Tag Archives: AC

Actual competitor

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Actual competitor

Actual competitor in the European Union Law

Concept of Actual competitor provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Firm which is either currently active on the same relevant market as the company under investigation, or which is able to switch produc-tion to the relevant products and market them in the short term without incurring significant additional costs or risks in response to a small and permanent increase in relative prices (immediate supply-side substitutability).

(See: Commission notice on the definition of the relevant market for the purposes of Community competition law (OJ C 372, 9.12.1997, p. 5).)

Access

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Access

Access to the Commission's file in the European Union Law

Concept of Access to the Commission's file provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Right of natural or legal persons who are parties to a Commission investigation to see the Commission's file, whenever the Commission proposes to adopt a decision which would be unfavourable to those parties. Access is given during the course of the administrative proce-dure to all the documents in the case concerned, with the exception of internal Commission documents, business secrets of other compa-nies and other confidential information. Access to the file is thus one of the principal procedural guarantees intended to protect the rights of defence of the parties.

(See: Article 18(3) of the merger regulation; Articles 6 and 13(1) of Regulation No 2842/98 on the hearing of parties in certain proceedings under Articles 81 and 82 of the EC Treaty; Commission notice on the internal rules of procedure for processing requests for access to file (OJ C 23, 23.1.1997, p. 3).)

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  • Hearing officer

Active sales

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Active sales

Active sales in the European Union Law

Concept of Active sales provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Sales made by actively approaching individual customers inside another distributor's exclusive territory or exclusive customer group. This may be, for instance, by direct mail or visits; by actively approach-ing a specific customer group or customers in a specific territory allo-cated exclusively to another distributor through advertisement in the media or other promotions specifically targeted at that customer group or customers in that territory; or by establishing a warehouse or distribution outlet in another distributor's exclusive territory. Clauses limiting a distributor's right to sell actively into another distributor's territory are usually part of exclusive distribution networks and can benefit from the block exemption for vertical agreements.

(See: Commission Regulation 2790/99 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 22.12.1999); guidelines on vertical restraints (OJ C 291, 13.10.2000).)

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  • Passive sales

Access to file procedure for corporate statements

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Access to file procedure for corporate statements

Access to file procedure for corporate statements

Access to both written and oral statements will be made upon request and will be granted at the Commission's premises following the issuing of the SO. In the case of written corporate statements access will be granted by allowing the party to read the document at the Commission's premises and to take notes or make dictations. With respect to oral corporate statements, access will be granted by allowing the party to read the Commission transcript of the recording and to take notes. They will also, on request, be given the opportunity to listen to (relevant parts of) a copy of the original recording in case of doubts concerning the correctness of the statement. Any direct reproduction of the statements (or their recordings/transcripts) by mechanical or electronic means is prohibited.

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References

  • Information about Access to file procedure for corporate statements in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Access to file procedure for corporate statements in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Access to file Request

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Access to file Request

When is access to file granted?

Access to file is granted upon request and, normally, on a single occasion, following notification of the SO. 1

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References

  • Information about Access to file Request in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Article 15(1) of Regulation 773/2004; Notice on access to file para. 26 and 27.

Further Reading

  • Information about Access to file Request in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Access to information

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Access to information

Access to information outside the Commission's investigation file

Access to file only extends to accessible documents emanating from the investigation conducted against the addressee(s) of the Statement of Objections. Normally, only documents in the Commission's investigation file are accessible. 1 Furthermore, the scope of the principle of equality of arms only applies in respect to the documents in the Commission's investigation file.

More about Access to information

It is not for the Commission alone to determine whether the documents are of use for the defence of the parties. The Commission is not required to make available, on its own initiative, documents which are not in the investigation file and which it does not intend to use against the parties in the final decision.

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Nevertheless, the parties may make a reasoned request to have access to documents that, although not part of the investigation file, may in their view be relevant for preparing their defence. 2 The case team is not obliged to ascertain that there are no other documents relating to the case within DG Competition or other parts/services of the Commission. Whether documents are sufficiently closely linked with the investigation and may therefore be relevant for the defence of the parties will have to be examined in relation to the specific circumstances of each particular case.

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References

  • Information about Access to information in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] The Commission file in a competition investigation consists of all documents which have been obtained, produced and/or assembled by the DG Competition during the investigation that has led the Commission to raise its objections. Therefore, all pieces of information acquired during the investigation against a company form part of the investigation file. Moreover, all information that the Commission uses in its final decision are part of the investigation file (Joined Cases T-25/97 e.a. Cimenteries CBR e.a. [2000] ECR II-491, para. 382). Documents sent by the parties or others to other DGs of the Commission which the latter did not communicate to DG Competition are not part of the file. (see also above section 2).
[Note 2] Joined Cases T-25/95 e.a. Cimenteries CBR e.a. [2000] ECR II-491, para. 383.

Further Reading

  • Information about Access to information in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Access to Parties' replies

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Access to Parties' replies

Access to Parties' replies to the Statement of Objections

The Notice on access to file specifically provides for that as a general rule no access will be granted to other parties' replies to the Statement of Objections 1 . The EU Courts have confirmed that there is no general right to access to other parties' defences in their replies to the Statement of Objections.

More about Access to Parties' replies

According to the Notice on Antitrust Best Practices (point 103): “Where required by the rights of defence (…), or where it may in the Commission's view help to further clarify factual and legal issues relevant for the case, the Commission may give parties a copy of the non-confidential version (or specific parts thereof) of other parties' written replies to the Statement of Objections. This would normally be done prior to the oral hearing, so as to allow parties to comment on them at the oral hearing. The Commission may also decide to do so in appropriate cases with respect to complainants and admitted third parties. If access to other parties' replies is granted because it is required for the rights of the defence parties are also entitled to have sufficient additional time to comment on these replies.”

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Point 27 (second paragraph) of the Notice on access to file states that “[a] party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence – whether of an incriminating or of an exculpatory nature -, pertaining to the allegations concerning that party in the Commission's statement of objections. This is particularly the case where the Commission intends to rely on new evidence.”

Other Considerations

It is apparent from the case law that in order to determine the exact scope of the Commission's obligation to grant access to the file a distinction must be drawn between documents forming inculpatory evidence and documents forming exculpatory evidence. According to settled-case law, with regard to inculpatory evidence, “the obligation to allow access to the file relates merely to the evidence ultimately relied on in the decision and not to all the complaints which the Commission may have expressed at any stage of the administrative procedure”. Moreover, “[a] document can be regarded as a document that incriminates an applicant only where it is used by the Commission to support a finding of an infringement in which that party is alleged to have participated” 2 . As the General Court pointed out in BPB “[…] if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes evidence against the various parties alleged to have participated in the infringement (…)” 3 .

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As concerns exculpatory documents, access to documents after the notification of the objections can be granted upon a specific request of a party, where such documents may constitute new evidence and pertain to the allegations concerning that party, which are ultimately relevant for the Commission's final decision. The exculpatory nature of such documents should be such that the documents could be useful for the undertakings' defence 4 . In particular, the case law has referred to the situation where an undertaking, “had it been able to rely on them during the administrative procedure, […] would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission's assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine” 5 .

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In order for the Commission to be able to properly consider a request for further access, the request must be sufficiently specified and express and be duly motivated. It is not sufficient to request access to categories of documents described in a general and abstract way. In addition, when access is requested after the notification of objections, normally such evidence shall not be readily available to the requesting party by other means.

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The Commission is obliged to grant access to documents received after issuance of the Statement of Objections to companies against which such documents are to be used as inculpatory evidence in the final decision.

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The Commission is always allowed to take into account arguments put forward by a party during the administrative procedure even without giving it further opportunity to be heard, provided that this does not alter the nature of the objections against that company. Where the company has had an opportunity to express its view on the position adopted by the Commission in the Statement of Objections, it can expect that its own explanations may lead the Commission to alter its opinion. 6

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References

  • Information about Access to Parties' replies in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Point 27.
[Note 2] See Case T-53/03 BPB v Commission [2008] ECR II-1333, para. 32.
[Note 3] See Case T-53/03 BPB v Commission [2008] ECR II-1333, para. 41.
[Note 4] See Case C-110/10 P Solvay v Commission, para. 52.
[Note 5] Joined Cases C-204/00 P e.a. Aalborg Portland e.a. v Commission [2004] I-123, para.75.
[Note 6] Notice on access to file, para. 27; Case T-228/97, Irish Sugar, 7 October 1999

Further Reading

  • Information about Access to Parties' replies in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Acknowledgement of receipt

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Acknowledgement of receipt

Acknowledgement of receipt

Timing: After the immunity application has been filed and a case number has been obtained (see Section 4.2 above), if so requested by the undertaking, DG Competition will acknowledge receipt of the application. This should preferably occur on the first working day after receipt of such request. In case of an oral application, it is recommended that the case team does not wait until the oral statement has been transcribed.

More about Acknowledgement of receipt

Letter acknowledging receipt of the application: The acknowledgement is made by a letter. The acknowledgement of receipt confirms the date on which the undertaking submitted the information and evidence and, where appropriate, the time of the application (e.g. if several applications have been received in a short interval).

More about the Subject

Addressee: The acknowledgement can be addressed either to the applicant or, providing that the necessary power of attorney has been submitted, to its lawyer.

Other Considerations

Notification/sending of the letter in case of an oral application: In case of an oral application, if so requested by the applicant, the acknowledgement of receipt will not be sent but will be notified to the applicant or its lawyer at the Commission's premises. The applicant or its lawyer will have to sign a minute stating that the undertaking has been duly notified 1 .

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A separate acknowledgement of receipt should be prepared for each supplement of evidence received. If requested by the undertaking, an acknowledgment of receipt is prepared also for supplements of evidence it provides. If there are several new submissions made in a short timeframe, the acknowledgement of receipt can cover such several submissions. In that case, it is recommended that the acknowledgement of receipt specifies the date of receipt for each submission.

Resources

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References

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

Notes


[Note 1] The same applies to the decision granting conditional immunity. See Section 4.4.2 below.

Further Reading

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

Acknowledgement of receipt

Timing: After the application has been filed, if so requested by the undertaking, DG Competition will acknowledge receipt of the application for a reduction of fine and of any subsequent submissions of evidence. The acknowledgement will be made either to the applicant or its lawyer (check that a power of attorney has been received).

More about Acknowledgement of receipt

The letter and its notification: The acknowledgement is made by a letter signed by the responsible Director and it will confirm the date and, where appropriate, time of each submission. In case of an oral application, the procedure for notification of the acknowledgement of receipt is the same as for oral applications (see paragraph (83) above).

Resources

See Also

References

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

Further Reading

  • Information about Acknowledgement of receipt in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Action for annulment

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Action for annulment

Action for annulment (article 263 TFEU) (“recours en annulation”)

This is by far the most frequent type of proceedings. In such a case, an applicant is asking the General Court to annul an act of the EU institutions (in general either because of a procedural irregularity or because of an incorrect assessment of the substance of the case). For DG Competition's antitrust activities, this can be for instance the addressee of a prohibition decision challenging the validity of that decision; or a complainant asking for the annulment of the Commission's decision by which its complaint has been rejected. On average, in the area of antitrust, there are around 50 new actions for annulment every year.

Resources

See Also

References

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

Further Reading

  • Information about Action for annulment in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Acts for which no prior information of other services is required

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Acts for which no prior information of other services is required

Acts for which no prior information of other services is required

For a number of measures to be adopted by empowerment or sub-delegation no prior information of other services is foreseen (with the exception of the Legal Service which must always be asked for prior approval).

More about Acts for which no prior information of other services is required

Such is the case where (a) strict confidentiality is necessary such as in the case of unannounced inspections ordered by decision or the handling of leniency applications 1 or (b) the measure is a measure of technical case administration in respect of the conduct of the proceedings or in respect of the oral hearing, publication of Commission acts in the Official Journal or access to the file.

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The regime of no information applies to the following measures: – the closure of proceedings (Article 2(1) of Regulation 773/2004 and Article 11(6) of Regulation 1/2003); – announcement by the Commission to the complainant that it intends to reject his complaint (Article 7(2) of Regulation 1/2003 and Article 7(1) of Regulation 773/2004); – rejection of complaint by Commission decision (Article 7(2) of Regulation 1/2003 and Article 7(2) of Regulation 773/2004; Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 and Article 9 of Regulation 773/2004; Article 29(1) of Regulation 1/2003) except for rejections of complaints for lack of Community interest which are subject to the normal prior information regime and for rejections of complaints on substantive grounds for which a special involvement regime applies (see below 3.2.2.3); – refusal by the Commission to transmit confidential information (Article 15(1)(alt.1) of Regulation 1/2003 and points 23-26 Notice on cooperation with National Courts); – Commission decision requesting information from undertakings and associations of undertakings (Article 18(3) of Regulation 1/2003); – Commission decision ordering inspections of undertakings and associations of undertakings (Article 20(4) of Regulation 1/2003); – Commission decision to order inspections of other premises (Article 21(1) of Regulation 1/2003); – Commission decision requesting an NCA to undertake an inspection (Art. 22(2) of Regulation 1/2003); – written commitment by the Commission not to use certain information exchanged in the European Competition Network (ECN) for imposing sanctions on a leniency applicant or certain other persons (point 41(2) of the Commission Notice on cooperation within the network of competition authorities); – The refusal by the Commission to allow the complainant to express his views at the oral hearing (Article 7(2) of Regulation 1/2003 and Article 6(2) of Regulation 773/2004); – refusal by Commission to hear third parties (other than addressees of a statement of objections or complainants) for lack of sufficient interest (Article 27(3) of Regulation 1/2003 and Article 13(1) of Regulation 773/2004); – refusal by Commission to invite third parties (other than addressees of a statement of objections or complainants) to develop their arguments at the oral hearing (Article 27(3) of Regulation 1/2003 and Article 13(2) of Regulation 773/2004);

Other Considerations

The “no information” regime also applies with regard to the application of the empowerment on the application of the 2002 and 2007 Leniency Notices. Decisions to grant (or not to grant) conditional immunity or acts informing applicants of the Commission's intent to grant a reduction of fines (or to reject it) (see above Section 2.2.2) can therefore be adopted without prior information of Services other than the LS (the prior approval of which remains necessary).

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Finally, all decision-making powers delegated to the Hearing Officer do not require prior information of any other service but the LS, the agreement of which is always required.

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References

  • Information about Acts for which no prior information of other services is required in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] See Commission decision of 13.2.2002, PV(2002)1555 adopting document SEC(2002)119

Further Reading

  • Information about Acts for which no prior information of other services is required in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)