Source: EURLEX
Language: en
Format: md

*|*

# 52014SC0230

**COMMISSION STAFF WORKING DOCUMENT Ten Years of Antitrust Enforcement under Regulation 1/2003 Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives /\* SWD/2014/0230 final \*/**

  

COMMISSION STAFF WORKING DOCUMENT

Ten Years of Antitrust Enforcement under
Regulation 1/2003

Accompanying the document

COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

Ten Years of Antitrust Enforcement
under Regulation 1/2003:
Achievements and Future Perspectives

I
INTRODUCTION

1.
Over the last ten years, the European Commission
("Commission") and the Member States' Competition Authorities ("NCAs"),
which together form the European Competition Network ("ECN"), have
engaged in a high number of enforcement actions based on Articles 101 and 102
TFEU (the “EU competition rules”). A keystone of the legal framework
underpinning these actions is Regulation 1/2003.[1] The recent tenth anniversary of its entry into application on 1 May
2004 makes this a timely moment to: (1) provide a facts-based review of
enforcement by the Commission and NCAs during the last decade; and (2) examine
some key aspects of enforcement by the NCAs. This Staff Working Document, which
accompanies the Communication on Ten Years of Antitrust Enforcement under
Regulation 1/2003: Achievements and Future Perspectives (the “Communication”), addresses
aspect (1) and takes stock of the enforcement record of the Commission and the
NCAs.[2]

2.
This review of the application of the EU
competition rules by the Commission and NCAs has illustrated their commitment
and vigilance to detect and pursue infringements that may harm consumers and
the economy in the EU. In the period covered, from 1 May 2004 until 31 December
2013, the Commission and NCAs have adopted more than 700 enforcement decisions,
concerning a wide range of types of infringements, relating to almost all
sectors of the economy and ensuring enforcement across all parts of the Union. More specifically, during the reported period
the Commission has adopted 122 decisions enforcing the EU competition rules,[3] whilst NCAs have informed the Commission of 665 envisaged decisions
applying these provisions.[4]

3.
Regulation 1/2003 constitutes a major reform of
antitrust procedures in the EU. It replaced the
centralised notification and authorisation system set out in Regulation 17[5] by an enforcement system that is based on the direct applicability
of the EU competition rules in their entirety. It has also empowered NCAs and
national courts to apply all aspects of the EU competition rules and introduced
new and closer forms of cooperation between enforcers, including notably the
ECN.

4.
The change in system has given greater scope to
the Commission to set its priorities, enabling it to devote more significant
resources to investigating cases and conducting inquiries into key sectors of
the economy suffering from market distortions,[6] and give attention to new sectors presenting less conventional
forms of anticompetitive behaviour, which can be of particular importance to
consumers.

5.
As the new system
relies even more on market players assessing the compatibility of their
(contemplated) conduct with the antitrust rules, and on targeted ex post
control by competition authorities, the provision of general guidance is
emphasised. In this respect, the Commission adopted a set of notices giving
guidance on a range of substantive and procedural matters at the entry into
application of the regulation. In the following years, the Commission continued
its commitment to providing guidance by adopting and revising block exemption
regulations and accompanying guidelines concerning the application of Article
101 TFEU to horizontal,[7] vertical[8] and technology transfer agreements.[9] The Commission, moreover, issued a guidance paper on its priorities
in the application of Article 102 TFEU to exclusionary abuses.[10] It further adopted a new set of guidelines on setting fines, a new
leniency notice, rules on settlements in cartel cases, provided an information
note on inability to pay and published a notice on best practices in antitrust
cases.[11]

6.
Regulation 1/2003 greatly enhanced the role of NCAs
and of national courts as enforcers of the EU competition rules.[12] Over and above the power to apply the EU competition rules in full,
the Regulation obliges NCAs and national courts to apply EU competition law
when agreements, decisions by associations of undertakings or concerted
practices under scrutiny are capable of affecting trade between Member States. These
changes have boosted enforcement of the EU competition rules by the NCAs. The
Regulation also introduced cooperation tools and obligations with a view to
ensuring efficient work sharing, effective cooperation in the handling of cases
and to fostering coherent application. Building
on the cooperation mechanisms in the Regulation, the ECN has developed into an
effective forum for exchanging experience on the application of the EU competition
rules as well as promoting the convergence of national procedures and sanctions
with Regulation 1/2003.[13]

7.
Since May 2004, the competent courts of the Member
States also apply the EU competition rules in full. The present report focuses
on the use of the tools for cooperation between the Commission and national
courts that were clarified and refined by the Regulation. They include the
possibility for national courts to request an opinion from the Commission and
the now well established power of competition authorities to submit
observations as amicus curiae to courts. The Commission has also been
active in setting up regular training for national judges across the EU on the
enforcement of the EU competition rules. Each year, hundreds of judges
participate in these training programmes. The
Commission has also focused on
improving the effectiveness and coherence of private damages claims brought
before national courts. Based on its proposal, a Directive on antitrust damages
actions will be adopted soon.[14]
Once implemented in the Member States,[15]
private enforcement is likely to increase significantly across the EU.
Moreover, as the Directive optimises the interplay between private damages
claims and public enforcement by the Commission and the NCAs (for instance, the
protection of investigation tools such as leniency programmes and strengthening
the effect of infringement decisions by NCAs for damages actions before national
courts, etc.), the overall effectiveness of antitrust enforcement in the EU is
expected to increase. A
review clause provides that within four years after the
transposition deadline the Commission will review the impact of the Directive
and, if appropriate, propose further legislative measures.

8.
This report reviews the Commission’s and NCAs’
enforcement activities from three different perspectives: Chapter II looks at the
Commission’s and NCAs’ enforcement practice by analysing the different types of
infringements of the EU competition rules that were addressed in the decisions
of these authorities. Chapter III examines the sectors on which the Commission’s
and the NCAs’ antitrust enforcement activities have focussed in the past decade
and considers in more detail the sectors which were at the centre of the
authorities' actions. The last Chapter IV looks at the Commission’s and the
NCAs’ antitrust enforcement activities by type of procedure used (e.g.
prohibition decisions vs. commitment decisions). It also provides some insight
into the enforcement and cooperation tools that the Commission and the NCAs
have at their disposal. Finally, this chapter includes an overview of the
cooperation mechanisms used within the ECN and those used in the relationship between
the Commission and national courts.

II
ENFORCEMENT ACTIVITY BY TYPE OF INFRINGEMENT

9.
This Chapter looks at enforcement activities by
type of infringement, and addresses the decision practice of the Commission and
the NCAs, guidance provided through notices and regulations as well as general
trends and developments.

A
General overview
1
Commission

10.
Since the entry into application of Regulation
1/2003, the Commission has adopted a total of 122 decisions applying Article
101 TFEU and Article 102 TFEU (including when applied in conjunction with
Article 106 TFEU).[16] Figure 1 illustrates the breakdown of these decisions by type of
infringement. The large majority of the 122 decisions were cases applying Article
101 TFEU (73%, 89 decisions) and most of them related to cartels (59 decisions,
amounting to 48% of all decisions), which shows the clear priority given by the
Commission to the fight against these pernicious infringements. Other horizontal
agreements account for 15% (18 decisions) and vertical agreements account for 9%
(eleven decisions) of all Commission cases during the
period. More details on the Commission’s decisions applying Article 101 TFEU
are set out in section B below.

11.
In addition, the Commission since May 2004
adopted 24 decisions applying Article 102 TFEU (20% of all cases), which are
discussed in more detail in section C below. The remaining cases consist of four
decisions applying Article 106 TFEU in conjunction with Article 102 TFEU (3% of
all cases)[17] and seven procedural decisions pursuant to Articles 23 and 24 of
Regulation 1/2003 (6% of all cases).[18]

Figure 1: Commission's cartel and antitrust
decisions from 1 May 2004 to 31 December 2013

2
NCAs

12.
From May 2004 to December 2013, the NCAs
informed the Commission of forthcoming enforcement decisions in 665 cases. [19] The
majority were based on Article 101 TFEU (58%, 387 decisions),[20] whilst the remainder were mainly applying Article 102 TFEU (32%, 213
decisions) and a small percentage were based on both Articles 101 TFEU and 102
TFEU (10%, 65 decisions).

13.
The material received shows that in many
instances, NCAs pursued several types of alleged anti-competitive practices in
the same envisaged decision. Within the 665 envisaged decisions, the NCAs have
tackled abuses of dominant position (36%, about 278 instances), cartels (27%, about
203 instances), other horizontal agreements (19%, about 142 instances) and
vertical agreements (18%, about 135 instances), calculated on a total of 758
practices.

Figure 2: Envisaged decisions submitted by
NCAs in the period May 2004 – December 2013

B
Article 101 TFEU
1
Commission

14.
As can be seen in Figure 1 above, Article 101 TFEU
has been the most applied provision of the EU competition rules by the
Commission, in particular to cartels.

Cartels

15.
Cartels are the most harmful type of competition
infringement. As they are secret – hidden in particular from customers – public
enforcement is vitally important as otherwise many cartels would never come to
light. Rigorous enforcement action against cartels has therefore been the top
priority of the Commission throughout the last ten years.[21] An analogue trend can be observed for a number of NCAs.[22]

16.
Effective public enforcement requires a mix of
both ex officio and leniency cases; without ex officio cases, the incentive on undertakings
to apply for leniency may be reduced. Leniency programmes are important to
detect secret cartels, to collect the necessary evidence to sanction cartels
and to de-stabilise cartels. Enforcement therefore requires adequate protection
of leniency statements by companies – without such protection the incentive to
apply for leniency is again reduced. Over the past ten years, the Commission
has maintained both a good track record of ex officio cases and strong
protection of leniency statements, with the result that leniency applications
have continued at a high level throughout the period. The use of the leniency programme
is further addressed in Chapter IV.

Figure
3: Origin of Commission's Article 101 decisions from 1 May 2004 to 31 December
2013[23]

Cartels only || Other Article 101 cases

||

17.
Figure 3 shows that in the Commission's cartel
investigations, approximately one quarter of cases were initiated ex officio, whereas
around three quarters were triggered by leniency applications. In other (non-cartel)
cases based on Article 101 TFEU the investigations originated in broadly equal
numbers from complaints and from ex officio inquiries. Even if complaints may
have triggered Article 101 TFEU decisions to a lesser extent than ex officio
inquiries, they play an important role in investigations and may provide the
Commission with useful market information. This report does not cover decisions
rejecting complaints taken pursuant to Article 7(2) of Regulation 773/2004[24] on the basis of insufficient grounds for acting.

18.
With respect to cartels there has been a
significant shift in the past ten years under Regulation 1/2003 as to the types
of cases pursued. Firstly, the cases pursued are no longer primarily centred on
industrial products and the chemicals sector in particular. Rather,
investigations have branched out to incorporate a more diversified range of
products (such as food and consumer electronics) and have also extended to the
services sector, notably transport and financial services.

19.
Secondly, due to the globalisation of the
economy, cartels are also becoming more and more global nowadays. This implies
that the geographic scope of investigations is often much wider than was
previously the case. Investigation of worldwide cartels, which is undertaken
alongside non-EU competition authorities, has become the norm rather than the
exception. This is facilitated by the decentralisation put into place by
Regulation 1/2003 as cartels that principally have effects in the territory of
a single Member State or up to three Member States are usually pursued by the NCAs whilst
the Commission is particularly well placed to tackle cartels of a broader
geographic scope.

20.
Thirdly, there has been an increasing number of
follow on cases where an investigation in one market has led to leniency
applications and subsequent investigations in related markets (see, for
instance, the automotive parts investigations)[25]. This occurred  without any system of additional incentives for
leniency applicants as is the case in the United States (US) and the United
Kingdom (UK) under their 'amnesty plus' and leniency plus' policies.

21.
Fourthly, there are indications that cartels are
becoming ever more sophisticated with the use of tools designed to minimize the
risk of detection. This has been shown in recent cartels involving the use of
code words, encrypted documents, dedicated email accounts and/or dedicated
phones. There has also been a significant shift in the type of evidence found
and relied upon. Nowadays a handwritten 'smoking gun' in hard copy form is
unlikely to be found on the desk of one of the company's employees. Rather than
finding such documents, which may have constituted sufficient proof of the
cartel, the trend is more towards the piecing together of a huge number of
documents to establish the infringement. Furthermore, documents are now almost
exclusively in electronic form and the Commission responded to this by
increasing the IT skills of its inspectors and by developing a specialist
forensic IT capability.

22.
Finally, conducting investigations into
suspected cartel behaviour in recent years typically required in-depth
cooperation with major authorities around the globe. Much more than in the
past, the Commission now deals with large European-wide if not global cartels,
involving large undertakings with considerable sales of the affected products
or services, often over a long period (e.g. recent decisions in the TV &
Computer Monitor Tubes,[26] Wire Harnesses[27] and Financial cases[28]). As a consequence, there is in recent years, in addition to
cooperation within the ECN, increasing cooperation during the investigation with
non-European authorities belonging to the International Competition Network (the
ICN).[29]

Other horizontal
anticompetitive agreement or concerted practices

23.
The Commission’s focus on rigorous enforcement
actions against cartels did not prevent it from dedicating attention and
resources to other agreements between competitors (horizontal agreements), in
particular horizontal cooperation agreements. The challenge in assessing such practices
is often to determine whether they restrict competition and may or may not be
justified under Article 101(3) TFEU.

24.
To assist market participants as well as enforcers
in this assessment and to provide for a considerable degree of legal certainty,
the Commission reviewed and, in 2010, updated the Block Exemption Regulations applicable
to horizontal cooperation agreements. One of the overarching policy objectives of
the review process was to ensure that the EU
competition rules in this area are applied in a manner that
promotes rather than stifles innovation and competitiveness. To this effect, the
Commission adopted new Block Exemption Regulations on research and development ("R&D")
agreements,[30] and on specialisation agreements.[31]

25.
Both Regulations provide greater clarity about what
type of R&D,
specialisation and production agreements are unlikely to raise competition
concerns. They also considerably extend the scope of the safe harbours created
by the exemptions in relation to certain types of horizontal agreements which
do not contain hard-core restrictions and are entered into by undertakings with
relatively low market shares (that is below 20 or 25%). With a view to facilitating
innovation, the 2010 R&D Block Exemption Regulation covers not only joint
R&D activities, but also so-called "paid-for-research" agreements
where one party finances the R&D activities carried out by the other party.

26.
Along with the adoption of the two regulations
the Commission revised the accompanying guidelines on the assessment of
horizontal cooperation agreements ("Horizontal Guidelines").[32] One of the major novelties of the revised text is that it provides,
for the first time, comprehensive and widely demanded guidance on how to assess
the compatibility of exchanges of information between competitors with EU
competition law. Moreover, the Horizontal Guidelines contain a chapter on
standardisation agreements that was substantially revised and updated with a
view to encouraging the establishment of open standard-setting systems and
reflecting recent developments in this sometimes controversial area.

27.
Moreover, in the first half of 2012, the
Commission carried out a public consultation on a proposal to revise the then applicable
technology transfer Block Exemption Regulation as well as the accompanying guidelines.[33] The new rules were adopted on 21 March 2014 and entered into application in May 2014.[34] Similar to the block exemption regime for horizontal cooperation
agreements, they are designed to facilitate and incentivise pro-competitive
behaviour, in particular innovation and the diffusion of intellectual property,
in a manner that does not give rise to competition concerns.

28.
As regards concrete enforcement actions, the
Commission has applied Article 101 TFEU since May 2004 in 18 decisions against horizontal
cooperation practices. These include practices such as non-compete and non-disclosure/use
obligations, the limitation of retail price competition, pay for delay
agreements, exclusive dealing and joint marketing agreements with price setting
mechanisms or revenue sharing joint ventures. The Commission’s intervention in
these cases, be it through prohibition decisions pursuant to Article 7 of Regulation
1/2003 or through commitment decisions pursuant to Article 9, had an important
impact in different sectors of the economy. For example, in a series of cases
in the payment systems sector, such as MasterCard or Visa Debit,[35] the Commission challenged horizontal price setting agreements
resulting in high interchange fees and achieved a reduction of these fees below
an anti-competitive level to the benefit of millions of consumers and retailers
in the EU.

29.
The infringements tackled in the cases regarding
horizontal practices were typically very serious infringements, with
significant repercussions for consumers. In addition to protecting the effective
competitive process and thus addressing consumer harm, many of the Commission’s
decisions have given guidance to market participants on important and often topical
issues. For example, the non-compete obligations in Telefónica/Portugal
Telecom[36] which provided that Telefónica and Portugal Telecom would no longer
compete with each other in the Iberian telecommunications markets, constituted
a clear breach of Article 101 TFEU. More recently, the Commission used Article
101 TFEU to prohibit "pay for delay" arrangements in the
pharmaceutical sector, fining both originator and generic undertakings for agreeing
to delay the launch of generic medicines in return for considerable value
compensation.[37] Such arrangements, whereby generic producers commit not to enter
the market in exchange for a value transfer from the originator, allowing the
originator to keep prices at supra-competitive level and to share the resulting
rent with the generic producers, are a very serious violation of Article 101 TFEU.
They cost European patients, national health schemes and private health
insurance companies billions of Euros per year.

30.
In the transport sector the Commission has been particularly
vigilant regarding revenue-sharing joint ventures that may restrict competition
to the detriment of a large number of consumers. In both the British Airways/American
Airlines/Iberia case and the Star Alliance case, the Commission
intervened and accepted entry facilitating commitments by a number of
international air carriers that had formed joint ventures for their
transatlantic flights.[38] Those joint ventures affect a large number of European consumers
and businesses for whom the Commission's intervention brings about direct
benefits in ensuring competition on economically important travel routes.

31.
The Commission's 2009 commitment decision in the
Ship Classification case not only dealt with practices that were harmful
to the ship classification market; it also gave much needed guidance on the
competition law assessment of standardisation agreements, a very topical issue
at the time and still today. [39] Moreover, many of the issues dealt with during the investigation
helped shaping the comprehensive guidance on standardisation agreements which
was subsequently set out in the revised Horizontal Guidelines mentioned above.

Vertical restraints

32.
Vertical agreements are the other large category
of practices that can fall within the scope of Article 101 TFEU. These are
agreements between undertakings that operate at different levels of the
production or distribution chain and that therefore do not compete on the same
markets. For many of these agreements, competition concerns only arise if there
is insufficient competition at one or more levels of trade, in other words, if
there is market power either at the level of the supplier or the purchaser.
Vertical restraints are also generally seen as less harmful than horizontal
restraints because they can provide substantial scope for efficiencies. Notwithstanding, certain restrictions contained in vertical
agreements can have very significant negative effects on competition and thus be
to the detriment of consumers.

33.
During the past decade, the Commission addressed
competition issues and provided guidance in relation to vertical agreements
through a combination of policy initiatives and enforcement actions in concrete
cases.

34.
In April 2010, the Commission published a
revised Block Exemption Regulation on vertical agreements, Regulation 330/2010,[40] and Guidelines on restraints in such agreements ("Vertical
Guidelines").[41] The revised rules and guidance build on the approach which the
Commission introduced fifteen years ago to take account of the effects of
vertical agreements and continues to apply across sectors. The most significant
novelty in the revised Regulation is that for an agreement to be block exempted
not only the supplier's market share but also the market share of the buyer must
be below 30%.

35.
In the revised Vertical Guidelines, particular
attention is given to restrictions that can arise in the rapidly growing area
of e-commerce. In the context of online sales, the Guidelines establish the
principle that authorised distributors must be free to sell on their websites
as they do in their traditional shops and physical points of sales.[42] With these new rules in force, distributors have a clear basis to
develop online activities allowing them to reach, and be reached by, customers
throughout the EU thereby taking full advantage of the internal market.

36.
The only sector for which specific rules for vertical
agreements had continued to exist was the distribution of new cars and the
corresponding aftersales services.[43] In 2010, the Commission reviewed these sector-specific rules and
found that the level of competition regarding sales of new cars had appreciably
increased in the past years whilst specific competition issues persisted with
regards to aftersales services. The Commission therefore retained a sector
specific Block Exemption Regulation only for repair and maintenance services
for cars.[44] Regarding the distribution of new cars, the
general rules of Regulation 330/2010 now apply.[45]

37.
A significant number of vertical business
practices across different industries are block exempted pursuant to Regulation
330/2010. Of those vertical practices in the EU that become subject of an
investigation by a competition authority, a significant portion are being dealt
with by the NCAs, especially when the agreement or agreements concerned
principally have effects on competition in one or in a small number of Member
States.

38.
Nonetheless, the Commission has also carried out
some important investigations into vertical restraints cases and adopted eleven
Article 101 TFEU decisions concerning vertical practices  These Commission
decisions concerned issues such as hard-core restrictions of parallel trade (by
Topps barring imports of Pokémon stickers and cards from low price to high
price countries, and by Peugeot obstructing French consumers from buying cars
in the Netherlands),[46] the imposition of non-compete obligations (by Repsol tying petrol
stations for a long period of time)[47] and agreements between car manufacturers (DaimlerChrysler, Toyota,
General Motors and Fiat) and their after-sales service partners restricting the
release of technical information to independent car repairers which risked foreclosing
the latter from the car after-sales markets.[48]

2
NCAs

39.
Article 101 TFEU has also been significantly
enforced by NCAs. In the period of May 2004 – December 2013, the Commission received
envisaged decisions concerning approximately 203 cartels, 142 other horizontal practices
and 135 vertical practices.

Cartels

40.
As can be seen in Figure 2 above, the fight
against cartels has also been an important area of enforcement for the NCAs,
accounting for 27% of their overall enforcement in the past ten years. The envisaged
decisions regarding cartels concerned a variety of sectors, but the highest level
of activity was in basic industries and manufacturing (66 decisions), as well
as food (34 decisions), transport (31 decisions) and consumer goods (14 decisions).

41.
About one third of these envisaged decisions (34%)
were initiated on the basis of applications made under leniency programmes. However,
most of the envisaged decisions involving cartels have been initiated ex
officio (37%), and a large proportion were based on complaints (29%). Some NCAs,
e.g. the Dutch authority, have implemented a package of measures to boost ex
officio anti-cartel enforcement, for example by adopting informant programmes
and by establishing regular contacts with public bodies which may alert the NCA
about suspected cartels. In a few Member States, where leniency programmes do not
yet operate successfully, the NCAs continue to strongly rely on complaints and
ex officio efforts. Continuous experience with ex officio enforcement
strengthens EU-wide anti-cartel enforcement and makes it less dependent on the
success of leniency programmes.

Figure 4: Origin of NCA Article
101 TFEU envisaged decisions in the period May 2004 – December 2013

Cartels only || Other Article 101

||

42.
As can be seen from Figure 4 above, other
Article 101 TFEU envisaged decisions dealt with by NCAs also originated mainly
ex officio (51%) or are based on complaints (47%). A very small part of these envisaged
decisions (2%) originated from leniency applications as certain Member States
have expanded their leniency programmes to a wider range of infringements than
hard-core cartels.

Other
horizontal restraints

43.
In their envisaged decisions, NCAs have tackled a
significant number of other alleged horizontal practices (142),[49] including cases involving exchanges of information,[50] but also exclusivity, joint selling, marketing and/or
commercialisation, non-compete clauses and joint purchasing. A significant
number of such envisaged decisions, even though not qualified as cartels,
concern pricing issues, including price recommendations by trade associations,
and domestic multilateral interchange fees (MIFs) cases which complement the
Commission's enforcement action targeting bank interchange fees for cross
border transactions.

44.
Some envisaged decisions regarding horizontal
agreements concern less "classical" types of infringements, for
example, practices which denigrate competitors' products. Others cover
decisions by associations of undertakings which aim at limiting market output,
restricting entry of new competitors, limiting advertisement and/or addressing
various pricing issues.

45.
As concerns envisaged decisions addressing exchanges
of information which were deemed to be anticompetitive, roughly half of them involved
exchanges of information on prices, such as the actual future prices or price
increases. The other half or so involved exchanges of other types of
information which was characterised as commercially sensitive, because it
related to competitive parameters, such as the value and volume of sales,
market shares, model formulas for calculating price, production costs,
inventories, or other key terms of credit arrangements. Almost all of these
envisaged decisions contemplated proceeding on a by “object" basis.

46.
From a sectoral point of view, the highest
number of horizontal practices were addressed in sectors such as liberal
professions, media, basic industries and manufacturing and payments systems.

Vertical
restraints

47.
The envisaged decisions received by the
Commission from NCAs contained approximately 135 alleged anti-competitive practices
involving vertical agreements under Article 101 TFEU,[51] in particular Retail Price Maintenance, long term agreements,
market partitioning/restriction of parallel trade, exclusive distribution, exclusive
purchasing, and/or non-compete clauses. The NCAs also addressed some less
"classical" types of practices, such as the obligation in vertical
agreements to disclose information about competitors.

48.
NCAs have tackled alleged restrictions to
parallel trade[52] and other export/import limitations and practices that allegedly aimed
at partitioning the internal market and which may have had cross-border effects.
The Court of Justice has held that "agreements aimed at partitioning
national markets according to national borders or making the interpenetration
of national markets more difficult, in particular those aimed at preventing or
restricting parallel imports, to be agreements whose object is to restrict
competition" within the meaning of Article 101 TFEU.[53] Against that background, NCAs have tackled a variety of hindrances
to parallel trade, including restrictions of both imports into, and exports from,
Member States. Typical examples of restrictions imposed by suppliers include
obligations not to sell to customers in certain Member States. They also
include measures such as the threat of contract termination if such sales take
place, monitoring systems to verify the destination of the supplied goods and
the failure of the supplier to provide an after-sales guarantee service with
respect to products sold in a particular Member State by
"unauthorised" distributors. Such cases have been undertaken by the
NCAs in a variety of sectors, ranging from pharmaceutical products to various
electronic appliances.

49.
The NCAs have also submitted envisaged decisions
involving alleged restrictions to online trade. For example, several NCAs have
been dealing with alleged vertical restrictions in the online hotel booking sector.

50.
In terms of sectors, the highest numbers of alleged
vertical practices dealt with by the envisaged decisions are to be found in
energy, consumer goods, food/agriculture and motor vehicles.

C
Article 102 TFEU

51.
For both the Commission and NCAs, actions under
Article 102 TFEU against abuses of a dominant position constituted a sizeable
portion of their overall enforcement activity, namely 20% and 32% of all their
decisions respectively.[54] Some of these cases are amongst those that during the past ten
years attracted most public attention and spurred debate amongst stakeholders
and commentators.

1
Commission

52.
Since 2004, the Commission has adopted 24
decisions finding 31 infringements (or alleged infringements, in the case of
Article 9 decisions) of Article 102 TFEU. Just under half of these cases arose from
complaints (11), with the remainder being ex-officio cases (13).

Figure 5: Origin of Commission's Article 102 TFEU decisions
from 1 May 2004 to 31 December 2013

53.
In its enforcement of Article 102 TFEU, the
Commission's main focus has traditionally been on exclusionary practices. These
are practices of dominant undertakings that are likely or capable of foreclosing
competitors or limiting effective competition, thereby causing harm to consumers.
Cases involving exploitative practices of dominant firms, such as
discriminatory or excessive pricing, have been less common in the Commission’s
enforcement activity in the last ten years.

Figure 6: Article 102 TFEU[55] – 24 decisions addressing 31 exclusionary and exploitative behaviour from 1 May 2004
to 31 December 2013[56]

Exclusionary abuses

54.
The Commission issued a guidance paper that set
out its enforcement priorities when applying Article 102 TFEU to abusive
exclusionary conduct.[57] The guidance paper provides a general framework for the
Commission's analysis of unilateral exclusionary conduct and a methodology for
the assessment of the most commonly encountered specific forms of exclusionary abuses
(e.g. exclusive dealing, rebates, predatory pricing, and refusal to deal).

55.
The 26 instances of exclusionary behaviour referred
to in Figure 6 were tackled in 20 different decisions (certain decisions
covered several infringements). Several of these behaviours concern "classical"
exclusionary abuses such as refusals to deal, rebates, exclusive dealing, tying
practices and margin squeeze (see paragraph 57 et seq. below). Others concern less ‘conventional’ forms of exclusionary abuses
(see paragraph 61 below).

56.
Article 102 TFEU has been used, inter alia, to effectively
challenge refusals to deal by former vertically integrated monopolists. Refusals
to deal are not uncommon, for instance in the telecoms sector, where despite
the liberalisation of markets, incumbents have frequently obstructed access of
competitors to infrastructures which they were under regulatory obligation to
provide and thereby hindered unfettered competition. Antitrust intervention has
therefore been warranted to remedy this problem. In 2011, the Commission prohibited
the refusal of the Polish Telekom incumbent to give access to its broadband
wholesale products thereby preventing competition in the downstream broadband market.[58]

57.
The Commission also adopted a number of
decisions, where it had concerns that the incumbents in the investigated
markets restricted competitors' access to networks through various forms of
refusal to deal. This included, in the energy sector, abuse by integrated
network operators, such as capacity mismanagement, strategic underinvestment
and capacity hoarding,[59] as well as foreclosure through long term capacity bookings of gas
infrastructure[60] and through pre-emptive capacity reservations on the power
transmission networks.[61] The Commission adopted commitment decisions to make structural
divestitures to remedy these network foreclosure concerns binding and
enforceable.

58.
Another type of infringement observed in particular
in newly liberalised sectors is margin squeeze, which occurs where the spread
between the price charged to competitors upstream and the price charged to the
dominant undertaking's own customers downstream is either negative or
insufficient for competitors, that are as efficient as the dominant
undertaking, to cover the specific cost of the downstream product.[62] In such circumstances, efficient competitors may be able to operate
on the downstream market only at a loss or at artificially reduced levels of
profitability.[63] After having expressly addressed margin squeeze in Deutsche Telekom,[64] the Commission adopted a few years later a prohibition decision
against the Spanish telecommunications incumbent Telefonica.[65] More recently, the Commission expressed concerns that the pricing
behaviour of the German railway incumbent Deutsche Bahn could have resulted in
margin squeeze and could have prevented rivals from competing profitably on
rail transport markets in Germany. At the end of 2013, the Commission accepted commitments
from Deutsche Bahn that addressed those concerns.[66] The Union Courts have so far
upheld the Commission's decisions in margin squeeze cases confirming that margin
squeeze is an independent form of abuse and upholding the analytical assessment
carried out by the Commission in the assessment of margin squeeze.[67]

59.
The Commission has also successfully challenged
other traditional forms of exclusionary abuses such as exclusive dealing
arrangements and rebate schemes:

(1)
In 2006 the Commission imposed a fine on a Norwegian
producer of reverse vending machines, Tomra, for having concluded a number of exclusive
dealing arrangements and for offering retroactive rebate schemes foreclosing
Tomra’s actual and potential competitors. The Commission decision has been
upheld on appeal by the Union Courts.[68]

(2)
In 2009 the Commission found that Intel had been
giving wholly or partially hidden rebates to computer manufacturers on
condition that they bought all, or almost all, their x86 CPUs from Intel. Intel
had also made direct payments to a major retailer on condition it stock only
computers with Intel x86 CPUs. Such rebates and payments were capable of effectively
preventing customers - and ultimately consumers - from choosing alternative
products. In addition to complying with the requirements established in case
law, the Commission also conducted an equally efficient competitor analysis in
its assessment of the compatibility of rebate schemes with Article 102 TFEU.[69]
The Commission decision has been upheld on appeal by the General Court.[70]

(3)
Exclusive dealing arrangements in the form of
long term supply agreements may also raise concerns in the energy sector,
notably to the extent that they lead to a significant degree of customer
foreclosure. In 2007 and 2010, the Commission accepted commitments from incumbent
operators in France and Belgium to put their customer foreclosure practices to
an end and to restore competitive conditions.[71]

60.
Tying is another type of traditional abusive
behaviour which the Commission has continued to pursue. In 2009, the Commission
accepted Microsoft's commitments offered in response to the Commission's
concerns that Microsoft had been tying its web browser Internet Explorer to the
Windows PC operating system.[72] In 2012, the Commission accepted commitments from Rio Tinto Alcan
which put to an end the Commission's concern that the undertaking might have
infringed the EU competition rules by contractually tying the licensing of its leading
aluminium smelting technology to the purchase of equipment.[73]

61.
In addition, the Commission has been confronted
with some less conventional forms of exclusionary abusive behaviour which do not
fit squarely in the traditional categories of exclusionary abuses. In AstraZeneca[74] for instance, the Commission dealt with the misuse of patent
systems and national regulatory systems, while in the Intel case,[75] in addition to abusive rebates schemes, the Commission found that
payments made by Intel to computer manufacturers for postponing or cancelling
the launch of competitors' products constituted a naked restriction of
competition falling within the ambit of Article 102 TFEU.

Exploitative abuses

62.
Exploitative abuses are also liable to infringe
Article 102 TFEU. They pertain to practices that exploit and harm consumers
directly. Typical examples are excessively high prices or the discrimination of
customers that undermines the integration of the internal market. The
Commission's enforcement efforts have traditionally tended to focus particularly
on exclusionary abuses, as intervening against such behaviour can prevent
dominant companies from further consolidating their market power and exploiting
consumers. This being said, exploitative abuses are as much caught by Article
102 TFEU as exclusionary abuses, and in some instances, challenging the
exploitative conduct itself is the only way to remedy consumer harm.

63.
Out of the 24 decisions referred to in Figure 6,
five decisions concerned alleged exploitative abuses, two of which concerned
discrimination,[76] two excessive pricing[77] and one capacity withholding with the view to increasing prices for
consumers.[78] For example, in the Rambus case, the Commission had concerns
that Rambus would have abused its dominant position by not disclosing relevant
patents in the context of a standard-setting process for DRAM technology and thereafter
claiming excessively high royalties for the use of those patents. In response
to the Commission's preliminary assessment that the conduct may constitute an
exploitative abuse, Rambus offered a set of commitments addressing the
Commission's concerns. The Clearstream case is an example of abusive price
discrimination.[79] The Commission found that the dominant undertaking Clearstream had
infringed Article 102 TFEU by charging customers different prices for its clearing
and settlement services. The Commission found no objective justification for
the different treatment of equal transactions. The decision was upheld by the
General Court on appeal.[80]

2
NCAs

64.
From May 2004 to December 2013, NCAs informed
the Commission of 278 envisaged decisions covering alleged abuses of dominant
position contrary to Article 102 TFEU. Figure 7
shows that more than two thirds of the enforcement actions by NCAs under Article
102 TFEU originated from complaints whereas the remainder was based on ex
officio inquiries.

Figure 7: Origin of NCA Article 102 TFEU envisaged decisions in the period May
2004 – December 2013

Figure 8: Types of alleged abuses submitted by NCAs[81]

65.
Similar to the Commission's experience, the
majority of NCAs’ envisaged decisions under Article 102 TFEU dealt with
exclusionary abuses (63%). These were followed in frequency by envisaged
decisions involving both alleged exclusionary and exploitative abuses (22%),
and by envisaged decisions involving only alleged exploitative abuses (15%).[82]

66.
Many envisaged decisions under Article 102 TFEU
covered more than one type of abuse (see graph on the right above). When
analysing the overall pool of alleged abuses tackled by the NCAs about 406
instances were counted, of which about 70% concerned exclusionary practices (about
283).

67.
Most of the alleged exclusionary abuses investigated
by NCAs concerned "classical" abuses such as refusal to deal, rebates,
margin squeeze and tying/bundling, foreclosure through long-term supply
agreements (especially in the energy sector) and exclusivity clauses. In
addition, NCAs have submitted a number of alleged abuses that do not fit squarely
in the usual categories of exclusionary abuses, for example, tackling cross-subsidies
by a dominant undertaking and the denigration of a competitor's products.

68.
The NCAs submitted about 123 instances of alleged
exploitative abuse. Most commonly, the alleged practices were discrimination,
unfair terms and excessive pricing. In a number of envisaged decisions alleging
"discrimination", the practice under scrutiny did not concern
discrimination among independent operators in equivalent transactions, but
rather favouring without objective justification a group's related downstream entity
(for example with respect to prices of inputs) as compared to conditions
offered to competitors downstream. Furthermore, in a number of envisaged
decisions addressing the behaviour of an incumbent operator in the market, an
alleged infringement described as discrimination was included along with an exclusionary
abuse (for example, refusal to supply).

69.
In a few envisaged decisions, NCAs have investigated
alleged excessive prices. These cases concerned the energy sector and media
with intellectual property related issues, as well as the telecoms and transport
markets.

70.
As far as the energy markets are concerned, the
Danish NCA ruled on the abusive behaviour of dominant electricity providers using
their flexible production capacities to operate bidding strategies which allowed
them to charge excessive prices on the wholesale market during certain critical
hours.[83] In Germany, excessive pricing cases concerned electricity prices
charged by dominant energy providers. The German NCA found that charging
industrial customers the value of so-called CO2-allowances which had been
allocated to these electricity providers free of charge according to a German
Emissions Trading Scheme amounted to excessive pricing.[84]

71.
In the media sector, excessive pricing was mostly
interlinked with intellectual property rights. The Latvian NCA ruled on excessive
tariffs imposed by the dominant collecting society for the public use of
musical works.[85] Likewise, in Spain, the collecting society for intellectual
property rights was found to have allegedly abused its dominant position by
imposing excessive and discriminatory prices on private TV stations for the
management of public performance and mechanical reproduction rights over
phonograms.[86] Inter alia, the Spanish NCA compared the national fees with those
applied in other EU member states. Further Spanish cases in the media sector concerned
a collecting society’s abusive imposition of royalties for TV transmissions of audio-visual
works in hotels while yet another decision ruled on the abusive tariffs applied
by a specific collecting society for the collective management of performers' rights.[87]

72.
In the telecoms sector, NCA cases dealing with
excessive pricing include the Spanish investigation into excessive prices
imposed by dominant mobile telephony providers for their provision of wholesale
services for SMS and MMS[88] as well as a French case dealing with several alleged
exclusionary practices of France Télécom in the French overseas territories’
markets for fixed line telecommunications and the Internet, together with the excessive
pricing of leased submarine cable connections between La Réunion island and
mainland France.[89]

73.
The Italian NCA dealt with non-cost-related
tariffs imposed by the manager of airports in Milan (SEA) and qualified them as
abusive.[90] More specifically, SEA was fined by the
Italian NCA for setting inequitable and excessive charges for: (i) the
provision of refuelling infrastructure; (ii) common and individual catering
infrastructure; and (iii) office space for cargo handlers. For all these
services, the charges applied by SEA were found to be far above the economic
value of the services provided. According to the
Italian NCA, the prices giving access to airport infrastructure are in
principle regulated and tariffs must be cost-related within the scope of the remaining
independent decision-making powers of the relevant airport manager.

D
Article 106 TFEU (in combination with Article
101 TFEU or 102 TFEU)
1
Commission

74.
Article 106 TFEU enables the Commission to
protect competition in the internal market by prohibiting measures of Member
States which lead public or privileged undertakings to abuse a dominant
position or to enter into anticompetitive agreements. In such instances, and
provided that the measures go beyond what is necessary for the provision of a service
in the public interest,[91] Article 106(3) TFEU entitles the Commission to adopt a decision
against the Member States concerned.

75.
Since May 2004, the Commission has adopted four
decisions against Member States, finding infringements of Article 106(1) TFEU
in conjunction with Article 102 TFEU. In the BdKEP/Deutsche Post AG
decision of 2004[92] the Commission challenged certain provisions in Germany’s postal
regulatory framework which barred commercial mail preparation firms from
earning discounts for handing over pre-sorted letters at Deutsche Post AG’s
(DPAG) sorting centres. The provisions induced DPAG, which enjoyed exclusive
rights in providing basic postal services, to discriminate against mail
preparation firms. While large senders were allowed to feed self-prepared mail
directly into sorting centres and were granted discounts for doing so,
commercial firms were barred from discounts for mail preparation.

76.
In 2008, the Commission challenged an amendment
in the Slovak postal law which had the effect of reserving the delivery of
hybrid mail to the incumbent postal operator, Slovenská Pošta. Since the entry
into force of that amendment, the delivery of hybrid mail had been
re-monopolised to the benefit of the incumbent operator. Private operators were
prevented from exercising their activity in this field and, as a consequence, incurred
losses that endangered their viability.[93] In another decision of 2008, the Commission found that the Hellenic
Republic had granted a public undertaking exclusive rights to explore and
exploit all significant lignite deposits in Greece. These rights secured for
the public undertaking the cheapest available fuel for production of
electricity and enabled it to maintain or reinforce its dominant position in the downstream wholesale market of electricity by excluding or
hindering market entry of competitors who could rely only on less competitive
fuel.[94]

77.
The Commission's experience suggests that
Article 106 TFEU can be an effective instrument for safeguarding competition in
newly liberalised markets, especially where these markets are closely linked to
markets reserved by the State for public or privileged incumbents. Although the
completion of the liberalisation process reduces the temptations of Member
States to provide privileges that may induce anticompetitive behaviour, the
Commission remains vigilant about any State measures that may restrict competition
without justification.

2
NCAs

78.
Many NCAs attentively follow government action
and play a vital role as advisors to governments and legislators, advocating
pro-competitive approaches and promoting a culture of competition in their
jurisdictions. Such competition advocacy is an integral part of their remit. It
is often used to promote competition friendly solutions in regulatory contexts
and/or to warn against state action that could entail competition issues. Many
NCAs have express powers to issue opinions or similar advocacy instruments[95] and use them regularly. Some are specifically equipped with powers
to take action against measures taken by local or regional state authorities,
where they raise competition problems. Moreover, in a limited number of envisaged
decisions, NCAs have envisaged setting aside a state measure, held to be contrary
to the EU competition rules, on the basis of the CIF judgment.[96] For example, in a recent decision against Poste Italiane, the
Italian NCA decided to set aside national rules on VAT benefiting the incumbent
and concluded that Poste Italiane engaged in an abuse of dominance.[97] The Greek NCA imposed a decision on the Port of Piraeus finding that
it had breached Article 101 TFEU in conjunction with Article 106 TFEU for
unjustified and exclusionary treatment which favoured one port user to the
detriment of others.[98] In a decision against Riga International Airport, the Latvian NCA
obliged the airport to discontinue the application of provisions establishing a
discriminatory discount system for services provided to airlines.[99]

III
ANTITRUST ENFORCEMENT ACTIVITY BY SECTOR

79.
This chapter looks at enforcement activities by
the Commission and the NCAs by sector. It first presents an overview of the overall
level of antitrust enforcement by sector. Thereafter, it provides a more
detailed presentation of the antitrust enforcement activities and general
trends and developments in ten specific sectors.

A
General overview
1
Commission

80.
As mentioned above in Chapter II, since May 2004
the Commission has adopted a total of 122 decisions relating either to
proceedings under the EU competition rules (including in conjunction with
Article 106 TFEU) or to procedural issues under Article 23 and 24 of Regulation
1/2003. Figure 9 shows the distribution of these decisions among different
economic sectors. Although these 122 decisions cover a broad range of products
and services, it is clear that over the past ten years the Commission has
focused on a number of specific key sectors.

Figure
9: Commission antitrust decisions by sector from May 2004 to December 2013

All antitrust decisions || Cartel decisions only || Other antitrust decisions only

|| ||

81.
Over the review period, the basic and
manufacturing industries sector has been the most heavily investigated by the
Commission – 42 decisions were adopted in this area. Energy and the information
technology ("IT") sector have also remained high on the enforcement
agenda, with the Commission issuing 18 and 12 decisions, respectively. The remaining
50 decisions are spread broadly across thirteen different economic sectors,
with only food and agricultural products accounting for more than 5 decisions.
Whilst in the basic and manufacturing industries and the food sectors the
decisions related almost exclusively to cartels, in sectors such as energy, IT &
consumer electronics and payment systems, the majority of Commission decisions
concerned other infringements.

82.
Figure 10 compares the Commission's antitrust
enforcement efforts per sector with the equivalent share of the EU's Gross
Value Added (GVA) for each sector. GVA is a measure of output produced by a
specific sector, assessing the difference between output and intermediate
consumption. It can be seen as a measure of the weight of different sectors in
the overall EU economy.

Figure 10: Commission antitrust
decisions (May 2004 to December 2013) vs EU GVA (2011), by sector

All antitrust enforcement by the Commission || The EU's Gross Value Added (2011)

||

Source: Eurostat, DG COMP. NACE code O (Public administration) has been removed from the chart.

83.
It should be noted that the comparison in Figure
10 can only provide a broad picture. Economic areas such as education and real
estate activities (both included in "Other Services") are not frequently
captured by competition law although they are responsible for around 17% of the
EU's GVA. Furthermore, the categories used in the Eurostat databases do not
always match precisely those used in the Commission's antitrust work. Finally, there is no reason that the intensity of antitrust
enforcement should necessarily match the size a sector has in the economy in
terms of GVA: there can be larger sectors of the economy that are less prone to
antitrust infringements than others; equally, there can be smaller sectors that
are more vulnerable to infringements whilst being particularly important for
economic growth and welfare.

84.
Nevertheless, some trends can still be noted:

(1)
The amount of enforcement in areas such as
financial services, telecoms, transport, motor vehicles and media
(entertainment) generally matches the economic weight of these sectors.

(2)
The Commission has undertaken a significant
amount of work in information and communication technologies and the energy
sector, which is proportionately higher than the relative importance of these sectors
in the economy. Regarding the former, this corresponds to the importance of
these sectors for digital development, which is a key element of the EU’s Lisbon
Strategy and subsequent Europe 2020 Strategy. Regarding the latter, strong
competition scrutiny and enforcement has closely followed the de-regulation of
the energy sector.

(3)
In contrast, professional and scientific
services have not been targeted by the Commission at the level that their
importance to the economy would suggest. The same also appears to apply to the wholesale
and retail trade, as well as food products. In these cases, the enforcement
activity of NCAs is higher than that of the Commission, which may be explained
by the fact that the markets in those sectors tend to be national in scope.

85.
The Commission has pursued a significant number
of cases in regulated sectors where it had carried
out sector inquiries, such as in energy, financial
services and pharmaceuticals. Other sectors on which the Commission's antitrust
enforcement has focussed are sectors
that have been recently liberalised or were in the process of liberalisation
over the last ten years. Examples include, in addition to the energy sector, the
media, telecommunications and postal sectors.

2
NCAs

86.
As concerns enforcement by NCAs, Figure 11 shows
the number and types of alleged anti-competitive practices investigated in
different economic sectors. Although there are several sectors which account
for a significant proportion of the enforcement record, the envisaged decisions
submitted by NCAs are spread over a variety of economic sectors, most notably basic
industries and manufacturing (92), energy (80), transport (69), food (70), media
(66), telecoms (48), consumer goods (42) and "other services" (35).

Figure
11: Envisaged decisions by NCAs by sector May 2004 – December 2013[100]

All envisaged decisions || Cartel only || Other antitrust

|| ||

87.
Similarly to the Commission, a number of NCAs
were active in recently liberalised sectors or sectors in the process of
liberalisation. Both the Commission and NCAs were active in the sectors of
energy, media, telecommunications and post. In addition, NCAs were active in
other recently liberalised sectors, in particular transport.

88.
The graph below provides details regarding the
distribution of alleged anti-competitive practices submitted by the NCAs across
various economic sectors. For example, there were a significant number of
alleged cartels in the basic industries and manufacturing, food, and transport
sectors. It appears that the telecoms, media, energy and transport sectors were
more prone to alleged abuses of dominant positions. Indeed, these sectors are
characterised by high market concentration and/or the presence of historically
dominant operators.

Figure
12: type of infringement by NCAs by sector May 2004 – December 2013

B
Specific sectors

89.
This section examines and briefly comments on
the work and type of cases investigated in different economic sectors by the Commission
and NCAs since May 2004.

1
IT, Internet & Consumer Electronics

90.
The IT, Internet and consumer electronics industries
are fast-moving sectors in terms of technological development. They are widely seen
as a high growth area for the European economy, a potential that can only be
fully activated in properly functioning and competitive markets. At the same
time, these are industries characterised with strong network efforts, which
enable the lock-in of customers and further strengthening of dominant positions.
Vigilance on the part of competition authorities is thus warranted.

91.
The Commission's antitrust enforcement actions
over the past ten years have contributed to achieving better functioning and
more competitive markets, for instance, by targeting activities hindering interoperability
between operating systems (Microsoft is the landmark decision).[101] Dealing with unjustified obstacles to the interoperability of
software and systems has indeed been a recurring theme of antitrust enforcement
in the sector in the past ten years. A second theme has been the intersection
of intellectual property and antitrust law in the context of standardisation,
where the focus of the Commission' activity has been on preventing undertakings
from unfairly exploiting the market power that they have obtained as a result
of the setting of a standard. Given the technological characteristics of the
sector and the importance of innovation as a key parameter of competition, this
theme together with the development of "new" technologies has taken a
more prominent place in  antitrust enforcement than more ‘traditional’ issues
of price competition. That being said, the Commission also found and took
action against price-fixing cartels in relation to products such as LCD panels,
cathode ray tubes and videotape formats.

92.
The twelve decisions
adopted by the Commission in these sectors in the last decade were equally
split between proceedings under Article 101 TFEU, proceedings under Article 102
TFEU and procedural cases. The Article 101 TFEU cases were all cartels, whereas
the Article 102 TFEU cases concerned several types of (alleged) infringements,
such as abusive rebates, tying, refusal to deal and unfair pricing. Six of the
cases in this sector were initiated at the Commission's initiative. The
remainder were three complaints and three applications for leniency.

93.
Prominent examples of Article 102 TFEU cases are
Microsoft (refusal to supply interoperability information and tying),[102] Intel (practices preventing new and innovative products of
competitors from entering the market)[103] and Rambus (unfair pricing in the context of standardisation).[104]

94.
Amongst the twelve cases mentioned above, there
were three non-compliance decisions which were significant in their own right:
two related to periodic penalties imposed on Microsoft in relation to its non-compliance
with the prohibition decision against it 2004 regarding interoperability, and
the other was a decision imposing a fine on Microsoft for its non-compliance
with a subsequent commitments decision from 2009 regarding the tying of its
browser to its PC operating system. These three decisions illustrate the
Commission’s commitment to ensure that the EU competition rules and decisions ordering
their enforcement are fully complied with.

95.
NCAs informed the
Commission of 14 envisaged decisions in the IT/Internet/consumer electronics
sectors. Among the products investigated in the IT sector was, for example,
advertising via the Internet where the French and Italian authorities
investigated allegations of discriminatory practices by Google.[105] Consumer electronic products investigated included Hi-fi and home
cinema equipment as well as plasma and LCD TVs. Furthermore, some envisaged
decisions dealt with competition restrictions related to the distribution of
business software. The infringements investigated by the NCAs were evenly
distributed between Article 101 TFEU and Article 102 TFEU infringements, with
vertical restrictions, such as retail price maintenance, constituting the
majority of alleged Article 101 TFEU infringements.

96.
There were also sector inquiries/market analyses
carried out by NCAs regarding online delivery of services.[106] The reach of the Internet is such that ever more products and
services are provided via this means, with online platforms becoming
increasingly popular. Some NCAs have investigated so-called price parity or best
price clauses which oblige providers of goods or services to offer their
"best" prices and terms to online platforms offering consumers access
to these goods or services from a wide selection of providers in a convenient
one-stop shop. Recent examples include the investigations of the German and UK
NCAs regarding use of these clauses by Amazon, when offering products in its
online "marketplace" from other competing retailers. Both NCAs closed
their investigations after Amazon dropped these clauses. Investigations by
several NCAs of similar clauses used for hotel online bookings have led to date
to enforcement decisions by the German and UK NCAs.[107] Both authorities addressed the same potential threat to competition,
namely that it may: eliminate intra-brand price competition for the same room;
reduce the incentive for online travel agents to compete on commission; and create
barriers for new online travel agents to enter, and tailored the remedy to the
cases before them. The use of these parity clauses was prohibited by the
Bundeskartellamt for the booking of hotels located in Germany. The Office of
Fair Trading accepted commitments from a large hotel group whereby: (i) online
platforms can offer discounts from the rates of its hotels located in the UK to
consumers participating in the platforms’ membership schemes; and (ii) its hotels
can also offer discounts to consumers participating in the platforms’
membership schemes. The Lithuanian NCA has dealt with a case in which it
imposed fines on several tour operators/travel agents for having coordinated
their actions online.[108] The ECN closely coordinates its approach to online vertical issues
in the Working Group on Vertical Issues.

2
Energy

97.
The energy sector comprises, in particular, the electricity,
gas, oil, coal and water industries. The enforcement of competition rules in EU
energy markets forms an integral part of the EU's energy policy and has been a
key driver for the EU's internal market agenda, in particular the adoption of
the third energy package[109] and its subsequent implementing rules.[110]

98.
The Commission’s antitrust enforcement
activities in the energy sector have provided both backing and stimulus for the
liberalisation process and the creation of the internal energy market. Once the
decision is taken to dismantle the former legal monopolies and to create a
functioning internal market, antitrust enforcement plays an essential role in
ensuring that effective competition becomes a reality. The Commission's
carefully tailored remedies, including ownership unbundling, have significantly
contributed to the success of liberalisation and have shown the complementarity
of antitrust enforcement and regulation.

99.
Between 2005 and 2007, the Commission carried out a sector inquiry into the energy
markets.[111] This inquiry was a useful and necessary tool to achieve the high
level of successful antitrust enforcement during the following years. In
particular, it identified several central problems standing in the way of
well-functioning markets, namely the high concentration and illiquidity of
energy markets, the insufficient unbundling of network and supply activities
and the absence of cross-border integration and cross-border competition. The
sector inquiry found that gas and electricity wholesale markets had remained
largely national in scope and had maintained the high level of concentration of
the pre-liberalisation period. The level of unbundling was also found to be
insufficient. As a result, vertically integrated undertakings (usually the
incumbents) had an incentive to take investment decisions which were not in the
interest of network/infrastructure operations but on the basis of the supply
interests of the integrated undertaking. Market integration was hampered inter
alia by the fact that incumbents rarely entered other national markets as
competitors, by insufficient or unavailable cross-border pipeline (gas)
capacity or interconnector (electricity) capacity, by under-investment and by
ineffective congestion management.

100.
Over the past ten years, the Commission has
adopted 18 decisions in the energy sector, dealing mainly with electricity and
gas markets but also including two cases relating to automotive fuel and
nuclear power. In recent years, investigations have been launched inter alia in
the fuel markets.[112] The focus of the Commission’s antitrust enforcement has been on the
three major structural problems mentioned above: the 2008 decision regarding German
electricity wholesale, for instance, dealt with highly concentrated and
illiquid energy markets,[113] the RWE Gas Foreclosure
(2009) and ENI (2010) decisions dealt with the insufficient unbundling of
network and supply activities[114] and the Swedish Interconnectors (2010) and E.ON/GDF
(2009) decisions are examples for dealing with the absence of cross-border
integration and cross-border competition.[115]

101.
The vast majority of the decisions adopted by
the Commission related to proceedings under Article 102 TFEU against
exclusionary practices of dominant firms (mostly the former holders of legal
monopolies), primarily in the form of refusals to grant access to
infrastructure, for example in the form of sector specific practices, such as
capacity hoarding,[116] strategic underinvestment[117] or foreclosure through long-term capacity bookings.[118]

102.
The energy sector is a very good illustration of
the significant role that sector inquiries can play in fostering the
enforcement of competition rules: since the sector inquiry, all but two of the
Commission’s cases leading to decisions began at the Commission's own
initiative and did not depend on complainants or market informants bringing a
competition issue to its attention). Furthermore, the sector inquiry also allowed
the Commission to take an active role in the debate on unbundling in the third energy
package and created a political momentum for increased competition enforcement
and efficient remedies.

103.
NCAs informed the
Commission of 80 envisaged decisions in the energy sector. The majority tackled
alleged abuses of dominant position under Article 102 TFEU, with the most
frequently occurring alleged practices concerning refusal to deal, restrictions
on market access, foreclosure, abusive long terms contracts and discriminatory
behaviour. There were also a significant number of alleged infringements of
Article 101 TFEU, most of which were vertical in nature, but they also included
cartels and other horizontal practices.

104.
The NCAs often addressed alleged abuses by
energy incumbents, in particular in the traditional gas and electricity markets,
which accounted for about two thirds of the envisaged decisions. A significant
proportion derived from sets of cases investigated by the German and Spanish
NCAs in the gas and electricity markets respectively. In the case of Germany, there
were a number of envisaged commitment decisions that followed a case in which
the NCA, in order to prevent the foreclosure of competitors, prohibited E.ON
Ruhrgas from the continuation of existing, and the conclusion of, new gas
supply agreements with regional and local gas resellers under certain
conditions concerning duration and customers' capacity coverage.[119] With regard to Spain, most of the envisaged prohibition decisions provided
for the imposition of fines on the main national electricity incumbents for hindering
access of their competitors to information on the points of supply or for
having abused their dominant positions in the connection works market.[120] The Italian NCA intervened in the electricity sector in most cases
with commitment decisions for alleged exclusionary conduct in the local
distribution and wholesale market.[121]

105.
The other main focus of the NCAs' envisaged
decisions concerned oil markets, with a large number of authorities addressing
issues such as the production, distribution and supply of fuel and LPG.[122]

106.
New ground has been broken by the NCAs in
several cases. For example, the Italian and the Spanish NCAs were the first ECN
authorities to act against network operators. In the case of Italy, the NCA took
a decision against the gas network operator Eni for hindering the capacity
expansion of the pipeline which imported gas from Algeria into Italy and, in a recent case, accepted
commitments by the same operator concerning international gas transport.[123] The Spanish case related to
restrictions imposed by the national natural gas operator Grupo Gas Natural on
access to re-gasification infrastructures of third parties.[124] Likewise, the Danish NCA was the
first ECN authority to act against excessive pricing by an undertaking in an
exchange electricity market.[125] Elsam, an electricity production
company active in the Nordic transmission exchange network, Nord Pool, was able
to create or remove bottlenecks in the transmission network between
neighbouring areas and countries, increasing wholesale prices.

107.
In addition to investigations leading to
possible enforcement actions, NCAs have also carried out a large number of
sector inquiries/market analyses in the energy markets showing that this sector
constitutes one of their top priorities. Inquiries were carried out into the
electricity and gas markets, the fuel markets and the market for district
heating.[126] These inquiries have allowed the NCAs
to identify a variety of competition issues in different markets. A sector
inquiry carried out by Germany into the fuel sector revealed the existence of
dominant oligopolies or high levels of concentration in the retail sale of fuel
at regional level in Germany.[127] The Italian NCA carried out a sector
inquiry which found that liberalisation measures had made a positive impact on
the growth of the number of unbranded distributors and contributed to modifying
the oligopolistic structure of the fuel retail market.[128] In the same sector, the Spanish and Portuguese NCAs also carried
out inquiries finding asymmetries between the formation of the pre-tax retail
prices for petrol and diesel and the variations of international fuel prices.[129] In the gas sector, another inquiry in Germany revealed the risk of
foreclosure in the use of transmission capacity at interconnection points which
were fully booked due to long-term contracts and in the downstream market for
gas distribution.[130] Other more recent inquires/market analyses have been also carried
out by the UK,[131] Latvia,[132] and Bulgaria.[133]

108.
By way of follow up, some NCAs have undertaken
new initiatives to foster competition in certain markets. For example, in
Germany a market transparency unit has been set up to ensure that information
provided to the NCA by all undertakings operating or setting prices in public
petrol stations is made available to consumers.[134] This makes the comparison of retail
fuel prices easier and also allows the NCA to monitor price changes,
facilitating potential investigations.

3
Pharmaceuticals and Health Products & Services

109.
This sector involves pharmaceuticals, medical
devices, other health products and health services. The effective enforcement
of antitrust law in this sector is very important not only because of the
increasing share of Member States' budgets which are dedicated to health
spending (total healthcare expenditure is around 8% of the EU's gross domestic
product, on average),[135] but also because competition law has been influential in
encouraging reforms in the health sector and promoting growth and innovation.

110.
A central theme of the Commission's
competition enforcement over the past years has been the market entry by generic
drugs producers, delays in such entry and the role originator undertakings
played in such delay. Indeed, originator undertakings regularly face a "patent
cliff" for their blockbuster products, i.e. where expiration
of their patent is followed by an abrupt drop in sales due to cheaper generics
entering the market. Depending on the market concerned, the entry of a generic medicine
can lead to up to an 80% decrease in prices.[136] This situation has prompted originator undertakings
to deploy certain strategies aimed at preserving their monopoly rents beyond
the duration of their patents, to the detriment of health systems and
ultimately tax payers.

111.
The Commission carried out an extensive inquiry into
the pharmaceuticals sector in 2008-2009. This allowed the Commission to better
understand the patterns and impact of entry and uptake of generic medicines on
the market, as well as the business practices developed by both originator and
generic undertakings facing this challenge. It provided, in particular,
valuable insight into patent settlements between originator and generics
producers, which are now being addressed in individual cases. The inquiry also
identified certain regulatory deficiencies (the absence of a single EU patent,
lengthy reimbursement proceedings, etc.). Moreover, the sector inquiry created
enforcement opportunities for the NCAs and the insights it produced had a
considerable influence on shaping the Commission’s proposal for a transparency
directive concerning national pricing and reimbursement decisions.[137]

112.
Over the past ten years, the Commission adopted four
prohibition decisions relating to the pharmaceuticals and health services
industries. Further investigations, building on the results of the sector
inquiry, are ongoing. Three of the mentioned four decisions (LABCO/ONP,[138] Lundbeck[139] and Fentanyl)[140] relate to non-cartel infringements under Article 101 TFEU and the
other (AstraZeneca)[141] to exclusionary behaviour under Article 102 TFEU. The decisions in AstraZeneca
(misusing the patent system and regulatory setting to delay market entry), Lundbeck
(pay-for-delay settlements), Fentanyl (pay-for-delay transaction) are a
good illustration of restrictions of competition relating to the foreclosure of
generics manufacturers through practices of originator undertakings.

113.
The NCAs informed the Commission of 30
envisaged decisions. Recently, NCAs have opened cases relating to practices
aimed at delaying generic entry, namely a pay-for-delay agreement (UK),[142] denigration practices (France)[143] and exclusionary conduct based on the patent system (Italy).[144] The NCAs have also handled cases in the pharmaceutical and health
markets in relation to predatory pricing,[145] anti-competitive influence on retail prices,[146] retail price maintenance,[147] bid-rigging,[148] price fixing and market partitioning,[149] exclusionary clauses in health care contracts,[150]refusal to license the production of an active principle[151] and restrictions to parallel trade (basically export and import ban
clauses).[152]

114.
A number of NCAs have carried out sector inquiries/market
analyses in the pharmaceutical and healthcare sectors.[153] For example, the French NCA undertook a sector inquiry into the
pharmaceutical industry which concluded in 2013, calling for more competition
throughout the distribution chain and supporting the
supervised opening up of the retail distribution of non-prescription medicinal
products.[154] The Romanian NCA launched a sector inquiry in 2013 to assess possible
malfunctions in the pharmaceutical market, following a sector inquiry which had
concluded in 2011 that originator medicines were prevalent on the market
although cheaper generics were expected to gain market shares. In 2012, the OFT
carried out a market study of the dentistry market in which it identified a
range of recommendations to foster competition, in particular with regard to
patients' access to accurate and impartial information to help make informed decisions.[155] In the same year, the Dutch NCA commissioned
a study on the medical devices market, which found that health care providers
can curb the cost of medical equipment by having an efficient purchasing
process in place. The Danish NCA also published an analysis containing
recommendations on the deregulation of pharmacies in 2012

115.
NCAs have also engaged in a variety of advocacy
initiatives, including issuing opinions regarding pharmaceuticals and
healthcare services, in particular on the compliance of their national
pharmaceutical regulatory framework with competition rules, and have proposed
measures to enhance competition in the markets concerned. For example, in late
2013 and early 2014, the Bulgarian NCA adopted opinions calling for more
competition in the hospital services market and in the provision of ambulatory
care.[156] In 2012, the French NCA issued an opinion on a draft decree
regarding the supply of medicinal products for human use.[157] The Italian NCA repeatedly intervened in this sector to spur competition
in the retail distribution by reporting, inter alia, on the positive effects of
the sale of non-prescription pharmaceuticals in “para-pharmacies”[158] and the Spanish NCA issued reports on draft regulations relating to
medicinal products.[159] .

4
Telecoms

116.
Since 1998, the EU's telecommunications
landscape has been liberalised, moving from static public service monopolies to
competition. The application of competition law has been instrumental in
ensuring that markets operate more competitively, bringing lower prices and
better quality of service to consumers throughout the EU. In telecoms,
competition law and sector regulation complement each other and go hand-in-hand;
in sector regulation, it is on the basis of the competition law principles that
markets are defined and the significance of market power is appreciated. Ex-ante regulatory obligations are imposed only where there is no
effective and sustainable competition;[160]  if effective
competition in the market can be maintained through the
enforcement of competition law only, there is no need for sector specific
regulation and the role of competition law becomes even more crucial.

117.
Consistent ex-ante regulation in the telecoms
sector has played a key role in ensuring a level playing field between
operators in the EU and has contributed to the dismantling of barriers to entry
to various markets in the sector. However, the Commission's experience suggests
that competition law enforcement will play an increasing role where individual
markets no longer merit sector specific ex ante regulation

118.
For example, recently the main focus of the
Commission’s enforcement in the telecoms sector has been to improve access by
new entrants to the incumbents' networks. Three Article 7 prohibition decisions
have been adopted since 2007. Two of them were based on Article 102 TFEU (Telefónica
in 2007[161] and Telekommunikacja Polska in 2011[162]) and dealt with access of competitors
to the incumbent's broadband Internet and network infrastructure. In addition
to setting a clear precedent, these two cases provide a good example of
competition law being enforced in parallel with the application of ex ante
sector specific rules by national telecom regulators. In the third case, (Telefónica,
Portugal Telecom in 2013), the Commission challenged under Article 101 TFEU a
non-compete clause in an agreement between competitors which risked
partitioning markets and hindering the integration process of the EU telecoms
sector.

119.
Prior to 2007, the Commission had adopted two
other prohibition decisions on the basis of Article 102 TFEU (Wanadoo
Interactive[163] and Deutsche Telekom,[164] both in 2003). The Union Courts have
fully confirmed the Commission's action in Wanadoo Interactive,[165] and Deutsche Telekom.[166] The
Telefónica decision of 2007 has been upheld by the General Court and a decision
on appeal by the ECJ is expected.[167]

120.
While the Commission’s antitrust enforcement in
these types of cases concerning access to the incumbent's network continues (see
the pending investigation in the Slovak Telekom case),[168] the Commission has also began to
investigate new areas such as the case on Internet connectivity, where
inspections were carried out at the premises of three telecom operators in 2013.[169]

121.
NCAs submitted 48
envisaged decisions in the telecoms sector. Most of the envisaged decisions tackled
alleged abuses of dominant position, including by incumbent operators. Like the
Commission, the bulk of envisaged decisions by NCAs were brought under Article
102 TFEU, and mainly tackled similar issues concerning access to networks and
margin squeeze practices. However, the envisaged decisions also addressed other
alleged anticompetitive practices, such as various forms of discrimination and
the use of rebates/discounts,[170] tying/bundling, and long-term contracts. The use of information
about customers to attract or keep them with the aim of excluding competitors
was also alleged to be contrary to Article 102 TFEU.

122.
The markets affected by NCAs' enforcement
actions were mainly those for wholesale access to mobile networks. There were
also several cases on the provision of electronic communication services via
fixed networks. The remainder of the envisaged decisions submitted by NCAs in
this sector tackled alleged horizontal agreements or concerted practices
concerning prices between telecoms operators. Some were "classic"
price cartels[171] while others related to coordinated terms for roaming services or
refusals to supply a particular distributor. The German NCA also examined a
planned joint venture of three mobile network operators for the setup and
operation of a mobile television broadcasting platform under Article 101 TFEU
and addressed competitive concerns by adopting a commitment decision.[172]

123.
Over the period covered, a number of NCAs engaged
in advocacy efforts and carried out sector inquiries/market analyses in the
telecoms sector.[173]

5
Basic industries, manufacturing industries,
including motor vehicles, and consumer goods.

124.
This category includes a broad range of sectors
consisting primarily of raw materials, manufactured goods and intermediate
products used in the manufacture of end products, including motor vehicles.

125.
Some of these sectors are of particular importance
for the budget for the average consumer as well as for the European economy as
a whole. A particular feature of many of the markets in these sectors, such as
those for raw materials, is their maturity. This can imply inter alia
oligopolistic market structures which may be prone to collusive conduct.
Moreover, margins on primary product sales, such as those for motor vehicles, can
be very slim and firms may therefore seek to extract profits from aftermarkets.
The Commission's antitrust enforcement activities in this wide range of sectors
have mainly targeted cartels but have also addressed vertical competition issues
in relation to the distribution and servicing of consumer goods and in
particular motor vehicles.

126.
Out of a total of 50 Commission decisions in
these sectors, 49 related to proceedings under Article 101 TFEU and the large
majority of those (42) concerned cartel cases. The strong focus on cartels is
explained by the fact that certain traditional industries are often
characterised by highly concentrated markets and homogeneous products, a
combination that can make these industries particularly vulnerable to
cartelisation. 33 of the 42 cartel cases followed an application for leniency.
A large number of cartel investigations related to the chemicals industry and
the metal processing industry, but the Commission’s cartel decisions over the
past ten years in this area also concerned products such as elevators, car
glass, bathroom fittings, gas insulated switchgear and power transformers.

127.
As to the motor vehicle sector, the Commission addressed
competition concerns both by pursuing cases and by providing for a block
exemption regime. During the first half of the last ten years, there were five
Article 101 TFEU decisions (outside cartels) in the motor vehicles sector. One
of these concerned the strategy of Peugeot SA, designed to prevent its Dutch
dealers to sell cars to interested consumers in other Member States. Such
behaviour constitutes a severe restriction of competition. The other four cases
concerned a failure on the part of car manufacturers to grant independent car repairers'
access to crucial technical information needed to undertake repair and
maintenance work.[174] As already mentioned in Chapter II above, the Commission also
reviewed and significantly revised its sector-specific block exemption regime
applicable to vertical agreements in the motor vehicle sector.[175]

128.
The Commission also dealt with competition concerns
in relation to some other diverse product markets: these included the supply of
rough diamonds (De Beers, 2006)[176] and technology for aluminium smelting (Rio Tinto Alcan,
2012).[177] In the former case, the Commission addressed the concern, under
Article 102 TFEU, that De Beers might have abused its dominant position under a
long-term purchase relationship with Alrosa, and rendered binding under Article
9 De Beers' commitment to end that relationship. In the latter case, commitments
addressed the concern under both Articles 101 TFEU and 102 TFEU that Rio Tinto
Alcan's practice of contractually tying the purchase of handling equipment to
the licensing of its leading smelting technology could foreclose competitors
and hamper innovation.

129.
NCAs have also
been active in these sectors and have informed the Commission of a significant
number of envisaged decisions: 92 in basic industries and manufacturing, 17 in motor
vehicles and 42 in consumer goods.

130.
In the basic industries and manufacturing sector,
NCAs have mostly dealt with cartels, which, in the case of the Dutch NCA,
included approximately 1400 construction companies.[178] The manufacturing of materials used in house and road construction
accounted for the majority of envisaged decisions. A wide variety of other products
were also covered, ranging from metals, plastics, paint and chemicals to
wood-based products, machinery and elements for electrical power systems. The
French NCA also fined a cartel between major distributors of commodity
chemicals.[179] In terms of other horizontal agreements, a number of envisaged
decisions dealt with "stand alone" exchanges of sensitive information
which did not form part of a broader cartel agreement. Exclusionary practices
or joint selling were also addressed. A small number of envisaged decisions
covered vertical agreements, most of them dealing with exclusive or selective
distribution. The NCAs also conducted a number of sector inquiries/market
analyses, covering products such as cement, ready-mix concrete, aggregates,
lime, asphalt and wall construction materials.[180]

131.
Regarding consumer goods, the actions taken by
the NCAs cover numerous products and a variety of competition issues under
Articles 101 and 102 TFEU. NCAs mostly tackled alleged vertical agreements, of
which the majority concerned resale price maintenance for a wide array of
products ranging from electrical household appliances, women's clothing,
cosmetics, foreign language books, cat and dog food to aquarium products. Most
other envisaged decisions concerned cartel conduct, namely price fixing
(including information exchanges on future prices). For certain types of
products, such as cosmetics, detergents and flour, infringements were pursued
in a number of Member States; in relation to a range of other products
enforcement action took place in a single Member State, as was the case for, e.g.
stationery, ophthalmic glasses and lenses, and radiators.

132.
The NCAs were also active enforcers in the motor
vehicles sector with respect to products such as cars, motorcycles and other
types of vehicles such as firefighting vehicles, heavy cargo and tourism cars.
As is the case for the Commission, the majority of the NCA's enforcement
actions tackled vertical agreements in the motor vehicle after-markets,
addressing in particular limiting maintenance during warranty periods to
authorised repairers, spare parts and access for independent repairers to
technical information and training. In addition, several cartels were fined
concerning car electrodes and speciality vehicles (firefighting) where the main
producers of firefighting vehicles had divided up the market in the context of
public tenders by municipalities. An investigation into an alleged abuse by a
manufacturer of tyres for heavy cargo and tourism vehicles was closed with
commitments. In addition to these case investigations, a number of NCAs
conducted sector inquiries/market analyses.[181]

6
Food/Retail/Agricultural products

133.
EU consumers spend 15% of their budget on food.[182] The food, retail and agricultural products sectors are often
subject to regulation. There are rules governing the production and/or trade of
products like wine, cheese, milk and fisheries as well as the actual management
of different products supply chains. Antitrust enforcement complements regulatory
action and contributes to more competitive markets, which is particularly important for a sector where all consumers are
affected by price levels. Antitrust enforcement has, in particular, stopped and
sanctioned cartels which raised prices significantly (e.g. cartel cases
involving millers or regarding pasta and bread). It has also stopped
manufacturers from preventing their distributors from reducing their prices (e.g.
soft drinks) and it has contributed to an increased choice for consumers by
removing exclusivity obligations imposed by manufacturers on distributors (e.g.
coffee). Antitrust enforcement benefitted all operators in the food-chain, in
particular farmers by ensuring access to inputs (seeds) and by sanctioning
buyers' cartels (e.g. in the pork market).

134.
The Commission's antitrust activities in
the food/retail and agricultural sector have focused mainly on pursuing cartels,
including price fixing behaviour. That was for instance the case in the beer,[183] raw tobacco,[184] shrimps[185] and bananas[186] cases. Outside the cartel area, the most prominent case was Coca Cola (2005)[187] where the Commission had concerns that Coca Cola's behaviour would
foreclose competitors, reduce choice for consumers and prevent downward
pressure on prices. The Commission looked, under Article 102 TFEU, at the undertaking's
exclusivity arrangements with retailers and ultimately adopted a commitment
decision pursuant to Article 9. Like in the Coca Cola case, and outside
the cartel area, many of the potential antitrust issues regarding the food and
retail sectors are likely to arise from vertical agreements between market
players.

135.
The Commission also carried out important advocacy
and policy initiatives. The most significant example is the Commission's action
in co-operation with NCAs in the 2013 reform of the Common Agricultural Policy,[188] to safeguard the market orientation of the sector: as a result new
competition rules address the atomisation and other challenges of the
agricultural production in a way that ensures the competitiveness of the EU
food supply chain. An ECN Report was also adopted on
the activities of the Competition Authorities in the Food Sector and analysed the many antitrust and merger enforcement actions including
sector inquiries/market analyses of the NCAs[189] and the Commission in the food supply chain in the EU ("ECN Food
Report").[190] Furthermore, the Commission, in
reaction to concerns that practices of large operators in the supply chain may reduce
choice and innovation to the detriment of consumer welfare, launched a
comprehensive study aimed at measuring the impact of concentration and market
imbalances on the evolution of choice and innovation. [191]

136.
NCAs investigated
a large number and a variety of anti-competitive practices in this as presented
in the above mentioned ECN Food Report.[192] Since 2004, they have investigated more than 180 cases covering a
wide range of food markets, with particular emphasis on multi-product retail
(21% of all cases), cereals and cereal-based products (18%), milk and dairy
products (12%), followed by fruit and vegetables (10%), and meat, poultry and
eggs (9%). While NCAs have scrutinised all levels of the supply chain, the
largest number of cases concern the processing level (28%), followed by retail
(25%) and manufacturing (16%).

137.
Half of the cases identified in the report are
cartel cases in the form of price fixing, market and customer sharing in
particular in the markets for cereals and meat, poultry and eggs. Approximately
20% of the cases concerned vertical restraints (resale price maintenance or
exclusivity obligations) mainly in the coffee, sugar and multi-products
markets. Other cases concerned abuses in the form of exclusionary practices in
markets such as dairy products and soft drinks.

7
Media

138.
The media sector includes music, film,
television broadcasting, books, written press (magazines and newspapers), and
related advertising, as well as the collective management of copyrights and
related rights.[193] It is characterised by technological convergence and innovation,
which has led to the emergence of new forms of media delivery and consumption,
as well as the further evolution of more traditional forms of delivery and
consumption.

139.
Antitrust enforcement plays an important role in
creating and strengthening the digital internal market and rendering markets
more competitive. In particular, removing obstacles to the development of
cross-border trade (such as territorial restrictions) and ensuring that
consumers can reap the benefits of new and innovative services has been the
focus for the Commission's enforcement in this area.

140.
Over the past ten years, the Commission
has adopted six decisions in the media sector. It has mainly focused on addressing
competition concerns relating to collecting societies and joint selling of
broadcasting rights for sports events, but it has also taken action in newly
developed markets such as the E-books sector.

141.
Many enforcement actions in the field of media
aimed to overcome the territorial fragmentation of the internal market. One area
of focus has been the collective rights management, which was addressed in the Cannes
Extension Agreement case.[194] In that case, the Commission accepted commitments that set an
important precedent on the acceptable level of cooperation between collecting
societies and the major music publishers on licensing conditions, in particular
by requiring a degree of price competition (in the form of rebates) among the
collecting societies. In the CISAC case[195] the Commission addressed, among other restrictions, territorial
fragmentation deriving from exclusivity clauses and adopted a decision prohibiting
24 European collecting societies from restricting competition by limiting their
ability to offer their services to authors and commercial users outside their
domestic territory.[196]

142.
The Commission carefully assessed and enforced
competition rules as regards joint selling of broadcasting rights. This is illustrated
by the Bundesliga (2005) and Premier League (2006) cases.[197] In these cases, the Commission had concerns that the agreements to
jointly sell the media rights for sports events entailed restrictions of
competition which could not be outweighed by the efficiencies stemming from the
agreements. The Commission therefore accepted commitments which reduced the
negative effects of the agreements so that the efficiency gains, on balance,
could prevail.

143.
The E-books case[198] is an example of the Commission's efforts against potential impediments
to the development of new and innovative services delivered via the Internet
under Article 101 TFEU. In this case, the Commission addressed concerns about a
concerted practice in the nascent and fast-moving market of digital books. The
Commission was concerned that Apple and five international publishers had
contrived to limit retail price competition for e-books in the EEA. The Commission
accepted commitments that address the competition concerns and ensure the restoration
of competitive conditions for the benefit of the buyers and readers of e-books.
Moreover, the case is a good example of an antitrust enforcement contributing
to the attainment of the EU 2020 objectives by ensuring that consumers reap the
benefits of digitalisation and digitized content.

144.
The NCAs have been active enforcers in
this sector, submitting 66 envisaged decisions. This relatively high number
compared to other sectors reflects the fact that intellectual property laws
applicable to media content are granted on a national basis. In addition,
language plays a significant role in the consumption of media content by consumers
and the alleged anticompetitive tends to affect consumers located predominately
within a certain Member State.

145.
The largest number of these envisaged decisions concerned
the collective management of copyrights where several NCAs intervened against alleged
exploitative abuses of the dominant positions of collecting societies (e.g.
discrimination, excessive pricing) under Article 102 TFEU.

146.
There were also many envisaged decisions concerning
the joint selling of TV broadcasting rights for sport events, with respect to
which NCAs examined bidding terms and procedures, as well as long-term
contracts and/or the granting of exclusivity to one broadcaster under Article
101 TFEU.[199] The German NCA also applied Article 101 TFEU to the coordinated
introduction of encryption of digital TV signals by major German broadcasters.[200]

147.
Lastly, there was another group of envisaged
decisions concerning alleged abuses of dominance in television broadcasting or
newspaper markets. In these cases, several NCAs investigated refusals to deal
or refusal to grant access to a dominant platform for disseminating content to
consumers. [201]

148.
A number of sector inquiries/market analyses
were carried out in the media sector, including by the Spanish NCA for
collecting societies, by the Spanish, Swedish and Portuguese NCAs for
television, and by the Bulgarian, Latvian and Italian NCAs for books/editorial
distribution.[202]

8
Financial services, including payment systems

149.
Financial services include a wide range of
markets such as banking, payment
systems, insurance and securities markets. Antitrust enforcement in the financial services sector aims not
only to maintain the competitive market structures that offer EU customers the
best products and services at the lowest prices, but also to remove entry
barriers to ensure access to financial market infrastructure and pave the way
to innovation in EU financial markets. Moreover, antitrust
enforcement aims to support and supplement the Commission's regulatory actions
to create a single market for financial services.

150.
This is in particular the case for payment
systems, which have been identified as a priority area in the context of the EU's
Europe 2020 initiative and the Digital agenda. A serious problem as regards payments
systems is the issue of multilateral interchange fees (MIFs), a horizontal
mechanism for price co-ordination with a harmful impact on retailers and final
consumers. Effects of MIFs are exacerbated by rules in card payments schemes
decreasing the level of transparency and discouraging cross-border competition,
and together lead also to detrimental effects on the internal market and
creating obstacles to new market entry.

151.
Regarding securities markets, antitrust
enforcement efforts to establish access to benchmarks in the financial sector,
for instance through its investigation regarding credit default swaps (CDS)[203] can be seen as a complement to the legislative efforts in this
area. In particular, legislation such as the European Market Infrastructure
Regulation (EMIR) and the Markets in Financial Instruments Directive (MIFID)[204] aim to create access rights to central clearing counterparties,
trading venues and benchmarks at fair, reasonable and non-discriminatory
conditions.

152.
The Commission carried out two sector
inquiries regarding financial services, one on business insurance,[205] and another one on retail banking.[206] The first looked, amongst other issues, into how ad hoc
co(re)insurance agreements are formed. It provides, together with a follow-on
study on co(re)insurance pools and on ad hoc co(re)insurance agreements on the
subscription market, empirical knowledge for the ongoing review of the
Insurance Block Exemption. [207]

153.
Payments systems were one of the main issues
examined in the sector inquiry into retail banking[208] and a central focus of the Commission and the NCAs’ antitrust
enforcement and regulatory activities over the past decade, in particular the
MIFs applied within payment cards schemes. The Commission has adopted four
decisions under Article 101 TFEU in the area of payments, among which three
prohibition decisions and a commitment decision making binding commitments by
Visa concerning MIFs.[209]

154.
Regarding banking and capital markets, the
Commission has in recent years also stepped up its antitrust enforcement
activity. A total of five decisions were taken over the past decade in the
sector, of which two cartel decisions and three Article 102 TFEU decisions. In
the two cartel decisions, the Commission fined a number of banks for their
anti-competitive manipulation of the Libor and Euribor benchmark
rates.[210] Financial derivative products linked to these benchmarks play a key
role in the management of financial risks in the internal market.

155.
The decisions under Article 102 TFEU concerned
mainly securities trading, where the Commission centred its attention on
addressing the barriers for new competitors to enter the trading markets. Both
the Standard & Poor's case and the Thomson Reuters case dealt
with the issue of access to important information for securities trading. These
cases related to concerns about exclusionary practices and were concluded
through commitments decisions pursuant to Article 9.[211] The proceedings against these financial
market information providers are examples of enforcement action seeking to lower
the purchasing costs of financial information for users in the EEA. The Standard
& Poor's case regarding US ISINs concerned unfair pricing and the case
against Thomson Reuters dealt with certain restrictions as regards the use of Reuters Instrument Codes that created substantial barriers to
switching consolidated real-time data feed providers. In the ongoing CDS case which concerns Article 101 TFEU, the
Commissions is analysing whether various investment banks and an information
service provider have hindered the development of a trading exchange for CDS
derivatives and if access to benchmarks has been unlawfully refused.[212]

156.
NCAs submitted 20
envisaged decisions in the payment systems sector and 20 in other financial
services. With respect to the envisaged decisions concerning payment systems,
most of the alleged practices were horizontal other than cartels. The
enforcement actions of NCAs in this field have reflected the Commission's
concerns in the above-mentioned MasterCard and Visa cases and they
have identified MIFs as the main competition problem in the card payments
markets. Fees fixed by national banking communities operating under the "umbrella"
of the Visa and MasterCard systems have not been investigated by the
Commission: it was considered that the NCAs are usually well placed to assess
such domestic MIFs. After the Commission addressed cross-border MIFs in the
first MasterCard case, NCAs have relied on this case as a precedent and have become
increasingly active in investigating payments cases. The regular meetings of
the ECN's Subgroup of Banking and Payments have served as an active platform
for the exchange of experience and discussion. In 2012, the Subgroup published
an information paper on competition enforcement in the payments sector.[213] The work of the Subgroup has been very useful in terms of ensuring
coherency throughout the ECN.

157.
In addition to the Commission's decisions, the General
Court's judgment in the MasterCard case provides national enforcers with
a clear assessment of the application of Article 101 TFEU to collectively
agreed inter-bank fees in four party card systems such as MasterCard and Visa.[214] MasterCard has appealed the judgment to the Court of Justice. Once the
Court of Justice delivers its judgment, further action by NCAs and national courts
may follow in a number of cases which are on hold awaiting the outcome. In
Italy[215] and Hungary,[216] court appeals against decisions of the NCAs are pending and in the
UK, the OFT's investigation is on hold. In France, the NCA investigated a
number of MIFs for a variety of means of payments[217] and recently approved commitments[218] whereby MIFs of both Visa and MasterCard were reduced and capped.
In Germany, Hungary and the Netherlands, the NCAs are pursuing or are actively
investigating cases. In certain Member States (such as Poland, Hungary and
Romania) authorities other than the NCA and/or the government are also involved
in addressing the issues of inter-bank fees. For example, in Hungary and in
Poland interchange fees were recently regulated (capped). In some cases (e.g. in
the UK) such domestic fees are also challenged by retailers in private damages
actions before national courts.

158.
As for other financial services, the alleged practices
were mostly cartels and other horizontal infringements. The majority of these decisions
concerned insurance products,[219] while others addressed competition issues arising in a variety of
financial services, including privately managed pension funds, bank loans and
brokerage fees.

159.
One of these decisions concerned the Slovak
market for cashless foreign exchange operations and gave rise to a preliminary
ruling of the Court of Justice on the interpretation of Article 101 TFEU. The
Slovak NCA initially found on 7 December 2009 that three major Slovakian banks had
entered into an agreement with the aim of excluding a Czech company from the
market, contrary to Article 81 EC, now Article 101 TFEU. In order to provide such
services in Slovakia, the Czech company needed to hold current accounts
administered by Slovak banks, and preferably with the same banks where its
clients held current accounts to ensure the easy availability of its services. All
three Slovak banks had agreed to close the current accounts that the Czech
company held with them and not to renew them. The decision was appealed to the
Supreme Court of the Slovak Republic, which referred a number of questions to
the Court of Justice, including whether it was relevant for the application of
Article 101 TFEU that the Czech company was operating on the Slovak market
without the necessary licence from the Bank of Slovakia. The Court of Justice ruled
that "Article 101 must be interpreted as meaning that the fact that an
undertaking that is adversely affected by an agreement whose object is the
restriction of competition was allegedly operating illegally on the relevant
market at the time when the agreement was concluded is of no relevance to the
question whether the agreement constitutes an infringement of that provision."[220]

160.
With respect to banking and financial services
more generally, NCAs carried out a significant number of sector inquiries/market
analyses, especially in the years 2009-2013.[221]

9
Transport and Postal Services

161.
This category concerns the sectors for transport
services, transport infrastructure and postal services. Similar to the energy and
telecommunications sectors, many markets in these sectors have moved from public
service monopolies to liberalised markets, and the Commission's competition
policy and enforcement is aimed at ensuring the effective and efficient functioning of these markets. However, the incumbents in
the post and transport sector still enjoy substantive market power, and new
entrants have, if at all, only managed to gain small market shares. Competition
problems often relate to the pricing for the use of essential infrastructure or
to access to such infrastructure which is otherwise impeded. There are also
examples in the liberalised postal sector of Member States taking or
maintaining measures, e.g. by granting tax exemptions to incumbents or by
restricting market access to newcomers, that induce the incumbent to abuse its
dominant position to protect or regain market share.

162.
Regarding the air transport sector, the Commission
adopted three decisions relating to the assessment of practices under Article
101 TFEU. These decisions could only be adopted after the exclusion of
international transport from Regulation 1/2003 was repealed in 2004.[222] Two of these decisions involved horizontal cooperation agreements where
the parties offered commitments under Article 9 (the Oneworld
transatlantic joint venture[223] and the Star Alliance transatlantic joint venture),[224] and one was a cartel case where the Commission issued an Article 7
decision and imposed a fine (the Airfreight decision involved a dozen
large airlines).[225]

163.
In the maritime sector, the Commission's
activities so far focused mainly on legislative and soft law developments: the
repeal of the Liner Conference Block Regulation Exemption in 2008, the repeal
of the exception in favour of cabotage and tramp services in 2006, the adoption
(2008) and subsequent repeal (2013) of the Maritime Antitrust Guidelines, and
the four reviews of the Liner Consortia Block Exemption.[226] Since the repeal of the Liner Conference Block Exemption, the
Commission has been carefully monitoring the markets for long-range maritime
transport of containers and is currently investigating two cases in this area,
both under Article 101 TFEU: the Container shipping signalling case and
the P3 joint venture among the world's top three liner shipping operators.[227] The Commission has also monitored other types of maritime shipping.
In particular with regard to "short-sea" and passenger transport
(e.g. ferries), it appears for the time being that NCAs are well placed to
handle potential antitrust infringements in these markets (see further below).

164.
In the rail sector, the incumbent operators in
the Member States have only recently experienced liberalisation: in 2007 for freight
transport and in 2010 for cross-border passenger transport.[228] For domestic freight transport and domestic passenger transport
liberalisation is still outstanding. In almost all Member States, rail markets
remain highly concentrated and new entrants have only been able to take small
market shares. To date, the Commission has adopted one decision in the rail
sector: Deutsche Bahn was a decision pursuant to Article 9 based on the
Commission’s concerns that the German incumbent had operated margin squeeze
practices foreclosing competitors contrary to Article 102 TFEU.[229]

165.
The markets for postal services underwent significant
changes over the last ten years, such as altered customer needs and gradual
market opening. In this market environment, the main pillars of the
Commission's policy have been, on the one hand, a staged (regulatory) reduction
of the services for which monopoly rights are granted[230] and, on the other, the preservation of competition in liberalised
areas of the postal market by means of antitrust enforcement. This latter
pillar is evident in the two decisions that the Commission adopted under
Articles 106 TFEU and 102 TFEU, i.e. BdKEP/Deutsche
Post and Slovakian postal law, which dealt
with national legislation favouring the incumbent postal operators, putting
commercial operators at a considerable competitive disadvantage. The Commission's
actions aimed at establishing a competitive level playing field for postal
operators. The Commission also adopted a cartel decision in the freight
forwarding sector worldwide.[231]

166.
NCAs submitted 69
envisaged decisions in the transport sector, which is a priority for many NCAs.
The alleged practices cover a variety of areas: rail, maritime transport, air
transport, and bus transport and consisted largely of cartels and abuses of
dominant position.

167.
Most of the envisaged decisions submitted by
NCAs dealing with anticompetitive behaviour in the air transport sector
concerned abusive practices of dominant airlines or different service providers
at airports. In a number of cases, the alleged behaviour concerned unfair
conditions, discriminatory pricing or access schemes and refusals to give
access to competitors to do business at airports which were dominated by one
undertaking. In a German case the incumbent airline operated a corporate
customer programme which incentivised its clients to disclose sensitive data of
its competitors and enabled the dominant airline to distort competition by
targeted price cutting on specific routes.[232]

168.
In the maritime sector, NCAs have often
addressed the issue of harbours constituting an essential facility. In a case
investigated by the French NCA, competitors agreed to share existing and newly
built berthing capacities of a harbour contrary to Article 101 TFEU. [233] In a German case it was found that a dominant firm refused to grant
access to competitors to port infrastructure for ferries and thus abused its
dominant position under Article 102 TFEU. [234] The Spanish NCA accepted commitments in a case in which independent
carriers were hindered from entering a port. [235] Tying in the market for harbour towage services was found by the
Estonian NCA to be contrary to Article 102 TFEU.[236] In several other cases, anticompetitive market sharing and price
fixing agreements were found by different NCAs in the sector for cargo and
passengers and between companies providing ferry services on specific short sea
shipping routes.[237]

169.
In the area of postal services, the vast majority of the cases submitted by the NCAs concerned infringements
of Article 102 TFEU, namely discrimination, anticompetitive rebates and
discounts imposed by the incumbents. Often the NCAs worked closely together
with their national regulator, for example, to establish non-discriminatory
pricing schemes for postal services. The Belgian,[238] Danish[239], French[240], German[241], Romanian[242], Slovenian[243] and Spanish[244] NCAs dealt with rebate schemes set by their former national
monopolists. New postal service providers, active as intermediaries, could
either not benefit from (quantitative or other) rebates, and thus were unable
to compete successfully or were foreclosed from a specific customer base which
was tied to the incumbent provider through attractive loyalty schemes. Already
at an early stage of the network, NCAs and the Commission coordinated their
action against national legislation favouring former monopolists.[245] A decision of the Danish NCA[246] on the pricing policy of the former monopolist, where there was no
proof of a plan to eliminate a competitor, was appealed before the Danish
courts and gave rise to a preliminary ruling of the Court of Justice. In Post
Danmark, the Court held that " … a policy by which a dominant
undertaking charges low prices to certain major customers of a competitor may
not be considered to amount to an exclusionary abuse merely because the price
that undertaking charges one of those customers is lower than the average total
costs attributed to the activity concerned, but higher than the average
incremental costs pertaining to that activity, as estimated in the procedure
giving rise to the case in the main proceedings. In order to assess the
existence of anti-competitive effects in circumstances such as those of that
case, it is necessary to consider whether that pricing policy, without
objective justification, produces an actual or likely exclusionary effect, to
the detriment of competition and, thereby, of consumers’ interests."[247] The NCAs also tackled other forms of
abuse of dominance in the postal sector, for example, the Italian NCA found in
a number of decisions that the incumbent post service provider abused its
dominant position by hindering the provision of services by its competitors and
imposing an abusive credit scheme on its rivals.[248] The Spanish NCA found that the Spanish incumbent abused its
dominant position by refusing to give access to specific wholesale services
that are reserved to the incumbent, impeding competition in the provision of
postal services to public administrations.[249]

170.
A number of NCAs carried out sector inquiries/market
analyses in the transport and postal services sector.[250] Inter alia, these studies looked into factors which contributed to
limited competition in these markets, the impact of sectoral regulation thereon
and the need for further action to open the sectors to full competition.

10
Services in other sectors

171.
The Commission's and the NCAs’ antitrust enforcement
activities have of course not been limited to the economic sectors mentioned
above. They extended, in particular, also to the area of other services which
are an important part of the EU economy and have a significant impact on
consumer welfare.

172.
One area of particular focus was the organisation
of professional services (known also as liberal professions) such as
architects, lawyers, notaries and accountants. The services of these
professions tend to be highly regulated either by national governments or by
professional associations. In 2004, the Commission adopted a decision
prohibiting the recommended minimum fee scale operated by the Belgian
Architects’ Association.[251] In addition to restoring competition in the market in question, the
decision served as a precedent giving guidance and facilitating competition law
enforcement at national level. The Commission also adopted two Reports in 2004
and 2005 explaining its position on the need to reform or modernise specific
professional rules. The Commission considers that there are legitimate arguments
in favour of certain regulations in the liberal professions. However
restrictive regulations should only exist where they provide an effective and
proportionate means of protecting consumers. The Reports set out the legal
framework in which these rules and regulations should be analysed and how the
EU Competition rules apply to regulation in this sector. They have proved to be
a useful source of guidance for national enforcers.[252]

173.
Liberal professions are commonly regulated at
national level and many NCAs have an active enforcement record in this
area. They have submitted 31 envisaged decisions to the Commission during the
period under review. The NCAs mostly investigated the legal services sector,
but a wide range of other professions also came under scrutiny, including the
medical, real estate, dentist, psychologist, accountant, architect,
veterinarian, geologist and engineering professions. The NCAs largely dealt
with infringements of Article 101 TFEU. Often this consisted of the fixing of
minimum fees or the fixing of a permissible scale of prices or unjustified
restrictions on advertising. Such anticompetitive practices were often established
by the competent professional associations. [253]

174.
A number of NCAs have also engaged in sector inquiries/market
analyses of constraints that hinder the proper functioning of the professional
services sector.[254] In particular, assessments have been made of the state of
competition in the professional services sector following the implementation of
the EU Services Directive into national law. Specific recommendations include removing
obstacles for taking up and exercising professional activities in another
Member State.

175.
The Commission's antitrust enforcement has
extended also to other types of services. For instance, in 2008 the Commission fined
several undertakings for price-fixing, market sharing and bid rigging for international
removal services.[255] In 2009, the Commission made binding commitments offered by the
International Association of Classification Societies (IACS) in response
to the Commission's concern that IACS' practice in relation to non-members
classification societies, may have led to distortions on ship classification
market.[256]

176.
The NCAs submitted cases dealing with
anticompetitive behaviour in a wide variety of service sectors. The majority of
envisaged decisions concerned infringements of Article 101 TFEU, including a
number of hard-core cartels, and covered services such as washing and (dry) cleaning,
language schools, national motor vehicle events, tariffs applicable to guides,
translators and interpreters, the organisation and ticketing of public events
and ski pass prices. Some cases were assessed under both Article 101 TFEU and
102 TFEU and a smaller group of cases concerned abusive behaviour. The latter
was found in the context of a wide range of activities, including the provision
of facilities at fairs and exhibitions, the registration of plumbing and
heating products for professional use and the conditions imposed by a holiday
home organisation.

177.
Moreover the Italian, German, French and
Romanian NCA have dealt with complex situations in the betting markets, which
are still not entirely liberalised in the Member States. Hindering online
competitors or cross-subsidising funds of legally protected businesses were
investigated by the Italian and French NCA as abusive practices. [257] The German NCA dealt with a case concerning anti-competitive
measures taken by various regional state controlled lottery companies which
colluded to hinder commercial agency services for lotteries and thereby
infringed Article 101 TFEU.[258] The
Romanian NCA found that the non-compete clause agreed to by the Romanian
Lottery with three other companies, whereby it undertook not to carry out any
video lottery programmes with other undertakings for 10 years, significantly
limited the possibility of potential competitors to enter the Romanian market
contrary to Article 101 TFEU.[259]

178.
NCAs also
informed the Commission of nine envisaged decisions in the sector of environment/waste
management covering a range of practices, which were evenly split
between alleged infringements of Article 101 TFEU and Article 102 TFEU. These
practices ranged from cartels, other horizontal practices and a vertical
infringement to abuses of dominant position including refusal to deal,
discrimination and tying/bundling. Investigations were conducted in several
markets, including waste collection, the treatment of plastic, glass, paper and
packaging and the collection of urban solid waste. Several NCAs have also
carried out sector inquiries/market analyses in the environment/waste
management sectors.[260]

IV
Infringements by Types of procedure and Use of Modernised
enforcement tools

179.
The purpose of this Chapter is, first, to give an
overview of the Commission’s enforcement activity from a procedural perspective,
i.e. an overview of its decisions broken down by the type of procedure used. Particular
focus is put on the procedural tools introduced by Regulation 1/2003, such as
commitment decisions pursuant to Article 9 of the Regulation. As will be seen,
commitment decisions quickly obtained a prominent position in the Commission's enforcement
practice. This Chapter also looks at the use of the Commission’s investigative
powers and sanction mechanisms under Regulation 1/2003 (supplemented by the
implementing Regulation 773/2004) as well as the leniency programme.

180.
In addition, this Chapter aims to present the NCAs’
enforcement activity from a procedural perspective, as well as the use of
co-operation mechanisms between the different enforcers of the EU competition
rules. Regulation 1/2003 gave significant impetus to NCAs to actively enforce
the EU competition rules, but did not harmonise institutional structures, procedures
or sanctions (except for the rules contained in Articles 5 and 35 of Regulation
1/2003). Nevertheless, the last ten years have shown a notable degree of convergence
which was actively supported by work in the ECN.[261] As a result, numerous NCAs dispose of broadly similar instruments
as the Commission.

181.
The following sections are structured as follows.
The first section (A) provides an overview of the extended set of instruments
at the disposal of the Commission and NCAs and their role in the overall
enforcement. The second section (B) focuses on the enhanced investigatory
tools, while section C looks at developments in the field of sanctions and
leniency. The last two sections shed light, respectively, on safeguards for
procedural fairness and co-operation between the different EU competition law
enforcers.

A
Extended set of instruments in the new
enforcement system

182.
Regulation 1/2003 equipped the Commission with an
extended set of instruments. Chapter III of the Regulation provides for
Commission decisions concerning inter alia the finding and termination of an infringement
(Article 7), interim measures (Article 8), commitments (Article 9) and a
finding of inapplicability (Article 10). In the Commission’s decision-making
practice since May 2004, prohibition decisions pursuant to Article 7 (often
combined with an imposition of fines pursuant to Article 23) and commitment
decisions pursuant to Article 9 have clearly been the most relevant tools.

1
Prohibition and commitment decisions

183.
One of the important novelties of Regulation
1/2003 has been the introduction in Article 9, of the power for the Commission
to adopt a decision that makes commitments voluntarily offered by undertakings
binding and enforceable. Such a decision does not establish the existence of an
infringement nor does it impose sanctions. It presupposes the finding of
competition concerns by the Commission. The Commission is required to assess if
the undertaking(s) has offered commitments that address the concerns expressed
in its preliminary assessment and that they have not offered less onerous
commitments that also address those concerns adequately.[262] The possibility under Article 9 to make commitments binding through
a directly enforceable EU decision is an improvement as compared to the former
legal framework (Regulation 17) under which no legally binding mechanism, and
hence no enforcement possibility, was available for cases concluded by
"informal settlements". The primary purpose of commitments decisions
is to preserve effective competition by addressing the competition concerns and
to lead to a quick impact on the market. Due to the more consensual mode of
concluding the case, the commitment path may result in more efficient
proceedings and more effective remedies; it allows for a more fine-tuned
tailoring of the commitments and swifter implementation. An Article 9 decision
opens up a period of monitoring of the implementation of the commitments. The
effectiveness of the commitment procedure is further enhanced by the fact that
the breach of commitments is a legal offence, which can be sanctioned pursuant
to Article 23 without finding any further breach of the substantive EU
competition rules. In 2013, for instance, the Commission imposed a fine on
Microsoft for a failure to comply with its commitments made binding pursuant to
an Article 9 decision.[263]

Figure 13: Number of
decisions by type of procedure and year (2004-2013)

184.
As can be seen in Figure 13, Article 7 prohibition
decisions continue to be the most important pillar of the Commission's EU
antitrust enforcement with 78 decisions adopted between May 2004 and December
2013. Cartels are clearly the largest category of infringements for which
decisions have been adopted pursuant to Article 7.[264]

185.
However, if only decisions outside the area of
cartels are considered, the number of decisions adopted during the past ten
years pursuant to Article 9 exceeds the number of Article 7 decisions. This is shown in Figure 14 below.

186.
From May 2004 until December 2013, the
Commission has adopted 33 decisions under Article 9 in relation to cases in
almost all economic sectors. However, the usage of Article 7 and Article 9
decisions has not been uniform across sectors. Article 9 has been used most
often in the energy sector (eleven decisions), followed by the media (five
decisions) and motor vehicles sectors (four decisions). Conversely, competition
enforcement in sectors such as pharmaceuticals (four decisions) and telecoms (three
decisions) has relied exclusively on Article 7 prohibition decisions.

187.
The Commission’s decision to engage in the
commitment path or to remain on the prohibition path largely depends on the
main objectives pursued: the efficient and swift solving of competition
concerns on the one hand, and enhanced deterrence by imposing sanctions and,
where appropriate, the precedent value of an established infringement, on the other.
Of course, a pre-requisite for engaging in the commitment path is that effective,
clear and precise remedies are identified, and effectively offered, by the
parties. In some cases Article 7 was applied because suitable remedies were either
not offered or not identifiable or because the Commission considered it
necessary to ensure deterrence and set a clear precedent. In other cases, it
was considered that the competition problems on the markets could be better addressed
through remedies under Article 9. Figure 12 details the number of decisions
taken under Article 7 and Article 9 by sector.

Figure 14: Prohibition and
Commitment Decisions: number of decisions by sector (January 2004 – December 2013)[265]

188.
Article 7 decisions aim at ensuring that infringements
found, and their effects, are effectively brought to an end, and that the infringer and other undertakings are deterred from committing
the same or similar infringements again in the future.
For this purpose, the Commission can impose on undertakings any necessary and
proportionate remedies. The standard (baseline) remedy in Article 7 decisions are
cease and desist orders. They are often combined with fines imposed pursuant to
Article 23 to ensure that effective deterrence is
achieved.[266] In addition, the Commission is empowered under
Article 7 to adopt behavioural and structural remedies in prohibition decisions.
On several occasions the Commission has imposed such additional remedies. To
date, these remedies were all behavioural in nature.[267] Structural remedies can only be imposed
either where there is no equally effective behavioural remedy, or where any
equally effective behavioural remedy would be more burdensome for the
undertaking concerned than the structural remedy. The Commission has so far not yet imposed structural remedies in
prohibition decisions under Article 7. Also under Article 9, behavioural commitments have been by far more frequent than
structural commitments.[268] Nevertheless, Article 9 decisions have allowed for more structural remedies
to be adopted in anti-trust cases. As a result, there is a form of convergence
between remedies in anti-trust cases and remedies in merger cases. Other
examples of this alignment are implementation provisions on monitoring trustees,
buyer approval etc.

189.
The proceedings leading to the adoption of a
prohibition decision under Article 7 employ significant resources of the
parties, the Commission and often also of third parties. Depending on the scope
of the investigation and/or the number of parties involved, the various
procedural steps may be very time consuming. In this respect, proceedings
leading to commitment decisions under Article 9 have a clear advantage of
greater procedural efficiency, especially when commitments are offered at an
early stage of the procedure.

190.
Commitment decisions are not appropriate in
cases where the Commission intends to impose a fine, such as in cartels.[269] In cartel cases, the settlement procedure was introduced[270] to allow the Commission to handle more cases with the same resources,
which also leads to a considerable shortening of administrative proceedings. Parties
that acknowledge their involvement in a cartel and their liability for it, may request
their cases to be treated under the settlement procedure. In exchange, the parties
receive a 10% reduction in the fine. The settlement procedure usually results
in greater expediency of proceedings, which has advantages for the parties as
well as for the Commission. Undertakings benefit from faster and less
burdensome procedures and they obtain a reduced fine in addition to the fine
reduction possible under the leniency programme. The Commission is able to
handle more cases with the same resources, not only due to the normally shorter
duration and lesser administrative complexity of the proceedings, but also due
to the lower likelihood of appeals before the EU courts. Since the introduction
of the cartel settlements procedure in 2008, and until December 2013, nine
cartel cases have been settled.[271]

2
Other types of proceedings

191.
Other proceedings available to the Commission
are the penalties for procedural infringements provided for in Articles 23(1)
and 24 of Regulation 1/2003. According to those provisions, the Commission may
impose fines or periodic penalty payments for procedural infringements, such as
failure by an undertaking to comply with an Article 7 or 9 decision, a decision
ordering interim measures, a decision requesting complete and correct
information or a decision ordering an inspection. Penalties for procedural
infringements existed also before, under Regulation 17. However, Regulation
1/2003 introduced in particular more effective sanctions under Article 23(1) for
non-compliance with the obligations incumbent on undertakings in the context of
investigations, which have led to sanctions for breach of seals[272] and for tampering with e-mails during an inspection.[273] Furthermore, Article 24 substantially increased the ceilings for
periodic penalty payments. The upper limit for periodic penalties was set at 5%
of the average daily turnover in the preceding business year per day. The main
purpose of the changes was to ensure effective compliance with Commission
decisions of a procedural nature. Further details on the application of decisions
imposing penalties for procedural infringements are set out in section B.1 below.

192.
In Article 10, Regulation 1/2003 also introduced
a further type of procedure, which is the Commission's power to adopt decisions
finding that an agreement or practice does not infringe Article 101 or 102 TFEU,
should the Union public interest so require. The Commission has not yet made
use of that power.

193.
Although stakeholders have argued that greater
legal certainty would be guaranteed if the Commission were to adopt decisions
under Article 10 of Regulation 1/2003, the term "Community public
interest" in Article 10 excludes the adoption of decisions purely in the
interests of individual undertakings. In fact, the purpose of this instrument
is not to create a substitute for the abolished exemption decisions in the old
notification system (although Regulation 1/2003 is without prejudice to the
ability of the Commission to issue informal guidance to individual undertakings
in cases presenting novel or unresolved issues).[274] Recourse to Article 10 is limited to "exceptional cases" (recital
14) where it is necessary to clarify the law and ensure its consistent
application throughout the Union, in particular with regard to new types of
agreements or practices that have not been settled in the existing case-law and
administrative practice. At the stage of drafting the Regulation, it was
thought that could for instance be the case if a diverging decision practice of
NCAs or national courts was observed in a given area. In practice, this concept
of ensuring consistency by formal decisions may have been overtaken by the ECN developing
as a successful forum to discuss competition policy issues.

3
Experience of NCAs with different types of
decisions

194.
The 665 envisaged decisions submitted to the
Commission by the NCAs concern proposed prohibition decisions (with or without
fines)[275] and commitments.[276] NCAs also adopt interim measures, decisions on procedural
infringements or decisions finding no grounds for action but are not obliged to
inform the Commission about such decisions.[277]

195.
Prohibition decisions and commitment decisions
are also the principal tools for the enforcement work of the NCAs. The power to
prohibit conduct that has been found to violate competition law is
traditionally central to the toolkit of public enforcers; it exists in all
Member States.[278] In the vast majority of jurisdictions, prohibition decisions are
adopted by the NCA that is an administrative authority; the only exceptions in
this respect are Ireland and Austria where prosecutor-type authorities apply to
a decision-making court for cease and desist orders. The majority of NCAs have
the power to adopt prohibition decisions with fines (like the Commission),
while in a minority of jurisdictions, decisions imposing fines are a separate
instrument.[279] The graph below reflects the outcome of NCAs' envisaged decisions
over the years.

Figure
15: NCA envisaged decisions per year: Prohibition vs. Commitments (May 2004 – December
2013)

196.
Commitment decisions have been rolled out in the
ECN in the last ten years under Regulation 1/2003. They are a prime example of
procedural convergence based on inspiration from the EU model and the cross-fertilisation
of ideas supported by multilateral cooperation. By the time of reporting, even
though differences in procedures remain, nearly all NCAs have express powers to
adopt commitment decisions. Overall, commitment decisions adopted by NCAs make
up a significant share of the enforcement effort of the ECN. They accounted for
23% of all envisaged decisions submitted by the NCAs in the period of May 2004
to December 2013. Commitment decisions were most often used by NCAs in the following
sectors (in order of magnitude): energy, media, payment systems, telecom and
other services.

Figure 16: NCAs envisaged decisions per sector:
Prohibition vs. Commitments (May 2004 – December 2013)

197.
Formalised settlement procedures in the context
of the imposition of fines exist in a minority of Member States. Many NCAs do
not have such a formalised procedure but still have the possibility to reach a
more consensual outcome in a fining case, using their ordinary procedural
framework. There are no statistics on settled cases in the ECN context.

198.
NCAs are not empowered to adopt decisions that
make a formal finding that there was no infringement of the EU competition rules.
Article 5 of Regulation 1/2003 provides that where the conditions for
prohibition are not met, they may decide that, on the basis of the information
available, there are no grounds for action. Such decisions do not bind other
NCAs or national courts (nor the Commission). This provision was introduced to
avoid that one NCA – possibly on the basis of incomplete information – issues
an "exemption" decision that could be invoked to block enforcement by
other enforcers.[280] Against this background, the Regulation does not provide for
obligatory reporting of such decisions in the ECN. NCAs may consult the
Commission on such cases of their own motion; this has been done in a small
number of cases.

199.
The extent to which NCAs may adopt decisions
concluding that there are no grounds for action depends on national procedural
laws and varies greatly within the ECN. While a certain number of NCAs are
obliged to rule on every formal complaint by a decision on substance, many
others are able to reject complaints for priority reasons. In a range of
jurisdictions, complaints do not trigger an administrative procedure with
decision; rather, they are treated as incoming correspondence that receives a
reply by letter. Notwithstanding this, many NCAs have the power to adopt no-grounds-for-action
decisions at their discretion where they consider it appropriate to close a
case that does not give rise to an enforcement decision.[281]

B
Increased investigatory powers
1
Requests for information, inspections and
interviews

Commission

200.
Already under Regulation 17, the Commission’s
principal means of investigation were requests for information and inspections.
Regulation 1/2003 reinforced both of these instruments. Under Article 18, the
Commission now has the choice to issue either a simple request for information or
to proceed immediately to a decision requiring the information to be provided
(whereas Regulation 17 foresaw a two-stage procedure whereby failure to respond
to a simple request was a prerequisite to a request by decision, which obliges
the addressees to provide the information under the penalty of fines or period
penalty payments). Equally, Regulation 1/2003 introduced new powers with
respect to inspections, such as the power to inspect private premises, to affix
seals in business premises, to ask oral questions on facts or documents and to
record the answers, and has provided for increased penalties for obstruction of
investigations.

201.
Since 2004, the Commission has issued a series
of decisions requiring undertakings to supply information pursuant to Article
18(3) in relation to well above 20 cases. Moreover, since 2004, the Commission
has undertaken inspections in more than 100 cases. Broadly 20% of the
inspections have been carried out in recent years and relate to investigations
that are not yet concluded. The inspections are normally carried out through parallel inspections at the premises of several undertakings (and/or
private premises) in one or several Member States. Some of the larger
inspections have targeted up to 20 sites in parallel. The
majority of the inspections that have been carried out relate to suspected
infringements of Article 101 TFEU (mainly cartels).

202.
During the inspections, the Commission has made regular
use of its powers to affix seals in business premises and to ask questions – both
are now common practice during inspections. On two occasions, the Commission made
use of its power to impose penalties for obstruction of inspections because
seals were breached.[282] The purpose of seals is to protect evidence from being tampered
with or lost and it is the inspected undertaking's responsibility to ensure
that the instruction not to breach the seal is complied with. The sanctions
imposed show the Commission's determination to prevent any risk of obstruction
and to ensure the effectiveness and reliability of its investigations.

203.
Business information is nowadays largely stored
in IT environments like e-mail systems and can be quickly modified or deleted.
The Commission thus sanctioned an inspected undertaking for having tampered
with its e-mail storage system during an inspection without informing the
Commission inspectors. This decision has sent a clear message to all undertakings
that the Commission will not tolerate IT-related practices which could
undermine the integrity and effectiveness of inspections.

204.
Given the invasive nature of an inspection of
private premises, the Commission has made judicious use of this possibility and
used the procedure only to a limited extent.

205.
The power introduced in Article 19 to interview legal
and natural persons with their consent has also been used to acquire additional
information.[283] While Article 19 builds on the Commission's
practice in leniency cases, it opened up the possibility to conduct interviews
and record statements in all other cases. Given the
voluntary nature of these interviews, no negative conclusions can normally be
drawn from (or any penalties imposed for) any refusal to be interviewed or to
answer a specific question.

206.
The Commission normally carries out its own inspections
under Article 20 with assistance of officials of the NCAs. On two occasions,
the Commission used the possibility to request NCAs to carry out inspections on
its behalf[284] pursuant to Article 22(2).

NCAs

207.
NCAs generally have
the power to inspect business premises and to request information.[285] Most NCAs also have the power to inspect non-business premises.
While the broad picture is largely one of convergence, a range of differences
can be observed at a more granular level (e.g. the treatment of 'incidental evidence';
the power to seal premises during an inspection; the position of undertakings
that are not suspected of an infringement; powers to enforce investigatory
powers and sanction breaches thereof; the extent to which the privilege against
self-incrimination limits the duty of undertakings to cooperate with an
investigation etc.).[286] Despite the existence of such divergences, the need for NCAs to
have appropriate fact-finding tools to gather information about alleged
infringements is widely recognised. Indeed, in practice these tools are
frequently used by NCAs and form an indispensable part of their competition
toolbox.

2
Sector inquiries

Commission

208.
Since the entry into force of Regulation 1/2003,
sector inquiries have become an important investigative tool for the Commission,
reflecting its increased scope for taking action in priority areas that are
vital to Europe's citizens and where market information suggests that
competition does not work as it should. The Commission has used this instrument
to deepen its knowledge about a sector with a view to better identifying its
main shortcomings caused by market participants.

209.
The Commission has carried out five sector
inquiries into the media,[287] gas and electricity,[288] retail banking,[289] business insurance[290] and pharmaceutical sectors.[291] These sector inquiries have enabled the Commission, through a
wealth of factual material, to identify shortcomings in the competitive process
of the sectors under investigation and adopt a number of decisions in these
sectors, as evidenced above in the sector specific chapter above.

NCAs

210.
Most NCAs equally have the power to carry
out sector inquiries. A large number of such inquiries have been used in a
broad variety of sectors since 2004.[292] In the absence of any legal obligation, a simple reporting
mechanism has been put in place so that ECN members have the possibility to
provide basic information to each other via the Network. Joint sector inquiries
by two or several NCAs remain very rare apart from the established cooperation
of the Nordic competition authorities that regularly carry out joint sector
inquiries.

C
Fines and penalty payments
1
Commission

211.
Regulation 1/2003 essentially took over from
Regulation 17 the legal basis for imposing fines for breaches of the
substantive competition rules. In accordance with Article 23(2), the Commission
may impose fines on infringing undertakings and associations of undertakings
that do not exceed ten percent of their total turnover in the preceding
business year. Fines with sufficient deterrent effect, coupled with an
effective leniency programme, constitute the most efficient weapon in the
Commission's armoury to fight cartels. In particular, appropriately deterrent
fines discourage undertakings to enter into cartel agreements and encourage
cartelists to blow the whistle on existing cartels in return for immunity or a
reduced fine under the leniency notice. Moreover, appropriately deterrent fines
in non-cartel cases dampen undertakings' incentives to engage in other forms of
anti-competitive practices.

212.
The purpose of the 2006 Fining Guidelines is to ensure
the deterrent effect of fines in a transparent manner. This was largely
achieved by basing the fine on the sales of the relevant product or service and
by taking the length of the infringement fully into account. Accordingly fines
under the revised Guidelines have increased for infringements on large markets
or of long duration.

213.
Figure 13 provides an overview of the ten
highest cartel fines. Notably nine out of the ten highest cartel fines imposed
by the Commission to date have come under the revised Guidelines. The current
fining policy therefore better reflects the potential impact of the cartel on
the market – cartels affecting larger markets will typically be fined higher
amounts – as well as the impact of the cartel over time – long lasting cartels
will be typically be fined a higher amount than shorter ones. This way, the
Commission ensures that fines are proportionate to the gravity and duration of
the infringement, while also respecting the legal maximum of ten percent of the
undertaking's total turnover in the preceding business year laid down in
Article 23 of Regulation 1/2003.

Figure 17: Ten highest
cartel fines per case

Year || Case name || Amount in EUR[293]

2012 || TV and computer monitor tubes || 1 470 515 000

2008 || Car glass || 1 354 896 000

2013 || Euro interest rate derivatives (EIRD) || 1 042 749 000

2007 || Elevators and escalators || 832 422 250

2010 || Airfreight || 799 445 000

2001 || Vitamins || 790 515 000

2008 || Candle waxes || 676 011 400

2007/20122 || Gas insulated switchgear (incl. re-adoption) || 675 445 000

2013 || Yen interest rate derivatives (YIRD) || 669 719 000

214.
Since the introduction of Regulation 1/2003
significant fines have also been imposed on undertakings which have abused their
dominant position. These fines decisions have mainly concerned the telecoms and
technology sectors (see Figure 18). Similar to fines in cartel cases the
highest fine (Intel) has been imposed under the revised
Fines Guidelines.

Figure 18: 'Five highest
abuse of dominance fines per case

Year || Case Name || Amount in EUR[294]

2009 || Intel || 1 060 000 000

2004 || Microsoft || 497 000 000

2007 || Telefonica || 151 875 000

2011 || Telecomunikacja Polska || 127 554 194

2005 || Astra Zeneca || 52 500 000

215.
Moreover, Regulation 1/2003 introduced more
effective sanctions for non-compliance with the obligations incumbent on
undertakings in the context of investigations:

(a)
The Commission made use of this provision twice
for breach of seals and imposed a fine of EUR 38 million in one case[295] and EUR 8 million in the other.[296]

(b)
In addition, the Commission has imposed a fine
of EUR 2.5 million in a case involving obstruction of its inspection.[297] Obstruction (during inspection and/or during other phases of the
investigation) has also been punished as an aggravating circumstance in the
calculation of the fine for the substantive infringement.[298]

(c)
The Commission also adopted two decisions under
Article 24(2) against Microsoft[299] for its non-compliance with the 2004 Decision that had ordered
Microsoft to supply interoperability information on reasonable terms. The total
fine amount was EUR 1 140.5 million.[300]

(d)
Finally, and for the first time, the Commission
has imposed a EUR 561 million fine on an undertaking that failed to comply
with its commitments made binding pursuant to an Article 9 decision.[301]

2
NCAs

216.
Sanctions imposed by NCAs for infringements of
the EU competition rules are not harmonised by Regulation 1/2003. Member States
are therefore free in their choice of sanctions as long as they are effective,
proportionate and dissuasive.[302] Some foresee sanctions on individuals involved in anticompetitive
conduct but the vast majority of Member States provide for fines on
undertakings as the primary means of punishment and deterrence in the
competition field. In a minority of Member States, the national law does not
explicitly allow for fines to be imposed on undertakings as defined in EU
competition law, but only on the individual legal entities which directly
participated in the infringement. In the large majority of jurisdictions, such fines
are imposed by the NCAs on the basis of national laws that are often
closely aligned with Article 23(2) of Regulation 1/2003. Numerous jurisdictions
have in addition introduced fining guidelines many of which are modelled on the
approach set out in the Commission's 2006 Guidelines.[303] Such methodology includes taking into account gravity and duration
of the infringement together with mitigating and aggravating circumstances and
limiting the fine to 10% of the undertaking's turnover in a given year.[304] Notwithstanding this similarity in basic methodology, comparisons
of fines imposed in individual cases remain very complex. Overall, many NCAs –
and notably those of the larger economies inside the EU - appear to have
attained a clearly deterrent level of fines, while some NCAs remain at globally
more restrained levels. Enduring differences in the level of the fines may
partly be explained by remaining divergences in the fines methodology used by
the NCAs.[305]

D
Leniency
1
Commission

217.
The leniency programme is an essential element
in the Commission’s enforcement toolbox against cartels as the great majority
of cartel cases originate from leniency applications (see
Figure 3). It is therefore crucial that the
attractiveness of the leniency programme is preserved and
with this goal in mind a number of initiatives were taken since the entry into
application of Regulation 1/2003.

218.
In 2006 the Commission took an important step
towards further detecting and bringing cartels to an end with the introduction
of a new Leniency Notice.[306] This replaced the former 2002 Notice and introduced a number of
improvements, including the clarification of the thresholds for immunity and
reduction of fines as well as introducing amendments to the procedure, most
notably the establishment of a discretionary marker system.[307] Changes introduced by the 2006 Leniency Notice in the Commission's
leniency programme also reflect the creation at the same time of the ECN Model
Leniency Programme ("MLP"). The MLP provides
a model of the procedural and
substantive elements that the ECN members consider every leniency programme
should contain.[308]

219.
Other examples of efforts to maintain the
attractiveness of leniency include: (i) the establishment of the system for
submitting applications orally (aimed at protecting applicants from risks of
civil discovery of their leniency submissions in US courts), (ii) coordination
with the UK authorities in order to ensure that employees of companies that are
granted immunity by the Commission are also immunised from criminal prosecution
in the UK, and (iii) close cooperation with other jurisdictions outside the EU
in global cartel investigations (to develop leniency programmes in
jurisdictions outside the EU where EU companies may also be active).

2
NCAs

220.
As illustrated below, leniency programmes have
proven to be a formidable tool for the detection of secret cartels by NCAs.
In the ECN, where information about cases is being shared and a case may change
hands from one authority to another if a re-allocation takes place, leniency
programmes are mutually interdependent. From the earliest stages, the Network
has therefore given considerable attention to ensuring that leniency incentives
are preserved. A landmark in this regard was the development of the ECN MLP[309] which helped to encourage and guide – ultimately - all ECN
jurisdictions in developing leniency policies, the basic features of which are
largely aligned.[310]

221.
This means that undertakings can benefit from
leniency programmes throughout the EU. To alleviate the burden of multiple
filings in cases where the Commission is particularly well placed (i.e. there
are effects in more than three Member States) to deal with a case, the summary
application system was created. It allows immunity applicants (and after the
recent revision of the MLP in 2012 also other leniency applicants) before the
Commission to file simplified applications with NCAs to reserve a place in the
leniency queue.

222.
As from 2009, the ECN assessed the status of
convergence and subsequently engaged in an in-depth review of the MLP which
resulted in amendments to the model programme that were endorsed by ECN Directors
General in November 2012.[311] ECN members also regularly exchange their experience at the ECN cartels
working group with a view to further enhance cooperation in cartel cases and promote
the coherent application of leniency policies under the MLP.[312]

E
Ensuring transparent, fair and effective
administrative proceedings
1
Commission

223.
The EU system of competition enforcement has throughout
the years guaranteed high standards of fairness and impartiality. The European Court of Justice has repeatedly found the EU system of
competition enforcement to fulfil the requirements of Article 6 ECHR on the
right to a fair trial. The system respects the undertakings'
fundamental right to effective judicial protection under Article 47 of the Charter of Fundamental Rights since the European Courts undertake a full review of the Commission's
decisions, including the fines imposed.[313] The compatibility of the EU's system of competition enforcement
with fundamental rights has also been confirmed by the Menarini
judgment of September 2011,[314] in which the European Court of Human Rights ruled that the Italian system of antitrust enforcement is compatible with Article 6
ECHR on the right to a fair trial. The institutional set-up of the Italian
Authority ruled upon by the Court is very similar to that of the Commission and
of the majority of EU Member States and many other agencies throughout the
world. This judgment thus confirmed that the EU institutional framework of competition enforcement, with an administrative authority subject
to full judicial review, contains all the necessary guarantees to respect
undertakings' fundamental rights.

224.
Over and above these
guarantees, the Commission constantly strives to
improve its procedures within the framework set out in Regulation 1/2003 and
the implementing Regulation 773/2004 in order to achieve efficiency and ensure
transparency.

225.
To this effect, in 2011, the Commission adopted
a notice on best practices for the conduct of proceedings concerning the EU competition rules,[315] which introduced a number of practical novelties such as opening
formal proceedings earlier, introducing state of play meetings at key stages of
the proceedings, giving access to "key submissions" of complainants or
third parties (such as economic studies) at an early stage of the investigation,
and informing parties already in the Statement of objections of the main
relevant parameters for the possible imposition of fines.

226.
In addition, the Commission also revised the Terms
of Reference of the Hearing Officer strengthening its role as the guardian of
parties' procedural rights.[316] Parties can now refer disputes which arise at any stage of antitrust
proceedings to the Hearing Officer for review. The Hearing Officer has new
functions in the investigation phase of proceedings, including:

(a)
a dispute resolution function for disagreements
about legal professional privilege;

(b)
a new role with regard to disputes about
extensions of the deadline to reply to Article 18(3) decisions and the right to
be informed of one's procedural status;

(c)
other key functions in the investigative phase,
for example, parties are able to call upon the Hearing Officer if they consider
that they should not be compelled to reply to questions that might force them
to admit responsibility for an infringement.

2
NCAs

227.
The NCAs have to ensure procedural
fairness in accordance with national law and practices, including fundamental
rights standards laid down in their national law, while respecting the
requirements flowing from EU law, including the Charter on Fundamental Rights, as
well as the ECHR.[317] All this may have an impact on the institutional structures and the
decision-making processes of NCAs which are not harmonised by EU law. For
instance, in certain Member States, national courts consider that there should
be a strict division of investigation and decision-making phases over and above
the requirements of the ECHR.

228.
The NCAs have in place guarantees to ensure
procedural fairness. Notably, parties have the opportunity to defend themselves
and make their views known on the basis of a Statement of objections or
equivalent document in all jurisdictions within the ECN. Equally, access to
file is ensured in all EU jurisdictions. Wide variations exist with regard to
oral hearings which are available upon request or are compulsory in nearly all
jurisdictions, in accordance with the overall structure of procedures as
organised by domestic law. Accordingly hearings play a very prominent role in
some jurisdictions while they are infrequently requested in others. Decisions of
administrative competition authorities in the EU are subject to judicial review
– most often including more than one tier of appeal.[318]

F
Cooperation in the application of the
competition rules
1
Cooperation within the European Competition Network (ECN)

229.
The enforcement record set out in this paper is
underpinned by the Commission and NCAs cooperating in the ECN. The ECN became
operational together with the new enforcement system of Regulation 1/2003. The
setting up of the Network responded inter alia to stakeholder concerns about a
risk of diverging outcomes in a system with multiple enforcers.[319] The results achieved within the ECN in the last decade confirm that
the fears of some commentators that NCAs would be operating in isolation from
each other and from the Commission and develop 'national' versions of the EU
competition rules were unfounded.

230.
From the outset, NCAs have used the case law of
the EU Courts and Commission decisional practice as a basis for their application
of the EU competition rules. Exchanges of experience within the ECN have become
part and parcel of the Network members' operations, contributing to the
development of a common space to think within the ECN.[320] Stakeholders have consistently formulated high expectations in
terms of coherent application.[321] By the time of reporting, the enforcement efforts of both the
Commission and NCAs are generally viewed as feeding into a common set of case
practice. Despite the language barriers, cases are followed and commented on an
EU-wide or wider scale among the enforcers and by the specialised public.[322]

Multilateral
cooperation

231.
Multilateral cooperation in the ECN is an
important driver of this development. It is organised in different fora comprising
the Director Generals' meeting, the ECN Plenary (meeting of policy coordinators
at middle management level) as well as a range of ECN working groups
(horizontal topics) and subgroups (by sector).[323] This basic structure has remained stable since the creation of the
Network while the emphasis on subjects and priorities has evolved over the
years.

232.
Developments in recent years include the
increased strategic role of the Director Generals' meetings. The Directors
General set the work programme for the ECN and endorse outputs prepared at the
level of the working groups or subgroups and the Plenary. Since 2010 their
meetings are held bi-annually. They now also regularly respond to topical
subjects of major relevance to the competition authorities in the EU through
resolutions that are made public.[324] While enforcement
priorities are a matter for each Network member to determine, the Directors
General regularly inform each other about their authorities' focal areas of
attention, in terms of enforcement and advocacy. By doing so, they contribute
to mutual awareness and foster potential further exchanges among authorities
with similar priorities and/or facilitate the use of experience from other
Network members, e.g. in the preparation of sector inquiries or similar
actions.[325]

233.
Following up on areas for further reflection
identified in the 2009 Report on Regulation 1/2003, projects conducted in
recent years include work on convergence of investigation and decision-making
procedures which result in a set of reports and ECN recommendations, which were
endorsed and made public in 2012/2013.[326] In 2012, the ECN Directors General also endorsed the revised
version of the Network's key leniency policy document, the Model Leniency
Programme.[327]

234.
Work in the ECN subgroups on sectors has seen
gradual developments. In the early years, attention was inter alia focussed on
the energy, liberal professions, sports and waste management areas.[328] More recently, subgroups in the payments, food, pharmaceuticals
sectors have been particularly active. For example, the Food subgroup was
instrumental in preparing wider policy work in relation to the retail sector as
well as in preparing Resolutions by the Directors General in connection with this
sector. [329] It also drew up the ECN Food Report which was published in May 2012.[330] This Report provides a comprehensive overview of the most
significant enforcement, advocacy and monitoring actions undertaken by the NCAs
and the Commission from 2004 to 2011 and is aimed at emphasising the significant
contribution of competition authorities in the EU to the proper functioning of
the food supply chain.

235.
Activity has also been intense in the ECN
subgroup on Payments, reflecting antitrust scrutiny in numerous jurisdictions
of interchange fees on cards, internet payment or cash withdrawal from automatic
teller machines and the high need for coordination in this field. This is inter
alia reflected in the ECN Information Paper on competition enforcement in the
payment sector in the EU.[331]

236.
Multilateral cooperation now also takes place in
a Merger Working Group. While operating in a different legal framework, it also
pursues objectives of facilitating cooperation and enhancing convergence.[332]

Cooperation
in individual cases

237.
Cases dealt with by NCAs often have cross-border
implications. Cooperation in the field of fact-finding has become an every-day
occurrence in the ECN. The possibility under Regulation 1/2003 to exchange
information, including confidential information, has facilitated cooperation
among enforcers in the EU at all stages of antitrust proceedings.[333] In individual cases, case files have been transferred or shared by
cooperating authorities. Among NCAs, the possibility to request another
authority to carry out investigatory measures in their territory on behalf of the
requesting authority has proven to be very useful and is well used in practice.

238.
The application of EU competition rules further
entails a range of formal information and consultation obligations in
individual cases aimed at ensuring that the EU competition rules are applied in
a consistent manner.

239.
From the outset of competition enforcement by
the Commission, NCAs have been involved in the decision-making process of the
Commission through the consultation of the Advisory Committee which is composed
of representatives of NCAs. They are called upon to provide the Commission with
their expert advice and experience.[334]

240.
Regulation 1/2003 further introduced a process
for NCAs’ envisaged decisions to be submitted to the Commission, set out in
Article 11(4). According to this provision, NCAs must inform the Commission at
least 30 days prior to adopting a decision requiring that an infringement be
brought to an end, accepting commitments or withdrawing the benefit of an EU
block exemption regulation. The Commission has the possibility to make
observations on envisaged decisions submitted to it. Envisaged decisions are analysed
systematically and observations are communicated in many cases. [335]

241.
Observations may range from purely technical points
to, in very rare cases, the suggestion to re-examine the line taken with
respect to particular allegations. Such observations are necessarily advisory
in nature and leave the responsibility of the authority dealing with the case
entirely intact.[336] They have often led to fruitful discussions and NCAs generally take
this interaction with the Commission services very seriously.

242.
In this context, Regulation 1/2003 further
provides the Commission with formal powers to counter a serious risk of
incoherence by itself initiating proceedings in the same case, thereby
relieving the NCA of its competence to deal with this case.[337] This situation is distinct from the scenario where the Commission
initiates proceedings as part of its own enforcement action.[338] To date, the Commission has not used the power to initiate
proceedings after the reception of an envisaged decision pursuant to Article
11(4) over the entire period of application of Regulation 1/2003, essentially
for the reason that case practice in the ECN has developed in a broadly coherent
manner and more upstream means of interaction have been preferred as being more
efficient.

243.
In terms of the outlook for the future, it can
be expected that the Network will continue to be a forum that ensures a high
degree of exchange of experience and cross-fertilisation of ideas, as well as a
framework for more intense coordination regarding sectors or cross-cutting
questions. in particular, in areas where new business models or other forms of
economic or technological innovations bring up new questions for antitrust
enforcement. Fluency of cooperation (including work sharing between the
enforcers) and coherent outcomes benefit from upstream cooperation and early
exchanges, over and above the formal cooperation mechanisms that play a role at
a relatively advanced stage.

2
Cooperation with the courts of EU Member States

244.
Constructing a network of national courts, with
the same degree of cooperation, consultation and exchange of information as in
the ECN, would have been unsuitable in view of the independent position of the
judiciary and the number of national courts involved in applying the EU competition rules. Nevertheless,
Regulation 1/2003, building on the mutual duty of loyal cooperation enshrined
in Article 4(3) TEU, provides for a number of devices to promote consistency in
the application of these rules.

245.
Article 15(1) enables national courts to request
the Commission to transmit to them information in its possession. This
provision has most often been used by national courts to obtain information about
the state of proceedings of cases investigated by the Commission. The
Commission may refuse to provide information only for over-riding reasons
related to the need to safeguard the Union's interests or to avoid any
interference with its functioning and independence. Moreover, it may refuse to
provide the requested information where it is covered by professional secrecy
and the respective national court is not able to provide a guarantee of confidentiality.

246.
Article 15(1) also allows national courts to request
the Commission's opinion on questions concerning the application of the EU competition rules. Courts have regularly
made use of this possibility. The requests pertain to a wide range of issues
including, but not limited to, questions concerning market definition, the qualification
of a practice as an abuse, the applicability of Article 101(3) TFEU to agreements which are restrictive of
competition, etc. Since 2004 until the end of 2013 the Commission has provided
26 opinions, twelve of which were to Spanish courts, nine to Belgian courts,
two to Lithuanian courts, two to Swedish courts, and one to a Dutch court. The
opinions have been provided to serve the national courts at different stages of
the national proceedings. The majority of the opinions have however been
provided to assist first instance courts. The Commission publishes those
opinions for which national courts have granted permission for publication. During
the reporting period, the Commission has published 13 opinions.

247.
While Article 15(1) obliges the Commission to
provide assistance to national courts, Article 15(2) of Regulation 1/2003
imposes an obligation on the Member States to forward to the Commission copies of any written judgment concerning the
application of the EU competition rules. This obligation is, inter alia,
intended to enable the Commission to become aware of cases for which it might
be appropriate to submit (in the next instance) observations to national courts
as amicus curiae pursuant to Article 15(3). The Commission has received
around 370 judgments during the reporting period, primarily from courts in
Spain, Germany and France. About ten Member States have not sent any judgment
yet to the Commission. The absence of feedback on judicial activity in those
Member States and the overall small number of judgments received suggest that
there are lapses in the cooperation mechanism that need to be corrected. The
Commission is considering options for resolving this problem.

248.
Finally, the Commission has made use of the
possibility, provided for in Article 15(3), to participate as amicus curiae
in national court proceedings on 13 occasions and in eight different Member
States: France, Belgium, Slovakia, Austria, the Netherlands, the UK, Ireland
and Spain.[339] While in the first five years of the application of Regulation
1/2003 the Commission made use of Article 15(3) only three times, the
Commission intervened on ten occasions in the last five years. Most amicus
curiae interventions have been made before courts of last instance (eight interventions).
The remaining interventions have been made before appeal courts (three
interventions) and first instance courts (two interventions).

249.
The scope of issues on which the Commission can
take a position as amicus curiae is broadly defined in Article 15(3) of
Regulation 1/2003. The provision empowers the Commission to intervene on its
own initiative whenever the coherent application of the EU competition rules so
requires. The European Court of Justice has clarified that this power implies
that the Commission may also intervene in order to guarantee the effectiveness and
coherent application of the competition law provisions, even if the litigation
concerns non-competition rules, the application of which may have an impact on
the effective and coherent enforcement of the competition rules (such as rules on
tax deductibility of fines).[340] On this basis, and using its discretion to set priorities, the
Commission has provided amicus curiae observations on a wide range of
issues concerning, for example, tax deductibility of cartel fines, conditions
for access to leniency documents in actions for damages before national civil
courts, interpretation of the notions of appreciable effect on trade between
Member States, as well as the application of Article 101 TFEU to vertical
agreements. Those issues arose in relation to commercial behaviour in different
sectors, including telecommunications, energy, motor vehicles and basic
industries. The amicus curiae observations have proven to be
particularly useful as they give an opportunity for the Commission to clarify
the approach taken in its soft law instruments.

250.
Some of the amicus curiae interventions
have prompted national courts to refer questions on the interpretation of EU
law to the Court of Justice and have thereby contributed to the clarification
of the law. One such example is the Commission's observations submitted to the
Austrian Supreme Court in the Austrian Freight Forwarding case[341]. The Commission took the view that a finding by a national court acting
as a competition authority that a cartel is de minimis and therefore is compatible
with national competition rules does not shield the same cartel from the
application of Article 101 TFEU. The Commission argued also that Regulation
1/2003 does not preclude NCAs from finding an infringement of competition law
without imposing a fine if the infringer has participated in a leniency programme.
Upon referral pursuant to Article 267 TFEU, the Court of Justice in essence
confirmed the Commission's views.[342] Another example is the Commission's observations to the Paris Court
of Appeal in a case concerning a general prohibition on online sales imposed by
a supplier on distributors belonging to a selective distribution network. In
line with the policy set out in its Guidelines on vertical restraints,[343] the Commission took the view that such a prohibition constitutes a
hard-core restriction and a restriction by object. The Paris Court of Appeal sought
the opinion of the ECJ, which in its Pierre Fabre[344] ruling confirmed that a general prohibition of online sales constitutes
a restriction by object which cannot benefit from the relevant block exemption
regulation.[345]

251.
On the issue of whether fines imposed by the
Commission can be deductible from tax for the undertakings fined, the
Commission submitted three amicus curiae observations, before the Dutch
Court of Appeal, the Supreme Court of the Netherlands and the Belgian Constitutional
Court. Relying on earlier jurisprudence, the Commission took the view that allowing
fines imposed for a breach of the EU competition laws to be deducted from tax
would undermine the punitive and deterrent character of the fines and thereby
the effectiveness of enforcement of EU competition law. The amicus curiae
intervention before the Dutch Court of Appeal gave rise to the ruling of the Court
of Justice in Inspecteur van de Belastingdienst v. X B.V.[346] This judgment dispelled any remaining doubts as to the Commission's
right to submit observations as amicus curiae in
national proceedings and emphasised that the
effectiveness of the sanctions imposed for infringements of the EU competition rules, and the coherent
application of those provisions, would be compromised if it was possible to
deduct tax from the fines.

252.
Finally, the Commission continuously endeavours
to encourage the exchange of knowledge and practical experience in the
enforcement of the competition rules. DG Competition's Grant Programme on the
"Training of National Judges in EU Competition Law" provides practice-oriented
training tailored to the needs of competition law judges in the Member States. This
Programme enables hundreds of judges to be trained in EU competition law every
year. In the last six years approximately 6000 judges have benefited from the
programme.

3
The EEA Agreement

253.
Cooperation also occurs pursuant to the Agreement
on the European Economic Area (the “EEA Agreement”), which entered into force
on 1 January 1994. The EU Member States and the EEA EFTA States, Norway,
Iceland and Liechtenstein (the “EEA EFTA States”) are parties to that
Agreement.

254.
The competition rules in the EEA Agreement
essentially replicate the EU competition rules. Thus, the rules prohibit
agreements and conduct that distort or restrict competition: Article 53 EEA
(equivalent to Article 101 TFEU); and they prohibit dominant undertakings from
abusing their market power: Article 54 EEA (equivalent to Article 102 TFEU).
Article 59 EEA (equivalent to Article 106 TFEU) prohibits measures adopted by
an EEA EFTA State which induce public undertakings or undertakings granted
special or exclusive rights to abuse a dominant position or to enter into
anti-competitive agreements. Under Article 6 EEA, EEA law should be interpreted
in accordance with the relevant case law of the Court of Justice.[347]

255.
The EEA Agreement is based on a two-pillar
system, with the EEA EFTA States on one side and the EU and its Member States
on the other. The EFTA Surveillance Authority (“ESA”) enforces the EEA
competition rules in the EEA EFTA States and has equivalent powers and similar
functions to those of the European Commission. ESA is, like the Commission,
independent from the States over which it has jurisdiction. There is no
concurrent competence between the Commission and ESA: the EEA Agreement
foresees only one competent jurisdiction in any given case (“one-stop-shop”).
The Commission is competent to apply the competition provisions in the EEA
Agreement when Article 101 and/or Article 102 TFEU are applicable to a given
set of facts. This means, in practice, that in many competition cases the
Commission is also competent to apply the EEA competition rules.

The EEA
Agreement and Regulation 1/2003

256.
By way of two decisions of the EEA Joint
Committee in 2004, the EU competition reforms in Regulation 1/2003 were
extended to the EEA, and to the EFTA pillar. The reforms entered into force in
the EEA EFTA States in mid-2005. The enforcement regime on the EEA EFTA side
thus reflects, to a large extent, the regime in the EU.

257.
Some parts of Regulation 1/2003 have not,
however, been implemented in the EEA Agreement. For example, ESA and the
competition authorities in the EEA EFTA States are not part of the operational
co-operation mechanisms for the handling of cases.[348]

EEA rules on
co-operation in competition cases

258.
A system for co-operation with the national authorities
and national courts in the EEA EFTA States has been put in place to ensure
uniform interpretation of the EEA competition rules. This replicates the
equivalent system in place in the EU.

259.
The EEA Agreement contains detailed rules and
procedures on co-operation and exchange of information between the Commission
and ESA. ESA also carries out inspections in the EEA EFTA States on behalf of
the Commission. It has been involved in a number of high profile cases which
have often resulted in the imposition of high fines on the undertakings
concerned. Examples include inspections in the shipping sector in 2004, the
paper industry in 2004, ship classification services in 2008, trading in the
energy sector in 2012 and in the oil sector in 2013.

260.
The EEA Agreement also contains provisions
regarding the involvement of the EEA EFTA States in the ECN. ESA and the
competition authorities of the EEA EFTA States are not formally members of the
ECN but participate in ECN meetings for the purpose of discussion of general
policy issues, with a view to ensuring consistent interpretation and
application of the EEA and EU competition rules. On this basis, ESA and the
competition authorities in the EEA EFTA States contribute actively in a range
of ECN fora.

Enforcement activities:
overview

261.
Since the reforms in 2005, ESA has investigated
a number of cases under Article 53 EEA and/or Article 54 EEA. Examples include:
an investigation into the behaviour of the incumbent oil companies in Norway
concerning access to distribution facilities in Norway; an investigation into
exclusive distribution agreements between the Norwegian companies TV2 and Canal
Digital; an investigation into the alleged exclusion of ferry company Fjord
Line from the Port of Kristiansand (Norway); and an investigation into the
express bus sector in Norway.

262.
In 2010, ESA adopted a decision concluding that
Posten Norge AS, the Norwegian postal incumbent, had abused its dominant
position under Article 54 EEA by preventing competing providers of parcel
delivery services from having access to some of the largest retail groups in
Norway. ESA imposed a fine of EUR 12.89 million. In 2011, ESA adopted a
decision finding that Norwegian ferry company Color Line had infringed Articles
53 and 54 EEA in respect of its long-term exclusive access to harbour
facilities in the Port of Strömstad (Sweden). ESA imposed a fine of EUR 18.8
million on Color Line.

263.
In terms of investigations and envisaged
decisions by the national competition authorities in the EEA EFTA States, under
the co-operation mechanism established between ESA and the competition
authorities in the EEA EFTA States, ESA is informed of new investigations
initiated by the competition authorities where they envisage that Article 53
and/or Article 54 EEA may be applied. Before the competition authorities of the
EEA EFTA States can adopt decisions applying Article 53 and/or Article 54 EEA,
they are required to submit the envisaged decision to the Authority for review.
Since 2005, ESA has been informed about approximately 60 new investigations in
the EEA EFTA States and of approximately 15 envisaged decisions.

Sector
inquiries

264.
Sector inquiries are usually conducted by ESA in
parallel to similar inquiries by the Commission. By conducting parallel
inquiries into the same sector, the two authorities seek to gain an EEA-wide
overview of competitive conditions in the relevant areas. Sectors that have
been subject to an inquiry by ESA include: financial services, energy, new
media, and sport content for 3G mobile phones and telecommunications.

TABLE OF CONTENTS

I.......... INTRODUCTION.. 2

II........ ENFORCEMENT
ACTIVITY BY TYPE OF INFRINGEMENT.. 6

A........ General
overview.. 6

1......... Commission. 6

2......... NCAs. 7

B........ Article 101 TFEU.. 7

1......... Commission. 7

2......... NCAs. 13

C........ Article
102 TFEU.. 16

1......... Commission. 16

2......... NCAs. 20

D........ Article
106 TFEU (in combination with Article 101 TFEU or 102 TFEU) 23

1......... Commission. 23

2......... NCAs. 24

III....... ANTITRUST
ENFORCEMENT ACTIVITY BY SECTOR.. 25

A........ General
overview.. 25

1......... Commission. 25

2......... NCAs. 27

B......... Specific
sectors. 28

1......... IT, Internet &
Consumer Electronics. 28

2......... Energy. 30

3......... Pharmaceuticals and
Health Products & Services. 34

4......... Telecoms. 36

5......... Basic industries,
manufacturing industries, including motor vehicles, and consumer goods. 38

6......... Food/Retail/Agricultural
products. 41

7......... Media. 42

8......... Financial services,
including payment systems. 44

9......... Transport and Postal
Services. 49

10....... Services in other sectors. 52

IV....... Infringements by Types
of procedure and Use of Modernised enforcement tools. 54

A........ Extended
set of instruments in the new enforcement system.. 55

1......... Prohibition and
commitment decisions. 55

2......... Other types of
proceedings. 58

3......... Experience of NCAs with
different types of decisions. 59

B......... Increased
investigatory powers. 62

1......... Requests for
information, inspections and interviews. 62

2......... Sector inquiries. 63

C........ Fines
and penalty payments. 64

1......... Commission. 64

2......... NCAs. 66

D........ Leniency. 67

1......... Commission. 67

2......... NCAs. 67

E......... Ensuring
transparent, fair and effective administrative proceedings. 68

1......... Commission. 68

2......... NCAs. 69

F......... Cooperation
in the application of the competition rules. 70

1......... Cooperation within the
European Competition Network (ECN) 70

2......... Cooperation with the
courts of EU Member States. 73

3......... The EEA Agreement 75

[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 L1, 4.1.2003, p.1), hereinafter "Regulation 1/2003"
or "the Regulation".

[2]           The latter aspect is addressed in a
separate Staff Working Document accompanying the Communication:  Enhancing
competition enforcement by the Member States’ competition authorities:
achievements and future perspectives, SWD(2014) 231 (the
“Staff Working Document on enhancing competition enforcement by the Member
States' competition authorities”).

[3]           Including in conjunction with Article
106 TFEU.

[4]           See
for details sections II and III below. The statistics regarding NCAs in this
report are based on draft decisions submitted to the Commission pursuant to
Article 11(4) of Regulation 1/2003, not on adopted final decisions (see further
footnote 19
and section IV.F below). The report
relies on the last envisaged decision submitted in any given case (for
statistics including re-submissions, cf. the ECN website (http://ec.europa.eu/competition/ecn/index\_en.html). It does not cover NCAs' enforcement action based on
national competition law.

[5]           Council Regulation (EEC) No 17 of 6 February 1962, first Regulation
implementing Articles 85 and 86 of the Treaty (OJ P 013, 21.2.1962, p. 204-211).

[6]           See on this aspect the Communication from the Commission to
the European Parliament and the Council, Report on the functioning of
Regulation 1/2003 COM(2009) 206 final and
the accompanying Staff Working Paper SEC(2009) 574 final, hereinafter:
"2009 Report on Regulation 1/2003", part 2.

[7]           Commission Regulation (EU) 1217/2010
of 14 December 2010 on the application of Article101(3) of the Treaty on the
Functioning of the European Union to certain categories of research and
development agreements (OJ L 335, 18.12.2010, p. 36); Commission Regulation
(EU) 1218/2010 of 14 December 2010 on the application of Article101(3) of the
Treaty on the Functioning of the European Union to certain categories of
specialisation agreements (OJ L 335, 18.12.2010, p. 43); Guidelines on the
applicability of Article101 of the Treaty on the Functioning of the European
Union to horizontal cooperation agreements (OJ C 11, 14.1.2011, p. 1).

[8]           Commission Regulation (EU) 330/2010
of 20 April 2010 on the application of Article 101(3) of the Treaty on the
Functioning of the European Union to categories of vertical agreements and
concerted practices (OJ L 102, 23.4.2010, p.1); Guidelines on Vertical
Restraints (OJ C 130, 19.5.2010, p.1).

[9]           Commission Regulation (EU) 772/2004
of 27 April 2004 on the application of Article101(3) of the Treaty on the
Functioning of the European Union to categories of technology transfer
agreements (OJ L 123, 27.4.2004, p. 11) which expires on 30 April 2014 and has
been replaced by a new Commission Regulation adopted on 21 March 2014 (OJ L 93,
28.3.2014, p. 17); Guidelines on the application of Article 81 of the EC Treaty
to technology transfer agreements (OJ C 101, 27.4.2004, p. 2), which have been
replaced since 1 May 2014 by the Guidelines on the application of Article 101
of the Treaty on the Functioning of the European Union to technology transfer
agreements (OJ C 89, 28.3.2014, p. 3).

[10]          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, 24.2.2009, p.7).

[11]          Guidelines on the method of setting
fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210,
1.9.2006, p. 2); Commission notice on immunity from fines and reduction of
fines in cartel cases (OJ C 298, 8.12.2006, p. 17); 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 C 167,
2.7.2008, p. 1); 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 (Official
Journal C 167, 2.7.2008, p. 1); Information note by Mr Joaquín Almunia
Vice-president of the Commission and by Mr Janusz Lewandowski Member of the
Commission: Inability to pay under paragraph 35 of the 2006 Fining Guidelines
and payment conditions pre- and post-decision finding and infringement and
imposing fines (SEC(2010) 737/2 of 12 June 2010); and Commission notice on best practices for the conduct of
proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6).

[12]          Cf. 2009 Report on Regulation 1/2003,
part 5.

[13]          See further section IV below.

[14]          See the Internet (http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html).

[15]          Within two years from the date of its
adoption.

[16]          Six of these cartel decisions are
re-adoptions or amendments of older decisions.

[17]          See further section C below.

[18]          Note that COMP/39.230 - Rio Tinto Alcan, decision of 20 December 2012
was adopted under Articles 101 and
102. Throughout the analysis, for statistical purposes, this decision has been
counted separately as both an Article 101 decision and an Article 102 decision.

[19]          Under Article 11(4) of Regulation
1/2003 NCAs inform the Commission of their envisaged prohibition and commitment
decisions (for more information on this process, cf. Section IV.F. below). The
analysis in this report is derived from that set of information. This
implies that the report does not take account of changes in the NCAs' course of
action that occurred after the stage of the last information provided to the
Commission, notably in the final decision. Since major changes at this stage
occur only in a limited number of cases, analysis of the envisaged decisions
nevertheless yields a meaningful proxy of the overall enforcement effort of
NCAs.

[20]          When it comes to the work of the NCAs,
the term "decision(s)" is a synonym for "envisaged
decisions" under Article 11(4) of Regulation 1/2003.

[21]          For
a breakdown of statistics per year, see Figure 13 in Chapter IV.A.1 below.

[22]          See
section II.B.2 below.

[23]          Five of the ex officio cartel
decisions are re-adopted decisions and one of the cartel leniency decisions is
a re-adopted decision.

[24]          Commission Regulation (EC) 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).

[25]          COMP/39.748 - Automotive wire
harnesses, decision of 10 July 2013; COMP/39.922 - Car and Truck Ball Bearings,
decision of 19 March 2014; MEMO/11/395 and MEMO/12/536.

[26]          COMP/39.437 - TV and computer monitor
tubes, decision of 5 December 2012.

[27]          AT.39748 - Automotive wire harnesses,
decision of 10 July 2013.

[28]          AT.39861 - Yen Interest Rate
Derivatives, decision of 4 December 2013; AT.39914 - Euro Interest Rate Derivatives,
decision of 4 December 2013.

[29]          See the Internet (www.internationalcompetitionnetwork.org). DG Competition is a former co-chair of the ICN Cartel
Working Group.

[30]          Commission Regulation (EU) No
1217/2010 of 14 December 2010 on the application of Article 101(3) of the
Treaty on the functioning of the European Union to categories of research and development agreements (OJ L 335, 18.12.2010, p. 36).

[31]          Commission Regulation (EU) No
1218/2010 of 14 December 2010 on the application of Article 101(3) of the
Treaty to categories of specialisation
agreements (OJ L 335,
18.12.2010, p. 43).

[32]          Communication from the Commission -
Guidelines on the applicability of Article 101 of the Treaty on the Functioning
of the European Union to horizontal co-operation agreements Text with EEA
relevance (OJ C 11, 14.1.2011, p. 1).

[33]          Commission Regulation (EC) No 772/2004 of 27
April 2004 on the application of Article 81(3) of the
Treaty to categories of technology transfer agreements (OJ L 123, 27.4.2004, p. 72).

[34]          Press release IP/14/299 of 21 March
2014 and MEMO/14/208.

[35]          COMP/34.579 - MasterCard, decision of
19 December 2007; COMP/39.398 - Visa MIF, decision of 8 December 2010.

[36]          COMP/39.839
- Telefónica / Portugal Telecom,
decision of 23 January 2013.

[37]          COMP/39.226 -
Lundbeck, decision of 19 June 2013;
COMP/39.685 - Fentanyl, decision of
10 December 2013.

[38]          For example
COMP/39.595 - Continental/United/Lufthansa/Air Canada, decision of 23 May 2013
and COMP/39.596 - BA/AA/IB, decision of 14 July 2010.

[39]          COMP/ 39.416 Ship Classification,
decision of 14 October 2010.

[40]          Commission Regulation (EU) No 330/2010
of 20 April 2010 on the application of Article 101(3) of the Treaty on the
functioning of the European Union to categories of vertical agreements and
concerted practices (OJ L 102, 23.4.2010, p. 1).

[41]          Guidelines on Vertical Restraints
(OJ C 130, 19.5.2010, p.1).

[42]          See for instance paragraphs 52-54 of
the Guidelines on Vertical Restraints.

[43]          Commission Regulation 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).

[44]          Commission Regulation (EU) No 461/2010
of 27 May 2010 on the application of Article 101(3) of the Treaty on the
Functioning of the European Union to categories of vertical agreements and
concerted practices in the motor vehicle sector (OJ L 129, 28.5.2010, p.52).
Agreements for the provision of repair
and maintenance services for motor vehicles are block exempted if they fulfil
the requirements of Regulation No 330/2010, and do not contain any of the
hardcore restrictions contained in Article 5 of Regulation 461/2010.

[45]          The general rules of Regulation
330/2010 became applicable to agreements on the purchase,
sell or resell new motor vehicles
on 1 June 2013 as stated in Article 3 of Regulation 461/2010.

[46]          COMP/37.980 - Souris Topps, decision of 26 May 2004, COMP/36.623,
36.820 and 37.275 - SEP and others/Automobiles Peugeot, decision of 5 October 2005.

[47]          COMP/38.348 - REPSOL C.P.P., decision of 12 April 2006.

[48]          COMP/39.140 - DaimlerChrysler,
decision of 13 September 2007; COMP/39.141
- Fiat, decision of 13 September 2007; COMP/ 39.142 - Toyota, decision of 13
September 2007 and COMP/39.143 - Opel, decision of 13 September 2007.

[49]          See paragraph 13
and Figure 2 above.

[50]          There were about 20 cases tackling
"stand alone" exchanges of information, i.e. cases in which the
exchange of information did not form part of a broader cartel arrangement.

[51]          See paragraph 13
and Figure 2 above.

[52]          There were about 17 cases.

[53]          Judgment of 6 October 2009 in Joined
Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P Glaxo v Commission;
see also Joined Cases C-468/06 to C-478/06 Sot.Lélos kai Sia and Others
[2008] ECR I-7139, paragraph 65 and the case law cited therein.

[54]          See Figures 1 and 2 above.

[55]          Figure 6 includes one decision adopted
under both Article 101 and Article 102 but does not include decisions adopted
under Article 106 in conjunction with Article 102.

[56]          There were a total of 24 Article 102
decisions in the analysis period. Some of these addressed several
anti-competitive behaviours. Each of these behaviours has been counted in
Figure 6.

[57]          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,
24.2.2009, p.7).

[58]          COMP/39.525 - Telekomunikacja Polska,
decision of 22 June 2011.

[59]          COMP/39.315 - ENI, decision of 29
September 2010, COMP/39.402 - RWE Gas Foreclosure, decision of 18 March 2009.

[60]          See COMP/39.316 - Gaz de France, decision
of 3 December 2009 and COMP/39.317 - E.ON Gas, decision of 4 May 2010.

[61]          COMP/39.727 - CEZ, decision of 10
April 2013.

[62]          Case T-5/97 Industrie des Poudres Sphériques v Commission
[2000] ECR II-3759, paragraph 178; Case C-280/08 P Deutsche Telekom v Commission
[2010] ECR I-9555, paragraph 169; Case C-52/09 Konkurrensverket v
TeliaSonera Sverige AB [2011] ECR I-527, paragraph 32.

[63]        Case C-52/09 TeliaSonera Sverige AB
[2011] ECR I-527, paragraph 33

[64]          COMP/37.451, 37.578, 37.579 - Deutsche
Telekom AG, decision of 21 May 2003.

[65]          COMP/38.784 - Wanadoo España v
Telefónica, decision of 4 July 2007.

[66]          COMP/39.678, COMP/39.731, COMP/39.915
- Deutsche Bahn I/II/III, decision of 18 December 2013.

[67]          Case C-280/08 P Deutsche Telekom v
Commission [2010] ECR
I-9555; Case T-336/07 Telefónica
and Telefónica de España v Commission [2012]
ECR II-000; Case C-52/09 - TeliaSonera Sverige AB [2011] ECR I-000.

[68]          Case T-155/06 Tomra Systems and
Others v. European Commission [2010] ECR II‑0000, on appeal judgment
of 19 April 2012 in Case C-549/10 P, Tomra and Others v European Commission.

[69]          COMP/37.990 - Intel, decision of 13
May 2009.

[70]          Judgment of 12 June 2014 in Case
T-286/09 Intel v Commission.

[71]          COMP/37.966 - Distrigas, decision
of 11 October 2007; COMP/39.386 - Long term electricity contracts in France, decision of 17 March
2010.

[72]          COMP/39.530 - Microsoft, decision of
16 December 2009.

[73]          COMP/39.230 - Rio Tinto Alcan,
decision of 20 December 2012. The Commission had concerns also that this
behaviour might infringe Articles 101.

[74]          COMP/37.507 - AstraZeneca, decision of
15 June 2005, confirmed on appeal Case T- 321/05 AstraZeneca AB, AstraZeneca
plc v. European Commission [2010] ECR II-2805, on further appeal judgment
of 6 December 2012 in Case C-457/10 P, AstraZeneca AB and AstraZeneca plc v
European Commission.

[75]          See above note 63.

[76]          COMP/39.351 - Swedish Interconnectors, decision of 14 April
2010, COMP/38.096 - Clearstream (Clearing and Settlement), decision of
2 June 2004.

[77]          COMP/38.636 - RAMBUS, decision
of 9 December 2009;
COMP/39.592 - Standard and Poor's, decision of 15 November 2011.

[78]          There two cases covered by one single
decision of 26 November 2008: COMP/39.388 - German Electricity Wholesale
Market, which concerned capacity withholding with the view to increasing prices
for consumers, and COMP/39.389 - German Electricity Balancing Market, which
concerned an abuse of network ownership to raise revenues from affiliates
supplying services to the network.

[79]          See note 77.
In the same decision the Commission found Clearstream guilty of refusing to
supply clearing and settlement services.

[80]          Case T-301/04 Clearstream Banking
AG, Clearstream International SA v Commission [2009] ECR II-3155.

[81]          Left
graph: this figure reflects each case investigated under Article 102 TFEU
once, either as a case concerning exploitative abuse, exclusionary abuse or
both. Certain cases covered more than one practice of the same type; they are
not double-counted. Right graph: when the same envisaged decision covered more
than one type of exclusionary abuse, it was counted under each exclusionary
type of abuse, meaning that some envisaged decisions are counted more than
once.

[82]          The envisaged decisions taken into account are based either
on Article 102 TFEU only or on both Articles 101 and 102 TFEU.
See Figure 2 which shows that 10% of the cases investigated by the NCAs (65)
are based on both Articles 101 and 102 TFEU.

[83]          Decision of the Danish NCA of 20 June
2007 in the Case Elsam A/S.

[84]          Decision N°B 8-88/05-2 of the German NCA of 26 September 2007 in the
Case CO2 allowances.

[85]          Decision N°E02-14 of the Latvian
NCA of 2 April 2013.

[86]          Decision N°S/0297/10 of the Spanish
NCA of 14 April 2012.

[87]          Decision N°S/0208/09 of the Spanish
NCA of 19 December 2011.

[88]          Decision N°S/0248/10 of the Spanish
NCA of 19 December 2012.

[89]          Decision N°09-D-24 of the French NCA
of 28 July 2009.

[90]          Decision N°A377 of the Italian NCA of
26 November 2008 in the Case SEA/Servizi areoportuali.

[91]          Services
in the public interest, also referred to in Article 106 TFEU as services of
general economic interest, are economic activities that would not be produced
by market forces alone or at least not in the form of an affordable service
available indiscriminately to all.

[92]          COMP/38.745 - BdKEP/Deutsche Post AG
& Bundesrepublik Deutschland, decision of 10 October 2004.

[93]          COMP/39.562 - Slovakian postal Law,
decision of 7 October 2008. Slovenská Pošta appealed the Commission decision
before the General Court (Case T-556/08 Slovenská pošta v Commission).

[94]          COMP/38.700 - Greek lignite and
electricity markets, decision of 5 March 2008. The decision has been appealed,
see Case T-421/09 DEI v Commission and Case C-554/12 P -
Commission v DEI.

[95]          For example, Finland has conducted a
competition review covering a wide range of sectors in Finland (Competition
Review I and II, 2008 and 2011).

[96]          Case C-198/01 Consorzio Industrie
Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato [2003] ECR I-8055.

[97]          Decision N°A441 of the Italian NCA of 27 March 2013 in the
Case Applicazione dell’IVA sui servizi postali..

[98]          Decision N°428/V/2009 of the Greek NCA
of 23 January 2009.

[99]          Decision N°134 of the Latvian NCA of
22 December 2006.

[100]         When the same envisaged
decision covered cartels as well as
other antitrust infringements, this envisaged
decision was counted in each
category of respective infringements; hence double-counting of envisaged decisions is included in this figure.

[101]         COMP/37.792
- Microsoft, decision of 24 March 2004. It was confirmed on appeal by a
judgment of the EU’s General Court in September 2007, see Case T-201/04 Microsoft
Corp v Commission ECR [2007] II-3601.

[102]         COMP/37.792 - Microsoft, decision of 24
March 2004; COMP/39.530 - Microsoft (Tying) - decision of 16 December 2009.

[103]         COMP/37.990 - Intel, decision of 13 May
2009.

[104]         COMP/38.636 - Rambus, decision of 9 December
2009.

[105]         See
e.g. Decision N°A420 of the Italian NCA of 22 December 2010.

[106]         See e.g. Opinions of the French NCA
N°12-A-20 of 18 September 2012 on the competitive operation of e-commerce and
N°10-A-29 of 14 September 2010 on online advertising.

[107]         Decision N°B9-66/10 of the German NCA of 20 December 2013 and Decision N°OFT1514 of the UK NCA of 31
January 2013.

[108]         Decision N°2S-3 of the Lithuanian NCA
of 7 June 2012: the Supreme Administrative Court of Lithuania has made a
reference for preliminary ruling in this case on 17 January 2014 (Case
C-74/14).

[109]         Directive 2009/72/EC of the European
Parliament and of the Council of 13 July 2009 concerning common rules for the
internal market in electricity and repealing Directive 2003/54/EC (OJ L 211,
14.8.2009, p. 55); Directive 2009/73/EC of the European Parliament and of the
Council of 13 July 2009 concerning common rules for the internal market in
natural gas and repealing Directive 2003/55/EC (OJ L 211, 14.8.2009, p. 94);
Regulation (EC) no 714/2009 of the European Parliament and of the Council of 13
July 2009 on conditions for access to the network for cross-border exchanges in
electricity and repealing Regulation (EC) No 1228/2003 (OJ L 176, 14.8.2009, p.
15); Regulation (EC) No 715/2009 of the European Parliament and of the Council
of 13 July 2009 on conditions for access to the natural gas transmission networks
and repealing Regulation (EC) No 1775/2005, (OJ L 211, 14.8.2009, p. 36); and
Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13
July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ L
211, 14.8.2009, p. 1).

[110]         See
the Gas and Electricity Directives of the third legislative package for an
internal EU gas and electricity market of September 2009.

[111]         Communication from the Commission -
Inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 into the European
gas and electricity sectors (Final Report), COM(2006) 851 final.

[112]         The
Commission is investigating behaviour of companies active in and providing
services to the crude oil, refined oil and biofuel sectors, see press release
of 14 May 2013, Memo/13/435.

[113]         See e.g. COMP/39.388 - German
electricity wholesale market, decision of 26 November 2008.

[114]         See e.g. COMP/39.402 - RWE Gas
Foreclosure, decision of 18 March 2009 and COMP/39.315 - ENI, decision of 29
September 2010.

[115]         See e.g. COMP/39.351 - Swedish
Interconnectors, decision of 14 April 2010 and COMP/39.401 - E.ON/GDF, decision
of 8 July 2009.

[116]         See e.g. COMP/39.402 - RWE Gas
Foreclosure, decision of 18 March 2009 and COMP/39.315 - ENI, decision of 29
September 2010.

[117]         See
e.g. COMP/39.315 - ENI, decision of 29 September 2010 and COMP/39.316 - Gaz de
France, decision of 3 December 2009.

[118]         See
COMP/39.316 - Gaz de France, decision of 3 December 2009 and COMP/39.317 - E.ON
Gas, decision of 4 May 2010.

[119]         Decision N°B 8-113/03 of the German NCA of 13 January 2006 in
the Case E.ON Ruhrgas.

[120]         Decisions Nº643/08, N°642/08, N°641/08,
N°645/08, N°644/08 of the Spanish NCA of 2 April 2009; Decision NºS/0159/09 of
the Spanish NCA of 13 May 2011; Decision N°S/0211/09 of the Spanish NCA of 21
February 2012; Decision NºS/0089/08 of the Spanish NCA of 29 September 2011;
Decision NºS/003/07 of the Spanish NCA of 8 November 2011 and Decision
N°2795/07 of the Spanish NCA of 20 September 2011.

[121]         See Decisions N°A411, N°A411a, N°A411d
of the Italian NCA of 8 September 2010 and Decision N°A423 of the Italian NCA
of 22 December 2010.

[122]         See e.g. Decision N°97/21.12.2011 of
the Romanian NCA of 21 December 2011 which found that OMV Petrom, OMV Petrom
Marketing, Lukoil, Rompetrol Downstream, MOL and ENI entered into an
agreement/concerted practice to stop selling one fuel product.

[123]         Decision N°A358 of the Italian NCA of
15 February 2006 in the Case ENI/Trans-Tunisian Pipeline and
Decision N°A440 of the Italian NCA of 9 September 2012 in the Case Mercato
italiano dell'approvvigionamento all'ingrosso del gas naturale.

[124]         Decision N°580/04
of the Spanish NCA of 16 June 2005 in the Case Gas Natural.

[125]         Decision of the Danish NCA of 20 June
2007 in the Case Elsam A/S.

[126]         See e.g. Austria (electricity and gas -
2010); Germany (electricity generation and wholesale markets -2011, district
heating - 2012), Italy (natural gas storage market – 2009), Slovakia (gas –
2010, central heating - 2013). The Estonian NCA has regularly carried out
sector inquiries into the energy sector in the reported period. The Lithuanian
NCA has carried out market research into the liquid oil gas market (2009).

[127]         Germany (fuel - 2011).

[128]         Italy (road fuel market -2012).

[129]         Portugal (analysis of the liquid fuel
and bottled gas sectors in Portugal - 2009) Spain (report on automotive fuel
sector - 2009: follow-up report on the CNC’s automotive fuel report - 2011) and
report monitoring the automotive fuel distribution market in Spain- 2012). In
addition, the Austrian NCA also conducted sector inquiries into fuel during the
reporting period and published a regular newsletter on developments in fuel
prices and the Bulgarian NCA carried out a sector inquiry into the production
and sale of petrol and diesel fuel (2011).

[130]         Germany (gas transmission - 2009).

[131]         UK (petrol and diesel sector - 2013).

[132]         Latvia
(electro-energy trade - 2013).

[133]         Bulgaria (delivery and supply of natural gas and
the competitive environment on the electricity markets - 2013).

[134]         ECN Brief of October 2013: see the Internet (http://ec.europa.eu/competition/ecn/brief/04\_2013/DE\_fuel.pdf).

[135]         Source: Eurostat Health Database,
Healthcare expenditure by all financing agents. Average of 22 Member States
with available data in 2008.

[136]         EC Pharmaceutical Sector Inquiry Final
Report, p. 79.

[137]         Proposal for a Directive of the
European Parliament and the Council on the transparency of measures regulating
the prices of medicinal products for human use and their inclusion in the scope
of public health insurance systems (OJ C 171, 16.6.2012, p.2), was adopted by
the Commission on 1 March 2012 and subsequently amended on 18 March 2013. A
number of sector inquiry recommendations were taken up, with the aim of
simplifying and shortening market authorisation and pricing and reimbursement
processes.

[138]         COMP/39.510 - ONP, decision of 8 December 2010.

[139]         COMP/39.226 - Lundbeck, decision of 19 June 2013.

[140]         COMP/39.685 - Fentanyl, decision of 10 December 2013.

[141]         See note 72.

[142]         An investigation was started in 2011
against GSK and various generic companies in the market of paroxetine.

[143]         Decisions of the French NCA N°13-D-11 of 14 May 2013 fining Sanofi in the French market for
clopidogrel and N°13-D-21 of 18 December 2013 on practices implemented on the
French market for high-dosage buprenorphine sold in private practices.

[144]         Decision N°A431 of the Italian NCA of
11 January 2012 against Pfizer in the market of anti-glaucoma eye drops.

[145]         Decision N°07-D-09 of the
French NCA of 14 March 2007 fining GSK for predatory pricing in order to avoid
generic entry in the hospital market.

[146]         Decision N°B 3-123/08 of the German NCA
of 25 September 2009 in the Case Contact lenses.

[147]         Decision N°PRC-13/2006 of the Portuguese
NCA of 10 December 2010.

[148]         Decision N°I729 of the Italian NCA of 4
August 2011 against Alliance Medical, Siemens, Philips and Toshiba on
bid-rigging practices for tenders in the market of medical devices and Decision
N°306-45/2010 of the Slovenian NCA of 14 October 2013 regarding bid-rigging,
market sharing and price fixing practices undertaken by pharmaceutical
wholesalers inter alia in public procurement procedures.

[149]         Decision N°I639 of the Italian NCA of
26 April 2006 against suppliers of antiseptic and disinfectant products and
Decision N°2S-2 of the Lithuanian NCA of 20 January 2011 regarding price
fixing, output limitation and market sharing by producers of orthopaedic
devices.

[150]         Decision
N°B 3-134/09 of the German NCA of 18 November 2011 in the Case BIHA.

[151]         Decision N°A363 of the Italian NCA of 8
February 2006 against GSK finding an abuse of dominant position consisting in a
refusal to grant a license to produce an active substance.

[152]         Decisions N°51 and N°52 of the Romanian
NCA of 28 October 2011 and Decision N° 98 of the Romanian NCA of 27 December
2011 against agreements concluded between Bayer, Sintofarm, Belupo, Baxter and
their distributors having as their object the restraint of competition through
prevention of parallel trade.

[153]         See e.g. Bulgaria
(2006); Estonia (2005-2009-2011-2013); Finland (2012); Latvia (2011); Sweden
(2007-2009-2010-2012-2013); UK
(medicine distribution - 2007 and the Pharmaceutical Price Regulation Scheme -
2006) and Lithuania (parallel import of drugs - 2013).

[154]         Opinion N°13-A-24 of the French NCA of
19 December 2013.

[155]         See also Sweden
(Competition in the dental care market - 2004).

[156]         The Bulgarian NCA has also, since 2008,
adopted several opinions concerning trade in medicines and on their reimbursement.

[157]         Opinion N°12-A-18 of the French NCA of
20 July 2012. The French NCA also adopted an Opinion N°13-A-12 of 10 April 2013
on the online sale of medicinal products.

[158]         See the following reports: Report on
design of public tenders for pharmaceuticals (2008); Report on remuneration
mechanism for reimbursable pharmaceuticals (2009); Marketing authorisation
procedures for generic drugs (2010); New provisions on biosimilar medicines
(2011); and Public procurement and biotech products (2013).

[159]         See the reports on the following draft
measures: Service Directive Transposition on Drugs for Veterinary Use (2010):
Royal Decree regarding the distribution of medicinal products for human use
Report (2013); Ministerial Order regarding new medicinal products and their reference
prices Report (2013) and Royal Decree regarding the price reference system and
homogeneous groups in the National Health System (2013).

[160]         See for instance recital 5 of Directive
2009/140/EC of the European Parliament and of the Council of 25 November 2009
(OJ L 337, 18.12.2009, p. 37).

[161]         COMP/38.784 - Wanadoo España v Telefónica,
decision of 4 July 2007.

[162]         COMP/39.525 - Telekomunikacja Polska,
decision of 22 June 2011.

[163]         COMP/38.233 - Wanadoo Interactive, decision of 16 July 2003.

[164]         See footnote 52.

[165]         Case T- 340/03
France Télécom v Commission [2007] ECR II-10754,
Case C-202/07 P France Télécom v Commission [2009] ECR I-2369.

[166]         Case T-271/03 Deutsche
Telekom v Commission [2008] ECR II-477, Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-9555.

[167]         Case T-336/07 Telefónica
and Telefónica de España v Commission [2012] ECR II-000. The
General Court is still to decide on Telkomunikacja Polska and Telefónica
/ Portugal Telecom.

[168]         COMP/39.523 - Slovak Telekom, decision
of 8 April 2009.

[169]         European Commission -
MEMO/13/681 of 11
July 2013.

[170]         See e.g. Decision N°A428 of the Italian
NCA of 9 May 2013 on access to the fixed telephony network.

[171]         See e.g. Decision N°05-D-65 of the
French NCA of 30 November 2005 relative to practices observed in the mobile
telephony market.

[172]         Decision N°B 7-17/06 of the German NCA
of 29 October 2007 in the Case DVB-H.

[173]         See e.g. Opinion N°13-A-08 of the
French NCA of 11 March 2013 on conditions for sharing and roaming on mobile
networks and Opinion N°10-A-13 of the French NCA of 14 June 2010 relative to
the crossed usage of client databases in the context of the convergence between
fixed-line and mobile telecommunications. See also the various reports of the
Spanish NCA adopted in 2011 and 2012 on measures proposed by the
Telecommunication Market Commission (CMT).

[174]         See paragraph [38]
above.

[175]         Regulation No 461/2010 is supplemented by the Commission’s
Supplementary guidelines on vertical restraints in agreements for the sale and
repair of motor vehicles and for the distribution of spare parts for motor
vehicles (OJ C 138, 28.5.2010, p. 16).

[176]         COMP/38.381 - De Beers, decision of 22
February 2006.

[177]         COMP/39.230 - Rio Tinto Alcan, decision
of 20 December 2012.

[178]         The investigation was
conducted according to various sectors of construction work: road construction
and civil engineering, installation engineering, traffic light control systems
and the laying of cables and pipelines. A large number of decisions imposing
fines were adopted on 25 October 2006. For more information, see: Staatscourant 26 October
2006, nr. 209 / p. 23.

[179]         Decision N°13-D-12 of the French NCA of
28 May 2013.

[180]         See e.g. Austria (cement and concrete -
2009); Finland (2008), Germany (asphalt – 2012); Poland (cement and ready mix
concrete – 2006; lime - 2007; wall construction materials – 2009; cement -
2012; ready mix concrete - 2013); Spain (cement – 2006); and the UK (aggregate
sector – 2011).

[181]         See e.g. Bulgaria (2012); Czech
Republic (2008); France (2012); Romania (2012); Slovenia (2007); Sweden
(2008-2010).

[182]         Commission calculation
for 2012 based on figures published by Eurostat, see the Internet (http://appsso.eurostat.ec.europa.eu/nui/submitViewTableAction.do) and the industry association
Fooddrink Europe, see the Internet (http://www.fooddrinkeurope.eu/uploads/publications\_documents/Data\_\_Trends\_%28interactive%29.pdf).

[183]         COMP/37.766 - Dutch beer market,
decision of 18 April 2007.

[184]         COMP/38.281 - Raw Tobacco Italy,
decision of 20 October 2005. One specific feature of this case was that it
concerned a buyer cartel. See also COMP/38.238 – Raw tobacco Spain, decision of
20 October 2004.

[185]         COMP/39.633 - Shrimps, decision of 27
November 2013.

[186]         COMP/39.482 - Exotic Fruit (Bananas),
decision of 12 October 2011.

[187]         COMP/39.116 - Coca-Cola, decision of 22
June 2005.

[188]         See the Internet (http://ec.europa.eu/agriculture/cap-post-2013/).

[189]         Subsequent to the ECN Food Report, some
NCAs carried out sector inquiries/market analyses. See e.g. Greece (food –
2013); and Italy (retail markets – 2013).

[190]         See
the Internet (http://ec.europa.eu/competition/ecn/food\_report\_en.pdf).

[191]         See the Internet (http://ec.europa.eu/competition/sectors/agriculture/overview\_en.html).

[192]         See
the Internet (http://ec.europa.eu/competition/ecn/food\_report\_en.pdf).

[193]         There is no uniform definition of the
media sector. The Commission has recently referred to the ‘cultural and
creative sectors’ to describe media and related sectors, including
architecture, archives and libraries, artistic crafts, audio-visual (including
film, television, video games, and multimedia), cultural heritage, design
(including fashion design), festivals, music, performing and visual arts,
publishing, and radio. See the Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions: Promoting cultural and creative sectors for growth
and jobs in the EU,
COM(2012) 537 final.

[194]         COMP/38.681 -The Cannes Extension Agreement, decision of 4
October 2006.

[195]         COMP/38.698 - CISAC, decision of 16 July 2008.

[196]         The
prohibited practices consisted of clauses in the reciprocal representation
agreements concluded by members of CISAC (the "International Confederation
of Societies of Authors and Composers") as well as other concerted
practices between those collecting societies. On appeal the General Court upheld the Commission’s
conclusion that the collecting societies had included illegal exclusivity
clauses and illegal membership restrictions in their model contracts, but annulled
other aspects of the decision. See
judgment of 12 April 2013 in Case T-401/08, Säveltäjäin
Tekijänoikeustoimisto Teosto ry v Commission.

[197]         COMP/37.214 - Joint selling of the media rights to the
German Bundesliga, decision of 19
January 2005 and COMP/38.173 -
Joint selling of the media rights to the FA Premier League, decision of 22 March 2006. The
decisions largely built on earlier Commission practice, see COMP/37.398 - Joint
selling of the media rights of the UEFA Champions League on an exclusive basis,
decision of 23 July 2003.

[198]         COMP/39.847 - E-Books, decisions of 12
December 2012 and 25 July 2013.

[199]         See e.g. Decision N°B 6-114/10 of the German NCA of 12 January
2012, in the Case Bundesliga;
Decision of the Danish NCA of 31 October 2007 concerning the joint selling of
media rights to Danish football; Decision N°13 of the Romanian NCA of 19 April
2011 and Decision N°S/0006/07 of the Spanish NCA of 14 April 2010.

[200]         Decision N°B 7-22/07 of the German NCA
of 27 December 2012 in the Case Basic Encryption.

[201]         See e.g. Decision N°S/0020/07 of the
Spanish NCA of 28 January 2010.

[202]         See e.g. Spain
(collective management of Intellectual Property Rights -2009 and competition in
the markets for the acquisition and exploitation of football broadcasting rights
- 2008); Sweden (from TV to moving images - 2009 and analysis of the market for
moving images- 2013); Portugal (digital terrestrial television - 2013); Latvia
(school textbooks - 2013); Italy (books/editorial inquiry - 2009); Bulgaria
(distribution of newspaper and print editions - 2013).

[203]         For details, see paragraph 157.

[204]         Proposal for a Regulation of the
European Parliament and of the Council on markets in financial instruments and
amending Regulation [EMIR] on OTC derivatives, central counterparties and trade
repositories COM(2011) 652 final (MiFIR) (OJ C 37, 10.2.2012, p.17). That
regulation, together with MiFID (Proposal
for a Directive of the European Parliament and of the Council on markets in
financial instruments repealing Directive 2004/39/EC of the European Parliament
and of the Council, COM(2011) 656 final (OJ C 37, 10.2.2012, p.17)) will provide
harmonised regulation for investment services across the EU and deal with the
less regulated parts of the financial system and create more efficient,
transparent and sound securities markets for the benefit of the whole economy.

[205]         Sector inquiry launched on 13 June
2005; Final report presented on 25 September 2007. See the Internet (http://ec.europa.eu/competition/sectors/financial\_services/inquiries/business.html).

[206]         Sector inquiry launched on 13 June
2005; Final report presented on 31 January 2007. See the Internet (http://ec.europa.eu/competition/sectors/financial\_services/inquiries/retail.html).

[207]         Commission Regulation (EU) No. 267/2010
of 24 March 2010 on the application of Article 101(3) of the Treaty on the
Functioning of the European Union to certain categories of agreements,
decisions and concerted practices in the insurance sector (OJ L 83, 30.3.2010,
p.1), which will expire on 31 March 2017.

[208]         See the Internet (http://ec.europa.eu/competition/sectors/financial\_services/inquiries/sec\_2007\_106.pdf).

[209]         COMP/38.606 - Groupement des Cartes
Bancaires (CB), decision of 17 October 2007; COMP/37.860 - Morgan Stanley /
Visa International And Visa Europe, decision of 3 October 2007; COMP/34.579 -
MasterCard, decision of 19 December 2007; COMP/39.398 - Visa MIF, decision of 8
December 2010.

[210]         COMP/39.861-
Yen Interest Rate Derivatives, decision of 4 December 2013 and COMP/39.914 -
Euro Interest Rate Derivatives, decision of 4 December 2013.

[211]         COMP/39.654 - Reuters Instrument Codes (RICs), decision of
12 December 2012, COMP/39.592 - Standard & Poor's, decision of 15 November
2011.

[212]         COMP/39.745 - CDS - Information Market, opening of
proceedings of 1 July 2013; European Commission - IP/13/630 of 1 July 2013.

[213]         See the Internet (http://ec.europa.eu/competition/ecn/documents.html and

http://ec.europa.eu/competition/sectors/financial\_services/information\_paper\_payments\_en.pdf).

[214]         Judgment of 24 May 2012 in Case
T-111/08, MasterCard and Others v Commission.

[215]         Decision N°I720 of the Italian NCA of 3
November 2010 in the Case Carte
di Credito; Decision N°I704 of 9 April 2009 in the Case Assegni
MAV-Commissioni interbancarie and Decisions N° I724 and N° I725 of 30
September 2010 in the Case Commissione interbancaria Pagobancomat and
in the Case Accordi interbancari RIBA-RID-Bancomat.

[216]         Decision N°Vj - 18/2008 of the Hungarian NCA of 24
September 2009.

[217]         Decisions of the French NCA N°10-D-28 of 20 September 2010,
N°11-D-11 of 7 July 2011 and N°12-D-17 of 5 July 2012.

[218]         Decision N°13-D-17 and 13-D-18 of the
French NCA of 20 September 2013.

[219]         See e.g. Decision N°I731 of the Italian
NCA of 28 September 2011 relating to bid-rigging in the insurance sector and
Decision N°2S-33 of the Lithuanian NCA of 23 December 2010 relating to an
insurance pool agreement.

[220]         Judgment of 7 February 2013 in Case
C-68/12, Slovenská sporiteľňa,
paragraph 21. The Supreme Court of the Slovak Republic subsequently upheld the
decisions of the Slovak NCA against two of the banks and one was annulled and
referred back to the NCA for further investigation.

[221]         Banking: see e.g. Ireland
(2005); Slovakia (2007), Bulgaria (2008); Hungary (2009); UK (2010-2013); Italy
(2011); Portugal (2009); Sweden (2006); Denmark (retail banking market - 2013).
Other Financial services: see e.g. Ireland (insurance - 2005); Italy (car
insurance - 2013); Romania (2013); Netherlands (health insurance – 2006, funeral
insurance -2008); and the Netherlands (mortgages – 2011-2013).

[222]         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).

[223]         COMP/39.596 - BA/AA/IB, decision of 14 July 2010.

[224]         COMP/39.595 -
Continental/United/Lufthansa/Air Canada, decision of 23 May 2013.

[225]         COMP/39.258 - Airfreight, decision of 9 November
2010.

[226]         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); European Commission - IP/13/122 of 19 February
2013; European Commission - IP/14/717 of 24 June 2014.

[227]         COMP/39.850
- Container Shipping, initiation of proceedings on 21 November 2013.

[228]         Directive 2004/51/EC
of the European Parliament and of the Council of 29 April 2004 amending Council
Directive 91/440/EEC on the development of the Community's railways (OJ L 164, 30.4.2004, p.164),
and Directive 2007/58/EC of the European Parliament and Council of 23 October
2007 amending
Council Directive 91/440/EEC on the development of the Community's railways and
Directive 2001/14/EC on the allocation of railway infrastructure capacity and
the levying of charges for the use of railway infrastructure (OJ L 315, 3.12.2007, p.44).

[229]             COMP/39.678 - Deutsche Bahn, decision of 18
December 2013.

[230]         Directive 97/67/EC, later modified by
Directives 2002/39/EC and 2008/6/EC.

[231]         COMP/39.462 - Freight forwarding,
decision of 28 March 2012.

[232]         Decision N° B 9-96/09 of the German NCA
of 17 December 2012 in the Case Lufthansa.

[233]         Decision N°10-D-13 of the French NCA of
15 April 2010 regarding the
practices implemented in the handling sector for the transport of containers in
the harbour of Le Havre.

[234]         Decision N°B 9-188/5 of the German NCA of 27 January 2010
in the Case Puttgarden.

[235]         Decision N°S/0012/07 of the Spanish NCA
of 17 March 2011.

[236]         Decision N°3.1-8/08-011L of the
Estonian NCA of 5 March 2008.

[237]         See e.g. Decision N°I743 of the Italian
NCA of 11 June 2013 regarding the routes from the Italian mainland to Sardinia.

[238]         Decision N°2012-P/K-32 of the Belgian
NCA of 10 December 2012.

[239]         Decision of the Danish NCA of 30 August
2007 and Decision of the Danish NCA of 22 December 2010.

[240]         Decision N°05-D-63 of the French NCA of
17 November 2005 and Decision n°04-D-65 of the French NCA of 30 November 2004.

[241]         Decision N°B 9-55/03 of the German NCA of 11 February 2005
in the Case Deutsche Post.

[242]         Decision N°52 of the Romanian NCA of 16
December 2010.

[243]         Decision N°306-35/2005 of the Slovenian
NCA of 28 May 2008.

[244]         Decision N°S/0373/11 of the Spanish NCA
of 21 January 2014.

[245]         See para 165
above and the 2009 Report on Regulation 1/2003 (SWP), para 217.

[246]         Decision of the Danish NCA of 29 September 2004.

[247]         Judgment of 27 March 2012 in Case
C-209/10 Post Denmark v Konkurrencerådet.

[248]         Decision N°A441 of the Italian NCA of
27 March 2013; Decision N°A438 of 14 March 2012; Decision N°A414 of 16 December
2009 and Decision N°A388 of 27 February 2008.

[249]         Decision N°S/0341/11 of the Spanish CNC
of 22 April 2004.

[250]         Transport: see e.g. Ireland (1999,
Irish ports - 2013); the Netherlands, (rail - 2006, 2007, 2008, 2009, 2010 and
2012) (water transport industry -
2008); Spain (2008-2010-2011-2013);
Slovakia (rail - 2010), Romania (maritime transport – 2010). Post: see e.g. Denmark (parcel distribution – 2013); Spain
(2010).

[251]         COMP/38.549 - Barême d'honoraires de l'Ordre des
Architectes belges, decision of 24 June 2004.

[252]         In the 2004 Report (COM(2004 83 final)
the Commission focused on six professions - lawyers, notaries, engineers,
architects, pharmacists and accountancy (including the neighbouring profession
of tax advisers), and analysed in detail five key restrictions on competition:
(i) fixed prices, (ii) recommended prices, (iii) advertising regulations, (iv)
entry requirements and reserved rights, and (v) regulations governing business
structure and multi-disciplinary practices. The Commission invited regulatory
authorities in the Member States and professional bodies to voluntarily review
existing rules applicable to the liberal professions and to reform or eliminate
those rules which are unjustified. In the 2005 Report (COM(2005) 405 final), it
assessed the level of progress made.

[253]         See e.g. Decision N°I716 of the Italian
NCA of 12 December 2009 against a decision of an association fixing minimum
fees for psychologists and Decision N°306-32/2010 of the Slovenian NCA of 26
September 2012 against a decision of an association fixing fees for doctors and
dentists services.

[254]         See e.g. Bulgaria (auditors - 2007, pharmacists
- 2008, architects and engineers - 2008, veterinarians – 2012, private
enforcement agents – 2010 and 2013, opticians, optometrists and
ophthalmologists - 2011); Czech Republic (2010); Estonia (2005); Ireland
(engineers - 2004, architects - 2006, optometrists - 2006, dentists - 2007,
solicitors & barristers - 2006, veterinary practitioners - 2008, general
medical practitioners - 2009 and 2010); Italy (2007); the Netherlands (real
estate agents – 2012); Portugal (notaries – 2007); Spain (2008-2012). The UK
NCA has carried out work relating to professional services though-out the
period covered.

[255]         COMP/38.543 - International removal
services, decision of 11 March 2008.

[256]         COMP/39.416 - Ship classification,
decision of 14 October 2009.

[257]         Decision N°A419 of the Italian NCA of
13 April 2011 in the Case Giochi24/Sisal and Decision N°14-D-04 of the
French NCA of 25 February 2014.

[258]         Decision N°B 10-148/05 of the German NCA
of 23 August 2006 in the Case Lottery companies.

[259]         Decision N°53/2013 of the Romanian NCA of 23 December 2013.

[260]       See e.g. Italy (packaging waste – 2008);
Sweden (public procurement of waste services - 2008); the Netherlands (water –
2009); UK (organic waste – 2011); Germany (compliance schemes - 2012). Estonia
has also carried out a number of sector inquiries in the environment sector in
the reported period.

[261]         See further the ECN Investigative
Powers Report and Decision Making Powers Report, of 31 October 2012
(http://ec.europa.eu/competition/ecn/documents.html). The Reports were prepared
by way of follow-up to the 2009 Report on Regulation 1/2003, which had
identified the diversity of procedures as an area for further examination. In
view of the divergences identified in these Reports, the ECN developed a set of
ECN Recommendations on selected topics. The ECN Recommendations are aimed at
fostering further procedural convergence in the absence of legal harmonisation.
They can be used by the NCAs in discussions with Member States' lawmakers, see
the Internet (http://ec.europa.eu/competition/ecn/documents.html). For further details, see the Staff Working
Document on enhancing competition enforcement by the Member States' competition
authorities.

[262]         Case C-441/07 P Commission v Alrosa
[2010] ECR I-5949, paragraph 41.

[263]         COMP/39.530 - Microsoft (Tying), decision of 6
March 2013.

[264]         According to Recital 13 of Regulation
1/2003, commitment decisions are not, in principle, appropriate in cases where
the Commission intends to impose a fine, which would be the case in a hard-core
cartel. For those cases, the settlement procedure (see further below) may allow
for more expeditious proceedings.

[265]         Excludes cartel cases, procedural cases
and Article 102 and 106 TFEU cases.

[266]         Further details can be found in section
IV.C, which deals with fines.

[267]         Since 2004, positive remedies (all
behavioural) were imposed in three Article 7 decisions (COMP/37.792 -
Microsoft, decision of 24 March 2004, COMP/34.579 - MasterCard, decision of 19
December 2007 and COMP/38.698 - CISAC, decision of 16 July 2008). Most Article
7 procedures are concluded with a cease and desist order. Conversely, all
decisions with structural remedies were taken under Article 9.

[268]         For examples of structural
remedies, see COMP/39.388 - German Electricity Wholesale Market, decision of 26
November 2008, COMP/39.389 - German Electricity Balancing Market, decision of
26 November 2008, COMP/39.317 - E.ON Gas, decision of 4 May 2010, COMP/39.315 -
ENI, decision of 29 September 2010, COMP/39.727 - CEZ, decision of 10 April 2013. Other cases
with structural (or at least “quasi-structural”) remedies are COMP/39.402 - RWE
Gas Foreclosure, decision of 18 March 2009, COMP/39.316 - Gaz de France,
decision of 3 December 2009, COMP/39.596 - BA/AA/IB, decision of 14 July 2010, COMP/39.595 -
Continental/United/Lufthansa/Air Canada, decision of 23 March 2013.

[269]         Recital 13 of Regulation 1/2003.

[270]         See the 2008 amendment of Regulation 773/2004 introducing Article
10(a) which provided for the possibility of cartel participants to settle their
case with the Commission. See also 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 L 171, 1.7.2008, p. 3).

[271]         DRAMs, in June 2010; the "hybrid"
case Animal Feed Phosphates in July 2010, Consumer Detergents in April 2011,
CRT glass in October 2011, and Refrigeration Compressors in December 2011,
Water Management Products in June 2012, Wire Harnesses in July 2013, and LIBOR
and EURIBOR in December 2013. Settlement discussions are currently on-going in
a number of other cases.

[272]         COMP/39.326 - E.ON Energie AG, decision of 20 January 2008, COMP/39.796 -
Suez Environnement breach of seal, decision of 24 May 2011.

[273]         COMP/39.793 - EPH and others, decision
of 28 March 2012.

[274]         The Commission issued a Notice on guidance letters setting
out how undertakings should make requests for guidance in such circumstances
but to date only a few approaches have been made to the Commission and none of
them fulfilled the conditions for a request for a guidance letter set out in
the Notice.

[275]         This also includes decisions imposing
fines only.

[276]         Art. 11(4) of Council Regulation 1/2003
also expressly requires information about envisaged decisions withdrawing the
benefit of a block exemption regulation. The last type of decisions is rarely
adopted by NCAs.

[277]         Such types of decisions are therefore
not included in the 665 envisaged decisions.

[278]         There is some divergence as regards the
remedies that NCAs can impose, notably structural remedies are not available to
some NCAs. The ECN endorsed in 2013 a Recommendation to promote the concept
that NCAs should have the power to impose structural remedies, see the Internet
(http://ec.europa.eu/competition/ecn/documents.html).

[279]         In some Member States, such decisions are adopted by a
court, in others these procedures have to follow a different set of procedural
rules. The case database of the ECN takes account of these particularities and
treats decisions imposing fines (only) as a separate category.

[280]         This interpretation of Article 5 was
confirmed by the ECJ in Case C-375/09 - Tele2
Polska [2011] I-3055.

[281]         For further details about NCAs
procedures, see the Staff Working Document on enhancing
competition enforcement by the Member States' competition authorities..

[282]         See Chapter IV.C for further details.

[283]         Voluntary interviews under Article 19
are to be distinguished from the possibility to ask oral questions during an
inspection pursuant to Article 20(2)(e).

[284]         The Commission has used this provision in the context of the
investigation in COMP/39.165 - Flat glass in France and in Germany in February 2005.

[285]         See further the ECN Investigative
Powers Report of 31 October 2012 on the Internet (http://ec.europa.eu/competition/ecn/documents.html).

[286]         See further the
Staff Working Document on enhancing competition enforcement by the Member
States' competition authorities..

[287]         3G - Sale of sports rights and third
generation mobile phone services, Sector inquiry launched on 30 January 2004.
See the Internet (http://ec.europa.eu/competition/sectors/media/inquiries).

[288]         Gas and electricity Sector inquiry
launched in 2005; Final report presented on 10 January 2007. See the Internet (http://ec.europa.eu/competition/sectors/energy/inquiry).

[289]         Sector inquiry launched on 13 June
2005; Final report presented on 31 January 2007. See the Internet (http://ec.europa.eu/competition/sectors/financial\_services/inquiries/retail.html).

[290]         Sector inquiry launched on 13 June
2005; Final report presented on 25 September 2007. See the Internet (http://ec.europa.eu/competition/sectors/financial\_services/inquiries/business.html).

[291]         Sector inquiry launched on 15 January
2008; Final report presented on 8 July 2009. See the Internet (http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/communication\_en.pdf).

[292]         For reference to numerous examples of
inquiries carried out by NCAs in a large number of sectors, see Section III.B
on the relevant sectors.

[293]         To
the extent the Commission decisions were appealed, the amounts indicated are
adjusted for any changes to the level of fines made by the General Court and/or
European Court of Justice) and/or by Commission amendment decisions.

[294]         To
the extent the Commission decisions were appealed, the amounts indicated are
adjusted for any changes to the level of fines made by the General Court and/or
European Court of Justice and/or by Commission amendment decisions.

[295]         COMP/39.326 - E.ON Energie AG, decision of 20 January 2008.

[296]         COMP/39.796 - Suez Environnement breach of seal, decision
of 24 May 2011.

[297]         COMP/39.793 - EPH and others, decision
of 28 March 2012.

[298]         COMP/38.432 - Professional videotapes,
decision of 20 November 2007, COMP/38.354 - Industrial bags, decision of 30
November 2005, COMP/38.121 - Fittings, decision of 20 September 2006 and
COMP/38.456 - Bitumen Nederland, decision of 13 September 2006.

[299]         COMP/37.792 Microsoft, decision of 12 July 2006 and 27
February 2008.

[300]         Amounts
adjusted for changes following judgments of the General Court and/or European
Court of Justice and/or amendment decisions.

[301]         COMP/39.530 - Microsoft (Tying),
decision of 6 March 2013.

[302]         Case 68/88, Commission v Greece, [1989] ECR 2965,
paragraphs 23 – 25, Case C-429/07 Inspecteur
van de Belastingdienst v X BV [2009] ECR I-04833, in particular, paragraph
37, Judgment of 18 June 2013 in Case C-681/11 Schenker & Co.

[303]         See the Internet (http://ec.europa.eu/competition/antitrust/legislation/fines.html).

[304]         The interpretation given by national
courts to national fining rules modelled on the EU rules can, however, diverge
significantly from the interpretation given by the Union courts: see the
judgment by the German Federal Supreme Court of 26 February 2013 - KRB 20/12,
on the interpretation of the ten percent limit under German law.

[305]         For
further details about the fining powers of the NCAs and issues of parental
liability, see the Staff Working Document on enhancing
competition enforcement by the Member States' competition authorities.

[306]         Commission notice on immunity from
fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, p. 17).

[307]      The Commission may grant a marker to an
immunity applicant which protects their place as first in the queue for
leniency. The marker is granted for a specified period while the applicant
gathers the necessary information and evidence to complete its application.

[308]         See further below.

[309]
        The text of the MLP
is available on the Internet (http://ec.europa.eu/competition/ecn/model\_leniency\_en.pdf).

[310]         The
MLP provides a blueprint that needs to be transposed. By endorsing the MLP, the
heads of the ECN authorities have agreed to use their best efforts to align
their current and future leniency programmes and practices on the MLP. By the
time of reporting, all EU jurisdictions operate leniency policies, with the
exception of Malta which is currently contemplating introducing such a
programme.

[311]         See the Internet (http://ec.europa.eu/competition/ecn/mlp\_revised\_2012\_en.pdf).

[312]         For further details about the leniency
policies of the NCAs, see the Staff Working Document on
enhancing competition enforcement by the Member States' competition authorities..

[313]         See, for example, the judgments of 8
December 2011 in Case C-386/10 P, Chalkor v Commission, paragraphs
45-67, and in Case C-272/09 P, KME v Commission, paragraphs 91-107;
judgment of 11 July 2013 in Case C-439/11P, Ziegler v Commission,
paragraphs 154-160; judgment of 18 July 2013 in Case C-501/11 P, Schindler v
Commission, paragraphs 36-39; judgment of 24 October 2013 in Case C-510/11
P, Kone v. Commission, paragraphs 20-32.

[314]         Judgment of the ECtHR of 27 September
2011, A. Menarini Diagnostics S.R.L. v. Italy, Application No 43509/08.

[315]         OJ C 308, 20.10.2011, p.6-32.

[316]         Decision 2011/695/EU, OJ L 275,
20.10.2011, p. 29. See further on
the Internet (http://ec.europa.eu/competition/hearing\_officers/legislation.html).

[317]         See the jurisprudence
regarding Article 51(1) of the Charter of Fundamental Rights of the European
Union according to which the Member States are required to comply with the
provisions of the Charter "when they are implementing Union law". See
in particular the judgment of 26 February 2013 in Case C-617/10 Åklageren v
Hans Åkerberg Fransson, paragraphs 16-29 and the judgment of 6 March 2014
in Case C-206/13 Siragusa v Regione Sicilia- - Soprintendenza
Beni Culturali e Ambientali di Palermo.

[318]         See further the ECN Decision-Making
Powers Report, see the Internet (http://ec.europa.eu/competition/ecn/documents.html).

[319]         For a detailed discussion of this
topic, see the 2009 Report on Regulation 1/2003 (SWP), paragraphs 248-268.

[320]         See the 2009 Report on Regulation
1/2003 (SWP), paragraphs 248-268.

[321]         See the 2009 Report on Regulation
1/2003 (SWP), paragraphs 248-268.

[322]         The ECN itself issues a regular
newsletter ("ECN Brief", see the Internet (http://ec.europa.eu/competition/ecn/brief/index.html) that has seen rising subscriptions since its inception in
2010. Private-sector operators also offer various types of information
services, ranging from daily news reporting to more classical academic
publications.

[323]         2009 Report on Regulation 1/2003,
(SWP), paragraphs 248-268.

[324]         See for example the Resolution on the
Reform of the Common Agricultural Policy of 21 December 2012 on the Internet (http://ec.europa.eu/competition/sectors/agriculture/resolution\_nca\_en.pdf), and the Resolution on Competition authorities in the
European Union - the continued need for effective institutions of 16 November
2010, on the Internet (http://ec.europa.eu/competition/ecn/ncas.pdf).

[325]         Actual joint inquiries remain extremely
rare reflecting both procedural and substantive complexities of such projects
at the present stage.

[326]         See further on this subject, the Staff Working Document on enhancing competition enforcement by
the Member States' competition authorities..

[327]         See paragraph 219 above and further on
this subject the Staff Working Document on enhancing
competition enforcement by the Member States' competition authorities..

[328]         See 2009 Report on Regulation 1/2003,
part 5.1.

[329]         See the Resolutions of the Heads of the
European Competition Authorities on the Common Agricultural Policy and on the
High Level Group on Milk aimed at improving the bargaining power of dairy farms
(http://ec.europa.eu/competition/ecn/documents.html). See also Chapter III above.

[330]         See the Internet (http://ec.europa.eu/competition/ecn/food\_report\_en.pdf) and Chapter III above.

[331]         See the Internet (http://ec.europa.eu/competition/sectors/financial\_services/information\_paper\_
payments\_en.pdf). The Report was published
as background information to the Green paper ‘Towards an integrated European
market for card, internet and mobile payments’. See also Chapter III above.

[332]         See the Internet (http://ec.europa.eu/competition/ecn/mergers.html).

[333]         In relation to processing of personal
data, EU law on data protection applies, in particular Directive 95/46/EC of
the European Parliament and of the Council on the protection of individuals
with regard to the processing of personal data and on the free movement of such
data, OJ L 281, 23.11.1995, p.31 and Regulation (EC) No 45/2001 of the European
Parliament and of the Council of 18 December 2000 on the protection of
individuals with regard to the processing of personal data by the Community
institutions and bodies and on the free movement of such data, OJ L 8,
12.01.2001, p.1

[334]         Article 14 of Regulation 1/2003.

[335]         Network Notice, paragraphs 43-49; 2009
Report on Regulation 1/2003, paragraphs 248-261.

[336]         Network Notice, paragraphs 43-49; 2009
Report on Regulation 1/2003, paragraphs 248-261.

[337]         Network Notice, paragraphs 54ss.

[338]         However, the legal basis for the
initiation of proceedings by the Commission is the same, namely Articles 11(6)
of Regulation 1/2003 and Article 2 of Regulation 773/2004; cf. also the Network
Notice, para 53.

[339]         See the Internet (http://ec.europa.eu/competition/court/antitrust\_amicus\_curiae.html).

[340]         See further below.

[341]         Judgment of the Austrian Supreme Court
16 Ok 4/13 of 2 December 2013.

[342]         Judgment of 18 June 2013 in Case C‑681/11,
Bundeswettbewerbsbehörde, Bundeskartellanwalt v Schenker
& Co. and Others.

[343]         See the Internet (http://ec.europa.eu/competition/antitrust/legislation/vertical.html).

[344]         Case C-439/09 Pierre Fabre Dermo-Cosmétique SAS
v Président de l'Autorité de la Concurrence and Others [2011] I-9419.

[345]         Such a prohibition could only be
justified under Article 101(3) TFEU on the basis of an individual assessment.

[346]         Case C‑429/07 Inspecteur van de
Belastingdienst v. X B.V [2009] I-4833.

[347]         See also C-452/01 Ospelt
2003 ECR, I-9743.

[348]         For example, the exchange of
information provided for in Article 12 of Regulation 1/2003 and the possibility
to request assistance from an EU competition authority pursuant to Article 22
of Regulation 1/2003.

[Top](#document1)