Implementing EU competition rules — best practices for the conduct of proceedings concerning Articles 101 and 102 of the TFEU
Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU
WHAT IS THE AIM OF THE NOTICE?
It provides practical guidance on the main European Commission procedures for handling alleged violations of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU):
Article 101 TFEU bans cartels* and other restrictive agreements
Article 102 outlaws abuses by companies with a dominant position.
By increasing the understanding of the Commission’s investigation process, the notice aims to enhance the efficiency of investigations and ensure a high degree of transparency and predictability in the process.
The notice explains how the Commission applies:
Annex 1 of the notice summarises the essence of the notice in the form of a flowchart.
cases of alleged anti-competitive behaviour may be:
- based on complaints from companies, natural and legal persons or EU governments;
- opened by the Commission itself, which also encourages companies and the public to inform it of suspected wrongdoing;
in an initial assessment, the Commission:
- allocates the case within the European Competition Network;
- examines if a case merits further investigation;
- discards some cases because of insufficient grounds for acting;
- focuses on cases with a significant impact on the internal market and risk harming consumers;
- informs the addressees of investigative measures of their subject and purpose;
- alerts complainants of the action it proposes to take;
by formally opening proceedings, the Commission:
- signals it will further investigate the case;
- identifies and informs the parties involved and describes the scope of the investigation;
- emphasises the procedure does not prejudge the existence of a violation;
the Commission may:
- require companies to provide it with all necessary information within specific time limits;
- hold meetings with the parties concerned, complainants or others;
- take statements from natural or legal persons with useful input;
- inspect a company’s premises and other sites;
- share information with national competition authorities;
- organise voluntary state of play information meetings with companies under investigation at key stages of the case;
- allow the parties to review key submissions such as a non-confidential version of the complaint at an early stage;
The possible outcomes of the investigative phase are:
the adoption of a statement of objections with a view to a prohibition decision on all or some of the issues identified;
discussion of a possible commitment decision with the companies involved, if they wish, to address the competition issues at stake;
closure of the proceedings if there are no grounds to continue.
Procedures leading to a prohibition decision
After its in-depth investigation, the Commission adopts, to guarantee the company’s right to be heard, a statement of objections. This preliminary assessment of the alleged violations:
- informs the companies of the charges they face, giving them an opportunity to respond;
- sets out the remedies the Commission plans to impose to end the anti-competitive behaviour;
- indicates whether the Commission plans to levy fines on the companies, how these might be calculated and whether they might be reduced;
- allows the addressees to access the Commission case file and, if necessary, certain confidential information;
- provides the companies with the right of a written reply;
- associates complainants with the proceedings by giving them a non-confidential version of the statement of objections;
- gives the parties concerned the right to an oral hearing to develop their written arguments, supplement their written evidence or inform the Commission of other relevant issues;
- is followed by a supplementary statement of objections if relevant new evidence emerges or the companies, which may respond to the new developments, face heavier penalties.
At the end of the process, the Commission may:
- decide a violation of the relevant competition rules has taken place;
- withdraw some of its objections while proceeding with the others;
- close the case.
encourages companies to signal an interest in discussing commitments as early as possible;
may accept commitments from a company if it volunteers to act to correct its anti-competitive behaviour;
rejects commitments if it considers the illegal activity deserves a fine;
takes no decision whether a violation of EU law has taken place or not, if it accepts the commitments.
The procedures require the Commission to:
issue a preliminary assessment, summarising the main facts and identifying the action the company should take;
give the companies 1 month to submit unambiguous and self-executing commitments to change their behaviour or implement structural changes;
publicise the commitments, before making them binding, so third parties and any claimant may react to them — a process known as the ‘market test’;
continue with the prohibition procedure if a company refuses to adapt its commitments in the light of the market test or new information.
Procedure for rejecting complaints
considers formal complaints;
assesses them in the light of the factual and legal circumstances of a particular case;
may reject them because of:
- insufficient grounds for acting
- a lack of competence, evidence or substantiation
informs the complainant, who may withdraw the allegation or try to convince the Commission to continue its investigation.
Adoption, notification and publication of decisions
The Commission provides the companies involved immediately with the decision after it has been taken, issues a press release and publishes a non-confidential version on the Directorate-General for Competition’s website.
The following Commission notices are also relevant to the proceedings:
The notice does not cover the following which have their own guidance:
FROM WHEN DOES THE NOTICE APPLY?
It has applied since 20 October 2011.
Cartel: a group of 2 or more firms who try to restrict competition by price fixing, limiting supply, or other restrictive practices in order to control selling prices.
Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, pp. 6-32)
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)
Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, pp. 29-37)
Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ C 325, 22.12.2005, pp. 7-15)
Commission Regulation (EC) No 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, pp. 18-24)
Successive amendments to Regulation (EC) No 773/2004 have been incorporated into the original text. This consolidated version is of documentary value only.
Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty (OJ C 101, 27.4.2004, pp. 65-77)
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, pp. 1-22)
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)
See consolidated version.
last update 29.05.2020