Part II Antitrust Investigations, 4 Power to Take Statements

This chapter details how Regulation 1/2003 equipped the European Commission with the power to take statements from natural or legal persons. It enables the Commission to interview any persons who may be in possession of useful information for an investigation, record the statements made, and use them as evidence. Giving an interview is a voluntary act. The Commission cannot compel a person to do so, nor can it fine the person for having provided incomplete or misleading information. This makes the power to take statements a much softer investigative tool than requests for information or inspections that come with the possibility to impose fines and periodic penalties. While this is a downside, the voluntary nature of giving an interview has certain advantages. It allows for a spontaneous discussion that may enable the Commission to collect valuable information that could not have been collected otherwise. Moreover, the power to take statements allows the Commission to reach out to informants who do not carry out an economic activity and thus do not qualify as undertaking in the meaning of Articles 101 and 102 TFEU. The chapter then considers the procedure for conducting an interview.

Part VIII Cooperation in Antirust Enforcement, 22 International Cooperation

This chapter studies the cooperation between the European Commission and competition authorities and courts outside the EU, at both bilateral and multilateral level, and highlights the importance of that cooperation in the context of proliferation of competition regimes and the continual increase in cross-border business activities. In more than half of its enforcement activities, the Commission cooperates with one or more foreign jurisdictions, obviously with varying degrees of intensity. The bulk of this international cooperation, in the fields of both merger control and anticompetitive practices, is with the U.S. and the Canadian competition authorities. The chapter then sets out the legal framework for international cooperation and explains the principles determining the Commission’s jurisdiction in cases having an international dimension. It also considers cooperation in antitrust enforcement, with particular attention given to the exchange of information and disclosure of evidence.

Part VII Steps Following the Adoption of a Commission Decision, 17 Publication of Antitrust Decisions and Other Documents

This chapter describes the legal basis for and the scope of the publication of Commission antitrust decisions as well as the procedure for preparing a public version of a decision. Publishing the Commission’s antitrust decisions is particularly important. In addition to informing the public of the Commission’s work, it has the specific purpose of deterring antitrust violations by exposing the wrongdoing of the infringers to the public, informing economic operators of what type of behaviour may be considered violation of antitrust rules and enabling victims of antitrust infringements to seek compensation for the damages suffered. Regulation 1/2003 lists the antitrust decisions the main content of which the Commission is obliged to publish. Beyond this, however, and within the limits of the duty of professional secrecy, the Commission enjoys broad discretion to make available to the public as much information as possible. The preparation of a public version of a decision, similarly to preparing access to the file and to granting access to documents pursuant to Regulation 1049/2001, requires determination of what information is confidential.

Part III Outcomes of an Investigation, 6 Ordinary Procedure: From Initiation of Proceedings to the Adoption of a Final Decision

This chapter looks at the procedural steps from formal initiation of proceedings to the adoption of a prohibition decision—with possible fines and remedies—and indicates the circumstances in which a decision to close a case will be adopted. If the European Commission decides to pursue a case, it will initiate proceedings with a formal decision. The decision for initiating proceedings is addressed to the legal entities comprising the undertakings suspected of an antitrust infringement. After the initiation of proceeding, the Commission will adopt a statement of objections (SO). The SO sets out the Commission’s preliminary view as to why the undertakings’ market behaviour may constitute an infringement of Article 101 and/or Article 102 TFEU. Once the SO is sent, the parties are given access to the file and can exercise their right to reply to the SO in writing. If the objections are maintained after the parties have replied to the SO and/or have been orally heard, the Commission will proceed by adopting a prohibition decision pursuant to Article 7 of Regulation 1/2003.

Part VIII Cooperation in Antirust Enforcement, 21 Cooperation Between the Courts of the EU Member States and the Court of Justice: The Preliminary Reference Procedure

This chapter addresses the cooperation between Member States’ courts and the Court of Justice in the context of the preliminary reference procedure. There are two points to be noted concerning the nature of the preliminary reference procedure and its relationship to competition law. First, the principal aim of the preliminary ruling and advisory opinion mechanisms is to provide a means of cooperation between the Court of Justice and the Member States. As such, the principal dialogue is between the referring national court or tribunal and the Court of Justice. In the preliminary reference procedure, the Commission holds the same status as any other interested party that is entitled to take part in the proceedings. Second, the procedural rules governing the preliminary ruling procedure remains essentially the same regardless of the subject matter concerned. No special rules apply with respect to cases concerning competition law.

Part VIII Cooperation in Antirust Enforcement, 19 Cooperation Within the ECN and Strengthening of National Competition Authorities

This chapter assesses the cooperation between the European Commission and national competition authorities (NCAs) in a decentralised system of antitrust enforcement. The recent adoption of a Directive to empower the competition authorities of the Member States to be more effective enforcers (ECN+ Directive) aims at ensuring more effective enforcement and mutual assistance among NCAs throughout the EU by putting in place minimum guarantees and powers to detect and tackle infringements. The chapter then explains the role of the European Competition Network (ECN), how it is organised and governed. The ECN was created in conjunction with the adoption of Regulation 1/2003. It consists of the NCAs and the Commission forming together a network of public authorities applying the EU competition rules in close cooperation.

Part V Fines and Periodic Penalties, 14 Fines Imposed for Substantive Infringements of Articles 101 and 102 TFEU

This chapter details the methodology of setting fines for substantive infringements under the Fining Guidelines and describes various adjustment factors that may apply in a particular case. Article 23(2)(a) of Regulation 1/2003 empowers the European Commission to adopt decisions imposing monetary fines on undertakings or associations of undertakings having committed infringements of Article 101 or 102 TFEU, either intentionally or by negligence. However, Regulation 1/2003 does not contain detailed prescriptive provisions relating to how the Commission must assess and impose fines. Hence, the Regulation grants the Commission a wide margin of discretion in relation to the imposition of fines for substantive infringements of the competition rules. The Commission follows a two-step method for setting fines. First, a ‘basic amount’ is calculated for each undertaking or association of undertakings by reference to the value of sales and the duration. Second, the basic amount is adjusted upwards or downwards based on various factors.

Part IV The Rights of Defence, 11 An Overview of the Rights of Defence in EU Antitrust Proceedings

This chapter studies the notion of the rights of defence, providing an overview of those rights and tracing their evolution through the case law of the EU Courts. The rights of defence form part of a category of procedural rights that are of particular importance in EU antitrust proceedings. It is settled case law that the rights of defence in any proceedings in which fines or penalty payments may be imposed, such as those provided for in Regulation 1/2003, are fundamental rights forming an integral part of the general principles of EU law. A violation of a right of defence on behalf of the European Commission can have significant repercussions on Commission decisions finding an infringement of EU antitrust rules, the available remedies varying from a complete annulment of the decision to partial annulments and, exceptionally, fine reductions. It is therefore of no surprise that alleged violations of the rights of defence are systematically invoked as grounds for annulment of Commission decisions before the EU Courts, particularly given that infringements of antitrust rules may lead to the imposition of fines that, due to their severity, are now widely considered to be of criminal nature.

Part VIII Cooperation in Antirust Enforcement, 20 Cooperation Between the Commission and the Courts of the EU Member States

This chapter explores the cooperation between the European Commission and Member States’ courts that apply Articles 101 and 102 TFEU. The risk of inconsistent interpretations of EU competition rules renders cooperation between the Commission and Member State courts crucial, particularly due to the role that such courts play when it comes to the effective enforcement of Articles 101 and 102 TFEU at the national level: in the era of decentralisation, it is the national courts that will ultimately be called upon to apply Articles 101 and 102 TFEU either directly, or when reviewing national authorities’ decisions based on those provisions. The central role that the Commission retains for the enforcement of EU competition law means that it has a particularly strong interest in ensuring effective cooperation with national courts. Moreover, the importance of cooperation between the Commission and Member State courts is further increasing due to the rise of private enforcement. This type of enforcement is generally associated with civil actions and damages awarded by national courts or tribunals.

Part IV The Rights of Defence, 13 Oral Hearing

This chapter examines the right to an oral hearing in antitrust cases. Article 27 of Regulation 1/2003 provides for the hearing of parties, complainants, and others, but no right to an oral hearing is granted. The antitrust proceedings conducted by the European Commission are primarily written proceedings. Before adopting a decision, the Commission must address its objections in writing to the parties concerned, who may submit in writing their comments on these objections within a set time limit. In these written comments, the parties may request the opportunity ‘to develop their arguments’ at an oral hearing. The oral hearing is always ‘the oral hearing of the parties to whom a statement of objections has been addressed’. Third persons may, where appropriate, be allowed to attend the oral hearing and to express their views, but this is only secondary to the main purpose of the oral hearing. The chapter then considers a number of procedural steps that follow the oral hearing.