Keywords
Summary

Keywords

1 . MEASURES ADOPTED BY THE INSTITUTIONS - STATEMENT OF REASONS - OBLIGATION - SCOPE - DECISION ORDERING AN INVESTIGATION UNDER ARTICLE 14 ( 3 ) OF REGULATION NO 17

( REGULATION NO 17 OF THE COUNCIL , ART . 14 ( 3 ))

2 . COMPETITION - ADMINISTRATIVE PROCEDURE - COMMISSION ' S POWERS OF INVESTIGATION - INVESTIGATION ORDERED BY A DECISION - OBLIGATION TO CONSULT THE COMPETENT NATIONAL AUTHORITIES - INFORMAL CONSULTATION - WHETHER PERMISSIBLE

( REGULATION NO 17 OF THE COUNCIL , ART . 14 ( 3 ) AND ( 4 ))

3 . COMMISSION - PRINCIPLE OF COLLEGIATE RESPONSIBILITY - IMPLICATIONS - USE OF A SYSTEM OF DELEGATIONS OF AUTHORITY FOR THE ADOPTION OF MEASURES OF MANAGEMENT OR ADMINISTRATION - LAWFULNESS - CONDITIONS

( MERGER TREATY , ARTS 16 AND 17 )

4 . COMPETITION - ADMINISTRATIVE PROCEDURE - COMMISSION ' S POWERS OF INVESTIGATION - DECISION ORDERING AN INVESTIGATION - STRAIGHTFORWARD MANAGEMENT DECISION - ADOPTION UNDER A DELEGATION OF AUTHORITY - LAWFULNESS

( REGULATION NO 17 OF THE COUNCIL , ART . 14 ( 3 ))

Summary

1 . SINCE THE PURPOSE OF ARTICLE 14 ( 3 ) OF REGULATION NO 17 IS TO ENABLE THE COMMISSION TO CARRY OUT INVESTIGATIONS WITHOUT THE CONSENT OF THE UNDERTAKINGS AND WITHOUT PRIOR WARNING , IT DOES NOT REQUIRE THE COMMISSION , WHEN IT ADOPTS A DECISION THEREUNDER , TO REPLY IN THAT DECISION TO THE ARGUMENTS PUT FORWARD BY THE UNDERTAKINGS CONCERNED TO JUSTIFY THEIR REFUSAL TO SUBMIT VOLUNTARILY TO INVESTIGATIONS UNDER ARTICLE 14 ( 2 ), OF WHICH THEY HAD PREVIOUSLY BEEN INFORMED .

2 . SINCE THE PURPOSE OF ARTICLE 14 ( 2 ) OF REGULATION NO 17 IS TO ENABLE THE COMMISSION TO CARRY OUT INVESTIGATIONS WITHOUT PRIOR WARNING ON THE PREMISES OF UNDERTAKINGS SUSPECTED OF INFRINGEMENTS OF ARTICLES 85 AND 86 OF THE TREATY , THE COMMISSION MUST BE ABLE TO ADOPT ITS DECISION WITHOUT BEING MADE SUBJECT TO CONDITIONS OF A FORMAL NATURE WHICH WOULD HAVE THE EFFECT OF DELAYING SUCH ADOPTION . THAT IS WHY THE CONSULTATION OF THE NATIONAL AUTHORITIES PROVIDED FOR IN ARTICLE 14 ( 4 ) MAY BE CARRIED OUT IN AN INFORMAL MANNER , IN PARTICULAR BY TELEPHONE , AND THAT NO MINUTE OF IT NEED BE DRAWN UP .

3 . THE COMMISSION IS SUBJECT TO THE PRINCIPLE OF COLLEGIATE RESPONSIBILITY , WHICH MAY BE TRACED TO ARTICLE 17 OF THE MERGER TREATY AND IT FOLLOWS FROM THAT PRINCIPLE , IN PARTICULAR , THAT DECISIONS SHOULD BE THE SUBJECT OF A COLLECTIVE DELIBERATION AND THAT ALL THE MEMBERS OF THE COLLEGE OF COMMISSIONERS BEAR COLLECTIVE RESPONSIBILITY ON THE POLITICAL LEVEL FOR ALL DECISIONS ADOPTED . THE FACT THAT THE COMMISSION MAY , WITHIN CERTAIN LIMITS AND SUBJECT TO CERTAIN CONDITIONS , AUTHORIZE ITS MEMBERS TO ADOPT CERTAIN DECISIONS IN ITS NAME AND SUBJECT TO ITS CONTROL IS COMPATIBLE WITH THAT PRINCIPLE .

ON THE ONE HAND , THE SYSTEM OF DELEGATION OF AUTHORITY SET UP BY THE COMMISSION DOES NOT HAVE THE EFFECT OF DIVESTING IT OF POWERS BY CONFERRING ON THE MEMBER TO WHOM AUTHORITY IS DELEGATED POWERS TO ACT IN HIS OWN RIGHT . DECISIONS ADOPTED UNDER A DELEGATION OF AUTHORITY ARE ADOPTED IN THE NAME OF THE COMMISSION , WHICH IS FULLY RESPONSIBLE FOR THEM , AND MAY BE THE SUBJECT OF AN APPLICATION FOR ANNULMENT UNDER THE SAME CONDITIONS AS IF THEY HAD BEEN CONSIDERED BY THE FULL COMMISSION . MOREOVER , THE COMMISSION HAS SET UP MACHINERY MAKING IT POSSIBLE TO RESERVE FOR THE FULL COMMISSION CERTAIN MEASURES WHICH COULD BE ADOPTED UNDER A DELEGATION OF AUTHORITY . FINALLY , IT HAS RETAINED THE RIGHT TO RECONSIDER THE DECISIONS GRANTING DELEGATIONS OF AUTHORITY .

ON THE OTHER HAND , LIMITED TO SPECIFIC CATEGORIES OF MEASURES OF MANAGEMENT OR ADMINISTRATION , AND THUS EXCLUDING BY DEFINITION DECISIONS OF PRINCIPLE , SUCH A SYSTEM OF DELEGATIONS OF AUTHORITY APPEARS NECESSARY , HAVING REGARD TO THE CONSIDERABLE INCREASE IN THE NUMBER OF DECISIONS WHICH THE COMMISSION IS REQUIRED TO ADOPT , TO ENABLE IT TO PERFORM ITS DUTIES . THE NEED TO ENSURE THAT THE DECISION-MAKING BODY IS ABLE TO FUNCTION CORRESPONDS TO A PRINCIPLE INHERENT IN ALL INSTITUTIONAL SYSTEMS AND WHICH IS SET OUT IN PARTICULAR IN ARTICLE 16 OF THE MERGER TREATY , ACCORDING TO WHICH ' THE COMMISSION SHALL ADOPT ITS RULES OF PROCEDURE SO AS TO ENSURE THAT BOTH IT AND ITS DEPARTMENTS OPERATE . . . ' .

THE PRINCIPLE OF LEGAL CERTAINTY AND THE NEED FOR ADMINISTRATIVE DECISIONS TO BE TRANSPARENT REQUIRE THAT THE COMMISSION SHOULD PUBLISH DECISIONS GRANTING DELEGATIONS OF AUTHORITY AS IF THEY WERE RULES OF PROCEDURE LAYING DOWN THE GENERAL FRAMEWORK IN WHICH SUCH DECISIONS ARE ADOPTED . HOWEVER , THE FAILURE TO PUBLISH THE DECISIONS ADOPTED HAS NO EFFECT ON THEIR LAWFULNESS EXCEPT IN SO FAR AS IT INTERFERES WITH THE RIGHT TO CONTEST THEM .

4 . A DECISION UNDER ARTICLE 14 ( 3 ) OF REGULATION NO 17 ORDERING AN UNDERTAKING TO SUBMIT TO AN INVESTIGATION IS A FORM OF PREPARATORY INQUIRY AND , AS SUCH , MUST BE REGARDED AS A STRAIGHTFORWARD MEASURE OF MANAGEMENT . IT FOLLOWS THAT SUCH A DECISION MAY BE ADOPTED UNDER A DELEGATION OF AUTHORITY . THE FACT THAT THE UNDERTAKINGS CONCERNED OBJECT TO THE SCHEDULED INVESTIGATIONS IS NOT A GROUND WHICH REQUIRES THE DECISION TO BE CONSIDERED BY THE FULL COMMISSION .