Informal guidance to firms

The Commission is entering into a dialogue with firms. In particular, it is prepared to provide guidance to them where novel legal questions make it difficult for them to assess their agreements or conduct in the light of the European Union (EU) competition rules. Guidance letters will be reserved for cases where a genuinely novel question concerning Article 101 or Article 102 of the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 81 and 82 of the Treaty Establishing the European Community (TEC)) arises and will be subject to the Commission’s enforcement priorities.

ACT

Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) [Official Journal No C 101, 27.4.2004].

SUMMARY

Undertakings are generally well placed to assess the legality of their actions in such a way as to enable them to take an informed decision on whether to go ahead with an agreement or practice and in what form. They are close to the facts and have at their disposal the framework of block exemption regulations, case law and case practice as well as extensive guidance in Commission guidelines and notices.

Where cases give rise to novel or unresolved questions for the application of Articles 101 and 102 on the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 81 and 82 of the Treaty Establishing the European Community (TEC)), the firms concerned may wish to seek informal guidance from the Commission. The Commission may provide such guidance on novel questions concerning the interpretation of Articles 101 TFEU and/or 102 TFEU in a written statement (guidance letter). The Commission will consider whether it is appropriate to process a request for informal guidance by looking at:

• whether the question really is a novel one concerning Article 101 or 102;
• the economic importance from the point of view of the consumer of the goods or services concerned by the agreement or practice, and/or the extent to which the agreement or practice corresponds to more widely spread economic usage in the marketplace and/or the extent of the investments linked to the transaction in relation to the size of the companies concerned;
• whether any further fact-finding is required and whether all the information is available.

The Commission will not consider hypothetical questions and will not issue guidance letters on agreements or practices:

• that are no longer being implemented by the parties;
• that have been raised in a case pending before the European Court of First Instance or the European Court of Justice;
• that are subject to proceedings pending with the Commission, a European Union (EU) country’s national court or an EU country’s competent national competition authority.

As there is no form, firms should send in specific questions on which guidance is sought, together with detailed reasons why the request raises one or more novel questions, and supply full and exhaustive information on all relevant points. Finally, they should note the identity of all the undertakings concerned. The request should be sent to the following address:

European Commission, Competition DG, B-1049 Brussels, Belgium.

While respecting the professional secrecy that applies to information supplied by requesters, the Commission may share the information submitted to it with the EU countries' national competition authorities and receive input from them. It may discuss the substance of the request with the national competition authorities before issuing a guidance letter. Guidance letters will be reasoned and will be posted on the Commission's website. They are not Commission decisions and do not bind the EU countries' national competition authorities or courts that have the power to apply Articles 101 and 102 TFEU.

Last updated: 21.02.2011