EU Commission Enforcement [EU]

Implementing EU competition rules

The notice explains how the Commission applies:

Regulation (EC) No 1/2003 (see summary);
Regulation (EC) No 773/2004 (see summary).
Annex 1 of the notice summarises the essence of the notice in the form of a flowchart.

Procedure

Investigative phase

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.

Commitment procedure

The Commission:

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

The Commission:

• 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.

Additional guidance

The following Commission notices are also relevant to the proceedings:

• access to the Commission file;
• handling of complaints;
• terms of reference of the hearing officer.

The notice does not cover the following which have their own guidance:

• cartel-specific leniency and settlement procedures;
• infringements against EU governments based notably on Article 106 TFEU in conjunction with Articles 101 and 102;
• proceedings under the Merger Regulation (Regulation (EC) No 139/2004);
• state aid proceedings (under Regulation (EU) 2015/1589 which repealed and replaced Regulation (EC) No 659/1999).

It has applied since 20 October 2011.

BACKGROUND

Competition proceedings — The role of the hearing officer

Decision 2011/695/EU — on the function and terms of reference of the hearing officer in certain competition proceedings

The decision sets out the powers and functions of the hearing officers.
They are appointed by the European Commission and are linked, for administrative purposes, to the Commissioner responsible for competition policy.
They must act independently in carrying out their role.

Role

HOs organise and conduct oral hearings in antitrust and merger proceedings.
They may act as independent arbiter when a dispute arises over procedural rights between parties and the Commission’s Directorate-General (DG) for Competition.
They decide on applications to be heard by third parties in competition proceedings.

The main tasks of the HO are to:

• to ensure the effective exercise of procedural rights throughout proceedings including commitments and cartel* settlement procedures;
• to ensure the right to be heard;
• to deal with specific issues raised during the investigative phase of Commission proceedings, including:
• claims for legal professional privilege
• the privilege against self-incrimination
• deadlines for replying to decisions requiring information
• the right of companies and associations of companies to be informed of their procedural status;
• to ensure that the right to access the file and the companies’ legitimate interests in confidentiality are respected;
• to report on the outcome of the hearing and on the respect for the effective exercise of procedural rights; and
• to present, where appropriate, observations to the Competition Commissioner on any matter arising out of individual competition proceedings.

It has applied since 21 October 2011.