Tag Archives: ST

State measure

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State measure

State measure in the European Union Law

Concept of State measure provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Law, ministerial decree, decision or other administrative act adopted by a Member State. A Member State's omission to act may also constitute a measure. The Commission may start () infringement proceedings if State measures, taken in relation to () public under-takings and undertakings to which Member States grant special or exclusive rights, contravene EU competition law.

Statement of objections

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Statement of objections

Statement of objections (SO) in the European Union Law

Concept of Statement of objections (SO) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Written communication, which the Commission has to address to persons or undertakings before adopting a decision that negatively affects their rights. This obligation of the Commission flows from the addressee's rights of defence, which require that they be given the opportunity to make their point of view known on any objection the Commission may wish to make in a decision. The SO must contain all objections on which the Commission intends to rely upon in its final decision. The SO is an important procedural step foreseen in all competition procedures in which the Commission has the right to adopt negative decisions.

(See: Article 19(1) of Regulation No 17; Article 18(3) of the merger regulation.)

Start-up costs

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Start-up costs

Start-up costs in the European Union Law

Concept of Start-up costs provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Costs faced by a firm that intends to start economic activity in a specific market segment. These costs include, for example, the expen-diture to undertake research and development (R & D) activities, the costs of acquiring production and/or distribution facilities, as well as the costs of marketing the product (i.e. advertising).

Statement of Objections access to file

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Statement of Objections access to file

Statement of Objections: Information on access to file

The cover letter sending the SO should mention that the parties have a right to access to the file 1 and the arrangements proposed for that (see detailed description in the Module Access to File).

More about Statement of Objections access to file

In the cover letter the parties are informed that if they want to have access to the file, they have to make a written request within 5 working days after receipt of the SO, in order to: – collect the CD-ROM/DVD at DG COMP premises or receive the CD-ROM/DVD by registered letter with receipt of delivery and/or – have access to corporate statements in case of leniency cases.

More about the Subject

The cover letter should also mention that pursuant to Article 15(4) of Regulation 773/2004, “documents obtained through access to the file pursuant to this Article shall only be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 of the Treaty”.

Resources

See Also

References

  • Information about Statement of Objections access to file in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Article 15(1) of Regulation 733/2004 and paras. 26 and 27 of the Notice on access to file.

Further Reading

  • Information about Statement of Objections access to file in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Statement of Objections Transmission to Member States

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Statement of Objections Transmission to Member States

Transmission of Statement of Objections to Member States and ESA

Via secure e-mail connection an encrypted copy of the SO and the cover letter addressed to the undertakings are transmitted, without delay, to all NCAs. Before the transmission, remember to add the date of the SO given by the SG to the electronic version of the SO.

More about Statement of Objections Transmission to Member States

There is no need to send translations of the SO to NCAs and/or to ESA. However, if different language versions of the SO are sent to companies, every language version of the SO should be sent to all NCAs and/or to ESA (by secure-mail or via CD-ROM/DVD).

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Where the Commission decides to initiate proceedings in a case with EEA relevance (“mixed case”) by means of sending an SO, it should be noted that this decision must include the finding that it is a case to which the EEA provisions apply. ESA must be informed and receive a copy of the SO. When the SO and the initiation of proceedings coincide, it should be remembered that ESA has at least forty working days to react. This time will be longer if the companies concerned have been granted a longer time limit. In all other cases of transmission of a copy of the SO, ESA has to respect the same time limits as the companies concerned.

In order to ensure good cooperation it is recommended to take up informal contacts with the ESA before the Statement of Objection is issued.

Resources

See Also

References

  • Information about Statement of Objections Transmission to Member States in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Statement of Objections Transmission to Member States in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Statement of Objections Adoption

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Statement of Objections Adoption

Statement of Objections: Adoption by the Commissioner

The SO is adopted by the Competition Commissioner under the empowerment procedure, once the agreement of the LS and of the President have been obtained.

Resources

See Also

References

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

Further Reading

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

Statement of Objections Transmission to third parties

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Statement of Objections Transmission to third parties

Transmission of Statement of Objections to complainants and other third parties

Pursuant to Article 6 of Regulation 773/2004, “where the Commission issues an SO relating to a matter in respect of which it has received a complaint, it shall provide the complainant with a copy of the non-confidential version of the SO and set a time-limit within which the complainant may make known its views in writing”. This can naturally be done only after a non-confidential version has been produced. Before sending the non-confidential version of the SO, the complainant should have received and returned a confidentiality declaration referred to in paragraph 40 below. A deadline of maximum one month is given for comments on the SO by the complainants.

More about Statement of Objections Transmission to third parties

If other third parties request to be heard and show a sufficient interest, the Commission must inform them in writing of the nature and subject matter of the procedure (Article 13(1) or Regulation 773/2004). This means a summary of the facts and of the legal assessment set forth in the SO. Exceptionally, if deemed appropriate, a copy of the non-confidential version of the SO can be provided to them the same way as to the complainants. 1 When there are several third parties, the principle of equal treatment must be respected and the same form of communication should be used.

More about the Subject

In order to avoid that the complainant or the other third parties justifying a sufficient interest uses this document for other purposes, they will be requested to sign a confidentiality declaration before receiving the non-confidential version of the SO or the summary thereof. It is also important to highlight in the cover letter that the document is communicated only for the purpose of judicial or administrative proceedings for the application of Art. 101/102 TFEU, including proceedings before national courts 2 .

Other Considerations

The observations received from the complainants and other third parties justifying a sufficient interest are submitted to the addressees of the SO, subject to the deletion of business secrets and other confidential information. The purpose of this obligation is to ensure the respect of the rights of defence.

Resources

See Also

References

  • Information about Statement of Objections Transmission to third parties in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Joint Cases T-213/01 and T-214/01 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG/Commission [2006] ECR II-1601, summary point 4, paragraphs 71-72, 78: “Any applicant or complainant who has shown a legitimate interest thus has the right to receive a non-confidential version of the statement of objections. As regards third parties having a sufficient interest, it cannot be ruled out that the Commission might, without being required to do so, transmit to them a non-confidential version of the statement of objections so that they are in a proper position effectively to send it their comments on the alleged infringements forming the subject-matter of the proceeding in question. Beyond those two scenarios, provision is not made in Regulation No 17 and Regulation No 2842/98 for the Commission to transmit the statement of objections to legal or natural persons other than undertakings against which those objections have been raised.”
[Note 2] See Article 8(2) of Regulation 773/2004; Case T-12/07 R Polimeri v Commission [2007] ECR II-38, paragraphs 53 and 54;”… the transmission is made for the only purpose of the proceedings under Regulation 17 [now Regulation 1/2003], without prejudice to the case-law of the Courts (in particular case T-353/94 Postbank)” ] In Case T-353/94 Postbank [1996] ECR II-945, the General Court ruled that Article 20(1) of Regulation No

Statement of Objections Consultation of Legal Service

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Statement of Objections Consultation of Legal Service

Statement of Objections: Consultation of Legal Service

The LS receives the draft SO, with a cover note signed by the relevant Director for consultation.

More about Statement of Objections Consultation of Legal Service

In accordance with Article 23-4.2 of the Implementing Rules giving effect to the Rules of Procedure of the Commission, the LS should be granted at least 10 working days when the document is up to 20 pages and at least 15 working days where it exceeds 20 pages.

Resources

See Also

References

  • Information about Statement of Objections Consultation of Legal Service in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Statement of Objections Consultation of Legal Service in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Statement of Objections Cover Letter

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Statement of Objections Cover Letter

Statement of Objections Cover Letter

The cover letter sending the SO to the parties will be signed by the Director-General of DG COMP, but the SG adds the date and notifies to the addressees. The cover letter should contain the following: – a deadline for the reply 1 ; – modalities for the reply; – information on the parties' access to file 2 ; – information on the right to request an oral hearing 3 and indication on its timing; – the name, phone number and e-mail address of the Hearing Officer in charge; – an indication of the possibility to ask for business secret protection for any part of the SO and a deadline for making such claims 4 ; – an indication of the possibility to make reasoned requests for confidentiality treatment for any material provided in a view expressed on the SO (see section 6.5) 5 .

Resources

See Also

References

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

Notes


[Note 1] Article10(2) of Regulation 773/2004, according to which “The Commission shall, when notifying the statement of objections to the parties concerned, set a time-limit within which these parties may inform it in writing of their views”. The Commission is not obliged to take into account written submissions received after the expiry of that time-limit. See also XXIII Annual Report (1993 – n

Statement of Objections Deadline for Reply Extension

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Statement of Objections Deadline for Reply Extension

Statement of Objections Deadline for Reply Extension

If a party considers that the deadline is too short, it can seek an extension, within the initial time-limit, by making a reasoned request to DG Competition at least 10 working days before the expiry of the original time limit. 1

More about Statement of Objections Deadline for Reply Extension

If the extension is refused or in case of disagreement on the length of the extension granted, the requesting party is entitled to refer the matter for decision to the Hearing Officer by way of a statement explaining the reason why an extension is considered necessary and indicating the length of time required. The legal situation in this respect is laid down in Articles 10(2) and 17(2) of Regulation 773/2004, and Article 9 of the Hearing Officer's Terms of Reference 2 . The Hearing Officer will hear the Director responsible for the case before taking his/her decision and will inform the undertaking and DG Competition in writing. 3

More about the Subject

The criteria applied by the Hearing Officer in taking the decision are listed in Article 9(1) of the HO Terms of Reference: – the size and complexity of the file (for example, the number of infringements, the alleged duration of the infringement(s), the size and number of documents and/or the size and complexity of expert studies); – whether the addressee of the statement of objection making the request has had prior access to information; and/or – any other objective obstacles which may be faced by the addressee of the statement of objection making the request in providing its observations.

Other Considerations

Failure to reply within the fixed deadline does not affect the pursuit of the procedure. Pursuant to Article 10(2) of Regulation 773/2004 “[t]he Commission shall not be obliged to take into account written submissions received after the expiry of that time-limit”.

Resources

See Also

References

  • Information about Statement of Objections Deadline for Reply Extension in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Best Practices Notice, paragraph 101.
[Note 2] Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).
[Note 3] Id., Article 9(1).

Further Reading

  • Information about Statement of Objections Deadline for Reply Extension in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)