Concept of Retailer provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Firm at the end of the distribution chain, which normally buys a product from a wholesaler in order to sell it to the final consumer.
Concept of R & D agreement provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Agreement between firms to jointly undertake research and develop-ment (R & D) activities, in order to pool know-how and to share the costs and risks of inventing new products. An R & D agreement normally covers the acquisition of know-how relating to products or processes; the carrying out of theoretical analysis, systematic study or experimentation, including experimental production, technical testing of products or processes; and the establishment of the necessary Agreement between firms to jointly undertake research and develop-ment (R & D) activities, in order to pool know-how and to share the costs and risks of inventing new products. An R & D agreement normally covers the acquisition of know-how relating to products or processes; the carrying out of theoretical analysis, systematic study or experimentation, including experimental production, technical testing of products or processes; and the establishment of the necessary
Concept of Rescue merger provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): The concept of the rescue merger, also referred to as 'failing firm defence', enables the Commission to clear a concentration even though a dominant position is created or strengthened in its after-math, provided that there is no causal link between the concentration and the dominant position, that is to say, the merger does not lead to a deterioration of the competitive structure of the market. The Commission has developed the following criteria for the application of the rescue merger concept: (1) the undertaking to be acquired must be ' failing' (that is, it would, in any event, be forced out of the market); (2) there is no alternative buyer who could provide for a less anti-competitive solution; (3) the market share of the acquired under-taking would, in any event, be taken over by the acquiring undertak-ing, or its assets would inevitably exit the market if not taken over by another undertaking. So far, the concept of the rescue merger has been applied rarely.
(See: Commission decision of 14 December 1993 in Case IV/M.308 — Kali+Salz (OJ L 186, 21.7.1994, p. 38); Commission decision of 11 July 2001 in Case COMP/M.2314 — BASF/Eurodiol/Pantochim.)
Concept of Resale price maintenance provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Agreements or concerted practices between a supplier and a dealer with the object of directly or indirectly establishing a fixed or minimum price or price level to be observed by the dealer when reselling a product/service to his customers. A provision which foresees resale price maintenance will generally be considered to constitute a () hard-core restriction. In the case of contractual provi-sions or concerted practices that directly establish the resale price, the restriction is clear-cut. However, resale price maintenance can also be achieved through indirect means: for example, by fixing the distribu-tion margin or the maximum level of discount the distributor may grant from a prescribed price level; by making the supplier's rebates or his reimbursement of promotional costs subject to the observance of a given price level; by linking the prescribed resale price to the resale prices of competitors; or by threats, warnings, or even sanc-tions against a dealer who does not respect a certain price level (such as penalties, delay or suspension of deliveries or termination of contracts).
Concept of Relevant market provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): The definition of a relevant market is a tool to identify and define the boundaries of competition between firms. It establishes the frame-work within which the Commission applies competition policy princi-ples. The main purpose of market definition is to identify in a system-atic way the competitive constraints that the undertakings involved face. Market definition makes it possible, inter alia, to calculate the respective () market shares of the undertakings active on the relevant market, which convey meaningful information regarding () market power for the purposes of assessing dominance ( Dominant position). A relevant market is defined according to both product and geographic factors. In general terms, a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable ( Substitutability) by reason of product characteristics, prices and intended use. Products and/or services that could readily be put on the market by other producers without significant switching cost or by potential competitors at reasonable cost and within a limited time span also need to be taken into account. The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competi-tion are sufficiently homogeneous and which can be distinguished from neighbouring areas, because the conditions of competition are appreciably different in those areas.
(See: Commission notice on the definition of relevant market for the purposes of Community competition law (OJ C 372, 9.12.1997, p. 5).)
Concept of Regulation No 17 provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): First implementing regulation in the field of EU competition law, setting out the system of () notifications, procedural instruments for the enforcement of antitrust law and vesting the European Commission with far-reaching powers, in particular as regards inves-tigation, penalising of infringements by undertakings and exemption of agreements under Article 81(3) of the EC Treaty.
The ongoing revision of Regulation No 17 aims at increasing involve-ment of national courts and competition authorities in the enforce-ment of EU antitrust law (decentralisation) and would allow the Commission to focus its limited resources on the most serious infringements and on policy development. Adoption of a new basic regulation by the Council is envisaged in the course of year 2002.
(See: Council Regulation (EEC) No 17: First regulation implementing Articles 85 and 86 (now 81 and 82) of the Treaty (OJ 13, 21.2.1962, p. 204).)
If the Commission, after careful examination of the case, comes to the preliminary conclusion that it should not pursue the case for any of the reasons mentioned above, it will first inform the complainant in a meeting or by phone that it has come to the preliminary view that the complaint may be rejected. Once informed, the complainant may decide to withdraw the complaint. If the complainant withdraws, the file will be closed.
If the complainant upholds the complaint, the Commission will inform the complainant by a formal letter pursuant to Article 7(1) of Regulation 773/2004 of its preliminary conclusion that there are insufficient grounds for acting and set a time limit for its written observations.
If in the course of its examination of the complaint, the Commission has opened proceedings pursuant to Article 11(6) of Regulation 1/2203, a State of Play meeting will be offered to the complainant prior to sending the Article 7(1) letter 1 .
[Note 1] See Best Practices Notice, paragraph 139.
The Commission can formally request information and documents from the NCAs pursuant to Articles 12 and 18 of Regulation 1/2003.
The request should in principle be made pursuant to Article 12. These requests are addressed to the NCA or a particular contact person (Authorised Disclosure Officer, ADO) in that authority. They can be signed by the competent head of unit, as explained below.
A request pursuant to Article 18(6) can be addressed formally to the government or to the NCA of the Member State (see below).
Information can also be sought informally from the NCA, without making reference to Article 18 (or Article 12).
In most instances the authority that receives a complaint (or starts an ex-officio procedure) will remain in charge of the case. Re-allocation of a case would only be envisaged at the outset of a procedure where either this authority considered that it was not well placed to act or where other authorities also considered themselves well placed to act. 1 A copy of the complaint can be transmitted for the NCA to assess whether they want to take up the case. See further the ECN Module and the Notice on handling of complaints.
Where re-allocation is found to be appropriate for an effective protection of competition and of the EU interest, network members will endeavour to re-allocate cases to a single well placed competition authority as often as possible. In any event, re-allocation should be a quick and efficient process and not hold up ongoing investigations.
The Network Notice notes that an authority can be considered to be well placed to deal with a case if the following three cumulative conditions are met:
the agreement or practice has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory;
the authority is able to effectively bring to an end the entire infringement, i.e. it can adopt a ceaseand- desist order the effect of which will be sufficient to bring an end to the infringement and it can, where appropriate, sanction the infringement adequately; it can gather, possibly with the assistance of other authorities, the evidence required to prove the infringement. 2
The above criteria indicate that a material link between the infringement and the territory of a Member State must exist in order for that Member State's competition authority to be considered well placed. It can be expected that in most cases the authorities of those Member States where competition is substantially affected by an infringement will be well placed provided they are capable of effectively bringing the infringement to an end through either single or parallel action unless the Commission is particularly well placed to act.
It follows that a single NCA is usually well placed to deal with agreements or practices that substantially affect competition mainly within its territory. Furthermore single action of an NCA might also be appropriate where, although more than one NCA can be regarded as well placed, the action of a single NCA is sufficient to bring the entire infringement to an end.
Parallel action by two or three NCAs may be appropriate where an agreement or practice has substantial effects on competition mainly in their respective territories and the action of only one NCA would not be sufficient to bring the entire infringement to an end and/or to sanction it adequately.
The authorities dealing with a case in parallel action will endeavour to coordinate their action to the extent possible. To that effect, they may find it useful to designate one of them as a lead authority and to delegate tasks to the lead authority such as for example the coordination of investigative measures, while each authority remains responsible for conducting its own proceedings.
The Commission is particularly well placed if one or several agreement(s) or practice(s), including networks of similar agreements or practices, have effects on competition in more than three Member States (cross-border markets covering more than three Member States or several national markets).
The Court has held that even if the national authorities and courts are well placed to address the possible infringements complained of that consideration alone is insufficient to support a final conclusion that there is no sufficient Community interest. Action at European Union level could on occasion be more effective than various actions at national level. 3
Moreover, the Commission is particularly well placed to deal with a case if it is closely linked to other EU provisions which may be exclusively or more effectively applied by the Commission, if the EU interest requires the adoption of a Commission decision to develop EU competition policy when a new competition issue arises or to ensure effective enforcement 4 .
[Note 1] See Commission Notice on cooperation within the Network of Competition Authorities (OJ C 101, 27.4.2004, p. 43) (“Network Notice”), paragraphs 5-15.
[Note 2] See Network Notice , paragraph 8.
[Note 3] Case T-427/08 Confédération européenne des associations d'horlogers-réparateurs (CEAHR) v Commission, judgment of 15 December 2010, paragraph 176.
[Note 4] See Network Notice, paragraph 15.