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Contents
- Preliminary Material
- Main Text
- Part I Introduction
- 1 Overview of EU Antitrust Procedure: Legal Framework, Institutional Design, and Decision-Making Process
- Preliminary Material
- 1 Purpose and scope
- 2 Main features of procedural laws exemplified in the EU procedural rules
- 3 Enforcement at EU level
- 3.1 The European Commission as an antitrust enforcement agency
- 3.2 Overview of the stages of the antitrust procedure and decision-making process before the European Commission
- 1.45
- 1.46
- 1.47
- 3.2.1 Investigative stage: inception of an investigation
- 3.2.2 Investigative stage: gathering evidence
- 3.2.3 Priority assessment
- 3.2.4 Formal opening of proceedings
- 3.2.5 Inter partes stage
- 1.84
- 1.85
- 3.2.5.1 Who is involved
- 3.2.5.2 Statement of objections, access to the file, oral hearing
- 3.2.5.3 Commission decisions: procedural steps, substantive outcomes of an antitrust investigation, and decision-making procedures
- 3.3 Independence and accountability of the Commission as an antitrust enforcer
- 3.4 The role of the EU Courts
- 3.5 Compliance with fundamental rights and principles
- 3.5.1 The debate in a nutshell
- 3.5.2 Guarantees for the exercise of fundamental rights in the context of EU antitrust enforcement
- 3.5.3 Increasing powers of the Hearing Officer
- 3.5.4 Transparency of the administrative proceedings
- 3.5.5 Internal checks and balances
- 3.5.6 The role of the EU Ombudsman
- 3.5.7 Effect and limitations of the internal checks and balances
- 3.5.8 Judicial review: the response of the judiciary
- 3.5.9 Continuing debate
- 4 EU antitrust enforcement at national level
- 5 The Commission as a global player in cooperation with authorities outside the EU
- 6 The rest of this book
- 1 Overview of EU Antitrust Procedure: Legal Framework, Institutional Design, and Decision-Making Process
- Part II Antitrust Investigations
- 2 Requests for Information and Sector Inquiries
- Preliminary Material
- 1 Introduction
- 2 Types of requests for information and importance in practice
- 3 Substantive requirements for requests for information
- 4 Procedural requirements for requests for information
- 5 Response to a request for information and duties of the addressees
- 6 The rights of addressees
- 7 Fines and penalty payments
- 8 Judicial review of requests for information
- 3 Inspections
- Preliminary Material
- 1 Introduction
- 2 Types of inspection
- 3 Inspection decision
- 4 Commission powers
- 5 Duties of the undertakings
- 6 Safeguards and limitations to the power to inspect
- 3.121
- 3.122
- 3.123
- 3.124
- 3.125
- 3.126
- 6.1 Documents of a non-business nature: privacy and data protection
- 6.2 The right to legal representation and the confidentiality of lawyer–client correspondence
- 6.3 Protection against self-incriminating questions
- 6.4 The principle of respect for rights of defence and the principle of good administration
- 7 Cooperation with other competition authorities
- 4 Power to Take Statements
- Preliminary Material
- 1 Introduction
- 2 What is an interview?
- 3 Initiation and preparation of an interview
- 4 Procedure for conducting an interview
- 5 Adding the statement to the file and preparing a non-confidential version
- 6 The power to take statements compared to other investigative tools
- 5 Leniency and Whistle-Blowers
- Preliminary Material
- 1 Introduction
- 2 Historical development of the leniency policy in the EU
- 3 Immunity and leniency from fines
- 3.1 Who can apply for leniency?
- 3.2 Thresholds and rewards
- 3.3 How to apply for leniency
- 3.4 Immunity and leniency conditions
- 4 Cooperation in the ECN
- 5 Whistle-blowers
- 2 Requests for Information and Sector Inquiries
- Part III Outcomes of an Investigation
- 6 Ordinary Procedure: From Initiation of Proceedings to the Adoption of a Final Decision
- Preliminary Material
- 1 Introduction
- 2 Initiation of proceedings
- 3 The statement of objections: content
- 4 The statement of objections: procedure
- 5 Altering the case after the statement of objections
- 6 The prohibition decision: content
- 7 The prohibition decision: procedure
- 8 The decision closing proceedings
- 7 Cartel Settlements and Antitrust Cooperation
- Preliminary Material
- 1 Introduction
- 2 Legislative amendments to the cartel settlements procedure
- 3 Key steps in the cartel settlement procedure
- 7.12
- 7.13
- 3.1 Investigative phase
- 3.2 Screening cases suitable for settlement
- 3.3 Initiation of proceedings
- 3.4 Settlement discussions
- 3.5 Streamlined access to documents in the file
- 3.6 Technical discussions
- 3.7 Reaching a common understanding
- 3.8 Internal Commission decision on range of fine
- 3.9 Communication of range of fines
- 3.10 Settlement submissions by the parties
- 3.11 Settlement statement of objections and parties’ confirmations
- 3.12 Settlement decision
- 3.13 The post-SO settlement procedure
- 4 Key features of the settlement procedure
- 5 Hybrid settlement proceedings
- 6 Judicial review of settlement decisions
- 7 Statistics on settlement decisions
- 8 The emergence of cooperation procedure in antitrust
- Annex
- 8 Commitments
- Preliminary Material
- 1 Introduction
- 2 Historical development
- 3 The relative advantages and disadvantages of commitment decisions over prohibition decisions
- 4 The procedural framework
- 5 Design of the commitments
- 6 Consequences of adoption of a commitment decision
- 9 Interim Measures
- Preliminary Material
- 1 Introduction
- 2 Interim measures in the Commission’s practice prior to adoption of Regulation 1/2003
- 3 Interim measures under Regulation 1/2003
- 4 Procedural requirements for adoption of interim measures
- 10 Handling and Rejecting Complaints
- Preliminary Material
- 1 Introduction
- 2 The scope of the Commission’s discretion in dealing with complaints
- 3 Filing a complaint and assessing its admissibility
- 4 Registration of admissible complaints, initial assessment, and possible outcome of the assessment
- 5 Reallocation of complaints
- 6 Procedure for rejecting complaints and complainants’ rights
- 7 Grounds for rejection
- 10.54
- 7.1 Lack of Union interest
- 7.1.1 Concept of Union interest
- 7.1.2 Lack of substantiation
- 7.1.3 Low or limited likelihood of finding an infringement
- 7.1.4 Limited impact on the internal market
- 7.1.5 Extent of the investigative measures is disproportionate in the light of the low or limited likelihood of finding an infringement or of its limited impact on the internal market
- 7.1.6 Competence of NCAs
- 7.1.7 Competence of national courts
- 7.1.8 The infringement has already ended
- 7.1.9 The target of a complaint has changed its behaviour
- 7.1.10 Rejecting complaints when a commitment decision is adopted
- 7.2 Rejection of complaints on substantive grounds
- 7.3 NCAs are dealing or have dealt with the same case
- 10.88
- 10.89
- 10.90
- 7.3.1 Scope and the meaning of the first paragraph of Article 13: another competition authority is dealing with the same practice
- 7.3.2 Scope of the second paragraph of Article 13: another authority has already dealt with the same case
- 7.3.3 Scope of Article 13 when another authority is dealing or has dealt with the same case on the basis of national competition law
- 8 Difference between rejecting a complaint and a finding of inapplicability of the competition rules pursuant to Article 10 of Regulation 1/2003
- 6 Ordinary Procedure: From Initiation of Proceedings to the Adoption of a Final Decision
- Part IV The Rights of Defence
- 11 An Overview of the Rights of Defence in EU Antitrust Proceedings
- Preliminary Material
- 1 Introduction
- 2 Sources of the rights of defence in EU law
- 3 Safeguards for the rights of defence at the investigative phase of EU antitrust proceedings
- 11.23
- 11.24
- 11.25
- 11.26
- 3.1 The duty to state reasons
- 3.2 Right to privacy (Art. 7 of the Charter)
- 3.3 The principle against self-incrimination
- 11.74
- 3.3.1 Evolution of the right in the EU and ECHR legal orders
- 3.3.2 The current state of protection under EU law
- 3.3.3 Application in EU competition proceedings
- 11.83
- 11.84
- 3.3.3.1 Simple requests for information pursuant to Article 18(2) of Regulation 1/2003
- 3.3.3.2 Requests for information by decision pursuant to Article 18(3) of Regulation 1/2003
- 3.3.3.3 Interviews pursuant to Article 19(1) of Regulation 1/2003
- 3.3.3.4 Requests for explanations in the context of inspections pursuant to Article 20(2)(e) of Regulation 1/2003
- 3.3.3.5 Requests in the context of inspections pursuant to Article 20(3) of Regulation 1/2003
- 3.3.3.6 Requests in the context of cooperation within the meaning of the Leniency Notice
- 3.3.3.7 Requests in the context of the settlement procedure
- 3.4 Right of access to a lawyer
- 3.5 Right to protection of business secrets and confidential information
- 3.6 The principle of protection of legal professional privilege
- 3.7 Right to a reasonable time limit to reply to RFIs
- 3.8 Right to an oral hearing during the investigative phase?
- 3.9 Admissibility of evidence obtained in disregard of safeguards for the rights of defence at the investigative phase
- 4 Application of the rights of defence in administrative proceedings before the European Commission
- 12 Access to the File in Antitrust Proceedings Before the European Commission
- Preliminary Material
- 1 Introduction
- 2 Legal basis and main provisions
- 3 Guiding principles
- 4 Beneficiaries
- 5 Scope
- 6 Timing
- 7 Methods of provision of access to the file
- 8 Procedure
- 9 Access to the file in antitrust settlement procedures
- 10 Use of information obtained through access to the file
- 13 Oral Hearing
- Preliminary Material
- 1 Introduction
- 2 The nature and purpose of the oral hearing
- 3 Who can request an oral hearing, and when or how?
- 4 Who attends or can attend the oral hearing?
- 5 Who speaks at the oral hearing?
- 6 Some further issues
- 7 After the oral hearing
- 8 State of play meetings and other ways of hearing parties orally
- 9 Why request an oral hearing?
- 11 An Overview of the Rights of Defence in EU Antitrust Proceedings
- Part V Fines and Periodic Penalties
- 14 Fines Imposed for Substantive Infringements of Articles 101 and 102 TFEU
- Preliminary Material
- 1 Introduction
- 2 Methodology for setting fines
- 14.8
- 14.9
- 2.1 The basic amount
- 2.2 Adjustments to the basic amount
- 14.42
- 14.43
- 14.44
- 2.2.1 Aggravating circumstances
- 2.2.2 Mitigating circumstances
- 2.2.3 Specific increase for deterrence
- 3 Adjustments to the fine
- 4 Judicial review of Commission decisions imposing fines
- 15 Fines for Procedural Infringements and Periodic Penalties
- Preliminary Material
- 1 Introduction
- 2 Procedural infringements
- 15.6
- 15.7
- 15.8
- 2.1 Failure to adequately reply to requests for information issued by the Commission following Article 17, 18(2) or 18(3)
- 2.2 Obstruction of inspection, incorrect answer to questions during inspection, and broken seals of inspection premises
- 2.3 Failure to comply with a decision ordering interim measures or with a commitment made binding pursuant to Article 9
- 3 Periodic penalty payments
- 4 Limitation periods
- 5 Judicial review
- 14 Fines Imposed for Substantive Infringements of Articles 101 and 102 TFEU
- Part VI Other Procedures Related to the Application of the Antitrust Rules
- 16 Infringements of the Antitrust Rules by the EU Member States
- Preliminary Material
- 1 Introduction
- 2 Article 106 TFEU in the EU enforcement system
- 2.1 Article 106 TFEU in conjunction with antitrust rules
- 2.2 Article 106 TFEU proceedings compared to antitrust proceedings enforcing Articles 101 and 102 TFEU
- 2.3 Article 106 TFEU and state aid rules
- 2.4 Article 106 TFEU and Article 4(3) TEU
- 2.5 Article 106 TFEU and infringements under Article 258 TFEU
- 2.6 Article 106 TFEU and national authorities
- 3 Start of investigation
- 4 Initiation of formal proceedings under Article 106(3) TFEU
- 5 Rights of parties
- 6 Closure of proceedings by finding an infringement or by administrative closure
- 7 Non-compliance with Article 106 TFEU decision
- 8 Review by the EU Courts
- 9 Handling of complaints
- 10 Procedure for finding an infringement of Article 4(3) TEU in combination with Article 101 or 102 TFEU
- 16 Infringements of the Antitrust Rules by the EU Member States
- Part VII Steps Following the Adoption of a Commission Decision
- 17 Publication of Antitrust Decisions and Other Documents
- Preliminary Material
- 1 Introduction
- 2 Scope of publication
- 2.1 Publication of decisions listed in Article 30 of Regulation 1/2003 in the Official Journal
- 2.2 Publication of other documents in the Official Journal
- 2.3 Publication on the DG Competition website
- 2.4 Distinction between publication in the Official Journal and web publication
- 2.5 What cannot be published
- 2.6 Distinction from access to file
- 2.7 Distinction from Regulation 1049/2001
- 3 Procedure for preparation of publication
- 18 Judicial Review of Commission Decisions and Judicial Protection
- Preliminary Material
- 1 Introduction
- 2 Action for annulment
- 18.7
- 18.8
- 2.1 Subject matter
- 2.2 Locus standi and interest in bringing the proceedings
- 2.3 Time limits
- 2.4 Grounds for annulment
- 2.5 Burden and standard of proof
- 2.6 Scope and standard of judicial review
- 2.6.1 Scope of judicial review
- 2.6.2 Standard of judicial review
- 2.6.3 The right to effective judicial protection
- 2.6.4 Standard of review of substantive legality
- 2.6.5 Review of procedural requirements
- 2.6.6 Challenges ahead
- 3 The Court’s unlimited jurisdiction
- 3.1 Legal basis and scope
- 3.2 Role in the judicial review of Commission decisions
- 3.3 Review of legality vs unlimited jurisdiction
- 3.4 Main characteristics
- 4 Action for failure to act
- 5 Objection of illegality
- 6 Action for damages
- 7 Interim measures
- 8 Preliminary references
- 9 Procedure before the General Court
- 9.1 Jurisdiction
- 9.2 Legal basis and the reform of the General Court
- 9.3 Representation
- 9.4 Written part of the procedure
- 9.5 New pleas in law, evidence, and modification of the application
- 9.6 Confidential treatment
- 9.7 Language of the case, translations, annexes
- 9.8 Measures of organization of procedure and measures of inquiry
- 9.9 Hearings
- 9.10 Intervention
- 9.11 Joinder of cases
- 9.12 Duration and the expedited procedure
- 9.13 Costs
- 9.14 Food for thought
- 10 Appeals before the Court of Justice
- 17 Publication of Antitrust Decisions and Other Documents
- Part VIII Cooperation in Antirust Enforcement
- 19 Cooperation Within the ECN and Strengthening of National Competition Authorities
- Preliminary Material
- 1 Introduction
- 2 European Competition Network
- 3 The ECN+ Directive
- 3.1 The legislative process
- 3.2 Subject matter, scope, and definitions
- 3.3 Independence and resources
- 3.4 Investigative powers
- 3.5 Decision-making powers
- 3.6 Fines and periodic penalty payments
- 3.7 Leniency
- 19.91
- 19.92
- 19.93
- 19.94
- 19.95
- 3.7.1 Immunity from fines
- 3.7.2 Reduction of fines
- 3.7.3 General conditions for leniency
- 3.7.4 Form of leniency statements
- 3.7.5 Markers for applications for immunity from fines
- 3.7.6 Summary applications
- 3.7.7 Interplay between applications for immunity from fines and sanctions on natural persons
- 3.8 Mutual assistance
- 3.9 Limitation periods and general provisions
- 20 Cooperation Between the Commission and the Courts of the EU Member States
- Preliminary Material
- 1 Introduction
- 2 The legal framework and the means of cooperation pursuant to Regulation 1/2003
- 3 National courts’ requests for information
- 4 National courts’ requests for the Commission’s opinion
- 5 Amicus curiae observations to national courts
- 6 Member States’ duty to forward copies of national courts’ written judgments to the Commission
- 7 Consistent application of EU competition law
- 8 Relationship between national courts and the Commission in the context of private enforcement of EU competition law
- 9 Other means for interaction
- 21 Cooperation Between the Courts of the EU Member States and the Court of Justice: The Preliminary Reference Procedure
- Preliminary Material
- 1 Introduction
- 2 The preliminary reference procedure and EU antitrust law
- 3 Sources of procedural rules governing the preliminary reference procedure
- 4 The stages of the preliminary ruling procedure
- 5 Rules governing requests for a preliminary reference
- 21.44
- 21.45
- 5.1 Who can make a preliminary reference?
- 5.2 When will a court or tribunal have a discretion to make a reference to the Court of Justice and when will it be under an obligation to do so?
- 5.3 Consequences for not complying with an obligation to refer
- 5.4 In what type of situations can references be made?
- 5.5 At what point in the national procedure should a preliminary reference be made?
- 5.6 Procedural requirements governing the content of the reference
- 5.7 Who may participate in preliminary reference proceedings?
- 5.8 Jurisdiction of the Court of Justice and the subject matter referred
- 6 Implications of the Court of Justice’s ruling for the national proceedings
- 7 Concluding remarks
- 22 International Cooperation
- Preliminary Material
- 1 Introduction
- 2 The legal framework
- 3 The Commission’s jurisdiction
- 4 International case cooperation: exchange of information
- 5 Technical cooperation between competition authorities
- 6 Cooperation with foreign courts
- 22.93
- 6.1 Legal basis for the Commission’s representation before foreign and international courts in competition law-related cases
- 6.2 The Commission’s interventions before US courts
- 6.3 The Commission’s interventions before the EFTA Court
- 6.4 The Commission’s intervention before UK courts after Brexit
- 6.5 Intervention of foreign competition authorities before the EU Courts
- 19 Cooperation Within the ECN and Strengthening of National Competition Authorities
- Part I Introduction
- Further Material