Competition Commissioner and the statement of objections

Competition Commissioner and the statement of objections

Empowerment of the Competition Commissioner for the application of Regulation No 1/2003: The special case of the statement of objections

The empowerment for the determination and issuance of a statement of objections is the only empowerment which must be exercised in agreement with the President of the Commission. The explanatory memorandum gives the following explanation for this exceptional mechanism: “44. For the statement of objections the proposed decision foresees a mechanism under which the President of the Commission intervenes as guarantor both of the principle of collegiality and of the credibility of the Commission as an impartial and objective enforcer of the law, which is also fully in line with the newly strengthened role of the President as foreseen in Article 217 EC as amended by the Nice Treaty [note: now Art. 17(6) TUE]. 45. Under that mechanism, which is applied with success in the field of merger control for the adoption of decisions under Article 6(1)(c) of the EC Merger Regulation, the empowerment for the determination and issuance of a statement of objections can only be exercised in agreement with the President. If one of the other Commissioners involved has a serious concern about any aspect of the case he may request a meeting with the President and/or the Commissioner responsible for Competition. […] 46. It must be borne in mind that the statement of objections is a preparatory step which closes the first phase of the investigation and opens the second phase at the end of which the Commission takes its final decision. It also determines the outer limits of the scope of that second phase. In the final decision the Commission can decide not to maintain some of the objections raised in the statement of objections. 47. Given the purely preparatory and provisional nature of a statement of objections […] it would not be appropriate to subject its adoption to the prior approval of services other than the Legal Service. If individual departments other than the Legal Service were able to prevent the exercise of the empowerment to issue a statement of objections, the scope and content of that statement of objections could become the subject of negotiations between a department of the Commission responsible for a particular sector and DG Competition. Such negotiations could create the impression that non competition law considerations were able to disrupt a preparatory step in a law enforcement procedure which should be governed predominantly by considerations of equal treatment and legality.”

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A footnote referred to at the end of paragraph 45 of the explanatory memorandum states: “In view of the specificities of transport and given the fact that an ongoing process of liberalisation and market opening is being carried out, the Commission notes that it remains possible for the member of the Commission responsible for Transport to request the President, in accordance with the Commission's rules of procedure, that the Commission may examine any draft decision proposing a statement of objections in transport antitrust, if the political sensitivity or importance of the case would justify such an examination.”

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Before adoption of the 2004 empowerment package DG TREN was the only DG, the prior approval of which was necessary in order to adopt a statement of objections. The 2004 empowerment package abolished that special right and introduced instead the footnote above. That footnote does however not add anything since it merely reiterates the rights which the Transport Commissioner has in any event under the general Rules of Procedure of the Commission.

Resources

See Also

References

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

Further Reading

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

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