Author Archives: Paul Moore

Interim measures

Interim Measures

Interim Measures. Introduction

Regulation 17 did not directly address the issue of whether the Commission had power to adopt interim measures in relation to a suspected infringement of Article 101 and 102. However, in its 1980 order in the Camera Care case, the Court of Justice held that Article 3(1) of that regulation conferred on the Commission the power to take interim measures 1 .

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The Court held that there might be a need to adopt interim measures: “when the practice of certain undertakings in competition matters has the effect of injuring the interests of some Member States, causing damage to other undertakings, or of unacceptably jeopardising the Community's competition policy”.

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Article 8(1) of Reg. 1/2003 explicitly empowers the Commission to adopt interim measures. It provides that: “In cases of urgency due to the risk of serious and irreparable damage to competition, the Commission, acting on its own initiative may by decision, on the basis of a prima facie finding of infringement, order interim measures”.

Other Considerations

In addition, the Commission has been expressly granted the power to order interim measures by specific regulation, such as Regulation (EC) 659/1999 2 , on the application of rules on State aids control, and Regulation (EEC) 3975/87 concerning the application of competition rules to the air transport sector 3 .

Resources

See Also

References

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

Notes


[Note 1]
Case 792/79 R Camera Care [1980] ECR 119.
[Note 2]
Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83/1, 27. 3. 1999), recital 12: “Whereas in cases of unlawful aid, the Commission should have the right to obtain all necessary information enabling it to take a decision and to restore immediately, where appropriate, undistorted competition; whereas it is therefore appropriate to enable the Commission to adopt interim measures addressed to the Member State concerned; whereas the interim measures may take the form of information injunctions, suspension injunctions and recovery injunctions; whereas the Commission should be enabled in the event of non-compliance with an information injunction, to decide on the basis of the information available and, in the event of non-compliance with suspension and recovery injunctions, to refer the matter to the Court of Justice direct, in accordance with the second subparagraph of Article 93(2) of the Treaty”.
[Note 3]
Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ L 374, 31.12.1987, p. 1-8), as amended by Council Regulation (EEC) No 1284/91 of 14 May 1991(OJ L 122/2, 17.5.1991), Article 4a “Interim measures against anticompetitive practices”: “Without prejudice to the application of Article 4(1), where the Commission has clear prima facie evidence that certain practices are contrary to Article 85 or 86 of the Treaty and have the object or effect of directly jeopardizing the existence of an air service, and where recourse to normal procedures may not be sufficient to protect the air service or the airline company concerned, it may by decision take interim measures to ensure that these practices are not implemented or cease to be implemented and give such instructions as are necessary to prevent the occurrence of these practices until a decision under Article 4(1) is taken.”

Further Reading

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

Interim measures (“référé”)

This is not an independent form of action. An applicant can only ask for interim measures in parallel to its main action. For instance, with regard to DG Competition's antitrust activities, an applicant can introduce an action for annulment of a prohibition decision imposing a fine on it (main proceedings) and, in parallel, ask the Court to suspend the payment of the fine while the main proceedings are pending. The reason for making such a request for interim measures is that the bringing of the main proceedings does not suspend the obligations under of the Commission's decision (so the company has to pay the fine or give a bank guarantee even if it brings an action for annulment before the Court).

Resources

See Also

References

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

Further Reading

  • Information about Interim measures in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Interim measures in the European Union Law

Concept of Interim measures provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): 1. Conservatory measures imposed on firms by the Commission in relation to a competition case, in which a final decision on the substance has not been reached yet, in order to avoid anti-competi-tive behaviour leading to irreversible damage before being sanc-tioned. Interim measures may be taken on the Commission's own initiative, but are often requested together with a formal complaint. They can only be granted if the two following conditions are both met: — a firm's behaviour prima facie constitutes an infringement of competition rules, and — there is urgency, that is, a risk of serious and irreparable harm to the applicant.

For instance, a company whose existence is threatened by a poten-tially anti-competitive conduct of another company may request that the Commission investigate the matter under competition law, and in addition ask that the Commission prohibit the conduct in question until the investigation is terminated by a formal decision.

(See: Order of the European Court of Justice in Case 792/97 R Camera Care v Commission [1980] ECR, p. 119, at paragraph 12–21). The Commission can also take interim measures in merger cases in order to prevent the implementation of concentrations before the Commission has cleared them. The merger regulation prohibits the implementation prior to the Commission's authorisation, to avoid irreversible changes to the market structure before it is certain that the conditions for clearing a concentration are actually assembled.

(See: Articles 7 and 8(4) of the merger regulation.) 2. Interim measures can also be granted by the president of the Court of First Instance, to prevent a company from suffering serious and irreparable harm through the enforcement of a Commission decision, the legality of which is challenged by that same company in a main action.

(See: Articles 104–110 of the rules of procedure of the Court of First Instance.)

Hearing officer

Hearing Officer

Information to be provided to the Hearing Officer

When the SO is issued, the case team needs to provide the Hearing Officer secretariat with the following information: – the names and positions of the persons representing the companies concerned and/or their legal advisers (with their powers of attorney) and their complete addresses, fax numbers and e-mail addresses; – languages of the procedure, participation or not by ESA and estimated number of participants (for booking meeting room); – electronic versions of the SO in the available languages and replies, as soon as available (the Hearing Officer secretariat will transmit to the interpreters) ; – a copy of the DVD sent to the parties for access to file, as well as any access to corporate statements at DG Competition's premises at their request.

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The case-team should double-check carefully the material prepared for the hearing in order to avoid any inadvertent disclosure of information covered by professional secrecy (note that the confidential version of all documents should however be made accessible to the Hearing Officer).

Resources

See Also

References

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

Further Reading

  • Information about Hearing Officer in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing officer in the European Union Law

Concept of Hearing officer provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): An independent senior official who is charged with organising hearings and with ensuring that they are properly conducted. The hearing officer thus contributes to the objectivity of the hearing itself, the observance of due process, the respect of the parties' rights of defence and the objectivity of any decision taken subsequently. The tasks of the hearing officer also include resolving disputes between the Commission services and the parties concerned about the confi-dentiality of documents and access to the file which one or more of the parties claim in order to prepare their defence. The hearing officer reports to the Commissioner with special responsibility for competi-tion; his final report on a competition case is attached to the decision and published in the Official Journal. The terms of reference of the hearing officer are laid down in a Commission decision.

(See: Commission decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21); as regards the respect of fundamental rights, especially the right to be heard and the right of access to the file, in the context of the Commission's enforcement action in competition matters, see also Articles 41 and 48 of the Charter of Fundamental Rights of the European Union (OJ C 80, 10.3.2001, p. 1).)

Written procedure

Written procedure

Written procedure

The written procedure is generally used for all measures which must be adopted directly by the College itself, but which do not require a debate in the College.

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Prior approval of the Legal Service and agreement of the Directorates-General with a legitimate interest in the draft text are required before a written procedure can be launched (Article 12(1) of the Rules of Procedure; see also points 12-3.3 and 23.6 of the Rules giving effect to the Rules of Procedure).

Resources

See Also

References

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

Further Reading

  • Information about Written procedure in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Advisory Committee Written procedure

Consultation may also take place by written procedure. However, if any Member State so requests, the Commission has to convene a meeting. In case of written procedure, a time-limit should be determined of not less than 14 days within which the Member States are to put forward their observations for circulation to all other Member States. In case of decisions taken pursuant to Article 8, the time limit of 14 days is replaced by seven days. Where shorter time limits for the written procedure are being proposed, they will be applicable in the absence of an objection by any Member State (see below section 5.2.2.).

Resources

See Also

References

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

Further Reading

  • Information about Written procedure in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Written procedure Proposal

Written procedure Proposal

Deciding whether to propose the written procedure

The Commission shall assess whether or not to propose to NCAs a written procedure, taking account of the likely efficiency gains for both NCAs and the Commission, having regard to the nature of the case, the type of draft decision being considered and the likely nature of the comments if a meeting were held.

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The launching of the consultation under a written procedure is done by a notice from the Commission to the Advisory Committee, within the deadline prescribed in Article 14(4) of Regulation 1/2003 and together with the documents set out in Article 14(3) of Regulation 1/2003.

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If any Advisory Committee member considers that a case where the Commission has proposed an oral procedure would be suitable for a written procedure, he/she may communicate his / her opinion to the Commission. The Commission can follow up this suggestion by a notice to all Advisory Committee members, proposing that the consultation should take place by way of a written procedure.

Other Considerations

Pursuant to Article 14(4) of Regulation 1/2003, the Commission may set shorter deadlines than those provided in Article 14(3) and (4). Members should endeavour to indicate to the Commission as early as possible if they object to the shorter deadline. In case of an objection, the deadlines foreseen in Article 14(3) and (4) of Regulation 1/2003 would apply, counting from the dispatch of the documents.

Resources

See Also

References

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

Further Reading

  • Information about Written procedure Proposal in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Written Reply to the Statement of Objections

Written Reply to the Statement of Objections

Complainants may make known their views in writing

Pursuant to Article 6(1) of Reg. 773/2004, “Where the Commission issues a statement of objections relating to a matter in respect of which it has received a complaint, it shall provide the complainant with a copy of the non-confidential version of the statement of objections and set a time-limit within which the complainant may make known its views in writing”.

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There are two conditions for a person to qualify as a complainant in antitrust proceedings. First, such person must file a formal complaint pursuant to Article 5(1) of Regulation No 773/2004. Second, the person must have a legitimate interest. 1

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The Österreichische Postsparkasse judgment 2 clarified the requirements that a person needs to meet in order to qualify as a “complainant” in antitrust proceedings. First, the General Court confirmed that applicants qualify as complainants if they justify their “legitimate interest” by demonstrating that the alleged infringement might harm their economic interests. The Commission is obliged to establish whether persons claiming to be complainants might indeed be harmed in their economic interests. 3 By contrast, it is not for the Commission to examine whether the person pursues motives other than the termination of the infringement. 4 In the case at hand the banks' claim that the complainant pursued political interests rather than its interests as a consumer was therefore deemed to be irrelevant. Second, the fact that the Commission has already initiated the antitrust investigation the complaint refers to, either on its own (“ex officio”) or due to another complaint, is not a bar to the applicant's qualification as a complainant. 5 Irrespective of whether the complainants submit substantial new evidence, they can always “jump on the bandwagon” of a pending Commission investigation, even at a late stage. In this context the General Court has also confirmed that complainants may ask for a non-confidential version of the SO even after an oral hearing has taken place and up until the very moment the Advisory Committee convenes to decide on the draft decision imposing fines 6 7 . The applicants' counterargument that the provision of an SO to a complainant after the hearing was purposeless did not convince the General Court, which pointed to a lacuna in the secondary legislation with regard to the point in time after which a complaint becomes inadmissible.

Other Considerations

Any person claiming the status of “complainant” but not satisfying the above conditions may only be heard if they have a sufficient interest in the outcome of the proceedings, i.e., if they have been granted the status of “interested third party” by the Hearing Officer (see Section 2.1.3 below).

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Except in cartel settlement cases, the Commission must make available to complainants a nonconfidential version of the SO. The “non-confidential version of the SO” must not contain business secrets and “other confidential information”. This implies that, for instance, references to leniency statements and other admissions may be deleted. The complainant may raise issues about the extent of the deletions in the non-confidential version of the SO sent to it, and may refer the matter for decision to the Hearing Officer (HO) in case of disagreement with the case team (pursuant to Article 7(2)(c) of the HO Terms of Reference 8 ).

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The Hearing Officer may, where appropriate and after consulting the Director responsible, decide to afford complainants the opportunity to express their views at the oral hearing 9 .

Resources

See Also

References

  • Information about Written Reply to the Statement of Objections in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
See the Module on Handling of Complaints.
[Note 2]
Joined Cases T-213 and T-214/01 Österreichische Postsparkassee.a. [2006] ECR II-1601.
[Note 3]
Joined Cases T-213 and 214/01, Österreichische Postsparkasse e.a. [2006] ECR II-1601, para.124-129.
[Note 4]
Ibid., para. 118.
[Note 5]
Ibid., para. 92.
[Note 6]
Point 149 : “Therefore, as long as the Advisory Committee on Restrictive Practices and Dominant Positions has not delivered the opinion provided for in Article 10(6) of Regulation No 17 on the preliminary draft decision transmitted by the Commission, the applicant or complainant's right to receive the objections and to be heard cannot be regarded as time-barred. Until the advisory committee has delivered its opinion, there is nothing to prevent the Commission examining the comments made by third parties and then modifying its position in the light of those comments”.
[Note 7]
Ibid., at 148 and 149.
[Note 8]
Decision 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, p. 29).
[Note 9]
Article 6(2) of the HO Terms of Reference. The HO Terms of Reference provide that certain decisions are taken by the HO after consultation of the Director responsible for the case. In practice, the HO team will also seek the views of the case team directly, copying the Director.

Further Reading

  • Information about Written Reply to the Statement of Objections in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Second Advisory Committee on fines

Second Advisory Committee on fines

Second Advisory Committee on fines

The purpose of this second Advisory Committee is to present the proposals of DG Competition on the level of fines, as agreed by the Commissioner. The invitation has to be sent out 14 days in advance, but without communication of the proposal on fines.

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The case team describes and explains DG Competition's proposal on the level of fines, and, if relevant, also on a revised version of the draft decision following the first Advisory Committee). Once the debate is closed, the secretariat of the Advisory Committee drafts the opinion of the second Advisory Committee. Where Member States so recommend, opinion will also later be published in the OJ (along with the decision, the final report of the Hearing Officer and the opinion of the first Advisory Committee).

Resources

See Also

References

  • Information about Second Advisory Committee on fines in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Second Advisory Committee on fines in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Self-Incriminating Nature

Self-Incriminating Nature

How to react if a company claims that a question is of a self-incriminating nature

Where the addressee of a request for information pursuant to Article 18(2) of Regulation 1/2003 refuses to reply to a question in such a request invoking the privilege against self-incrimination, as defined by the case law of the Court of Justice of the European Union 1 , it may raise the matter with DG Competition before the expiry of the original time limit set 2 , otherwise it may simply not reply to this question and settle the discussion, if the questions infringe the privilege against self-incrimination, in the framework of an Article 18(3) decision.

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If DG Competition is convinced that its questions were not of a self-incriminating nature, it should inform the addressee of the request for information of its position.

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If, after having been informed of DG Competition's position, the undertaking still maintains that the questions addressed to it are self-incriminating, it may refer the matter in due time to the Hearing Officer. In appropriate cases, and having regard to the need to avoid undue delay in proceedings, the Hearing Officer may make a reasoned recommendation to the Competition Commissioner as to whether the privilege against self-incrimination applies and inform the director responsible of the conclusions drawn. The addressee of the request receives a copy of the reasoned recommendation.

Other Considerations

If, following the undertaking's refusal to reply to the simple request for information, a decision pursuant to Article 18(3) is adopted, such decision should take into account the Hearing Officer's reasoned opinion. The addressee of the Article 18(3) decision will in any case be reminded of the privilege against self-incrimination as defined by case law of the Court of Justice of the European Union 3 .

Resources

See Also

References

  • Information about Self-Incriminating Nature in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
See for example Case C-301/04 P Commission v. SGL, [2006] ECR I-5915, which specifies that addressees of an Article 18(3) decision may be required to provide pre-existing documents, such as minutes of cartel meetings, even if those documents may incriminate the party providing them.
[Note 2]
2)(b) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 36.
[Note 3]
See for example Case C-301/04 P Commission v. SGL, [2006] ECR I-5915, which specifies that addressees of an Article 18(3) decision may be required to provide pre-existing documents, such as minutes of cartel meetings, even if those documents may incriminate the party providing them.

Further Reading

  • Information about Self-Incriminating Nature in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Sending the requests for information

Sending the requests for information

Sending the requests for information

Requests for information are normally signed by or on behalf of the Head of Unit or casemanager.

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It is advisable to send the request by fax or e-mail, if channels of communication with the addressee have already been established. If a large number of documents or handwritten documents in particular are attached to the request, it is advisable to send the request by registered post (see below). The addressee should be asked to return the acknowledgement of receipt attached to the letter.

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Requests for information may also be sent by registered post with acknowledgement of receipt, or by courier. In this case, when setting the time-limit, account must be taken of the time necessary to deliver the letter.

Other Considerations

Requests for information can also be sent electronically through the eQuestionnaire application, which provides respondents with secure and efficient web-based workspace to submit their replies to the Commission.

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Irrespective of the type of delivery chosen, the request must be registered and uploaded by the Registry in the case management application.

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Pursuant to Article 18(5), a copy of the request should be sent to the NCA of the Member State where the addressee is located as well as to the NCA of the Member State whose territory is affected. The case team must indicate on the minute to which NCAs the request must be copied. The Registry takes care of sending the copy to the relevant NCA(s).

Resources

See Also

References

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

Further Reading

  • Information about Sending the requests for information in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Scope of the publication

Scope of the publication

Scope of the publication of the Decision

The Commission has a long established practice to publish its final antitrust decisions on DG Competition's website in order to ensure transparency, predictability and legal certainty, even though the Commission is under no legal obligation to do so. 1

More about Scope of the publication

In addition, all documents published in the OJ are also available on the DG Competition website via a direct link. 2

Resources

See Also

References

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

Notes


[Note 1]
See Case T-198/03 Bank Austria Creditanstalt / Commission [2006] ECR II-1429, paragraph 76: “(…) that provision [Art. 21(2) of Regulation 17] does not limit the Commission's power to publish the full text of its decisions, if, resources permitting, it considers it appropriate to do so” and para. 79: “the aim of Article 21(2) of Regulation No 17 is not to limit the Commission's freedom to publish, of its own volition, a version of its decision that is fuller than the minimum necessary and also to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy”.
[Note 2]
The bibliographic link allows that viewers can choose the format and the language desired.

Further Reading

  • Information about Scope of the publication in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Settlement procedure

Settlement procedure

Settlement procedure (Article 15 Reg. 773/2004): Access to relevant information

According to Article 15(1a) of Regulation 773/2004: “After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 and in order to enable the parties willing to introduce settlement submissions to do so, the Commission shall disclose to them the evidence and documents described in Article 10a(2) upon request and subject to the conditions established in the relevant subparagraphs. In view thereof, when introducing their settlement submissions, the parties shall confirm to the Commission that they will only require access to the file after the receipt of the statement of objections, if the statement of objections does not reflect the contents of their settlement submissions.”

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Article 10a (2) of Regulation 773/2004 stipulates: “Parties taking part in settlement discussions may be informed by the Commission of: (a) the objections it envisages to raise against them; (b) the evidence used to determine the envisaged objections; (c) non-confidential versions of any specified accessible document listed in the case file at that point in time, in so far as a request by the party is justified for the purpose of enabling the party to ascertain its position regarding a time period or any other particular aspect of the cartel; and (d) the range of potential fines. This information shall be confidential vis-à-vis third parties, save where the Commission has given a prior explicit authorisation for disclosure. Should settlement discussions progress, the Commission may set a time limit within which the parties may commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article 81 of the Treaty as well as their liability. Before the Commission sets a time limit to introduce their settlement submissions, the parties concerned shall be entitled to have the information specified in Article 10a(2), first subparagraph disclosed to them, upon request, in a timely manner. The Commission shall not be obliged to take into account settlement submissions received after the expiry of that time limit.”

Resources

See Also

References

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

Further Reading

  • Information about Settlement procedure in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)