Consistency check

Consistency check on the basis of envisaged decision fiche and draft envisaged act

In parallel to the information received electronically via the informatics application, the Commission will receive from NCAs draft documents by secure electronic mail or by secure courier. The envisaged SO/draft decision arrives via encrypted mail at the antitrust registry, which decrypts it and uploads it into an internal database; the registry also sends an alert immediately to the ECN unit and the competent sectoral unit for follow-up. The registry provides the submitting NCA with an acknowledgement of receipt. The deadline set by Article 11(4) starts to run from the receipt of both the “envisaged decision fiche” in the informatics application and the text of the envisaged decision.

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Given the very short timeframe within which the Commission has to examine envisaged decisions and, if so required, react, the information from NCAs on their SOs/draft decisions is dealt with by the ECN Unit as 'chef de file', in close cooperation with the operational units, depending on the language and economic sector involved. The ECN unit as 'chef de file' informs by note the competent sectoral unit of the arrival of a new envisaged decision from an NCA and indicates the name of the coordinator in the ECN unit responsible for the case. It also supplies an Excel calendar that assists with the planning of the work within the 30 day deadline.

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The examination of the draft envisaged act is done both by the ECN Unit (from a horizontal coordination perspective) and by the competent sectoral unit(s) (from a sector perspective). The first step is to assess whether the NCA has submitted sufficient information for a properassessment. Where that is not the case, the sectoral unit informs the ECN unit which will take the matter up with the NCA concerned and keep the sectoral unit informed.

Other Considerations

The ultima ratio for the Commission in this context is to initiate proceedings in accordance with Art. 11(6) of Regulation 1/2003. The Commission should use its power to initiate proceedings 1 as a reaction to an envisaged decision received from a NCA only when the conditions in paragraph 54 of the Network Notice are met (Section 5 below). If a case raises very significant issues of coherent application, the timing must be observed closely: The 14th calendar day is the latest day for deciding within DG Competition on the possible initiation of proceedings under Article 11(6); this is the practical deadline by which DG Competition will have to send a note to the Commissioner requesting permission to launch this procedure.

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For all cases that do not give rise to a recommendation to initiate proceedings, the examination proceeds during the 30 day period in the way initially agreed between the ECN unit and the sectoral unit, taking account of the time constraints arising due to, for example, absences in both services, exceptional requests from NCAs for early reaction, the need to consult the Legal Service etc. In this context, the dates indicated in the calendar prepared upon receipt of an envisaged decision serve as reminders of possibly needed actions to be able to complete the assessment within the given time; they are flexible but give an idea of where the assessment should be on these dates.

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During the examination of the case, the ECN unit and the sectoral unit cooperate as agreed. Where appropriate, the case handlers meet. In general, the sectoral unit sends an e-mail or note setting out its position to the ECN unit when it has completed its examination. During the process, DG Competition can ask for additional information or clarification from the NCA in question (but not at this stage make observations). Such contacts with the NCA are made either by the ECN unit or by the sectoral unit, as agreed in the case at hand. Where appropriate, the ECN unit also calls on the policy unit in Directorate A for feedback where cases raise policy issues.

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When setting up a team for scrutinising an envisaged decision, the ECN unit takes into account whether any linguistic help is needed. In cases where neither the coordinator in the ECN unit nor the case handler in the sectoral unit speak the language in question, this is done by calling upon a colleague from within DG Competition, who masters the language (language correspondent), or if this is not possible, by asking for DG Translation's help.

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The results of the examination of the case are summarised in a case note that is normally prepared by the ECN unit, with the input from the sectoral unit. The case note summarises the contents of the envisaged decision, reflects the comments of the sectoral unit (if any), and sets out the proposed follow-up. The case note is addressed to the Legal Service for consultation before any observation is communicated to the NCA. The consultation is carried out by the ECN unit. The Legal Service has accepted to react within 3 days for notes without comments and oral comments, 5 days if a written note is proposed to be sent to the NCA. Only after the agreement of the LS is received can observations on the substance of the case be addressed to the NCA.

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The reaction to the NCA will depend on the issues raised by the envisaged decision. When a case does not call for comments, the ECN Unit informs the NCA informally that the matter has been closed. When minor observations are made, the ECN unit will set up a conference call with the NCA, to which the sectoral case handler is invited. The line to be taken is determined by the case note and the corresponding reaction of the Legal Service. In cases which call for more fundamental observations, DG Competition's views can be set out in writing in a letter to the NCA. Any observations are to remain internal to the Network and are not disclosed to the parties.

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In all cases, it is the final responsibility of the NCA how it responds to observations from DG Competition. As a rule, observations are left with the NCA to consider unless the NCA itself suggest another way of proceeding. In exceptional cases, DG Competition may ask for a further follow-up such as the communication of a revised draft, transmission of the decision as finalised etc.

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In principle, the handling of envisaged decisions should be completed within the 30 day deadline. In practice, it can happen that due to the non-availability of the NCA case handler, telephone conferences are scheduled shortly after the 30th day. Exceptionally, it can be agreed with the NCA to continue discussions beyond the 30th day if time is available on the part of the NCA.

Should the Commission decide to open proceedings itself, the case would become the full responsibility of the sectoral unit in accordance with normal DG Competition procedures, as set out in the relevant parts of the ManProc.

The Commission can also request that a case dealt with by an NCA is discussed in an Advisory Committee. The Commission would put the case on the agenda after having informed the NCA concerned. This discussion will not lead to a formal opinion. This option will rarely be practicable due to the deadlines involved and has not so far been used.

Resources

See Also

References

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

Notes

[Note 1] The “initiation of proceedings for the adoption of a decision” must not be confused with “commencing the first formal investigative measure” within the meaning of Article 11(3).

Further Reading

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