EU Competition Law: Rules Applicable to Antitrust Enforcement

8/12/2019 EU Competition Law: Rules Applicable to Antitrust Enforcement

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Situation as at1st July 2013

Rules Applicableto Antitrust

EnforcementVolume I:General Rules

EU Competition Law

Competition


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EU Competition LawRules Applicable to Antitrust Enforcement

Volume I: General RulesSituation as at 1st July 2013


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EU Competition law

Rules Applicable to Antitrust Enforcement General RulesSituation as at 1st July 2013

The texts which are reproduced in this booklet are also available on the internet:http://ec.europa.eu/competition/antitrust/legislation/legislation.html

This booklet has been produced for the facility of the reader. Only the texts published in theOfficial Journal of the European Union are authentic

Luxembourg, Publications Office of the European Union, 2013

ISBN 978-92-79-28608-7doi 10.2763/35312

European Union, 2013.Reproduction is authorised, provided the source is acknowledged.

ANTT01013


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Contents Pagenumber

A. Overview

Flowchart summarizing the procedure under the Council Regulation (EC) No 1/2003 8

B. Provisions of the Treaty on the Functioning of the EuropeanUnion (TFEU) and of the Treaty on European Union (TEU)

B.1 Core provisions 10

Article 101 of the TFEU



B.2 Other relevant provisions of the TFEU 12










B.3 Other relevant provisions of the TEU 16

Article 3 of the TEU

Article 4 of the TEU

B.4 Protocol 27 18

C. General rules

Framework Legislation

C.1 Council Regulation 1/2003/EC of 16 December 2002 on the implementation ofthe rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1/1,4.1.2003) amended by Council Regulation 411/2004/EC of 26 February 2004 (OJ L 68/1,6.3.2004) and Council Regulation 1419/2006/EC of 25 September 2006 (OJ L 269/128.9.2006) Consolidated version of 18 October 2006

20
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Implementing Legislation

C.2 Commission Regulation 773/2004/EC of 7 April 2004 relating to the conductof proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJL 123/18, 27.4.2004) amended by Commission Regulation 1792/2006/EC of 23October 2006 (OJ L 362/1, 20.12.2006) and by Commission Regulation 622/2008/ECof 30 June 2008 (OJ L 171/3, 1.7.2008) - Consolidated version of 1 July 2008

49

C.3 Decision 2011/695/EU of the President of the European Commission of 13October 2011 on the function and terms of reference of the hearing officerin certain competition proceedings (OJ L 275/29, 20.10.2011)

62

C.4 Regulation 1182/71/EEC, Euratom of the Council of 3 June 1971 determiningthe rules applicable to periods, dates and time limits (OJ L 124/1, 8.6.1971)

71

C.5 Regulation No 1/58/EEC, Euratom of determining the languages to be used bythe European Economic Community (OJ L 17, 6.10.1958, p. 385) - Consolidated

version of 1 January 2007

73

D. Notices and Guidelines

D.1 Commission Notice on the best practices for the conduct of proceedingsconcerning Articles 101 and 102 TFEU (OJ C 308/6, 20.10.2011)

78

D.2 Commission Notice on cooperation within the Network of CompetitionAuthorities (2004/C 101/03), (OJ C 101/43, 27.4.2004)

106

D.3 Commission Notice on the co-operation between the Commission and thecourts of the EU Member States in the application of Articles 81 and 82 EC (OJ C101/54, 27.4.2004)

117

D.4 Commission Notice on the definition of relevant market for the purposes ofCommunity competition law (OJ C 372, 9.12.1997)

128

D.5 Commission Notice on agreements of minor importance which do notappreciably restrict competition under Article 81(1) of the Treaty establishing theEuropean Community (de minimis) (OJ C 368/13, 22.12.2001)

137

D.6 Commission Notice: Guidelines on the effect on trade concept contained in

Articles 81 and 82 of the Treaty (OJ C 101/81, 27.4.2004)

140

D.7 Commission Notice: Guidelines on the application of Article 81(3) of theTreaty(OJ C 101/97, 27.4.2004)

156

D.8 Guidance on the Commission's enforcement priorities in applying Article82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (OJ C45/7, 24.2.2009)

178

D.9 Guidelines on the method of setting fines imposed pursuant to Article23(2)(a) of Regulation 1/2003/EC (OJ C 210/2, 1.9.2006)

192

D.10 Commission Notice on the handling of complaints by the Commission underArticles 81 and 82 of the EC Treaty (OJ C 101/65, 27.4.2004)

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D.11 Commission Notice on informal guidance relating to novel questionsconcerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidanceletters) (OJ C 101/78, 27.4.2004)

209

D.12 Commission Notice on the rules for access to the Commission file incases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of theEEA Agreement and Council Regulation (EC) No 139/2004, (OJ C 325/7, 22.12.2005)

212

D.13 Commission Notice on the conduct of settlement procedures in view of theadoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation1/2003/EC in cartel cases ( OJ C 167/1, 2.7.2008)

221

D.14 Commission Notice on Immunity from fines and reduction of fines incartel cases ( OJ C 298/17, 8.12.2006)

227

E. EEA Agreement

E.1 Articles 53-65 of the EEA Agreement (OJ L 1/3, 3.1.1994 and EFTA States'official gazettes, last updated version of 1.8.2007)

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E.2 Protocol 21 on the implementation of competition rules applicable toundertakings

239

E.3 Protocol 22 concerning the definition of "undertaking" and "turnover"(Article 56)

244

E.4 Protocol 23 concerning the cooperation between the surveillanceauthorities (Article 58)

246

F. International Cooperation

Overview of bilateral and multilateral agreements 254

G. Others G.1 Best Practices for the submission of economic evidence and datacollection in cases concerning the application of articles 101 and 102 TFEUand in merger cases (Staff working paper)

258

G.2 Antitrust correspondence (contact details etc.) 280
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I.A OVERVIEW


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* With the exception of cartel proceedings, where the opening of proceedings normally takes place simultaneously with the adoption of the

SO

The enforcement of Articles 101 & 102 TFEU inprohibition and commitment decisions: a roadmap

Origin of the case

Complaints Ex officio

Initial assessment:- investigative instruments may be used

- case may be allocated to another ECN member and vice versa- cases discarded which do not merit further action

- complainant informed of proposed course of action

Opening of proceedings*

State of Play meeting- shortly after opening

Investigation- including State of Play meeting at a sufficiently advanced stage

Statement of Objections(SO)

i f par t ies show wil l ingness to d iscus scommi tmen t s Case closed for

some/ all parties

Accessto file Complainantsinformed about

Commission's intention toreject the complaint

State of Play meeting

Oralhearing

Preliminary Assessment

State of Play meeting- offered either after parties

have replied to the SO orafter the Hearing

Submission ofcommitments

Case closed AdvisoryCommittee

Article 7prohibition

decision

Market test

State of Play meeting

Advisory Committee

Article 9 Commitmentdecision

Reply by parties to SO

If reply bycomplainant,

rejectiondecision is

taken

If no reply,complaint is

deemed to bewithdrawn

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I.B PROVISIONS OF THE

TREATY ON THEFUNCTIONING OF THEEUROPEAN UNION (TFEU)

AND OF THE TREATY ON

EUROPEAN UNION (TEU)


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B.1 Core provisions

A r t i c le 1 0 1 ( e x A r t i c l e 8 1 T EC)

1. The following shall be prohibited as incompatible with the internal market:all agreements between undertakings, decisions by associations ofundertakings and concerted practices which may affect trade betweenMember States and which have as their object or effect the prevention,restriction or distortion of competition within the internal market, and inparticular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading

conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other tradingparties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the otherparties of supplementary obligations which, by their nature or according tocommercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be

automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the

case of:

any agreement or category of agreements between undertakings,

any decision or category of decisions by associations of undertakings,

any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods orto promoting technical or economic progress, while allowing consumers afair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are notindispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition inrespect of a substantial part of the products in question.

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Any abuse by one or more undertakings of a dominant position within theinternal market or in a substantial part of it shall be prohibited asincompatible with the internal market in so far as it may affect tradebetween Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or otherunfair trading conditions;

(b) limiting production, markets or technical development to the prejudice ofconsumers;

(c) applying dissimilar conditions to equivalent transactions with othertrading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the otherparties of supplementary obligations which, by their nature or according tocommercial usage, have no connection with the subject of such contracts.

A r t i cl e 1 0 6 ( e x A r t i c le 8 6 T EC)

1. In the case of public undertakings and undertakings to which MemberStates grant special or exclusive rights, Member States shall neither enactnor maintain in force any measure contrary to the rules contained in theTreaties, in particular to those rules provided for in Article 18 and Articles101 to 109.

2. Undertakings entrusted with the operation of services of generaleconomic interest or having the character of a revenue-producingmonopoly shall be subject to the rules contained in the Treaties, inparticular to the rules on competition, in so far as the application of suchrules does not obstruct the performance, in law or in fact, of the particulartasks assigned to them. The development of trade must not be affected tosuch an extent as would be contrary to the interests of the Union.

3. The Commission shall ensure the application of the provisions of thisArticle and shall, where necessary, address appropriate directives ordecisions to Member States.

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B.2 Other relevant provisions of the TFEU

A r t i c le 3

1. The Union shall have exclusive competence in the following areas:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning

of the internal market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common

fisheries policy;

(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusionof an international agreement when its conclusion is provided for in alegislative act of the Union or is necessary to enable the Union toexercise its internal competence, or in so far as its conclusion mayaffect common rules or alter their scope.

A r t i c le 1 4 ( e x A r t i c l e 1 6 T EC)

Without prejudice to Article 4 of the Treaty on European Union or toArticles 93, 106 and 107 of this Treaty, and given the place occupied byservices of general economic interest in the shared values of the Unionas well as their role in promoting social and territorial cohesion, theUnion and the Member States, each within their respective powers andwithin the scope of application of the Treaties, shall take care thatsuch services operate on the basis of principles and conditions,particularly economic and financial conditions, which enable them tofulfil their missions. The European Parliament and the Council, actingby means of regulations in accordance with the ordinary legislativeprocedure, shall establish these principles and set these conditionswithout prejudice to the competence of Member States, incompliance with the Treaties, to provide, to commission and to fundsuch services.

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A r t i c le 3 7 ( e x A r t i c le 3 1 T EC)

1. Member States shall adjust any State monopolies of a commercialcharacter so as to ensure that no discrimination regarding the

conditions under which goods are procured and marketed existsbetween nationals of Member States.

The provisions of this Article shall apply to any body through which aMember State, in law or in fact, either directly or indirectly supervises,determines or appreciably inf luences imports or exports betweenMember States. These provisions shall likewise apply to monopoliesdelegated by the State to others.

2. Member States shall refrain from introducing any new measurewhich is contrary to the principles laid down in paragraph 1 or whichrestricts the scope of the articles dealing with the prohibition of customs

duties and quantitative restrictions between Member States.3. If a State monopoly of a commercial character has rules which aredesigned to make it easier to dispose of agricultural products or obtainfor them the best return, steps should be taken in applying the rulescontained in this Article to ensure equivalent safeguards for theemployment and standard of living of the producers concerned.


1. The appropriate regulations or directives to give effect to the

principles set out in Articles 101 and 102 shall be laid down by theCouncil, on a proposal from the Commission and after consulting theEuropean Parliament. 2. The regulations or directives referred to inparagraph 1 shall be designed in particular:

(a) to ensure compliance with the prohibitions laid down in Article101(1) and in Article 102 by making provision for fines and periodicpenalty payments;

(b) to lay down detailed rules for the application of Article 101(3),taking into account the need to ensure effective supervision on theone hand, and to simplify administration to the greatest possibleextent on the other;

(c) to define, if need be, in the various branches of the economy, thescope of the provisions of Articles 101 and 102;

(d) to define the respective functions of the Commission and of theCourt of Justice of the European Union in applying the provisions laiddown in this paragraph;

(e) to determine the relationship between national laws and theprovisions contained in this Section or adopted pursuant to thisArticle.

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A r t i cl e 1 0 4 ( e x A r t i c l e 8 4 T E C)

Until the entry into force of the provisions adopted in pursuance of Article103, the authorities in Member States shall rule on the admissibility ofagreements, decisions and concerted practices and on abuse of a dominantposition in the internal market in accordance with the law of their countryand with the provisions of Article 101, in particular paragraph 3, and ofArticle 102.

A r t i cl e 1 0 5 ( e x A r t i c l e 8 5 T E C)

1. Without prejudice to Article 104, the Commission shall ensure theapplication of the principles laid down in Articles 101 and 102. On applicationby a Member State or on its own initiative, and in cooperation with thecompetent authorities in the Member States, which shall give it theirassistance, the Commission shall investigate cases of suspectedinfringement of these principles. If it finds that there has been aninfringement, it shall propose appropriate measures to bring it to an end.

2. If the infringement is not brought to an end, the Commission shall recordsuch infringement of the principles in a reasoned decision. The Commissionmay publish its decision and authorise Member States to take themeasures, the conditions and details of which it shall determine, neededto remedy the situation.

3. The Commission may adopt regulations relating to the categories ofagreement in respect of which the Council has adopted a regulation or adirective pursuant to Article 103(2)(b).

A r t i cl e 11 9 ( e x A r t i c l e 4 TEC)

1. For the purposes set out in Article 3 of the Treaty on European Union, theactivities of the Member States and the Union shall include, as provided inthe Treaties, the adoption of an economic policy which is based on the closecoordination of Member States' economic policies, on the internal marketand on the definition of common objectives, and conducted in accordancewith the principle of an open market economy with free competition.

2. Concurrently with the foregoing, and as provided in the Treaties and inaccordance with the procedures set out therein, these activities shallinclude a single currency, the euro, and the definition and conduct of asingle monetary policy and exchange-rate policy the primary objective ofboth of which shall be to maintain price stability and, without prejudice tothis objective, to support the general economic policies in the Union, inaccordance with the principle of an open market economy with freecompetition.

3. These activities of the Member States and the Union shall entailcompliance with the following guiding principles: stable prices, sound publicfinances and monetary conditions and a sustainable balance of payments.

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A r t i c le 3 3 9 ( e x A r t i cl e 2 8 7 T EC)

The members of the institutions of the Union, the members of committees,and the officials and other servants of the Union shall be required, even after

their duties have ceased, not to disclose information of the kind covered bythe obligation of professional secrecy, in particular information aboutundertakings, their business relations or their cost components.

A r t i c le 3 4 6 ( e x A r t i c le 2 9 6 T EC)

1. The provisions of the Treaties shall not preclude the application of thefollowing rules:

(f) no Member State shall be obliged to supply information the disclosure ofwhich it considers contrary to the essential interests of its security;

(g) any Member State may take such measures as it considers necessary forthe protection of the essential interests of its security which are connectedwith the production of or trade in arms, munitions and war material; suchmeasures shall not adversely affect the conditions of competition in theinternal market regarding products which are not intended for specificallymilitary purposes.

2. The Council may, acting unanimously on a proposal from the Commission,make changes to the list, which it drew up on 15 April 1958, of the productsto which the provisions of paragraph 1(b) apply.

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B.3 Other relevant provisions of the TEU

A r t i c le 3 ( e x A r t i c l e 2 T EU )

1. The Union's aim is to promote peace, its values and the well-being of its peoples.

2. The Union shall offer its citizens an area of freedom, security and justice withoutinternal frontiers, in which the free movement of persons is ensured in conjunctionwith appropriate measures with respect to external border controls, asylum,immigration and the prevention and combating of crime.

3. The Union shall establish an internal market. It shall work for the sustainabledevelopment of Europe based on balanced economic growth and price stability, ahighly competitive social market economy, aiming at full employment and socialprogress, and a high level of protection and improvement of the quality of theenvironment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justiceand protection, equality between women and men, solidarity between generationsand protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity amongMember States.

It shall respect its rich cultural and linguistic diversity, and shall ensure thatEurope's cultural heritage is safeguarded and enhanced.

4. The Union shall establish an economic and monetary union whose currency is theeuro.

5. In its relations with the wider world, the Union shall uphold and promote itsvalues and interests and contribute to the protection of its citizens. It shallcontribute to peace, security, the sustainable development of the Earth, solidarityand mutual respect among peoples, free and fair trade, eradication of poverty andthe protection of human rights, in particular the rights of the child, as well as to thestrict observance and the development of international law, including respect forthe principles of the United Nations Charter.

6. The Union shall pursue its objectives by appropriate means commensuratewith the competences which are conferred upon it in the Treaties.

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A r t i cl e 4

1. In accordance with Article 5, competences not conferred upon the

Union in the Treaties remain with the Member States.

2. The Union shall respect the equality of Member States before theTreaties as well as their national identities, inherent in their fundamentalstructures, political and constitutional, inclusive of regional and localself-government. It shall respect their essential State functions,including ensuring the territorial integrity of the State, maintaining lawand order and safeguarding national security. In particular, nationalsecurity remains the sole responsibility of each Member State.

3. Pursuant to the principle of sincere cooperation, the Union and theMember States shall, in full mutual respect, assist each other in carryingout tasks which f low from the Treaties.

The Member States shall take any appropriate measure, general orparticular, to ensure fulfilment of the obligations arising out of theTreaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasksand refrain from any measure which could jeopardise the attainment ofthe Union's objectives.

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B.4 Protocol 27

Consolidated version of the Treaty on European Union - PROTOCOLS - Protocol(No 27) on the internal market and competition

Official Journal 115 , 09/05/2008 P. 0309 - 0309

P RO T OCO L ( N o 2 7 )

O N T H E I N T ER N A L M A R K ET A N D CO M P ET I T I O N

T H E H I G H CO N T R A CT I N G PA RT I ES ,

CONSIDERING that the internal market as set out in Article 3 of theTreaty on European Union includes a system ensuring that competitionis not distorted,

HAVE AGREED that:

To this end, the Union shall, if necessary, take action under theprovisions of the Treaties, including under Article 352 of the Treaty onthe Functioning of the European Union.

This protocol shall be annexed to the Treaty on European Union and tothe Treaty on the Functioning of the European Union.

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I.C GENERAL RULES


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This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

B COUNCIL REGULATION (EC) No 1/2003

of 16 December 2002

on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

(Text with EEA relevance)

(OJ L 1, 4.1.2003, p. 1)

Amended by:

Official Journal

No page date

M1 Council Regulation (EC) No 411/2004 of 26 February 2004 L 68 1 6.3.2004 M2 Council Regulation (EC) No 1419/2006 of 25 September 2006 L 269 1 28.9.2006

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COUNCIL REGULATION (EC) No 1/2003

of 16 December 2002

on the implementation of the rules on competition laid down inArticles 81 and 82 of the Treaty

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, andin particular Article 83 thereof,

Having regard to the proposal from the Commission ( 1),

Having regard to the opinion of the European Parliament ( 2),

Having regard to the opinion of the European Economic and SocialCommittee ( 3),

Whereas:

(1) In order to establish a system which ensures that competition inthe common market is not distorted, Articles 81 and 82 of theTreaty must be applied effectively and uniformly in theCommunity. Council Regulation No 17 of 6 February 1962,First Regulation implementing Articles 81 and 82 (*) of theTreaty ( 4), has allowed a Community competition policy todevelop that has helped to disseminate a competition culturewithin the Community. In the light of experience, however,

that Regulation should now be replaced by legislation designedto meet the challenges of an integrated market and a futureenlargement of the Community.

(2) In particular, there is a need to rethink the arrangements for applying the exception from the prohibition on agreements,which restrict competition, laid down in Article 81(3) of theTreaty. Under Article 83(2)(b) of the Treaty, account must betaken in this regard of the need to ensure effective supervision,on the one hand, and to simplify administration to the greatest possible extent, on the other.

(3) The centralised scheme set up by Regulation No 17 no longer secures a balance between those two objectives. It hampers appli-cation of the Community competition rules by the courts andcompetition authorities of the Member States, and the systemof notification it involves prevents the Commission from concen-trating its resources on curbing the most serious infringements. Italso imposes considerable costs on undertakings.

(4) The present system should therefore be replaced by a directlyapplicable exception system in which the competition authoritiesand courts of the Member States have the power to apply notonly Article 81(1) and Article 82 of the Treaty, which have directapplicability by virtue of the case-law of the Court of Justice of the European Communities, but also Article 81(3) of the Treaty.

B

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(1) OJ C 365 E, 19.12.2000, p. 284.(2) OJ C 72 E, 21.3.2002, p. 305.

(3) OJ C 155, 29.5.2001, p. 73.(*) The title of Regulation No 17 has been adjusted to take account of the

renumbering of the Articles of the EC Treaty, in accordance with Article12 of the Treaty of Amsterdam; the original reference was to Articles 85 and86 of the Treaty.

(4) OJ 13, 21.2.1962, p. 204/62. Regulation as last amended by Regulation (EC) No 1216/1999 (OJ L 148, 15.6.1999, p. 5).

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(5) In order to ensure an effective enforcement of the Communitycompetition rules and at the same time the respect of fundamentalrights of defence, this Regulation should regulate the burden of proof under Articles 81 and 82 of the Treaty. It should be for the party or the authority alleging an infringement of Article 81(1)and Article 82 of the Treaty to prove the existence thereof to therequired legal standard. It should be for the undertaking or asso-ciation of undertakings invoking the benefit of a defence againsta finding of an infringement to demonstrate to the required legalstandard that the conditions for applying such defence aresatisfied. This Regulation affects neither national rules on thestandard of proof nor obligations of competition authorities andcourts of the Member States to ascertain the relevant facts of acase, provided that such rules and obligations are compatible withgeneral principles of Community law.

(6) In order to ensure that the Community competition rules areapplied effectively, the competition authorities of the Member States should be associated more closely with their application.

To this end, they should be empowered to apply Community law.(7) National courts have an essential part to play in applying the

Community competition rules. When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to thevictims of infringements. The role of the national courts herecomplements that of the competition authorities of the Member States. They should therefore be allowed to apply Articles 81 and82 of the Treaty in full.

(8) In order to ensure the effective enforcement of the Communitycompetition rules and the proper functioning of the cooperationmechanisms contained in this Regulation, it is necessary to obligethe competition authorities and courts of the Member States toalso apply Articles 81 and 82 of the Treaty where they applynational competition law to agreements and practices which mayaffect trade between Member States. In order to create a level playing field for agreements, decisions by associations of under-takings and concerted practices within the internal market, it isalso necessary to determine pursuant to Article 83(2)(e) of theTreaty the relationship between national laws and Communitycompetition law. To that effect it is necessary to provide thatthe application of national competition laws to agreements,decisions or concerted practices within the meaning of Article81(1) of the Treaty may not lead to the prohibition of suchagreements, decisions and concerted practices if they are notalso prohibited under Community competition law. The notionsof agreements, decisions and concerted practices are autonomousconcepts of Community competition law covering the coordi-nation of behaviour of undertakings on the market as interpreted by the Community Courts. Member States should not under thisRegulation be precluded from adopting and applying on their territory stricter national competition laws which prohibit or impose sanctions on unilateral conduct engaged in by under-takings. These stricter national laws may include provisionswhich prohibit or impose sanctions on abusive behaviour toward economically dependent undertakings. Furthermore, thisRegulation does not apply to national laws which imposecriminal sanctions on natural persons except to the extent thatsuch sanctions are the means whereby competition rules applyingto undertakings are enforced.

(9) Articles 81 and 82 of the Treaty have as their objective the protection of competition on the market. This Regulation,which is adopted for the implementation of these Treaty provisions, does not preclude Member States from implementingon their territory national legislation, which protects other legitimate interests provided that such legislation is compatible

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with general principles and other provisions of Community law.In so far as such national legislation pursues predominantly anobjective different from that of protecting competition on themarket, the competition authorities and courts of the Member States may apply such legislation on their territory. Accordingly,Member States may under this Regulation implement on their territory national legislation that prohibits or imposes sanctionson acts of unfair trading practice, be they unilateral or contractual. Such legislation pursues a specific objective, irre-spective of the actual or presumed effects of such acts on compe-tition on the market. This is particularly the case of legislationwhich prohibits undertakings from imposing on their trading partners, obtaining or attempting to obtain from them terms andconditions that are unjustified, disproportionate or without consid-eration.

(10) Regulations such as 19/65/EEC ( 1), (EEC) No 2821/71 ( 2), (EEC) No 3976/87 ( 3), (EEC) No 1534/91 ( 4), or (EEC) No 479/92 ( 5)empower the Commission to apply Article 81(3) of the Treaty byRegulation to certain categories of agreements, decisions by asso-ciations of undertakings and concerted practices. In the areasdefined by such Regulations, the Commission has adopted andmay continue to adopt so called block exemption Regulations by which it declares Article 81(1) of the Treaty inapplicable tocategories of agreements, decisions and concerted practices.Where agreements, decisions and concerted practices to whichsuch Regulations apply nonetheless have effects that are incompatible with Article 81(3) of the Treaty, the Commission and thecompetition authorities of the Member States should have the power to withdraw in a particular case the benefit of the block exemption Regulation.

(11) For it to ensure that the provisions of the Treaty are applied, theCommission should be able to address decisions to undertakings

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(1) Council Regulation No 19/65/EEC of 2 March 1965 on the application of Article 81(3) (The titles of the Regulations have been adjusted to takeaccount of the renumbering of the Articles of the EC Treaty, in accordancewith Article 12 of the Treaty of Amsterdam; the original reference was toArticle 85(3) of the Treaty) of the Treaty to certain categories of agreementsand concerted practices (OJ 36, 6.3.1965, p. 533). Regulation as last amended by Regulation (EC) No 1215/1999 (OJ L 148, 15.6.1999, p. 1).

(2) Council Regulation (EEC) No 2821/71 of 20 December 1971 on the appli-cation of Article 81(3) (The titles of the Regulations have been adjusted totake account of the renumbering of the Articles of the EC Treaty, inaccordance with Article 12 of the Treaty of Amsterdam; the originalreference was to Article 85(3) of the Treaty) of the Treaty to categories of agreements, decisions and concerted practices (OJ L 285, 29.12.1971, p. 46).Regulation as last amended by the Act of Accession of 1994.

(3) Council Regulation (EEC) No 3976/87 of 14 December 1987 on the appli-cation of Article 81(3) (The titles of the Regulations have been adjusted totake account of the renumbering of the Articles of the EC Treaty, inaccordance with Article 12 of the Treaty of Amsterdam; the originalreference was to Article 85(3) of the Treaty) of the Treaty to certain cate-gories of agreements and concerted practices in the air transport sector (OJL 374, 31.12.1987, p. 9). Regulation as last amended by the Act of Accessionof 1994.

(4) Council Regulation (EEC) No 1534/91 of 31 May 1991 on the application of Article 81(3) (The titles of the Regulations have been adjusted to takeaccount of the renumbering of the Articles of the EC Treaty, in accordancewith Article 12 of the Treaty of Amsterdam; the original reference was toArticle 85(3) of the Treaty) of the Treaty to certain categories of agreements,decisions and concerted practices in the insurance sector (OJ L 143, 7.6.1991, p. 1).

(5) Council Regulation (EEC) No 479/92 of 25 February 1992 on the application

of Article 81(3) (The titles of the Regulations have been adjusted to takeaccount of the renumbering of the Articles of the EC Treaty, in accordancewith Article 12 of the Treaty of Amsterdam; the original reference was toArticle 85(3) of the Treaty) of the Treaty to certain categories of agreements,decisions and concerted practices between liner shipping companies(Consortia) (OJ L 55, 29.2.1992, p. 3). Regulation amended by the Act of Accession of 1994.

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or associations of undertakings for the purpose of bringing to anend infringements of Articles 81 and 82 of the Treaty. Providedthere is a legitimate interest in doing so, the Commission shouldalso be able to adopt decisions which find that an infringementhas been committed in the past even if it does not impose a fine.This Regulation should also make explicit provision for theCommission's power to adopt decisions ordering interimmeasures, which has been acknowledged by the Court of Justice.

(12) This Regulation should make explicit provision for the Commis-sion's power to impose any remedy, whether behavioural or structural, which is necessary to bring the infringement effec-tively to an end, having regard to the principle of proportionality.Structural remedies should only be imposed either where there isno equally effective behavioural remedy or where any equallyeffective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changesto the structure of an undertaking as it existed before the infrin-gement was committed would only be proportionate where thereis a substantial risk of a lasting or repeated infringement thatderives from the very structure of the undertaking.

(13) Where, in the course of proceedings which might lead to anagreement or practice being prohibited, undertakings offer theCommission commitments such as to meet its concerns, theCommission should be able to adopt decisions which makethose commitments binding on the undertakings concerned.Commitment decisions should find that there are no longer grounds for action by the Commission without concludingwhether or not there has been or still is an infringement.Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States tomake such a finding and decide upon the case. Commitment

decisions are not appropriate in cases where the Commissionintends to impose a fine.

(14) In exceptional cases where the public interest of the Communityso requires, it may also be expedient for the Commission to adopta decision of a declaratory nature finding that the prohibition inArticle 81 or Article 82 of the Treaty does not apply, with a viewto clarifying the law and ensuring its consistent applicationthroughout the Community, in particular with regard to newtypes of agreements or practices that have not been settled inthe existing case-law and administrative practice.

(15) The Commission and the competition authorities of the Member States should form together a network of public authoritiesapplying the Community competition rules in close cooperation.For that purpose it is necessary to set up arrangements for infor-mation and consultation. Further modalities for the cooperationwithin the network will be laid down and revised by theCommission, in close cooperation with the Member States.

(16) Notwithstanding any national provision to the contrary, theexchange of information and the use of such information inevidence should be allowed between the members of thenetwork even where the information is confidential. This infor-mation may be used for the application of Articles 81 and 82 of the Treaty as well as for the parallel application of nationalcompetition law, provided that the latter application relates tothe same case and does not lead to a different outcome. Whenthe information exchanged is used by the receiving authority to

impose sanctions on undertakings, there should be no other limitto the use of the information than the obligation to use it for the purpose for which it was collected given the fact that thesanctions imposed on undertakings are of the same type in allsystems. The rights of defence enjoyed by undertakings in thevarious systems can be considered as sufficiently equivalent.

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However, as regards natural persons, they may be subject tosubstantially different types of sanctions across the varioussystems. Where that is the case, it is necessary to ensure thatinformation can only be used if it has been collected in a waywhich respects the same level of protection of the rights of defence of natural persons as provided for under the nationalrules of the receiving authority.

(17) If the competition rules are to be applied consistently and, at thesame time, the network is to be managed in the best possibleway, it is essential to retain the rule that the competition autho-rities of the Member States are automatically relieved of their competence if the Commission initiates its own proceedings.Where a competition authority of a Member State is alreadyacting on a case and the Commission intends to initiate proceedings, it should endeavour to do so as soon as possible.Before initiating proceedings, the Commission should consult thenational authority concerned.

(18) To ensure that cases are dealt with by the most appropriateauthorities within the network, a general provision should belaid down allowing a competition authority to suspend or closea case on the ground that another authority is dealing with it or has already dealt with it, the objective being that each caseshould be handled by a single authority. This provision shouldnot prevent the Commission from rejecting a complaint for lack of Community interest, as the case-law of the Court of Justice hasacknowledged it may do, even if no other competition authorityhas indicated its intention of dealing with the case.

(19) The Advisory Committee on Restrictive Practices and DominantPositions set up by Regulation No 17 has functioned in a verysatisfactory manner. It will fit well into the new system of decen-tralised application. It is necessary, therefore, to build upon therules laid down by Regulation No 17, while improving the effec-tiveness of the organisational arrangements. To this end, it would be expedient to allow opinions to be delivered by written procedure. The Advisory Committee should also be able to actas a forum for discussing cases that are being handled by thecompetition authorities of the Member States, so as to helpsafeguard the consistent application of the Community compe-tition rules.

(20) The Advisory Committee should be composed of representativesof the competition authorities of the Member States. For meetingsin which general issues are being discussed, Member Statesshould be able to appoint an additional representative. This iswithout prejudice to members of the Committee being assisted by other experts from the Member States.

(21) Consistency in the application of the competition rules alsorequires that arrangements be established for cooperation between the courts of the Member States and the Commission.This is relevant for all courts of the Member States that applyArticles 81 and 82 of the Treaty, whether applying these rules inlawsuits between private parties, acting as public enforcers or asreview courts. In particular, national courts should be able to ask the Commission for information or for its opinion on pointsconcerning the application of Community competition law. TheCommission and the competition authorities of the Member States should also be able to submit written or oral observationsto courts called upon to apply Article 81 or Article 82 of the

Treaty. These observations should be submitted within theframework of national procedural rules and practices includingthose safeguarding the rights of the parties. Steps should therefore be taken to ensure that the Commission and the competitionauthorities of the Member States are kept sufficiently wellinformed of proceedings before national courts.

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(22) In order to ensure compliance with the principles of legalcertainty and the uniform application of the Community compe-tition rules in a system of parallel powers, conflicting decisionsmust be avoided. It is therefore necessary to clarify, inaccordance with the case-law of the Court of Justice, theeffects of Commission decisions and proceedings on courts andcompetition authorities of the Member States. Commitmentdecisions adopted by the Commission do not affect the power of the courts and the competition authorities of the Member States to apply Articles 81 and 82 of the Treaty.

(23) The Commission should be empowered throughout theCommunity to require such information to be supplied as isnecessary to detect any agreement, decision or concerted practice prohibited by Article 81 of the Treaty or any abuse of a dominant position prohibited by Article 82 of the Treaty. Whencomplying with a decision of the Commission, undertakingscannot be forced to admit that they have committed an infrin-gement, but they are in any event obliged to answer factualquestions and to provide documents, even if this informationmay be used to establish against them or against another under-taking the existence of an infringement.

(24) The Commission should also be empowered to undertake suchinspections as are necessary to detect any agreement, decision or concerted practice prohibited by Article 81 of the Treaty or anyabuse of a dominant position prohibited by Article 82 of theTreaty. The competition authorities of the Member Statesshould cooperate actively in the exercise of these powers.

(25) The detection of infringements of the competition rules isgrowing ever more difficult, and, in order to protect competitioneffectively, the Commission's powers of investigation need to besupplemented. The Commission should in particular beempowered to interview any persons who may be in possessionof useful information and to record the statements made. In thecourse of an inspection, officials authorised by the Commissionshould be empowered to affix seals for the period of timenecessary for the inspection. Seals should normally not beaffixed for more than 72 hours. Officials authorised by theCommission should also be empowered to ask for any infor-mation relevant to the subject matter and purpose of theinspection.

(26) Experience has shown that there are cases where business recordsare kept in the homes of directors or other people working for anundertaking. In order to safeguard the effectiveness of inspections, therefore, officials and other persons authorised bythe Commission should be empowered to enter any premiseswhere business records may be kept, including private homes.However, the exercise of this latter power should be subject tothe authorisation of the judicial authority.

(27) Without prejudice to the case-law of the Court of Justice, it isuseful to set out the scope of the control that the national judicialauthority may carry out when it authorises, as foreseen bynational law including as a precautionary measure, assistancefrom law enforcement authorities in order to overcome possibleopposition on the part of the undertaking or the execution of thedecision to carry out inspections in non-business premises. Itresults from the case-law that the national judicial authority

may in particular ask the Commission for further informationwhich it needs to carry out its control and in the absence of which it could refuse the authorisation. The case-law alsoconfirms the competence of the national courts to control theapplication of national rules governing the implementation of coercive measures.

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(28) In order to help the competition authorities of the Member Statesto apply Articles 81 and 82 of the Treaty effectively, it isexpedient to enable them to assist one another by carrying outinspections and other fact-finding measures.

(29) Compliance with Articles 81 and 82 of the Treaty and thefulfilment of the obligations imposed on undertakings and asso-ciations of undertakings under this Regulation should beenforceable by means of fines and periodic penalty payments.To that end, appropriate levels of fine should also be laiddown for infringements of the procedural rules.

(30) In order to ensure effective recovery of fines imposed on asso-ciations of undertakings for infringements that they havecommitted, it is necessary to lay down the conditions on whichthe Commission may require payment of the fine from themembers of the association where the association is notsolvent. In doing so, the Commission should have regard to therelative size of the undertakings belonging to the association and

in particular to the situation of small and medium-sized enter- prises. Payment of the fine by one or several members of anassociation is without prejudice to rules of national law that provide for recovery of the amount paid from other membersof the association.

(31) The rules on periods of limitation for the imposition of fines and periodic penalty payments were laid down in Council Regulation(EEC) No 2988/74 ( 1), which also concerns penalties in the fieldof transport. In a system of parallel powers, the acts, which mayinterrupt a limitation period, should include procedural stepstaken independently by the competition authority of a Member State. To clarify the legal framework, Regulation (EEC) No2988/74 should therefore be amended to prevent it applying to

matters covered by this Regulation, and this Regulation shouldinclude provisions on periods of limitation.

(32) The undertakings concerned should be accorded the right to beheard by the Commission, third parties whose interests may beaffected by a decision should be given the opportunity of submitting their observations beforehand, and the decisionstaken should be widely publicised. While ensuring the rights of defence of the undertakings concerned, in particular, the right of access to the file, it is essential that business secrets be protected.The confidentiality of information exchanged in the network should likewise be safeguarded.

(33) Since all decisions taken by the Commission under this Regu-lation are subject to review by the Court of Justice in accordancewith the Treaty, the Court of Justice should, in accordance withArticle 229 thereof be given unlimited jurisdiction in respect of decisions by which the Commission imposes fines or periodic penalty payments.

(34) The principles laid down in Articles 81 and 82 of the Treaty, asthey have been applied by Regulation No 17, have given acentral role to the Community bodies. This central role should be retained, whilst associating the Member States more closelywith the application of the Community competition rules. Inaccordance with the principles of subsidiarity and proportionalityas set out in Article 5 of the Treaty, this Regulation does not go beyond what is necessary in order to achieve its objective, whichis to allow the Community competition rules to be applied effec-tively.

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(1) Council Regulation (EEC) No 2988/74 of 26 November 1974 concerninglimitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport andcompetition (OJ L 319, 29.11.1974, p. 1).

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(35) In order to attain a proper enforcement of Community compe-tition law, Member States should designate and empower autho-rities to apply Articles 81 and 82 of the Treaty as publicenforcers. They should be able to designate administrative aswell as judicial authorities to carry out the various functionsconferred upon competition authorities in this Regulation. ThisRegulation recognises the wide variation which exists in the public enforcement systems of Member States. The effects of Article 11(6) of this Regulation should apply to all competitionauthorities. As an exception to this general rule, where a prose-cuting authority brings a case before a separate judicial authority,Article 11(6) should apply to the prosecuting authority subject tothe conditions in Article 35(4) of this Regulation. Where theseconditions are not fulfilled, the general rule should apply. In anycase, Article 11(6) should not apply to courts insofar as they areacting as review courts.

(36) As the case-law has made it clear that the competition rules applyto transport, that sector should be made subject to the procedural

provisions of this Regulation. Council Regulation No 141 of 26 November 1962 exempting transport from the application of Regulation No 17 ( 1) should therefore be repealed and Regu-lations (EEC) No 1017/68 ( 2), (EEC) No 4056/86 ( 3) and (EEC) No 3975/87 ( 4) should be amended in order to delete the specific procedural provisions they contain.

(37) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of FundamentalRights of the European Union. Accordingly, this Regulationshould be interpreted and applied with respect to those rightsand principles.

(38) Legal certainty for undertakings operating under the Communitycompetition rules contributes to the promotion of innovation andinvestment. Where cases give rise to genuine uncertainty becausethey present novel or unresolved questions for the application of these rules, individual undertakings may wish to seek informalguidance from the Commission. This Regulation is without prejudice to the ability of the Commission to issue suchinformal guidance,

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(1) OJ 124, 28.11.1962, p. 2751/62; Regulation as last amended by Regulation No 1002/67/EEC (OJ 306, 16.12.1967, p. 1).

(2) Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ L 175,23.7.1968, p. 1). Regulation as last amended by the Act of Accession of 1994.

(3) Council Regulation (EEC) No 4056/86 of 22 December 1986 laying downdetailed rules for the application of Articles 81 and 82 (The title of theRegulation has been adjusted to take account of the renumbering of theArticles of the EC Treaty, in accordance with Article 12 of the Treaty of

Amsterdam; the original reference was to Articles 85 and 86 of the Treaty) of the Treaty to maritime transport (OJ L 378, 31.12.1986, p. 4). Regulation aslast amended by the Act of Accession of 1994.

(4) Council Regulation (EEC) No 3975/87 of 14 December 1987 laying downthe procedure for the application of the rules on competition to undertakingsin the air transport sector (OJ L 374, 31.12.1987, p. 1). Regulation as lastamended by Regulation (EEC) No 2410/92 (OJ L 240, 24.8.1992, p. 18).

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HAS ADOPTED THIS REGULATION:

CHAPTER I

PRINCIPLES

Article 1

Application of Articles 81 and 82 of the Treaty

1. Agreements, decisions and concerted practices caught by Article81(1) of the Treaty which do not satisfy the conditions of Article 81(3)of the Treaty shall be prohibited, no prior decision to that effect beingrequired.

2. Agreements, decisions and concerted practices caught by Article81(1) of the Treaty which satisfy the conditions of Article 81(3) of theTreaty shall not be prohibited, no prior decision to that effect beingrequired.

3. The abuse of a dominant position referred to in Article 82 of theTreaty shall be prohibited, no prior decision to that effect beingrequired.

Article 2

Burden of proof

In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringementof Article 81(1) or of Article 82 of the Treaty shall rest on the party or

the authority alleging the infringement. The undertaking or associationof undertakings claiming the benefit of Article 81(3) of the Treaty shall bear the burden of proving that the conditions of that paragraph arefulfilled.

Article 3

Relationship between Articles 81 and 82 of the Treaty and nationalcompetition laws

1. Where the competition authorities of the Member States or national courts apply national competition law to agreements,decisions by associations of undertakings or concerted practices withinthe meaning of Article 81(1) of the Treaty which may affect trade between Member States within the meaning of that provision, theyshall also apply Article 81 of the Treaty to such agreements,decisions or concerted practices. Where the competition authorities of the Member States or national courts apply national competition law toany abuse prohibited by Article 82 of the Treaty, they shall also applyArticle 82 of the Treaty.

2. The application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States butwhich do not restrict competition within the meaning of Article 81(1) of the Treaty, or which fulfil the conditions of Article 81(3) of the Treatyor which are covered by a Regulation for the application of Article 81(3) of the Treaty. Member States shall not under this Regulation be precluded from adopting and applying on their territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings.

3. Without prejudice to general principles and other provisions of Community law, paragraphs 1 and 2 do not apply when the competition

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authorities and the courts of the Member States apply national merger control laws nor do they preclude the application of provisions of national law that predominantly pursue an objective different fromthat pursued by Articles 81 and 82 of the Treaty.

CHAPTER II

POWERS

Article 4

Powers of the Commission

For the purpose of applying Articles 81 and 82 of the Treaty, theCommission shall have the powers provided for by this Regulation.

Article 5

Powers of the competition authorities of the Member States

The competition authorities of the Member States shall have the power to apply Articles 81 and 82 of the Treaty in individual cases. For this purpose, acting on their own initiative or on a complaint, they may takethe following decisions:

requiring that an infringement be brought to an end,

ordering interim measures,

accepting commitments,

imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditionsfor prohibition are not met they may likewise decide that there are nogrounds for action on their part.

Article 6

Powers of the national courts

National courts shall have the power to apply Articles 81 and 82 of theTreaty.

CHAPTER III

COMMISSION DECISIONS

Article 7

Finding and termination of infringement

1. Where the Commission, acting on a complaint or on its owninitiative, finds that there is an infringement of Article 81 or of Article 82 of the Treaty, it may by decision require the undertakingsand associations of undertakings concerned to bring such infringementto an end. For this purpose, it may impose on them any behavioural or

structural remedies which are proportionate to the infringementcommitted and necessary to bring the infringement effectively to anend. Structural remedies can only be imposed either where there is noequally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertakingconcerned than the structural remedy. If the Commission has a

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legitimate interest in doing so, it may also find that an infringement has been committed in the past.

2. Those entitled to lodge a complaint for the purposes of paragraph

1 are natural or legal persons who can show a legitimate interest andMember States.

Article 8

Interim measures

1. In cases of urgency due to the risk of serious and irreparabledamage to competition, the Commission, acting on its own initiativemay by decision, on the basis of a prima facie finding of infringement,order interim measures.

2. A decision under paragraph 1 shall apply for a specified period of time and may be renewed in so far this is necessary and appropriate.

Article 9

Commitments

1. Where the Commission intends to adopt a decision requiring thatan infringement be brought to an end and the undertakings concernedoffer commitments to meet the concerns expressed to them by theCommission in its preliminary assessment, the Commission may bydecision make those commitments binding on the undertakings. Such

a decision may be adopted for a specified period and shall conclude thatthere are no longer grounds for action by the Commission.

2. The Commission may, upon request or on its own initiative,reopen the proceedings:

(a) where there has been a material change in any of the facts on whichthe decision was based;

(b) where the undertakings concerned act contrary to their commitments; or

(c) where the decision was based on incomplete, incorrect or misleading information provided by the parties.

Article 10

Finding of inapplicability

Where the Community public interest relating to the application of Articles 81 and 82 of the Treaty so requires, the Commission, actingon its own initiative, may by decision find that Article 81 of the Treatyis not applicable to an agreement, a decision by an association of under-takings or a concerted practice, either because the conditions of Article81(1) of the Treaty are not fulfilled, or because the conditions of Article81(3) of the Treaty are satisfied.

The Commission may likewise make such a finding with reference toArticle 82 of the Treaty.

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CHAPTER IV

COOPERATION

Article 11Cooperation between the Commission and the competition

authorities of the Member States

1. The Commission and the competition authorities of the Member States shall apply the Community competition rules in close coop-eration.

2. The Commission shall transmit to the competition authorities of the Member States copies of the most important documents it hascollected with a view to applying Articles 7, 8, 9, 10 and Article 29(1). At the request of the competition authority of a Member State, theCommission shall provide it with a copy of other existing documentsnecessary for the assessment of the case.

3. The competition authorities of the Member States shall, whenacting under Article 81 or Article 82 of the Treaty, inform theCommission in writing before or without delay after commencing thefirst formal investigative measure. This information may also be madeavailable to the competition authorities of the other Member States.

4. No later than 30 days before the adoption of a decision requiringthat an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption Regulation, the compe-tition authorities of the Member States shall inform the Commission. Tothat effect, they shall provide the Commission with a summary of thecase, the envisaged decision or, in the absence thereof, any other document indicating the proposed course of action. This information

may also be made available to the competition authorities of the other Member States. At the request of the Commission, the acting compe-tition authority shall make available to the Commission other documentsit holds which are necessary for the assessment of the case. The infor-mation supplied to the Commission may be made available to thecompetition authorities of the other Member States. National compe-tition authorities may also exchange between themselves informationnecessary for the assessment of a case that they are dealing withunder Article 81 or Article 82 of the Treaty.

5. The competition authorities of the Member States may consult theCommission on any case involving the application of Community law.

6. The initiation by the Commission of proceedings for the adoptionof a decision under Chapter III shall relieve the competition authoritiesof the Member States of their competence to apply Articles 81 and 82of the Treaty. If a competition authority of a Member State is alreadyacting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority.

Article 12

Exchange of information

1. For the purpose of applying Articles 81 and 82 of the Treaty theCommission and the competition authorities of the Member States shallhave the power to provide one another with and use in evidence anymatter of fact or of law, including confidential information.

2. Information exchanged shall only be used in evidence for the purpose of applying Article 81 or Article 82 of the Treaty and inrespect of the subject-matter for which it was collected by the trans-mitting authority. However, where national competition law is appliedin the same case and in parallel to Community competition law and

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does not lead to a different outcome, information exchanged under thisArticle may also be used for the application of national competition law.

3. Information exchanged pursuant to paragraph 1 can only be usedin evidence to impose sanctions on natural persons where: the law of the transmitting authority foresees sanctions of a similar

kind in relation to an infringement of Article 81 or Article 82 of theTreaty or, in the absence thereof,

the information has been collected in a way which respects the samelevel of protection of the rights of defence of natural persons as provided for under the national rules of the receiving authority.However, in this case, the information exchanged cannot be used by the receiving authority to impose custodial sanctions.

Article 13

Suspension or termination of proceedings

1. Where competition authorities of two or more Member States havereceived a complaint or are acting on their own initiative under Article81 or Article 82 of the Treaty against the same agreement, decision of an association or practice, the fact that one authority is dealing with thecase shall be sufficient grounds for the others to suspend the proceedings before them or to reject the complaint. The Commissionmay likewise reject a complaint on the ground that a competitionauthority of a Member State is dealing with the case.

2. Where a competition authority of a Member State or theCommission has received a complaint against an agreement, decisionof an association or practice which has already been dealt with byanother competition authority, it may reject it.

Article 14

Advisory Committee

1. The Commission shall consult an Advisory Committee onRestrictive Practices and Dominant Positions prior to the taking of any decision under Articles 7, 8, 9, 10, 23, Article 24(2) and Article29(1).

2. For the discussion of individual cases, the Advisory Committeeshall be composed of representatives of the competition authorities of the Member States. For meetings in which issues other than individualcases are being discussed, an additional Member State representative

competent in competition matters may be appointed. Representativesmay, if unable to attend, be replaced by other representatives.

3. The consultation may take place at a meeting convened andchaired by the Commission, held not earlier than 14 days after dispatch of the notice convening it, together with a summary of thecase, an indication of the most important documents and a preliminarydraft decision. In respect of decisions pursuant to Article 8, the meetingmay be held seven days after the dispatch of the operative part of a draftdecision. Where the Commission dispatches a notice convening themeeting which gives a shorter period of notice than those specifiedabove, the meeting may take place on the proposed date in theabsence of an objection by any Member State. The AdvisoryCommittee shall deliver a written opinion on the Commission's preli-minary draft decision. It may deliver an opinion even if some membersare absent and are not represented. At the request of one or severalmembers, the positions stated in the opinion shall be reasoned.

4. Consultation may also take place by written procedure. However,if any Member State so requests, the Commission shall convene ameeting. In case of written procedure, the Commission shall

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determine a time-limit of not less than 14 days within which theMember States are to put forward their observations for circulation toall other Member States. In case of decisions to be taken pursuant toArticle 8, the time-limit of 14 days is replaced by seven days. Wherethe Commission determines a time-limit for the written procedure whichis shorter than those specified above, the proposed time-limit shall beapplicable in the absence of an objection by any Member State.

5. The Commission shall take the utmost account of the opiniondelivered by the Advisory Committee. It shall inform the Committeeof the manner in which its opinion has been taken into account.

6. Where the Advisory Committee delivers a written opinion, thisopinion shall be appended to the draft decision. If the AdvisoryCommittee recommends publication of the opinion, the Commissionshall carry out such publication taking into account the legitimateinterest of undertakings in the protection of their business secrets.

7. At the request of a competition authority of a Member State, the

Commission shall include on the agenda of the Advisory Committeecases that are being dealt with by a competition authority of a Member State under Article 81 or Article 82 of the Treaty. The Commission mayalso do so on its own initiative. In either case, the Commission shallinform the competition authority concerned.

A request may in particular be made by a competition authority of aMember State in respect of a case where the Commission intends toinitiate proceedings with the effect of Article 11(6).

The Advisory Committee shall not issue opinions on cases dealt with bycompetition authorities of the Member States. The Advisory Committeemay also discuss general issues of Community competition law.

Article 15

Cooperation with national courts

1. In proceedings for the application of Article 81 or Article 82 of the Treaty, courts of the Member States may ask the Commission totransmit to them information in its possession or its opinion onquestions concerning the application of the Community competitionrules.

2. Member States shall forward to the Commission a copy of anywritten judgment of national courts deciding on the application of Article 81 or Article 82 of the Treaty. Such copy shall be forwardedwithout delay after the full written judgment is notified to the parties.

3. Competition authorities of the Member States, acting on their owninitiative, may submit written observations to the national courts of their Member State on issues relating to the application of Article 81 or Article 82 of the Treaty. With the permission of the court inquestion, they may also submit oral observations to the nationalcourts of their Member State. Where the coherent application of Article 81 or Article 82 of the Treaty so requires, the Commission,acting on its own initiative, may submit written observations to courtsof the Member States. With the permission of the court in question, itmay also make oral observations.

For the purpose of the preparation of their observations only, thecompetition authorities of the Member States and the Commissionmay request the relevant court of the Member State to transmit or ensure the transmission to them of any documents necessary for theassessment of the case.

4. This Article is without prejudice to wider powers to make obser-vations before courts conferred on competition authorities of theMember States under the law of their Member State.

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Article 16

Uniform application of Community competition law

1. When national courts rule on agreements, decisions or practicesunder Article 81 or Article 82 of the Treaty which are already thesubject of a Commission decision, they cannot take decisions runningcounter to the decision adopted by the Commission. They must alsoavoid giving decisions which would conflict with a decision contem- plated by the Commission in proceedings it has initiated. To that effect,the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obli-gations under Article 234 of the Treaty.

2. When competition authorities of the Member States rule onagreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision,they cannot take decisions which would run counter to the decisionadopted by the Commission.

CHAPTER V

POWERS OF INVESTIGATION

Article 17

Investigations into sectors of the economy and into types of agreements

1. Where the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restrictedor distorted within the common market, the Commission may conductits inquiry into a particular sector of the economy or into a particular type of agreements across various sectors. In the course of that inquiry,the Commission may request the undertakings or associations of under-takings concerned to supply the information necessary for giving effectto Articles 81 and 82 of the Treaty and may carry out any inspectionsnecessary for that purpose.

The Commission may in particular request the undertakings or asso-ciations of undertakings concerned to communicate to it all agreements,decisions and concerted practices.

The Commission may publish a report on the results of its inquiry into particular sectors of the economy or particular types of agreementsacross various sectors and invite comments from interested parties.

2. Articles 14, 18, 19, 20, 22, 23 and 24 shall apply mutatismutandis .

Article 18

Requests for information

1. In order to carry out the duties assigned to it by this Regulation,the Commission may, by simple request or by decision, require under-takings and associations of undertakings to provide all necessary infor-mation.

2. When sending a simple request for information to an undertakingor association of undertakings, the Commission shall state the legal basis and the purpose of the request, specify what information isrequired and fix the time-limit within which the information is to be provided, and the penalties provided for in Article 23 for supplyingincorrect or misleading information.

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3. Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the legal basis and the purpose of the request, specify what information isrequired and fix the time-limit within which it is to be provided. Itshall also indicate the penalties provided for in Article 23 andindicate or impose the penalties provided for in Article 24. It shallfurther indicate the right to have the decision reviewed by the Courtof Justice.

4. The owners of the undertakings or their representatives and, in thecase of legal persons, companies or firms, or associations having nolegal personality, the persons authorised to represent them by law or bytheir constitution shall supply the information requested on behalf of theundertaking or the association of undertakings concerned. Lawyers dulyauthorised to act may supply the information on behalf of their clients.The latter shall remain fully responsible if the information supplied isincomplete, incorrect or misleading.

5. The Commission shall without delay forward a copy of the simple

request or of the decision to the competition authority of the Member State in whose territory the seat of the undertaking or association of undertakings is situated and the competition authority of the Member State whose territory is affected.

6. At the request of the Commission the governments and compe-tition authorities of the Member States shall provide the Commissionwith all necessary information to carry out the duties assigned to it bythis Regulation.

Article 19

Power to take statements

1. In order to carry out the duties assigned to it by this Regulation,the Commission may interview any natural or legal person whoconsents to be interviewed for the purpose of collecting informationrelating to the subject-matter of an investigation.

2. Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Commission shall inform the compe-tition authority of the Member State in whose territory the interviewtakes place. If so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.

Article 20

The Commission's powers of inspection

1. In order to carry out the duties assigned to it by this Regulation,the Commission may conduct all necessary inspections of undertakingsand associations of undertakings.

2. The officials and other accompanying persons authorised by theCommission to conduct an inspection are empowered:

(a) to enter any premises, land and means of transport of undertakingsand associations of undertakings;

(b) to examine the books and other records related to the business,irrespective of the medium on which they are stored;

(c) to take or obtain in any form copies of or extracts from such booksor records;

(d) to seal any business premises and books or records for the periodand to the extent necessary for the inspection;

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(e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documentsrelating to the subject-matter and purpose of the inspection and torecord the answers.

3. The officials and other accompanying persons authorised by theCommission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the penalties provided for in Article 23 incase the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraph 2 of the present Article are incorrect or misleading. In goodtime before the inspection, the Commission shall give notice of theinspection to the competition authority of the Member State in whoseterritory it is to be conducted.

4. Undertakings and associations of undertakings are required tosubmit to inspections ordered by decision of the Commission. Thedecision shall specify the subject matter and purpose of the inspection,

appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decisionreviewed by the Court of Justice. The Commission shall take suchdecisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.

5. Officials of as well as those authorised or appointed by the compe-tition authority of the Member State in whose territory the inspection isto be conducted shall, at the request of that authority or of theCommission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoythe powers specified in paragraph 2.

6. Where the officials and other accompanying persons authorised bythe Commission find that an undertaking opposes an inspection ordered

pursuant to this Article, the Member State concerned shall afford themthe necessary assistance, requesting where appropriate the assistance of the police or of an equivalent enforcement authority, so as to enablethem to conduct their inspection.

7. If the assistance provided for in paragraph 6 requires authorisationfrom a judicial authority according to national rules, such authorisationshall be applied for. Such authorisation may also be applied for as a precautionary measure.

8. Where authorisation as referred to in paragraph 7 is applied for,the national judicial authority shall control that the Commission decisionis authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of theinspection. In its control of the proportionality of the coercivemeasures, the national judicial authority may ask the Commission,directly or through the Member State competition authority, for detailed explanations in particular on the grounds the Commission hasfor suspecting infringement of Articles 81 and 82 of the Treaty, as wellas on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity for theinspection nor demand that it be provided with the information in theCommission's file. The lawfulness of the Commission decision shall besubject to review only by the Court of Justice.

Article 21

Inspection of other premises

1. If a reasonable suspicion exists that books or other records relatedto the business and to the subject-matter of the inspection, which may be relevant to prove a serious violation of Article 81 or Article 82 of theTreaty, are being kept in any other premises, land and means of

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transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakingsconcerned, the Commission can by decis