Cooperation with the national authorities

1) OBJECTIVE

To set out the basic principles which the Commission plans to adopt in future with a view to promoting cooperation with the national authorities so as to achieve decentralised application of Community competition rules.

2) ACT

Commission notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 81 and 82 (formerly Articles 85 and 86) of the EC Treaty [Commission Notice (97/C 313/03); Official Journal C 313 of 15.10.1997].

3) SUMMARY

Background

Community law is implemented by the Commission and national competition authorities, on the one hand, and national courts, on the other, in accordance with the principles developed by the Community legislature and by the Court of Justice and the Court of First Instance of the European Communities.

Scope

The specific nature of the role of the Commission and of national competition authorities is characterised by the powers conferred on those bodies by Article 9 of Regulation No 17, which states that, provided their national law has conferred the necessary powers on them, national competition authorities are competent to apply the prohibitions enshrined in European competition law as regards agreements between undertakings (Article 81 (1) EC) and abuse of a dominant position (Article 82 EC).

On the other hand, for the purpose of applying the exemption rules (Article 81(3)), the national authorities do not have powers to grant exemptions in individual cases. They must abide by the decisions, regulations and other measures adopted by the Commission (e.g. comfort letters).

This notice does not apply to competition rules in the transport sector.

Role of the Member States and of the Community

The Commission is convinced that enhancing the role of national competition authorities will bolster the application of Community competition rules throughout the Community. For cases falling within the scope of Community law, checks should be carried out by a single authority (either a Member State's competition authority or the Commission). Member States' competition authorities often have a more detailed and precise knowledge than the Commission of the relevant markets. Above all, they may be in a better position than the Commission to detect restrictive practices that have not been notified or abuses of a dominant position.

In the Commission's view, national authorities should apply Community law directly or, failing that, they should obtain pursuant to their domestic competition rules a result similar to that which would have been obtained by applying Community law.

Cooperation between authorities reduces the risk of divergent decisions, which are more likely to be reached where a national authority applies its national law rather than Community law. However, the application of national law should not prejudice the uniform application of Community law.

In the Commission's view, it is desirable that national authorities should apply European competition law, if appropriate in conjunction with their domestic competition rules. More specifically, the Commission notes that:

• where a Member State's competition authority applies Community law, it is required to comply with any decisions taken previously by the Commission in the same proceedings;
• where the case has merely been the subject of a comfort letter, although this type of letter does not bind national courts, the opinion expressed by the Commission constitutes a factor which the national courts may take into account;
• where an infringement of European competition law is established by Commission decision, that decision precludes the application of a domestic legal provision authorising what the Commission has prohibited;
• where an infringement of European competition law has previously been the subject of an individual exemption decision of the Commission or is covered by a block exemption regulation, it is less clear whether national authorities are allowed to apply their national competition law. However, the Commission has already argued (cf. Case C-266/93) that national authorities may not prohibit exempted agreements.

Guidelines on case allocation

The allocation of cases as between national authorities and the Commission must take account of:

• the conduct in question. If it is to be caught by Community law and not merely by national competition law, the conduct in question must be liable to have an appreciable effect on trade between Member States;
• the relevant market: in practice, decisions taken by a national authority can apply effectively only to restrictions of competition whose impact is felt essentially within its territory. However, the Commission reserves the right to take on certain cases of particular significance to the Community.

The Commission has exclusive powers in respect of exemptions under Article 81(3) of the Treaty.

Cooperation in cases which the Commission deals with first

Cases dealt with by the Commission have three possible origins:

• own-initiative proceedings: by their very nature, these do not lend themselves to decentralised processing by national competition authorities;
• notifications: the Commission's exclusive powers in individual cases means that cases notified to the Commission by parties cannot be dealt with by a national competition authority on the Commission's initiative;
• complaints: complaints falling within the scope of the Commission's exclusive powers, such as withdrawal of exemption, cannot be usefully handled by a national competition authority. These may deal, at the Commission's request, with complaints relating to restrictive practices which must be notified under Articles 4(1), 5(1) and 25 of Regulation No 17 but which have not been notified to the Commission and those based on alleged abuse of a dominant position (Article 82 of the Treaty). However, the Commission is entitled to reject a complaint which does not display sufficient Community interest to justify further investigation.

Cooperation in cases which a national authority deals with first

At issue here are cases falling within the scope of Community competition law which a national competition authority handles on its own initiative, applying Articles 81(1) and 82, either alone or in conjunction with its national competition rules, or, where it cannot do so, its national rules alone.

As regards cases which they deal with under Community law, it is desirable that national authorities should systematically inform the Commission of any proceedings they initiate. The Commission will pass on this information to the authorities in the other Member States.

This cooperation is especially necessary in regard to cases of particular significance to the Community, which include cases raising a new point of law. The aim is to avoid decisions, whether based on national law or on Community law, which are incompatible with the latter. National competition authorities may contact the Commission where application of the competition rules raises particular difficulties.

The actual application of this notice will be the subject of an annual review carried out jointly by the authorities of the Member States and the Commission.

This notice will be reviewed by the end of 2001 at the latest.

Last updated: 05.11.2001