Category Archives: G

General economic interest

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General economic interest

Services of general economic interest in the European Union Law

Concept of Services of general economic interest provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Services of an economic nature, the provision of which can be consid-ered to be in the general interest. For example, basic, publicly acces-sible supply of energy, telecommunication, postal services, transport, water and waste-disposal services. The Member States are primarily responsible for defining what they regard as services of general economic interest on the basis of the specific features of the activities concerned. However, their definitions are subject to the Commission's control for manifest errors where Member States specifically entrust undertakings within the meaning of Article 86(2) of the EC Treaty with services of general economic interest. The precise definition of the particular task assigned to the entrusted undertaking is an important element for assessing whether, and to what extent, it is justified for the State to grant exclusive rights or funds to that undertaking in order to ensure the fulfilment of the task.

(See also: Article 16 of the EC Treaty; communication from the Commission of 20.9.2000, services of general interest in Europe (OJ C 17, 19.1.2001); Commission report to the Laeken European Council of 17.10.2001, services of general interest (COM(2001)598 final).)

General principles of cooperation

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General principles of cooperation

General principles of cooperation

The Notice explains in para. 19 the general principles underlying the Commission's cooperation with national courts as follows: “It should be recalled that whatever form the co-operation with national courts takes, the Commission will respect the independence of national courts. As a consequence, the assistance offered by the Commission does not bind the national court. The Commission has also to make sure that it respects its duty of professional secrecy and that it safeguards its own functioning and independence. In fulfilling its duty under [Article 4(3) of the Treaty on European Union], of assisting national courts in the application of EC competition rules, the Commission is committed to remaining neutral and objective in its assistance. Indeed, the Commission's assistance to national courts is part of its duty to defend the public interest. It has therefore no intention to serve the private interests of the parties involved in the case pending before the national court. As a consequence, the Commission will not hear any of the parties about its assistance to the national court. In case the Commission has been contacted by any of the parties in the case pending before the court on issues which are raised before the national court, it will inform the national court thereof, independent of whether these contacts took place before or after the national court's request for co-operation.”

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The obligation to assist national courts only exists when the latter apply EU law.

Resources

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References

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

Further Reading

  • Information about General principles of cooperation in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Granting a reduction of fines

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Granting a reduction of fines

Decision indicating the Commission's intention to grant a reduction of fines

Once a preliminary conclusion has been reached that the evidence submitted constitutes significant added value, the Commission will issue a decision informing the applicant of its intention to apply a reduction of a fine within a certain band.

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References

  • Information about Granting a reduction of fines in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Granting a reduction of fines in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Granting conditional immunity

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Granting conditional immunity

Granting conditional immunity

First stage: Decision on basis of the hypothetical list of evidence: The procedure is the same as in the case of an immediate application (see Section 4.3 above). At this stage the name of the applicant may or may not be known. In the latter case, the decision should be sent to the lawyer representing the applicant.

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Second stage: Decision granting conditional immunity: The procedure is the same as for a decision in the case of an immediate application (see Section 4.3 above).

Resources

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References

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

Further Reading

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

Grounds for rejection of complaints

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Grounds for rejection of complaints

Grounds for rejection of complaints

Complaints can be rejected on the basis that there are insufficient grounds for acting.19 In particular, there can be insufficient grounds for acting if conducting a further investigation into the alleged infringement would, in view of the public interest and the circumstances of the individual case, not constitute a sufficiently high degree of priority for the Commission (also known as 'lack of European Union interest'). There can also be insufficient grounds for acting if the complaint is not substantiated or if there is no evidence to establish the existence of an infringement.

Resources

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References

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

Further Reading

  • Information about Grounds for rejection of complaints in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Guidance Letter Formal conditions

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Guidance Letter Formal conditions

Formal conditions to request a Guidance Letter

A request can be presented by an undertaking or undertakings or associations of undertakings within the meaning of Articles 101 and 102 TFEU which have entered into or intend to enter into an agreement or practice that could fall within the scope of Articles 101 and/or 102 TFEU with regard to legal issues raised by such agreement or practice.

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There is no form. A memorandum should be presented which clearly states: – the identity of all undertakings concerned as well as a single address for contacts with the Commission; – the specific questions on which guidance is sought; – full and exhaustive information on all points relevant for an informed evaluation of the questions raised, including pertinent documentation; – detailed reasoning, explaining why the request presents a novel question; – all other information that permits an evaluation of the request in the light of the aspects explained in the Notice, including in particular a declaration that the agreement or practice to which the request refers is not subject to proceedings pending before a Member State court or competition authority; – where the request contains elements that are considered business secrets, a clear identification of these elements; – any other information or documentation relevant to the individual case.

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An undertaking can withdraw its request at any point in time. In any case, information supplied in the context of a request for guidance remains with the Commission and can be used in subsequent procedures under Regulation 1/2003.

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References

  • Information about Guidance Letter Formal conditions in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Guidance Letter Formal conditions in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Guidance Letter Substance Conditions

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Guidance Letter Substance Conditions

Conditions of substance to issue a Guidance Letter

According to the Notice on Informal Guidance (paragraphs 8-10), issuing a guidance letter may only be considered if the following cumulative conditions are fulfilled: – The substantive assessment of an agreement or practice with regard to Articles 101 and/or 102 TFEU, poses a question of application of the law for which there is no clarification in the existing EU legal framework including the case law of the EU Courts, nor publicly available general guidance or precedents in decision-making practice or previous guidance letters. – A prima facie evaluation of the specificities and background of the case suggests that the clarification of the novel question through a guidance letter is useful, taking into account the following elements:

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– the economic importance from the point of view of the consumers of the goods or services concerned by the agreement or practice, and/or – the extent to which the agreement or practice corresponds or is liable to correspond to more wide spread economic usage in the marketplace and/or – the extent of the investments linked to the transaction in relation to the size of the companies concerned and the extent to which the transaction relates to a structural operation such as the creation of a non-full function joint venture.

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– It is possible to issue a guidance letter on the basis of the information provided, i.e. no further fact-finding is required. – Furthermore, the Commission will not consider a request for a guidance letter in either of the following circumstances: – the questions raised in the request are identical or similar to issues raised in a case pending before the General Court or the European Court of Justice; – the agreement or practice to which the request refers is subject to proceedings pending with the Commission, a Member State court or Member State competition authority.

Other Considerations

– The Commission will not consider hypothetical questions and will not issue guidance letters on agreements or practices that are no longer being implemented by the parties. Undertakings may however present a request for a guidance letter to the Commission in relation to questions raised by an agreement or practice that they envisage, i.e. before the implementation of that agreement or practice. In this case the transaction must have reached a sufficiently advanced stage for a request to be considered.

Resources

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References

  • Information about Guidance Letter Substance Conditions in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Guidance Letter Substance Conditions in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Guidance Letters and Analysis of the request

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Guidance Letters and Analysis of the request

Guidance Letters: Analysis of the request against criteria, priorities and facts

The Commission, seized of a request for a guidance letter, will consider whether it is appropriate to process it or not. A first reply should be sent by the unit dealing with the request to the applicant(s) within fifteen working days following the receipt of the request. Two answers are possible at that stage: – A letter directly rejecting the request: this will allow immediate rejection of requests which obviously (i) do not fulfil the criteria or (ii) are not considered as a priority. The letter rejecting the request will not refer to the substance but only to the fact that the Commission does not consider it as a priority. It should also state that Commission is not precluded from subsequently examining that same agreement or practice in a procedure under Regulation 1/2003. – A holding reply, if the request seems to fulfil the criteria detailed above and merits to be further analysed. The letter will indicate that the Commission services are currently analysing the request and that the final evaluation (issuance of a guidance letter or refusal) will follow.

More about Guidance Letters and Analysis of the request

In order to make this first assessment of the request, the unit should: – make a first assessment of the request against the conditions set out in the Notice; – check the facts set out by the undertakings; – make a first assessment whether it is appropriate to prepare a Guidance letter in the light of DG Competition's enforcement priorities.

Resources

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References

  • Information about Guidance Letters and Analysis of the request in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Guidance Letters and Analysis of the request in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Guidance Letters Effects

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Guidance Letters Effects

The effects of Guidance Letters

Guidance letters are in the first place intended to help undertakings carry out, by themselves, an informed assessment of their agreements and practices.

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A guidance letter cannot prejudge the assessment of the same question by the EU Courts.

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Where an agreement or practice has formed the factual basis for a guidance letter, the Commission is not precluded from subsequently examining that same agreement or practice in a procedure under Regulation 1/2003, in particular following a complaint. In that case, the Commission will take the previous guidance letter into account, subject in particular to changes in the underlying facts, to any new aspects raised by a complaint, to developments in the case law of the European Courts or wider changes of the Commission's policy.

Other Considerations

Guidance letters are not Commission decisions and do not bind Member States' competition authorities or courts that have the power to apply Articles 101 and 102 TFEU. However, it is open to Member States' competition authorities and courts to take account of guidance letters issued by the Commission as they see fit in the context of a case.

Resources

See Also

References

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

Further Reading

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