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

See Also

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)