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Guidance Letter Formal conditions
Guidance Letter Formal conditions
Formal conditions to request a Guidance Letter
A request can be presented by an undertaking or undertakings or associations of undertakings within the meaning of Articles 101 and 102 TFEU which have entered into or intend to enter into an agreement or practice that could fall within the scope of Articles 101 and/or 102 TFEU with regard to legal issues raised by such agreement or practice.
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There is no form. A memorandum should be presented which clearly states: – the identity of all undertakings concerned as well as a single address for contacts with the Commission; – the specific questions on which guidance is sought; – full and exhaustive information on all points relevant for an informed evaluation of the questions raised, including pertinent documentation; – detailed reasoning, explaining why the request presents a novel question; – all other information that permits an evaluation of the request in the light of the aspects explained in the Notice, including in particular a declaration that the agreement or practice to which the request refers is not subject to proceedings pending before a Member State court or competition authority; – where the request contains elements that are considered business secrets, a clear identification of these elements; – any other information or documentation relevant to the individual case.
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An undertaking can withdraw its request at any point in time. In any case, information supplied in the context of a request for guidance remains with the Commission and can be used in subsequent procedures under Regulation 1/2003.
Resources
See Also
References
- Information about Guidance Letter Formal conditions in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
Further Reading
- Information about Guidance Letter Formal conditions in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)
Guidance Letter Substance Conditions
Guidance Letter Substance Conditions
Conditions of substance to issue a Guidance Letter
According to the Notice on Informal Guidance (paragraphs 8-10), issuing a guidance letter may only be considered if the following cumulative conditions are fulfilled: – The substantive assessment of an agreement or practice with regard to Articles 101 and/or 102 TFEU, poses a question of application of the law for which there is no clarification in the existing EU legal framework including the case law of the EU Courts, nor publicly available general guidance or precedents in decision-making practice or previous guidance letters. – A prima facie evaluation of the specificities and background of the case suggests that the clarification of the novel question through a guidance letter is useful, taking into account the following elements:
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– the economic importance from the point of view of the consumers of the goods or services concerned by the agreement or practice, and/or – the extent to which the agreement or practice corresponds or is liable to correspond to more wide spread economic usage in the marketplace and/or – the extent of the investments linked to the transaction in relation to the size of the companies concerned and the extent to which the transaction relates to a structural operation such as the creation of a non-full function joint venture.
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– It is possible to issue a guidance letter on the basis of the information provided, i.e. no further fact-finding is required. – Furthermore, the Commission will not consider a request for a guidance letter in either of the following circumstances: – the questions raised in the request are identical or similar to issues raised in a case pending before the General Court or the European Court of Justice; – the agreement or practice to which the request refers is subject to proceedings pending with the Commission, a Member State court or Member State competition authority.
Other Considerations
– The Commission will not consider hypothetical questions and will not issue guidance letters on agreements or practices that are no longer being implemented by the parties. Undertakings may however present a request for a guidance letter to the Commission in relation to questions raised by an agreement or practice that they envisage, i.e. before the implementation of that agreement or practice. In this case the transaction must have reached a sufficiently advanced stage for a request to be considered.
Resources
See Also
References
- Information about Guidance Letter Substance Conditions in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
Further Reading
- Information about Guidance Letter Substance Conditions in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)
Guidance Letters and Analysis of the request
Guidance Letters and Analysis of the request
Guidance Letters: Analysis of the request against criteria, priorities and facts
The Commission, seized of a request for a guidance letter, will consider whether it is appropriate to process it or not. A first reply should be sent by the unit dealing with the request to the applicant(s) within fifteen working days following the receipt of the request. Two answers are possible at that stage: – A letter directly rejecting the request: this will allow immediate rejection of requests which obviously (i) do not fulfil the criteria or (ii) are not considered as a priority. The letter rejecting the request will not refer to the substance but only to the fact that the Commission does not consider it as a priority. It should also state that Commission is not precluded from subsequently examining that same agreement or practice in a procedure under Regulation 1/2003. – A holding reply, if the request seems to fulfil the criteria detailed above and merits to be further analysed. The letter will indicate that the Commission services are currently analysing the request and that the final evaluation (issuance of a guidance letter or refusal) will follow.
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In order to make this first assessment of the request, the unit should: – make a first assessment of the request against the conditions set out in the Notice; – check the facts set out by the undertakings; – make a first assessment whether it is appropriate to prepare a Guidance letter in the light of DG Competition's enforcement priorities.
Resources
See Also
References
- Information about Guidance Letters and Analysis of the request in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
Further Reading
- Information about Guidance Letters and Analysis of the request in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)
Guidance Letters Effects
Guidance Letters Effects
The effects of Guidance Letters
Guidance letters are in the first place intended to help undertakings carry out, by themselves, an informed assessment of their agreements and practices.
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A guidance letter cannot prejudge the assessment of the same question by the EU Courts.
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Where an agreement or practice has formed the factual basis for a guidance letter, the Commission is not precluded from subsequently examining that same agreement or practice in a procedure under Regulation 1/2003, in particular following a complaint. In that case, the Commission will take the previous guidance letter into account, subject in particular to changes in the underlying facts, to any new aspects raised by a complaint, to developments in the case law of the European Courts or wider changes of the Commission's policy.
Other Considerations
Guidance letters are not Commission decisions and do not bind Member States' competition authorities or courts that have the power to apply Articles 101 and 102 TFEU. However, it is open to Member States' competition authorities and courts to take account of guidance letters issued by the Commission as they see fit in the context of a case.
Resources
See Also
References
- Information about Guidance Letters Effects in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
Further Reading
- Information about Guidance Letters Effects in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)