- Enforcement and procedure — Enforcement by EU Commission — Enforcement of Articles 101 and 102 TFEU — European Competition Network — National Courts — National Competition Authorities (NCAs) — Cooperation with ECN — Court of Justice — General Court — Regulation 1/2003 — Transport
A. Substantive Provisions
1.01 The basic European Union (‘EU’) competition provisions applicable to businesses or undertakings are Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’).1 Both provisions are an important part of the EU legal order and pursue one of the main objectives of the TFEU and the Treaty on European Union (‘TEU’), namely that of achieving an internal market. While Title 1 of the TEU and Part One of the TFEU only refer to the establishment of (p. 4) the internal market as a key objective and no longer declare that ‘a system ensuring that competition...is not distorted’ is one of the stated objectives of the EU,2 a legally binding Protocol on the Internal Market and Competition which contained the previous wording was ultimately annexed to the Treaties, thus enabling the EU to take appropriate action to this end.3
1.02 Article 101(1) TFEU prohibits agreements and arrangements between undertakings that affect trade between Member States and which have as their object or effect the prevention, restriction, or distortion of competition within the EU.4 Article 102 TFEU prohibits abuses of a dominant position within the internal market by one or more undertakings. Apart from various actions listed in Article 102(2) TFEU, abuses may take the form of any conduct by a dominant undertaking that appreciably distorts competition or exploits customers in the market in question. The effective enforcement of Articles 101 and 102 TFEU is recognized as an ‘objective of general interest recognised by the Union’.5
1.03 The assessment of the effect of agreements and conduct on competition often involves a complex analysis of the facts, and the conclusions derived from these facts may differ significantly depending on the underlying economic theory and model employed. Establishing the most basic concepts in competition law, such as the relevant market, are often major challenges that require very specific data and sophisticated analytical tools.6 Competition authorities are increasingly confronted with the need to investigate such complex cases, which require in-depth fact-finding and rigorous economic and empirical analysis.7 Due to the increasing importance of economics in complex cases, the European Commission (‘Commission’) often (p. 5) requests substantial economic data, and parties often submit arguments based on complex economic theories or provide empirical analysis. In order to streamline the submission and assessment of such evidence, the Commission published in 2011 ‘Best Practices’ that outline the criteria that economic and econometric analysis should fulfil and explain how they will be dealt with.8
1.04 The shift from the traditional approach towards a more economic-oriented assessment to ensure quality and the key role of economic advice in enforcement and policy making has been a key objective of the Commission in recent years.9 Further, competition law procedures often make it necessary for the public authorities to take economic policy decisions based on public interest considerations and social welfare objectives which fall outside national courts’ traditional sphere of activity, as they are better placed to deal with private damages actions for breaches of antitrust rules.10 Unlike a normal commercial dispute, where to some extent the parties can determine the rules of the game, where Articles 101 and 102 TFEU are concerned, the parties are bound by the public interest aim of these provisions with a view to guaranteeing the maintenance of a system that ensures that competition is (p. 6) not distorted.11 Furthermore, EU competition law extends beyond the interests of any one Member State and seeks to attain specific economic objectives on a much greater scale.12 All these features, together with the principle of limited intervention laid down in Article 103 TFEU and the principle that the Commission’s administrative practice must be appropriate to the prevailing circumstances, are reflected in the rules and procedural practices according to which the Commission and the EU Courts have applied substantive competition law.13
B. Procedural Rules
(b) lay down detailed rules for the application of Article 101(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
1.06 On the basis of that provision, the Council adopted a series of regulations which define in detail the procedure applicable to competition matters, and has entrusted the application of that procedure to the Commission. The Council also authorized the Commission to adopt supplementary procedural rules.
1.07 On 1 May 2004, Regulation 1/200314 entered into force and modernized the procedural rules contained in the First Regulation implementing Articles 81 and 82 of the Treaty, commonly known as Regulation 17.15 Regulation 1/2003 is the result of a comprehensive reform process that the Commission started more than a decade ago with the adoption of the White Paper on modernization of the rules implementing Articles  and  TFEU.16 The key features of this process were the following:
• The abolition of the practice of notifying business agreements to the Commission, enabling the Commission to focus its resources on the important fight against cartels and other serious violations of the antitrust rules.
• The empowerment of national competition authorities (‘NCAs’) and courts to apply EU antitrust rules in their entirety, so that there are multiple enforcers and therefore wider application of the EU antitrust rules.
• A more level playing field for cross-border businesses, as all competition enforcers, including NCAs and national courts, are obliged to apply EU antitrust rules to cases that affect trade between Member States.
• Close cooperation between the Commission and national competition authorities in the European Competition Network (‘ECN’).
• Enhanced enforcement tools for the Commission so that it is better equipped to detect and address breaches of the antitrust rules.17
1.08 In order to complement Regulation 1/2003, following extensive consultations the Commission adopted the ‘Modernization Package’ which, with respect to procedural matters, includes the following:18
(p. 8) • Commission Regulation 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles  and  [TFEU].19 Regulation 773/2004 contains detailed rules regarding, in particular, the initiation of proceedings, oral statements, complaints, hearings of parties, access to the file, and the handling of confidential information in antitrust procedures conducted by the Commission. In 2008, this implementing Regulation was modified when the Commission introduced the settlement procedure in cartel cases.20
• Commission Notice on cooperation within the network of competition authorities (‘ECN Cooperation Notice’).21 The ECN Cooperation Notice sets out the main pillars of cooperation between the Commission and the competition authorities of the Member States in the European Competition Network (‘ECN’). It also spells out the principles for sharing case work between the members of the network. In this respect, the ECN Cooperation Notice follows the Joint Statement of the Council and the Commission, which was issued on the day when Regulation 1/2003 was adopted.22 It provides for particular arrangements regarding the interface between exchanges of information between authorities pursuant to Articles 11(2) and (3) as well as Article 12 of Regulation 1/2003 and the operation of leniency programmes. The NCAs signed a statement in which they declared that they would abide by the principles set out in the Commission Notice.23
• Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles  and  [TFEU] (‘National Courts Cooperation Notice’).24 The notice was intended to serve as a practical tool for national judges who apply Articles 101 and 102 TFEU in accordance with Regulation 1/2003. It brings together the relevant case law of the ECJ up to 2004, thus clarifying the procedural context in which national judges are operating. Particular attention is given to the situation where the national court deals with a case at the same time or after the Commission and where national judges ask the Commission for an opinion or to supply information which it holds. In addition, it created the possibility for the Commission to submit written and oral observations to the national courts in the interest of coherent application. The National Courts Cooperation Notice spells out how cooperation mechanisms work.
• Commission Notice on the handling of complaints by the Commission under Articles  and  [TFEU].25 This Notice starts by providing general information on the work sharing (p. 9) of the different enforcers and invites potential complainants to make an informed choice of the authority where they will lodge their complaint or file their claim (whether the Commission, a national court, or an NCA) in the light of the case allocation criteria. The bulk of the notice contains explanations of the Commission’s assessment of complaints in the field of antitrust and the procedures applicable. The notice also includes an indicative deadline of four months, within which the Commission endeavours to inform complainants whether or not it intends to conduct a full investigation of a complaint.
• Commission Notice on informal guidance relating to novel questions concerning Articles  and  [TFEU] that arise in individual cases (Guidance Letters).26 The goal of Regulation 1/2003 is to enable the Commission to concentrate its enforcement action on the detection of serious infringements. The abolition of the notification system is a crucial element in this context. However, in a limited number of cases, where a genuinely novel question concerning Articles 101 and 102 TFEU arises, it would also seem reasonable for the Commission, subject to its other enforcement priorities, to provide guidance to undertakings in writing (guidance letter). The notice sets out details about this instrument.
1.09 It should be noted that the Modernization Package did not affect the existing enabling block exemption regulations which remain in force. Thus, Council Regulations 19/65/EEC,27 (EEC) 2821/71,28 (EEC) 487/2009,29 (EEC) 1534/91,30 or (EEC) 246/200931 all empower the Commission to apply Article 101(3) TFEU by Regulation to certain categories of agreements, decisions taken by associations of undertakings, and concerted practices. In the areas defined by such Regulations, the Commission has adopted and may continue to adopt ‘block’ exemption regulations, by which it declares Article 101(1) TFEU to be inapplicable to certain categories of agreements, decisions, and concerted practices. In addition, a number of Commission notices and guidelines remain fully applicable alongside Regulation 1/2003.32
1.10 Under Regulation 1/2003, the Commission is jointly competent with NCAs to apply Article 101 and 102 TFEU, unless it initiates proceedings for the adoption of a Commission decision under Regulation 1/2003.33 By enabling NCAs and national courts to apply Articles 101 and 102 TFEU in full, Regulation 1/2003 has removed the principal obstacles to the prosecution of infringements of Articles 101 and 102 TFEU at the Member State level. (p. 10) On the one hand, Article 35 of Regulation 1/2003 obliges the Member States to designate the competition authority or authorities responsible for the application of Articles 101 and 102 TFEU and to take the measures necessary to empower those authorities to apply those Articles. On the other hand, the Member States remain free to organize their system of public enforcement. In this regard, Regulation 1/2003 recognizes the wide variety of public enforcement systems existing in the Member States,34 which is acceptable as long as Member States can ensure that their NCAs have the necessary resources to be represented on the Advisory Committee,35 provide assistance in inspections conducted by the Commission in their territory,36 and undertake inspections requested by the Commission.37
1.11 Article 3(1) of Regulation 1/2003 provides that where an NCA or national court applies national competition law to agreements, decisions of undertakings, or concerted practices within the meaning of Article 101(1) TFEU which may affect trade between Member States or any abuse prohibited by Article 102 TFEU, they must apply Article 101 or 102 TFEU. When dealing with an agreement, decision, or practice within the meaning of Article 101(1) TFEU which may affect trade between Member States or an abuse prohibited by Article 102 TFEU, NCAs will thus have the choice of either applying just Articles 101 or 102 TFEU, or applying both national competition law and Articles 101 or 102 TFEU.38 When NCAs of the Member States rule on agreements, decisions, or practices under Articles 101 or 102 TFEU which are already the subject of a Commission decision, they cannot take decisions which would run counter to that adopted by the Commission.39 In the same vein, when national courts rule on agreements, decisions, or practices under Article 101 or 102 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the latter.40 The NCAs’ powers to take decisions are circumscribed by Regulation 1/2003. They may require that an infringement be brought to an end, order interim measures, accept commitments, and impose fines, but they may not adopt non-infringement decisions like those the Commission may adopt under Article 10 of Regulation 1/2003.41 The underlying idea is that the Commission and the NCAs should have parallel competences and together should form a network of authorities applying Articles 101 and 102 TFEU in close cooperation.
1.12 In fact, NCAs may have stronger powers than the Commission under Regulation 1/2003. Thus, whereas Regulation 1/2003 only empowers the Commission to impose fines on undertakings for infringements of Articles 101 and 102 TFEU, Article 5 of the Regulation also allows NCAs to impose ‘any other penalty provided for in their national law’, including imprisonment or criminal sanctions on natural persons. With regard to the application of national competition law, the (p. 11) obligation to apply Articles 101 and 102 TFEU does not exist where the NCAs and national courts apply national merger control rules. Nor does Regulation 1/2003 preclude the application of provisions of national law that predominantly pursue an objective different from that pursued by Articles 101 and 102 TFEU.42 Member States can apply national legislation that protects legitimate interests other than the protection of competition in the market, provided that such legislation is compatible with general principles and other provisions of EU law.43
2. Special regimes
1.13 Initially, the Commission’s powers under Regulation 17 to enforce the competition rules did not apply to the transport sector, since Council Regulation 141 retroactively excluded this sector from the application of the procedural rules.44 Over the years, however, the Council adopted rules for the application of Articles 101 and 102 TFEU to road, rail and inland waterway transport,45 maritime transport,46 and air transport47 (‘Council Transport Regulations’).
(p. 12) 1.14 Regulation 1/2003 brought about a highly desirable simplification of a previously somewhat confusing situation.48 In essence, all transport sectors are now governed entirely by Regulation 1/2003.
EU Merger Control Regulation
1.15 Regulation 1/2003 does not apply to concentrations as defined in Article 3 of Regulation 139/2004,49 except in relation to joint ventures that do not have an EU dimension and which have as their object or effect the coordination of the competitive behaviour of undertakings that remain independent.50 Regulation 139/2004 provides for the prior notification of concentrations with an EU dimension and is particularly rigorous from the procedural point of view, laying down very strict time limits which have to be observed by the Commission. The Council Regulation is supplemented by very detailed rules on notifications and hearings.51
Other procedures for the application of Articles 101 and 102 TFEU
Article 104 TFEU
1.16 Article 104 TFEU requires Member States’ authorities to apply Articles 101 (in particular paragraph 3) and 102 TFEU where the EU Council has not adopted Regulations under Article 103 TFEU giving effect to Articles 101 and 102. These powers are limited, transitional, and cease to exist on the entry into force of the implementing provisions adopted under Article 103 TFEU. While the adoption of Regulation 17 had already curtailed the scope of this provision considerably, Regulation 1/2003 and further amendments in recent years have virtually made Article 104 TFEU obsolete.52 For example, as indicated above, in the maritime transport sector, Regulation 1/2003 now also applies to tramp vessel service and cabotage services, although it did not remove from Member States’ authorities the powers derived from Article 103 to enforce Articles 101 and 102 TFEU.
Article 105 TFEU
1.17 Article 105(1) TFEU confers upon the Commission a general supervisory role for competition matters,53 although Article 105(2) TFEU could be construed as limiting the effectiveness of the power granted to the Commission by stating that if the (p. 13) infringement is not brought to an end, the Commission may merely record it in a reasoned decision which it may publish and authorize Member States to take the measures needed to remedy the situation. Despite this, in the past the Commission has acted in a number of proceedings on the basis of Article 105, particularly those involving airline alliances.54
Article 4 third paragraph, second subparagraph TFEU [former Article 10, second paragraph EC] in connection with Articles 101 and 102 TFEU55
1.18 While it is true that Articles 101 and 102 TFEU are primarily aimed at undertakings and do not cover measures adopted by Member States by legislation or regulations, Member States may require or encourage undertakings to adopt restrictive agreements or concerted practices prohibited under Article 101 TFEU or to engage in abusive practices contrary to Article 102 TFEU. For example, they may do this by imposing minimum or maximum prices for goods or services; adopting discriminatory taxation measures; imposing regulatory rules that make it difficult for undertakings to enter markets; or operating restrictive licensing regimes for particular economic activities.56 The EU Courts have consistently held that Article 4, third paragraph, second subparagraph TFEU (former Article 10, second paragraph EC) imposes a duty on Member States not to maintain or to adopt measures which deprive these provisions of their effectiveness.57 Member States may not enact measures enabling private undertakings to escape from the constraints imposed by Articles 101 and 102 TFEU. In the current case law, the Court (p. 14) considers that a State measure is liable to negate the effectiveness of the competition rules in three situations:
(1) where a Member State requires, or favours, the adoption of agreements, decisions of associations of undertakings, or concerted practices contrary to Article 101 TFEU;
(2) where a Member State reinforces the effects of such conduct; and
(3) where a Member State deprives its own rules of their legislative character by delegating to private economic operators the responsibility for taking decisions affecting the economic sphere.58
1.19 In procedural terms, EU law does not provide for a particular procedure against Member States for not fulfilling their obligations under Article 4, third paragraph, second subparagraph in connection with Articles 101 and/or 102 TFEU. A complainant could request the Commission to direct a request to the Member State to comply with its obligations under the TFEU and, if need be, to initiate infringement proceedings against it.59 In this case, the relationship between the complainant and the Commission is governed by the Commission Communication on relations with the complainant in respect of infringements of EU law.60 To what extent a complainant is able to challenge a refusal to initiate proceedings before the EU Courts is subject to debate. The ECJ stated that the Commission has the right but no obligation to commence proceedings under Article 258 TFEU; it would have a discretionary power precluding the right of individuals to require it to adopt a particular position and to bring an action for annulment against its refusal to take action.61 If the Commission considers that a Member State has failed to fulfil an obligation under the TFEU, it delivers a reasoned opinion on the matter after giving the Member State concerned the opportunity to submit its observations. If the Member State does not comply with the opinion within the time allowed, the Commission is entitled, but not obliged, to apply to the ECJ for a declaration establishing the failure to fulfil an obligation of which the Member State is accused.62 The EU Courts are also likely to reject an action under Article 265 TFEU in respect of the (p. 15) failure to act. It would be possible to challenge a failure to take a decision or to define a position, but not the adoption of a measure different from that desired or considered necessary by those concerned. In this context, the General Court (‘GC’) has noted that the action for failure to act under Article 265 TFEU is contingent on the institution concerned being under an obligation to act, so that its alleged failure to act is contrary to the TFEU. Yet this is not the case here, since whether or not the procedure in question is initiated is at the Commission’s discretion.63
1.20 However, it is questionable whether the discretionary power of the Commission must be excluded from the outset from any judicial review. A refusal by the Commission to act against a Member State contains a legal assessment, which is capable of producing legal effects within the meaning of Article 263 TFEU. It terminates proceedings governed by a Communication of the Commission and it may contain an assessment of the Commission on the compatibility of national law with EU law. The purpose of the legal challenge would probably not be to oblige the Commission to initiate proceedings, since this is considered as coming within the scope of the Commission’s discretionary power,64 but rather to annul the legal assessment of the Commission according to which it decided not to investigate the complaint.65
3. Limitation periods66
1.21 Article 25 of Regulation 1/2003 replaced the rules formerly contained in Regulation 2988/74,67 which laid down limitation periods both for proceedings and for the enforcement of sanctions under the EU competition rules. It establishes limitation periods for action on the part of the Commission against competition law infringements: three years for provisions concerning requests for information or the conduct of inspections, and five years for all other infringements. Article 26 of Regulation 1/2003 provides that the limitation period for enforcing fines and periodic penalty payments is five years.68
1.22 Case law is an important source of EU law. The sometimes imprecise, incomplete, or excessively general nature of the provisions of the TFEU and the fact that the instruments containing secondary legislation are often flawed, aided and abetted by political compromise and the linguistic and legal diversity of the EU, offers the EU Courts an opportunity to establish what the law is. In short, they fill the gaps where neither primary nor secondary law has provided an adequate solution to the problems caused by the development of the EU. In carrying out this quasi-legislative task, the EU Courts use very dynamic interpretative methods and resort extensively to general principles of law. For example, the ECJ has recognized that although the Commission is not a ‘tribunal’ within the meaning of Article 6 of the European Convention on Human Rights (‘ECHR’),69 the observance of fundamental rights forms part of the EU legal order.70 Regulation 1/2003 specifically states that it respects the fundamental rights and observes the principles recognized, in particular, by the Charter of Fundamental Rights which is now part of the TFEU with all legally binding effects.71 Regulation 1/2003, which spells out a number of guarantees on which undertakings may rely during the investigation stage,72 must be interpreted and applied with respect to those rights and principles. The main provisions of the Charter that are relevant in the context of EU antitrust enforcement are contained in Article 7 (respect for private life, home, and communications); Article 41 (right to good administration, including inter alia the right to be heard and the right to have access to one’s own case file); Article 47 (right to an effective remedy and to a fair trial); Article 48 (presumption of innocence and right of defence); Article 49 (principles of legality and proportionality of criminal offences and penalties); and Article 50 (right not to be tried or punished twice in criminal proceedings for the same criminal offence).73
(p. 17) 1.23 The case law of the EU Courts has also developed a series of general principles inspired by the legal traditions of the different Member States,74 which must be applied together with the Treaty provisions and secondary legislation. EU competition procedure takes all of these principles into account, which guide the conduct of authorities responsible for ensuring compliance with the competition rules.75 It should be noted, however, that not every procedural irregularity will be sufficient to vitiate a decision. As a general principle of EU law, a person seeking the annulment of an administrative decision on the grounds of a procedural irregularity must be able to show at least the possibility that the outcome would have been different but for the irregularity complained of.76
1.24 At the same time, in recent years, fundamental rights invoked under the ECHR have steadily grown in importance.77 This has caused the EU Courts to pay increasing regard to the case law of the European Court of Human Rights (‘ECtHR’). One of the recurring themes is how far the EU system for judicial review of decisions by the Commission imposing fines in competition cases is compatible with Article 6(1) of the ECHR. In a recent judgment, the ECtHR had the occasion to apply these principles to a case in which the Italian national competition authority had imposed a fine in an antitrust enforcement case.78 The decision was confirmed on appeal. The Italian national competition authority is (like the Commission) an integrated authority that adopts decisions imposing fines, subject to a two-tier judicial control. While every system has its particularities, the institutional set-up in this case is thus not very dissimilar from the EU system. In this case, the ECtHR ruled that Article 6 ECHR was complied with in particular in view of the circumstance that the decisions of the administrative (p. 18) competition authority were subject to judicial review, in which it was assessed whether the competition authority had used its powers appropriately; and with respect to fines, the court could verify the suitability of the sanction and had the power to change the amount imposed.79
1.25 Based on a dataset of 207 competition judgments delivered by the GC between 1 September 2000 and 30 September 2010, it has been found that provisions of the ECHR have been cited by the GC in 23.8 per cent of cases, almost a quarter of its competition judgments.80 Allegedly, the limited number of references obtained in relation to the Charter and the ECtHR case law (5.8 per cent and 2.3 per cent respectively) might have to do with the fact that the first lacked binding force until the adoption of the Lisbon Treaty in 2009. Regarding the latter, the GC and, more generally, the EU Courts have arguably sought to promote their own interpretation of fundamental rights.81 Additionally, two other general principles of EU law (ie the principles of ‘legal certainty’ and ‘legitimate expectations’) and of one general principle of EU competition law (the reference to ‘free and undistorted competition’ that appeared under Article 3(1)(g) of the EC Treaty) can be spotted in the competition judgments of the GC. It has turned out that the GC discusses general principles of law in approximately one-fifth to one-third of the competition cases which it deals with. The relatively high number of cases referring to the principles of legal certainty and legitimate expectations would suggest that both the parties and the GC pay close attention to general principles of EU law, which generally protect the subjects of EU competition law. In any event, it appears these indicators show that the EU Courts constitute a forum where fundamental values are discussed.82