Competition Commissioner and the Regulation No 1/2003

Empowerment of the Competition Commissioner for the application of Regulation No 1/2003 in general

On 28 April 2004 the Commission adopted a decision with a comprehensive set of empowerments (PV(2004) 1655, SEC(2004) 520/2) as extended by PV(2006) 1763, SEC(2006) 1368 for the Competition Commissioner for the application of Regulation No 1/2003 and implementing Commission Regulation No 773/2004. The introductory explanatory memorandum of the empowerment decision (hereinafter 'the explanatory memorandum') provides essential information about the rationale and functioning of the empowerments and the involvement of other services.

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The Competition Commissioner has been empowered to adopt around 21 different measures (see the full list in Article 1 of the decision).

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Most of those empowerments concern measures for which the Competition Commissioner already held an empowerment under the former Regulation 17 such as for example: – rejection of complaint by Commission decision (Article 7(2) of Regulation 1/2003 and Article 7(2) of Regulation 773/2004; Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 and Article 9 of Regulation 773/2004; Article 29(1) of Regulation 1/2003); – Commission decision requesting information from undertakings and associations of undertakings (Article 18(3) of Regulation 1/2003); – Commission decision ordering inspections of undertakings and associations of undertakings (Article 20(4) of Regulation 1/2003);. – determination and issuance of a statement of objections to undertakings or associations of undertakings and setting of a time-limit for reply (Article 27(1) of Regulation 1/2003 and Article 10(1)(2) of Regulation 773/2004).

Other Considerations

Other empowerments listed in Article 1 of the decision concern measures which have been created by the new enforcement system such as for example: – preliminary assessment (Article 9(1) of Regulation 1/2003) and decision to reopen proceedings after a commitment decision (Article 9(2) of Regulation 1/2003); – opinions for national courts and refusal to supply confidential information (Article 15(1) of Regulation 1/2003); – Commission decision ordering inspections of other premises (Article 21 of Regulation 1/2003).

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It must be borne in mind that under Article 13(3) of the Rules of Procedure a Commissioner can sub-delegate the powers granted to him to a Director-General and Head of Service unless this is expressly prohibited in the empowerment decision. The empowerment decision of 28 April 2004 prohibits the sub-delegation only as regards the determination and issuance of a statement of objections. By decision of 27 May 2004 the Commissioner for Competition has therefore subdelegated a number of the above powers to the Director General of DG COMP (see below).

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As a result of those sub-delegations, in fact only the following measures listed in the empowerment decision of 28 April 2004 are directly adopted by the Competition Commissioner: – initiation of proceedings (Article 2(1) of Regulation 773/2004 and Article 11(6) of Regulation 1/2003) except in the situation foreseen in Article 11(4) of Regulation 1/20034; – determination and issuance of a statement of objections to undertakings or associations of undertakings (Article 27(1) of Regulation 1/2003 and Article 10(1)(2) of Regulation 773/2004); comment: this empowerment must be exercised in agreement with the President of the Commission (see below 2.2.1.2); – preliminary assessment in the procedure for the adoption of a decision making commitments binding (Article 9(1) of Regulation 1/2003); – publication of a summary of the case and request for comments on commitments (Article 27(4) of Regulation 1/2003); – Commission decision to re-open proceedings after a decision making commitments binding (Article 9(2) of Regulation 1/2003); – Commission decision imposing (provisional) periodic penalty payments for breach of substantive rules (if not yet imposed by a previous Commission decision ordering termination of these breaches, Article 24(1)(a)(b)(c) of Regulation 1/2003) or for breach of procedural rules (Article 24(1)(e) of Regulation 1/2003); comment: the decision on periodic penalty payments in order to compel undertakings to supply complete and correct information requested by decision taken pursuant to Articles 17 or 18(3) of Regulation 1/2003 (Article 24(1)(d) is sub-delegated to the Director General (see below 2.3); – rejection of complaint by Commission decision (Article 7(2) of Regulation 1/2003 and Article 7(2) of Regulation 773/2004; Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 and Article 9 of Regulation 773/2004; Article 29(1) of Regulation 1/2003); – Commission decision ordering inspections of other premises (Article 21 (1) of Regulation 1/2003) except where the decision must be taken urgently and the Competition Commissioner cannot be reached in time; comment: for the latter exceptional cases there is a sub-delegation to the Director General (see below 2.3); – Commission decision requesting an NCA to undertake inspections (Art. 22(2) of Regulation 1/2003).

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Under Article 3 of the empowerment decision the above empowerments granted to the Competition Commissioner are also applicable where the Commission, on the basis of the provisions of Regulations 1/2003 and 773/2004, applies Articles 53 and 54 of the EEA Agreement.

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All those empowerments must be exercised in accordance with the general rules relating to the empowerment procedure. In particular, before taking a decision the Commissioner must determine whether on grounds of political sensitivity or because of its importance, the matter should be brought before the full Commission. If there is any doubt, the President should be consulted. The services of DG Competition must draw the attention of the Commissioner to those circumstances which might convince the Commissioner to bring the matter before the full Commission.

Resources

See Also

References

• Information about Competition Commissioner and the Regulation No 1/2003 in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

• Information about Competition Commissioner and the Regulation No 1/2003 in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)