Category Archives: O

Obligations

Obligations

Obligations in the European Union Law

Concept of Obligations provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Requirements the Commission imposes on undertakings in order to be able to exempt a notified agreement or to declare a notified concentration compatible with the common market ( Conditions).

The breach of such obligations may result in the revocation of the Commission's decision.

(See: Article 8 of Regulation No 17; Articles 6(2) and 8(2) of the merger regula-tion; Commission notice on remedies (OJ C 68, 2.3.2001, p. 3).)

Oligopoly

Oligopoly

Oligopoly in the European Union Law

Concept of Oligopoly provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A market structure with few sellers, who realise their interdepend-ence in taking strategic decisions, for instance on price, output and quality. In an oligopoly, each firm is aware that its market behaviour will distinctly affect the other sellers and their market behaviour. As a result, each firm will take the possible reactions from the other players expressly into account. In competition cases, the term is often also used for situations where a few big sellers jointly dominate the competitive structure and a fringe of smaller sellers adapt to their behaviour. The big sellers are then referred to as the oligopolists. In certain circumstances this situation may be considered as one of collective (also joint or oligopolistic) dominance.

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See also

  • Collusion

Oral procedure

Oral procedure

Oral procedure

If the Competition Commissioner considers, after having consulted the President of the Commission, that in view of their economic or political importance the measures in issue should be debated, the oral procedure is used.

Resources

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References

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

Further Reading

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

Oral procedure

The second part of the procedure before the General Court and Court of Justice is the oral hearing. A few weeks before the hearing, the Court provides the parties with a “Report for the Hearing”; this Report, drafted by the Judge Rapporteur, is a brief summary of the parties' arguments. Sometimes, the Court may also send a few written questions to the parties, usually to be answered in writing in advance of the hearing or sometimes orally at the hearing. During the hearing, each party presents oral pleadings before the Court – around 30 – 45 minutes is typically allowed in competition cases; parties may then be asked a series of questions by the judges and (in the case of the Court of Justice) the Advocate General (questions are an invariable feature of the hearing before the General Court but not always before the Court of Justice).

Resources

See Also

References

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

Further Reading

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

Oral statements

Oral statements

Oral statements

The legal basis for the Commission to take statement is Article 19 of Regulation 1/2003 (Power to take statements) 1 . The procedure for corporate statements is set out in Section IV of the 2006 Leniency Notice (see paragraphs 31-35), according to which the Commission may accept that corporate statements are made orally unless the applicant has already disclosed the content of the corporate statement to third parties. From the moment of the publication of the 2006 Leniency Notice, this procedure applies to all pending and new applications.

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The copy of the recorded oral statement; any comments provided by the applicant on it (when checking its technical accuracy and making any potential corrections to it); and the Commission transcript of it will be used in the proceedings. In the following, the key elements in the oral corporate statement procedure are presented.

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Recording the statement and explaining the oral statements procedure to the applicant: Oral corporate statements will be recorded. The Commission officials receiving the application should at the start of the meeting set out the procedure that will be followed (see also the Module on the Power to take statements). As part of the opening statement by the Commission official, it is recommended to remind the applicant about the following Leniency Notice provisions that the applicant should have already become familiar with before making the application:

Other Considerations

1) the possibility to check technical accuracy of the recording within a given time limit; 2) the possibility to correct the substance of their oral statements within a given time limit; and 3) the obligation to check the accuracy of the transcript made of the recording within a given time limit.

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While the applicant can waive the first two rights (in which case the recording is deemed to have been approved), it has the obligation to check the accuracy of the transcript. It is recommended to remind the applicant that the non-compliance with the last requirement may lead to the loss of any beneficial treatment under the Leniency Notice. The applicant should be reminded of the above described rights and formalities only once, at the first meeting where an oral statement is given. 2 Declaration on obligations of the leniency applicant. The applicant should sign a declaration stating that it has been reminded of the obligations under point 32 of the 2006 Leniency Notice and that it is fully aware that corporate statements cannot contain any business secrets or other confidential information.

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Transcript of the statement: After the recording, a Commission transcript of the oral statement will be prepared.

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Checking accuracy of the recording: The undertaking making the oral statement has the opportunity, immediately or within a given time limit , to listen to a copy of the recording and to communicate to the Commission any comments regarding the accuracy of the recording (the technical accuracy of the recording). The undertaking may indicate to the Commission at any time before the expiry of the said time limit that it does not wish to make comments on the technical accuracy of the recording. At that point in time, the undertaking will be deemed to have approved the recording as accurate; alternatively, the recording will be deemed to be approved as accurate at the expiry of the said deadline.

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Any comments made by the applicant's representatives regarding the technical accuracy of the recording of the oral statement may be made in writing or orally, at the choice of the undertaking. Any comments made in oral form will again be recorded. The same procedure as in case of the initial statement described above will be used. The undertaking will be given the opportunity to check the technical accuracy of this recording.

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Checking correctness of the substance: The undertaking making the oral statement has the opportunity, immediately or within a given time limit to communicate to the Commission any corrections regarding the substance of the oral statement (correctness of the substance). The undertaking may indicate to the Commission at any time before the expiry of the said time limit that it does not wish to make any corrections on substance. At that point in time, the undertaking will be deemed to have approved the oral statement as correct on substance; alternatively, the oral statement will be deemed to be approved as correct on substance at the expiry of the said deadline. Any corrections regarding the substance of the oral statement may be made in writing or orally, at the choice of the undertaking. Any corrections made in oral form will again be recorded. The same procedure as in case of the initial statement described above will be used. The undertaking will be given the opportunity to check the technical accuracy of this recording.

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For the purposes of applying the Leniency Notice, the Commission will take corrections on substance into account as having been supplied on the day and at the time when they were submitted to the Commission. The absence of any corrections on substance is without prejudice to the possibility to provide complementary information or evidence, including in the form of corporate statements.

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Checking accuracy of the transcript: Following the explicit or implicit approval of the oral corporate statement or the submission of any corrections to it, the undertaking must check the accuracy of the transcript of the oral statement. For this purpose, the applicant must listen to the recording of the oral statement at the Commission's premises and check the accuracy of the transcript within a given time limit. The undertaking has to ensure that the transcript is an exact literal reproduction of what has been stated orally. In practice the applicant has to listen to the tape and confirm that the transcript is accurate. Checking by means of any lawyer's notes is not allowed because the transcript must correspond to the tape and not the lawyer's notes.

It is recommended that the case-team verifies the accuracy of the transcript. They should preferably do so after the recording has been transcribed. To certify that accuracy of the transcript has been checked by the applicant, the applicant or its representative should confirm in writing that the transcript is a true and accurate record of the oral statement. If the undertaking or its representative does not agree to sign, it is recommended that an internal note is prepared for the file.

If there is a factual mistake in the oral statement found during checking of the transcript, a new oral statement correcting the mistake is necessary, and consequently a new transcript will be prepared. The undertaking should normally only dictate the correction in a separate statement, not the whole document. References to oral statements in SOs and Decisions: When referring in an SO and in a Decision to the evidence provided in an oral statement, reference can be made to the page of the transcript (mentioning also the date of the statement). Interviews of applicant's employees and directors: Under the 2006 Leniency Notice, to qualify for any immunity or reduction of a fine, a leniency applicant has an obligation to make its current (and, if possible, former) employees and directors available for interviews with the Commission.

Resources

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References

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

Notes


[Note 1]
For further information on the Commission's powers under Article 19, see module on the power to take statements (ManProc Chapter IV.4).
[Note 2]
Unless there are specific circumstances, such as a change in the legal representatives, in which case it is reasonable to inform on these rights and obligations once more.

Further Reading

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

Organisation of the access to file

Organisation of the access to file

Organisation of the access to file

The access to file is prepared using the CMA.

Resources

See Also

References

  • Information about Organisation of the access to file in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Organisation of the access to file in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Outline of the procedure

Outline of the procedure

Outline of the procedure

Once the application has been received, the first step should be to prepare a written acknowledgement of receipt (if the applicant so requests) (see Section 4.3.2 below).

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Second step is to verify whether the evidence submitted meets the conditions in points 8(a) or 8(b). If the conditions are met, this will be followed by the adoption of a Commission decision granting the undertaking conditional immunity from fines (see Section (87)).

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If the conditions are not met, the undertaking will receive a Commission decision rejecting conditional immunity (see Section (88)) and it may either withdraw the evidence disclosed for the purpose of its application or request that the Commission considers the information for a possible reduction of a fine. The undertaking might alternatively have applied for a reduction of fines already in its application for immunity. In such case it will be acknowledged that such application was received and the undertaking will be informed that the Commission will verify whether the evidence meets the conditions set out in Notice, and will inform it accordingly (see Section 5 below on applications for a reduction of a fine).

Other Considerations

In some cases the undertaking may be informed via the acknowledgement of receipt that immunity is not available (see Section 4.3.4). Exceptionally, it may be possible to treat the case by way of a “non processing” or a “no action letter” (see Section 4.3.8).

Resources

See Also

References

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

Notes

$$7%% For hypothetical applications, see Section 4.4 below.

Further Reading

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

Outline of the procedure

The procedural handling is similar to that for immediate applications for immunity (see Section 4.3 above).

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As in the case of immunity applications, the Leniency Notice provides that the Directorate- General for Competition will issue an acknowledgement of receipt of the application recording the date of the application, if requested by the applicant.

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Then, if the Commission comes to the preliminary conclusion that the evidence submitted constitutes significant added value, the Commission will issue a decision setting out its intention to apply a reduction of a fine within a specified band.

Other Considerations

The Commission must give a preliminary positive conclusion no later than the date on which a Statement of Objections is notified.

Resources

See Also

References

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

Further Reading

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

Obligation to pay

Obligation to pay

Obligation to pay within the time limit set by the decision and exceptions

At the latest on the date set by the decision for payment, the fine (or periodic penalty payment) must be paid pursuant to Article 299 TFEU (the Commission's decisions are enforceable) and Article 278 TFEU (the appeal does not have suspensory effect).

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There may however be two particular scenarios.

Resources

See Also

References

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

Further Reading

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

Observations in Cooperation

Observations in Cooperation

Observations on what?

The Commission will only submit observations when the coherent application of Articles 101 or 102 TFEU so requires (see Court of Justice, Case C-429/07, Inspecteur van de Belastingdienst). The decision to submit observations should always be made with regard to the purpose of Article 15(3): the coherent application of Articles 101 or 102 TFEU. The Notice states in this respect: “The regulation specifies that the Commission will only submit observations when the coherent application of Articles [101] or [102] EC so requires. That being the objective of its submission, the Commission will limit its observations to an economic and legal analysis of the facts underlying the case pending before the national court.” Inter alia because also NCAs can submit observations to national courts, submissions by the Commission are more likely to be appropriate before last instance courts in the Member States.

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Where guidance in the case-law of the EU courts or in Commission regulations, decisions, notices and guidelines applying Articles 101 and 102 TFEU would offer sufficient guidance to the national court, it should be reflected whether the opinion given could focus on a reference to the relevant pieces of EU law and an explanation thereof.

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Where the request raises novel issues, the opinion may also suggest to the national court to have recourse to a preliminary ruling to the ECJ pursuant to Article 267 TFEU.

Other Considerations

The opinion should be written in the language of the request.

Resources

See Also

References

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

Further Reading

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

Official journal and publication

Official journal and publication

Official journal and publication

It follows from Article 297 TFEU and Regulation 1/2003 that “publication” implies publication in the Official Journal (in the “L” series for publication of the decision in full, in “C” series for all other texts and information, such as summaries of decisions.

More about Official journal and publication

All publications in the Official Journal are in all EU languages. The publication on the DG COMP website (e.g. of the full non-confidential version of a final decision or decision or of texts not published in the Official Journal) is done in the authentic language(s) and generally also in the drafting language (if different from the authentic language). See more in the Module Publication.

Resources

See Also

References

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

Further Reading

  • Information about Official journal and publication in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Official Journal Corrigenda

Official Journal Corrigenda

Publication of Decisions: Official Journal Corrigenda

In case an adopted decision contains mistakes, corrections will be implemented following the relevant procedure. If the OJ publication is not yet undertaken, the summary will be corrected and reference is made to the corrigendum decision. In case the summary of the decision has already been published in the OJ, a summary of the corrigendum decision should be published.

Resources

See Also

References

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

Further Reading

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