Decision finding inapplicability Legal framework

Decision finding inapplicability: Legal framework

Pursuant to Article 24(1) of Regulation No 1/2003, the Commission may, by decision, impose on undertakings or associations of undertakings periodic penalty payments not exceeding 5% of the average daily turnover in the preceding business year per day and calculated from the date appointed by the decision, in order to compel them: – to put an end to an infringement of Article 101 or Article 102 TFEU, in accordance with a decision taken pursuant to Article 7; – to comply with a decision ordering interim measures taken pursuant to Article 8; – to comply with a commitment made binding by a decision pursuant to Article 9; – to supply complete and correct information which it has requested by decision taken pursuant to Article 17 or Article 18(3); – to submit to an inspection which it has ordered by decision taken pursuant to Article 20(4).

More about Decision finding inapplicability Legal framework

An Article 24(1) decision announces the intention of the Commission to impose provisional periodic penalty payments from a specified date in the future if by that date the undertaking concerned has not complied with an obligation. An Article 24(1) decision is a preliminary act; it is not challengeable before the EU Courts under Article 263 TFEU. 1

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The final amount of the payment is only calculated at a later stage, at the time of the Article 24(2) decision. An Article 24(2) decision does have legal effects and is therefore attackable before the EU Courts. Accordingly, the undertaking concerned has the right to be heard (i.e. it should receive a statement of objections, been given access to file and given the opportunity to express its views in writing and at an oral hearing) before the Article 24(2) decision can be adopted.

Other Considerations

Article 24 of Regulation 1/2003 therefore creates a two stage proceeding whereby a first decision is taken to set the (provisional) amount of the daily periodic penalty payment and the starting date for the calculation and a second decision fixes the final amount.

Resources

See Also

References

• Information about Decision finding inapplicability Legal framework in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] See Case 46/87 Hoechst v Commission [1989] ECR, 2859 para. 55. An action for annulment would be inadmissible due to the fact that, inter alia, the Article 24(1) decision does not in itself impose any obligations on the undertaking concerned, but only announces an intention to fine in case of non-compliance.

Further Reading

• Information about Decision finding inapplicability Legal framework in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)