Tag Archives: DE

Delegation of powers

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Delegation of powers

Delegation of powers in the European Union Law

Concept of Delegation of powers provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): The Commission, as a collegiate body, delegates certain decision-making powers to its individual commissioners (empowerment procedure) or to directors-general (delegation procedure). A delega-tion of powers allows management, administrative, procedural and routine matters to be decided by the individual commissioner or director-general concerned. This mechanism ensures that Commission meetings are not overloaded and the decision-making process is not paralysed.

(See: Articles 13 and 14 of the rules of procedure of the Commission of 29 November 2000 (OJ L 308, 8.12.2000, p. 26).)

De minimis

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De minimis

'De minimis' notice in the European Union Law

Concept of 'De minimis' notice provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Communication from the Commission clarifying under what condi-tions the impact of an agreement or practice on competition within the common market can, in its view, be considered to be non-appre-ciable, namely where the aggregate market share of the undertakings involved remains below certain thresholds. In addition, agreements between small and medium-sized enterprises are said to be rarely capable of significantly affecting trade between Member States or competition within the common market; they will in any event not normally be of sufficient Community interest to justify intervention. In short, agreements or practices falling under the 'de minimis' notice are considered to be of minor Community importance and are not examined by the Commission under EC competition law. National competition authorities may however, examine certain cases.

(See: Commission notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) (OJ C 368, 22.12.2001).)

Decision finding inapplicability Effects

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Decision finding inapplicability Effects

Decision finding inapplicability: Effects of Article 10 Decisions

Although an Article 10 Decision is declaratory in nature (as a corollary of the legal exception system), it is nonetheless capable of producing the legal effects laid down in Article 16 of Regulation 1/2003.

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It results from the Masterfoods 1 judgment of the Court of Justice and of its codification in Article 16 of Regulation 1/2003 that Commission decisions have EU-wide legally binding effect. This binding effect is equally extended to decisions based on Article 10. In concrete terms, when national courts rule on agreements or practices which are the subject of a Commission decision, they cannot take decisions running counter to that decision, unless they first refer to the Court of Justice for a preliminary ruling on the validity of that decision. They must also avoid decisions which would conflict with a decision contemplated by the Commission.

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The Article 10 Decision is of a declaratory nature, and based on the circumstances known to the Commission at the moment of its adoption and explained in some detail in the decision. If the circumstances change to an extent that materially affects the findings set out in the decision, it does not need to be revoked, but simply may no longer be invoked by the parties to their benefit, and will no longer block national proceedings within the meaning of Article 16 of Regulation 1/2003.

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References

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

Notes


[Note 1] Judgement of 14 December 2000, C-344/98 Masterfoods, [2000] ECR I-11369, paragraphs 51 ss.

Further Reading

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

Decision finding inapplicability Legal framework

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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).

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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

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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)

Decision imposing fines

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Decision imposing fines

Decision imposing fines or penalties

It will depend on the individual situation whether it is more appropriate to adopt a decision imposing fines pursuant to Article 23(1)(b) or a decision imposing periodic penalty payments pursuant to Article 24(1)(d). Fines according to Article 23 can also be combined with period penalty payments according to Article 24. In setting the level of the fines one ought to take into account the periodic penalty payments already imposed and vice versa.

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Fines may be imposed according to Article 23 by decision on undertakings and associations of undertakings where, intentionally or negligently: – they supply incorrect or misleading information in response to a simple request made pursuant to Article 17 or Article 18(2) (Article 23 (1)(a)); or – in response to a request made by decision adopted pursuant to Article 17 or Article18(3), they supply incorrect, incomplete or misleading information or do not supply information within the required time-limit (Article 23(1)(b)).

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Periodic penalty payments (Article 24(1)(d)) may be imposed by decision on undertakings and associations of undertakings in order to compel them to supply complete and correct information which has been requested by decision pursuant to Article 17 or Article 18(3).

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References

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

Further Reading

  • Information about Decision imposing fines in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Decision Language requirements

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Decision Language requirements

Language requirements for the adoption of the Commission's Decision

The draft decision has to be adopted by the Commission in all the relevant authentic languages of the case and, unless the President of the Commission 1 has granted a language derogation, the draft decision must be available to the Commission in the 3 working languages of the Commission (EN, FR, DE).

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The translation service should be asked to translate the draft decision in all these languages. It should be kept in mind that, considering the length of DG Competition draft decisions, translation is a lengthy exercise. This would militate in favour of an early transmission to the translation service; on the other hand, the transmission of the text at too early a stage will generate additional work for the case team later on if changes are made to the text (and will therefore increase the risk of errors and discrepancies between linguistic versions). See further hereunder Section Planning of translation requests.

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References

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

Notes


[Note 1] The case-team can submit a request to the responsible Cabinet member, who can ask the responsible Cabinet member of the President's Cabinet for a language derogation, in order to keep only one working language, instead of three, generally for the reason of a necessary expedited adoption procedure.

Further Reading

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

Decision Publication

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Decision Publication

Publication of the Decision

Commitment decisions need to be published according to Article 30 (1) of Regulation 1/2003.

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References

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

Further Reading

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

Decision requesting information without penalty

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Decision requesting information without penalty

Decision requesting information without periodic penalty payments

The decision is adopted by sub-delegation by the Director General of DG COMP after consultation of the Legal Service.

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A copy of the decision should be forwarded to the competition authorities of the Member States concerned (i.e. in whose territory the addressee of the decision is located) and to ESA if an undertaking in an EFTA country party to the EEA agreement is concerned.

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A decision under Art 18 (3) without the provisional imposition of periodic penalty payments has not to be published pursuant to Article 30 Reg. 1/2003.

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References

  • Information about Decision requesting information without penalty in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Decision requesting information without penalty in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Decision requiring information principles

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Decision requiring information principles

General principles and content

Pursuant to Article 18(3) of Reg. 1/2003, the Commission can directly adopt a decision requiring the information to be supplied by companies located in the EEA. It is not necessary to send a request for information according to Art 18 (2) before proceeding to the adoption of a decision according to Article 18 (3).

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Requests for information by decision must be reasoned like any other act of the European Union (Article 296 TFEU). Lack of reasoning may lead to the decision being annulled on the basis of a challenge pursuant to Article 263 TFEU. The reasoning may however be very concise.

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The decision must: – state the legal basis and the purpose of the request; – specify what information is needed; – fix the day by which the requested information has to be provided; – indicate the possibility of imposing fines according to Article 23(1)(b) if the addressee supplies incorrect, incomplete or misleading information or does not supply information within the required time-limit; – indicate or impose the penalties provided for in Article 24(1)(d) if they supply incomplete or incorrect information; – indicate the right to have the decision reviewed by the General Court according to Article 263 TFEU and warn that such appeal does not have suspensive effect unless expressly accorded by the General Court (Article 278 TFEU).

Other Considerations

The decision takes effect upon its notification to the undertaking (Article 297 of the Treaty).

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In the context of decisions requiring information, addressees will be reminded of the privilege against providing self-incriminating information (see further below) and that if the behaviour under investigation is confirmed to have taken place this might constitute an infringement of Articles 101 and/or 102 TFEU. 1

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The decision requiring information is addressed to the undertaking(s) concerned and follows the same rule of language as for the letter requesting information (Article 18(2) – see above 2.3). Note that if a language waiver has been given, it should be expressed in the decision itself, such as “The Commission notes that [ADDRESSEE] accepts that the decision be adopted in the [chosen language]”.

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Similar to simple requests for information, the owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or associations having no legal personality, the persons authorised to represent them by law or by their constitution must supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter must remain fully responsible if the information supplied is incomplete, incorrect or misleading.

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Where the addressee of a decision requesting information pursuant to Article 18(3) Regulation (EC) No 1/2003 is unable to resolve its concerns about the time limit through the procedure outlined above, it may refer the matter to the Hearing Officer. Such a request should be made in due time before the expiry of the original time limit set 2 . The Hearing Officer decides on whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation.

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Fines may be imposed according to Article 23(1)(b) by decision on undertakings and associations of undertakings where, intentionally or negligently in response to a request made by decision adopted pursuant to Article 18(3), they supply incorrect, incomplete or misleading information or do not supply information within the required time-limit. Fines according to Article 23(1)(b) can be combined with periodic penalty payments under Article 24 (1)(d).

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If a decision pursuant to Article 18(3) is combined with a decision setting (the provisional amount of) periodic penalty payments pursuant to Article 24(1)(d), the Article 18 (3) decision will specify the provisional level of the daily penalty payments (up to 5% of the average daily turnover in the preceding business year). The final amount of the penalty will then be fixed in a second decision pursuant to Article 24(2) (see below and Module on Periodic penalty payments) based on the level of penalty payments per day fixed in the preceding Art 18 (3) decision. However, if the information has been provided, the Commission may calculate the penalty payment on the basis of a lower amount as fixed in the preceding Article 18 (3) decision (cf. Article 24 (2)).

Resources

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References

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

Notes


[Note 1] See Case T-99/04, AC Treuhand v Commission [2008] ECR II-1501, pt. 56-57.
[Note 2] Article 4(2)(c) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 40.

Further Reading

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

Decision requiring information with penalty

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Decision requiring information with penalty

Decision requiring information and imposing periodic penalty payments

The procedure is composed of two phases (for more details see also the Module on Periodic Penalty Payments): First phase: first decision requiring information imposing (provisional) penalty payments in its operative part

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The procedural steps are the following: – Consultation of the Legal Service. The draft decision should set the provisional amount of the penalties (up to 5% of the average daily turnover in the preceding business year per day) and fix the starting date. – Information to the Commission departments primarily responsible for the products, services or policy areas in issue and giving those departments the opportunity to state their view. This information may be done in parallel with the consultation of the LS. – The AC is not consulted. – Adoption by sub-delegation of the decision.

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A copy of the decision should be forwarded to the competition authorities of the Member States concerned (i.e. in whose territory the addressee of the decision is located) and to ESA if an undertaking in an EFTA country party to the EEA agreement is concerned.

Other Considerations

A decision under Art 18 (3) with the provisional imposition of periodic penalty payments has not to be published pursuant to Article 30, however the final decision Article 24(2) (see below). Second phase: second decision fixing the final amount of the penalties 13

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Please consult the Module on Periodic Penalty Payments. The main procedural steps are as follows: – As soon as the time limit to supply information has expired, a letter signed by the Director is sent to the undertaking reminding the financial consequences of the non-compliance with the decision. – Once the information has been supplied (after the expiry of the deadline mentioned in the first decision, otherwise there is no second decision), a statement of objections (SO) indicating the calculation of the final amount of the penalties is drafted and sent for consultation. – Once having received the approval of the LS and having informed the other DGs concerned, the SO 1 is adopted by empowerment procedure by the Commissioner in charge of Competition policy 2 and notified to the undertaking by the Secretariat General (hereafter SG). The definitive amount of the periodic penalty payment may be fixed at a figure lower than that which would arise under the original decision (Article 24(2) of Regulation 1/2003). – Access to the file will be limited to the request for information which was at the origin of the envisaged decision and the subsequent correspondence on this matter with the undertaking concerned. – Oral hearing (if requested by the undertaking). – Preparation of the draft decision: approval of the LS and consultation of the DGs primarily responsible for the products, services or policy areas in issue; approval of the Commissioner. – Consultation of the AC on the draft decision. – Adoption of the decision by written procedure, generally. – Notification by SG to the addressees (together with the Hearing Officer's (hereafter HO) final report and AC opinion). – Communication of the decision to Member States and ESA if EEA-relevant case: A copy of the decision Article 24(2) should without delay be forwarded to the competition authority of the

Resources

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References

  • Information about Decision requiring information with penalty in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Issued pursuant to Article 27(1) of Regulation No 1/2003.
[Note 2] Empowerment decision of 28.4.2004, PV(2004)1655.

Further Reading

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