Evaluation 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 and of 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
Date: 2022-12-02
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy



IMMC.Ares%282022%298359727.ENG.xhtml.PART-2022-928969V1.docx









Factual summary of the contributions received during the public consultation on the evaluation of Regulations 1/2003 and 773/2004


This document should be regarded solely as a summary of the contributions made by stakeholders during the public consultation on the antitrust rules. It cannot in any circumstances be regarded as the official position of the European Commission or its services and therefore does not bind the European Commission. 


This document only provides a factual summary. A later synopsis report as an annex to the Staff Working Document will provide a more detailed overview of the consultation activities. This summary does not prejudge the findings of the Staff Working Document to be published at the end of the evaluation phase. When views of stakeholders are mentioned, these simply represent examples and not the complete picture.



This document summarises the views expressed by stakeholders in the public consultation - accessible through the European Commission’s (Commission’s) dedicated Better Regulation page (‘Have Your Say’) – conducted in the context on the evaluation of Regulation 1/2003 and its implementing Regulation 773/2004 (together referred to as the ‘Antitrust Procedural Regulations’) between 30 June 2022 and 6 October 2022. 


By way of background, Regulation 1/2003 is the result of the most comprehensive reform of procedures for the enforcement of Articles 101 and 102 TFEU since 1962. Its main features are:


·The abolition of the practice of notifying business agreements to the Commission, enabling the Commission to focus its resources on serious violations of the antitrust rules.


·The empowerment of National Competition Authorities and courts to apply Articles 101 and 102 TFEU in their entirety, so that there are multiple enforcers and therefore wider application of the EU antitrust rules.


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


·Close cooperation between the Commission and National Competition Authorities in the European Competition Network (the ‘ECN’).


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


The evaluation of the Antitrust Procedural Regulations has to be seen in the context of the broader evaluation and review exercise launched in the area of EU competition law in the past years and the Commission’s commitment to assess the effectiveness of its antitrust procedural tools in order to ensure that they are fit for the digital age. 


In order to ensure that the public consultation would be appropriately targeted to different types of stakeholders, two questionnaires have been published: a general questionnaire for the general public and a detailed questionnaire for expert stakeholders on EU Survey. The detailed questionnaire contained all the questions of the general questionnaire as well as some additional/technical questions. Although the detailed questionnaire was more suitable for stakeholders with specific expertise and experience in the application of Regulation 1/2003 and Articles 101 and 102 TFEU, expert stakeholders did sometimes respond to the general questionnaire. 


The general questionnaire has been published in English, French and German and the detailed questionnaire in English. Participants could reply in any of the official languages of the EU. The public consultation has been promoted through various stakeholder engagements, a press release, and on DG Competition’s website. 


The public consultation led to the submission (through the online survey) of 43 contributions, 19 of which were through the general questionnaire and 24 through the detailed questionnaire. Additionally, 8 stakeholders submitted documents directly to the relevant functional mailbox. 11 other stakeholders submitted their contributions directly on the dedicated Better Regulation page.


The statistics shown in this summary are based only on contributions to the public consultation submitted through EU Survey. 


Upon the request of one respondent, their contribution has been amended according to their instructions.


I.Profile of respondents to the online survey 



1
Among the 43 respondents to the two questionnaires, there are 15 business associations, 9 companies/business organisations, 3 public authorities, 2 academic and research institutions, 2 EU citizens, 1 consumer organisation, 1 non-governmental organisation, 1 trade union and 9 others (3 of which are law firms). The majority of contributions were submitted in English. 

Figure 


1

 below illustrates the type of respondents. 



Figure 1. Respondent type






The distribution of replies across organisation size (41 respondents apart from the two of EU citizens) is tilted towards large organisations (see 

Figure 


2

 below). In particular, 21 large (250 or more employees), 9 micro (1 to 9 employees), 6 small (10 to 49 employees), and 5 medium organisations (50 to 249 employees) replied. 



Figure 2. Size of organisations


Among the respondents, the business associations either represent the interests of national members in specific industry sectors or focus their activities on a specific sector but have members in several Member States or the entire EU. The companies responding are active in several industries, such as ICT and finance.


The law firms that responded are active in Europe and tend to have clients in several Member States and beyond. A number of lawyer associations also provided their comments.


The academic and research institutes that responded to the consultation are based in the Netherlands.


All companies/business organisations that responded (a total of 9) are large in size (i.e. have over 250 employees).


II.EU Survey Results


The aim of the public consultation was to collect views from stakeholders on the five mandatory evaluation criteria set out in the Better Regulation Guidelines, namely effectiveness, efficiency, relevance, coherence and EU added value. While the questionnaires asked for views on all evaluation criteria, stakeholders did not necessarily provide their comments in reaction to each question, but either cross-referred to comments made in response to other questions or to separate submissions. The below summary of the contributions is therefore structured around the five evaluation criteria (and statistics are provided on this basis) while the qualitative comments are based on a holistic review of the responses to the public consultation.


The summary of contributions in this section presents the combined results for topics addressed in both the general and detailed questionnaires. 


1.Effectiveness (Have the objectives been met?)


In order to evaluate whether the Antitrust Procedural Regulations have met their objectives, stakeholders were asked to answer a number of questions related to effectiveness.


The first set of questions inquired whether, in the view of the respondents, Regulation 1/2003 achieved its objective of an effective and uniform application of Articles 101 and 102 TFEU in the EU. 



In response to the first question on whether Regulation 1/2003 has achieved its objective of an effective and uniform application of Article 101 TFEU in the EU, 64% of respondents (23) replied “yes”. 22% of the respondents (8) answered this question in the negative, while 14% of the respondents (5) replied “do not know”. 7 respondents did not answer (see 

Figure 4

 below).




Figure 4. In your view, has Regulation 1/2003 achieved its objective of an effective and uniform application of Article 101 TFEU in the EU?



Respondents also answered the question whether Regulation 1/2003 achieved its objective of an effective and uniform application of Article 102 TFEU in the EU. 69% of the respondents (24) replied “yes”, 17% replied “no” (6) and 14% (5) did not know. 8 respondents did not answer (see 

Figure 


5

 below).



Figure 5. In your view, has Regulation 1/2003 achieved its objective of an effective and uniform application of Article 102 TFEU in the EU?





Many respondents were of the view that Regulation 1/2003 has contributed to the effective and uniform application of EU competition rules. However, some respondents did consider that there is still some divergence in the application of Articles 101 and 102 TFEU between the EU and Member State levels and that this divergence has negative implications for the effectiveness and uniformity of these rules. 


The second set of questions focused on the Commission’s procedural powers and the protection of the parties’ procedural rights under the Antitrust Procedural Regulations.



Respondents expressed their opinion on whether Regulation 773/2004 has been effective in empowering the Commission to regulate certain aspects of proceedings for the application of Articles 101 and 102 TFEU (notably concerning the initiation of proceedings, the Commission’s powers of investigation, the handling of complaints, the exercise of the right to be heard, access to the file, the limitations to the use of information obtained and time-limits). 61% of all respondents (22) answered this question positively, while 14% of the respondents (5) replied “no” (see 

Figure 


6

 below). 25% of the respondents (9) responded that they did not know and 7 respondents did not answer.



Figure 6. In your view, has Regulation 773/2004 been effective in empowering the Commission to regulate certain aspects of proceedings for the application of Articles 101 and 102 TFEU (notably concerning the initiation of proceedings, the Commission’s powers of investigation, the handling of complaints, the exercise of the right to be heard, access to the file, the limitations to the use of information obtained and time-limits)?



Regarding investigative tools, the consultation asked stakeholders for their opinion on whether the following 5 investigative tools provided by Regulation 1/2003 provide for effective means to detect and investigate potential infringements of Articles 101 or 102 TFEU (see 

Figure 


7

 below).


Figure 7. In your view, do the following investigative tools provided by Regulation 1/2003 provide for an effective means to detecting and investigating potential infringements of Articles 101 or 102 TFEU?


Many respondents were of the view that the Commission’s investigative tools are effective. Regarding sector inquiries (Article 17 of Regulation 1/2003), 66% (23) of respondents thought that the Commission’s power is effective, whereas 14% (5) of respondents thought that this power was not effective and 20% (7) of respondents did not know. 8 respondents did not answer. 


Regarding requests for information (Article 18 of Regulation 1/2003), 69% (25) of respondents thought that the Commission’s power is effective, whereas 8% (3) of respondents thought that this power was not effective and 22% (8) of respondents did not know. 7 respondents did not answer.


Regarding the Commission’s power to take statements (Article 19 of Regulation 1/2003) and its powers of inspection (Article 20 of Regulation 1/2003), 66% (23) of respondents thought that the Commission’s power is effective, whereas 6% (2) of respondents thought that this power was not effective and 29% (10) of respondents did not know. 8 respondents did not answer.


Regarding the Commission’s powers of inspection of other premises (Article 21 of Regulation 1/2003), 68% (23) of respondents thought that the Commission’s power is effective, whereas 6% (2) of respondents thought that this power was not effective and 26% (9) of respondents did not know. 9 respondents did not answer. 


Regarding sector inquires (Article 17 of Regulation 1/2003) and requests for information (Article 18 of Regulation 1/2003) some respondents expressed concerns that the questions asked by the Commission are too broad. Some respondents called for clarification of the Commission’s power to take statements under Article 19 or Regulation 1/2003. 


Some respondents indicated that certain aspects of the Commission’s investigative tools may need to be updated to reflect how companies operate in a more digitised economy. For example, in the context of the Commission’s inspection powers (Articles 20 and 21 of Regulation 1/2003), some respondents noted that companies’ data is now commonly hosted in the cloud and that the reality of “home working” is a relevant consideration for conducting inspections of other premises.



Another question asked stakeholders whether they considered the provisions of the Antitrust Procedural Regulations to be adequate to effectively protect the procedural rights of all participants in the Commission’s proceedings, i.e. both parties to investigations and other interested parties. 40% of all respondents (14) answered this question positively, while 37% of all respondents (13) replied “no” to this question (see 

Figure 


8

 below). 23% (8) of respondents chose the option “don’t know”. 8 respondents did not answer.



Figure 8. In your view, are the provisions of Regulations 1/2003 and 773/2004 adequate to effectively protect the procedural rights of all participants in the Commission’s proceedings, i.e. both parties to investigations and other interested parties?


While most respondents considered that the Antitrust Procedural Regulations do effectively protect procedural rights, a number of issues were highlighted by stakeholders in this context. For example, while some respondents made remarks concerning the burden and timeliness of the access to file process, others highlighted the importance of the Commission protecting confidentiality. As regards complaints specifically, some stakeholders commented on the slowness of Commission’s decision-making process. Some stakeholders also queried the extent to which the current procedures ensure adequate protection of third parties’ rights in proceedings.


Stakeholders also answered the question whether, in their view, the decisional powers granted to the Commission by Regulation 1/2003 were adequate to ensure the effective application of Articles 101 and 102 TFEU:






Figure 9. In your view, are the following powers granted to the Commission by Regulation 1/2003 adequate to ensure the effective application of Articles 101 and 102 TFEU?


Many respondents considered that the Commission’s decisional powers are effective and commented on the importance of structural and behavioural remedies for effective enforcement. 


Regarding the Commission’s power to require undertakings and associations of undertakings to bring an infringement to an end and the Commission’s power to impose behavioural or structural remedies (Article 7 Regulation 1/2003), 80% (28) of respondents thought that the Commission’s power is effective, whereas 9% (3) of respondents thought that this power was not effective and 11% (4) of respondents did not know. 8 respondents did not answer.


Regarding the Commission’s power to order interim remedies (Article 8 Regulation 1/2003), 60% (21) of respondents thought that the Commission’s power is effective, whereas 17% (6) of respondents thought that this power was not effective and 23% (8) of respondents did not know. 8 respondents did not answer.


Regarding the Commission’s power to make binding the commitments offered by undertakings (Article 9 Regulation 1/2003), 74% (25) of respondents thought that the Commission’s power is effective, whereas 12% (4) of respondents thought that this power was not effective and 15% (5) of respondents did not know. 9 respondents did not answer.


Regarding the Commission’s power to find that Article 101 and/or Article 102 are not applicable to a specific case (Article 10 Regulation 1/2003), 51% (18) of respondents thought that the Commission’s power is effective, whereas 20% (7) of respondents thought that this power was not effective and 29% (10) of respondents did not know. 8 respondents did not answer.


Some stakeholders called for increased use of proportionate interim measures (Article 8 Regulation 1/2003) and some also commented that the legal and procedural requirements for interim measures may be too burdensome. The commitments procedure (Article 9 Regulation 1/2003) was also generally viewed by many stakeholders as effective. Some stakeholders also called for wider use of the Commission’s powers under Article 10 Regulation 1/2003 (finding of inapplicability). 


A third set of questions concentrated on the Commission’s fining powers from a substantive and a procedural point of view.



First, respondents expressed their view on whether the power to impose fines on undertakings for substantive breaches of Article 101 and 102 TFEU granted to the Commission by Regulation 1/2003 was adequate to ensure the effective application of Articles 101 and 102 TFEU (see 

Figure 


10

 below). 67% (24) of all respondents answered this question positively. 11% (4) of the respondents replied “no” to this question. 22% (8) of all respondents chose the option “don’t know”. 7 respondents did not answer.




2
Figure 10. In your view, are the Commission’s fining powers effective in sanctioning infringements and ensuring full compliance with Articles 101 and 102 TFEU?



The second question inquired whether the respondents considered the power to impose fines on undertakings for breaches of antitrust procedural rules, granted to the Commission by Regulation 1/2003, adequate to ensure the effective application of Articles 101 and 102 TFEU (see 

Figure 


11

 below, also for the slightly different wording of the corresponding question in the DQ). Again, 69% (24) of all respondents answered this question positively. Only 6% (2) of all respondents replied “no” to this question. 26% (9) of the respondents chose the option “don’t know”. 8 of all respondents did not answer.



 


Figure 11. In your view, are the 



3
Commission’s fining powers effective in ensuring full compliance with the procedural obligations associated with proceedings under Articles 101 and 102 TFEU?


Many respondents considered the Commission’s fining powers to be effective in achieving a deterrent effect, although some stakeholders considered that fines remained too low (in particular for very large companies). Other stakeholders also called for an examination of whether the Commission’s fines remain deterrent. Some stakeholders also expressed the view that the degree of transparency in the Commission’s fining process should be increased. Some respondents commented that the existence of effective compliance programmes within a company should merit a reduction in any fine imposed on the company.


2.Efficiency (Were the costs involved proportionate to the benefits?) 


In this section of the questionnaires, the questions concerned the efficiency of the Antitrust Procedural Regulations.





Respondents answered the question whether, in their view, the system of parallel enforcement of Articles 101 and 102 TFEU by the Commission and the National Competition Authorities introduced by Regulation 1/2003 led to a more efficient enforcement across the EU, compared to the previous centralised system set up by Regulation No 17 (see 

Figure 13

 below). 71% (25) of all respondents answered “yes” to this question and 17% (6) of all respondents answered this question negatively. 11% (4) of the respondents chose the option “don’t know”. 8 respondents did not answer.


 


Figure 13. In your view, has the system of parallel enforcement of Articles 101 and 102 TFEU by the European Commission and the National Competition Authorities introduced by Regulation 1/2003 led to more efficient enforcement across the EU, compared to the previous centralised system set up by Regulation No 17?


Many respondents considered the system of parallel enforcement as leading to more efficient enforcement of Articles 101 and 102 TFEU. Some respondents did indicate, however, that there was some lack of clarity and transparency surrounding case allocation rules. 




Respondents also expressed their opinion on whether, in their view, the removal of the system of notification of business agreements to the Commission has resulted in a more efficient application of Article 101 TFEU (see 

Figure 


14

 below). 69% (25) of all respondents answered “yes” to this question, while 14% (5) of all respondents replied “no” to this question. 17% (6) of the respondents chose the option “don’t know”. 7 respondents did not answer.




Figure 14. In your view, has the removal of the system of notification of business agreements to the Commission resulted in a more efficient application of Article 101 TFEU?



Many respondents were positive about the removal of the requirement to notify business agreements by Regulation 1/2003. Some stakeholders indicated, however, that they would welcome more guidance (through guidelines or decision-making practice), which remains important for businesses.




Stakeholders were also asked whether the procedures set up in the Antitrust Procedural Regulations have generally contributed to a timely and efficient enforcement of Articles 101 and 102 TFEU (see 

Figure 


15

 below). 49% (17) of all respondents answered this question positively, while with 34% (12) over a third of the respondents answered this question with “no”. 17% (6) of the respondents chose the option “don’t know”. 8 respondents did not answer.




Figure 15. In your view, have the procedures set up in Regulation 1/2003 and Regulation 773/2004 generally contributed to a timely and efficient enforcement of Articles 101 and 102 TFEU?


Some stakeholders commented that they consider Commission investigations lengthy. Some of the respondents also called for more information to be given by the Commission (to both parties and third parties) throughout the investigation.


3.Relevance (Is EU action still necessary?) 


The questionnaires asked stakeholders certain questions regarding the continuing relevance of the Antitrust Procedural Regulations. Stakeholders overwhelmingly confirmed the continuing relevance of the Antitrust Procedural Framework. 



When asked whether, in their view, the objectives of an effective and uniform application of Article 101 TFEU of Regulation 1/2003 are still relevant (see 

Figure 


16

 below), 91% (32) of respondents answered “yes” to this question, while one respondent answered this question in the negative. 2 respondents chose the option “don’t know”. 8 respondents did not answer.






Figure 16. In your view, are the objectives of an effective and uniform application of Article 101 TFEU of Regulation 1/2003 still relevant?



Similarly, when asked whether in their view, the objectives of an effective and uniform application of Article 102 TFEU of Regulation 1/2003 is still relevant (see 

Figure 


17

 below), 89% (31) of respondents answered this question positively, while only 3% (1) answered this question with “no”. 9% (3) of the respondents chose the option “don’t know”. 8 respondents did not answer.



Figure 17. In your view, are the objectives of an effective and uniform application of Article 102 TFEU of Regulation 1/2003 still relevant?


4.Coherence (Does the policy complement other actions or are there contradictions?) 



The questionnaires also asked stakeholders whether the Antitrust Procedural Regulations are coherent with other legal instruments and policies. Stakeholders were asked for their opinion on whether, in their view, the Antitrust Procedural Regulations are overall coherent, including with other EU legislation and EU policies (see 

Figure 


18

 below). 53% (18) of all respondents answered “yes” to this question, while 15% (5) of all respondents answered this question in the negative. A relatively high share of 32% (11) of all respondents chose the option “don’t know”. 9 respondents did not answer.


 


Figure 18. In your view, are Regulations 1/2003 and 773/2004 overall coherent, including with other EU legislation and EU policies?


Many respondents thought that the Antitrust Procedural Regulations are coherent with other legal instrument and policies, although some expressed difficulties in responding to this question. Some respondents identified specific or general areas of EU legislation that could be viewed as being incoherent with the Antitrust Procedural Regulations. 


5.EU Added Value (Did EU action provide clear added value?) 



Finally, the  questionnaires asked stakeholder whether, in their view, the Antitrust Procedural Regulations have contributed to ensuring the effective and uniform application of Articles 101 and 102 TFEU in a manner that goes beyond what would have been achieved by Member States alone (see 

Figure 


19

 below). 85% (29) of all respondents answered this question positively, while one respondent answered “no” to this question. 12% (4) of the respondents chose the option “don’t know”. 9 respondents did not answer.




Figure 19. In your view, have Regulations 1/2003 and 773/2004 contributed to ensuring the effective and uniform application of Articles 101 and 102 TFEU in a manner that goes beyond what would have been achieved by Member States alone?







(1)


 Some respondents classified themselves incorrectly (for instance, some law firms or associations of lawyers classified themselves as business organisations or associations, while in fact they classify as ‘others’). These mistakes have been corrected for the purposes of this summary and the statistics established on the basis of the corrected dataset. 




(2)


 This chart combines the results of question 6(f) of the general questionnaire (In your view, are the following powers granted to the Commission by Regulation 1/2003 adequate to ensure the effective application of Articles 101 and 102 TFEU?) and the results of question 32 of the detailed questionnaire (In your view, are the Commission’s fining powers effective in sanctioning infringements and ensuring full compliance with Articles 101 and 102 TFEU?)




(3)


 This chart combines the results of question 6(g) of the general questionnaire (In your view, are the following powers granted to the Commission by Regulation 1/2003 adequate to ensure the effective application of Articles 101 and 102 TFEU?) and the results of question 33 of the detailed questionnaire (In your view, are the Commission’s fining powers effective in ensuring full compliance with the procedural obligations associated with proceedings under Articles 101 and 102 TFEU?)