Tag Archives: FO

Foreclosure

Foreclosure

Foreclosure in the European Union Law

Concept of Foreclosure provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Strategic behaviour by a firm or group of firms to restrict market access possibilities of potential competitors either () upstream or () downstream. Foreclosure can take different forms, from absolute refusal to deal to more subtle forms of discrimination such as the degradation of the quality of access. A firm may, for example, pre-empt important sources of raw material supply and/or distribution channels through exclusivity contracts, thereby causing a foreclosure of competitors.

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  • Entry barriers

Form

Form

Form A/B in the European Union Law

Concept of Form A/B provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Form which companies are obliged to use if they apply to the Commission for () negative clearance or if they notify a restrictive agreement to the Commission in order to obtain an exemption ( Individual exemption). Form A/B may also be used where compa- nies wish to obtain a negative clearance with regard to the prohibi-tion to abuse a dominant position under Article 82 of the EC Treaty. Form A/B is annexed to Commission Regulation No 3385/94/EC on formalities of applications and notifications provided for in Regulation No 17 (OJ L 377, 31.12.1994). It explains, in detail, how applications and notifications of agreements must be submitted, what information has to be given and what supporting documentation must be provided to the Commission.

Form CO in the European Union Law

Concept of Form CO provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Form which companies must use where a planned concentration has a Community dimension within the meaning of the merger regulation and therefore has to be notified to the Commission. Form CO is an annex to Commission Regulation (EC) No 447/98 (OJ L 61, 2.3.1998) which implements the merger regulation. It explains in detail how notifications of concentrations must be submitted and what informa-tion and supporting documentation must be provided to the Commission.

Formal request to act

Formal request to act

Formal request to act

A party can only bring a failure to act action before the Court if it has first sent a formal request to act to the Commission (Article 265(2) TFEU), which opens a two-months deadline during which the Commission is invited to put an end to the alleged failure. 1. What constitutes a formal request to act?

More about Formal request to act

A formal request to act within the meaning of Article 265 TFEU must: – be sufficiently explicit and precise to enable the Commission to know the nature of the act which it is being asked to take, and – make understood that the invitation is intended to compel the Commission to take a position 1 .

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We typically receive formal requests to act in the context of complaints. The responsibility for identifying a formal request to act lies on the relevant Unit.

Other Considerations

In many cases it will be clear that a letter does constitute a formal request to act (for example, a letter expressly referring to Article 265 and threatening an action for failure to act if no position is taken within 2 months). 2. What action can put an end to the failure to act?

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Assuming that there is indeed a failure to act 2 , the act ending the failure to act must normally be a formal act defining the Commission's position, although it does not have to be a definitive act.

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With regard to complainants, it results from the case law that an Article 7 letter addressed to the complainant and announcing the Commission's intention to reject the complaint constitutes a definition of the Commission's position on the complaint and therefore puts an end to the alleged failure 3 (on Article 7 letters and rejection of complaints in general, see the Module on Handling of complaints).

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If the intention is to take up the complaint and start proceedings against the subject of the complaint: – Provided the investigation is completed, a letter informing the complainant of the initiation of proceedings against the subject of the complaint, with a copy of the position taken (i.e. a non-confidential version of the Statement of Objections); or – If the complainant is ready to allow some additional delay, or if it can be justified that the investigation is still on-going, a letter explaining the steps taken by the Commission and showing that the Commission has not been inactive might be sufficient to convince the complainant not to go to Court 4 .

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If the complainant continues correspondence with the Commission after the formal request for the Commission to act, then the Commission is entitled to regard the formal request to act as having been withdrawn. The Commission should then write to the complainant informing it of this. 3. Acknowledgement of receipt

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In accordance with the Code of Good Administrative Conduct, the acknowledgement of receipt should identify the Head of Unit and her/his telephone number, and should indicate a date by which the addressee can expect to be sent a reply. 4. Decision taken under empowerment

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If the formal act defining the Commission's position is a formal decision rejecting the complaint, then it is taken by empowerment procedure.

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References

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

Notes


[Note 1]
Case C-249/99 Pescados Congelados v. Commission [1999] ECR I-8333.
[Note 2]
Case T-127/98, UPS Europe / Commission, ECR [1999] p. II-2633, points 34 to 41.
[Note 3]
Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 21; Case T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753, paragraphs 30 and 31.
[Note 4]
Legally speaking, such a letter does not put an end to the failure to act (see Case T-95/96, Gestevisión Telecinco / Commission, [1998] ECR p. II-3407, point 88: “A letter from an institution called upon to act under Article 175 of the Treaty stating that the questions raised are being examined does not in fact amount to the defining of a position such as to release it from its duty to act”). But such a letter can be enough to convince the complainant that the Commission has (and is still) actively dealing with the case, so that he does not need to go to Court. (judgments in Snupat v High Authority, cited above, and Case 13/83 Parliament v Council [1985] ECR 1513, paragraph 25).

Further Reading

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

Follow-up in case of non-reply

Follow-up in case of non-reply

Follow-up in case of non-reply

In case the parties do not reply within the deadline (taking account of possible extensions): – The case manager may follow this up with the parties informally. – Otherwise or if the informal follow-up is unsuccessful, the parties will receive a reminder letter. • For the details of the request, the reminder letter refers back to the first letter. • It indicates that the original (or extended) deadline has not been met. • It sets a new deadline of 48 hours for reply. • It indicates that should the addressee fail to reply within the new deadline, the Commission will publish the decision, assuming that it does not contain confidential information in accordance with Article 16(4) of the Reg.773/2004. • In case the decision contains information that is, in the view of the case team, obviously confidential with respect to that addressee, the reminder letter also (i) indicates this information, and (ii) invites the addressee to specifically consider its position with respect to this information. • This letter is signed by the Head of Unit or the case manager.

More about Follow-up in case of non-reply

The next step to be taken depends on the reaction of the parties: – Should there be no reaction by the parties within the new deadline, the documents can be published in line with Article 16(4) of Regulation 773/2004. However, the case team should delete information that is, in the view of the case team, obviously confidential. 1 . – Should the parties reply with confidentiality claims within the new deadline, the following steps apply.

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References

  • Information about Follow-up in case of non-reply in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
Article 16(4) of the Reg.773/2004 does not oblige the Commission to leave obviously confidential information in the public version: 'If undertakings […] fail to comply […], the Commission may assume that the documents or statements concerned do not contain confidential information.' (Emphasis added).

Further Reading

  • Information about Follow-up in case of non-reply in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Follow-up of Decisions

Follow-up of Decisions

Follow-up of Decisions

The adoption of a decision is not necessarily the end of the case. Notwithstanding possible appeals (see Module on Court Litigation), the life of the case after the adoption and notification of a decision may include, where appropriate, the recovery of fines or periodic penalty payments and the monitoring of remedies imposed by the decision. These aspects are briefly dealt with below.

Resources

See Also

References

  • Information about Follow-up of Decisions in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Follow-up of Decisions in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Follow-up of requests for information

Follow-up of requests for information

Follow-up of requests for information

The Commission services may provide NCAs with copies of replies to a request for information, but the provisions of Article 11(2) of Regulation No 1/2003 are not regarded as containing any obligation in this respect. If the undertaking concerned has claimed confidentiality in respect of certain parts of its reply, the NCA should be reminded of the fact that the provision of information is governed by Articles 11 and 28 of Regulation No 1/2003, and be informed about the undertaking's confidentiality claims. Alternatively, the case team and the NCA may agree that the latter receives the non-confidential version for the reply.

Resources

See Also

References

  • Information about Follow-up of requests for information in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Follow-up of requests for information in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)