Tag Archives: Involvement of other services

Rejections of complaints on substantive grounds

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Rejections of complaints on substantive grounds

The special case of rejections of complaints on substantive grounds

Rejections of complaints on substantive grounds are rejections of complaints by which the Commission considers after an assessment of the known facts that the conduct complained of does not infringe Articles 101 or 102 TFEU. They are to be distinguished from rejections of complaints on other grounds which include rejections of complaints for lack of sufficient EU interest, for procedural reasons (e.g. under Article 13 of Regulation 1/2003), or for lack of sufficient substantiation by the complainant of the allegations put forward.

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For the exercise of the empowerment for rejections of complaints on substantive grounds the empowerment decision foresees exceptionally the need to obtain the prior approval of both the Legal Service and the Commission departments responsible for the products, services or policy areas in question.

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This leads to the following complicated involvement regime for rejections of complaints: – for rejections of complaints on substantive grounds the prior approval of the departments primarily responsible is necessary (exception to the normal prior information regime); – for rejections of complaints for insufficient grounds for acting by conducting a further investigation (“lack of EU interest”) the departments primarily responsible must be informed (normal prior information regime, see above 3.2.2.1); – no prior information of services other than the LS is required for rejections of complaints on other grounds (see above 3.2.2.2); – for Article 7 letters (announcement by the Commission to the complainant that it intends to reject his complaint, Article 7(2) of Regulation 1/2003 and Article 7(1) of Regulation 773/2004) no prior information of services other than the Legal Service is required (see above).

Resources

See Also

References

  • Information about Rejections of complaints on substantive grounds in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Rejections of complaints on substantive grounds in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Necessary prior approval of the Legal Service

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Necessary prior approval of the Legal Service

Necessary prior approval of the Legal Service

For the exercise of all empowerments and sub-delegations the prior approval of the Legal Service is always necessary (Article 23(4), second paragraph, of the Rules of Procedure; point 13/14-3.3 of the Rules giving effect to the Rules of Procedure and empowerment decisions in the field of Competition). A formal inter-service consultation of the Legal Service is therefore required.

Resources

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References

  • Information about Necessary prior approval of the Legal Service in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Necessary prior approval of the Legal Service in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Information of departments

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Information of departments

“Information” of “departments primarily responsible for the products, services or policy areas in issue”

Prior to the exercise of the most important empowerments and sub-delegations COMP must “inform” the Directorates-General “primarily responsible for the products, services or policy areas in issue” and give those DGs the opportunity to state their views. The exercise of those empowerments and sub-delegation is however not subject to their prior approval.

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Most of the time there will only be one service “primarily responsible” (ENTR, INFSO, MARKT, EAG, EMPL, ENER, ECFIN or MOVE). Depending on the characteristics of the case there may however also be more than one other department involved. Footnote 14 of the explanatory memorandum states: “Departments which have not been informed and which regard themselves as also primarily responsible for the products, services or policy areas in issue in a given case may be informed at all times upon making a reasoned request.”

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The “information” procedure grants other DGs beyond a “right to know” a true “right to be heard”. Where prior information is required – DG Competition must send the draft measure sufficient time prior to its adoption so as to give the other department an effective opportunity to state its views; – except in duly justified circumstances of urgency the other department will be given 10 working days to state its views; – DG Competition will take the greatest possible account of the opinion expressed by the other departments; and – on request by one of the other departments an inter-service meeting will be held in good time.

Other Considerations

The measures for which the prior information of services other than the LS is obligatory are: – The initiation of proceedings (Article 2(1) of Regulation 773/2004 and Article 11(6) of Regulation 1/2003) except in the situation foreseen in Article 11(4) of Regulation 1/2003. Comment: In the latter case the decision is taken at the level of the College after normal inter-service consultation (see point (18) above). – Determination and issuance of a statement of objections to undertakings or associations of undertakings (Article 27(1) of Regulation 1/2003 and Article 10(1)(2) of Regulation 773/2004). Comments: (a) As explained above the Competition Commissioner must exercise the empowerment for sending the statement of objections in agreement with the President of the Commission. (b) Despite the involvement of the President at the College level the Secretariat General does not have to be involved at the level of the inter-service consultation. The SG is not a “service responsible for the products, services or policy areas in issue”. (c) Since the Competition Commissioner needs to obtain the agreement of the President it is essential that prior to the adoption of the statement of objection the Commissioner is fully informed about any possible disagreements during the interservice consultation / information. – The preliminary assessment in the procedure for the adoption of a decision making commitments binding (Article 9(1) of Regulation 1/2003). – Publication of a summary of the case and request for comments on commitments (Article 27(4) of Regulation 1/2003). – Commission decision to reopen proceedings after a decision making commitments binding (Article 9(2) of Regulation 1/2003). – Commission decision imposing (provisional) periodic penalty payments for breach of substantive rules (if not yet imposed by a previous Commission decision ordering termination of these breaches, Article 24(1)(a)(b)(c) of Regulation 1/2003) or for breach of procedural rules of Article 24(1)(d)(e) of Regulation 1/2003). Comment: The decision to impose periodic penalty payments on undertakings or associations of undertakings in order to compel them to supply complete and correct information requested by decision taken pursuant to Articles 17 or 18(3) of Regulation 1/2003 (Article 24(1)(d) of Regulation 1/2003 is sub-delegated to the Director-General (see above 2.3). It is the only subdelegated measure prior to the adoption of which services other than the Legal Service must be “informed”. – Rejection of complaint by Commission decision for insufficient grounds for acting by conducting a further investigation (“lack of EU interest”). Comment: on the special case of rejections of complaints see below 3.2.2.3.

Resources

See Also

References

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

Further Reading

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

Involvement of other Services prior to the adoption of measures

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Involvement of other Services prior to the adoption of measures

Involvement of other Services prior to the adoption of measures under the empowerment and sub-delegation procedures

With regard to measures adopted under the empowerment procedure granted in the field Competition, since the first empowerment decision of 1965 other Commission services than the Legal Service are only prior informed of and not consulted about certain envisaged measure.

Resources

See Also

References

  • Information about Involvement of other Services prior to the adoption of measures in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Involvement of other Services prior to the adoption of measures in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Involvement of services other than the Legal Service

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Involvement of services other than the Legal Service

Involvement of services other than the Legal Service

The extent of the involvement of Services other than the LS depends on the type of acts to be adopted. Each decision having empowered the Commissioner for Competition to adopt certain acts specifies the involvement of Services other than the Legal Service (see in detail the empowerment decision).

Resources

See Also

References

  • Information about Involvement of services other than the Legal Service in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Involvement of services other than the Legal Service in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Acts for which no prior information of other services is required

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Acts for which no prior information of other services is required

Acts for which no prior information of other services is required

For a number of measures to be adopted by empowerment or sub-delegation no prior information of other services is foreseen (with the exception of the Legal Service which must always be asked for prior approval).

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Such is the case where (a) strict confidentiality is necessary such as in the case of unannounced inspections ordered by decision or the handling of leniency applications 1 or (b) the measure is a measure of technical case administration in respect of the conduct of the proceedings or in respect of the oral hearing, publication of Commission acts in the Official Journal or access to the file.

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The regime of no information applies to the following measures: – the closure of proceedings (Article 2(1) of Regulation 773/2004 and Article 11(6) of Regulation 1/2003); – announcement by the Commission to the complainant that it intends to reject his complaint (Article 7(2) of Regulation 1/2003 and Article 7(1) of Regulation 773/2004); – rejection of complaint by Commission decision (Article 7(2) of Regulation 1/2003 and Article 7(2) of Regulation 773/2004; Article 13(1)(sentence 2), 13(2) of Regulation 1/2003 and Article 9 of Regulation 773/2004; Article 29(1) of Regulation 1/2003) except for rejections of complaints for lack of Community interest which are subject to the normal prior information regime and for rejections of complaints on substantive grounds for which a special involvement regime applies (see below 3.2.2.3); – refusal by the Commission to transmit confidential information (Article 15(1)(alt.1) of Regulation 1/2003 and points 23-26 Notice on cooperation with National Courts); – Commission decision requesting information from undertakings and associations of undertakings (Article 18(3) of Regulation 1/2003); – Commission decision ordering inspections of undertakings and associations of undertakings (Article 20(4) of Regulation 1/2003); – Commission decision to order inspections of other premises (Article 21(1) of Regulation 1/2003); – Commission decision requesting an NCA to undertake an inspection (Art. 22(2) of Regulation 1/2003); – written commitment by the Commission not to use certain information exchanged in the European Competition Network (ECN) for imposing sanctions on a leniency applicant or certain other persons (point 41(2) of the Commission Notice on cooperation within the network of competition authorities); – The refusal by the Commission to allow the complainant to express his views at the oral hearing (Article 7(2) of Regulation 1/2003 and Article 6(2) of Regulation 773/2004); – refusal by Commission to hear third parties (other than addressees of a statement of objections or complainants) for lack of sufficient interest (Article 27(3) of Regulation 1/2003 and Article 13(1) of Regulation 773/2004); – refusal by Commission to invite third parties (other than addressees of a statement of objections or complainants) to develop their arguments at the oral hearing (Article 27(3) of Regulation 1/2003 and Article 13(2) of Regulation 773/2004);

Other Considerations

The “no information” regime also applies with regard to the application of the empowerment on the application of the 2002 and 2007 Leniency Notices. Decisions to grant (or not to grant) conditional immunity or acts informing applicants of the Commission's intent to grant a reduction of fines (or to reject it) (see above Section 2.2.2) can therefore be adopted without prior information of Services other than the LS (the prior approval of which remains necessary).

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Finally, all decision-making powers delegated to the Hearing Officer do not require prior information of any other service but the LS, the agreement of which is always required.

Resources

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References

  • Information about Acts for which no prior information of other services is required in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] See Commission decision of 13.2.2002, PV(2002)1555 adopting document SEC(2002)119

Further Reading

  • Information about Acts for which no prior information of other services is required in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)