ECN obligations

ECN obligations

If a National Competition authority (NCA) already informed that they are acting on a given case (i.e. the ECN data base contains information of an NCA case) 1 , Article 11(6) of Regulation 1/2003 requires that the Commission consults in writing with the authority in question before opening of proceedings. In this regard two situations need to be distinguished:

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If the opening is envisaged during the indicative case-allocation period8, a simple bilateral consultation will suffice. The other authorities are given an opportunity to react within 2 weeks.

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If the opening is envisaged after the indicative case-allocation period, it is in principle limited to the situations mentioned in point 54 of the Network Notice9. Further to what is stipulated in Article 11(6), paragraphs 54 to 56 of this Notice require that the Commission: – formally consults the authority or authorities concerned, explaining the reasons for the opening in writing to the NCA(s) concerned and also to other network members, and – announces the intention to open proceedings in due time, so that network members have the possibility of asking for an Advisory Committee meeting.

Other Considerations

The consultation must contain a specific reasoning as to why the Commission finds that it is appropriate for it to open proceedings. This can be done by explaining why one or more of the scenarios described in paragraph 54 of the Network Notice is at stake. The consultation document is signed by the Director-general and copied to the other network members, and a period of 2 weeks is given for replies.

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The Commission must set out to the competition authority concerned its reasons for opening proceedings. In case of no disagreement this reasoning can be succinct. The Member State competition authority has a period of two weeks for making comments.

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See Also

References

• Information about ECN obligations in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] For further details see Module on Cooperation with National competition Authorities in EU and Exchange of Information in ECN. $$9%% Network Notice, pt; 54: “[…] After the allocation phase, the Commission will in principle only apply Article 11(6) of the Council Regulation if one of the following situations arises: (a) Network members envisage conflicting decisions in the same case. (b) Network members envisage a decision which is obviously in conflict with consolidated case law; the standards defined in the judgements of the Community courts and in previous decisions and regulations of the Commission should serve as a yardstick; concerning the assessment of the facts (e.g. market definition), only a significant divergence will trigger an intervention of the Commission; (c) Network member(s) is (are) unduly drawing out proceedings in the case; (d) There is a need to adopt a Commission decision to develop Community competition policy in particular when a similar competition issue arises in several Member States or to ensure effective enforcement; (e) The NCA(s) concerned do not object.”

Further Reading

• Information about ECN obligations in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)