal terms for
each individual
exclusive
purchasing obligations are generally unlikely to hamper
effective competition unless the switching of supplier by
customers is rendered difficult due to the duration of the
exclusive purchasing obligation. In general, the longer the
duration of the obligation, the greater the likely foreclosure
effect. However, if the dominant undertaking is an unavoid-
able trading partner for all or most customers, even an
exclusive purchasing obligation of short duration can lead
to anti-competitive foreclosure.

customer's

demand,

entire

(1) Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653. In
this case the obligation to use coolers exclusively for the products of
the dominant undertaking was considered to lead to outlet exclusivity.
(2) Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653,

paragraphs 104 and 156.

rebate is that

37. Conditional rebates are rebates granted to customers to
reward them for a particular form of purchasing behaviour.
The usual nature of a conditional
the
customer is given a rebate if its purchases over a defined
reference period exceed a certain threshold,
the rebate
being granted either on all purchases (retroactive rebates) or
only on those made in excess of those required to achieve
the threshold (incremental rebates). Conditional rebates are
not an uncommon practice. Undertakings may offer such
rebates in order to attract more demand, and as such they
may stimulate demand and benefit consumers. However,
such rebates — when granted by a dominant undertaking
foreclosure effects
— can also have actual or potential
similar
to exclusive purchasing obligations. Conditional
rebates can have such effects without necessarily entailing a
sacrifice for the dominant undertaking (3).

38. In addition to the factors already mentioned in paragraph
20, the following factors are of particular importance to the
Commission in determining whether a given system of
conditional rebates is liable to result in anti-competitive
foreclosure and, consequently, will be part of the Commis-
sion's enforcement priorities.

39. As with exclusive purchasing obligations, the likelihood of
anti-competitive foreclosure is higher where competitors
are not able to compete on equal terms for the entire
demand of each individual customer. A conditional rebate
granted by a dominant undertaking may enable it to use
the demand of each
the ‘non contestable’ portion of
that would be
customer
purchased by the customer from the dominant undertaking
in any event) as leverage to decrease the price to be paid for
the ‘contestable’ portion of demand (that is to say, the
amount for which the customer may prefer and be able to
find substitutes) (4).

the amount

is to say,

(that

40. In general

terms, retroactive rebates may foreclose the
market significantly, as they may make it less attractive for
customers to switch small amounts of demand to an alter-
native supplier, if this would lead to loss of the retroactive
rebates (5). The potential
foreclosing effect of retroactive
rebates is in principle strongest on the last purchased unit
of the product before the threshold is exceeded. However,
what is in the Commission's view relevant for an assess-
ment of the loyalty enhancing effect of a rebate is not
simply the effect on competition to provide the last indivi-
dual unit, but the foreclosing effect of the rebate system

(3) In this regard, the assessment of conditional rebates differs from that of

predation, which always entails a sacrifice.

(4) See Case T-203/01 Michelin v Commission (Michelin II)

[2003]
ECR II-4071, paragraphs 162 and 163. See also Case T-219/99 British
Airways v Commission [2003] ECR II-5917, paragraphs 277 and 278.
(5) Case 322/81 Nederlandsche Banden Industrie Michelin v Commission

(Michelin I) [1983] ECR 3461, paragraphs 70 to 73.

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on (actual or potential) competitors of
the dominant
supplier. The higher the rebate as a percentage of the total
price and the higher the threshold, the greater the induce-
ment below the threshold and, therefore, the stronger the
likely foreclosure of actual or potential competitors.

41. When applying the methodology explained in para-
graphs 23 to 27, the Commission intends to investigate, to
the extent that the data are available and reliable, whether
the rebate system is capable of hindering expansion or
entry even by competitors that are equally efficient by
making it more difficult for them to supply part of the
requirements of individual customers. In this context the
Commission will estimate what price a competitor would
have to offer in order to compensate the customer for the
loss of the conditional rebate if the latter would switch part
of its demand (‘the relevant range’) away from the dominant
undertaking. The effective price that the competitor will
have to match is not the average price of the dominant
undertaking, but the normal (list) price less the rebate the
customer loses by switching, calculated over the relevant
range of sales and in the relevant period of
time. The
Commission will take into account the margin of error that
may be caused by the uncertainties inherent in this kind of
analysis.

(the

share’ or

competitor

‘contestable

42. The relevant range over which to calculate the effective
price in a particular case depends on the specific facts of
each case and on whether the rebate is incremental or
retroactive. For incremental rebates, the relevant range is
normally the incremental purchases that are being consid-
ered. For retroactive rebates, it will generally be relevant to
assess in the specific market context how much of a custo-
mer's purchase requirements can realistically be switched to
a
‘contestable
portion’). If it is likely that customers would be willing and
able to switch large amounts of demand to a (potential)
competitor relatively quickly, the relevant range is likely to
be relatively large. If, on the other hand, it is likely that
customers would only be willing or able to switch small
amounts incrementally, then the relevant range will be rela-
tively small. For existing competitors their capacity to
expand sales to customers and the fluctuations in those
sales over time may also provide an indication of the rele-
vant range. For potential competitors, an assessment of the
scale at which a new entrant would realistically be able to
enter may be undertaken, where possible.
It may be
possible to take the historical growth pattern of new
entrants in the same or in similar markets as an indication
of a realistic market share of a new entrant (1).

(1) The relevant range will be estimated on the basis of data which may
have varying degrees of precision. The Commission will take this into
account in drawing any conclusions regarding the dominant underta-
king's ability to foreclose equally efficient competitors. It may also be
useful to calculate how big a share of customers' requirements on
average the entrant should capture as a minimum so that the effective
price is at least as high as the LRAIC of the dominant company. In a
number of cases the size of this share, when compared with the actual
market shares of competitors and their shares of the customers' require-
ments, may make it clear whether the rebate scheme is capable to have
an anti-competitive foreclosure effect.

43. The lower the estimated effective price over the relevant
range is compared to the average price of the dominant
supplier, the stronger the loyalty-enhancing effect. However,
as long as the effective price remains consistently above the
LRAIC of the dominant undertaking, this would normally
allow an equally efficient competitor to compete profitably
In those circumstances the
notwithstanding the rebate.
rebate is normally not capable of
foreclosing in an
anti-competitive way.

44. Where the effective price is below AAC, as a general rule
the rebate scheme is capable of foreclosing even equally
efficient competitors. Where the effective price is between
AAC and LRAIC, the Commission will investigate whether
other factors point to the conclusion that entry or expan-
sion even by equally efficient competitors is likely to be
investigate
affected. In this context, the Commission will
whether and to what extent competitors have realistic and
effective counterstrategies at
for instance
their capacity to also use a ‘non contestable’ portion of
their buyers' demand as leverage to decrease the price for
the relevant range. Where competitors do not have such
counterstrategies at
the Commission will
their disposal,
consider that the rebate scheme is capable of foreclosing
equally efficient competitors.

their disposal,

45. As indicated in paragraph 27, this analysis will be inte-
grated in the general assessment, taking into account other
relevant quantitative or qualitative evidence. It is normally
important to consider whether the rebate system is applied
with an individualised or a standardised threshold. An indi-
vidualised threshold — one based on a percentage of the
total requirements of
the customer or an individualised
volume target — allows the dominant supplier to set the
threshold at such a level as to make it difficult for custo-
mers to switch suppliers,
thereby creating a maximum
loyalty enhancing effect (2). By contrast, a standardised
volume threshold — where the threshold is the same for all
or a group of customers — may be too high for some
smaller customers and/or too low for larger customers to
have a loyalty enhancing effect. If, however, it can be estab-
lished that a standardised volume threshold approximates
the requirements of an appreciable proportion of custo-
mers, the Commission is likely to consider that such a stan-
dardised system of rebates may produce anti-competitive
foreclosure effects.

(c) Efficiencies

46. Provided that the conditions set out in Section III D are
fulfilled, the Commission will consider claims by dominant
undertakings that rebate systems achieve cost or other
advantages which are passed on to customers (3). Transac-
tion-related cost advantages are often more likely to be

(2) See Case 85/76 Hoffmann-La Roche & Co. v Commission [1979] ECR 461,
paragraphs 89 and 90; Case T-288/97 Irish Sugar v Commission [1999]
ECR II-2969, paragraph 213; Case T-219/99 British Airways v Commis-
sion [2003] ECR II-5917, paragraphs 7 to 11 and 270 to 273.

(3) For instance,

for rebates see Case C-95/04 P British Airways v

Commission [2007] ECR I-2331, paragraph 86.

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incremental

achieved with standardised volume targets than with indivi-
dualised volume
rebate
targets. Similarly,
schemes are in general more likely to give resellers an
incentive to produce and resell a higher volume than retro-
active rebate schemes (1). Under the same conditions, the
Commission will consider evidence demonstrating that
exclusive dealing arrangements result in advantages to par-
ticular customers if those arrangements are necessary for
the dominant undertaking to make certain relationship-
specific investments in order to be able to supply those
customers.

B. Tying and bundling

47. A dominant undertaking may try to foreclose its competi-
tors by tying or bundling. This section sets out the circum-
stances which are most likely to prompt an intervention by
the Commission when assessing tying and bundling by
dominant undertakings.

48.

‘Tying’ usually refers to situations where customers that
purchase one product (the tying product) are required also
to purchase another product from the dominant under-
taking (the tied product). Tying can take place on a tech-
nical or contractual basis (2). ‘Bundling’ usually refers to the
way products are offered and priced by the dominant
undertaking. In the case of pure bundling the products are
only sold jointly in fixed proportions. In the case of mixed
bundling, often referred to as a multi-product rebate, the
products are also made available separately, but the sum of
the prices when sold separately is higher than the bundled
price.

49. Tying and bundling are common practices intended to
provide customers with better products or offerings in
more cost effective ways. However, an undertaking which is
dominant in one product market (or more) of a tie or
bundle (referred to as the tying market) can harm consu-
mers through tying or bundling by foreclosing the market
for the other products that are part of the tie or bundle
indirectly, the tying
(referred to as the tied market) and,
market.

50. The Commission will normally take action under Article 82
where an undertaking is dominant in the tying market (3)
and where,
the following conditions are
fulfilled: (i) the tying and tied products are distinct products,
and (ii) the tying practice is likely to lead to anti-competi-
tive foreclosure (4).

in addition,

(1) See, to that effect, Case T-203/01 Michelin v Commission (Michelin II)

[2003] ECR II-4071, paragraphs 56 to 60, 74 and 75.

(2) Technical tying occurs when the tying product is designed in such a
way that it only works properly with the tied product (and not with the
alternatives offered by competitors). Contractual tying occurs when the
customer who purchases the tying product undertakes also to purchase
the tied product (and not the alternatives offered by competitors).

(3) The undertaking should be dominant in the tying market, though not
necessarily in the tied market. In bundling cases, the undertaking needs
to be dominant in one of the bundled markets. In the special case of
tying in after-markets, the condition is that the undertaking is domi-
nant in the tying market and/or the tied after-market.

(4) Case T-201/04 Microsoft v Commission [2007] ECR II-3601, in particu-

lar paragraphs 842, 859 to 862, 867 and 869.

(a) Distinct products

51. Whether the products will be considered by the Commis-
sion to be distinct depends on customer demand. Two
products are distinct if, in the absence of tying or bundling,
a substantial number of customers would purchase or
would have purchased the tying product without also
buying the tied product from the same supplier, thereby
allowing stand-alone production for both the tying and the
tied product (5). Evidence that two products are distinct
could include direct evidence that, when given a choice,
customers purchase the tying and the tied products sepa-
rately from different sources of supply, or indirect evidence,
such as the presence on the market of undertakings specia-
lised in the manufacture or sale of the tied product without
the tying product (6) or of each of the products bundled by
the dominant undertaking, or evidence indicating that
undertakings with little market power, particularly in
competitive markets, tend not to tie or not to bundle such
products.

(b) Anti-competitive foreclosure in the tied and/or tying market

52. Tying or bundling may lead to anti-competitive effects in
the tied market, the tying market, or both at the same time.
However, even when the aim of the tying or bundling is to
protect the dominant undertaking's position in the tying
market, this is done indirectly through foreclosing the tied
market.
In addition to the factors already mentioned in
paragraph 20, the Commission considers that the following
factors are generally of particular importance for identifying
cases of likely or actual anti-competitive foreclosure.

53. The risk of anti-competitive foreclosure is expected to be
greater where the dominant undertaking makes its tying or
bundling strategy a lasting one, for example through tech-
nical tying which is costly to reverse. Technical tying also
reduces
individual
the
components.

opportunities

resale

for

of

54. In the case of bundling, the undertaking may have a domi-
nant position for more than one of the products in the
bundle. The greater the number of such products in the
bundle, the stronger the likely anti-competitive foreclosure.
This is particularly true if
for a
competitor to replicate, either on its own or in combination
with others.

the bundle is difficult

55. The tying may lead to less competition for customers inter-
ested in buying the tied product, but not the tying product.
If there is not a sufficient number of customers who will
buy the tied product alone to sustain competitors of the
dominant undertaking in the tied market, the tying can lead
to those customers facing higher prices.

(5) Case T-201/04 Microsoft v Commission [2007] ECR II-3601, para-

graphs 917, 921 and 922.

(6) Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 67.

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56. If the tying and the tied product can be used in variable
proportions as inputs to a production process, customers
may react to an increase in price for the tying product by
tied product while
increasing their demand for
decreasing their demand for the tying product. By tying the
two products the dominant undertaking may seek to avoid
this substitution and as a result be able to raise its prices.

the

57. If the prices the dominant undertaking can charge in the
tying market are regulated, tying may allow the dominant
undertaking to raise prices in the tied market in order to
compensate for the loss of revenue caused by the regulation
in the tying market.

58. If the tied product is an important complementary product
for customers of the tying product, a reduction of alterna-
tive suppliers of the tied product and hence a reduced avail-
ability of that product can make entry to the tying market
alone more difficult.

(c) Multi-product rebates

59. A multi-product rebate may be anti-competitive on the tied
or the tying market if it is so large that equally efficient
competitors offering only some of the components cannot
compete against the discounted bundle.

60. In theory, it would be ideal if the effect of the rebate could
be assessed by examining whether the incremental revenue
covers the incremental costs for each product in the domi-
nant undertaking's bundle. However,
in practice assessing
the incremental revenue is complex. Therefore, in its enfor-
cement practice the Commission will in most situations use
the incremental price as a good proxy. If the incremental
price that customers pay for each of the dominant underta-
king's products in the bundle remains above the LRAIC of
the dominant undertaking from including that product in
the bundle, the Commission will normally not intervene
since an equally efficient competitor with only one product
should in principle be able to compete profitably against
the bundle. Enforcement action may, however, be warranted
if the incremental price is below the LRAIC, because in
such a case even an equally efficient competitor may be
prevented from expanding or entering (1).

61. If the evidence suggests that competitors of the dominant
undertaking are selling identical bundles, or could do so in
a timely way without being deterred by possible additional
costs, the Commission will generally regard this as a bundle
competing against a bundle,
in which case the relevant
question is not whether the incremental revenue covers the
incremental costs for each product in the bundle, but rather
whether the price of the bundle as a whole is predatory.

(1) In principle, the LRAIC cost benchmark is relevant here as long as
competitors are not able to also sell bundles (see paragraphs 23 to 27
and paragraph 61).

(d) Efficiencies

62. Provided that the conditions set out in Section III D are
fulfilled, the Commission will look into claims by dominant
undertakings that their tying and bundling practices may
lead to savings in production or distribution that would
benefit customers. The Commission may also consider
whether such practices reduce transaction costs for custo-
mers, who would otherwise be forced to buy the compo-
nents separately, and enable substantial savings on packa-
ging and distribution costs for suppliers.
It may also
examine whether combining two independent products
into a new, single product might enhance the ability to
bring such a product to the market to the benefit of consu-
mers. The Commission may also consider whether tying
and bundling practices allow the supplier to pass on effi-
ciencies arising from its production or purchase of large
quantities of the tied product.

C. Predation

63. In line with its enforcement priorities, the Commission will
generally intervene where there is evidence showing that a
dominant undertaking engages in predatory conduct by
deliberately incurring losses or foregoing profits in the
short term (referred to hereafter as ‘sacrifice’), so as to fore-
close or be likely to foreclose one or more of its actual or
potential competitors with a view to strengthening or main-
taining its market power,
thereby causing consumer
harm (2).

(a) Sacrifice

64. Conduct will be viewed by the Commission as entailing a
sacrifice if, by charging a lower price for all or a particular
part of its output over the relevant time period, or by
expanding its output over the relevant time period, the
dominant undertaking incurred or is incurring losses that
could have been avoided. The Commission will take AAC
as the appropriate starting point for assessing whether the
dominant undertaking incurred or is incurring avoidable
losses. If a dominant undertaking charges a price below
AAC for all or part of its output, it is not recovering the
costs that could have been avoided by not producing that
output:
that could have been
avoided (3). Pricing below AAC will thus in most cases be

incurring a loss

is

it

(2) The Commission may also pursue predatory practices by dominant
undertakings on secondary markets on which they are not yet domi-
nant. In particular, the Commission will be more likely to find such an
abuse in sectors where activities are protected by a legal monopoly.
While the dominant undertaking does not need to engage in predatory
conduct to protect its dominant position in the market protected by
legal monopoly, it may use the profits gained in the monopoly market
to cross-subsidize its activities in another market and thereby threaten
to eliminate effective competition in that other market.

(3) In most cases the average variable cost (AVC) and AAC will be the same,
as often only variable costs can be avoided. However, in circumstances
where AVC and AAC differ, the latter better reflects possible sacrifice:
for example, if the dominant undertaking had to expand capacity in
order to be able to predate, then the sunk costs of that extra capacity
should be taken into account in looking at the dominant undertaking's
losses. Those costs would be reflected in the AAC, but not the AVC.

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viewed by the Commission as a clear
sacrifice (1).

indication of

65. However, the concept of sacrifice does not only include
pricing below AAC (2).
to show a predatory
In order
strategy, the Commission may also investigate whether the
allegedly predatory conduct led in the short term to net
revenues lower than could have been expected from a
reasonable alternative conduct, that is to say, whether the
dominant undertaking incurred a loss that it could have
avoided (3). The Commission will not compare the actual
conduct with hypothetical or theoretical alternatives that
might have been more profitable. Only economically
rational and practicable alternatives will be considered
which, taking into account the market conditions and busi-
ness realities facing the dominant undertaking, can realisti-
cally be expected to be more profitable.

66. In some cases it will be possible to rely upon direct
evidence consisting of documents
from the dominant
undertaking which clearly show a predatory strategy (4),
such as a detailed plan to sacrifice in order to exclude a
competitor, to prevent entry or to pre-empt the emergence
of a market, or evidence of concrete threats of predatory
action (5).

(b) Anti-competitive foreclosure

67. If sufficient reliable data are available, the Commission will
apply the equally efficient competitor analysis, described in
paragraphs 25 to 27, to determine whether the conduct is
capable of harming consumers. Normally only pricing
below LRAIC is capable of foreclosing as efficient competi-
tors from the market.

68. In addition to the factors already mentioned in para-
graph 20,
the Commission will generally investigate
whether and how the suspected conduct reduces the likeli-
if the
hood that competitors will compete. For instance,
dominant undertaking is better informed about cost or
other market conditions, or can distort market signals

(1) In Case 62/86 AKZO Chemie v Commission [1991] ECR I-3359, para-
graph 71, the Court held, in relation to pricing below average variable
cost (AVC), that: ‘A dominant undertaking has no interest in applying such
prices except that of eliminating competitors so as to enable it subsequently to
raise its price by taking advantage of its monopolistic position, since each sale
generates a loss …’.

(2) If the estimate of cost is based on the direct cost of production (as regis-
tered in the undertaking's accounts), it may not adequately capture
whether or not there has been a sacrifice.

(3) However, undertakings should not be penalised for incurring ex post
losses where the ex ante decision to engage in the conduct was taken in
good faith, that is to say, if they can provide conclusive evidence that
they could reasonably expect that the activity would be profitable.
(4) See Case T-83/91 Tetra Pak International v Commission (Tetra Pak II)
[1994] ECR II-755, paragraphs 151 and 171, and Case T-340/03
France Télécom v Commission [2007] ECR II-107, paragraphs 198 to 215.
(5) In Case 62/86 AKZO Chemie v Commission [1991] ECR I-3359, the
Court accepted that there was clear evidence of AKZO threatening ECS
in two meetings with below cost pricing if it did not withdraw from the
organic peroxides market. In addition there was a detailed plan, with
figures, describing the measures that AKZO would put into effect if ECS
would not withdraw from the market (see paragraphs 76 to 82, 115,
and 131 to 140).

about profitability, it may engage in predatory conduct so
as to influence the expectations of potential entrants and
thereby deter entry. If the conduct and its likely effects are
felt on multiple markets and/or in successive periods of
possible entry, the dominant undertaking may be shown to
be seeking a reputation for predatory conduct.
the
If
targeted competitor is dependent on external
financing,
substantial price decreases or other predatory conduct by
the
the dominant undertaking could adversely affect
competitor's performance so that its access to further finan-
cing may be seriously undermined.

69. The Commission does not consider that it is necessary to
show that competitors have exited the market in order to
show that there has been anti-competitive foreclosure. The
possibility cannot be excluded that the dominant under-
taking may prefer
from
follow the dominant
competing vigorously and have it
undertaking's pricing, rather than eliminate it
from the
market altogether. Such disciplining avoids the risk inherent
in eliminating competitors, in particular the risk that the
assets of the competitor are sold at a low price and stay in
the market, creating a new low cost entrant.

to prevent

competitor

the

70. Generally speaking, consumers are likely to be harmed if
the dominant undertaking can reasonably expect its market
power after the predatory conduct comes to an end to be
greater than it would have been had the undertaking not
engaged in that conduct in the first place, that is to say, if
the undertaking is likely to be in a position to benefit from
the sacrifice.

71. This does not mean that the Commission will only inter-
vene if the dominant undertaking would be likely to be
able to increase its prices above the level persisting in the
market before the conduct. It is sufficient, for instance, that
the conduct would be likely to prevent or delay a decline in
prices that would otherwise have occurred.
Identifying
consumer harm is not a mechanical calculation of profits
and losses, and proof of overall profits is not required.
Likely consumer harm may be demonstrated by assessing
the likely foreclosure effect of the conduct, combined with
consideration of other factors, such as entry barriers (6). In
this context, the Commission will also consider possibilities
of re-entry.

72. It may be easier for the dominant undertaking to engage in
predatory conduct if it selectively targets specific customers
with low prices, as this will limit the losses incurred by the
dominant undertaking.

(6) This was confirmed in Case T-83/91 Tetra Pak International v Commission
(Tetra Pak II) [1994] ECR II-755, upheld on appeal in Case C-333/94 P
Tetra Pak International v Commission [1996] ECR I-5951, where the
Court of First Instance stated that proof of actual recoupment was not
required (paragraph 150 in fine). More in general, as predation may
turn out to be more difficult than expected at the start of the conduct,
the total costs to the dominant undertaking of predating could
outweigh its later profits and thus make actual recoupment impossible
while it may still be rational to decide to continue with the predatory
strategy that it started some time ago. See also COMP/38.233 Wanadoo
Interactive, Commission Decision of 16 July 2003, paragraphs 332
to 367.

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73. It is less likely that the dominant undertaking engages in
the conduct concerns a low price

predatory conduct if
applied generally for a long period of time.

trade (2) or from lowering its resale price are also not dealt
with in this section.

(c) Efficiencies

74. In general it is considered unlikely that predatory conduct
will create efficiencies. However, provided that the condi-
tions set out in Section III D are fulfilled, the Commission
will consider claims by a dominant undertaking that the
low pricing enables it to achieve economies of scale or effi-
ciencies related to expanding the market.

D. Refusal to supply and margin squeeze

75. When setting its enforcement priorities, the Commission
starts from the position that, generally speaking, any under-
taking, whether dominant or not, should have the right to
choose its trading partners and to dispose freely of its prop-
erty. The Commission therefore considers that intervention
on competition law grounds requires careful consideration
where the application of Article 82 would lead to the impo-
sition of an obligation to supply on the dominant under-
taking (1). The existence of such an obligation — even for a
fair remuneration — may undermine undertakings' incen-
tives to invest and innovate and, thereby, possibly harm
consumers. The knowledge that they may have a duty to
supply against their will may lead dominant undertakings
— or undertakings who anticipate that they may become
dominant — not to invest, or to invest less, in the activity
in question. Also, competitors may be tempted to free ride
on investments made by the dominant undertaking instead
of
these consequences
would, in the long run, be in the interest of consumers.

investing themselves. Neither of

76. Typically competition problems arise when the dominant
undertaking competes on the ‘downstream’ market with the
buyer whom it refuses to supply. The term ‘downstream
market’ is used to refer to the market for which the refused
input
is needed in order to manufacture a product or
provide a service. This section deals only with this type of
refusal.

77. Other types of possibly unlawful refusal to supply, in which
the supply is made
conditional upon the purchaser
accepting limitations on its conduct, are not dealt with in
to
this section. For instance, halting supplies in order
punish customers for dealing with competitors or refusing
to supply customers that do not agree to tying arrange-
ments, will be examined by the Commission in line with
the principles set out in the sections on exclusive dealing
and tying and bundling. Similarly, refusals to supply aimed
from engaging in parallel
at preventing the purchaser

(1) Joined Cases C-241/91 P and C-242/91 Radio Telefis Eireann (RTE) and
Independent Television Publications (ITP) v Commission (Magill) [1995]
ECR I-743, paragraph 50; Case C-418/01 IMS Health v NDC Health
[2004] ECR I-5039, paragraph 35; Case T-201/04 Microsoft v
Commission [2007] ECR II-3601, paragraphs 319, 330, 331, 332
and 336.

78. The concept of refusal to supply covers a broad range of
practices, such as a refusal to supply products to existing or
new customers (3), refusal to license intellectual property
rights (4), including when the licence is necessary to provide
interface information (5), or refusal to grant access to an
essential facility or a network (6).

79. The Commission does not regard it as necessary for the
refused product to have been already traded: it is sufficient
that there is demand from potential purchasers and that a
potential market for the input at stake can be identified (7).
Likewise, it is not necessary for there to be actual refusal on
the part of a dominant undertaking; ‘constructive refusal’ is
sufficient. Constructive refusal could, for example, take the
form of unduly delaying or otherwise degrading the supply
of the product or involve the imposition of unreasonable
conditions in return for the supply.

80. Finally,

instead of refusing to supply, a dominant under-
taking may charge a price for the product on the upstream
market which, compared to the price it charges on the
downstream market (8), does not allow even an equally effi-
cient competitor to trade profitably in the downstream
market on a lasting basis (a so-called ‘margin squeeze’). In
margin squeeze cases the benchmark which the Commis-
sion will generally rely on to determine the costs of an
equally efficient competitor are the LRAIC of the down-
stream division of the integrated dominant undertaking (9).

81. The Commission will consider these practices as an enforce-
ment priority if all the following circumstances are present:

— the refusal relates to a product or service that is objec-
tively necessary to be able to compete effectively on a
downstream market,

(2) See Judgment of 16 September 2008 in Joined Cases C-468/06 to
C-478/06 Sot. Lélos kai Sia and Others v GlaxoSmithKline, not yet
reported.

(3) Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and

Commercial Solvents v Commission [1974] ECR 223.

(4) Joined Cases C-241/91 P and C-242/91 P Radio Telefis Eireann (RTE) and
Independent Television Publications Ltd (ITP) v Commission (Magill) [1995]
ECR 743; Case C-418/01 IMS Health v NDC Health [2004] ECR I-5039.
Those judgments show that in exceptional circumstances a refusal to
license intellectual property rights is abusive.

(5) See Case T-201/04 Microsoft v Commission [2007] ECR II-3601.
(6) See Commission Decision 94/19/EC of 21 December 1993 in Case
IV/34.689 Sea Containers v Stena Sealink — Interim Measures (OJ L 15,
18.1.1994, p. 8) and Commission Decision 92/213/EEC of 26 February
1992 in Case IV/33.544 British Midland v Aer Lingus — (OJ L 96,
10.4.1992, p. 34).

(7) Case C-418/01 IMS Health v NDC Health [2004] ECR I-5039, para-

graph 44.

(8) Including a situation in which an integrated undertaking that sells a
‘system’ of complementary products refuses to sell one of the comple-
mentary products on an unbundled basis to a competitor that produces
the other complementary product.

(9) In some cases, however, the LRAIC of a non-integrated competitor
downstream might be used as the benchmark, for example when it is
not possible to clearly allocate the dominant undertaking's costs to
downstream and upstream operations.

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— the refusal is likely to lead to the elimination of effective

competition on the downstream market, and

— the refusal is likely to lead to consumer harm.

82. In certain specific cases, it may be clear that imposing an
obligation to supply is manifestly not capable of having
negative effects on the input owner's and/or other opera-
tors' incentives to invest and innovate upstream, whether
ex ante or ex post. The Commission considers that this is
particularly likely to be the case where regulation compa-
tible with Community law already imposes an obligation to
supply on the dominant undertaking and it is clear, from
the considerations underlying such regulation,
the
necessary balancing of incentives has already been made by
the public authority when imposing such an obligation to
supply. This could also be the case where the upstream
the dominant undertaking has been
market position of
the protection of special or exclusive
developed under
rights or has been financed by state resources.
In such
specific cases there is no reason for the Commission to
deviate from its general enforcement standard of showing
likely anti-competitive foreclosure, without considering
whether the three circumstances referred to in paragraph 81
are present.

that

(a) Objective necessity of the input

83. In examining whether a refusal

to supply deserves its
priority attention, the Commission will consider whether
the supply of the refused input is objectively necessary for
operators to be able to compete effectively on the market.
This does not mean that, without the refused input, no
competitor could ever enter or survive on the downstream
market (1). Rather, an input is indispensable where there is
no actual or potential substitute on which competitors in
the downstream market could rely so as to counter — at
least in the long-term — the negative consequences of the
refusal (2).
In this regard, the Commission will normally
make an assessment of whether competitors could effec-
tively duplicate the input produced by the dominant under-
taking in the foreseeable future (3). The notion of duplica-
tion means the creation of an alternative source of efficient
supply that is capable of allowing competitors to exert a
competitive constraint on the dominant undertaking in the
downstream market (4).

(1) Case T-201/04 Microsoft v Commission [2007] ECR II-3601, para-

graphs 428 and 560 to 563.

(2) Joined Cases C-241/91 P and C-242/91 Radio Telefis Eireann (RTE) and
Independent Television Publications LTD (ITP) v Commission (Magill)
[1995] ECR 743, paragraphs 52 and 53; Case 7/97 Oscar Bronner v
Mediaprint Zeitungs- und Zeitschriftenverlag, Mediaprint Zeitungsvertriebs-
gesellschaft and Mediaprint Anzeigengesellschaft [1998] ECR I-7791, para-
graphs 44 and 45; Case T-201/04 Microsoft v Commission [2007]
ECR II-3601, paragraph 421.

(3) In general, an input is likely to be impossible to replicate when it
involves a natural monopoly due to scale or scope economies, where
there are strong network effects or when it concerns so-called ‘single
source’ information. However, in all cases account should be taken of
the dynamic nature of the industry and, in particular whether or not
market power can rapidly dissipate.

(4) Case 7/97 Oscar Bronner v Mediaprint Zeitungs- und Zeitschriftenverlag,
Mediaprint Zeitungsvertriebsgesellschaft and Mediaprint Anzeigengesellschaft
[1998] ECR I-7791, paragraph 46, Case C-418/01 IMS Health v NDC
Health [2004] ECR I-5039, paragraph 29.

84. The criteria set out in paragraph 81 apply both to cases of
disruption of previous supply, and to refusals to supply a
good or service which the dominant company has not
previously supplied to others (de novo refusals to supply).
However, the termination of an existing supply arrange-
ment is more likely to be found to be abusive than a de novo
refusal to supply. For example, if the dominant undertaking
had previously been supplying the requesting undertaking,
and the latter had made relationship-specific investments in
order to use the subsequently refused input, the Commis-
sion may be more likely to regard the input in question as
indispensable. Similarly,
the
the fact
input in the past has found it in its interest to
essential
supply is an indication that supplying the input does not
imply any risk that the owner receives inadequate compen-
sation for the original investment. It would therefore be up
to the dominant company to demonstrate why circum-
stances have actually changed in such a way that the conti-
nuation of its existing supply relationship would put in
danger its adequate compensation.

the owner of

that

(b) Elimination of effective competition

85. If the requirements set out in paragraphs 83 and 84 are
fulfilled, the Commission considers that a dominant under-
taking's refusal to supply is generally liable to eliminate,
immediately or over
time, effective competition in the
downstream market. The likelihood of effective competition
being eliminated is generally greater the higher the market
share of
the dominant undertaking in the downstream
market. The less capacity-constrained the dominant under-
taking is relative to competitors in the downstream market,
the closer the substitutability between the dominant under-
taking's output and that of its competitors in the down-
stream market, the greater the proportion of competitors in
the downstream market that are affected, and the more
likely it is that the demand that could be served by the fore-
closed competitors would be diverted away from them to
the advantage of the dominant undertaking.

(c) Consumer harm

86. In examining the likely impact of a refusal to supply on
consumer welfare, the Commission will examine whether,
the
for consumers,
refusal to supply in the relevant market outweigh over time
the negative consequences of imposing an obligation to
supply. If they do, the Commission will normally pursue
the case.

the likely negative consequences of

87. The Commission considers that consumer harm may, for
instance, arise where the competitors that the dominant
the refusal,
undertaking forecloses are, as a result of
prevented from bringing innovative goods or services to
market and/or where follow-on innovation is likely to be
stifled (5). This may be particularly the case if the under-
taking which requests supply does not intend to limit itself
essentially to duplicating the goods or services already

(5) Case T-201/04 Microsoft v Commission [2007] ECR II-3601, para-

graphs 643, 647, 648, 649, 652, 653 and 656.

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24.2.2009

offered by the dominant undertaking on the downstream
market, but intends to produce new or improved goods or
services for which there is a potential consumer demand or
is likely to contribute to technical development (1).

88. The Commission also considers that a refusal to supply
may lead to consumer harm where the price in the
upstream input market is regulated, the price in the down-
stream market is not regulated and the dominant under-
taking, by excluding competitors on the downstream
market through a refusal to supply, is able to extract more
profits in the unregulated downstream market
than it
would otherwise do.

(d) Efficiencies

89. The Commission will consider claims by the dominant
undertaking that a refusal to supply is necessary to allow
the dominant undertaking to realise an adequate return on

the investments required to develop its input business, thus
generating incentives to continue to invest in the future,
taking the risk of failed projects into account. The Commis-
sion will also consider claims by the dominant undertaking
that its own innovation will be negatively affected by the
obligation to supply, or by the structural changes in the
market conditions that imposing such an obligation will
bring about, including the development of follow-on inno-
vation by competitors.

90. However, when considering such claims, the Commission
will ensure that the conditions set out in Section III D are
fulfilled. In particular, it falls on the dominant undertaking
to demonstrate any negative impact which an obligation to
supply is likely to have on its own level of innovation (2). If
a dominant undertaking has previously supplied the input
in question, this can be relevant for the assessment of any
claim that the refusal to supply is justified on efficiency
grounds.

(1) Case C-418/01 IMS Health v NDC Health [2004] ECR I-5039, para-
graph 49; Case T-201/04 Microsoft v Commission [2007] ECR II-3601,
paragraph 658.

(2) Case T-201/04 Microsoft v Commission [2007] ECR II-3601, para-

graph 659.

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Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation
No 1/2003

(2006/C 210/02)

(Text with EEA relevance)

INTRODUCTION

1. Pursuant to Article 23(2)(a) of Regulation No 1/2003 (1),
the Commission may, by decision, impose fines on under-
takings or associations of undertakings where, either inten-
tionally or negligently, they infringe Article 81 or 82 of
the Treaty.

2. In exercising its power to impose such fines, the Commis-
sion enjoys a wide margin of discretion (2) within the
limits set by Regulation No 1/2003. First, the Commission
must have regard both to the gravity and to the duration
of the infringement. Second, the fine imposed may not
exceed the limits specified in Article 23(2), second and
third subparagraphs, of Regulation No 1/2003.

3. In order to ensure the transparency and impartiality of its
decisions, the Commission published on 14 January 1998
guidelines on the method of setting fines (3). After more
than eight years of implementation, the Commission has
acquired sufficient experience to develop further and refine
its policy on fines.

4. The Commission's power to impose fines on undertakings
intentionally or
or associations of undertakings which,
negligently, infringe Article 81 or 82 of the Treaty is one
of the means conferred on it in order for it to carry out
the task of supervision entrusted to it by the Treaty. That
task not only includes the duty to investigate and sanction
individual infringements, but it also encompasses the duty
to pursue a general policy designed to apply, in competi-
tion matters, the principles laid down by the Treaty and to
steer the conduct of undertakings in the light of those
principles (4). For
the Commission must
ensure that its action has the necessary deterrent effect (5).
Accordingly, when the Commission discovers that Article
81 or 82 of the Treaty has been infringed, it may be neces-
sary to impose a fine on those who have acted in breach
of the law. Fines should have a sufficiently deterrent effect,
not only in order to sanction the undertakings concerned
(specific deterrence) but also in order to deter other under-
takings from engaging in, or continuing, behaviour that is
contrary to Articles 81 and 82 of the EC Treaty (general
deterrence).

this purpose,

(1) Council Regulation (EC) No 1 of 16 December 2002 on the imple-
mentation of the rules on competition laid down in Articles 81 and
82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(2) See, for example, Case C-189/02 P, C-202/02 P, C-205/02 P to C-
208/02 P and C-213/02 P, Dansk Rørindustri A/S and others v
Commission [2005] ECR I-5425, paragraph 172.

(3) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ C 9, 14.1.1998, p. 3).

(4) See, for example, Dansk Rørindustri A/S and others v Commission,

cited above, paragraph 170.

(5) See Joined Cases 100/80 to 103/80 Musique Diffusion française and

others v Commission [1983] ECR 1825, paragraph 106.

5. In order to achieve these objectives, it is appropriate for
the Commission to refer to the value of the sales of goods
or services to which the infringement relates as a basis for
setting the fine. The duration of the infringement should
also play a significant role in the setting of the appropriate
amount of the fine. It necessarily has an impact on the
potential consequences of the infringement on the market.
It is therefore considered important that the fine should
also reflect the number of years during which an under-
taking participated in the infringement.

6. The combination of the value of sales to which the infrin-
gement relates and of the duration of the infringement is
regarded as providing an appropriate proxy to reflect the
economic importance of the infringement as well as the
relative weight of each undertaking in the infringement.
Reference to these factors provides a good indication of
the order of magnitude of the fine and should not be
regarded as the basis for an automatic and arithmetical
calculation method.

7. It is also considered appropriate to include in the fine a
specific amount irrespective of the duration of the infringe-
ment, in order to deter companies from even entering into
illegal practices.

8. The sections below set out the principles which will guide
the Commission when it sets fines imposed pursuant to
Article 23(2)(a) of Regulation No 1/2003.

METHOD FOR THE SETTING OF FINES

9. Without prejudice to point 37 below, the Commission will
use the following two-step methodology when setting the
fine to be imposed on undertakings or associations of
undertakings.

10. First, the Commission will determine a basic amount for
(see
each undertaking or association of undertakings
Section 1 below).

11. Second, it may adjust that basic amount upwards or down-

wards (see Section 2 below).

1. Basic amount of the fine

12. The basic amount will be set by reference to the value of

sales and applying the following methodology.

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A. Calculation of the value of sales

13. In determining the basic amount of

the fine to be
imposed, the Commission will take the value of the under-
taking's sales of goods or services to which the infringe-
in the relevant
ment directly or
geographic area within the EEA. It will normally take the
sales made by the undertaking during the last full business
year of
(hereafter
its participation in the infringement
‘value of sales’).

indirectly (1)

relates

14. Where the infringement by an association of undertakings
relates to the activities of its members, the value of sales
will generally correspond to the sum of the value of sales
by its members.

15. In determining the value of sales by an undertaking, the
take that undertaking's best available

Commission will
figures.

16. Where the figures made available by an undertaking are
incomplete or not reliable, the Commission may determine
the value of its sales on the basis of the partial figures it
has obtained and/or any other
information which it
regards as relevant and appropriate.

17. The value of sales will be determined before VAT and

other taxes directly related to the sales.

18. Where the geographic scope of an infringement extends
beyond the EEA (e.g. worldwide cartels), the relevant sales
of the undertakings within the EEA may not properly
reflect the weight of each undertaking in the infringement.
This may be the case in particular with worldwide market-
sharing arrangements.

In such circumstances, in order to reflect both the aggre-
gate size of the relevant sales within the EEA and the rela-
tive weight of each undertaking in the infringement, the
Commission may assess the total value of the sales of
goods or services to which the infringement relates in the
relevant geographic area (wider than the EEA), may deter-
mine the share of the sales of each undertaking party to
the infringement on that market and may apply this share
to the aggregate sales within the EEA of the undertakings
concerned. The result will be taken as the value of sales for
the purpose of setting the basic amount of the fine.

B. Determination of the basic amount of the fine

19. The basic amount of the fine will be related to a propor-
tion of the value of sales, depending on the degree of
gravity of the infringement, multiplied by the number of
years of infringement.

20. The assessment of gravity will be made on a case-by-case
basis for all types of infringement, taking account of all the
relevant circumstances of the case.

21. As a general rule, the proportion of the value of sales
taken into account will be set at a level of up to 30 % of
the value of sales.

22. In order to decide whether the proportion of the value of
sales to be considered in a given case should be at the
lower end or at the higher end of that scale, the Commis-
sion will have regard to a number of factors, such as the
nature of the infringement, the combined market share of
all the undertakings concerned, the geographic scope of
the infringement and whether or not the infringement has
been implemented.

23. Horizontal price-fixing, market-sharing and output-limita-
tion agreements (2), which are usually secret, are, by their
restrictions of
very nature, among the most harmful
competition. As a matter of policy, they will be heavily
fined. Therefore, the proportion of the value of sales taken
into account for such infringements will generally be set at
the higher end of the scale.

24. In order to take fully into account the duration of the
participation of each undertaking in the infringement, the
amount determined on the basis of the value of sales (see
points 20 to 23 above) will be multiplied by the number
of years of participation in the infringement. Periods of
less than six months will be counted as half a year; periods
longer than six months but shorter than one year will be
counted as a full year.

25. In addition,

irrespective of the duration of the underta-
king's participation in the infringement, the Commission
will include in the basic amount a sum of between 15 %
and 25 % of the value of sales as defined in Section A
above in order to deter undertakings from even entering
into horizontal price-fixing, market-sharing and output-
limitation agreements. The Commission may also apply
such an additional amount in the case of other infringe-
ments. For the purpose of deciding the proportion of the
value of sales to be considered in a given case,
the
Commission will have regard to a number of factors, in
particular those referred in point 22.

26. Where the value of sales by undertakings participating in
the infringement is similar but not identical, the Commis-
sion may set for each of them an identical basic amount.
Moreover, in determining the basic amount of the fine, the
Commission will use rounded figures.

2. Adjustments to the basic amount

27. In setting the fine, the Commission may take into account
circumstances that result in an increase or decrease in the
basic amount as determined in Section 1 above. It will do
so on the basis of an overall assessment which takes
account of all the relevant circumstances.

(1) Such will be the case for instance for horizontal price fixing
arrangements on a given product, where the price of that product
then serves as a basis for the price of lower or higher quality
products.

(2) This includes agreements, concerted practices and decisions by asso-
ciations of undertakings within the meaning of Article 81 of the
Treaty.

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A. Aggravating circumstances

C. Specific increase for deterrence

28. The basic amount may be increased where the Commis-
sion finds that there are aggravating circumstances, such
as:

— where an undertaking continues or repeats the same or
a similar infringement after
the Commission or a
national competition authority has made a finding that
the undertaking infringed Article 81 or 82: the basic
amount will be increased by up to 100 % for each such
infringement established;

— refusal

to cooperate with or obstruction of

the

Commission in carrying out its investigations;

— role of leader in, or instigator of, the infringement; the
Commission will also pay particular attention to any
steps taken to coerce other undertakings to participate
in the infringement and/or any retaliatory measures
taken against other undertakings with a view to enfor-
cing the practices constituting the infringement.

B. Mitigating circumstances

29. The basic amount may be reduced where the Commission

finds that mitigating circumstances exist, such as:

30. The Commission will pay particular attention to the need
to ensure that fines have a sufficiently deterrent effect; to
that end, it may increase the fine to be imposed on under-
takings which have a particularly large turnover beyond
the sales of goods or services to which the infringement
relates.

31. The Commission will also take into account the need to
increase the fine in order to exceed the amount of gains
improperly made as a result of the infringement where it is
possible to estimate that amount.

D. Legal maximum

32. The final amount of the fine shall not, in any event, exceed
10 % of the total turnover in the preceding business year
of the undertaking or association of undertakings partici-
pating in the infringement, as laid down in Article 23(2) of
Regulation No 1/2003.

33. Where an infringement by an association of undertakings
relates to the activities of its members, the fine shall not
exceed 10 % of the sum of the total turnover of each
member active on the market affected by that infringe-
ment.

— where the undertaking concerned provides evidence
terminated the infringement as soon as the
that
Commission intervened: this will not apply to secret
agreements or practices (in particular, cartels);

it

E. Leniency Notice

— where the undertaking provides evidence that

the
infringement has been committed as a result of negli-
gence;

— where the undertaking provides evidence that its invol-
vement in the infringement is substantially limited and
thus demonstrates that, during the period in which it
was party to the offending agreement,
it actually
avoided applying it by adopting competitive conduct in
the market: the mere fact that an undertaking partici-
pated in an infringement for a shorter duration than
others will not be regarded as a mitigating circum-
stance since this will already be reflected in the basic
amount;

— where the undertaking concerned has effectively coop-
erated with the Commission outside the scope of the
Leniency Notice and beyond its legal obligation to do
so;

— where the anti-competitive conduct of the undertaking
has been authorized or encouraged by public authori-
ties or by legislation. (1)

34. The Commission will apply the leniency rules in line with

the conditions set out in the applicable notice.

F. Ability to pay

35. In exceptional cases, the Commission may, upon request,
take account of the undertaking's inability to pay in a
specific social and economic context. It will not base any
reduction granted for this reason in the fine on the mere
finding of an adverse or loss-making financial situation. A
reduction could be granted solely on the basis of objective
evidence that imposition of the fine as provided for in
the
these Guidelines would
economic viability of the undertaking concerned and cause
its assets to lose all their value.

irretrievably

jeopardise

FINAL CONSIDERATIONS

(1) This is without prejudice to any action that may be taken against

the Member State concerned.

36. The Commission may, in certain cases, impose a symbolic
fine. The justification for imposing such a fine should be
given in its decision.

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37. Although these Guidelines present

the general metho-
dology for the setting of fines, the particularities of a given
case or the need to achieve deterrence in a particular case
may justify departing from such methodology or from the
limits specified in point 21.

38. These Guidelines will be applied in all cases where a state-
ment of objections is notified after their date of publication
in the Official Journal, regardless of whether the fine is
to Article 23(2) of Regulation No
imposed pursuant
1/2003 or Article 15(2) of Regulation 17/62 (1).

(1) Article 15(2) of Regulation 17/62 of 6 February 1962: First Regu-
lation implementing Articles 85 and 86 [now 81 and 82] of the
Treaty (OJ 13, 21.2.1962, p. 204).

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Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of
the EC Treaty

(2004/C 101/05)

(Text with EEA relevance)

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Regulation 1/2003 (1) establishes a system of parallel
competence for the application of Articles 81 and 82 of
the EC Treaty by the Commission and the Member States'
competition authorities
and courts. The Regulation
recognises in particular the complementary functions of
the Commission and Member States' competition auth-
orities acting as public enforcers and the Member States'
courts that rule on private lawsuits in order to safeguard
the rights of individuals deriving from Articles 81 and
82 (2).

2. Under Regulation 1/2003, the public enforcers may focus
their action on the investigation of serious infringements
of Articles 81 and 82 which are often difficult to detect.
For
from
information supplied by undertakings and by consumers
in the market.

enforcement

activity,

benefit

their

they

3. The Commission therefore wishes to encourage citizens
and undertakings to address themselves to the public
enforcers to inform them about suspected infringements
of the competition rules. At the level of the Commission,
there are two ways to do this, one is by lodging a
complaint pursuant to Article 7(2) of Regulation 1/2003.
Under Articles 5 to 9 of Regulation 773/2004 (3), such
complaints must fulfil certain requirements.

4. The other way is the provision of market information that
does not have to comply with the requirements
for
complaints pursuant
to Article 7(2) of Regulation
1/2003. For this purpose, the Commission has created a
special website to collect information from citizens and
undertakings and their associations who wish to inform
the Commission about suspected infringements of Articles
81 and 82. Such information can be the starting point for
an investigation by the Commission (4). Information about
suspected infringements can be supplied to the following
address:

http://europa.eu.int/dgcomp/info-on-anti-competitive-
practices

or to:

Commission européenne/Europese Commissie
Competition DG
B-1049 Bruxelles/Brussel

5. Without prejudice to the interpretation of Regulation
1/2003 and of Commission Regulation 773/2004 by the

Community Courts, the present Notice intends to provide
guidance to citizens and undertakings that are seeking
the competition
relief
rules. The Notice contains two main parts:

from suspected infringements of

— Part

II gives indications about

the choice between
complaining to the Commission or bringing a lawsuit
before a national court. Moreover, it recalls the prin-
ciples
related to the work-sharing between the
Commission and the national competition authorities
in the enforcement system established by Regulation
1/2003 that are explained in the Notice on coop-
eration within the network of competition auth-
orities (5).

— Part III explains the procedure for the treatment of
to Article 7(2) of Regulation

complaints pursuant
1/2003 by the Commission.

6. This Notice does not address the following situations:

— complaints

lodged by Member States pursuant

to

Article 7(2) of Regulation 1/2003,

— complaints that ask the Commission to take action
against a Member State pursuant to Article 86(3) in
conjunction with Articles 81 or 82 of the Treaty,

— complaints relating to Article 87 of the Treaty on state

aids,

— complaints relating to infringements by Member States
that the Commission may pursue in the framework of
Article 226 of the Treaty (6).

II. DIFFERENT POSSIBILITIES FOR LODGING COMPLAINTS
ABOUT SUSPECTED INFRINGEMENTS OF ARTICLES 81 OR 82

A. COMPLAINTS IN THE NEW ENFORCEMENT SYSTEM ESTAB-
LISHED BY REGULATION 1/2003

7. Depending on the nature of the complaint, a complainant
may bring his complaint either to a national court or to a
competition authority that acts as public enforcer. The
present chapter of this Notice intends to help potential
complainants to make an informed choice about whether
to address themselves to the Commission, to one of the
Member States' competition authorities or to a national
court.

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8. While national courts are called upon to safeguard the
rights of individuals and are thus bound to rule on cases
brought before them, public enforcers cannot investigate
all complaints, but must set priorities in their treatment of
cases. The Court of Justice has held that the Commission,
entrusted by Article 85(1) of the EC Treaty with the task of
ensuring application of the principles laid down in Articles
81 and 82 of the Treaty, is responsible for defining and
implementing the orientation of Community competition
policy and that, in order to perform that task effectively, it
is entitled to give differing degrees of priority to the
complaints brought before it (7).

9. Regulation 1/2003 empowers Member States' courts and
Member States' competition authorities to apply Articles
81 and 82 in their entirety alongside the Commission.
Regulation 1/2003 pursues as one principal objective
that Member States' courts and competition authorities
should participate
enforcement of
Articles 81 and 82 (8).

effectively in the

13. National courts can decide upon the nullity or validity of
contracts and only national courts can grant damages to
an individual in case of an infringement of Articles 81 and
82. Under the case law of the Court of Justice, any indi-
vidual can claim damages for loss caused to him by a
contract or by conduct which restricts or distorts
in order to ensure the full effectiveness of
competition,
the Community competition rules. Such actions
for
damages before the national courts can make a significant
contribution to the maintenance of effective competition
in the Community as they discourage undertakings from
concluding
or
practices (12).

agreements

restrictive

applying

or

14. Regulation 1/2003 takes express account of the fact that
national courts have an essential part to play in applying
the EC competition rules (13). By extending the power to
apply Article 81(3) to national courts it removes the possi-
bility for undertakings to delay national court proceedings
by a notification to the Commission and thus eliminates
an obstacle for private litigation that existed under Regu-
lation No 17 (14).

10. Moreover, Article 3 of Regulation 1/2003 provides that
Member States' courts and competition authorities have
to apply Articles 81 and 82 to all cases of agreements
or conduct that are capable of affecting trade between
Member States
to which they apply their national
competition laws. In addition, Articles 11 and 15 of the
Regulation create a range of mechanisms by which
competition authorities
and
Member
cooperate with the Commission in the enforcement of
Articles 81 and 82.

States'

courts

15. Without prejudice to the right or obligation of national
courts to address a preliminary question to the Court of
Justice in accordance with Article 234 EC, Article 15(1) of
Regulation 1/2003 provides expressly that national courts
information from the
may
or
facilitating the
Commission. This provision aims
application of Articles 81 and 82 by national courts (15).

opinions

ask

for

at

11. In this new legislative framework, the Commission intends
to refocus its enforcement resources along the following
lines:

— enforce the EC competition rules in cases for which it
is well placed to act (9), concentrating its resources on
the most serious infringements (10);

— handle cases in relation to which the Commission
view to define Community
coherent
ensure
and/or

should act with a
competition
policy
application of Articles 81 or 82.

to

B. THE COMPLEMENTARY ROLES OF PRIVATE AND PUBLIC
ENFORCEMENT

12. It has been consistently held by the Community Courts
that national courts are called upon to safeguard the
rights of
individuals created by the direct effect of
Articles 81(1) and 82 (11).

16. Action before national courts has the following advantages

for complainants:

— National courts may award damages for loss suffered as

a result of an infringement of Article 81 or 82.

— National courts may rule on claims for payment or
contractual obligations based on an agreement
that
they examine under Article 81.

— It is for the national courts to apply the civil sanction
of nullity of Article 81(2) in contractual relationships
between individuals (16). They can in particular assess,
in the light of the applicable national law, the scope
and consequences of the nullity of certain contractual
provisions under Article 81(2), with particular regard
to all the other matters covered by the agreement (17).

— National courts are usually better placed than the

Commission to adopt interim measures (18).

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— Before national courts, it is possible to combine a claim
under Community competition law with other claims
under national law.

22. The Notice on cooperation within the Network of

Competition Authorities states in particular (21):

— Courts normally have the power to award legal costs to
the successful applicant. This is never possible in an
administrative procedure before the Commission.

17. The fact that a complainant can secure the protection of
his rights by an action before a national court,
is an
important element that the Commission may take into
account
the Community interest
in its examination of
for investigating a complaint (19).

18. The Commission holds the view that the new enforcement
system established by Regulation 1/2003 strengthens the
possibilities for complainants to seek and obtain effective
relief before national courts.

C. WORK-SHARING BETWEEN THE PUBLIC ENFORCERS IN THE
EUROPEAN COMMUNITY

19. Regulation 1/2003 creates a system of parallel competence
for the application of Articles 81 and 82 by empowering
Member States' competition authorities to apply Articles
81 and 82 in their entirety (Article 5). Decentralised
enforcement by Member States' competition authorities is
further
to exchange
information (Article 12) and to provide each other
assistance with investigations (Article 22).

encouraged by

the possibility

20. The Regulation does not

regulate

the work-sharing
States'
between the Commission and the Member
leaves the division of case
competition authorities but
the Commission and the
work to the cooperation of
Member
the
competition
European Competition Network (ECN). The Regulation
pursues the objective of ensuring effective enforcement
of Articles 81 and 82 through a flexible division of case
work between the public enforcers in the Community.

authorities

States'

inside

21. Orientations

for

sharing

between

the work

the
Commission and the Member States' competition auth-
orities are laid down in a separate Notice (20). The
guidance contained in that Notice, which concerns the
relations between the public enforcers, will be of interest
to complainants as it permits them to address a complaint
to the authority most likely to be well placed to deal with
their case.

‘An authority can be considered to be well placed to
deal with a case if
the following three cumulative
conditions are met:

— the agreement or practice has substantial direct
actual or
effects on competition
within its territory, is implemented within or orig-
inates from its territory;

foreseeable

— the authority is able effectively to 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
the evidence required to prove the

authorities,
infringement.

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
substantially
Member States where
affected by an infringement will be well placed
provided they are capable of effectively bringing the
infringement
single or
parallel action unless the Commission is better placed
to act (see below [. . .]).

to an end through either

competition is

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 appro-
priate where an agreement or practice has substantial
effects on competition mainly in their respective terri-
tories 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 [. . .].

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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
for
delegate tasks
example the coordination of
investigative measures,
while each authority remains responsible for conducting
its own proceedings.

to the lead authority such as

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) [. . .].

it

Moreover, the Commission is particularly well placed to
is closely linked to other
deal with a case if
Community provisions which may be exclusively or
the
more effectively applied by the Commission,
requires
Community
a
Commission
Community
to
competition policy when a new competition issue
arises or to ensure effective enforcement.’.

the
develop

adoption of

decision

interest

if

23. Within the European Competition Network,

that

are being

investigated

information
on cases
a
following
complaint will be made available to the other members
of the network before or without delay after commencing
the first formal investigative measure (22). Where the same
complaint has been lodged with several authorities or
where a case has not been lodged with an authority that
is well placed, the members of the network will endeavour
to determine within an indicative time-limit of two months
which authority or authorities should be in charge of the
case.

24. Complainants themselves have an important role to play in
further reducing the potential need for reallocation of a
case originating from their complaint by referring to the
orientations on work sharing in the network set out in the
present chapter when deciding on where to lodge their
complaint. If nonetheless a case is reallocated within the
network,
the
complainant(s) are informed as soon as possible by the
competition authorities involved (23).

undertakings

concerned

and

the

25. The Commission may reject a complaint in accordance
with Article 13 of Regulation 1/2003, on the grounds
that a Member State competition authority is dealing or
has dealt with the case. When doing so, the Commission
in accordance with Article 9 of Regulation
must,

773/2004, inform the complainant without delay of the
national competition authority which is dealing or has
already dealt with the case.

III. THE COMMISSION'S HANDLING OF COMPLAINTS
PURSUANT TO ARTICLE 7(2) OF REGULATION 1/2003

A. GENERAL

26. According to Article 7(2) of Regulation 1/2003 natural or
legal persons that can show a legitimate interest (24) are
entitled to lodge a complaint to ask the Commission to
find an infringement of Articles 81 and 82 EC and to
require that the infringement be brought to an end in
accordance with Article 7(1) of Regulation 1/2003. The
present part of
this Notice explains the requirements
applicable to complaints based on Article 7(2) of Regu-
lation 1/2003,
and the procedure
assessment
followed by the Commission.

their

27. The Commission, unlike civil courts, whose task is to
safeguard the individual rights of private persons,
is an
in the public
administrative authority that must act
interest.
the Commission's
task as public enforcer that it has a margin of discretion
to set priorities in its enforcement activity (25).

is an inherent

feature of

It

28. The Commission is entitled to give different degrees of
priority to complaints made to it and may refer to the
Community interest presented by a case as a criterion of
priority (26). The Commission may reject a complaint when
it considers that the case does not display a sufficient
investigation.
Community
to justify
the
Where
complainant
the
Commission (27) without prejudice to Article 7(3) of Regu-
lation 773/2004.

interest
the Commission
entitled

further
a
decision

complaint,
of

rejects
a
to

is

B. MAKING A COMPLAINT PURSUANT TO ARTICLE 7(2) OF
REGULATION 1/2003

(a) Complaint form

29. A complaint pursuant to Article 7(2) of Regulation 1/2003
can only be made about an alleged infringement of
Articles 81 or 82 with a view to the Commission taking
action under Article 7(1) of Regulation 1/2003. A
complaint under Article 7(2) of Regulation 1/2003 has
to comply with Form C mentioned in Article 5(1) of
Regulation 773/2004 and annexed to that Regulation.

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30. Form C is

available

if possible, an electronic copy.

at http://europa.eu.int/dgcomp/
complaints-form and is also annexed to this Notice. The
complaint must be submitted in three paper copies as well
as,
the
complainant must provide a non-confidential version of
the complaint (Article 5(2) of Regulation 773/2004). Elec-
tronic transmission to the Commission is possible via the
website indicated, the paper copies should be sent to the
following address:

In addition,

Commission européenne/Europese Commissie
Competition DG
B-1049 Bruxelles/Brussel

31. Form C requires complainants to submit comprehensive
information in relation to their complaint. They should
also provide copies of relevant supporting documentation
reasonably available to them and, to the extent possible,
provide indications as to where relevant information and
documents that are unavailable to them could be obtained
by the Commission. In particular cases, the Commission
may dispense with the obligation to provide information
in relation to part of the information required by Form C
(Article 5(1) of Regulation 773/2004). The Commission
holds the view that this possibility can in particular play
a role to facilitate complaints by consumer associations
where they, in the context of an otherwise substantiated
to specific pieces of
complaint, do not have access
information from the
the undertakings
complained of.

sphere of

32. Correspondence to the Commission that does not comply
with the requirements of Article 5 of Regulation 773/2004
and therefore does not constitute a complaint within the
meaning of Article 7(2) of Regulation 1/2003 will be
considered by the Commission as general
information
that, where it
is useful, may lead to an own-initiative
investigation (cf. point 4 above).

(b) Legitimate interest

33. The status of formal complainant under Article 7(2) of
Regulation 1/2003 is
reserved to legal and natural
persons who can show a legitimate interest (28). Member
States are deemed to have a legitimate interest
for all
complaints they choose to lodge.

34. In the past practice of the Commission, the condition of
legitimate interest was not often a matter of doubt as most
complainants were in a position of being directly and
adversely affected by the alleged infringement. However,
there are situations where the condition of a ‘legitimate
interest’
to
conclude that it is fulfilled. Useful guidance can best be
provided by a non-exhaustive set of examples.

in Article 7(2)

further analysis

requires

35. The Court of First Instance has held that an association of
undertakings may claim a legitimate interest in lodging a

relevant market, by the

regarding conduct concerning its members,
complaint
even if it is not directly concerned, as an undertaking
operating in the
conduct
complained of, provided that,
is entitled to
represent the interests of its members and secondly, the
conduct complained of is liable to adversely affect the
interests of its members (29). Conversely, the Commission
has been found to be entitled not to pursue the complaint
of an association of undertakings whose members were
transactions
not
complained of (30).

type of business

involved in the

first,

it

36. From this case law, it can be inferred that undertakings
(themselves or through associations that are entitled to
represent their interests) can claim a legitimate interest
where they are operating in the relevant market or
where the conduct complained of
is liable to directly
and adversely affect their interests. This confirms the estab-
lished practice of the Commission which has accepted that
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.

37. Consumer associations can equally lodge complaints with
the Commission (31). The Commission moreover holds the
view that individual consumers whose economic interests
are directly and adversely affected insofar as they are the
buyers of goods or services that are the object of an
infringement can be in a position to show a legitimate
interest (32).

38. However,

consider

the Commission does not

a
legitimate interest within the meaning of Article 7(2) the
interest of persons or organisations that wish to come
considerations without
interest
forward on general
showing that
they or their members are liable to be
directly and adversely affected by the infringement (pro
bono publico).

as

39. 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.
they cannot be considered as showing a
Conversely,
legitimate interest within the meaning of Article 7(2) of
Regulation 1/2003 to the extent that they bring to the
attention of
the Commission alleged infringements pro
bono publico.

to

40. Complainants have to demonstrate their legitimate interest.
Where a natural or legal person lodging a complaint is
unable
the
a
Commission is entitled, without prejudice to its right to
initiate proceedings of its own initiative, not to pursue the
complaint. The Commission may ascertain whether this
condition is met at any stage of the investigation (33).

demonstrate

legitimate

interest,

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C. ASSESSMENT OF COMPLAINTS

(a) Community interest

41. Under the settled case law of the Community Courts, the
Commission is not required to conduct an investigation in
each case (34) or, a fortiori, to take a decision within the
meaning of Article 249 EC on the
existence or
non-existence of an infringement of Articles 81 or
82 (35), but is entitled to give differing degrees of priority
to the complaints brought before it and refer to the
Community interest in order to determine the degree of
it
priority to be applied to the various complaints
receives (36). The position is different only
the
complaint falls within the exclusive competence of the
Commission (37).

if

42. The Commission must however examine carefully the
factual and legal elements brought to its attention by the
complainant in order to assess the Community interest in
further investigation of a case (38).

43. The assessment of the Community interest raised by a
complaint depends on the circumstances of each individual
case. Accordingly, the number of criteria of assessment to
which the Commission may refer is not limited, nor is the
Commission required to have recourse exclusively to
certain criteria. As the factual and legal circumstances
may differ considerably from case to case, it is permissible
to apply new criteria which had not before been
considered (39). Where appropriate, the Commission may
give priority to a single criterion for assessing the
Community interest (40).

44. Among the criteria which have been held relevant in the
case law for the assessment of the Community interest in
the (further) investigation of a case are the following:

— The Commission can reject a complaint on the ground
that the complainant can bring an action to assert its
rights before national courts (41).

— The Commission may not regard certain situations as
excluded in principle from its purview under the task
entrusted to it by the Treaty but is required to assess in
each case how serious the alleged infringements are
consequences are. This
and how persistent
take into account
means in particular that
it must
the duration and the extent of
the infringements
complained of and their effect on the competition
situation in the Community (42).

their

— The Commission may have to balance the significance
of the alleged infringement as regards the functioning
of the common market, the probability of establishing

the existence of the infringement and the scope of the
investigation required in order to fulfil
its task of
ensuring that Articles 81 and 82 of the Treaty are
complied with (43).

— While the Commission's discretion does not depend on
how advanced the investigation of a case is, the stage
of the investigation forms part of the circumstances of
the case which the Commission may have to take into
consideration (44).

— The Commission may decide that it is not appropriate
to investigate a complaint where the practices
in
question have ceased. However, for this purpose, the
Commission will have to ascertain whether anti-
competitive effects persist and if
the seriousness of
the infringements or the persistence of their effects
does not give the complaint a Community interest (45).

— The Commission may also decide that it is not appro-
priate to investigate a complaint where the under-
takings concerned agree to change their conduct in
such a way that
there is no
longer a sufficient Community interest to intervene (46).

it can consider that

the Commission may reject

45. Where it forms the view that a case does not display
investi-
sufficient Community interest to justify (further)
gation,
the complaint on
that ground. Such a decision can be taken either before
commencing an investigation or after taking investigative
measures (47). However, the Commission is not obliged to
set aside a complaint for lack of Community interest (48).

(b) Assessment under Articles 81 and 82

46. The examination of a complaint under Articles 81 and 82
involves two aspects, one relating to the facts to be estab-
lished to prove an infringement of Articles 81 or 82 and
the other relating to the legal assessment of the conduct
complained of.

47. Where

the

complying with

complaint, while

to reject a complaint on the ground that

the
requirements of Article 5 of Regulation 773/2004 and
Form C, does not sufficiently substantiate the allegations
it may be rejected on that ground (49). In
put forward,
the
order
the EC
conduct
competition rules or does not fall within their scope of
application, the Commission is not obliged to take into
account circumstances that have not been brought to its
attention by the complainant and that it could only have
uncovered by the investigation of the case (50).

complained of does not

infringe

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48. The criteria for the legal assessment of agreements or
practices under Articles 81 and 82 cannot be dealt with
exhaustively in the present Notice. However, potential
to the extensive guidance
complainants
available from the Commission (51),
in addition to other
sources and in particular the case law of the Community
Courts and the case practice of the Commission. Four
specific issues are mentioned in the following points
with indications on where to find further guidance.

should refer

indicate conduct which is liable to infringe Articles 81
and 82 (56).

54. In

the Commission's procedure

for

dealing with

complaints, different stages can be distinguished (57).

49. Agreements

and practices

fall within the

scope of
application of Articles 81 and 82 where they are capable
of affecting trade between Member States. Where an
fulfil
agreement or practice does not
this condition,
national
apply, but not EC
competition law may
competition law. Extensive guidance on this subject can
be found in the Notice on the effect on trade concept (52).

50. Agreements falling within the scope of Article 81 may be
agreements of minor importance which are deemed not to
restrict competition appreciably. Guidance on this issue
can be found in the Commission's de minimis Notice (53).

51. Agreements that fulfil the conditions of a block exemption
regulation are deemed to satisfy the conditions of Article
81(3) (54). For the Commission to withdraw the benefit of
the block exemption pursuant to Article 29 of Regulation
1/2003, it must find that upon individual assessment an
agreement to which the exemption regulation applies has
certain effects which are incompatible with Article 81(3).

52. Agreements that restrict competition within the meaning
of Article 81(1) EC may fulfil the conditions of Article
81(3) EC. Pursuant to Article 1(2) of Regulation 1/2003
and without a prior administrative decision being required,
such agreements are not prohibited. Guidance on the
conditions to be fulfilled by an agreement pursuant to
Article 81(3) can be found in the Notice on Article
81(3) (55).

D. THE COMMISSION'S PROCEDURES WHEN DEALING WITH
COMPLAINTS

(a) Overview

53. As recalled above, the Commission is not obliged to carry
out an investigation on the basis of every complaint
an
submitted with a view to establishing whether
infringement
the
Commission is under a duty to consider carefully the
issues brought to its attention by the
factual and legal
those issues
complainant,

committed. However,

to assess whether

in order

been

has

55. During the first stage, following the submission of the
complaint, the Commission examines the complaint and
may collect further information in order to decide what
take on the complaint. That stage may
action it will
include an informal exchange of views between the
Commission and the complainant with a view to clarifying
the factual and legal issues with which the complaint is
In this stage, the Commission may give an
concerned.
the
complainant
initial
complainant an opportunity to expand on his allegations
in the light of that initial reaction.

allowing

reaction

the

to

56. In the second stage, the Commission may investigate the
case further with a view to initiating proceedings pursuant
to Article 7(1) of Regulation 1/2003 against the under-
takings complained of. Where the Commission considers
there are insufficient grounds for acting on the
that
complaint, it will
inform the complainant of its reasons
and offer the complainant the opportunity to submit any
further comments within a time-limit which it
fixes
(Article 7(1) of Regulation 773/2004).

57. If the complainant fails to make known its views within
the time-limit set by the Commission, the complaint is
deemed to have been withdrawn (Article 7(3) of Regu-
lation 773/2004). In all other cases, in the third stage of
the procedure, the Commission takes cognisance of the
observations submitted by the complainant and either
initiates a procedure against the subject of the complaint
or adopts a decision rejecting the complaint (58).

58. Where the Commission rejects a complaint pursuant to
Article 13 of Regulation 1/2003 on the grounds that
another authority is dealing or has dealt with the case,
the Commission proceeds in accordance with Article 9
of Regulation 773/2004.

59. Throughout the procedure, complainants benefit from a
range of rights as provided in particular in Articles 6 to
8 of Regulation 773/2004. However, proceedings of the
Commission in competition cases do not constitute adver-
sarial proceedings between the complainant on the one
hand and the companies which are the subject of the
investigation on the other hand. Accordingly,
the
procedural rights of complainants are less far-reaching
than the right to a fair hearing of the companies which
are the subject of an infringement procedure (59).

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(b) Indicative time limit for informing the complainant of

the Commission's proposed action

60. The Commission is under an obligation to decide on
complaints within a reasonable time (60). What
is a
reasonable duration depends on the circumstances of
the various
each case and in particular,
procedural
the
steps
conduct of the parties in the course of the procedure,
the complexity of the case and its importance for the
various parties involved (61).

followed by the Commission,

its context,

61. The Commission will

in principle 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 reception of the complaint. Thus, subject to the
circumstances of the individual case and in particular the
possible need to request complementary information from
the complainant or third parties, the Commission will in
principle inform the complainant within four months
whether or not it intends to investigate its case further.
This time-limit does not constitute a binding statutory
term.

62. Accordingly, within

this

period,

four month

the
Commission may communicate its proposed course of
action to the complainant as an initial reaction within
the first phase of the procedure (see point 55 above).
The Commission may also, where the examination of the
complaint has progressed to the second stage (see point 56
above), directly proceed to informing the complainant
about its provisional assessment by a letter pursuant to
Article 7(1) of Regulation 773/2004.

63. To ensure
complaint,
diligently
informing the Commission of new developments.

their
is desirable that complainants cooperate
by
the

the most
it
in

procedures (62),

treatment of

expeditious

example

for

(c) Procedural rights of the complainant

64. Where the Commission addresses a statement of objections
to the companies complained of pursuant to Article 10(1)
of Regulation 773/2004, the complainant is entitled to
receive a copy of this document from which business
secrets
the
confidential
companies concerned have been removed (non-confi-
dential version of the statement of objections; cf. Article
6(1) of Regulation 773/2004). The complainant is invited
to comment in writing on the statement of objections. A
time-limit will be set for such written comments.

information of

and other

the oral hearing of

views at
statement of objections has been addressed,
complainants so request in their written comments (63).

the parties to which a
the

if

66. Complainants may submit, of

16

to Article 6(1)

information will be protected by

their own initiative or
following a request by the Commission, documents that
contain business secrets or other confidential information.
Confidential
the
Commission (64). Under Article
of Regulation
773/2004, complainants are obliged to identify confi-
dential information, give reasons why the information is
considered confidential and submit a separate non-confi-
dential version when they make their views known
pursuant
and 7(1) of Regulation
773/2004, as well as when they subsequently submit
further information in the course of the same procedure.
Moreover, the Commission may, in all other cases, request
complainants which produce documents or statements to
identify the documents or parts of
the documents or
statements which they consider to be confidential. It may
in particular set a deadline for the complainant to specify
why it considers a piece of information to be confidential
and to provide a non-confidential version,
including a
concise description or non-confidential version of each
piece of information deleted.

67. The qualification of information as confidential does not
the Commission from disclosing and using
prevent
information where
an
is necessary
infringement of Articles 81 or 82 (65). Where business
secrets and confidential
information are necessary to
prove an infringement, the Commission must assess for
each individual document whether the need to disclose is
greater than the harm which might result from disclosure.

to prove

that

it will

in pursuing the

68. Where the Commission takes the view that a complaint
should not be further examined, because there is no
case
sufficient Community interest
further or on other
inform the
grounds,
complainant in the form of a letter which indicates its
legal basis (Article 7(1) of Regulation 773/2004), sets
out
led the Commission to
the
and
in the
provisionally
provides the complainant with the opportunity to submit
supplementary information or observations within a
time-limit set by the Commission. The Commission will
also indicate the consequences of not replying pursuant to
Article 7(3) of Regulation 773/2004, as explained below.

that have

indicated

conclude

reasons

sense

65. Furthermore,

the Commission may, where appropriate,
afford complainants the opportunity of expressing their

69. Pursuant

to Article 8(1) of Regulation 773/2004,

the
complainant has the right to access the information on
which the Commission bases its preliminary view. Such
access is normally provided by annexing to the letter a
copy of the relevant documents.

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70. The time-limit for observations by the complainant on the
letter pursuant to Article 7(1) of Regulation 773/2004 will
be set in accordance with the circumstances of the case. It
will not be shorter than four weeks (Article 17(2) of Regu-
lation 773/2004). If the complainant does not respond
within the time-limit set,
is deemed to
have been withdrawn pursuant to Article 7(3) of Regu-
lation 773/2004. Complainants are
also entitled to
withdraw their complaint at any time if they so wish.

the complaint

refer to that other decision adopted on the basis of the
provisions mentioned.

77. A decision to reject a complaint is subject to appeal before

the Community Courts (68).

71. The

complainant may request

the
time-limit for the provision of comments. Depending on
the circumstances of the case, the Commission may grant
such an extension.

an extension of

72. In

the

case, where

complainant
the Commission

submits
that
observations,
takes
supplementary
cognisance of
those observations. Where they are of
such a nature as to make the Commission change its
previous course of action,
it may initiate a procedure
against the companies complained of. In this procedure,
the complainant has the procedural rights explained above.

73. Where the observations of the complainant do not alter
the Commission's proposed course of action, it rejects the
complaint by decision (66).

(d) The Commission decision rejecting a complaint

74. Where the Commission rejects a complaint by decision
pursuant to Article 7(2) of Regulation 773/2004, it must
state the reasons in accordance with Article 253 EC, i.e. in
a way that is appropriate to the act at issue and takes into
account the circumstances of each case.

fashion the

75. The statement of reasons must disclose in a clear and
unequivocal
reasoning followed by the
Commission in such a way as to enable the complainant
to ascertain the reasons for the decision and to enable the
competent Community Court
to exercise its power of
review. However,
the Commission is not obliged to
adopt a position on all the arguments relied on by the
complainant in support of its complaint. It only needs to
set out the facts and legal considerations which are of
decisive importance in the context of the decision (67).

76. Where the Commission rejects a complaint in a case that
also gives rise to a decision pursuant to Article 10 of
Regulation 1/2003 (Finding of inapplicability of Articles
81 or 82)
or Article 9 of Regulation 1/2003
(Commitments), the decision rejecting a complaint may

78. A decision rejecting a complaint prevents complainants
from requiring the reopening of the investigation unless
they put forward significant new evidence. Accordingly,
further correspondence on the same alleged infringement
by former complainants cannot be regarded as a new
complaint unless significant new evidence is brought to
the
the
Commission may re-open a file under appropriate circum-
stances.

the Commission. However,

attention

of

79. A decision to reject a complaint does not definitively rule
on the question of whether or not there is an infringement
of Articles 81 or 82, even where the Commission has
assessed the facts on the basis of Articles 81 and 82.
The assessments made by the Commission in a decision
rejecting a complaint therefore do not prevent a Member
State
competition authority from applying
Articles 81 and 82 to agreements and practices brought
before it. The assessments made by the Commission in a
decision rejecting a complaint constitute facts which
Member States' courts or competition authorities may
take into account in examining whether the agreements
or conduct in question are in conformity with Articles 81
and 82 (69).

court or

(e) Specific situations

80. According to Article 8 of Regulation 1/2003 the
Commission may on its own initiative order
interim
measures where there is the risk of serious and irreparable
damage to competition. Article 8 of Regulation 1/2003
makes it clear that interim measures cannot be applied
for by complainants under Article 7(2) of Regulation
1/2003. Requests for interim measures by undertakings
can be brought before Member States' courts which are
well placed to decide on such measures (70).

their

81. Some persons may wish to inform the Commission about
suspected infringements of Articles 81 or 82 without
having
revealed to the undertakings
concerned by the allegations. These persons are welcome
to contact the Commission. The Commission is bound to
respect an informant's request for anonymity (71), unless
the request to remain anonymous is manifestly unjustified.

identity

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___________
(1) 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, pages 1-25).

(2) Cf. in particular Recitals 3-7 and 35 of Regulation 1/2003.

(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 123, 27.4.2004).

(4) The Commission handles correspondence from informants in accordance with its principles of good administrative practice.

(5) Notice on cooperation within the Network of competition authorities (p. 43).

(6) For the handling of such complaints, cf. Commission communication of 10 October 2002, COM(2002) 141.

(7) Case C-344/98, Masterfoods v HB Ice Cream, [2000] ECR I-11369, para 46; Case C-119/97 P, Union française de l'express (Ufex) and Others v
Commission of the European Communities, [1999] ECR I-1341, para 88; Case T-24/90, Automec v Commission of the European Communities,
[1992] ECR II-2223, paras 73-77.

(8) Cf. in particular Articles 5, 6, 11, 12, 15, 22, 29, 35 and Recitals 2 to 4 and 6 to 8 of Regulation 1/2003.

(9) Cf. Notice on cooperation within the network of competition authorities . . ., points 5 ss.

(10) Cf. Recital 3 of Regulation 1/2003.

(11) Settled case law, cf. Case 127/73, Belgische Radio en Televisie (BRT) v SABAM and Fonior, [1974] ECR 51, para 16; Case C-282/95 P, Guérin
automobiles v Commission of the European Communities, [1997] ECR I-1503, para 39; Case C-453/99, Courage v Bernhard Crehan, [2001] ECR
I-6297, para 23.

(12) Case C-453/99, Courage v Bernhard Crehan, [2001] ECR I-6297, paras 26 and 27; the power of national courts to grant damages is also

underlined in Recital 7 of Regulation 1/2003.

(13) Cf. Articles 1, 6 and 15 as well as Recital 7 of Regulation 1/2003.

(14) Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty; OJ P 13 of 21 February 1962, p. 204-211; English special
edition: Series I Chapter 1959-1962 p. 87. Regulation No 17 is repealed by Article 43 of Regulation 1/2003 with effect from 1 May 2004.

(15) For more detailed explanations of this mechanism, cf. 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 . . .

(16) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 93.

(17) Case C-230/96, Cabour and Nord Distribution Automobile v Arnor ‘SOCO’, [1998] ECR I-2055, para 51; Joined Cases T-185/96, T-189/96 and

T-190/96, Dalmasso and Others v Commission of the European Communities, [1999] ECR II-93, para 50.

(18) Cf. Article 8 of Regulation 1/2003 and para 80 below. Depending on the case, Member States' competition authorities may equally be well placed

to adopt interim measures.

(19) Cf. points 41 ss. below.

(20) Notice on cooperation within the Network of competition authorities (p. 43).

(21) Notice on cooperation within the Network of competition authorities . . ., points 8-15.

(22) Article 11(2) and (3) of Regulation 1/2003; Notice on cooperation within the Network of Competition Authorities . . ., points 16/17.

(23) Notice on cooperation within the Network of Competition Authorities, . . ., point 34.

(24) For more extensive explanations on this notion in particular, cf. points 33 ss. below.

(25) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 88; Case

T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paras 73-77 and 85.

(26) Settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 85.

(27) Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para 36.

(28) Cf. Article 5(1) of Regulation 773/2004.

(29) Case T-114/92, Bureau Européen des Médias et de l'Industrie Musicale (BEMIM) v Commission of the European Communities, [1995] ECR II-147,
para 28. Associations of undertakings were also the complainants in the cases underlying the judgments in Case 298/83, Comité des industries
cinématographiques des Communautés européennes (CICCE) v Commission of the European Communities, [1985] ECR 1105 and Case T-319/99,
Federacion Nacional de Empresas (FENIN) v Commission of the European Communities, not yet published in [2003] ECR.

(30) Joined Cases T-133/95 and T-204/95, International Express Carriers Conference (IECC) v Commission of the European Communities, [1998] ECR

II-3645, paras 79-83.

(31) Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, para

36.

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(32) This question is currently raised in a pending procedure before the Court of First Instance (Joined cases T-213 and 214/01). The Commission has
also accepted as complainant an individual consumer in its Decision of 9 December 1998 in Case IV/D-2/34.466, Greek Ferries, OJ L 109/24 of
27 April 1999, para 1.

(33) Joined Cases T-133/95 and T-204/95, International Express Carriers Conference (IECC) v Commission of the European Communities, [1998] ECR

II-3645, para 79.

(34) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 76; Case C-91/95 P, Roger Tremblay and Others

v Commission of the European Communities, [1996] ECR I-5547, para 30.

(35) Case 125/78, GEMA v Commission of the European Communities, [1979] ECR 3173, para 17; Case C-119/97/P, Union française de l'express

(Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 87.

(36) Settled case law since the Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paras 77 and 85; Recital 18

of Regulation 1/2003 expressly confirms this possibility.

(37) Settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 75. Under Regulation

1/2003, this principle may only be relevant in the context of Article 29 of that Regulation.

(38) Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR 3045, para 19; Case
C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 86.

(39) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, paras 79-80.

(40) Case C-450/98 P, International Express Carriers Conference (IECC) v Commission of the European Communities, [2001] ECR I-3947, paras 57-59.

(41) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paras 88ss.; Case T-5/93, Roger Tremblay and Others
v Commission of the European Communities, [1995] ECR II-185, paras 65ss.; Case T-575/93, Casper Koelman v Commission of the European
Communities, [1996] ECR II-1, paras 75-80; see also part II above where more detailed explanations concerning this situation are given.

(42) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, paras 92/93.

(43) Settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 86.

(44) Case C-449/98 P, International Express Carriers Conference (IECC) v Commission of the European Communities [2001] ECR I-3875, para 37.

(45) Case T-77/95, Syndicat français de l'Express International and Others v Commission of the European Communities [1997] ECR II-1, para 57; Case
C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, para 95. Cf. also
Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, para
113, where an unwritten commitment between a Member State and a third county outside the common commercial policy was held not to
suffice to establish that the conduct complained of had ceased.

(46) Case T-110/95, International Express Carriers (IECC) v Commission of the European Communities and Others, [1998] ECR II-3605, para 57,
upheld by Case 449/98 P, International Express Carriers (IECC) v Commission of the European Communities and Others, [2001] ECR I-3875,
paras 44-47.

(47) Case C-449/98 P, International Express Carriers (IECC) v Commission of the European Communities e.a. [2001] ECR I-3875, para 37.

(48) Cf. Case T-77/92, Parker Pen v Commission of the European Communities, [1994] ECR II-549, paras 64/65.

(49) Case 298/83, Comité des industries cinématographiques des Communautés européennes (CICCE) v Commission of the European Communities,
[1985] ECR 1105, paras 21-24; Case T-198/98, Micro Leader Business v Commission of the European Communities, [1999] ECR II-3989, paras
32-39.

(50) Case T-319/99, Federación Nacional de Empresas (FENIN) v Commission of the European Communities, not yet published in [2003] ECR, para

43.

(51) Extensive guidance can be found on the Commission's website at http://europa.eu.int/comm/competition/index_en.html

(52) Notice on the effect on trade concept contained in Articles 81 and 82 of the Treaty (p. 81).

(53) Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty

establishing the European Community (de minimis), OJ C 368 of 22 December 2002, p. 13.

(54) The texts of all block exemption regulations are available on the Commission's website at http://europa.eu.int/comm/competition/index_en.html

(55) Commission Notice — Guidelines on the application of Article 81(3) of the Treaty (p. 97).

(56) Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR 3045, para 19; Case

T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para 79.

(57) Cf. Case T-64/89, Automec v Commission of the European Communities, [1990] ECR II-367, paras 45-47; Case T-37/92, Bureau Européen des

Unions des Consommateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, para 29.

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(58) Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para 36.

(59) Joined Cases 142 and 156/84, British American Tobacco Company and R. J. Reynolds Industries v Commission of the European Communities

[1987] ECR 249, paras 19/20.

(60) Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para 37.

(61) Joined Cases T-213/95 and T-18/96, Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van Nederlandse Kraanbedrijven (FNK) v

Commission of the European Communities, [1997] ECR 1739, para 57.

(62) The notion of ‘diligence’ on the part of the complainant is used by the Court of First Instance in Case T-77/94, Vereniging van Groothandelaren in

Bloemkwekerijprodukten and Others v Commission of the European Communities, [1997] ECR II-759, para 75.

(63) Article 6(2) of Commission Regulation 773/2004.

(64) Article 287 EC, Article 28 of Regulation 1/2003 and Articles 15 and 16 of Regulation 773/2004.

(65) Article 27(2) of Regulation 1/2003.

(66) Article 7(2) of Regulation 773/2004; Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503,

para 36.

(67) Settled case law, cf.

i.a. Case T-114/92, Bureau Européen des Médias et de l'Industrie Musicale (BEMIM) v Commission of the European

Communities, [1995] ECR II-147, para 41.

(68) Settled case law since Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR

3045.

(69) Case T-575/93, Casper Koelman v Commission of the European Communities, [1996] ECR II-1, paras 41-43.

(70) Depending on the case, Member States' competition authorities may equally be well placed to adopt interim measures.

(71) Case 145/83, Stanley George Adams v Commission of the European Communities, [1985] ECR 3539.

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ANNEX

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Commission Notice on informal guidance relating to novel questions concerning Articles 81 and
82 of the EC Treaty that arise in individual cases (guidance letters)

(2004/C 101/06)

(Text with EEA relevance)

I. REGULATION 1/2003

the

1. Regulation 1/2003 (1) sets up a new enforcement system
for Articles 81 and 82 of the Treaty. While designed to
focus on the primary task of effective
restore
enforcement of
the Regulation
the competition rules,
also creates legal certainty inasmuch as it provides that
agreements (2) which fall under Article 81(1) but
fulfil
the conditions
in Article 81(3) are valid and fully
enforceable ab initio without a prior decision by a
competition authority (Article 1 of Regulation 1/2003).

2. The framework of Regulation 1/2003, while introducing
parallel competence of the Commission, Member States'
competition authorities and Member States' courts to
apply Article 81 and 82 in their entirety, limits risks of
inconsistent application by a range of measures, thereby
certainty for
ensuring the primary aspect of
companies as reflected in the case law of the Court of
Justice,
i.e. that the competition rules are applied in a
consistent way throughout the Community.

legal

3. Undertakings are generally well placed to assess the legality
of their actions in such a way as to enable them to take an
informed decision on whether
to go ahead with an
agreement or practice and in what form. They are close
to the facts and have at their disposal the framework of
block exemption regulations, case law and case practice as
well as extensive guidance in Commission guidelines and
notices (3).

4. Alongside the reform of the rules implementing Articles
the
81 and 82 brought about by Regulation 1/2003,
Commission has conducted a review of block exemption
regulations, Commission notices and guidelines, with a
view to further
economic
operators. The Commission has also produced guidelines

self-assessment by

assist

(2) In this Notice,

(1) 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, pages 1-25).
the term ‘agreement’

is used for agreements,
decisions by associations of undertakings and concerted practices.
The term ‘practices’ refers to the conduct of dominant undertakings.
The term ‘undertakings’ equally covers ‘associations of under-
takings’.

on the application of Article 81(3) (4). This allows under-
takings in the vast majority of cases to reliably assess their
it is
agreements with regard to Article 81. Furthermore,
the practice of
the Commission to impose more than
symbolic fines (5) only in cases where it is established,
instruments or in the case law and
either in horizontal
practice
an
certain
that
infringement.

constitutes

behaviour

a

5. Where cases, despite the above elements, give rise to
genuine uncertainty because they present novel or unre-
solved questions for the application of Articles 81 and 82,
individual undertakings may wish to seek informal
guidance from the Commission. (6) Where it considers it
appropriate and subject to its enforcement priorities, the
Commission may provide
such guidance on novel
questions concerning the interpretation of Articles 81
and/or 82 in a written statement (guidance letter). The
present Notice sets out details of this instrument.

II. FRAMEWORK FOR ASSESSING WHETHER TO ISSUE A
GUIDANCE LETTER

6. Regulation 1/2003 confers powers on the Commission to
effectively prosecute infringements of Articles 81 and 82
and to impose sanctions (7). One major objective of the
Regulation is to ensure efficient enforcement of the EC
competition rules by removing the former notification
system and thus allowing the Commission to focus its
enforcement policy on the most serious infringements (8).

7. While Regulation 1/2003 is without prejudice to the
ability of the Commission to issue informal guidance to
individual undertakings (9), as set out in this Notice, this
ability should not interfere with the primary objective of
the Regulation, which is to ensure effective enforcement.
The Commission may therefore only provide informal
guidance to individual undertakings in so far as this is
compatible with its enforcement priorities.

(4) Commission Notice – Guidelines on the application of Article 81(3)

of the Treaty (p. 97).

(5) Symbolic fines are normally set at 1 000 EUR, cf. Commission
Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty, (OJ C 9, 14.1.1998).

(6) Cf. Recital 38 of Regulation 1/2003.
(7) Cf.

in particular Articles 7 to 9, 12, 17-24, 29 of Regulation

1/2003.

(3) All

texts mentioned are available at: http://europa.eu.int/comm/

competition/index_en.html

(8) Cf. in particular Recital 3 of Regulation 1/2003.
(9) Cf. Recital 38 of Regulation 1/2003.

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8. Subject to point 7, the Commission, seized of a request for
a guidance letter, will consider whether it is appropriate to
process
letter may only be
considered if
the following cumulative conditions are
fulfilled:

Issuing a guidance

it.

(a) The substantive assessment of an agreement or practice
with regard to Articles 81 and/or 82 of the Treaty,
poses a question of application of the law for which
there is no clarification in the existing EC legal
framework including the case law of the Community
Courts, nor publicly available general guidance or
precedent
in decision-making practice or previous
guidance letters.

(b) A prima facie evaluation of the specificities and back-
ground 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 consumer 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
widely spread economic usage in the marketplace
and/or

— the extent of the investments linked to the trans-
action in relation to the size of the companies
concerned and the extent to which the transaction
relates
the
to a structural operation such as
creation of a non-full function joint venture.

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
that
envisage,
agreement or practice. In this case the transaction must
have reached a sufficiently advanced stage for a request to
be considered.

implementation

before

the

i.e.

of

11. A request for a guidance letter is without prejudice to the
power of
in
accordance with Regulation 1/2003 with regard to the
facts presented in the request.

the Commission to open proceedings

III. INDICATIONS ON HOW TO REQUEST GUIDANCE

12. A request can be presented by an undertaking or under-
takings which have entered into or intend to enter into an
agreement or practice that could fall within the scope of
Articles 81 and/or 82 of
the Treaty with regard to
questions of interpretation raised by such agreement or
practice.

13. A request for a guidance letter should be addressed to the

following address:

Commission européenne/Europese Commissie
Competition DG
B-1049 Bruxelles/Brussel.

14. There is no form. A memorandum should be presented

which clearly states:

(c)

It is possible to issue a guidance letter on the basis of
the information provided, i.e. no further fact-finding is
required.

— the identity of all undertakings concerned as well as a
single address for contacts with the Commission;

9. Furthermore, the Commission will not consider a request
for a guidance letter in either of the following circum-
stances:

— the questions raised in the request are identical or
similar to issues raised in a case pending before the
European Court of First
Instance 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.

10. The Commission will not consider hypothetical questions
issue guidance letters on agreements or

and will not

— 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;

— a detailed reasoning, having regard to point 8 a), why

the request presents (a) novel question(s);

this Notice,

— all other information that permits an evaluation of the
request in the light of the aspects explained in points
8-10 of
a
declaration that the agreement or practice to which
the request
to proceedings
pending before a Member State court or competition
authority;

in particular

including

is not

subject

refers

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Official Journal of the European Union

27.4.2004

— where

the

request

are
contains
considered business secrets, a clear identification of
these elements;

elements

that

legal reasoning underlying the under-
— the principal
standing of
the Commission on novel questions
relating to Articles 81 and/or 82 raised by the request.

— any other information or documentation relevant to

the individual case.

20. 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.

IV. PROCESSING OF THE REQUEST

8 c),

the Commission may

15. The Commission will in principle evaluate the request on
the basis of the information provided. Notwithstanding
point
additional
information at its disposal from public sources, former
source and may ask the
proceedings or any other
to provide supplementary information. The
applicant(s)
normal
secrecy apply to the
rules on professional
information supplied by the applicant(s).

use

16. The Commission may share the information submitted to
it with the Member States' competition authorities and
receive input from them. It may discuss the substance of
the request with the Member States' competition auth-
orities before issuing a guidance letter.

17. Where no guidance letter is issued, the Commission shall

inform the applicant(s) accordingly.

18. 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 (cf. point 11 above).

V. GUIDANCE LETTERS

19. A guidance letter sets out:

— a summary description of the facts on which it is

based;

21. Guidance letters will be posted on the Commission's
webb-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.

VI. THE EFFECTS OF GUIDANCE LETTERS

22. Guidance letters are in the first place intended to help
undertakings carry out themselves an informed assessment
of their agreements and practices.

23. A guidance letter cannot prejudge the assessment of the

same question by the Community Courts.

examining

from subsequently

for a guidance letter,

24. Where an agreement or practice has formed the factual
the Commission is not
basis
precluded
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 devel-
opments in the case law of the European Courts or wider
changes of the Commission's policy.

that

25. Guidance letters are not Commission decisions and do not
bind Member States' competition authorities or courts that
have the power to apply Articles 81 and 82. However, it is
open to Member States' competition authorities and courts
to take
issued by the
Commission as they see fit in the context of a case.

account of guidance

letters

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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

(2005/C 325/07)

(Text with EEA relevance)

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Access to the Commission file is one of the procedural guarantees intended to apply the principle of
equality of arms and to protect the rights of the defence. Access to the file is provided for in Article
27(1) and (2) of Council Regulation (EC) No 1/2003 (1), Article 15(1) of Commission Regulation (EC)
No 773/2004 (‘the Implementing Regulation’) (2), Article 18(1) and (3) of the Council Regulation (EC)
No 139/2004 (‘Merger Regulation’) (3) and Article 17(1) of Commission Regulation (EC) No 802/2004
(‘the Merger Implementing Regulation’) (4). In accordance with these provisions, before taking decisions
on the basis of Articles 7, 8, 23 and 24(2) of Regulation (EC) No 1/2003 and Articles 6(3), 7(3), 8(2) to
(6), 14 and 15 of the Merger Regulation, the Commission shall give the persons, undertakings or asso-
ciations of undertakings, as the case may be, an opportunity of making known their views on the objec-
tions against them and they shall be entitled to have access to the Commission's file in order to fully
respect their rights of defence in the proceedings. The present notice provides the framework for the
exercise of the right set out in these provisions. It does not cover the possibility of the provision of
documents in the context of other proceedings. This notice is without prejudice to the interpretation of
such provisions by the Community Courts. The principles set out in this Notice apply also when the
Commission enforces Articles 53, 54 and 57 of the EEA Agreement (5).

2. This specific right outlined above is distinct from the general right to access to documents under Regu-
lation (EC) No 1049/2001 (6), which is subject to different criteria and exceptions and pursues a
different purpose.

3. The term access to the file is used in this notice exclusively to mean the access granted to the persons,
undertakings or association of undertakings to whom the Commission has addressed a statement of
objections.This notice clarifies who has access to the file for this purpose.

4. The same term, or the term access to documents, is also used in the above-mentioned regulations in
respect of complainants or other involved parties. These situations are, however, distinct from that of
the addressees of a statement of objections and therefore do not fall under the definition of access to
the file for the purposes of this notice. These related situations are dealt with in a separate section of
the notice.

5. This notice also explains to which information access is granted, when access takes place and what are

the procedures for implementing access to the file.

(1) 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.

(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commis-

sion pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p. 18-24.

(3) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings,

OJ L 24, 29.1.2004, p. 1-22.

(4) Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004
on the control of concentrations between undertakings, OJ L 133, 30.4.2004, p. 1-39. Corrected in the OJ L 172,
6.5.2004, p. 9.

(5) References in this Notice to Articles 81 and 82 therefore apply also to Articles 53 and 54 of the EEA Agreement.
(6) 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. See for instance
Case T-2/03, Verein für Konsumenteninformation v. Commission, judgment of 13 April 2005, not yet reported.

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Official Journal of the European Union

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6. As from its publication, this notice replaces the 1997 Commission notice on access to the file (1). The
new rules take account of the legislation applicable as of 1 May 2004, namely the above referred Regu-
lation (EC) No 1/2003, Merger Regulation, Implementing Regulation and Merger Implementing Regu-
lation, as well as the Commission Decision of 23 May 2001 on the terms of reference of Hearing Offi-
cers in certain competition proceedings (2). It also takes into account the recent case law of the Court of
Justice and the Court of First Instance of the European Communities (3) and the practice developed by
the Commission since the adoption of the 1997 notice.

II. SCOPE OF ACCESS TO THE FILE

A. Who is entitled to access to the file?

7. Access to the file pursuant to the provisions mentioned in paragraph 1 is intended to enable the effec-
tive exercise of the rights of defence against the objections brought forward by the Commission. For
this purpose, both in cases under Articles 81 and 82 EC and in cases under the Merger Regulation,
access is granted, upon request, to the persons, undertakings or associations of undertakings (4), as the
case may be, to which the Commission addresses its objections (5) (hereinafter, ‘the parties’).

1.

8.

9.

B. To which documents is access granted?

The content of the Commission file

The ‘Commission file’ in a competition investigation (hereinafter also referred to as ‘the file’) consists
of all documents (6), which have been obtained, produced and/or assembled by the Commission
Directorate General for Competition, during the investigation.

In the course of investigation under Articles 20, 21 and 22(2) of Regulation (EC) No 1/2003 and
Articles 12 and 13 of the Merger Regulation, the Commission may collect a number of documents,
some of which may, following a more detailed examination, prove to be unrelated to the subject
matter of the case in question. Such documents may be returned to the undertaking from which
those have been obtained. Upon return, these documents will no longer constitute part of the file.

2.

Accessible documents

10.

The parties must be able to acquaint themselves with the information in the Commission's file, so
that, on the basis of this information, they can effectively express their views on the preliminary
conclusions reached by the Commission in its objections. For this purpose they will be granted
access to all documents making up the Commission file, as defined in paragraph 8, with the excep-
tion of internal documents, business secrets of other undertakings, or other confidential informa-
tion (7).

(1) Commission notice on the internal rules of procedure for processing requests for access to the file in cases under
Articles 85 and 86 [now 81 and 82] of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation
(EEC) No 4064/89, OJ C 23, 23.1.1997, p. 3.

(2) OJ L 162, 19.6.2001, p. 21.
(3) In particular Joint Cases T-25/95 et al., Cimenteries CBR SA et al. v Commission, [2000] ECR II-0491.
(4) In the remainder of this Notice, the term ‘undertaking’ includes both undertakings and associations of undertakings.
The term ‘person’ encompasses natural and legal persons. Many entities are legal persons and undertakings at the
same time; in this case, they are covered by both terms. The same applies where a natural person is an undertaking
within the meaning of Articles 81 and 82. In Merger proceedings, account must also be taken of persons referred to
in Article 3(1)(b) of the Merger Regulation, even when they are natural persons. Where entities without legal person-
ality which are also not undertakings become involved in Commission competition proceedings, the Commission
applies, where appropriate, the principles set out in this Notice mutatis mutandis.

(5) Cf. Article 15(1) of the Implementing Regulation, Article 18(3) of the Merger Regulation and Article 17(1) of the

Merger Implementing Regulation.

(6) In this notice the term ‘document’ is used for all forms of information support, irrespective of the storage medium.

This covers also any electronic data storage device as may be or become available.

(7) Cf. Article 27(2) of Regulation (EC) No 1/2003, Articles 15(2) and 16(1) of the Implementing Regulation, and Article
17(3) of the Merger Implementing Regulation. Those exceptions are also mentioned in Case T-7/89, Hercules Chemi-
cals v Commission, [1991] ECR II-1711, paragraph 54. The Court has ruled that it does not belong to the Commission
alone to decide which documents in the file may be useful for the purposes of the defence (Cf. Case T-30/91 Solvay v.
Commission, [1995] ECR II-1775, paragraphs 81-86, and Case T-36/91 ICI vs. Commission, [1995] ECR II-1847, para-
graphs 91-96).

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Official Journal of the European Union

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11.

Results of a study commissioned in connection with proceedings are accessible together with the
terms of reference and the methodology of the study. Precautions may however be necessary in
order to protect intellectual property rights.

3.

Non-accessible documents

3.1.

Internal documents

3.1.1 General principles

12.

13.

Internal documents can be neither incriminating nor exculpatory (1). They do not constitute part of
the evidence on which the Commission can rely in its assessment of a case. Thus, the parties will
not be granted access to internal documents in the Commission file (2). 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 (3).

There is no obligation on the Commission departments to draft any minutes of meetings (4) with any
person or undertaking. If the Commission chooses to make notes of such meetings, such documents
constitute the Commission's own interpretation of what was said at the meetings, for which reason
they are classified as internal documents. Where, however, the person or undertaking in question
has agreed the minutes, such minutes will be made accessible after deletion of any business secrets
or other confidential information. Such agreed minutes constitute part of the evidence on which the
Commission can rely in its assessment of a case (5).

14.

In the case of a study commissioned in connection with proceedings, correspondence between the
Commission and its contractor containing evaluation of the contractor's work or relating to financial
aspects of the study, are considered internal documents and will thus not be accessible.

3.1.2 Correspondence with other public authorities

15. 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 EC Member
States (‘the Member States’) or non-member countries). Examples of such non-accessible documents
include:

— correspondence between the Commission and the competition authorities of the Member States,

or between the latter (6);

— correspondence between the Commission and other public authorities of the Member States (7);

— correspondence between the Commission, the EFTA Surveillance Authority and public authori-

ties of EFTA States (8);

— correspondence between the Commission and public authorities of non-member countries,
including their competition authorities, in particular where the Community and a third country
have concluded an agreement governing the confidentiality of the information exchanged (9).

(1) Examples of internal documents are drafts, opinions, memos or notes from the Commission departments or other

public authorities concerned.

(2) Cf. Article 27(2) of Regulation (EC) No 1/2003, Article 15(2) of the Implementing Regulation, and Article 17(3) of

the Merger Implementing Regulation.

(3) Cf. paragraph 1 above.
(4) Cf. judgement of 30.9.2003 in 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, paragraphs 349-359.

(5) Statements recorded pursuant to Article 19 or Article 20(2)(e) of Regulation 1/2003 or Article 13(2)(e) of Merger

Regulation will also normally belong to the accessible documents (see paragraph 10 above).

(6) Cf. Article 27(2) of Regulation (EC) No 1/2003, Article 15(2) of the Implementing Regulation, Article 17(3) of the

Merger Implementing Regulation.

(7) Cf. Order of the Court of First Instance in Cases T-134/94 et al NMH Stahlwerke and Others v Commission [1997] ECR

II-2293, paragraph 36, and Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389, paragraph 33.

(8) In this notice the term ‘EFTA States’ includes the EFTA States that are parties to the EEA Agreement.
(9) For example, Article VIII.2 of the Agreement between the European Communities and the Government of the United
States of America regarding the application of their competition laws (OJ No L 95, 27.4.1995, p. 47) stipulates that
information provided to it in confidence under the Agreement must be protected ‘to the fullest extent possible’. That
Article creates an international-law obligation binding the Commission.

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16.

In certain exceptional circumstances, access is 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 the entity submitting the document
prior to granting access to identify business secrets or other confidential information.

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 investi-
gative 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.

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 exercise of compe-
tence by the Commission (1).

3.2. Confidential information

17.

The Commission file may also include documents containing two categories of information, namely
business secrets and other confidential
information, to which access may be partially or totally
restricted (2). Access will be granted, where possible, to non-confidential versions of the original
information. Where confidentiality can only be assured by summarising the relevant information,
access will be granted to a summary. All other documents are accessible in their original form.

3.2.1 Business secrets

18.

In so far as disclosure of information about an undertaking's business activity could result in a
serious harm to the same undertaking, such information constitutes business secrets (3). 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.

3.2.2 Other confidential information

19.

The category ‘other confidential information’ includes information other than business secrets, which
may be considered as confidential, insofar as its disclosure would significantly harm a person or
undertaking. 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
Court of First Instance 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 risk of retaliatory measures (4). Therefore the notion of other confi-
dential 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.

(1) In the merger control area, this may apply in particular to submissions by a Member State under Article 9 (2) of the

Merger Regulation with regard to a case referral.

(2) Cf. Article 16(1) of the Implementing Regulation and Article 17(3) of the Merger Implementing Regulation; Case T-
7/89 Hercules Chemicals NV v Commission, [1991] ECR II-1711, paragraph 54; Case T-23/99, LR AF 1998 A/S v
Commission, [2002] ECR II-1705, paragraph 170.

(3) Judgement of 18.9.1996 in Case T-353/94, Postbank NV v Commission, [1996] ECR II-921, paragraph 87.
(4) The Community Courts have pronounced upon this question both in cases of alleged abuse of a dominant position
(Article 82 of the EC Treaty) (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, paragraph 69, and Case T-5/02 Laval v. Commission [2002] ECR II-4381, paragraph 98 et seq.).

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20.

The category of other confidential information also includes military secrets.

3.2.3 Criteria for the acceptance of requests for confidential treatment.

21.

22.

23.

24.

Information will be classified as confidential where the person or undertaking in question has made
a claim to this effect and such claim has been accepted by the Commission (1).

Claims for confidentiality must relate to information which is within the scope of the above descrip-
tions of business secrets or other confidential information. The reasons for which information is
claimed to be a business secret or other confidential information must be substantiated (2). Confiden-
tiality claims can normally only pertain to information obtained by the Commission from the same
person or undertaking and not to information from any other source.

Information relating to an undertaking but which is already known outside the undertaking (in case
of a group, outside the group), or outside the association to which it has been communicated by
that undertaking, will not normally be considered confidential (3). Information that has lost its
commercial importance, for instance due to the passage of time, can no longer be regarded as confi-
dential. As a general rule, the Commission presumes that information pertaining to the parties' turn-
over, sales, market-share data and similar information which is more than 5 years old is no longer
confidential (4).

In proceedings under Articles 81 and 82 of the Treaty, the qualification of a piece of information as
confidential is not a bar to its disclosure if such information is necessary to prove an alleged infrin-
gement (‘inculpatory document’) or could be necessary to exonerate a party (‘exculpatory document’).
In this case, the need to safeguard the rights of the defence of the parties through the provision of
the widest possible access to the Commission file may outweigh the concern to protect confidential
information of other parties (5). It is for the Commission to assess whether those circumstances
apply to any specific situation. This calls for an assessment of all relevant elements, including:

— 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.

Similar considerations apply to proceedings under the Merger Regulation when the disclosure of
information is considered necessary by the Commission for the purpose of the procedure (6).

25. Where the Commission intends to disclose information, the person or undertaking in question shall
be granted the possibility to provide a non-confidential version of the documents where that infor-
mation is contained, with the same evidential value as the original documents (7).

C. When is access to the file granted?

26. Prior to the notification of the Commission's statement of objections pursuant to the provisions

mentioned in paragraph 1, the parties have no right of access to the file.

(1) See paragraph 40 below.
(2) See paragraph 35 below.
(3) However, business secrets or other confidential information which are given to a trade or professional association by
its members do not lose their confidential nature with regard to third parties and may therefore not be passed on to
complainants. Cf. Joined Cases 209 to 215 and 218/78, Fedetab, [1980] ECR 3125, paragraph 46.

(4) See paragraphs 35-38 below on asking undertakings to identify confidential information.
(5) Cf. Article 27(2) of Regulation (EC) No 1/2003 and Article 15(3) of the Implementing Regulation.
(6) Article 18(1) of the Merger Implementing Regulation.
(7) Cf. paragraph 42 below.

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1.

In antitrust proceedings under Articles 81 and 82 of the Treaty

27. Access to the file will be granted upon request and, normally, on a single occasion, following the noti-
fication of the Commission's objections to the parties, in order to ensure the principle of equality of
arms and to protect their rights of defence. As a general rule, therefore, no access will be granted to
other parties' replies to the Commission's objections.

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.

2.

In proceedings under the Merger Regulation

28. In accordance with Article 18(1) and (3) of the Merger Regulation and Article 17(1) of the Merger
Implementing Regulation, the notifying parties will be given access to the Commission's file upon
request at every stage of the procedure following the notification of the Commission's objections up to
the consultation of the Advisory Committee. In contrast, this notice does not address the possibility of
the provision of documents before the Commission states its objections to undertakings under the
Merger Regulation (1).

III. PARTICULAR QUESTIONS REGARDING COMPLAINANTS AND OTHER INVOLVED

PARTIES

29. The present section relates to situations where the Commission may or has to provide access to
certain documents contained in its file to the complainants in antitrust proceedings and other involved
parties in merger proceedings. Irrespective of the wording used in the antitrust and merger imple-
menting regulations (2), these two situations are distinct — in terms of scope, timing, and rights —
from access to the file, as defined in the preceding section of this notice.

A. Provision of documents to complainants in antitrust proceedings

30. The Court of First Instance has ruled (3) 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 as
established for parties.

31. However, a complainant who, pursuant to Article 7(1) of the Implementing Regulation, has been
informed of the Commission's intention to reject its complaint (4), may request access to the docu-
ments on which the Commission has based its provisional assessment (5). The complainant will be
provided access to such documents on a single occasion, following the issuance of the letter informing
the complainant of the Commission's intention to reject its complaint.

32. 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 (6).

(1) This question is dealt with in the Directorate General Competition document ‘DG COMP Best Practices on the
conduct of EC merger control proceedings’, available on the web-site of the Directorate General for Competition:
http://europa.eu.int/comm/competition/index_en.html.

(2) Cf. Article 8(1) of the Implementing Regulation, which speaks about ‘access to documents’ to complainants and
Article 17(2) of Merger Implementing Regulation which speaks about ‘access to file’ to other involved parties ‘in so
far as this is necessary for the purposes of preparing their comments’.

(3) See Case T-17/93 Matra-Hachette SA v Commission, [1994] ECR II-595, paragraph 34. The Court ruled that the rights
of third parties, as laid down by Article 19 of the Council Regulation No 17 of 6.2.1962 (now replaced by Article
27 of Regulation (EC) No 1/2003), were limited to the right to participate in the administrative procedure.

(4) By means of a letter issued in accordance with Article 7(1) of the Implementing Regulation.
(5) Cf. Article 8(1) of the Implementing Regulation.
(6) Cf. Article 8(1) of the Implementing Regulation.

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B. Provision of documents to other involved parties in merger proceedings

33. In accordance with Article 17(2) of the Merger Implementing Regulation, access to the file in merger
proceedings shall also be given, upon request, to other involved parties who have been informed of
the objections in so far as this is necessary for the purposes of preparing their comments.

34. Such other involved parties are parties to the proposed concentration other than the notifying parties,

such as the seller and the undertaking which is the target of the concentration (1).

IV. PROCEDURE FOR IMPLEMENTING ACCESS TO THE FILE

A. Preparatory procedure

35. Any person which submits information or comments in one of the situations listed hereunder, or
subsequently submits further information to the Commission in the course of the same procedures,
has an obligation to 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 (2):

a) In antitrust proceedings

— an addressee of a Commission's statement of objections making known its views on the objec-

tions (3);

— a complainant making known its views on a Commission statement of objections (4);

— any other natural or legal person, which applies to be heard and shows a sufficient interest, or
which is invited by the Commission to express its views, making known its views in writing or
at an oral hearing (5);

— a complainant making known his views on a Commission letter informing him on the Commis-

sion's intention to reject the complaint (6).

b) In merger proceedings

— notifying parties or other involved parties making known their views on Commission objec-
tions adopted with a view to take a decision with regard to a request for a derogation from
suspension of a concentration and which adversely affects one or more of those parties, or on a
provisional decision adopted in the matter (7);

— notifying parties to whom the Commission has addressed a statement of objections, other
involved parties who have been informed of those objections or parties to whom the Commis-
sion has addressed objections with a view to inflict a fine or a periodic penalty payment,
submitting their comments on the objections (8);

— third persons who apply to be heard, or any other natural or legal person invited by the
Commission to express their views, making known their views in writing or at an oral
hearing (9);

— any person which supplies information pursuant to Article 11 of the Merger Regulation.

(1) Cf. Article 11(b) of the Merger Implementing Regulation.
(2) Cf. Article 16(2) of the Implementing Regulation and Article 18(2) of the Merger Implementing Regulation.
(3) pursuant to Article 10(2) of the Implementing Regulation.
(4) pursuant to Article 6(1) of the Implementing Regulation.
(5) pursuant to Article 13(1) and (3) of the Implementing Regulation.
(6) pursuant to Article 7(1) of the Implementing Regulation.
(7) Article 12 of the Merger Implementing Regulation.
(8) Article 13 of the Merger Implementing Regulation.
(9) pursuant to Article 16 of the Merger Implementing Regulation.

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36. Moreover, the Commission may require undertakings (1), in all cases where they produce or have
produced documents, to identify the documents or parts of documents, which they consider to
contain business secrets or other confidential
information belonging to them, and to identify the
undertakings with regard to which such documents are to be considered confidential (2).

37. For the purposes of quickly dealing with confidentiality claims referred to in paragraph 36 above, the
Commission may set a time-limit within which the undertakings shall: (i) substantiate their claim for
confidentiality with regard to each individual document or part of document; (ii) provide the Commis-
sion with a non-confidential version of the documents,
in which the confidential passages are
deleted (3). In antitrust proceedings the undertakings in question shall also provide within the said
time-limit a concise description of each piece of deleted information (4).

38. The non-confidential versions and the descriptions of the deleted information must be established in a
manner that enables any party with access to the file to determine whether the information deleted is
likely to be relevant for its defence and therefore whether there are sufficient grounds to request the
Commission to grant access to the information claimed to be confidential.

B. Treatment of confidential information

39. In antitrust proceedings, if undertakings fail to comply with the provisions set out in paragraphs 35 to
37 above, the Commission may assume that the documents or statements concerned do not contain
confidential information (5). The Commission may consequently assume that the undertaking has no
objections to the disclosure of the documents or statements concerned in their entirety.

40. In both antitrust proceedings and in proceedings under the Merger Regulation, should the person or
undertaking in question meet the conditions set out in paragraphs 35 to 37 above, to the extent they
are applicable, the Commission will either:

— provisionally accept the claims which seem justified; or

— inform the person or undertaking in question that it does not agree with the confidentiality claim

in whole or in part, where it is apparent that the claim is unjustified.

41. The Commission may reverse its provisional acceptance of the confidentiality claim in whole or in

part at a later stage.

42. 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
Hearing Officers (6).

(1) In merger proceedings the principles set out in the present and subsequent paragraphs also apply to the persons

referred to in Article 3(1)(b) of Merger Regulation.

(2) Cf. Article 16(3) of the Implementing Regulation and Article 18(3) of the Merger Implementing Regulation. This also
applies to documents gathered by the Commission in an inspection pursuant to Article 13 of the Merger Regulation
and Articles 20 and 21 of Regulation (EC) No 1/2003.

(3) Cf. Article 16(3) of the Implementing Regulation and Article 18(3) of the Merger Implementing Regulation.
(4) Cf. Article 16(3) of the Implementing Regulation.
(5) Cf. Article 16 of the Implementing Regulation.
(6) Cf. Article 9 of the 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.

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43. Where there is a risk that an undertaking which is able to place very considerable economic or
commercial pressure on its competitors or on its trading partners, customers or suppliers will adopt
retaliatory measures against those, as a consequence of their collaboration in the investigation carried
out by the Commission (1), the Commission will protect the anonymity of the authors by providing
access to a non-confidential version or summary of the responses in question (2). Requests for anon-
ymity in such circumstances, as well as requests for anonymity according to point 81 of the Commis-
sion Notice on the handling of complaints (3) will be dealt with according to paragraphs 40 to 42
above.

C. Provision of access to file

44. The Commission may determine that access to the file shall be granted in one of the following ways,

taking due account of the technical capabilities of the parties:

— by means of a CD-ROM(s) or any other electronic data storage device as may become available in

future;

— through copies of the accessible file in paper form sent to them by mail;

— by inviting them to examine the accessible file on the Commission's premises.

The Commission may choose any combination of these methods.

45. In order to facilitate access to the file, the parties will receive an enumerative list of documents setting

out the content of the Commission file, as defined in paragraph 8 above.

46. Access is granted to evidence as contained in the Commission file, in its original form: the Commis-

sion is under no obligation to provide a translation of documents in the file (4).

47. If a party considers that, after having obtained access to the file, it requires knowledge of specific non-
accessible information for its defence, it may submit a reasoned request to that end to the Commis-
sion. If the services of the Directorate General for Competition are not in a position to accept the
request and if the party disagrees with that view, the matter will be resolved by the Hearing Officer, in
accordance with the applicable terms of reference of Hearing Officers (5).

48. Access to the file in accordance with this notice is granted on the condition that the information
thereby obtained may only be used for the purposes of judicial or administrative proceedings for the
application of the Community competition rules at issue in the related administrative proceedings (6).
Should the information be used for a different purpose, at any point in time, with the involvement of
an outside counsel, the Commission may report the incident to the bar of that counsel, with a view to
disciplinary action.

49. With the exception of paragraphs 45 and 47, this section C applies equally to the grant of access to
documents to complainants (in antitrust proceedings) and to other involved parties (in merger
proceedings).

(1) Cf. paragraph 19 above.
(2) Cf. Case T-5/02, Tetra Laval vs. Commission, [2002] ECR II-4381, paragraph 98, 104 and 105.
(3) Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty, OJ

C 101, 27.4.2004, p. 65.

(4) Cf. Case T-25/95 et al. Cimenteries, paragraph 635.
(5) Cf. Article 8 of the 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.

(6) Cf. Articles 15(4) and 8(2) of the Implementing Regulation, respectively, and Article 17(4) of the Merger Imple-

menting Regulation.

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II

(Information)

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

COMMISSION

Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions
pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases

(Text with EEA relevance)

(2008/C 167/01)

1. INTRODUCTION

1. This Notice sets out the framework for rewarding coopera-
tion in the conduct of proceedings commenced in view of
the application of Article 81 of the EC Treaty (1) to cartel
cases (2). The settlement procedure may allow the Commis-
sion to handle more cases with the same resources, thereby
fostering the public interest in the Commission's delivery
of effective and timely punishment, while increasing overall
deterrence. The cooperation covered by this Notice is
different from the voluntary production of evidence to
trigger or advance the Commission's investigation, which is
covered by the Commission Notice on Immunity from
fines and reduction of fines in cartel cases (3) (the Leniency
Notice). Provided that the cooperation offered by an under-
taking qualifies under both Commission Notices, it can be
cumulatively rewarded accordingly (4).

2. When parties to the proceedings are prepared to acknowl-
edge their participation in a cartel violating Article 81 of
the Treaty and their liability therefore,
they may also
contribute to expediting the proceedings leading to the

(1) References in this text to Article 81 also cover Article 53 EEA when
applied by the Commission in accordance with the rules laid down in
Article 56 of the EEA Agreement.

(2) Cartels are agreements and/or concerted practices between two or
more competitors aimed at coordinating their competitive behaviour
on the market and/or influencing the relevant parameters of competi-
tion through practices such as the fixing of purchase or selling prices or
other trading conditions, the allocation of production or sales quotas,
the sharing of markets including bid-rigging, restrictions of imports or
exports and/or anti-competitive actions against other competitors.
Such practices are among the most serious violations of Article 81 EC.

(3) OJ C 298, 8.12.2006, p. 17.
(4) See point 33.

the corresponding decision pursuant

to
adoption of
Article 7 and Article 23 of 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 (5) in the way and with the safeguards
specified in this Notice. Whilst the Commission, as the
investigative authority and the guardian of
the Treaty
empowered to adopt enforcement decisions subject to judi-
cial control by the Community Courts, does not negotiate
the question of the existence of an infringement of Com-
munity law and the appropriate sanction, it can reward the
cooperation described in this Notice.

to Articles 81 and 82 of

3. Commission Regulation (EC) No 773/2004 of 7 April
2004 relating to the conduct of proceedings by the
the
Commission pursuant
EC Treaty (6) lays down the core practical rules concerning
the conduct of proceedings in antitrust cases including
those applicable in the variant
In this
regard, Regulation (EC) No 773/2004 bestows on the
Commission the discretion whether to explore the settle-
ment procedure or not in cartel cases, while ensuring that
the choice of the settlement procedure cannot be imposed
on the parties.

for settlement.

4. Effective enforcement of Community competition law is
rights of
respect of
compatible with full
defence, which constitutes a fundamental principle of
Community law to be respected in all circumstances, and
in particular in antitrust procedures which may give rise to

the parties'

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

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

(6) OJ L 123, 27.4.2004, p. 18. Regulation as last amended by Regulation

(EC) No 622/2008 (OJ L 171, 1.7.2008, p. 3).

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penalties. It follows that the rules established to conduct
the Commission proceedings to enforce Article 81 of the
Treaty should ensure that the undertakings and associa-
tions of undertakings concerned are afforded the opportu-
nity effectively to make known their views on the truth
and relevance of the facts, objections and circumstances
put forward by the Commission (1), throughout the admin-
istrative procedure.

2. PROCEDURE

5. The Commission retains a broad margin of discretion to
determine which cases may be suitable to explore the
parties' interest to engage in settlement discussions, as well
as to decide to engage in them or discontinue them or to
definitely settle. In this regard, account may be taken of the
probability of reaching a common understanding regarding
the potential objections with the parties
the scope of
involved within a reasonable timeframe, in view of factors
such as number of parties involved, foreseeable conflicting
positions on the attribution of liability, extent of contesta-
tion of the facts. The prospect of achieving procedural effi-
ciencies in view of the progress made overall in the settle-
ment procedure, including the scale of burden involved in
providing access to non-confidential versions of documents
from the file, will be considered. Other concerns such as
the possibility of setting a precedent might apply. The
Commission may also decide to discontinue settlement
discussions if the parties to the proceedings coordinate to
distort or destroy any evidence relevant to the establish-
ment of the infringement or any part thereof or to the
calculation of the applicable fine. Distortion or destruction
of evidence relevant to the establishment of the infringe-
ment or any part thereof may also constitute an aggra-
vating circumstance within the meaning of point 28 of the
Commission Guidelines on the method of setting fines
imposed pursuant to Article 23(2)(a) of Regulation (EC)
No 1/2003 (2)
(the Guidelines on fines), and may be
regarded as lack of cooperation within the meaning of
points 12 and 27 of the Leniency Notice. The Commission
may only engage in settlement discussions upon the
written request of the parties concerned.

6. While parties to the proceedings do not have a right to
settle, should the Commission consider that a case may, in
principle, be suitable for settlement,
it will explore the
interest in settlement of all parties to the same proceed-
ings.

7. The parties to the proceedings may not disclose to any
third party in any jurisdiction the contents of the discus-
sions or of the documents which they have had access to
in view of settlement, unless they have a prior explicit
authorization by the Commission. Any breach in this
regard may lead the Commission to disregard the underta-
king's request to follow the settlement procedure. Such
disclosure may also constitute an aggravating circumstance,

(1) Case 85/76, Hoffmann-La Roche v Commission [1979] ECR 461, at para-

graphs 9 and 11.

(2) OJ C 210, 1.9.2006, p. 2.

within the meaning of point 28 of the Guidelines on fines
and may be regarded as lack of cooperation within the
meaning of points 12 and 27 of the Leniency Notice.

2.1. Initiation of proceedings and exploratory steps

regarding settlement

8. Where the Commission contemplates the adoption of a
decision pursuant to Article 7 and/or Article 23 of Regu-
lation (EC) No 1/2003, it is required in advance to identify
and recognize as parties to the proceedings the legal
persons on whom a penalty may be imposed for an infrin-
gement of Article 81 of the Treaty.

9. To this end,

the initiation of proceedings pursuant

to
Article 11(6) of Regulation (EC) No 1/2003 in view of
adopting such a decision can take place at any point in
time, but no later than the date on which the Commission
issues a statement of objections against
the parties
concerned. Article 2(1) of Regulation (EC) No 773/2004
further specifies that, should the Commission consider it
suitable to explore the parties' interest in engaging in settle-
ment discussions, it will initiate proceedings no later than
the date on which it either issues a statement of objections
or requests the parties to express in writing their interest
to engage in settlement discussions, whichever
is the
earlier.

10. After the initiation of proceedings pursuant to Article 11(6)
of Regulation (EC) No 1/2003, the Commission becomes
the only competition authority competent
to apply
Article 81 of the Treaty to the case in point.

11. Should the Commission consider it suitable to explore the
parties' interest to engage in settlement discussions, it will
set a time-limit of no less than two weeks pursuant to
Articles 10a(1) and 17(3) of Regulation (EC) No 773/2004
within which parties to the same proceedings should
declare in writing whether they envisage engaging in settle-
ment discussions in view of possibly introducing settle-
ment submissions at a later stage. This written declaration
does not imply an admission by the parties of having parti-
cipated in an infringement or of being liable for it.

12. Whenever the Commission initiates proceedings against
two or more parties within the same undertaking, the
Commission will inform each of them of the other legal
entities which it identifies within the same undertaking and
which are also concerned by the proceedings. In such a
case, should the concerned parties wish to engage in settle-
ment discussions, they must appoint joint representatives
duly empowered to act on their behalf by the end of the
time-limit referred to in point 11. The appointment of
joint representatives aims solely to facilitate the settlement
discussions and it does not prejudge in any way the attri-
bution of
the
different parties.

the infringement amongst

liability for

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13. The Commission may disregard any application for immu-
nity from fines or reduction of fines on the ground that it
has been submitted after the expiry of
the time-limit
referred to in point 11.

2.2. Commencing the settlement procedure: settlement

discussions

14. Should some of

the parties to the proceedings request
settlement discussions and comply with the requirements
referred to in points 11 and 12, the Commission may
decide to pursue the settlement procedure by means of
bilateral contacts between the Commission Directorate-
General for Competition and the settlement candidates.

15. The Commission retains discretion to determine the appro-
priateness and the pace of the bilateral settlement discus-
sions with each undertaking. In line with Article 10a(2) of
Regulation (EC) No 773/2004, this includes determining,
in the settlement
in view of the progress made overall
procedure, the order and sequence of the bilateral settle-
ment discussions as well as the timing of the disclosure of
information, including the evidence in the Commission file
used to establish the envisaged objections and the potential
fine (1). Information will be disclosed in a timely manner
as settlement discussions progress.

16. Such an early disclosure in the context of settlement
discussions pursuant to Article 10a(2) and Article 15(1a)
of Regulation (EC) No 773/2004 will allow the parties to
be informed of the essential elements taken into considera-
tion so far, such as the facts alleged, the classification of
those facts, the gravity and duration of the alleged cartel,
the attribution of liability, an estimation of the range of
likely fines, as well as the evidence used to establish the
potential objections. This will enable the parties effectively
to assert their views on the potential objections against
them and will allow them to make an informed decision
on whether or not to settle. Upon request by a party, the
Commission services will also grant it access to non-confi-
dential versions of any specified accessible document listed
in the case file at that point in time, in so far as this is
justified for the purpose of enabling the party to ascertain
its position regarding a time period or any other aspect of
the cartel (2).

(1) Reference to the ‘potential fine’ in Article 10a(2) of Regulation (EC)
No 773/2004 affords the Commission services the possibility to
inform the parties concerned by settlement discussions of an estimate
of their potential fine in view of the guidance contained in the Guide-
lines on fines, the provisions of this Notice and the Leniency Notice,
where applicable.

(2) For that purpose, the parties will be provided with a list of all accessible

documents in the case file at that point in time.

17. When the progress made during the settlement discussions
leads to a common understanding regarding the scope of
the potential objections and the estimation of the range of
likely fines to be imposed by the Commission, and the
Commission takes the preliminary view that procedural
efficiencies are likely to be achieved in view of the progress
made overall, the Commission may grant a final time-limit
of at least 15 working days for an undertaking to introduce
a final settlement submission pursuant to Articles 10a(2)
and 17(3) of Regulation (EC) No 773/2004. The time-limit
can be extended following a reasoned request. Before
granting such time-limit, the parties will be entitled to have
the information specified in point 16 disclosed to them
upon request.

18. The parties may call upon the Hearing Officer at any time
during the settlement procedure in relation to issues that
might arise relating to due process. The Hearing Officer's
duty is to ensure that the effective exercise of the rights of
defence is respected.

19. Should the parties concerned fail to introduce a settlement
submission, the procedure leading to the final decision
in their regard will follow the general provisions, in par-
ticular Articles 10(2), 12(1) and 15(1) of Regulation (EC)
No 773/2004, instead of those regulating the settlement
procedure.

2.3. Settlement submissions

request

20. Parties opting for a settlement procedure must introduce a
to settle in the form of a settlement
formal
submission. The settlement submission provided for in
Article 10a(2) of Regulation (EC) No 773/2004 should
contain:

(a) an acknowledgement in clear and unequivocal terms of
the parties'
liability for the infringement summarily
described as regards its object, its possible implementa-
tion, the main facts, their legal qualification, including
the party's role and the duration of their participation
in the infringement in accordance with the results of
the settlement discussions;

(b) an indication (3) of the maximum amount of the fine
the parties foresee to be imposed by the Commission
and which the parties would accept in the framework
of a settlement procedure;

(c) the parties' confirmation that, they have been suffi-
ciently informed of
the objections the Commission
envisages raising against them and that they have been
given sufficient opportunity to make their views
known to the Commission;

(3) This would result from the discussions as set out in points 16 and 17.

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(d) the parties' confirmation that,

in view of the above,
they do not envisage requesting access to the file or
requesting to be heard again in an oral hearing, unless
settlement
the Commission does not
submissions in the statement of objections and the
decision;

reflect

their

(e) the parties' agreement

to receive the statement of
objections and the final decision pursuant to Articles 7
and 23 of Regulation (EC) No 1/2003 in an agreed
official language of the European Community.

21. The acknowledgments and confirmations provided by the
parties in view of settlement constitute the expression of
their commitment to cooperate in the expeditious handling
of the case following the settlement procedure. However,
those acknowledgments and confirmations are conditional
upon the Commission meeting their settlement request,
including the anticipated maximum amount of the fine.

22. Settlement requests cannot be revoked unilaterally by the
parties which have provided them unless the Commission
does not meet the settlement requests by reflecting the
settlement submissions first in a statement of objections
and ultimately, in a final decision (see in this regard points
27 and 29). The statement of objections would be deemed
to have endorsed the settlement submissions if it reflects
their contents on the issues mentioned in point 20(a).
Additionally, for a final decision to be deemed to have
reflected the settlement submissions, it should also impose
a fine which does not exceed the maximum amount indi-
cated therein.

2.4. Statement of objections and reply

23. Pursuant to Article 10(1) of Regulation (EC) No 773/2004,
the notification of a written statement of objections to
each of the parties against whom objections are raised is a
mandatory preparatory step before adopting any final deci-
sion. Therefore, the Commission will issue a statement of
objections also in a settlement procedure (1).

24. For the parties' rights of defence to be exercised effectively,
the Commission should hear their views on the objections
against them and supporting evidence before adopting a
final decision and take them into account by amending its
preliminary analysis, where appropriate (2). The Commis-
sion must be able not only to accept or reject the parties'
relevant arguments expressed during the administrative

(1) In the context of settlement procedures, statements of objections
should contain the information necessary to enable the parties to
corroborate that it reflects their settlement submissions.

(2) In line with settled case-law, the Commission shall base its decisions
only on objections on which the parties concerned have been able to
comment and, to this end, they shall be entitled to have access to the
Commission's file, subject to the legitimate interest of undertakings in
the protection of their business secrets.

procedure, but also to make its own analysis of the matters
put forward by them in order to either abandon such
objections because they have been shown to be unfounded
or to supplement and reassess its arguments both in fact
and in law, in support of the objections which it maintains.

25. By introducing a formal settlement request in the form of a
settlement submission prior to the notification of the state-
ment of objections,
the parties concerned enable the
Commission to effectively take their views into account (3)
already when drafting the statement of objections, rather
than only before
the Advisory
Committee on Restrictive Practices and Dominant Positions
(hereinafter the ‘Advisory Committee’) or before the adop-
tion of the final decision (4).

consultation of

the

26. Should the statement of objections reflect

least

submissions,

the parties'
settlement
the parties concerned should
two weeks set by the
within a time-limit of at
Commission in accordance with Articles 10a(3) and 17(3)
of Regulation (EC) No 773/2004, reply to it by simply
confirming (in unequivocal terms) that the statement of
objections corresponds to the contents of their settlement
submissions and that they therefore remain committed to
follow the settlement procedure. In the absence of such a
reply, the Commission will take note of the party's breach
of
its commitment and may also disregard the party's
request to follow the settlement procedure.

27. The Commission retains the right to adopt a statement of
objections which does not reflect the parties' settlement
submission. If so, the general provisions in Articles 10(2),
12(1) and 15(1) of Regulation (EC) No 773/2004 will
apply. The acknowledgements provided by the parties in
the settlement submission would be deemed to be with-
drawn and could not be used in evidence against any of
the parties
the parties
to the proceedings. Hence,
concerned would no longer be bound by their settlement
submissions and would be granted a time-limit allowing
their defence anew,
to present
them, upon request,
including the possibility to access the file and to request an
oral hearing.

2.5. Commission decision and settlement reward

28. Upon the parties' replies to the statement of objections
confirming their commitment to settle, Regulation (EC)
No 773/2004 allows the Commission to proceed, without
the
any other procedural

to the adoption of

step,

(3) In this regard, recital 2 of Regulation (EC) No 622/2008 states: ‘(…)
Such early disclosure should enable the parties concerned to put forward their
views on the objections which the Commission intends to raise against them as
well as on their potential liability’.

(4) As required by Article 11(1) of Regulation (EC) No 773/2004 and

Article 27(1) of Regulation (EC) No 1/2003, respectively.

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subsequent final decision pursuant to Articles 7 and/or 23
of Regulation (EC) No 1/2003, after consultation of the
Advisory Committee pursuant to Article 14 of Regulation
(EC) No 1/2003. In particular, this implies that no oral
hearing or access to the file may be requested by those
parties once their
submissions have been
reflected by the statement of objections, in line with Arti-
cles 12(2) and 15(1a) of Regulation (EC) No 773/2004.

settlement

29. The Commission retains the right to adopt a final position
which departs from its preliminary position expressed in a
statement of objections endorsing the parties' settlement
submissions, either in view of the opinion provided by the
Advisory Committee or for other appropriate considera-
tions in view of the ultimate decisional autonomy of the
Commission to this effect. However, should the Commis-
sion opt to follow that course, it will inform the parties
and notify to them a new statement of objections in order
to allow for the exercise of
their rights of defence in
accordance with the applicable general rules of procedure.
It follows that the parties would then be entitled to have
access to the file, to request an oral hearing and to reply to
the
acknowledgments
provided by the parties in the settlement submissions
would be deemed to have been withdrawn and could not
be used in evidence against any of
the parties to the
proceedings.

statement of objections. The

30. The final amount of the fine in a particular case is deter-
mined in the decision finding an infringement pursuant to
Article 7 and imposing a fine pursuant to Article 23 of
Regulation (EC) No 1/2003.

31. In line with the Commission's practice, the fact that an
undertaking cooperated with the Commission under this
Notice during the administrative procedure will be indi-
cated in the final decision, so as to explain the reason for
the level of the fine.

32. Should the Commission decide to reward a party for
settlement in the framework of this Notice, it will reduce
by 10 % the amount of the fine to be imposed after the
10 % cap has been applied having regard to the Guidelines
on the method of setting fines imposed pursuant
to
Article 23(2)(a) of Regulation (EC) No 1/2003 (1). Any
specific increase for deterrence (2) used in their regard will
not exceed a multiplication by two.

33. When settled cases involve also leniency applicants, the
reduction of the fine granted to them for settlement will be
added to their leniency reward.

3. GENERAL CONSIDERATIONS

34. This Notice applies

to any case pending before the
Commission at the time of or after its publication in the
Official Journal of the European Union.

(1) OJ C 210, 1.9.2006, p. 2.
(2) Point 30 of the Guidelines on fines.

35. Access to settlement submissions is only granted to those
addressees of a statement of objections who have not
requested settlement, provided that
they commit —
together with the legal counsels getting access on their
behalf — not to make any copy by mechanical or elec-
tronic means of any information in the settlement submis-
sions to which access is being granted and to ensure that
the information to be obtained from the settlement
submission will solely be used for the purposes of judicial
or administrative proceedings for the application of the
Community competition rules at
issue in the related
proceedings. Other parties such as complainants will not
be granted access to settlement submissions.

if any such use is made after

36. The use of such information for a different purpose during
the proceeding may be regarded as lack of cooperation
within the meaning of points 12 and 27 of the Leniency
Notice. Moreover,
the
Commission has already adopted a prohibition decision in
the proceedings,
in any legal
proceedings before the Community Courts, ask the Court
to increase the fine in respect of the responsible under-
taking. Should the information be used for a different
purpose, at any point in time, with the involvement of an
outside counsel, the Commission may report the incident
to the bar of that counsel, with a view to disciplinary
action.

the Commission may,

37. Settlement submissions made under this Notice will only
the
be transmitted to the competition authorities of
Member States pursuant to Article 12 of Regulation (EC)
No 1/2003, provided that the conditions set out in the
Network Notice (3) are met and provided that the level of
protection against disclosure awarded by the receiving
competition authority is equivalent to the one conferred by
the Commission.

38. Upon the applicant's request, the Commission may accept
that settlement submissions be provided orally. Oral settle-
ment submissions will be recorded and transcribed at the
Commission's premises. In accordance with Article 19 of
Regulation (EC) No 1/2003 and Articles 3(3) and 17(3) of
Regulation (EC) No 773/2004 undertakings making oral
settlement submissions will be granted the opportunity to
check the technical accuracy of the recording, which will
be available at the Commission's premises and to correct
the substance of their oral settlement submissions and the
accuracy of the transcript without delay.

39. The Commission will not transmit settlement submissions
to national courts without
the relevant
applicants, in line with the provisions in the Commission
Notice on the co-operation between the Commission and
the courts of the EU Member States in the application of
Articles 81 and 82 EC (4).

the consent of

40. The Commission considers that normally public disclosure
of documents
recorded statements
and written or
(including settlement submissions) received in the context
of this Notice would undermine certain public or private

(3) Commission Notice on cooperation within the Network of Competi-

tion Authorities (OJ C 101, 27.4.2004, p. 43).

(4) OJ C 101, 27.4.2004, p. 54; point 26.

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interests, for example the protection of the purpose of
inspections and investigations, within the meaning of
Article 4 of 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 (1), even after the decision has
been taken.

41. Final decisions taken by the Commission under Regulation
(EC) No 1/2003 are subject to judicial review in accordance
with Article 230 of the Treaty. Moreover, as provided in
Article 229 of the Treaty and Article 31 of Regulation (EC)
No 1/2003, the Court of Justice has unlimited jurisdiction
to review decisions on fines adopted pursuant to Article 23
of Regulation (EC) No 1/2003.

Overview of the procedure leading to the adoption of a (settlement) Decision pursuant to Articles 7
and 23 of Regulation No (EC) 1/2003

I. Investigation as usual

IV. Settlement

— Conditional settlement submissions by the companies,

jointly represented where applicable.

— DG COMP sends acknowledgement of receipt.

V.

‘Settled’ statement of objections

— Notification of streamlined SO endorsing company's

settlement submissions, where appropriate.

— Company's reply to SO confirming clearly that it reflects

its settlement submission.

VI. ‘Settlement’ Decision pursuant to Articles 7 and 23 of

Regulation No (EC) 1/2003

— Advisory Committee on a draft streamlined final deci-

sion.

If College of Commissioners agrees:

— Adoption of streamlined final decision.

— Parties may express their interest in a hypothetical settle-

ment.

II. Exploratory steps regarding settlement

— Letter

to all companies (and MS)

the
decision to initiate proceedings in view of settlement
(Article 11(6)) and requesting them to express their
interest in settlement.

informing of

III. Bilateral rounds of settlement discussions

— Disclosure and exchange of arguments on potential

objections, liability, fines range.

— Disclosure of evidence used to establish potential objec-

tions, liability, fines.

— Disclosure of other non-confidential versions of docu-

ments in the file, when justified.

(1) OJ L 145, 31.5.2001, p. 43.

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Commission Notice on Immunity from fines and reduction of fines in cartel cases

(Text with EEA relevance)

(2006/C 298/11)

I. INTRODUCTION

(1) This notice sets out the framework for rewarding coopera-
tion in the Commission investigation by undertakings
which are or have been party to secret cartels affecting the
Community. Cartels are agreements and/or concerted prac-
tices between two or more competitors aimed at coordi-
nating their competitive behaviour on the market and/or
influencing the relevant parameters of competition through
practices such as the fixing of purchase or selling prices or
other trading conditions, the allocation of production or
sales quotas, the sharing of markets including bid-rigging,
restrictions of imports or exports and/or anti-competitive
actions against other competitors. Such practices are
among the most serious violations of Article 81 EC (1).

(2) By artificially limiting the competition that would normally
prevail between them, undertakings avoid exactly those
pressures that lead them to innovate, both in terms of
product development and the introduction of more efficient
production methods. Such practices also lead to more
expensive raw materials and components for the Com-
munity companies that purchase from such producers.
They ultimately result in artificial prices and reduced choice
for the consumer. In the long term, they lead to a loss of
competitiveness and reduced employment opportunities.

(3) By their very nature, secret cartels are often difficult to
detect and investigate without the cooperation of undertak-
ings or individuals implicated in them. Therefore,
the
Commission considers that it is in the Community interest
to reward undertakings involved in this type of illegal prac-
tices which are willing to put an end to their participation
and co-operate in the Commission's investigation, indepen-
dently of the rest of the undertakings involved in the cartel.
The interests of consumers and citizens in ensuring that
secret cartels are detected and punished outweigh the
interest
that enable the
in fining those undertakings
Commission to detect and prohibit such practices.

(5) Moreover, co-operation by one or more undertakings may
justify a reduction of a fine by the Commission. Any reduc-
tion of a fine must reflect an undertaking's actual contribu-
tion, in terms of quality and timing, to the Commission's
establishment of the infringement. Reductions are to be
limited to those undertakings that provide the Commission
with evidence that adds significant value to that already in
the Commission's possession.

(6) In addition to submitting pre-existing documents, undertak-
ings may provide the Commission with voluntary presenta-
tions of their knowledge of a cartel and their role therein
prepared specially to be submitted under this leniency
programme. These initiatives have proved to be useful for
the effective investigation and termination of cartel infrin-
gements and they should not be discouraged by discovery
orders issued in civil litigation. Potential leniency applicants
might be dissuaded from cooperating with the Commission
under this Notice if this could impair their position in civil
proceedings, as compared to companies who do not coop-
erate. Such undesirable effect would significantly harm the
public interest in ensuring effective public enforcement of
Article 81 EC in cartel cases and thus its subsequent or
parallel effective private enforcement.

(7) The supervisory task conferred on the Commission by the
Treaty in competition matters does not only include the
duty to investigate and punish individual infringements, but
also encompasses the duty to pursue a general policy. The
protection of corporate statements in the public interest is
not a bar to their disclosure to other addressees of the
statement of objections in order to safeguard their rights of
defence in the procedure before the Commission, to the
extent that it is technically possible to combine both inter-
ests by rendering corporate statements accessible only at
the Commission premises and normally on a single occa-
sion following the formal notification of the objections.
Moreover, the Commission will process personal data in
the context of this notice in conformity with its obligations
under Regulation (EC) No 45/2001. (2)

(4) The Commission considers that the collaboration of an
undertaking in the detection of the existence of a cartel has
an intrinsic value. A decisive contribution to the opening
of an investigation or to the finding of an infringement
may justify the granting of immunity from any fine to the
undertaking in question, on condition that certain addi-
tional requirements are fulfilled.

(1) Reference in this text to Article 81 EC also covers Article 53 EEA
when applied by the Commission according to the rules laid down
in Article 56 of the EEA Agreement.

II. IMMUNITY FROM FINES

A. Requirements to qualify for immunity from fines

(8) The Commission will grant

immunity from any fine
which would otherwise have been imposed to an under-
taking disclosing its participation in an alleged cartel

(2) OJ L 8, 12.1.2001, p. 1.

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affecting the Community if that undertaking is the first to
submit information and evidence which in the Commis-
sion's view will enable it to:

(a) carry out a targeted inspection in connection with the

alleged cartel (1); or

(b) find an infringement of Article 81 EC in connection

with the alleged cartel.

(9)

For the Commission to be able to carry out a targeted
inspection within the meaning of point (8)(a), the under-
taking must provide the Commission with the informa-
tion and evidence listed below, to the extent that this, in
the Commission's view, would not jeopardize the inspec-
tions:

(a) A corporate statement (2) which includes, in so far as
it is known to the applicant at the time of the submis-
sion:

— A detailed description of the alleged cartel arrange-
ment, including for instance its aims, activities and
functioning; the product or service concerned, the
geographic scope, the duration of and the esti-
mated market volumes affected by the alleged
cartel; the specific dates, locations, content of and
participants in alleged cartel contacts, and all rele-
vant explanations in connection with the pieces of
evidence provided in support of the application.

— The name and address of the legal entity submit-
ting the immunity application as well as the
names and addresses of all the other undertakings
that participate(d) in the alleged cartel;

— The names, positions, office locations and, where
necessary, home addresses of all individuals who,
to the applicant's knowledge, are or have been
involved in the alleged cartel, including those indi-
viduals which have been involved on the appli-
cant's behalf;

— Information on which other competition authori-
ties,
the EU, have been
approached or are intended to be approached in
relation to the alleged cartel; and

inside or outside

(b) Other evidence relating to the alleged cartel in posses-
sion of the applicant or available to it at the time of
the submission, including in particular any evidence
contemporaneous to the infringement.

the time of

(10) Immunity pursuant to point (8)(a) will not be granted if,
at
the Commission had
the submission,
already sufficient evidence to adopt a decision to carry
out an inspection in connection with the alleged cartel or
had already carried out such an inspection.

(11) Immunity pursuant to point (8)(b) will only be granted on
the cumulative conditions that the Commission did not
have, at the time of the submission, sufficient evidence to
find an infringement of Article 81 EC in connection with
the alleged cartel and that no undertaking had been
granted conditional
immunity from fines under point
(8)(a) in connection with the alleged cartel. In order to
qualify, an undertaking must be the first
to provide
contemporaneous,
incriminating evidence of the alleged
cartel as well as a corporate statement containing the kind
of
(9)(a), which would
enable the Commission to find an infringement of Article
81 EC,.

information specified in point

(12) In addition to the conditions set out in points (8)(a), (9)
and (10) or in points (8)(b) and 11, all the following
conditions must be met in any case to qualify for any
immunity from a fine:

(a) The undertaking cooperates genuinely (3), fully, on a
continuous basis and expeditiously from the time it
submits its application throughout the Commission's
administrative procedure. This includes:

— providing the Commission promptly with all rele-
vant
information and evidence relating to the
alleged cartel that comes into its possession or is
available to it;

— remaining at the Commission's disposal to answer
promptly to any request that may contribute to
the establishment of the facts;

— making

current

former)
employees and directors available for interviews
with the Commission;

possible,

(and,

if

— not destroying,

falsifying or concealing relevant
information or evidence relating to the alleged
cartel; and

— not disclosing the fact or any of the content of its
application before the Commission has issued a
statement of objections in the case, unless other-
wise agreed;

(1) The assessment of the threshold will have to be carried out ex ante,
i.e. without taking into account whether a given inspection has or
has not been successful or whether or not an inspection has or has
not been carried out. The assessment will be made exclusively on
the basis of the type and the quality of the information submitted
by the applicant.

(2) Corporate statements may take the form of written documents

signed by or on behalf of the undertaking or be made orally.

(3) This requires in particular that the applicant provides accurate, not
misleading, and complete information. Cfr judgement of the Euro-
pean Court of Justice of 29 June 2006 in case C-301/04 P, Commis-
sion v SGL Carbon AG a.o., at paragraphs 68-70, and judgement of
the European Court of Justice of 28 June 2005 in cases C-189/02 P,
C-202/02 P, C-205/02 P, C-208/02 P and C-213/02 P, Dansk
Rørindustri A/S a.o. v. Commission, at paragraphs 395-399.

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(b) The undertaking ended its involvement in the alleged
cartel immediately following its application, except for
what would, in the Commission's view, be reasonably
necessary to preserve the integrity of the inspections;

(a) provide the Commission with all

information and
evidence relating to the alleged cartel available to it, as
specified in points (8) and (9),
including corporate
statements; or

the

undertaking must
falsified or concealed evidence of

(c) When contemplating making its application to the
Commission,
have
the
destroyed,
alleged cartel nor disclosed the fact or any of the
content of
to
other competition authorities.

its contemplated application, except

not

(13) An undertaking which took steps to coerce other under-
takings to join the cartel or to remain in it is not eligible
for immunity from fines. It may still qualify for a reduc-
tion of fines if it fulfils the relevant requirements and
meets all the conditions therefor.

B. Procedure

(14) An undertaking wishing to apply for immunity from fines
should contact the Commission's Directorate General for
Competition. The undertaking may either initially apply
for a marker or immediately proceed to make a formal
application to the Commission for immunity from fines
in order to meet the conditions in points (8)(a) or (8)(b),
as appropriate. The Commission may disregard any appli-
cation for immunity from fines on the ground that it has
been submitted after the statement of objections has been
issued.

(15) The Commission services may grant a marker protecting
an immunity applicant's 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 be eligible to secure a marker, the applicant must
provide the Commission with information concerning its
name and address, the parties to the alleged cartel, the
affected product(s) and territory(-ies), the estimated dura-
tion of the alleged cartel and the nature of the alleged
cartel conduct. The applicant should also inform the
Commission on other past or possible future leniency
applications to other authorities in relation to the alleged
cartel and justify its request for a marker. Where a marker
is granted, the Commission services determine the period
within which the applicant has to perfect the marker by
submitting the information and evidence required to meet
the relevant threshold for immunity. Undertakings which
have been granted a marker cannot perfect it by making a
formal application in hypothetical terms. If the applicant
perfects the marker within the period set by the Commis-
sion services, the information and evidence provided will
be deemed to have been submitted on the date when the
marker was granted.

(16) An undertaking making a formal immunity application to

the Commission must:

terms,

(b) initially present
this information and evidence in
in which case the undertaking
hypothetical
must present a detailed descriptive list of the evidence
it proposes to disclose at a later agreed date. This list
should accurately reflect the nature and content of the
evidence, whilst safeguarding the hypothetical nature
of its disclosure. Copies of documents, from which
sensitive parts have been removed, may be used to
illustrate the nature and content of the evidence. The
name of the applying undertaking and of other under-
takings involved in the alleged cartel need not be
disclosed until the evidence described in its application
is
service
concerned by the alleged cartel, the geographic scope
of the alleged cartel and the estimated duration must
be clearly identified.

submitted. However,

the product or

(17) If requested, the Directorate General for Competition will
provide an acknowledgement of receipt of the underta-
king's application for immunity from fines, confirming
the date and, where appropriate, time of the application.

(18) Once the Commission has received the information and
evidence submitted by the undertaking under point (16)(a)
and has verified that it meets the conditions set out in
points (8)(a) or (8)(b), as appropriate,
it will grant the
undertaking conditional immunity from fines in writing.

(19) If the undertaking has presented information and evidence
in hypothetical terms, the Commission will verify that the
the evidence described in the
nature and content of
detailed list referred to in point (16)(b) will meet the
conditions set out in points (8)(a) or (8)(b), as appropriate,
and inform the undertaking accordingly. Following the
the evidence no later than on the date
disclosure of
it corresponds to the
agreed and having verified that
description made in the list, the Commission will grant
the undertaking conditional
in
writing.

immunity from fines

(20) If it becomes apparent that immunity is not available or
that the undertaking failed to meet the conditions set out
in points (8)(a) or (8)(b), as appropriate, the Commission
will inform the undertaking in writing. In such case, the
undertaking may withdraw the evidence disclosed for the
purposes of
the
its immunity application or
Commission to consider it under section III of this notice.
This does not prevent the Commission from using its
normal powers of investigation in order to obtain the
information.

request

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(21) The Commission will not consider other applications for
immunity from fines before it has taken a position on an
existing application in relation to the same alleged infrin-
gement, irrespective of whether the immunity application
is presented formally or by requesting a marker.

(22) If at the end of the administrative procedure, the under-
taking has met the conditions set out in point (12), the
Commission will grant it immunity from fines in the rele-
vant decision. If at the end of the administrative proce-
dure, the undertaking has not met the conditions set out
in point (12), the undertaking will not benefit from any
favorable treatment under this Notice. If the Commission,
after having granted conditional
immunity ultimately
finds that the immunity applicant has acted as a coercer,
it will withhold immunity.

III. REDUCTION OF A FINE

A. Requirements to qualify for reduction of a fine

(23) Undertakings disclosing their participation in an alleged
cartel affecting the Community that do not meet
the
conditions under section II above may be eligible to
benefit from a reduction of any fine that would otherwise
have been imposed.

(24) In order to qualify, an undertaking must provide the
Commission with evidence of the alleged infringement
which represents significant added value with respect to
the evidence already in the Commission's possession and
must meet the cumulative conditions set out in points
(12)(a) to (12)(c) above.

(25) The concept of ‘added value’ refers to the extent to which
the evidence provided strengthens, by its very nature and/
or its level of detail, the Commission's ability to prove the
In this assessment, the Commission will
alleged cartel.
generally consider written evidence originating from the
period of time to which the facts pertain to have a greater
value than evidence subsequently established.
Incrimi-
nating evidence directly relevant to the facts in question
will generally be considered to have a greater value than
that with only indirect relevance. Similarly, the degree of
corroboration from other
the
evidence submitted to be relied upon against other under-
takings involved in the case will have an impact on the
value of that evidence, so that compelling evidence will be
attributed a greater value than evidence such as statements
which require corroboration if contested.

required for

sources

(26) The Commission will determine in any final decision
adopted at the end of the administrative procedure the
level of reduction an undertaking will benefit from, rela-
tive to the fine which would otherwise be imposed. For
the:

— first undertaking to provide significant added value: a

reduction of 30-50 %,

— second undertaking to provide significant added value:

a reduction of 20-30 %,

— subsequent undertakings

that provide

significant

added value: a reduction of up to 20 %.

In order to determine the level of reduction within each
of these bands, the Commission will take into account the
time at which the evidence fulfilling the condition in
point (24) was submitted and the extent to which it repre-
sents added value.

If the applicant for a reduction of a fine is the first to
submit compelling evidence in the sense of point (25)
which the Commission uses to establish additional facts
increasing the gravity or the duration of the infringement,
the Commission will not take such additional facts into
account when setting any fine to be imposed on the
undertaking which provided this evidence.

B. Procedure

(27) An undertaking wishing to benefit from a reduction of a
fine must make a formal application to the Commission
and it must present it with sufficient evidence of the
alleged cartel to qualify for a reduction of a fine in accord-
ance with point
this Notice. Any voluntary
submission of evidence to the Commission which the
undertaking that submits it wishes to be considered for
the beneficial treatment of section III of this Notice must
be clearly identified at the time of its submission as being
part of a formal application for a reduction of a fine.

(24) of

(28) If requested, the Directorate General for Competition will
provide an acknowledgement of receipt of the underta-
king's application for a reduction of a fine and of any
subsequent submissions of evidence, confirming the date
and, where appropriate, time of each submission. The
Commission will not take any position on an application
for a reduction of a fine before it has taken a position on
any existing applications for conditional immunity from
fines in relation to the same alleged cartel.

(29) If the Commission comes to the preliminary conclusion
that the evidence submitted by the undertaking constitutes
significant added value within the meaning of points (24)
and (25), and that the undertaking has met the conditions
of points (12) and (27), it will inform the undertaking in
writing, no later than the date on which a statement of
objections is notified, of its intention to apply a reduction
of a fine within a specified band as provided in point (26).
The Commission will also, within the same time frame,
inform the undertaking in writing if it comes to the preli-
minary conclusion that the undertaking does not qualify
for a reduction of a fine. The Commission may disregard
any application for a reduction of fines on the grounds
that it has been submitted after the statement of objec-
tions has been issued.

D.142308.12.2006

EN

Official Journal of the European Union

C 298/21

(30) The Commission will evaluate the final position of each
undertaking which filed an application for a reduction of
a fine at the end of the administrative procedure in any
decision adopted. The Commission will determine in any
such final decision:

(a) whether the evidence provided by an undertaking
represented significant added value with respect to the
evidence in the Commission's possession at that same
time;

(b) whether the conditions set out in points (12)(a) to

(12)(c) above have been met;

(c) the exact

level of

reduction an undertaking will

benefit from within the bands specified in point (26).

If the Commission finds that the undertaking has not met
the conditions set out in point (12), the undertaking will
from any favourable treatment under this
not benefit
Notice.

IV. CORPORATE STATEMENTS MADE TO QUALIFY UNDER

THIS NOTICE

(31) A corporate statement is a voluntary presentation by or
on behalf of an undertaking to the Commission of the
undertaking's knowledge of a cartel and its role therein
prepared specially to be submitted under this Notice. Any
statement made vis-à-vis the Commission in relation to
this notice, forms part of the Commission's file and can
thus be used in evidence.

(32) Upon the applicant's request, the Commission may accept
that corporate statements be provided orally unless the
applicant has already disclosed the content of the corpo-
rate statement to third parties. Oral corporate statements
will be recorded and transcribed at
the Commission's
premises. In accordance with Article 19 of Council Regu-
lation (EC) No 1/2003 (1) and Articles 3 and 17 of
Commission Regulation (EC) No 773/2004 (2), undertak-
ings making oral corporate statements will be granted the
opportunity to check the technical accuracy of
the
recording, which will be available at the Commission's
premises and to correct the substance of their oral state-
ments within a given time limit. Undertakings may waive
these rights within the said time-limit, in which case the
recording will from that moment on be deemed to have
been approved. Following the explicit or implicit approval
of the oral statement or the submission of any corrections
to it, the undertaking shall listen to the recordings at the
Commission's premises and check the accuracy of the
transcript within a given time limit. Non-compliance with
the last requirement may lead to the loss of any beneficial
treatment under this Notice.

(33) Access to corporate statements is only granted to the
addressees of a statement of objections, provided that they
commit, — together with the legal counsels getting access
on their behalf -, not to make any copy by mechanical or
electronic means of any information in the corporate
statement to which access is being granted and to ensure
that the information to be obtained from the corporate
statement will solely be used for the purposes mentioned
below. Other parties such as complainants will not be
granted access to corporate statements. The Commission
considers that this specific protection of a corporate state-
ment is not justified as from the moment when the appli-
cant discloses to third parties the content thereof.

(34) In accordance with the Commission Notice on rules for
access to the Commission file (3), access to the file is only
granted to the addressees of a statement of objections on
the condition that the information thereby obtained may
only be used for the purposes of judicial or administrative
proceedings for the application of the Community compe-
tition rules at issue in the related administrative proceed-
ings. The use of such information for a different purpose
during the proceeding may be regarded as lack of coop-
eration within the meaning of points (12) and (27) of this
Notice. Moreover,
if any such use is made after the
Commission has already adopted a prohibition decision in
the proceeding,
in any legal
proceedings before the Community Courts, ask the Court
to increase the fine in respect of the responsible under-
taking. Should the information be used for a different
purpose, at any point in time, with the involvement of an
outside counsel, the Commission may report the incident
to the bar of that counsel, with a view to disciplinary
action.

the Commission may,

(35) Corporate statements made under the present Notice will
only be transmitted to the competition authorities of the
to Article 12 of Regulation
Member States pursuant
No 1/2003, provided that the conditions set out in the
Network Notice (4) are met and provided that the level of
protection against disclosure awarded by the receiving
competition authority is equivalent to the one conferred
by the Commission.

V. GENERAL CONSIDERATIONS

to grant conditional

(36) The Commission will not take a position on whether or
not
immunity, or otherwise on
whether or not to reward any application, if it becomes
infringements
the application concerns
apparent
covered by the five years limitation period for the imposi-
tion of penalties stipulated in Article 25(1)(b) of Regu-
lation 1/2003, as such applications would be devoid of
purpose.

that

(1) OJ L 1, 4.1.2003, p. 1.
(2) OJ L 123, 27.4.2004, p. 18.

(3) OJ C 325, 22.12.2005, p. 7.
(4) Commission Notice on cooperation within the Network of Competi-

tion Authorities, OJ C 101, 27.4.2004, p. 43.

D.14231C 298/22

EN

Official Journal of the European Union

8.12.2006

(37) From the date of its publication in the Official Journal,
this notice replaces the 2002 Commission notice on
immunity from fines and reduction of fines in cartel cases
for all cases in which no undertaking has contacted the
Commission in order to take advantage of the favourable
treatment set out in that notice. However, points (31) to
(35) of
the current notice will be applied from the
moment of its publication to all pending and new applica-
tions for immunity from fines or reduction of fines.

(38) The Commission is aware that this notice will create legit-
imate expectations on which undertakings may rely when
disclosing the existence of a cartel to the Commission.

(39) In line with the Commission's practice, the fact that an
undertaking cooperated with the Commission during its

administrative procedure will be indicated in any decision,
so as to explain the reason for the immunity or reduction
of the fine. The fact that immunity or reduction in respect
of fines is granted cannot protect an undertaking from the
civil law consequences of its participation in an infringe-
ment of Article 81 EC.

(40) The Commission considers that normally public disclosure
of documents and written or recorded statements received
in the context of this notice would undermine certain
public or private interests, for example the protection of
the purpose of inspections and investigations, within the
meaning
(EC) No
4
1049/2001 (1), even after the decision has been taken.

of Regulation

of Article

(1) OJ L 145, 31.5.2001, p. 43.

D.14232 I.E EEA AGREEMENT 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
AGREEMENT ON THE EUROPEAN ECONOMIC AREA1 

COMPETITION AND OTHER COMMON RULES 

PART IV 

CHAPTER 1 

RULES APPLICABLE TO UNDERTAKINGS 

Article 53 

1. The following shall be prohibited as incompatible with the functioning of this 
Agreement: all agreements between undertakings, decisions by associations of 
undertakings and concerted practices which may affect trade between Contracting 
Parties and which have as their object or effect the prevention, restriction or distortion 
of competition within the territory covered by this Agreement, and in particular those 
which: 

(a) directly or indirectly fix purchase or selling prices or any other trading conditions; 

(b) limit or control production, markets, technical development, or investment; 

(c) share markets or sources of supply; 

(d) apply dissimilar conditions to equivalent transactions with other trading parties, 
thereby placing them at a competitive disadvantage; 

(e) make the conclusion of contracts subject to acceptance by the other parties of 
supplementary obligations which, by their nature or according to commercial usage, 
have no connection with the subject of such contracts. 

2. Any agreements or decisions prohibited pursuant to this Article shall be 
automatically void. 

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case 
of: 

- any agreement or category of agreements between undertakings; 

- any decision or category of decisions by associations of undertakings; 

- any concerted practice or category of concerted practices; 

which contributes to improving the production or distribution of goods or to promoting 
technical or economic progress, while allowing consumers a fair share of the resulting 
benefit, and which does not: 

(a) impose on the undertakings concerned restrictions which are not indispensable to 
the attainment of these objectives; 

(b) afford such undertakings the possibility of eliminating competition in respect of a 
substantial part of the products in question. 

1 See also: 
- DECISION OF THE COUNCIL AND THE COMMISSION of 13 December 1993 on the conclusion of the Agreement on the European 
Economic Area between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic 
of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation* (94/1/ECSC, 
EC); OJ L1/1, 3.1.1994;  
*The present agreement has not been ratified by the Swiss Confederation. 
- COUNCIL REGULATION (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the 
European Economic Area 

E.1234 
 
 
 
 
                                                 
Article 54 

Any abuse by one or more undertakings of a dominant position within the territory 
covered by this Agreement or in a substantial part of it shall be prohibited as 
incompatible with the functioning of this Agreement in so far as it may affect trade 
between Contracting Parties. 

Such abuse may, in particular, consist in: 

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair 
trading conditions; 

(b) limiting production, markets or technical development to the prejudice of 
consumers; 

(c) applying dissimilar conditions to equivalent transactions with other trading parties, 
thereby placing them at a competitive disadvantage; 

(d) making the conclusion of contracts subject to acceptance by the other parties of 
supplementary obligations which, by their nature or according to commercial usage, 
have no connection with the subject of such contracts. 

Article 55  

1. Without prejudice to the provisions giving effect to Articles 53 and 54 as contained 
in Protocol 21 and Annex XIV of this Agreement, the EC Commission and the EFTA 
Surveillance Authority provided for in Article 108(1) shall ensure the application of the 
principles laid down in Articles 53 and 54. 

The competent surveillance authority, as provided for in Article 56, shall investigate 
cases of suspected infringement of these principles, on its own initiative, or on 
application by a State within the respective territory or by the other surveillance 
authority. The competent surveillance authority shall carry out these investigations in 
cooperation with the competent national authorities in the respective territory and in 
cooperation with the other surveillance authority, which shall give it its assistance in 
accordance with its internal rules. 

If it finds that there has been an infringement, it shall propose appropriate measures 
to bring it to an end. 

2. If the infringement is not brought to an end, the competent surveillance authority 
shall record such infringement of the principles in a reasoned decision. 

The competent surveillance authority may publish its decision and authorize States 
within the respective territory to take the measures, the conditions and details of 
which it shall determine, needed to remedy the situation. It may also request the 
other surveillance authority to authorize States within the respective territory to take 
such measures. 

Article 56  

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 affected 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; 

E.1235 
 
(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 subparagraph (c) of paragraph 1, whose effects on 
trade between EC Member States 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. 

Article 57  

1. Concentrations the control of which is provided for in paragraph 2 and which create 
or strengthen a dominant position as a result of which effective competition would be 
significantly impeded within the territory covered by this Agreement or a substantial 
part of it, shall be declared incompatible with this Agreement. 

2. The control of concentrations falling under paragraph 1 shall be carried out by: 

(a) the EC Commission in cases falling under Regulation (EEC) No 4064/89 in 
accordance with that Regulation and in accordance with Protocols 21 and 24 and 
Annex XIV to this Agreement. The EC Commission shall, subject to the review of the 
EC Court of Justice, have sole competence to take decisions on these cases; 

(b) the EFTA Surveillance Authority in cases not falling under subparagraph (a) where 
the relevant thresholds set out in Annex XIV are fulfilled in the territory of the EFTA 
States in accordance with Protocols 21 and 24 and Annex XIV. This is without 
prejudice to the competence of EC Member States. 

Article 58  

With a view to developing and maintaining a uniform surveillance throughout the 
European Economic Area in the field of competition and to promoting a homogeneous 
implementation, application and interpretation of the provisions of this Agreement to 
this end, the competent authorities shall cooperate in accordance with the provisions 
set out in Protocols 23 and 24. 

Article 59  

1. In the case of public undertakings and undertakings to which EC Member States or 
EFTA States grant special or exclusive rights, the Contracting Parties shall ensure that 
there is neither enacted nor maintained in force any measure contrary to the rules 
contained in this Agreement, in particular to those rules provided for in Articles 4 and 
53 to 63. 

2. Undertakings entrusted with the operation of services of general economic interest 
or having the character of a revenue-producing monopoly shall be subject to the rules 
contained in this Agreement, in particular to the rules on competition, in so far as the 
application of such rules does not obstruct the performance, in law or in fact, of the 
particular tasks assigned to them. The development of trade must not be affected to 
such an extent as would be contrary to the interests of the Contracting Parties. 

3. The EC Commission as well as the EFTA Surveillance Authority shall ensure within 
their respective competence the application of the provisions of this Article and shall, 

E.1236 
 
 
where necessary, address appropriate measures to the States falling within their 
respective territory. 

Annex XIV contains specific provisions giving effect to the principles set out in Articles 
53, 54, 57 and 59. 

Article 60  

CHAPTER 2 

STATE AID 

Article 61  

1. Save as otherwise provided in this Agreement, any aid granted by EC Member 
States, EFTA States or through State resources in any form whatsoever which distorts 
or threatens to distort competition by favouring certain undertakings or the production 
of certain goods shall, in so far as it affects trade between Contracting Parties, be 
incompatible with the functioning of this Agreement. 

2. The following shall be compatible with the functioning of this Agreement: 

(a) aid having a social character, granted to individual consumers, provided that such 
aid is granted without discrimination related to the origin of the products concerned; 

(b) aid to make good the damage caused by natural disasters or exceptional 
occurrences; 

(c) aid granted to the economy of certain areas of the Federal Republic of Germany 
affected by the division of Germany, in so far as such aid is required in order to 
compensate for the economic disadvantages caused by that division. 

3. The following may be considered to be compatible with the functioning of this 
Agreement: 

(a) aid to promote the economic development of areas where the standard of living is 
abnormally low or where there is serious underemployment; 

(b) aid to promote the execution of an important project of common European interest 
or to remedy a serious disturbance in the economy of an EC Member State or an EFTA 
State; 

(c) aid to facilitate the development of certain economic activities or of certain 
economic areas, where such aid does not adversely affect trading conditions to an 
extent contrary to the common interest; 

(d) such other categories of aid as may be specified by the EEA Joint Committee in 
accordance with Part VII. 

Article 62  

1. All existing systems of State aid in the territory of the Contracting Parties, as well 
as any plans to grant or alter State aid, shall be subject to constant review as to their 
compatibility with Article 61. This review shall be carried out: 

(a) as regards the EC Member States, by the EC Commission according to the rules 
laid down in Article 93 of the Treaty establishing the European Economic Community; 

(b) as regards the EFTA States, by the EFTA Surveillance Authority according to the 
rules set out in an agreement between the EFTA States establishing the EFTA 
Surveillance Authority which is entrusted with the powers and functions laid down in 
Protocol 26. 

E.1237 
 
 
 
2. With a view to ensuring a uniform surveillance in the field of State aid throughout 
the territory covered by this Agreement, the EC Commission and the EFTA 
Surveillance Authority shall cooperate in accordance with the provisions set out in 
Protocol 27. 

Annex XV contains specific provisions on State aid. 

Article 63  

Article 64  

1. If one of the surveillance authorities considers that the implementation by the other 
surveillance authority of Articles 61 and 62 of this Agreement and Article 5 of Protocol 
14 is not in conformity with the maintenance of equal conditions of competition within 
the territory covered by this Agreement, exchange of views shall be held within two 
weeks according to the procedure of Protocol 27, paragraph (f). 

If a commonly agreed solution has not been found by the end of this two-week period, 
the competent authority of the affected Contracting Party may immediately adopt 
appropriate interim measures in order to remedy the resulting distortion of 
competition. 

Consultations shall then be held in the EEA Joint Committee with a view to finding a 
commonly acceptable solution. 

If within three months the EEA Joint Committee has not been able to find such a 
solution, and if the practice in question causes, or threatens to cause, distortion of 
competition affecting trade between the Contracting Parties, the interim measures 
may be replaced by definitive measures, strictly necessary to offset the effect of such 
distortion. Priority shall be given to such measures that will least disturb the 
functioning of the EEA. 

2. The provisions of this Article will also apply to State monopolies, which are 
established after the date of signature of the Agreement. 

CHAPTER 3 

OTHER COMMON RULES  

Article 65  

1. Annex XVI contains specific provisions and arrangements concerning procurement 
which, unless otherwise specified, shall apply to all products and to services as 
specified. 

2. Protocol 28 and Annex XVII contain specific provisions and arrangements 
concerning intellectual, industrial and commercial property, which, unless otherwise 
specified, shall apply to all products and services. 

E.1238 
 
 
 
 
 
PROTOCOL 21 

ON THE IMPLEMENTATION OF COMPETITION RULES 
APPLICABLE TO UNDERTAKINGS 

Article 1 

The EFTA Surveillance Authority shall, in an agreement between the EFTA States, be entrusted with equivalent 
powers and similar functions to those of the EC Commission, at the time of the signature of the Agreement, for the 
application of the competition rules of the Treaty establishing the European Economic Community and the Treaty 
establishing the European Coal and Steel Community, enabling the EFTA Surveillance Authority to give effect to 
the principles laid down in Articles 1(2)(e) and 53 to 60 of the Agreement, and in Protocol 25. 

The  Community  shall,  where  necessary,  adopt  the  provisions  giving  effect  to  the  principles  laid  down  in 
Articles 1(2)(e) and 53 to 60 of the Agreement, and in Protocol 25, in order to ensure that the EC Commission has 
equivalent powers and similar functions under this Agreement to those which it has, at the time of the signature of 
the  Agreement,  for  the  application  of  the  competition  rules  of  the  Treaty  establishing  the  European  Economic 
Community and the Treaty establishing the European Coal and Steel Community. 

Article 2 

If,  following  the  procedures  set  out  in  Part  VII  of  the  Agreement,  new  acts  for  the  implementation  of 
Articles 1(2)(e) and 53 to 60 and of Protocol 25, or on amendments of the acts listed in Article 3 of this Protocol 
are  adopted,  corresponding  amendments  shall  be  made  in  the  agreement  setting  up  the  EFTA  Surveillance 
Authority so as to ensure that the EFTA Surveillance Authority will be entrusted simultaneously with equivalent 
powers and similar functions to those of the EC Commission. 

Article 3 

1.  
In addition to the acts listed in Annex XIV, the following acts reflect the powers and functions of the EC 
Commission  for  the  application  of  the  competition  rules  of  the  Treaty  establishing  the  European  Economic 
Community: 

Control of concentrations 

1.{ 1} 

2.{ 2} 

32004 R 0139: Article 4(4) and (5) and Articles 6 to 26 of Council Regulation (EC) No 139/2004 of 20 
January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 
24, 29.1.2004, p. 1). 

32004 R 0802: Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council 
Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 
30.4.2004, p. 1), as corrected by OJ L 172, 6.5.2004, p. 9, as amended by: 

- 

- 

32006  R  1792: Commission Regulation (EC) No 1792/2006 of 23 October 2006 (OJ L 362, 
20.12.2006, p. 1), 

32008  R  1033:  Commission  Regulation  (EC)  No  1033/2008  of  20  October 2008 (OJ L 279, 
22.10.2008, p. 3). 

{1} 

{2} 

Text of point 1 (Council Regulation (EEC) No 4064/89) replaced by Decision No 78/2004 (OJ No L 219, 19.6.2004, p. 13 and EEA 
Supplement No 32, 19.6.2004, p. 1), e.i.f. 9.6.2004, and subsequently replaced by Decision No 79/2004 (OJ No L 219, 19.6.2004, p. 24 
and EEA Supplement No 32, 19.6.2004, p. 10), e.i.f. 1.7.2005. 

This  point,  introduced  by  Decision  No  77/98  (OJ  No  L  172,  8.7.1999,  p.  56  and  EEA  Supplement  No  30,  8.7.1999,  p.  153),  e.i.f. 
1.9.1998, replaces former point 2. See also Decision No 13/97 (OJ No L 182, 10.7.1997, p. 44 and EEA Supplement No 29, 10.7.1997, 
p. 59), e.i.f. 1.4.1997 and subsequently replaced by Decision No 117/2009 ( OJ No L 334, 17.12.2009, p. 20 and EEA Supplement No 
68, 17.12.2009, p. 20) e.i.f. 23.10.2009 

E.2239 
 
 
 
 
 
 
 
 
 
                                                           
3.{ 3} 

General procedural rules 
32003 R 0001: 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), as amended 
by: 

-{ 4} 

-{ 5} 

32004  R  0411:  Council  Regulation  (EC)  No  411/2004  of  26  February  2004  (OJ  L  68, 
6.3.2004, p. 1), 

32006  R  1419:  Council  Regulation  (EC)  No  1419/2006  of  25  September  2006  (OJ  L  269, 
28.9.2006, p. 1). 

4.{ 6} 

32004  R  0773:  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, 27.4.2004, 
p. 18), as amended by: 

-{7} 

-{8} 

32006  R  1792:  Commission  Regulation  (EC)  No  1792/2006  of  23  October 2006 (OJ L 362, 
20.12.2006, p. 1), 
32008  R  0622:  Commission  Regulation  (EC)  No  622/2008  of  30  June  2008  (OJ  L  171, 
1.7.2008, p. 3). 

5. 

[ ] { 9} 

Transport 

[ ] { 10} 

[ ] { 11} 

[ ] { 12} 

[ ] { 13} 

374 R 2988: Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods 
in proceedings and the enforcement of sanctions under the rules of the European Economic Community 
relating to transport and competition (OJ No L 319, 29.11.1974, p. 1), as amended by: 

Text replaced by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 19.5.2005. 

Indent and words “, as amended by:”, added by Decision No 40/2005 (OJ No L 198, 28.7.2005, p. 38 and EEA Supplement No 38, 
28.7.2005, p. 22), e.i.f. 19.5.2005. 

Indent added by Decision No 153/2006 (OJ No L 89, 29.3.2007, p. 25 and EEA Supplement No 15, 29.3.2007, p. 20), e.i.f. 1.8.20076. 

Text  of  point  4  (Commission  Regulation  (EC)  No  3385/94)  replaced  by  Decision  No  178/2004 (OJ No L 133, 26.5.2005, p. 35 and 
EEA Supplement No 26, 26.5.2005, p. 25), e.i.f. 1.7.2005. 

Indent and words “, as amended by:”, added by Decision No 132/2007 (OJ No L 100, 10.4.2008, p. 1 and EEA Supplement No 19, 
10.4.2008, p.1), e.i.f. pending. 

Indent  added  by  Decision  No  118/2009  (OJ  No  L  334,  17.12.2009,  p.  22  and  EEA  Supplement  No  68,  17.12.2009,  p.  22),  e.i.f. 
23.10.2009. 

Text of point 5 (Commission Regulation (EC) No 2842/98) deleted by Decision No 178/2004 (OJ No L 133, 26.5.2005, p. 35 and EEA 
Supplement No 26, 26.5.2005, p. 25), e.i.f. 1.7.2005.  

6. 

7. 

8. 

9. 

10. 

{3} 
{4} 

{5} 
{6} 

{7} 

{8} 

{9} 

{10}  Text  of  point  6  (Council  Regulation  (EEC)  No  141/62)  deleted  by  Decision  No  130/2004  (OJ  No  L  64,  10.3.2005,  p.  57  and  EEA 

Supplement No 12, 10.3.2005, p. 42), e.i.f. 19.5.2005. 

{11}  Text of point 7 (Article 6 and articles 10 to 31 of Council Regulation (EEC) No 1017/68) deleted by Decision No 130/2004 (OJ No L 

64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 19.5.2005. 

{12}  Text of point 8 deleted by Decision No 60/1999 (OJ No L 284, 9.11.2000, p. 38 and EEA Supplement No 50, 9.11.2000, p. 118), e.i.f. 

1.5.1999.   

{13}  Text of point 9 deleted by Decision No 60/1999 (OJ No L 284, 9.11.2000, p. 38 and EEA Supplement No 50, 9.11.2000, p. 118), e.i.f. 

1.5.1999.   

E.2240 
 
 
 
 
 
 
 
 
 
 
 
                                                           
-{ 14} 

32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ L 1, 4.1.2003, 
p. 1). 

11. 

[ ] { 15} 

12. 

[ ] { 16} 

13. 

387 R 3975: 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 No L 374, 
31.12.1987, p. 1), as amended by: 

- 

-{ 17} 

-{ 18} 

-{ 19} 

391  R  1284:  Council  Regulation  (EEC)  No  1284/91  of  14  May  1991  (OJ  No  L 122, 
17.5.1991, p. 2), 

392 R 2410: Council Regulation (EEC) No 2410/92 of 23 July 1992 (OJ No L 240, 24.8.1992, 
p. 18), 

32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ L 1, 4.1.2003, 
p. 1), 

32004  R  0411:  Council  Regulation  (EC)  No  411/2004  of  26  February  2004  (OJ  L  68, 
6.3.2004, p. 1). 

14.{ 20} 

15. 

[ ] { 21} 

16. 

[ ] { 22} 

2. 
In addition to the acts listed in Annex XIV, the following acts reflect the powers and functions of the EC 
Commission  for  the  application  of  the  competition  rules of the Treaty establishing the European Coal and Steel 
Community (ECSC): 

1. 

2. 

3. 

Article (ECSC) 65(2), subparagraphs 3 to 5, (3), (4), subparagraph 2, and (5). 

Article (ECSC) 66(2), subparagraphs 2 to 4, and (4) to (6). 

354  D  7026:  High  Authority  Decision  No  26/54  of  6  May  1954  laying  down  in  implementation  of 
Article 66(4)  of  the  Treaty  a  regulation  concerning  information  to  be  furnished  (OJ  of  the  European 
Coal and Steel Community No 9, 11.5.1954, p. 350/54). 

{14} 

Indent and words “, as amended by:”, added by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 
10.3.2005, p. 42), e.i.f. 19.5.2005. 

{15}  Text of point 11 (Section II of Council Regulation (EEC) No 4056/86) deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 

and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 19.5.2005. 

{16}  Text of point 12 deleted by Decision No 60/1999 (OJ No L 284, 9.11.2000, p. 38 and EEA Supplement No 50, 9.11.2000, p. 118), e.i.f. 

1.5.1999.   

{17} 
{18} 

Indent added by Decision No 3/94 (OJ No L 85, 30.3.1994, p. 65 and EEA Supplement No 1, 30.3.1994, p. 5), e.i.f. 1.7.1994. 

Indent and words “, as amended by:”, added by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 
10.3.2005, p. 42), e.i.f. 19.5.2005. 

{19} 
Indent added by Decision No 40/2005 (OJ No L 198, 28.7.2005, p. 38 and EEA Supplement No 38, 28.7.2005, p. 22), e.i.f. 19.5.2005. 
{20}  Text deleted by Decision No 60/1999 (OJ No L 284, 9.11.2000, p. 38 and EEA Supplement No 50, 9.11.2000, p. 118), e.i.f. 1.5.1999. 
{21}  Text  of  point  15  (Commission  Regulation  (EC)  No  2842/98)  deleted  by  Decision  No  178/2004  (OJ  No  L  133,  26.5.2005,  p.  35  and 

EEA Supplement No 26, 26.5.2005, p. 25), e.i.f. 1.7.2005. 

{22}  Text  of  point  16  (Commission  Regulation  (EC)  No  2843/98)  deleted  by  Decision  No  178/2004  (OJ  No  L  133,  26.5.2005,  p.  35  and 

EEA Supplement No 26, 26.5.2005, p. 25), e.i.f. 1.7.2005. 

E.2241 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
4. 

5. 

378 S 0715: Commission Decision No 715/78/ECSC of 6 April 1978 concerning limitation periods in 
proceedings and the enforcement of sanctions under the Treaty establishing the European Coal and Steel 
Community (OJ No L 94, 8.4.1978, p. 22). 

384  S  0379:  Commission  Decision  No  379/84/ECSC  of  15  February  1984  defining  the  powers  of 
officials  and  agents  of  the  Commission  instructed  to  carry  out  the  checks  provided  for  in  the  ECSC 
Treaty and decisions taken in application thereof (OJ No L 46, 16.2.1984, p. 23). 

Article 4 { 23} 

Article 5 { 24} 

Article 6 { 25} 

Article 7 { 26} 

Article 8 { 27} 

Applications  submitted  to  the  EC  Commission  prior  to  the  date  of  entry  into  force  of  the  Agreement  shall  be 
deemed to comply with the provisions on application under the Agreement. 

The competent surveillance authority pursuant to Article 56 of the Agreement and Article 10 of Protocol 23 may 
require a duly completed form as prescribed for the implementation of the Agreement to be submitted to it within 
such  time  as  it  shall  appoint.  In  that  event,  applications  shall  be  treated  as  properly  made  only  if  the  forms  are 
submitted within the prescribed period and in accordance with the provisions of the Agreement. 

Article 9{ 28} 

Article 10 

The Contracting Parties shall ensure that the measures affording the necessary assistance to officials of the EFTA 
Surveillance Authority and the EC Commission, in order to enable them to make their investigations as foreseen 
under the Agreement, are taken within six months of the entry into force of the Agreement. 

Article 11 

As regards agreements, decisions and concerted practices already in existence at the date of entry into force of the 
Agreement which fall under Article 53(1), the prohibition in Article 53(1) shall not apply where the agreements, 
decisions or practices are modified within six months from the date of entry into force of the Agreement so as to 
fulfil the conditions contained in the block exemptions provided for in Annex XIV. 

{23}  Text of article 4 deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 

19.5.2005. 

{24}  Text of article 5 deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 

19.5.2005. 

{25}  Text of article 6 deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 

19.5.2005. 

{26}  Text of article 7 deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 

19.5.2005. 

{27}  Words “and notifications” deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 

42), e.i.f. 19.5.2005. 

{28}  Text of article 9 deleted by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), e.i.f. 

19.5.2005. 

E.2242 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
3.7.2010 

- EEA AGREEMENT - 

PROTOCOL 21 – p. 5 

Article 12 

As regards agreements, decisions of associations of undertakings and concerted practices already in existence at 
the date of entry into force of the Agreement which fall under Article 53 (1), the prohibition in Article 53(1) shall 
not  apply,  from  the  date  of  entry  into  force  of  the  Agreement,  where  the  agreements,  decisions  or  practices  are 
modified  within  six  months  from  the  date  of  entry  into  force  of  the  Agreement  so  as  not  to  fall  under  the 
prohibition of Article 53(1) any more. 

Article 13 

Agreements,  decisions  of  associations  of  undertakings  and  concerted  practices  which  benefit  from  an individual 
exemption granted under Article 85(3) of the Treaty establishing the European Economic Community before the 
entry into force of the Agreement shall continue to be exempted as regards the provisions of the Agreement, until 
their  date  of  expiry  as  provided  for  in  the  decisions  granting  these  exemptions  or  until  the  EC  Commission 
otherwise decides, whichever date is the earlier. 

Review clause{29} 

By the end of 2005 and at the request of one of the Contracting Parties, the Parties shall review the mechanisms 
for the enforcement of Articles 53 and 54 of the Agreement as well as the co-operation mechanisms of Protocol 23 
to the Agreement, with a view to ensuring the homogenous and effective application of those Articles. The Parties 
shall in particular review the decision of the EEA Joint Committee No 130/2004 of 24 September 2004 in light of 
the  Parties’  experiences  with  the  new  system  of  enforcing  the  competition  rules  and  explore  the  possibility  of 
mirroring  in  the  EEA  the  system  established  in  the  EU  by  Council  Regulation  (EC)  No  1/2003  as  regards  the 
application  of  Articles  81  and  82  of  the  Treaty  by  national  competition  authorities,  the  horizontal  co-operation 
between national competition authorities and the mechanism for ensuring uniform application of the competition 
rules by national authorities. 

___________________ 

{29}  Review  clause  added  by  Decision  No  130/2004  (OJ  No  L  64,  10.3.2005,  p.  57  and  EEA  Supplement  No  12,  10.3.2005, p.  42),  e.i.f. 

19.5.2005. 

E.2243 
                                                          
 
 
 
 
 
 
 
 
 
PROTOCOL 22 

CONCERNING THE DEFINITION OF ‘UNDERTAKING’ 
AND ‘TURNOVER’ (ARTICLE 56) 

For the purposes of the attribution of individual cases pursuant to Article 56 of the Agreement, an ‘undertaking’ 
shall be any entity carrying out activities of a commercial or economic nature. 

Article 1 

Article 2 

‘Turnover’  within  the  meaning  of  Article  56  of  the  Agreement  shall  comprise  the  amounts  derived  by  the 
undertakings concerned, in the territory covered by the Agreement, in the preceding financial year from the sale of 
products and the provision of services falling within the undertaking's ordinary scope of activities after deduction 
of sales rebates and of value-added tax and other taxes directly related to turnover. 

In place of turnover the following shall be used:  

Article 3{1} 

(a) 

for credit institutions and other financial institutions, the sum of the following income items as defined 
in Council Directive 86/635/EEC, after deduction of value added tax and other taxes directly related to 
those items, where appropriate:  

(i) 

interest income and similar income;  

(ii) 

income from securities:  

- 

- 

- 

income from shares and other variable yield securities,  

income from participating interests,  

income from shares in affiliated undertakings;  

(iii) 

commissions receivable;  

(iv) 

net profit on financial operations;  

(v) 

other operating income.  

The  turnover  of  a  credit  or  financial  institution  in  the  territory  covered  by  the  Agreement  shall 
comprise  the  income  items,  as  defined  above,  which  are  received  by  the  branch  or  division  of  that 
institution established in the territory covered by the Agreement;  

(b) 

for  insurance  undertakings,  the  value  of  gross  premiums  written  which  shall  comprise  all  amounts 
received  and  receivable  in  respect  of  insurance  contracts  issued  by  or  on  behalf  of  the  insurance 
undertakings,  including  also  outgoing  reinsurance  premiums,  and  after  deduction  of  taxes  and 
parafiscal contributions or levies charged by reference to the amounts of individual premiums or the 
total volume of premiums; as regards Article 1(2)(b) and (3)(b), (c) and (d) and the final part of Article 
1(2) and (3) of Council Regulation (EC) No 139/2004, gross premiums received from residents in the 
territory covered by the Agreement shall be taken into account. 

{1}   Text of Article 3 replaced by Decision No 78/2004 (OJ No L 219, 16.6.2004, p. 13 and EEA Supplement No 32, 19.6.2004, p. 1), e.i.f. 

9.6.2004. 

E.3244 
 
 
 
 
 
                                                           
3.7.2010 

- EEA AGREEMENT - 

PROTOCOL 22 – p. 2 

1. 

In  derogation  from  the  definition  of  the  turnover  relevant  for  the  application  of  Article 56  of  the 
Agreement, as contained in Article 2 of this Protocol, the relevant turnover shall be constituted: 

Article 4 

(a) 

(b) 

as regards agreements, decisions of associations of undertakings and concerted practices related to 
distribution and supply arrangements between non-competing undertakings, of the amounts derived 
from the sale of goods or the provision of services which are the subject matter of the agreements, 
decisions or concerted practices, and from the other goods or services which are considered by users 
to be equivalent in view of their characteristics, price and intended use; 

as regards agreements, decisions of associations of undertakings and concerted practices related to 
arrangements  on  transfer  of  technology  between  non-competing  undertakings,  of  the  amounts 
derived from the sale of goods or the provision of services which result from the technology which 
is the subject matter of the agreements, decisions or concerted practices, and of the amounts derived 
from the sale of those goods or the provision of those services which that technology is designed to 
improve or replace. 

2. 

However,  where  at  the  time  of  the  coming  into existence of arrangements as described in paragraph 1(a) 
and  (b)  turnover  as  regards  the  sale  of  goods  or  the  provision  of  services  is  not  in  evidence,  the  general 
provision as contained in Article 2 shall apply. 

Article 5 

1.  Where individual cases concern products falling within the scope of application of Protocol 25, the relevant 

turnover for the attribution of those cases shall be the turnover achieved in these products. 

2.  Where individual cases concern products falling within the scope of application of Protocol 25 as well as 
products  or  services  falling  within  the  scope  of  application  of  Articles 53  and  54  of  the  Agreement,  the 
relevant  turnover  is  determined  by  taking  into  account  all  the  products  and  services  as  provided  for  in 
Article 2. 

E.3245 
 
 
 
 
 
 
 
PROTOCOL 23 { 1} 

CONCERNING THE COOPERATION BETWEEN 

THE SURVEILLANCE AUTHORITIES (ARTICLE 58) 

GENERAL PRINCIPLES 

Article 1 

The  EFTA  Surveillance  Authority  and  the  EC  Commission  shall  exchange  information  and  consult 
each other on general policy issues at the request of either of the surveillance authorities. 

The  EFTA  Surveillance  Authority  and  the  EC  Commission,  in  accordance  with  their  internal  rules, 
respecting  Article  56  of  the  Agreement  and  Protocol  22  and  the  autonomy  of  both  sides  in  their 
decisions, shall cooperate in the handling of individual cases falling under Article 56(1)(b) and (c), (2), 
second sentence and (3), as provided for in the provisions below.  

For the purposes of this Protocol, the term 'territory of a surveillance authority' shall mean for the EC 
Commission  the  territory  of  the  EC  Member  States  to  which  the  Treaty  establishing  the  European 
Community applies, upon the terms laid down in that Treaty, and for the EFTA Surveillance Authority 
the territories of the EFTA States to which the Agreement applies.  

{ 2}Article 1A 

In  the  interests  of  homogeneous  interpretation  by  the  EFTA  Surveillance  Authority  and  the  EC 
Commission of Articles 53 and 54 of the Agreement and of Articles 81 and 82 of the Treaty, the EFTA 
Surveillance  Authority  and  the  competent  authorities  of  the  EFTA  States  may  also  be  allowed  to 
participate  in  meetings  of  the  network  of  public  authorities  referred  to  in  recital  15  of  Council 
Regulation  (EC)  No 1/2003  for  the  purposes  of  discussion  of  general  policy  issues  only.  The  EFTA 
Surveillance Authority, the EC Commission and the competent authorities of the EFTA states and of 
the  EC  Member  States  shall  have  the  power  to  make  available  all  information  necessary  for  the 
purpose of such general policy discussion in that network. Information made available in this context 
shall not be used for enforcement purposes. This participation shall be without prejudice to rights of 
participation  of  the  EFTA  States  and  the  EFTA  Surveillance  Authority  granted  under  the  EEA 
Agreement. 

THE INITIAL PHASE OF THE PROCEEDINGS 

Article 2 

In  cases  falling  under  Article  56(1)(b)  and  (c),  (2),  second  sentence  and  (3)  of  the  Agreement,  the 
EFTA Surveillance Authority and the EC Commission shall without undue delay forward to each other 
complaints  to  the  extent  that  it  is  not  apparent  that  these  have  been  addressed  to  both  surveillance 
authorities. They shall also inform each other when opening ex officio procedures. 

Text of protocol 23 replaced by Decision No 130/2004 (OJ No L 64, 10.3.2005, p. 57 and EEA Supplement No 12, 10.3.2005, p. 42), 
e.i.f. 19.5.2005. 

1. 

2. 

3. 

1. 

{1} 

{2}  Article inserted by Decision No 147/2007 (OJ No L 100, 10.4.2008, p. 99 and EEA Supplement No 19, 10.4.2008, p.96), e.i.f. 

27.10.2007. 

E.4246 
 
                                                           
2. 

3. 

1. 

2. 

3. 

The EFTA Surveillance Authority and the EC Commission shall without undue delay forward to each 
other information received from the national competition authorities within their respective territories 
concerning the commencement of the first formal investigative measure in cases falling under Article 
56 (1)(b) and (c), (2), second sentence and (3) of the Agreement. 

The surveillance authority which has received information as provided for in the first paragraph may 
present its comments thereon within 30 working days of its receipt.  

Article 3 

The competent surveillance authority shall, in cases falling under Article 56(1)(b) and (c), (2), second 
sentence and (3) of the Agreement, consult the other surveillance authority when: 

- 

- 

- 

addressing  to  the  undertakings  or  associations  of  undertakings  concerned  its  statement  of 
objections,  

publishing  its  intention  to  adopt  a  decision  declaring  Article  53  or  54  of  the  Agreement  not 
applicable, or 

publishing its intention to adopt a decision making commitments offered by the undertakings 
binding on the undertakings. 

The  other  surveillance  authority  may  deliver  its  comments  within  the  time  limits  set  out  in  the 
abovementioned publication or statement of objections. 

Observations  received  from  the  undertakings  concerned  or  third  parties  shall  be  transmitted  to  the 
other surveillance authority.  

In  cases  falling  under  Article  56(1)(b)  and  (c),  (2),  second  sentence  and  (3)  of  the  Agreement,  the  competent 
surveillance authority shall transmit to the other surveillance authority the administrative letters by which a file is 
closed or a complaint rejected. 

Article 4 

Article 5 

In  cases  falling  under  Article  56(1)(b)  and  (c),  (2),  second  sentence  and  (3)  of  the  Agreement,  the  competent 
surveillance authority shall invite the other surveillance authority to be represented at hearings of the undertakings 
concerned.  The  invitation  shall  also  extend  to  the  States  falling  within  the  competence  of  the  other  surveillance 
authority.  

ADVISORY COMMITTEES 

Article 6 

1. 

2. 

3. 

In  cases  falling  under  Article  56  (1)(b)  and  (c),  (2),  second  sentence  and  (3)  of  the  Agreement,  the 
competent surveillance authority shall, in due time, inform the other surveillance authority of the date 
of the meeting of the Advisory Committee and transmit the relevant documentation.  

All documents forwarded for that purpose from the other surveillance authority shall be presented to 
the  Advisory  Committee  of  the  surveillance  authority  which  is  competent  to  decide  on  a  case  in 
accordance with Article 56 together with the material sent out by that surveillance authority.  

Each surveillance authority and the States falling within its competence shall be entitled to be present 
in the Advisory Committees of the other surveillance authority and to express their views therein; they 
shall not have, however, the right to vote.  

E.4247 
4. 

Consultations may also take place by written procedure. However, if the surveillance authority which 
is  not  competent  to  decide  on  a  case  in  accordance  with  Article  56  so  requests,  the  competent 
surveillance authority shall convene a meeting.  

REQUEST FOR DOCUMENTS AND THE RIGHT 

TO MAKE OBSERVATIONS  

Article 7 

The  surveillance  authority  which  is  not  competent  to  decide  on  a  case  in  accordance  with  Article  56  of  the 
Agreement may request from the other surveillance authority at all stages of the proceedings copies of the most 
important documents concerning cases falling under Article 56(1)(b) and (c), (2) second sentence and (3) of the 
Agreement, and may furthermore, before a final decision is taken, make any observations it considers appropriate. 

E.4248 
 
1. 

2. 

3. 

4. 

5. 

6. 

1. 

2. 

3. 

4. 

ADMINISTRATIVE ASSISTANCE  

Article 8 

When  the  competent  surveillance  authority,  as  defined  in  Article  56  of  the  Agreement,  by  simple 
request  or  by  decision  requires  an  undertaking  or  association  of  undertakings  located  within  the 
territory of the other surveillance authority to supply information, it shall at the same time forward a 
copy of the request or decision to the other surveillance authority. 

At the request of the competent surveillance authority, as defined in Article 56 of the Agreement, the 
other surveillance authority shall, in accordance with its internal rules, undertake inspections within its 
territory in cases where the competent surveillance authority so requesting considers it to be necessary.  

The competent surveillance authority is entitled to be represented and take an active part in inspections 
carried out by the other surveillance authority in respect of paragraph 2. 

All  information  obtained  during  such  inspections  on  request  shall  be  transmitted  to  the  surveillance 
authority which requested the inspections immediately after their finalization.  

Where the competent surveillance authority, in cases falling under Article 56(1)(b) and (c), (2), second 
sentence and (3) of the Agreement, carries out inspections within its territory, it shall inform the other 
surveillance  authority  of  the  fact  that  such  inspections  have  taken  place  and,  on  request,  transmit  to 
that authority the relevant results of the inspections.  

When  the  competent  surveillance  authority  as  defined  in  Article  56  of  the  Agreement  interviews  a 
consenting natural or legal person in the territory of the other surveillance authority, the latter shall be 
informed  thereof.  The  surveillance  authority  which  is  not  competent  may  be  present  during  such  an 
interview,  as  well  as  officials  from  the  competition  authority  on  whose  territory  the  interviews  are 
conducted. 

EXCHANGE AND USE OF INFORMATION  

Article 9 

For  the  purpose  of  applying  Articles  53  and  54  of  the  Agreement,  the  EFTA  Surveillance  Authority 
and  the  EC  Commission  shall  have  the  power  to  provide  one  another  with  and  use  in  evidence  any 
matter of fact or of law, including confidential information.  

Information  acquired  or  exchanged  pursuant  to  this  Protocol  shall  only  be  used  in  evidence  for  the 
purpose of procedures under Articles 53 and 54 of the Agreement and in respect of the subject matter 
for which it was collected.  

Where the information referred to in Article 2 (1) and (2) concerns a case which has been initiated as a 
result  of  an  application  for  leniency,  that  information  cannot  be  used  by  the  receiving  surveillance 
authority  as  the  basis  for  starting  an  inspection  on  its  own  behalf.  This  is  without  prejudice  to  any 
power  of  the  surveillance  authority  to  open  an  inspection  on  the  basis  of  information  received  from 
other sources. 

Save  as  provided  under  paragraph  5,  information  voluntarily  submitted  by  a  leniency  applicant  will 
only be transmitted to the other surveillance authority with the consent of the applicant. Similarly other 
information that has been obtained during or following an inspection or by means of or following any 
other fact-finding measures which, in each case, could not have been carried out except as a result of 
the leniency application will only be transmitted to the other surveillance authority if the applicant has 
consented  to  the  transmission  to  that  authority  of  information  it  has  voluntarily  submitted  in  its 
application  for  leniency.  Once  the  leniency  applicant  has  given  consent  to  the  transmission  of 
information to the other surveillance authority, that consent may not be withdrawn. This paragraph is 

E.4249 
 
without  prejudice,  however,  to  the  responsibility  of  each  applicant  to  file  leniency  applications  to 
whichever authorities it may consider appropriate. 

5. 

Notwithstanding  paragraph  4,  the  consent  of  the  applicant  for  the  transmission  of  information  to  the 
other surveillance authority is not required in any of the following circumstances: 

a) 

b) 

c) 

no consent is required where the receiving surveillance authority has also received a leniency 
application  relating  to  the  same  infringement  from  the  same  applicant  as  the  transmitting 
surveillance authority, provided that at the time the information is transmitted it is not open to 
the applicant to withdraw the information which it has submitted to that receiving surveillance 
authority; 

no  consent  is  required  where  the  receiving  surveillance  authority  has  provided  a  written 
commitment  that  neither  the  information  transmitted  to  it  nor  any  other  information  it  may 
obtain  following  the  date  and  time  of  transmission  as  noted  by  the  transmitting  surveillance 
authority, will be used by it or by any other authority to which the information is subsequently 
transmitted  to  impose  sanctions  on  the  leniency  applicant  or  on  any  other  legal  or  natural 
person covered by the favourable treatment offered by the transmitting authority as a result of 
the  application  made  by  the  applicant  under  its  leniency  programme  or  on  any  employee  or 
former employee of the leniency applicant or of any of the aforementioned persons. A copy of 
the receiving authority’s written commitment will be provided to the applicant. 

in the case of information collected by a surveillance authority under Article 8(2) at the request 
of  the  surveillance  authority  to  whom  the  leniency  application  was  made,  no  consent  is 
required for the transmission of such information to, and its use by, the surveillance authority 
to whom the application was made. 

PROFESSIONAL SECRECY 

Article 10 

1. 

2. 

3. 

For the purpose of carrying out the tasks entrusted to it by this Protocol, the EC Commission and the 
EFTA  Surveillance  Authority  can  forward  to  the  States  falling  within  their  respective  territories  all 
information acquired or exchanged by them pursuant to this Protocol. 

The EC Commission, the EFTA Surveillance Authority, the competent authorities of the EC Member 
States and the EFTA States, their officials, servants and other persons working under the supervision 
of these authorities as well as officials and servants of other authorities of the States shall not disclose 
information  acquired  or  exchanged  by  them  as  a  result of the application of this Protocol and of the 
kind covered by the obligation of professional secrecy. 

Rules on professional secrecy and restricted use of information provided for in the Agreement or in the 
legislation  of  the  Contracting  Parties  shall  not  prevent  exchange  of  information  as  set  out  in  this 
Protocol. 

ACCESS TO THE FILE{3} 

Article 10A 

When a  surveillance  authority  grants  access  to  the  file  to  the  parties  to  whom it  has  addressed  a  statement  of 
objections, the right of access to the file shall not extend to internal documents of the other surveillance authority 
or  of  the  competition  authorities  of  the  EC  Member  States  and  the  EFTA  States.  The  right  of  access  to  the  file 
shall also not extend to correspondence between the surveillance authorities, between a surveillance authority and 
the competition authorities of the EC Member States or EFTA States or between the competition authorities of the 

{3}   Heading and article 10A inserted by Decision No 178/2004 (OJ No L 133, 26.5.2005, p. 35 and EEA Supplement No 26, 26.5.2005, p. 

25), e.i.f. 1.7.2005. 

E.4250 
 
                                                           
3.7.2010 

- EEA AGREEMENT - 

PROTOCOL 23 – p. 6 

EC  Member  States or  EFTA  States  where  such  correspondence  is  contained  in  the  file  of  the  competent 
surveillance authority. 

COMPLAINTS AND TRANSFERRAL OF CASES 

Article 11 

1. 

2. 

3. 

Complaints  may  be  addressed  to  either  surveillance  authority.  Complaints  addressed  to  the 
surveillance authority which, pursuant to Article 56, is not competent to decide on a given case shall 
be transferred without delay to the competent surveillance authority.  

If,  in  the  preparation  or  initiation  of  ex  officio  proceedings,  it  becomes  apparent  that  the  other 
surveillance  authority  is  competent  to  decide  on  a  case  in  accordance  with  Article  56  of  the 
Agreement, this case shall be transferred to the competent surveillance authority. 

Once a case is transferred to the other surveillance authority as provided for in paragraphs 1 and 2, the 
case may not be transferred back. A case may not be transferred after  

- 

- 

- 

the  statement  of  objections  has  been  sent  to  the  undertakings  or  associations  of  undertakings 
concerned,  

a letter has been sent to the complainant informing him that there are insufficient grounds for 
pursuing the complaint,  

the publication of the intention to adopt a decision declaring Article 53 or 54 not applicable, or 
the  publication  of  the  intention  to  adopt  a  decision  making  commitments  offered  by  the 
undertakings binding on the undertakings.  

LANGUAGES 

Article 12 

Any natural or legal person shall be entitled to address and be addressed by the EFTA Surveillance Authority and 
the EC Commission in an official language of an EFTA State or the European Community which they choose as 
regards complaints. This shall also cover all instances of a proceeding, whether it be opened following a complaint 
or ex officio by the competent surveillance authority. 

E.4251 
 
 
 
252 
 I.F INTERNATIONAL 
COOPERATION 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Overview of bilateral and multilateral agreements 

Bilateral relations on competition issues 

The European Commission has engaged actively in cooperation with competition authorities 
of  many  countries  outside  the  EU.  Cooperation  with  some  of  them  is  based  on  bilateral 
agreements dedicated entirely to competition (the so-called "dedicated agreements"). In other 
cases,  competition  provisions  are  included  as  part  of  wider  general  agreements  such  as  free 
Trade Agreements, Partnership and Cooperation Agreements, Association Agreements, etc. 

The full text of the agreement as published in the Official Journal of the European Union (OJ) 
is 
site 
on 
(http://ec.europa.eu/competition/international/bilateral/index.html). 

Competition  Web 

available 

provided 

where 

the 

Overview of dedicated agreements: 

  Agreement  between  the  Government  of  the  United  States  of  America  and  the 
Commission  of  the  European  Communities  regarding  the  application  of  their 
competition laws (1995) 

  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 (1998) 

  Agreement  between  the  European  Communities  and  the  Government  of  Canada 

regarding the application of their competition laws (1999) 

  Agreement between the European Community and the Government of Japan concerning 

cooperation on anti-competitive activities (2003) 

  Terms  of  Reference  of  the  EU-China  Competition  Policy  Dialogue  (Ministry  of 
Commerce  of  China  and  the  Directorate  General  for  Competition  of  European 
Commission) (2004) 

  Memorandum  of  Understanding  on  Cooperation  in  the  area  of  anti-monopoly  law 
between on the one side The State Administration for Industry and Commerce and The 
National Development and Reform Commission of The People’s Republic of China and 
on  the  other  side    The  European  Commission  (Directorate-General  for  Competition  ) 
(2012) 

  Agreement between the EU and the Republic of Korea concerning cooperation on anti-

competitive activities (2009) 

  Memorandum  of  Understanding  on  Cooperation  between  Ministry  of  Justice  and  the 
heads of the Competition Authorities of Brazil and the Competition Directorate-General 
of the European Commission (2009) 

F254  Memorandum  of  Understanding  on  Cooperation  between  Federal  Anti-Monopoly 
Service  of  the  Russian  Federation  and  the  Competition  Directorate-General  of  the 
European (2011) 

Overview of general agreements containing competition provisions: 

  Agreement between the European Economic Community and the Swiss Confederation 

(1972) 

  Agreement  between  the  European  Community  and  the  Swiss  Confederation  on  Air 

Transport (2002) 

  Annex  to  the  Framework  Agreement  for  cooperation  between  the  European  Economic 
Community  and  the  Federative  Republic  of  Brazil  -  Exchange  of  letters  between  the 
European  Economic  Community  and  the  Federative  Republic  of  Brazil  on  maritime 
transport (1995) 

  Association Agreement with Turkey (1995) 

  Agreement  between  the  European  Coal  and  Steel  Community  and  the  Republic  of 

Turkey (1996) 

  Agreement between the European Community and the Government of Denmark and the 

Home Government of the Faroe Islands (1996) 

  Economic  Partnership,  Political  Coordination  and  Cooperation  Agreement  between  the 
European Community and its Member States and the United Mexican States (1997) 

  Decision No 2/2000 of the EC-Mexico Joint Council- Joint Declarations (2000) 

  Euro-Mediterranean  Interim  Association  Agreement  on  trade  and  cooperation  between 
the  European  Community  and  the  Palestine  Liberation  Organisation  (PLO)  for  the 
benefit of the Palestinian Authority of the West Bank and the Gaza Strip (1997) 

  Euro-Mediterranean Agreement establishing an association between the EU and Algeria 
(2005), between the EC and the Arab Republic of Egypt (2004), between the EC and 
the  State  of  Israel  (2005),  between  the  EC  and  the  Hashemite  Kingdom  of  Jordan 
(1997), between the EC and the Republic of Lebanon (2006), between the EC and the 
Republic of Morocco (2000), between the EC and the Republic of Tunisia (1998) 

  Agreement on Trade, Development and Cooperation between the European Community 

and its Member States and the Republic of South Africa (1999) 

  Cotonou Agreement (ACP countries, 2000) 

F255  Partnership  and  Cooperation  Agreement  (with  Armenia  in  2005,  with  the  Republic  of 

Moldova in 1998, with the Russian Federation in 1997, with Ukraine in 1998) 

  Stabilisation and Association Agreement (with Albania in 2006, with Croatia in 2004, 
with Former Yugoslav Republic of Macedonia in 2004, with Montenegro in 2007) 

  Agreement  establishing  an  association  between  the  European  Community  and  its 

Member States and the Republic of Chile (2002) 

  Council Decision no. 1/2004 of the EU-Morocco Association Council of 19 April 2004 
adopting the necessary rules for the implementation of the competition rules (2004) 

  Economic partnership agreement with the CARIFORUM States (2008) 

  EU-Korea Free Trade Agreement (2011)  

  Agreement on the European Economic Area (1993) 

Multilateral relations on competition policy 

For many years, the Commission has participated actively in the work of international forums 
dealing with competition policy issues. The main organisations concerned are: 

• 

International Competition Network (ICN) 

•  Organisation  of  Economic  Cooperation  and  Development  (OECD).  DG  Competition 
submissions  to  the  OECD  Round  Tables  are  available  on  the  Competition  Web  site 
(http://ec.europa.eu/competition/international/multilateral/oecd_submissions.html). 

•  United Nations Conference on Trade and Development (UNCTAD) 

•  World Trade Organisation (WTO) 

F256 
I.G OTHERS 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 
Competition DG 

DG COMPETITION 

BEST PRACTICES FOR THE SUBMISSION OF 
ECONOMIC EVIDENCE AND DATA 
COLLECTION IN CASES CONCERNING 
THE APPLICATION OF ARTICLES 101 AND 
102 TFEU AND IN MERGER CASES 

STAFF WORKING PAPER 

G.1258 
 
 
 
 
 
 
1 

SCOPE AND PURPOSE ............................................................................................ 3 

2  BEST 

PRACTICES 

REGARDING 

THE 

PRESENTATION 
SUBMISSIONS........................................................................................................... 5 

ECONOMIC 

AND 

OF 

CONTENT  AND 
ECONOMETRIC 

2.1  Formulating the relevant question ..................................................................... 6 

2.2  Data relevance and reliability............................................................................ 7 

2.3  Choice of empirical methodology ..................................................................... 8 

2.4  Reporting and interpreting the results ............................................................. 10 

2.5  Robustness  (non  implemented  proposal:  place  robustness  before 

reporting) ......................................................................................................... 12 

2.6  Further recommendations................................................................................ 12 

3  BEST  PRACTICES  ON  RESPONDING  TO  REQUESTS  FOR 

QUANTITATIVE DATA ......................................................................................... 13 

3.1  General motivation for Data Requests ............................................................ 14 

3.2  Common elements of a Data Request ............................................................. 15 

3.3  Main criteria to consider when responding to a Data Request........................ 16 

3.3.1  Completeness..................................................................................... 16 

3.3.2  Correctness ........................................................................................ 17 

3.3.3 

Timely submission............................................................................. 17 

3.4  Other Recommendations ................................................................................. 18 

3.4.1  Cooperation in good-faith.................................................................. 18 

3.4.2 

Early consultation with the Commission to inform about what 
type of data is available ..................................................................... 18 

3.4.3  Consultation on a Draft Data Requests and data samples ................. 19 

3.4.4 

Transparency  regarding  data  collection,  formatting  and 
submission ......................................................................................... 19 

3.4.5  Direct access...................................................................................... 20 

G.1259 
 
1  SCOPE AND PURPOSE 

1.  Economic analysis plays a central role in competition enforcement. Economics as a 
discipline  provides  a  framework  to  think  about  the  way  in  which  each  particular 
market operates and how competitive interactions take place.  This framework further 
allows formulating the possible consequences of the practices under review, whether 
a merger, an agreement between firms, or single firm conduct.  In certain cases it may 
also provide tools to identify the direction and magnitude of these effects empirically, 
if appropriate and relevant. In a number of cases, economic analysis may involve the 
production,  handling  and  assessment  of  voluminous  sets  of  quantitative  data, 
including, when appropriate, the development of econometric models1. 

2.  Economic analysis needs to be framed in such a way that the Commission and the EU 
Courts  can  understand  and  evaluate  its  relevance  and  significance.  As  an 
administrative  authority  the  Commission  is  required  to  take  a  decision  within  an 
appropriate or sometimes a statutory time limit. It is therefore necessary to: (i) ensure 
that economic analysis meets certain minimum technical standards at the outset, (ii) 
facilitate the effective gathering and exchange of facts and evidence, in particular any 
underlying  quantitative  data,  and  (iii)  use  in  an  effective  way  reliable  and  relevant 
evidence  obtained  during  the  administrative  procedure,  whether  quantitative  or 
qualitative. 

3.  In  order  to  determine  the  relevance  and  significance  of  an  economic  analysis  for  a 
particular  case,  it  is  first  necessary  to  assess  its  intrinsic  quality  from  a  technical 
perspective,  i.e.  whether  it  has  been  generated  and  presented  in  a  way  that  meets 
adequate  technical  requirements  prevalent  in  the  profession.  This  involves,  in 
particular, an evaluation of whether the hypothesis to be tested is formulated without 
ambiguity  and  clearly  related  to  facts,  whether  the  assumptions  of  the  economic 
model  are  consistent  with  the  institutional  features  and  other  relevant  facts  of  the 
industry,  whether  economic  models  are  well  established  in  the  relevant  literature, 
whether the empirical methods and the data are appropriate, whether the results are 
properly  interpreted  and  robust  and  whether  counterarguments  have  been  given 
adequate consideration.  

4.  Second,  one  must  assess  the  congruence  and  consistency  of  the  economic  analysis 
with  other  pieces  of  quantitative  and  qualitative  evidence  (such  as  customer 
responses, or documentary evidence)2.    

1   The assessment of mergers and potential infringements "by effect" often requires a complex economic 

assessment by the Commission, as well as the use of statistical or econometric analysis.  

2   Economic models or econometric analysis, as is the case with other types of evidence will rarely, if 
ever, prove conclusive by themselves. The Commission can always take into account different items 
of  evidence.  The  General  Court  has  held  that  “It  is  the  Commission’s  task  to  make  an  overall 
assessment of what is shown by the set of indicative factors used to evaluate the competitive situation. 

G.1260 
                                                 
5.  The present document formulates best practices concerning the generation as well as 
the presentation of relevant economic and empirical evidence that may be taken into 
account  in  the  assessment  of  a  case  concerning  the  application  of  Articles  101  and 
102  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU)3  or  merger 
case4. These Best Practices are organised along two themes. 

i)  First  of  all,  it  provides  recommendations  regarding  the  content  and  presentation 
of economic or econometric analysis.  This is meant to facilitate its assessment and 
the replication of any empirical results by the Commission and/or other parties. 

ii)  Second, the document provides guidance to respond to Commission requests for 
quantitative data5 to ensure that timely and relevant input for the investigation can be 
provided. 

6.  The desire to ensure transparency and accountability, these Best Practices apply to all 
parties  involved  in  proceedings  concerning  the  application  of  Articles  101  and  102 
TFEU  and  mergers,  that  is  the  parties  to  the  case  and  interested  third  parties 
(including complainants), as well as the Commission.  

7.  These Best Practices do not create any new rights or obligations, nor alter the rights 
and obligations which arise from the TFEU, secondary EU law and the case-law of 
the Court of Justice of the European Union. The Best Practices also do not alter the 
Commission's interpretative notices and established decisional practice. 

8.  The  principles  contained  here  may  be  further  developed  and  refined  by  the 
Commission  in  individual  cases  when  appropriate  in  light  of  future  developments. 
The  specificity  of  an  individual  case  or  particular  circumstances  may  require  an 
adaptation  of,  or  deviation  from,  these  Best  Practices.  The  recommendations 
contained in this document should be interpreted in light of procedural and resource 
constraints. 

It is possible, in that regard, for certain items of evidence to be prioritised and other evidence to be 
discounted. That examination and the associated reasoning are subject to a review of legality which 
the  Court  carries  out  in  relation  to  Commission  decisions  on  concentrations”.  See  Case  T-342/07, 
Ryanair v Commission, [2010] paragraph 136  

 Proceedings before the European Commission concerning Articles101 and 102 TFEU, in accordance 
with 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, as amended). 

Proceedings  under  the  Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of 
concentrations between undertakings (OJ L 24, 29.1.2004, p. 1). 

3  

4  

5   Quantitative  data  means,  generally,  observations  or  measurements,  expressed  as  numbers.  For  the 
purposes  of  these  Best  Practices,  this  concept  is  used  to  refer  to  large  sets  of  quantitative  data 
submitted and/or obtained for the purposes of the conduct of an assessment of an economic (and often 
econometric) nature. 

G.1261                                                                                                                                                 
2  BEST PRACTICES REGARDING THE CONTENT AND PRESENTATION OF ECONOMIC AND 

ECONOMETRIC SUBMISSIONS 

9.  Economic reasoning is employed in competition cases notably in order to develop in 
a  consistent  manner  or,  conversely,  to  rebut  because  of  its  inconsistency,  the 
economic evidence and arguments in a given case.  

10. Any economic model which explicitly or implicitly supports a theoretical claim must 
rely  on  assumptions  that  are  consistent  with  the  facts  of  the  industry  under 
consideration.  These assumptions should be carefully laid out and the sensitivity of 
its predictions to changes to the assumptions should be made explicit. While it is not 
necessary  for  economic  submissions  to  actually  formalize  verbal  arguments  in  a 
model, this will sometimes be helpful to clearly spell out the assumptions underlying 
an  argument,  to  check  its  logic  consistency,  to  assess  effects  of  a  high  degree  of 
complexity, or to use the model as the theoretical basis for an empirical estimation6. 

11. An  economic  analysis  may  support  an  assessment  of  the  anticompetitive  or  pro-
competitive effects of a merger. Such analysis usually involves a comparison of the 
actual  or  likely  future  situation  in  the  relevant  market  with  the  absence  of  the 
proposed merger. 

12. By their very nature, economic models and arguments are based on simplifications of 
reality.  It  is  therefore  normally  not  sufficient  to  disprove  a  particular  argument  or 
model, to point out that it is "based on seemingly unrealistic assumptions". It is also 
necessary to explicitly identify which aspects of reality should be better reflected in 
the model or argumentation, and to indicate why this would alter the conclusions.  

13. In many cases, economic theory is used to develop a testable hypothesis that is later 
checked against the data. In that case, the economic analysis makes predictions about 
reality  that  can  be  tested  by  observations  and  potentially  rejected  or  verified.  Thus, 
whenever  feasible,  an  economic  model  should  be  accompanied  by  an  appropriate 
empirical  model  -  i.e.  a  model  which  is  capable  of  testing  the  relevant  hypotheses 
given the data available.    

14. Very often simple but well focused measurement of economic variables (prices, cost, 
margins, capacity constraints, R&D intensity) will provide important insights into the 
significance  of  particular  factors.  Occasionally,  more  advanced  statistical  and 
econometric  techniques  may  provide  more  useful  evidence7.  In  any  case,  otherwise 

6   

If an economic submission is well-reasoned, then the fact that a particular argument is "theoretical" or 
"general" is often a strength rather than a weakness of the submission. This is the case when one has 
deduced a general conclusion (which holds irrespective of the precise magnitudes of the parameters of 
the analysis) from a set of assumptions that are considered consistent with the facts of the case.  For 
instance, an economic submission may try to substantiate that irrespective of the size or existence of 
efficiencies, a particular conduct cannot possibly harm consumers.  

7   For  instance,  an  econometric  analysis  of  the  extent  to  which  prices  of  an  undertaking  have  been 
affected  by  the  observed  entry  of  a  competitor  may  provide  evidence  of  the  competitive  constraint 
exercised by that entrant. In turn this could provide insights with respect to the likely degree of harm, 
that  would  result  if  an  incumbent  dominant  undertaking  were  to  engage  in  practices  resulting  in 
anticompetitive foreclosure in that or related markets. 

G.1262                                                 
valid economic analysis may not always produce unambiguous results when applied 
to  the  facts  of  a  competition  or  merger  case.  Contradictions  may  result  from 
differences in the data, differences in the approach to economic modelling or in the 
assumptions used to interpret the data or differences in the empirical techniques and 
methodologies. 

15. The 

following  sections  provide  practical  advice  on 

the  generation  and 
communication  of  economic  and  econometric  analyses.  The  goal  of 
these 
recommendations is to ensure that every economic or econometric analysis developed 
by  any  party  involved  submitted  for  consideration  in  a  case  states  to  the  largest 
possible  extent  the  economic  reasoning  and  the  observations  on  which  it  relies  and 
explains  the  relevance  of  its  findings  and  the  robustness  of  the  results.  This  should 
allow the Commission and all interested parties to scrutinise the economic evidence 
submitted  during  the  proceedings  so  as  to  avoid  that  empirical  results  that  are  not 
robust  be  disguised  as  such  and  key  assumptions  in  theoretical  reasoning  be 
presented as innocuous. Economic or econometric analysis that does not strictly meet 
the standards set out in these Best Practices will normally be attached less probative 
value than otherwise and may not be taken into consideration. 

2.1  Formulating the relevant question 

16. The first step in any economic analysis, theoretical or empirical, is the formulation of 

a question that is relevant to the case at hand. 

17. The question of interest should be: 

(a) precisely formulated so that its answer can be interpreted without ambiguity, 

(b)  properly  motivated  taking  into  account  the  nature  of  the  competition  or  merger 
case,  the  institutional  features  of  the  markets  under  consideration  and  the  relevant 
economic theory8.  

18. An  economic  or  econometric  report  should  explicitly  formulate  not  only  the 
hypothesis to be tested (the “null hypothesis”9) but also the alternative hypothesis (or 
hypotheses)  under  consideration,  so  that  rejection  of  the  null  hypothesis  can  be 
properly interpreted10.  

8   Occasionally the parties might submit a literature survey or review regarding an economic question of 
particular  relevance  for  the  case.    A  literature  review  may  be  useful  when  it  is  accompanied  by  an 
explanation on the merits and shortcomings, of the existing studies and explains how the party's own  
reasoning or analysis relates to past research, academic or otherwise. 

9   The  null  hypothesis  is  generally  that  which  is  presumed  to  be  true  initially.  A  null  hypothesis  is  a 

hypothesis set up to be nullified or refuted in order to support an alternative hypothesis.  

10   For  example,  consider  an  empirical  project  aimed  at  testing  whether  certain  conduct  would  lead  to 
higher  prices.  One  could  define  as  the  null  hypothesis  that  prices  did  not  increase  in  which  case  a 
rejection  of  the  null  hypothesis  would  imply  that  the  agreement  had  a  positive  price  impact. 
Alternatively, one could have defined as the null hypothesis that prices did not change as a result of 

G.1263 
 
 
                                                 
19. Sometimes, an empirical exercise which is being carried out may provide only partial 
verification  of  an  accompanying  economic  model  or  theory  of  competitive  effects. 
This evidence may be nonetheless useful but should be properly qualified11.   

2.2  Data relevance and reliability  

20. The  intrinsic  quality  of  an  economic  theory  depends  on  the  extent  to  which  the 
underlying assumptions match the corresponding economic facts. Likewise, empirical 
analysis depends on the relevance and the reliability of the underlying data. 

21. First,  it  is  necessary  to  identify  the  relevant  facts  to  validate  the  theoretical 
assumptions  and  employ  data  which  is  appropriate  to  respond  to  the  empirical 
question under investigation12.  

incomplete  or  otherwise 

imperfect.  Hence,  parties  and/or 

22. Second,  not  all  facts  can  be  observed  or  measured  with  high  accuracy  and  most 
datasets  are 
the 
Commission  should  become  familiar  with  the  facts  and  data  and  acknowledge  its 
limitations  explicitly.  As  regards  quantitative  data,  for  example,  this  requires  (i)  a 
thorough  inspection  of  the  data,  including  summary  statistics  and  graphs,  and  (ii)  a 
sufficient understanding of how the data were gathered, the sample selection process, 
the  measurement  of  the  variables  and  whether  they  bear  a  close  relationship  with 
their  theoretical  counterparts.  Quantitative  data  may  contain  anomalies  because  of 
miscoding  or  other  errors,  which  should  be  discussed  with  the  data  providers  to 
decide how to best adjust the data to address these problems.  

23. Failure to observe and validate all key assumptions or deficiencies in the data should 
not  prevent  an  economic  analysis  to  be  given  weight,  though  caution  must  be 
exercised before relying on its conclusions13. Furthermore, statistical techniques have 
been  developed  to  deal  with  measurement  errors,  missing  observations  and  sample 
selection problems. While these techniques may not be able to improve the data, they 
may help to deal with some of its imperfections. 

the agreement. A rejection of the null hypothesis in that case would be harder to interpret: did prices 
rise or fall as a result of the specific relationship between buyer and seller? 

11   For example, the analysis of scanner data (retail prices and quantities) may provide valuable evidence 
in the context of a merger between producers of fast moving consumption goods, even when the direct 
impact of the transaction would be felt at the wholesale level and not at the consumer level. 

12   For example when discounts are important, the analysis of the price impact of a merger, agreement or 

practice must focus on prices paid by consumers rather than on list prices. 

13   For  example,  assumptions  regarding  firms’  expectations  regarding  the  identity  of  the  market  leader 

may be inferred indirectly through observation of which firm first announces its future prices. 

G.1264 
 
                                                                                                                                                 
2.3  Choice of empirical methodology  

24. The  choice  of  methodology  to  empirically  test  a  hypothesis  or  to  validate  the 
predictions  of  an  economic  model  should  be  properly  motivated,  and  its  pros  and 
cons should be made explicit, including potential identification problems14.  

25. Identification can be understood as clarifying the basis upon which one theory can be 
preferred to another. Similarly, the term can be used to refer to any situation where an 
econometric  model  will  invariably  have  more  than  one  set  of  parameters  which 
generate the same distribution of observations.  

26. One should explain how the chosen methodology exploits the variation in the data, to 
at  least  partially  discriminate  between  the  tested  (or  null)  hypothesis  and  the 
alternative  hypotheses.  At  the  very  least,  an  economic  model  or  argument  should 
generate  predictions  that  are  consistent  with  a  significant  number  of  relevant 
observed facts. 

27. The choice of methodology must take due account of (a) the dataset and its potential 
limitations, (b) the features of the market under investigation, and (c) the economic 
issues  under  consideration  —  i.e.,  it  should  be  designed  to  test  the  hypothesis  of 
interest (see also section 2.1 above). 

28. If  statistical  and/or  econometric  methods  are  used,  it  is  strongly  recommended  that 

important methodological choices are explicitly justified, in particular: 

i)  specification  (what  is  the  range  of  sensible  general  forms  for  the  relationship 
under  evaluation,  including  the  relevant  variables,  the  way  they  could  interact,  and 
the nature of errors or uncertainty?). 

ii)  observation  (how  well  do  the  measurements  approximate  the  variables  they  are 
intended to represent?). 

iii) estimation  (what  do  the  data  in  the  sample  suggest  as  to  the  range  of  plausible 
relationships among variables?). 

29. Moreover,  a  reasoned  justification  should  be  given  when  applying  statistical 
techniques  that  deviate  from  generally  accepted  methods  commonly  used  to  assess 
the question of interest. In particular, one should motivate the changes, describe the 
modified technique or model, and document the likely biases, if any, that the new or 
adapted method is likely to introduce.  

30. In  general,  it  is  recommended  to  follow  a  “bottom-up”  approach.  In  the  context  of 
multiple regression analysis, this would mean estimating simple models first and then 

14   Problems  of  inference  can  be  separated  into  statistical  and  identification  problems.  Studies  of 
identification seek to characterize the conclusions that could be drawn if one could use the sampling 
process  to  obtain  an  unlimited  number  of  observations.  Studies  of  statistical  inference  seek  to 
characterize the generally weaker conclusions that can be drawn from a finite number of observations.  

G.1265                                                 
engage  in  more  refined  estimation  exercises  if  necessary  in  order  to  avoid  bias15. 
Large-scale surveys of final consumers may usefully supplement qualitative or other 
documentary  evidence  obtained  from  targeted  requests  of  information  to  market 
participants.  Whilst  the  evidential  value  of  replies  to  information  requests  from 
market participants lies in the substance of the information provided by players with 
intrinsic industry or market knowledge, the specific purpose of large-scale surveys of 
final  consumers  is  to  obtain  statistically  relevant  data  in  order  to  estimate  the 
characteristics,  behaviour  and  views  of  a  larger  group  of  final  consumers  from  the 
responses  received  from  a  smaller  sample.  The  objectives  of  a  high  quality  sample 
survey should be specific, clear-cut and unambiguous. Further, the definition of the 
relevant  population  of  consumers  (and  the  associated  sampling  frame)  is  crucial 
because there may be systematic differences in the responses of various differentiated 
consumer  segments.  Identification  of  a  survey  population  must  be  followed  by 
selection  of  a  sample  that  accurately  represents  that  population.  The  researcher  can 
apply probability sampling in large-scale surveys of final consumers to some aspects 
of respondent selection to reduce the likelihood of biased selection16.  

31. The use of probability sampling techniques in large-scale surveys of final consumers 
enhances  both  the  reliability  and  representativeness  of  the  survey  results  and  the 
ability  to  assess  the  accuracy  of  quantitative  estimates  obtained  from  the  survey  as 
regards  the  relevant  population  of  consumers.    Probability  sampling  in  large-scale 
surveys  of  final  consumers  offers  two  important  advantages  over  other  types  of 
sampling.  First,  the  sample  can  provide  an  unbiased  quantitative  estimate  of  the 
responses of the relevant consumers from which the sample was drawn; that is, the 
expected  value  of  the  sample  estimate  is  the  population  value  being  estimated. 
Second,  the  researcher  can  calculate  a  confidence  interval  that  describes  explicitly 
how reliable the sample estimate of the population is likely to be. 

32. If  possible,  given  time  and  data  constraints,  conducting  multiple  empirical  analyses 
relying on different methodologies would help determine whether the conclusions of 
the empirical investigation are robust to different tests or models (see also section 2.5 
below). 

15   For  example,  it  is  sound  practice  to  estimate  an  Ordinary  Least  Squares  (OLS)  regression  first  and 
then,  to  the  extent  endogeneity  is  suspected  to  be  a  problem  in  the  case  at  hand,  move  on  to  an 
instrumental variable (IV) estimation. 

16   Probability samples range from simple random samples to complex multistage sampling designs that 
use stratification, clustering of population elements into various groupings, or both. In simple random 
sampling, the most basic type of probability sampling, every element in the population has a known, 
equal probability of being included in the sample, and all possible samples of a given size are equally 
likely to be selected. In all forms of probability sampling, each element in the relevant population has 
a known, nonzero probability of being included in the sample. 

G.1266 
                                                 
2.4  Reporting and interpreting the results 

33. The results of economic and econometric analysis must be presented clearly, taking 
the  reader  through  each  step  of  the  reasoning17.    All  empirical  analysis,  even 
descriptive  statistics  of  relevant  variables  (e.g.  price  series)  should  be  accompanied 
by  all  the  documentation  needed  to  allow  timely  replication,  as  well  as  a  deep 
understanding  of  the  methodology  of  any  prior  data  management  efforts.  Reports 
which  do  not  allow  for  replication  and  in  particular  econometric  analysis  not 
including the code and data in electronic form will receive less consideration and are 
consequently unlikely to be given much weight.  

34. An  empirical  submission  should  not  only  discuss  the  statistical  significance  of  the 
results  but  also  their  practical  relevance.  In  general,  with  very  large  samples 
coefficients  may  be  statistically  significant  even  if  they  are  of  trivial  magnitude18. 
This  creates  the  potentially  misleading  impression  that  certain  variables  are 
important. Therefore, the magnitude of the coefficients must always be examined and 
discussed. This requires interpreting the results in connection with the hypothesis that 
is being tested, so as to draw implications for the case under investigation.  

35. Commonly, results from economic analysis and statistical information are presented 
in  tables.  Although  it  is  not  necessary  to  comment  on  or  restate  every  piece  of 
information that a table contains an interpretation of the data in it must be provided. 

36. The results of the empirical analyses should be reported in the standard format found 
in  academic  papers.  For  example,  when  reporting  multiple  regression  results,  one 
should report on the statistical significance19 of the parameter estimates by following 
the convention of reporting coefficients, p-values, standard errors and the size of the 
sample.  Where  the  coefficient  of  interest  is  economically  significant,  the  emphasis 
should  be  on  statistically  significant  findings,  for  example  to  the  5%  or  10%  level 
(i.e.  p-value<0.05  or  0.10).  However,  just  because  some  hypothesis  cannot  be 
rejected  in  a  statistical  sense  does  not  necessarily  mean  that  the  empirical  analysis 
has no evidentiary value. 

17   Any  mathematical  notation  should  either  (a)  follow  the  standard  notation  in  the  literature  or  (b)  be 

very self-explanatory. 

18   Statistical significance is determined, in part, by the number of observations in the data set. The more 
observations  used  to  calculate  the  regression  coefficients,  the  smaller  the  standard  error  of  each 
coefficient.  A  smaller  standard  error  reflects  less  random  variability  in  the  estimated  coefficient  (or 
estimate). Other things being equal, the statistical significance of a regression coefficient increases as 
the sample size increases. If the data set is sufficiently large, results that are economically significant 
are often also statistically significant. However, when the sample size is small it is not uncommon to 
obtain results that are economically significant but statistically insignificant. 

19   A  statistically  significant  result  is  one  that  is  unlikely  to  have  occurred  by  chance.  In  hypothesis 
testing, the significance level is the criterion used for rejecting the null hypothesis. The p-value is the 
probability  of  obtaining  a  test  statistic  at  least  as  extreme  as  the  one  that  was  actually  observed, 
assuming  that  the  null  hypothesis  is  true.  If  the  obtained  p-value  is  smaller  than  or  equal  to  the 
significance  level,  then  the  null  hypothesis  is  rejected  and  the  outcome  is  said  to  be  statistically 
significant. 

G.1267                                                 
37. It  may  be  that  a  particular  analysis  can  be  criticized  in  terms  of  its  accuracy. 
However,  it  is  often  possible  to  evaluate  that  inaccuracy,  for  example  by  providing 
confidence intervals around an estimate. Also, depending on the question of interest, 
an approximate economic or econometric result can be informative if, for example, it 
is  the  direction  of  the  effects  rather  than  its  magnitude  that  are  most  relevant. 
Similarly  a  particular  estimate  may  be  criticized  because  some  facet  of  the 
methodology introduces bias. However, it is often the case that an estimate is biased 
in a particular direction; if this is the case it may be known that the estimate is too 
large,  or  too  small.  This  may  not  matter  in  the  context  of  a  particular  case.  If  it  is 
known that  the estimate is too large, and yet it is insufficient in size to reach some 
critical value, then the bias does not invalidate the conclusion that the critical value 
will  not  be  reached.  Detailed  information  should  also  be  provided  on  all  other 
specification tests and statistical diagnoses (see also section 2.5 on robustness). 

38. The  results  of  any  statistical  or  econometric  analysis  should  also  be  assessed  with 
respect to the relevant economic theory20. When discussing the results of a multiple 
regression analysis, this requirement includes assessing not only the coefficient(s) of 
direct  interest,  but  also  the  coefficients  of  all  other  explanatory  variables,  as  they 
often  provide  a  signal  on  the  reliability  of the analysis. For example, a finding that 
the sign of a particular coefficient is counter to what would be expected by economic 
theory21 may be an indication of an omitted-variable problem22, a selection bias23, or 
some other identification problem24. 

39. In  the  case  of  large-scale  surveys  of  final  consumers  the  report  should  disclose 
essential  information  about  how  the  research  was  conducted  to  allow  judging  the 
reliability  and  validity  of  the  results.  All  data  must  be  fully  documented  and  made 
available (subject to appropriate safeguards to maintain privacy and confidentiality). 
Non-sampling  error,  in  particular  the  non-response  rate  and  response  bias25  should 
also  be  taken  into  account  in  the  analysis.  Conclusions  from  large-scale  surveys  of 
final consumers should be carefully distinguished from the factual findings. 

20   For  example,  econometric  estimates  of  the  elasticity  of  demand  for  a  given  product  implying  an 
upward sloping demand curve should be discarded in almost all cases,  unless the product in question 
can  be  shown  to  be  a  Giffen  good—i.e.,  a  product  for  which  a  rise  in  price  of  this  product  makes 
people buy even more of the product. 

21   For example, a study showing that an increase in the marginal costs of production of a given good is 
associated with lower prices for that product should, ceteris paribus, be discarded automatically. 

22   That  is,  when  a  relevant  explanatory  variable,  which  is  correlated  with  the  dependent  variable  has 
been  omitted  from  the  analysis,  so  that  the  coefficients  of  some  or  all  other  explanatory  variables 
suffer from a bias of a priori unknown sign or magnitude. 

23   The  bias  that  arises  when  the  selection  process  influences  the  availability  of  data  in  a  way  that  is 

related to the dependent variable. 

24   See note 13 supra. 

25   Response  bias  refers  to  situations  were,  for  a  host  of  reasons,  respondents  fail  to  answer  questions 

truthfully, fully and/or were influenced by the interviewer. 

G.1268  
                                                 
2.5  Robustness (non implemented proposal: place robustness before reporting) 

40. Economic  and  econometric  analysis  should  to  the  greatest  possible  extent  be 
accompanied  by  a  thorough  robustness  analysis,  except  where  its  absence  is 
appropriately  justified.  In  any  event,  any  formal  economic  model  or  econometric 
analysis  needs  to  be  generally  consistent  and  reasonably  predict  observed  past 
outcomes and behaviour. 

41. Other common robustness checks that may be appropriate include assessing whether 
empirical results are sensitive to changes in (a) the data, (b) the choice of empirical 
method,  and  (c)  the  precise  modelling  assumptions26.  Similarly,  the  relevance  and 
credibility of an economic model can be significantly enhanced if accompanied by a 
sensitivity analysis with respect to the key variables.  

42. It is strongly recommended to address explicitly (i) to what extent, the results of the 
analysis  are  in  line  with  past  results  using  similar  methods,  and  whether  the  results 
can be generalised27. Congruent and convergent results based on methods supported 
by academic and practitioners' are likely to be given greater significance than widely 
divergent results. 

2.6  Further recommendations 

43. The  credibility  of  an  economic  submission  may  be  enhanced  when  the  limitations 
with  regards  to  accuracy  or  explanatory  power  of  the  underlying  data  and 
methodology  are  explicitly  acknowledged.  In  this  regard  it  is  often  advisable  to 
address rather than minimize uncertainty. 

44. The  parties  rely  sometimes  on  data  that  they  do  not  have  the  means  to  audit  and 
verify. Hence, they should be careful not to misleadingly present economic opinions 
as statements of fact. The sources of information should be carefully acknowledged, 
and  the  facts  properly  documented  and  described  without  ambiguity.  This  applies 
whether  the  economic  or  econometric  analysis  is  a  stand  alone  report  or  part  of  a 
broader submission.  

45. It  is  advisable  that  the  parties  consult  DG  Competition  regarding  the  types  of 
empirical  analyses  that  they  consider  useful  in  testing  the  anticompetitive  and/or 
efficiencies  theories.  In  particular,  the  parties  can  suggest  potential  analyses  which 
may  be  easier  for  DG  Competition  to  conduct,  given  its  access  to  data  from  third 

26   For  example,  in  a  multiple  regression  analysis,  one  should  indicate  whether  the  results  are  severely 
affected  by  how  the  variables  were  defined,  by  the  set  of  explanatory  variables  incorporated  to  the 
analysis, or the functional form. 

27   For example, if the elasticity of demand for a given product has been estimated for a given country, 
where data is available, but the case at hand would require estimates of the elasticity of demand for 
various countries, one should consider whether or not, and under which assumptions, her results for 
one country apply to the others. Similarly, if an economic model assumes that firms make take-it-or-
leave-it  offers  when  interacting  with  intermediate  buyers  with  certain  characteristics,  it  may  be 
necessary to assess whether such assumption extends to all types of intermediate buyers. 

G.1269 
                                                 
parties.  DG  Competition,  in  turn,  may  propose  analyses  it  believes  might  be  useful 
for  the  parties  to  conduct.  Similarly,  it  is  recommended  that  the  parties  consult  the 
DG  Competition  regarding  the  most  suitable  robustness  checks  for  a  given 
methodology. Experience suggests that such consultation can be most effective if the 
parties are prepared to share any relevant preliminary results in advance of a formal 
submission.  

46. Where economic submissions rely on quantitative data the parties should provide the 
data  and  codes  timely,  in  an  appropriate  format  and  in  accordance  with  the  criteria 
laid down in section 3 of this document. In particular, the absence of all the necessary 
elements  needed  for  replication  and  assessment  of  an  economic  submission  can 
constitute grounds for not taking it further into consideration. 

47. When granting access to the file, the Commission may provide upon request the data 
and codes underlying its final economic analysis or, to the extent that they have been 
made available to the Commission, that of third parties on which it intends to rely or 
take  into  account.  Where  necessary  to  protect  the  confidentiality  of  other  parties' 
data, access to the data and codes will be granted only at Commission premises in a 
so-called  data  room  procedure28,  subject  to  strict  confidentiality  obligations  and 
secure procedures29.  Third parties or complainants are equally expected to submit all 
the  underlying  data  used  in  the  analysis.  They  are  also  expected  to  authorise  the 
Commission,  where  appropriate,  to  offer  data  room  access  to  the  parties  upon 
request. 

48. When  conducting  large-scale  surveys  of  final  consumers  to  address  a  case-specific 
issue  the  parties  might  want  to  involve  the  Commission  in  the  questionnaire 
development  and  design30.  Subject  to  time  and  resource  constraints  it  is  often 
desirable to conduct a pre-test or pilot31. 

3  BEST PRACTICES ON RESPONDING TO REQUESTS FOR QUANTITATIVE DATA 

49. Pursuant to Article 18 of Regulation 1/2003 and Article 11 of the Merger Regulation, 
the  Commission  is  empowered,  in  order  to  carry  out  its  duties,  to  require 
undertakings  and  associations  of  undertakings  to  provide  it  with  all  necessary 

28   See  Commission  Notice  on  Best  Practices  for  the  conduct  of  proceedings  concerning  Articles  101 

and102, paragraphs 97 and 98. 

29   Similarly, the Commission will endeavour to organise access to a data room, normally to the parties’ 
economic  advisors  and  external  counsel,  if  necessary  to  ensure  their  rights  of  defence  are  fully 
respected. 

30   Occasionally,  the  Commission  may  take  the  initiative  to  commission  its  own  large  scale  consumer 
survey.  In  that  case,  it  will  normally  consult  the  parties  and  interested  third  parties  on  the 
questionnaire  design  and  instruments  of  data  collection,  subject  to  confidentiality  safeguards  and  to 
the extent such consultation does not delay or otherwise jeopardize the investigation. 

31   All questions should be pretested to ensure that (i) questions are understood by respondents, (ii) can be 

properly administered by interviewers, and (iii) do not adversely affect survey cooperation 

G.1270                                                 
information. It  is the Commission that defines the scope and the format of requests 
for information. 

50.  Most competition or merger investigations involve (1) collecting data, (2) analyzing 
data,  and  (3)  drawing  inferences  from  data.  In  most  antitrust  and  merger  cases,  the 
Commission  will  gather  evidence  by  sending  targeted  requests  for  information 
pursuant to Article 11 of the Merger Regulation and Article 18 of Regulation 1/2003 
to the main players in the market (e.g. competitors, direct customers and other parties 
with specific knowledge of  the  market). This document, however, provides specific 
guidance  to  respond  to  a  request  for  quantitative  data32.  However,  many  of  the 
principles  here  identified  apply,  more  generally,  to  responses  to  any  request  for 
economic information, quantitative or qualitative. 

51. Quantitative data may help the Commission to conduct statistical analysis to define 
markets, establish a counterfactual, assess the potential anti-competitive effects of a 
notified merger, validate efficiency claims or predict the impact of remedies. In order 
to do that the Commission needs to get accurate data, with sufficient time to analyze 
it. 

52. The  Commission  is  aware  of  the  costs  that  its  procedures  may  impose  on 
undertakings.  An  important  objective  of  this  section  is,  therefore,  to  provide 
recommendations  to  reduce  the  burden  on  the  involved  parties  and  on  the 
Commission posed by the production and processing of quantitative data, while at the 
same time ensuring and enhancing the effectiveness of the Commission's substantive 
review.  

53. These  best  practices  are  intended  as  general  guidance  and  do  not  supersede  any 
specific instructions in any Data Request issued by the Commission in specific cases. 

3.1  General motivation for Data Requests 

54. The primary objective of a Data Request is to obtain accurate information concerning 
quantitative  variables  such  as  prices,  turnover,  capacity  and  entry  or  exit  decisions 
within the possible relevant markets over a reasonable period. Quantitative data may 
be  necessary  to  understand  current  market  conditions  and  competitive  dynamics.  In 
some cases, reliable quantitative data may allow to conduct statistical or econometric 
analysis to be submitted as evidence in an antitrust or merger investigation.  

55. The  Commission  will  endeavour  to  ask  for  the  appropriate  amount  of  data  to  carry 
out the required analyses. The Commission is mindful of time constraints and must 
balance  the  usefulness  of  each  request  against  the  time  left  before  any  legal  or 
procedural  deadline.  In  appropriate  cases,  DG  Competition  may  discuss  in  advance 
with  the  addressees  or  other  affected  parties  the  scope  and  the  format  of  the  Data 
Request.  DG  Competition  may  also  explain  the  analysis  that  it  intends  to  perform 

32   For statistical purposes, “quantitative data” means a series of observations or measurements, expressed 
as numbers. A statistic may refer to a particular numerical value, derived from the data. For example, 
an HHI measure and a correlation coefficient are statistics.  

G.1271 
                                                 
with  the  requested  data  in  order  to  improve  the  efficiency  of  the  data  collecting 
process and to ensure the data is of adequate quality. This is particularly the case in 
the later stages of an investigation as early requests could be of a more general nature 
and aimed primarily at better understanding the functioning of the market in question. 

56. The  Commission  will  carefully  consider  what  the  proper  sample  to  characterize  a 
population  is.  Inferences  from  the  part  to  the  whole  are  justified  only  when  the 
sample is representative33.  

57. A  further  issue  that  may  influence  the  scope  of  the  Data  Request  is  whether  third 

party data will be necessary and available to conduct any meaningful analysis. 

3.2  Common elements of a Data Request 

58. Examples  of  data  necessary  for  a  competition  investigation  include  data  on  costs, 
output,  sales,  prices,  capacity,  product  characteristics,  delivery  flows,  customer 
characteristics, tender details, entry barriers, business strategies, and market shares of 
the parties involved and of the other participants in the relevant market. 

59. The  source  of  the  information  can  be  the  parties  involved  in  the  procedure,  third 
parties,  trade  associations,  trade  press,  independent  consultants,  survey  information 
or government sources. 

60. Data may be costly to collect or hardly accessible in the relevant time frame. Often, 
however, requests for quantitative data in merger proceedings seek data that is readily 
available to the involved parties. Readily available data refers to data that is routinely 
collected and maintained for a reasonable period as part of the firm's normal business 
operations, for example to inform business strategy or for internal reporting. Readily 
available data also includes data that is regularly purchased from third parties, such 
as scanner data or survey data34. In any event, in its investigations, the Commission is 
not limited  to request  only  data that is  readily available to the parties (see point 77 
below). Deadlines for submitting data which is difficult or costly to retrieve will be 
decided by the Commission on a case-by-case basis. 

61. A  Data  Request  often  includes  the  following  sections,  but  each  request  will  be 

tailored to the specific information needs and circumstances of the case: 

(i) 
(ii) 

a glossary of terms, in particular key variables; 
a list of the variables; 

33   For  example,  in  certain  circumstances  it  may  be  appropriate  to  limit  the  data  request  to  a  certain 
representative  subset  of  the  involved  firms'  customers,  or  to  a  particular  geographic  market  which 
stands out for a valid given reason. 

34   Where  econometric  analyses  are  to  be  conducted,  the  sample  needs  to  be  of  sufficient  size  for 
meaningful  inference.  For  instance,  in  the  absence  of  cross-section  variability,  requests  would 
generally cover at least a three year period of monthly observations. 

G.1272 
                                                 
(iii) 

(iv) 
(v) 

(vi) 

for each variable: the units of measurement; the level of aggregation over time 
(e.g.  monthly);  the  time  range  (e.g.  the  last  three  fiscal  years)  and  the 
geographic scope (e.g. countries, regions or cities); 
the preferred electronic format (stata file, excel file, etc); 
suggestions or specific requests on data formatting, variable classification and 
tests to detect data inconsistencies; 
deadline for compliance with the request. 

62. In  some  instances,  particularly  where  data  is  requested  from  different  parties,  DG 
Competition  may  provide  a  template  to  ensure  all  submissions  are  compatible  and 
can be efficiently combined with minimal risk of error. 

3.3  Main criteria to consider when responding to a Data Request 

63. Responses to a Data Request must be: (i) complete, (ii) correct, and (iii) timely.  

64. The Commission may impose on undertakings and associations of undertakings fines 
where, intentionally or negligently, they supply incorrect or misleading information 
or  when,  in  response  to  a  request  made  by  decision,  they  supply  incomplete 
information  or  do  not  supply  information  within  the  required  time-limit35. 
Furthermore, in merger cases, the relevant time limits for initiating proceedings and 
for  the  adoption  of  decisions  may  exceptionally  be  suspended  where,  owing  to 
circumstances  for  which  one  of  the  undertakings  involved  in  the  concentration  is 
responsible, the Commission has had to request information by decision or to order 
an inspection36.  

3.3.1  Completeness 

65. The parties should provide all data requested, in any of the stated formats and follow 
indications  regarding  presentation  and  consistency  checks.  Subsidiary  data  that  is 
necessary  to  construct  or  to  understand  any  variable  requested  should  also  be 
provided,  except  when  adequately  justified  and  with  prior  approval  by  the 
Commission.  

66. It  is  strongly  encouraged  that  problems  of  missing  data  are  flagged  to  the 
Commission well in advance of the deadline for compliance with the Data Request to 
allow,  if  appropriate, for  either a modification of  the request or an extension of the 
deadline.  Any  data  missing  from  the  original  Data  Request  must  be  adequately 
justified. In any event, a response to a Data Request may not be considered complete 
unless accompanied by a memo: 

35   Article  23(1)(a)  and  (b)    of  Regulation  1/2003  and  Article  14(1)(a),  (b)  and  (c)  of  the  Merger 

Regulation. 

36   Article 10(4) of the Merger Regulation, but see also Article 8(6) thereof. 

G.1273 
 
 
                                                 
(i) 

(ii) 
(iii) 
(iv) 

(v) 
(vi) 

describing  the  data  compilation  process:  from  raw  data  through  aggregation 
and merging operations to the final database submitted. How was the sample 
selected and was it necessary to eliminate certain kinds of observations; 
identifying all relevant sources; 
labelling and thoroughly describing all variables; 
reporting  on  the  reasons  for  potential  measurement  error  such  as  missing 
information or any changes in the collection process; 
describing any assumptions and estimations used to fill incomplete data; and  
reporting on consistency checking and all data cleaning operations. 

3.3.2  Correctness 

67. It is up to interested parties to ensure the correctness of the data submitted. Tests for 

accuracy of all variables should always be undertaken and reported37.  

68. In order to detect incorrectness in data it will be expected that consistency checks are 

performed and documented prior to submission. In particular: 

i)  Responses  to  the  Data  Request  should  be  consistent  with  responses  provided  to 
other requests for information (e.g. turnover, market shares, etc); 

ii)  Individual  values  within  a  variable  must  be  consistent  with  the  economic 
reality38; 

iii) When aggregation of raw data is necessary, one needs to ensure the aggregation 
algorithm is sensible and applied consistently; 

iv)  Coherence between different variables is necessary39; 

v)  Over time consistency across and within variables must also be ensured. 

3.3.3  Timely submission 

69. Deadlines  for  responses  to  Data  Requests  must  be  strictly  respected.  Where  parties 
plan to submit data in connection with an empirical analysis conducted at their own 
initiative, it is useful to warn in advance DG Competition of the planned timing and 
scope of such a submission. Results that the parties intend to rely upon or discuss in a 
meeting  with  DG  Competition  should  be  submitted,  including  data  and  code  to 
facilitate replication, at least 2 working days before the said meeting. 

37   For example, negative sales volumes or zero transaction prices are normally inaccurate and are often 
indicative of data extraction errors, systematic measurement errors or inadequate accounting of rebates 
or taxes. 

38   For example, transaction prices (net of discounts) should generally be positive, missing or unexpected 

values (i.e. sales not in line with historical levels) should be checked. 

39   For  example,  shipments  of  one  product  must  be  related  to  shipments  of  any  by-products.  Also, 
charged prices should generally remain above transportation costs (i.e. ex-works negative prices cast 
doubts on either the correctness of the charged price and/or the transportation cost). 

G.1274 
 
                                                 
3.4  Other Recommendations  

70. This section sets down further recommended best practices concerning responses to a 

Data Request. 

3.4.1  Cooperation in good-faith 

71. Data  production  is  an  area  where  cooperation  between  the  parties  and  the 
Commission  is  especially  important.  The  parties  will  need  to  explain  clearly  the 
complexities that can be associated with requests that the Commission may regard as 
simple40.  The  Commission  endeavours  to  define  its  requests  as  specifically  and 
quickly as possible so the parties can understand what is being sought. This dialogue 
may help both sides deal more efficiently with data issues. In any event, it is for the 
Commission to decide the scope, format and timing of the Data Request. 

72. It  is  important  to  emphasise  in  that  regard  that  the  integrity  and  efficiency  of  the 
process are undermined if, inter alia, the parties make representations about what data 
exist  without  reasonably  diligent  efforts  to  confirm  their  accuracy,  if  they  ignore  a 
carefully drafted and limited Data Request and produce large amounts of data points 
disregarding  the  submission  format,  scope,  or  data  processing  requirements,  if  they 
use  non-obvious  “definitions”  of  common  terms  in  construing  requests,  or  if  they 
make unilateral and undisclosed inferences about what the Commission is effectively 
seeking. 

3.4.2  Early  consultation  with  the  Commission  to  inform  about  what  type  of  data  is 

available 

73.  In  some  cases,  the  burden  of  compliance  with  Data  Requests  may  be  significantly 
reduced  if  the  parties  inform  the  Commission  at  the  earliest  opportunity  on  the 
availability of quantitative data. Early consultation allows to determine not only what 
data is available and its suitability, but also in what form it can be provided, thereby  
making  it  easier  and  faster  for  the  parties  to  provide  the  data,  in  the  event  the 
Commission  makes  a  Data  Request.  However,  the  Commission  is  not  limited  to 
request only data that is readily available to the parties.  

74. To  make  these  early  discussions  fruitful,  parties  must  be  prepared  to  thoroughly 
explain  their  information  management  systems  and  should  be  prepared  to  discuss 
certain issues such as: every field of information captured, how the underlying data is 
collected and formatted, the frequency of collection, what software is used, the size 
of  the  data  set,  what  reports  are  routinely  generated  from  that  database,  etc.  It  is 
recommended  that  the  involved  firms  provide  any  written  documentation  and/or 
training  materials  to  the  Commission  in  advance  of  any  discussion.  It  is  also 
generally  useful  that  parties  create  a  diagram  to  show  how  the  relevant  data  is 

40   Why, for example, it may be difficult, impossible or useless to simply “turn over” a “database,” or the 

burdens and costs associated with providing data in the manner the Commission seeks. 

G.1275 
 
 
                                                 
distributed throughout the organization. In any event, as a general rule, parties should 
provide relevant documents to support their contentions concerning the availability, 
scope and production time of quantitative data. 

75. Preliminary  meetings  or  telephone  conversations  with  those  responsible  for  data 
collection or analysis in the firms are often quite useful. Parties are advised to make 
such  personnel  available  as  early  as  possible.  These  discussions  should  involve 
descriptions of the type of electronic (or other) data that the parties maintain (both in 
the ordinary course of business and what is archived, and in what form). 

76. In  the  case  of  mergers,  pre-notification  discussions  should  routinely  deal  with  data 
issues.  Although,  the  Commission  will  endeavour  to  identify  all  issues  that  may 
require a Data Request as soon as possible, certain issues may not be identified until 
later in the proceedings. 

3.4.3 

Consultation on a Draft Data Requests and data samples 

77. When appropriate and useful, DG Competition will send a “draft” Data Request for 
quantitative  data  in  order  to  facilitate  a  better  identification  of  the  format,  and  to 
allow for basic consistency checks (see section 3.3.2). The purpose of the draft Data 
Request  is  to  invite  parties  to  propose  any  modifications  that  could  alleviate  the 
compliance burden while producing the necessary information. Any reduction on the 
scope  of  the  Data  Request  can  only  be  accepted  if  it  does  not  risk  harming  the 
investigation  and  may  trigger,  particularly  in  merger  cases,  a  reduction  in  the 
deadline for response initially anticipated.  

78. In this connection, providing samples of the data is generally very helpful as it helps 
the Commission to determine what data is available and would be useful. As a result, 
on the basis of the sample it may be possible to draft a more focused Data Request, 
limiting the eventual burden on the parties. 

3.4.4  Transparency regarding data collection, formatting and submission 

79. A  transparent  process  allows  for  all  parties  involved  to  be  aware  of  any  incidences 

during the data collection process and thus react more rapidly and effectively. 

80. The  parties  are  advised  to  submit  quantitative  data  in  a  format  that  minimises  the 
time and manipulation required to process the data for analysis. Parties should always 
be able to answer all the following questions: 

i)  How applicable is the data to the analyses under consideration; 

ii)  How reliable or “clean” is the data; 

iii) Is it enough to conduct a meaningful analysis; 

iv)  What  institutional  factors  specific  to  the  industry  setting  and/or  company  may 
impact the proper interpretation of the data? 

G.1276 
 
81. The  involved  parties  should  draw  the  Commission’s  attention  early  on  to  any 
limitations in the data. They should make clear how raw data has been compiled and 
what steps have been taken to ensure its reliability41.  

82. The  involved  parties  are  also  strongly  encouraged  to  conduct  their  own  descriptive 
analysis to detect data problems before submitting the data to the Commission. Also 
the Commission may sometimes welcome efforts by the involved parties to deal with 
any  remaining  data  imperfections  using  statistical  analysis.  In  some  cases  statistics 
allow  in  various  ways  to  average  out  errors  in  measurement  and  yield  statistically 
sound  estimates.  All  such  statistical  analysis  should  be  adequately  reported.  In  any 
event,  raw  data  should  be  provided  wherever  possible  because  the  aggregation  and 
cleaning  of  data  may  have  a  significant  impact  on  the  outcome  of  statistical  or 
econometric analysis. Also parties should provide the program files that manipulate, 
clean and complete the raw data in preparation for the analysis. 

3.4.5  Direct access  

83. In some instances, the Commission will accept that as part of its response to a Data 
Request the involved parties provide direct electronic access to the underlying data. 
This alternative can provide an inexpensive and fast way to provide access to large 
amounts of data. Limited direct access can also provide a means to assess the value of 
certain corporate information. 

84. The  terms  and  conditions  for  direct  access  can be discussed in advance, addressing 
issues such as the availability of technical assistance, the ability to print or otherwise 
retrieve the data, the number of log-ins the company should provide, assurances that 
the activities of the services of the Commission will not be tracked, that underlying 
data  will  not  be  removed  without  agreement  of  the  Commission  and,  most 
importantly,  continued  access  throughout  the  entire  course  of  the  investigation.  In 
limited instances, when providing direct access to corporate resources is unworkable, 
the  Commission  may  submit  a  set  of  queries  to  the  firm  so  that  reports  can  be 
generated. 

41   For example, if the raw data is based on a sample of individual customer accounts, an explanation of 
how these accounts have been chosen and why they are representative of all customers should also be 
provided. 

G.1277 
                                                 
STRUCTURE AND BASIC ELEMENTS OF A SOUND EMPIRICAL SUBMISSION 

ANNEX 1  

This  Annex  briefly  describes  how  to  structure  an  empirical  submission  in  a 
competition  or  merger  case  according  with  the  principles  set  out  in  the  preceding 
sections (esp. section 2 above). A sound economic or econometric submission should 
contain the following sections and elements: 

A. The relevant question 

−  The  research  question  must  be:  (i)  formulated  unambiguously  and  (ii)  properly 
motivated,  taking  into  account  both  the  nature  of  the  competition  issue,  the 
institutional  features  of  the  markets  and  industries  under  consideration,  and  the 
relevant economic theory. 

−  The hypothesis to be tested (or null hypothesis) must be clearly spelled out as well as 

the alternative hypothesis or hypotheses under consideration. 

B. The data 

−  A  clear  description  of  data  sources  must  be  provided  as  well  as  hard  copies  of  the 
databases  employed  in  the  analysis.  Normally,  an  accompanying  memo  would 
describe how previous intermediate data sets and programs were employed to create 
the final dataset as well as the software code employed to generate the final dataset. 
All efforts made to correct for anomalies in the data should be clearly explained. 

−  One should also report how the data were gathered, the sample selection process, the 
measurement  of  the  variables  and  whether  they  match  with  their  theoretical 
counterparts, etc.  

− 

In  addition,  the  data  should  be  thoroughly  described.  This  includes  reporting  the 
sample  time  frame  and  the  statistical  population  under  consideration,  the  units  of 
observation,  a  clear  definition  of  each  variable,  any  data  cleaning  procedures,  etc. 
This  information  should  be  accompanied  by  descriptive  statistics  (including  means, 
standard errors, maximums, minimums, correlations, and histograms, residual plots, 
etc) of all relevant variables. 

C. Methodology 

−  The  choice  of  empirical  methodology  should  be  properly  motivated.    One  should 
discuss  their  methodological  choices  in  light  of:  (a)  their  data  limitations,  (b)  the 
features  of  the  market  under  investigation,  and  (c)  the  economic  issues  under 
consideration (the relevant question). 

−  Alternative  methodologies  should  also  be  discussed  and  if  possible,  given  time  and 
data  constraints,  employed  to  verify  the  robustness  of  the  results  to  the  choice  of 

G.1278 
 
 
 
model. An economic model or argument must generate predictions that are consistent 
with a significant number of relevant observed facts. 

D. Results and implications 

−  Parties  should  explain  the  details  of  their  models,  and  share  any  documentation 
needed  to  allow  timely  replication  (e.g.  the  programming  code  used  to  run  the 
analysis). 

−  The results of the empirical analyses should be reported in the standard format found 
in  academic  papers.  For  example,  when  reporting  multiple  regression  results,  one 
should report both the estimated coefficients and their standard errors for all relevant 
variables.  They  should  also  provide  detailed  information  on  all  other  specification 
tests and statistical diagnoses.  

−  One should discuss not only the statistical significance of their results but also their 
practical  relevance.  This  requires  interpreting  the  results  in  connection  with  the 
hypothesis  that  is  being  tested,  so  as  to  draw  implications  for  the  case  under 
investigation.  The  results  of  the  statistical  and  econometric  analyses  should  also  be 
assessed with respect to the relevant economic theory.   

E. Robustness tests 

−  All empirical work should be accompanied by a thorough robustness analysis that (i) 
checks whether the empirical results are sensitive to changes in the data, the choice of 
empirical  method,  and  the  precise  modelling  assumptions;  (ii)  tests  whether  the 
results  of  the  analysis  can  be  generalised;  and  (iii)  compares  the  results  of  the 
empirical work in question with previous results in the relevant literature. 

−  An economic model should generally be accompanied by a sensitivity analysis with 
respect to the key variables, to the extent only the plausible but not the exact value of 
each variable can be determined. All results from the sensitivity analysis conducted 
should also be reported and not only those that support the argument.  

G.1279 
 
 
 
 
 
 
Antitrust Correspondance 

In all your correspondence, please specify the name of the 
case and the case number 

I. General 

All  correspondence  relating  to  a  case  must  be  sent  to  the  Registry,  even 
when addressed to a specific Directorate or Unit with DG Competition. 

Delivery by post: 

Delivery by hand: 

European Commission 
Directorate-General for Competition 
For the attention of the Antitrust Registry 
1049 Bruxelles/Brussel 
BELGIQUE/BELGIË 
Fax: +32 2 295.01.28 

European Commission 
DG Competition 
For the attention of the Antitrust Registry 
Avenue du Bourget/ Bourgetlaan 1 
1140 Evere 
Bruxelles/Brussel 

•  In its efforts “towards the e-Commission”, the European Commission 

encourages use of electronic information.  

•  Precaution : Emails should not exceed 8 MB  

•  Secure  email  can  be  sent  encrypted  using  "Qualified  PKI 
Certificates". If you don't have such certificate you can obtain them 
via certificates providers or any national certification authority. 

•  If, nevertheless, you want to send paper documents, please respect 

following rules : 

-  No bound documents, stapled documents, no cardboard dividers, 
no double-sided pages 

-   Format: only A4 weighing less than 120 gr/m2  

The Registry reserves the right to request electronic copies for voluminous 
paper documents. 

To  inform  the  Commission  about  suspected  infringements  of  the 
competition rules. 

G.2280 
 
 
 
 
II. Complaints 

The Commission encourages citizens and firms to inform about suspected 
infringements of competition rules. There are two ways to do this.  

If  you  are  directly  affected  by  the  practice  which  you  suspect  restricts 
competition and are able to provide specific information, you may want to 
lodge  a  formal  complaint,  which  must  fulfil  certain  requirements.  The 
complaint form (“Form C”) is available on the 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.  Official 
Journal  L  123,  27.04.2004,  p.18-24  (see  the  form  on  the  last  page 
“Annex”). 

Information  on  how  the  Commission  handles  complaints  is  available  on 
the Commission Notice on the handling of complaints by the Commission 
under  Articles  81  and  82  of  the  EC  Treaty  (Official  Journal  C  101  , 
27/04/2004 p. 65-77).  

The other way is the provision of market information that does not have to 
comply  with  the  same  requirements. You  can  report  your  concerns  by  e-
mail  to  comp-market-information@ec.europa.eu.  Please  indicate  your 
name and address, identify the firms and products concerned and describe 
the  practice  you  have  observed.  This  will  help  the  Commission  to  detect 
problems in the market and be the starting point for an investigation. We 
invite you to read our e-services privacy policy before contacting us. You 
can also send your complaint by post: European Commission, Competition 
DG, B - 1049 Brussels. 

If the situation you have encountered is specific and limited to the country 
or  the  area  in  which  you  live,  or  involves  no  more  than  three  member 
States  you  may  want  to  contact  a  national  competition  authority.  The 
competition  authorities  of  all  EU  Member  States  now  apply  the  same 
competition  rules  as  the  European  Commission  and  very  often  they  are 
well placed to deal with your problem. If you think that a larger number of 
Member  States  are  concerned,  you  may  primarily  chose  to  contact  the 
European  Commission.  If  you  are  not  sure  about  the  scope  of  the 
problem,  do  not  hesitate  to  contact  either  the  European  Commission  or 
the  national  competition  authority  because  the  authorities  cooperate 
among them and will allocate the case as appropriate. 

G.2281 
 
 
  
III. Leniency contact information1 

In  order  to  benefit  from  the  Notice,  companies  can  approach  the  Commission 
directly  or  through  a  legal  adviser.  To  apply  for  leniency  please  contact  the 
Commission only through the following dedicated fax number:  

Leniency fax: +32 2 299.45.85  

The use of this fax ensures that the precise time and date of the contact is duly 
recorded  and  that  the  information  is  treated  with  the  utmost  confidentiality 
within the Commission. Before sending the actual submission by fax, however, it 
is  advisable  to  seek  assistance  from  one  of  the  Commission  officials  involved  in 
leniency by calling the following dedicated telephone numbers:  

Telephone numbers: +32 2 298.41.90 or +32 2 298.41.91  

Because  of  the  need  for  confidentiality  of  leniency  applications,  companies  are 
requested  not  to  send  any  application  to  the  Commission  by  any  other  channel 
than the leniency fax.  

Please  note  that  these  telephone  numbers  are  only  to  be  used  for  leniency 
applications. Given the importance of keeping these lines clear so that companies 
can make their applications promptly, no other queries will be answered.  

The  telephones  are  monitored  from  09.00  to  17.00  on  weekdays.  Outside  of 
these times, please use the leniency fax.  

1 See http://ec.europa.eu/competition/cartels/leniency/leniency.html  

G.2282 
 
European Commission 

EU Competition Law 
Rules Applicable to Antitrust Enforcement 
Volume I: General Rules 

Luxembourg: Publications Office of the European Union 

2013 —  282 p.— 21 x 29.7 cm 

ISBN 978-92-79-28608-7 

doi 10.2763/35312 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
KD-31-13-527-EN-N