Tag Archives: Introduction to Decision finding Inapplicability

Public interest justifying intervention

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Public interest justifying intervention

'European Union public interest' justifying intervention

According to its terms, Article 10 can be applied where “the Community [i.e., European Union 1 ] public interest relating to the application of Articles 81 and 82 of the Treaty [i.e. Articles 101 and 102 TFEU]” so requires. The objective of competition policy is to benefit consumers and the economy as a whole, in the framework of the internal market. The notion 'Community public interest' in Article 10 refers to the fundamental commitment of the European Union to a system of undistorted competition as a common public goal 2 .

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The notion 'EU public interest' is strictly linked to the implementation of Articles 101 and 102 TFEU. It follows that other public policy considerations (e.g. industrial interests) cannot be invoked to establish that there is 'EU public interest' in the sense of Article 10.

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Moreover, Article 10 decisions are not intended to replace negative clearance or exemption decisions under the previous enforcement system. Neither can they be legally “applied for” by undertakings nor should they be envisaged as a reaction to such requests. It is important to note that under the legal exception system, undertakings have the primary responsibility to assess the compatibility of their agreements and practices with EU competition rules. Thus, the risk of having to defend their case before a national court is in principle the same for all undertakings. Therefore, the existence of that responsibility/risk in itself cannot be invoked as a valid reason for assuming a problem of consistent application of EU competition law possibly giving rise to the adoption of an Article 10 decision.

Other Considerations

A simple letter will usually suffice as reply, indicating that the Commission does not issue Article 10 decisions upon request.

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References

  • Information about Public interest justifying intervention in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Terminology according to the Treaty of Lisbon.
[Note 2] See Commission Staff Working Paper SEC(2001) 1828 “The notion of 'Community public interest' in Article 10” of 13.11.2001, p.5, section II, paragraph 11. This notion should be clearly distinguished from the (lack of) “EU interest” concept developed in connection with the Automec case law and governing the rejection of complaints.

Further Reading

  • Information about Public interest justifying intervention in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Main procedural Steps

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Main procedural Steps

Overview of the main procedural steps

The following section provides an overview of the main procedural steps leading to the adoption of an Article 10 decision: – Starting the investigation on an ex-officio basis – no “request” required, but not excluded either (from a party or an NCA); – Early information indicating that an Article 10 decision is being considered in a specific case and stating the reasons for such consideration; – Investigation and consultation on priority assessment (see Chapters IV and V respectively); – Initiation of formal proceedings as laid down by Article 11 (6) Regulation 1/2003 and Article 2 Regulation 773/2004; – Publication of a notice according to Article 27 (4) Regulation 1/2003 with a summary of the case and proposed course of action; – Consultation of the Advisory Committee pursuant to Article 14 of Regulation 1/2003; – Adoption of a Commission decision, notification to addressees, transmission of copies to competition authorities of the Member States; – Publication in accordance with Article 30 of Regulation 1/2003.

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References

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

Further Reading

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

Decision finding inapplicability

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Decision finding inapplicability

Decision finding inapplicability. General background

A declaratory decision finding inapplicability of the prohibitions laid down in Articles 101 or 102 TFEU can be proposed in exceptional cases where a Commission decision is needed, on a specific issue, in order to avoid or solve a problem of coherence resulting from divergent interpretations by national courts in different Member States or by members of the European Competition Network (ECN). Such circumstances can justify allocating the Commission's resources to the preparation of this type of “positive” decision.

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The Commission has exclusive competence and, within the limits set out in Article 10 of Regulation 1/2003 (Article 10 Decision) as interpreted in the light of Recital 14, substantial discretion to take this type of decisions.

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References

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

Further Reading

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

EU public interest

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EU public interest

The notion of “EU public interest”

The term 'public' included in the notion of 'EU public interest' has been introduced to underline the public policy dimension and discretionary nature of the Commission's intervention on the basis of Article 10 and, conversely, the implicit judgment that individual interests of companies are not sufficient to activate the Commission decision-making process in this context. This is further confirmed by the fact that Article 10 specifies that the Commission acts 'on its own initiative' rather than on application (further stressing the Commission's discretion).

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The term 'Community' [i.e., European Union] constitutes the second important facet of the notion 'EU public interest'. It underlines that Commission decisions pursuant to Article 10 are designed to serve exclusively the common public goal of undistorted competition within the internal market and, accordingly, the development of EU competition policy to safeguard that public goal.

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In accordance with the Union dimension of the notion of 'EU public interest' and given the exceptional nature of Article 10 decisions in a legal exception system, the problem of inconsistent application of the law (see Recital 14) needs to have a substantial impact on the functioning of competition within the internal market. Inconsistent application of the competition rules, in particular if sustained over a long period of time, may lead to discrimination between economic operators and unequal opportunities to compete. The market process itself, which the competition rules are designed to protect, may be substantially impeded.

Other Considerations

The risk of divergence in the application of competition rules, entailing a substantial impediment to competition within the internal market may, exceptionally, also arise in the context of novel and unresolved questions, in so far as they trigger parallel proceedings before national competition authorities and courts, so that clarification by way of an Article 10 decision may be appropriate. However, recourse to an Article 10 decision in such a situation should normally only be had if other means of preventing the risk of divergence, such as an amicus curiae intervention of the Commission in proceedings before national courts, will likely not be sufficient.

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On the other hand, minor divergences of interpretation of the rules with only a minimal impact on the functioning of competition within the internal market should not give rise to the adoption of Article 10 decisions.

Resources

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References

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

Further Reading

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