European Competition Network (ECN)

SUMMARY OF:

Notice on cooperation within the Network of Competition Authorities

WHAT IS THE AIM OF THE NOTICE?

• It sets out in detail how the European Competition Network (ECN) created by Regulation (EC) No 1/2003 (see summary) operates in practice to ensure an efficient division of work and effective and consistent application of EU competition rules.
• The network consists of the European Commission and national competition authorities working together on cases involving Articles 101 (see summary) and 102, (previously Articles 81 and 82) of the Treaty on the Functioning of the European Union (TFEU).
• Article 101 bans cartels and behaviour that prevents, restricts or distorts competition. Article 102 outlaws abuses by companies with a dominant position.

KEY POINTS

The regulation establishes a system of parallel powers allowing all competition authorities to apply Articles 101 and 102. Cases are handled by the authority that received a complaint or started an ex-officio procedure*. Re-allocation of a case would only be envisaged at the outset of a procedure where either that authority considered that it was not well placed to act or where other authorities also considered themselves well placed to act. An authority can be considered to be well placed to deal with a case if the following 3 cumulative conditions are met:

• the alleged illegal behaviour is implemented within or originates in its jurisdiction;
• it can put an end to the practice;
• it can gather, possibly with the help of other authorities, the evidence needed to prove the wrongdoing.

Therefore the following authorities are particularly well placed to handle a case:

• a single national authority when the following conditions confirm a material link exists between the wrongdoing and its territory;
• 2 or 3 national authorities cooperating and working in parallel when the behaviour under investigation has substantial effects on competition on their respective territories;
• the Commission when the case affects competition in more than 3 EU countries or is linked to other EU rules under the Commission’s responsibility or if the EU interest requires the adoption of a Commission decision to develop EU competition policy when a new competition issue arises or to ensure effective enforcement.

Cooperation on case allocation and assistance within the network involves:

• allocating cases quickly and efficiently;
• exchanging information at the start of the procedure of all the cases pending before the various competition authorities to determine which is best placed to handle the investigation;
• reallocating a case, normally within 2 months, if necessary.

A national authority may:

• suspend or close its proceedings, although it is under no obligation, and can decide to do so when another authority is dealing, or has dealt with, the case;
• ask another national authority for assistance in collecting information or fact finding;
• carry out an inspection for the Commission if asked.

All competition authorities may exchange and use confidential information they have collected while applying the following safeguards for companies and individuals:

• respect for professional secrecy unless disclosure is necessary to prove anti-competitive behaviour;
• use of the exchanged information for competition cases only;
• compliance with the right of defence for individuals, particularly when sanctions may be imposed.

Complainants raising an alleged abuse with the Commission have the right to know why, if their complaint is rejected.

Companies seeking favourable treatment in cartel cases under a national leniency programme*:

• should file their leniency application to all the competition authorities involved in the case;
• must give, and may not later withdraw, their consent before any information they voluntarily provided or helped obtain is given to another member of the network, except when the authority receiving the information:
  • has also received a leniency application from the company;
  • provides a written commitment not to use the information to impose sanctions on the leniency applicant, any other legal or natural persons, or current and former employees covered by the favourable treatment measures.

Consistent application of EU competition rules:

• requires national authorities to:
  • not diverge from decisions the Commission has already taken when making their own rulings on agreements, decisions and practices;
  • send the Commission a summary of the case no later than 30 days before adopting a decision on the anti-competitive behaviour;
• allows national authorities to take a decision after the 30 days, provided the Commission has not started proceedings, although it may make written observations on the case;
• gives national authorities the possibility of informing the Commission and the network of any other cases involving EU competition law.

The Commission may start its own Article 101 and 102 proceedings, either because it is the first competition authority to do so or (if after the case’s initial allocation, and explaining why to the national authorities) because:

• network members envisage conflicting decisions in the case or a ruling not in line with EU case law, do not object or are unduly drawing out the proceedings;
• a need exists to adopt a Commission decision to develop EU competition policy.

National authorities, once the Commission has opened proceedings, may not act on the same legal basis against the same agreement(s) or practice(s) by the same company(ies) on the same relevant and geographic market.

The notice:

• is reviewed periodically by the national authorities and the Commission;
• replaces the Commission notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 81 and 82 (now Articles 101 and 102 TFEU) of the Treaty published in 1997.

FROM WHEN DOES THE NOTICE APPLY?

It has applied since 27 April 2004.

BACKGROUND

• In 2019, the EU adopted Directive (EU) 2019/1 on empowering national competition authorities for effective enforcement (see summary).
• For more information, see:
  • European Competition Network (European Commission).

KEY TERMS

MAIN DOCUMENT

Commission Notice on cooperation within the Network of Competition Authorities (OJ C 101, 27.4.2004, pp. 43-53)

RELATED DOCUMENTS

Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ L 11, 14.1.2019, pp. 3-33)

Consolidated version of the Treaty on the Functioning of the European Union — Part Three — Union policies and internal actions — Title VII — Common rules on competition, taxation and approximation of laws — Chapter 1 — Rules on competition — Section 1 — Rules applying to undertakings — Article 101 (ex Article 81 TEC) (OJ C 202, 7.6.2016, pp. 88-89)

Consolidated version of the Treaty on the Functioning of the European Union — Part Three — Union policies and internal actions — Title VII — Common rules on competition, taxation and approximation of laws — Chapter 1 — Rules on competition — Section 1 — Rules applying to undertakings — Article 102 (ex Article 82 TEC) (OJ C 202, 7.6.2016, p. 89)

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, pp. 1-25)

Successive amendments to Regulation (EC) No 1/2003 have been incorporated into the original text. This consolidated version is of documentary value only.

last update 15.05.2020