Preparation of Preliminary Assessment

Preparation of Preliminary Assessment

Preparation of Preliminary Assessment

Article 9 of Council Regulation 1/2003 provides that the Commission must have informed the undertakings of the competition concerns by a document which is called Preliminary Assessment (a Statement of Objections may also constitute a Preliminary Assessment, as explained further below). The Preliminary Assessment summarises the main facts of the case and identifies the competition concerns that would warrant a decision requiring that the infringement is brought to an end.

More about Preparation of Preliminary Assessment

The Preliminary Assessment serves as an important basis for the parties to formulate appropriate commitments fully addressing the competition concerns expressed by the Commission or to define previously discussed commitments better 1 .

More about the Subject

The Preliminary Assessment is a Commission act adopted by the Competition Commissioner by way of empowerment. It does not require the same length and level of detail as a Statement of Objections 2 . The length of a Preliminary Assessment may vary from case to case 3 , depending, for example, on the complexity of the case or the Commission's interest to set a precedent case in the later commitment decision (which will, in turn, be based on the Preliminary Assessment).

Other Considerations

The case team should explore whether the undertaking under investigation may be ready to waive its rights to receive the text of the Preliminary Assessment (and the final commitment decision) in the authentic language and to opt for another language (“language waiver”). Such language waiver should be given in writing and should be signed by a representative (or lawyer with due power of attorney) of every addressee.

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In case a Statement of Objections was already issued in a case, no additional Preliminary Assessment needs to be sent, because the Statement of Objections can also constitute a Preliminary Assessment. This is because a Statement of Objections contains a summary of the main facts as well as an assessment of the competition concerns identified.

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Taking into account that the Preliminary Assessment is a Commission act adopted by empowerment procedure, it requires consultation of the Legal Service (10 working days for comments and at least 15 working days when the document exceeds 20 pages, save in “genuine emergencies”).

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In addition, DG Competition must inform the Commission department(s) primarily responsible for the product/service/policy area in issue and give them the opportunity to state their views 4 (10 working days for comments and at least 15 days when the document exceeds 20 pages, save in “genuine emergencies”).

Resources

See Also

References

  • Information about Preparation of Preliminary Assessment in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
As explained in the previous section, the undertaking will usually have already submitted a first outline of the commitments it intends to submit.
[Note 2]
Article 27 (1) of Council Regulation 1/2003 requires a Statement of Objections only for proceedings pursuant to Article 7 and 8 of Council Regulation 1/2003.ç
[Note 3]
In previous decisions the lengths of the Preliminary Assessment varied from around 10 to around 70 pages.
[Note 4]
Empowerment decision, PV(2004)1655, Article 2(1).

Further Reading

  • Information about Preparation of Preliminary Assessment in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

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