Informal Guidance

Informal Guidance. Introduction

Under the Commission Notice on Informal Guidance relating to novel questions concerning Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) that arise in individual cases (hereafter: “Notice on Informal Guidance”), undertakings 1 can ask the Commission for a guidance letter on a novel issue of interpretation of Articles 101 or 102 TFEU. Guidance letters are based exclusively on the Notice, as they are not explicitly foreseen by Regulation 1/2003. They are nonetheless indirectly referred to in recital 38 of Regulation 1/2003, which recognises that the Commission may provide informal guidance to individual undertakings where cases give rise to genuine uncertainty because they present novel or unresolved questions for the application of EU competition rules.

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Such guidance is issued at the Commission's discretion and subject to its other enforcement priorities. Providing guidance to individual companies is not the principal business of the Commission under Regulation 1/2003, which is to ensure effective enforcement of EU competition law. Indeed, a main principle introduced by Regulation 1/2003 is that, as a rule, undertakings have to self-assess their compliance with EU competition law. Therefore, the criteria for the issuing of a guidance letter, set out in the Notice, must be carefully respected. Issuing a guidance letter should remain exceptional.

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Requests by individual undertakings for guidance should be clearly distinguished from suggestions by interested undertakings to the Commission to adopt a decision within the meaning of Article 10 of Regulation 1/2003 (see relevant module on Decision Finding Inapplicability). Both Article 10 decisions and guidance letters are to be adopted very exceptionally, but Article 10 decisions are taken on the Commission's own initiative and exclusively in the EU public interest relating to the application of Articles 101 and 102 TFEU. The latter notion refers to the need for the Commission to act in order to solve a problem of coherent application or to set policy 2 , whereas guidance letters are designed in the first place to serve the interest of the individual undertakings in obtaining guidance that should assist them for the assessment of their actions in case of a novel question. In order not to blur the distinction between both situations, guidance letters should not refer to the concept of EU public interest relating to the application of Articles 101 and 102 TFEU or otherwise use terminology from the Article 10 Regulation 1/2003 context.

Other Considerations

A request for a guidance letter is without prejudice to the power of the Commission to open proceedings in accordance with Regulation 1/2003 with regard to the facts presented in the request. Therefore, information provided by means of guidance requests submitted by undertakings can in principle also serve as a starting point for ex officio procedures under Article 7, 9 and 10 of Regulation 1/2003 provided the respective requirements for opening a case and the relevant priority setting criteria are fulfilled.

Resources

References

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

Notes

[Note 1] Requests by Member States' governments or administrations do not fall under the Notice on Informal Guidance and are to be dealt with by different means than guidance letters. Member States' courts can request information or an opinion from the Commission, cf. in this respect the Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 101, 27.4.2004, p. 54).
[Note 2] Cf. Recital 14 of Regulation 1/2003.

Informal Guidance

Informal Guidance