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Contents
- Preliminary Material
- Main Text
- Part I Antitrust Rules (Articles 101 and 102 TFEU)
- 1 The Institutional Framework
- Preliminary Material
- I Sources of Procedure
- A Substantive Provisions
- B Procedural Rules
- 1.05
- 1.06
- 1 General regime
- 2 Special regimes
- Transport
- EU Merger Control Regulation
- Other procedures for the application of Articles 101 and 102 TFEU
- 1.16 Article 104 TFEU
- 1.17 Article 105 TFEU
- Article 4 third paragraph, second subparagraph TFEU [former Article 10, second paragraph EC] in connection with Articles 101 and 102 TFEU
- 1.18
- (1) Article 4 third paragraph, second subparagraph TFEU [former Article 10, second paragraph EC] in connection with Articles 101 and 102 TFEU
- (2) Article 4 third paragraph, second subparagraph TFEU [former Article 10, second paragraph EC] in connection with Articles 101 and 102 TFEU
- (3) Article 4 third paragraph, second subparagraph TFEU [former Article 10, second paragraph EC] in connection with Articles 101 and 102 TFEU
- 1.19
- 1.20
- 1.18
- 3 Limitation periods
- C General Principles and ECHR Case Law
- 1.22
- 1.23
- 1.24
- 1.25
- 1.26
- 1 The principle of proportionality
- 2 The principle of observance of the right to a fair hearing
- 3 The principle of presumption of innocence
- 4 The privilege against self-incrimination
- 5 The principle that administrative measures must be lawful
- 6 The principle of sound administration
- 7 The principle that undertakings’ business secrets must be protected
- 8 The right to respect for private and family life, home, and correspondence
- 9 The principle of the protection of legitimate expectations
- 10 The requirement of legal certainty
- II The Authorities Empowered to Apply the Competition Rules
- A Antitrust Law and Decentralization
- B The National Judicial Authorities
- C National Authorities for Upholding Competition
- D The Commission
- 1 The Commission’s monitoring powers
- 2 The internal procedure for the adoption of decisions
- General principles relating to Commission decision making
- Decision-making procedure in antitrust cases
- Involvement of other services
- Inter-service consultation prior to the adoption of measures reserved to the College
- Involvement of other services prior to the adoption of measures under the empowerment and sub-delegation procedures
- 1.89 Measures for which prior information of other services is obligatory
- Acts for which no provision of prior information to other services is required
- Special case of rejections of complaints on substantive grounds
- Consequences of a failure to observe the decision making formalities
- 3 Commission policy documents
- 4 Function and terms of reference of the Hearing Officer
- E The EU Courts
- 2 The Role of National Judicial Authorities
- 3 The Role of National Competition Authorities
- Preliminary Material
- A Introduction
- B Cooperation between the Commission and the NCAs
- 3.11
- 3.12
- 3.13
- 1 The European Competition Network (ECN)
- 2 The ECN and the cooperation mechanism
- 3 Suspension or termination of proceedings (Article 13 of Council Regulation 1/2003)
- 4 The role and the functioning of the Advisory Committee on Restrictive Practices and Monopolies
- C Principles and Procedures for Cooperation with Third Countries
- 4 The Organization of European Commission Proceedings
- Preliminary Material
- A Outline of the Main Types of Procedure
- B Use of Languages and Calculation of Time Limits
- C General Characteristics of Proceedings
- 1 The nature of the Commission and its proceedings
- 2 Burden of proof/standard of proof
- 4.36
- 4.37
- 4.38
- Standard of proof
- Assessment of evidence in cartel cases
- Guidance from the Leniency Notice
- Reliability of documentary evidence
- Reliability of corporate statements and witness statements
- Relying on fragmentary evidence together with inferences from market conduct
- Concept and reliability of indirect evidence
- Indirect evidence in the GIS cartel
- Indirect evidence in the Aragonesas judgment
- 3 Choice of priorities and role of complainants
- D Commission Decisions
- E Confidentiality
- 5 Opening of the File and of Proceedings; Transparency
- 6 Investigation of Cases (I): Leniency Policy
- Preliminary Material
- A Policy and Objectives
- B Procedures
- 6.10
- 6.11
- 1 Conditions for the granting of complete immunity
- 2 The procedure to obtain immunity
- 3 Partial or de facto immunity
- 4 The conditions for the grant of a leniency fine reduction
- 5 The procedure for obtaining a leniency fine reduction
- 6 Reasons for exclusion or loss of provisionally granted immunity or leniency
- 7 Cooperation outside the 2006 Notice
- C Protection from Access to Immunity/Leniency Materials versus Private Enforcement Action
- D Multijurisdictional Applications
- 7 Investigation of Cases (II): Formal Investigative Measures in General, Requests for Information, and Interviews
- Preliminary Material
- A Formal Investigative Measures in General
- 1 Principles applicable in the initial investigative phase
- 2 The obligations of undertakings
- 3 Persons concerned by investigatory measures
- 4 Extraterritoriality and cooperation with other competition authorities
- 5 Retroactivity of the Commission’s investigative powers
- 6 The choice of investigative measures
- 7 Cooperation with Member States’ authorities
- 8 Consequences of non-compliance
- B Requests for Information
- C The Reply
- D Interviews and Oral Statements
- 8 Investigation of Cases (III): Inspections
- Preliminary Material
- A Overview
- B Types of Inspections
- 1 Alternatives
- 2 Simple inspections
- 3 Inspections by decision
- 4 Surprise inspections
- C Representation of Undertakings during Inspections
- D The Commission’s Ordinary Powers during Inspections
- 8.35
- 8.36
- 8.37
- 1 Access to premises, land, and means of transport of undertakings or associations of undertakings
- 2 Examination of books and other business records
- 3 Taking of copies and extracts of records in any form
- 4 Sealing of business premises, books, or records for the period and to the extent necessary for the inspection
- 5 Request for oral explanations on facts or documents relating to the subject matter and purpose of the inspection
- E The Commission’s Power to Inspect other Premises
- F Cooperation between the Commission and the NCAs
- G The Conduct of Inspections
- 9 Procedural Infringements: Fines and Periodic Penalty Payments
- 10 Procedures to Establish The Existence of an Infringement
- Preliminary Material
- I Introduction
- II The Inter Partes Stage: Rights of Defence and the Formal Adoption of Decisions
- 10.18
- A The Statement of Objections
- B The Granting of Access to the File
- C The Reply to the Statement of Objections
- D The Remaining Stages of the Procedure until the Adoption of a Decision
- III Settlement Procedures
- A Origin and Context
- B Policy Objectives: Rewards and Advantages
- C Settlement Discussions
- D Confidentiality Issues in Settlement Cases
- 11 Infringement Decisions and Penalties
- Preliminary Material
- I General Content of Infringement Decisions
- II Penalties
- A Introduction
- B Fines
- 1 Quantitative limits: the 10 per cent cap
- 2 Calculation: the Commission’s Fining Guidelines
- 11.41
- 11.42
- The determination of the basic amount
- Value of sales
- Gravity factor (percentage value)
- Duration factor
- Additional amount
- Adjustments to the basic amount
- Aggravating circumstances
- Mitigating circumstances
- Deterrence multiplier
- Improper gains
- Application of the 10 per cent cap and possible further adjustments: settlements and leniency
- Inability to pay (‘ITP’)
- 3 Final amount and judicial review
- 4 Ne bis in idem
- 5 The payment of fines and interim measures
- C Periodic Penalty Payments
- 12 Rejection of Complaints
- Preliminary Material
- A Introduction
- B The Treatment of Complaints
- C Reasons for Rejecting Complaints
- D Rejection Procedure
- 13 Voluntary Adjustments, Commitments, Finding of Inapplicability, Informal Guidance
- Preliminary Material
- I Voluntary Adjustments
- II Commitments
- A The Purpose and Main Aspects of Commitment Decisions
- B The Procedure
- C The Commitments
- D The Procedural Rights
- E The Reopening of Proceedings. The Consequences of Non-Compliance
- F Review of Commitment Decisions
- G Effects of Commitment Decisions
- III Finding of Inapplicability
- IV Informal Guidance
- 14 Other Special Procedures
- 15 Steps Following the Adoption of a Formal Decision. Judicial Review
- Preliminary Material
- I Monitoring of Formal Decisions
- 15.01
- A Infringement Decisions
- 1 Collection of fines and periodic penalty payments
- 2 Monitoring of compliance with ‘injunctions’
- II Closing of the Proceedings and Closing or Shelving of the File
- III Court Proceedings Concerning the Application of EU Competition Law
- 1 The Institutional Framework
- Part II Control of Concentrations
- 16 General Issues: Scope of Control
- Preliminary Material
- A Introduction
- B Basic Principles of Procedure under the Merger Control Regulation
- C Competent Authorities in the Merger Control Area
- D Referral of Concentrations
- 1 Basic principles
- 2 Referral in favour of NCAs prior to notification of the operation (Article 4(4) of the Merger Control Regulation)
- 3 Referral in favour of the Commission prior to notification of the operation (Article 4(5) of the Merger Control Regulation)
- 4 Post-notification referral of the operation in favour of NCAs (Article 9 of the Merger Control Regulation)
- 5 Post-notification referrals to the European Commission (Article 22 of the Merger Control Regulation)
- E Scope of the Merger Control Regulation: Concentrations with an EU Dimension
- 16.67
- 1 ‘Concentration’ as defined in Article 3 of the Merger Control Regulation
- 2 EU dimension
- 17 Procedures
- Preliminary Material
- A Notification
- B Key Procedural Deadlines
- C Pre-Notification and First Phase
- 1 Pre-notification and waivers
- 2 The first phase
- 17.28
- 17.29
- Filing and completeness of the notification
- Appointment of case team
- Market analysis: the ‘market test’
- Meetings—State of Play meetings, meetings with competitors, and triangular meetings
- First phase decisions
- Publication of decisions
- Revocation or amendment of a first-phase decision
- Withdrawal of the notification: the right to a new notification
- D Second Phase
- 1 Initiating proceedings: Article 6(1)(c) proceedings and fixing the timetable
- 2 The statement of objections and the parties’ observations
- 3 Access to the file by the notifying parties
- 4 Access to the file under Regulation 1049/2001
- 5 The right to be heard: the formal hearing
- 6 Consultation with the Member States: the Advisory Committee
- 7 Decisions at the end of the second phase: publication
- E Remedies
- F Investigative and Sanctioning Powers of the Commission
- 18 Judicial Review of Commission Decisions Regarding Concentrations
- Preliminary Material
- A Introduction
- B Reviewable Acts
- 18.03
- 1 Form of the act not relevant
- 2 Article 6 decisions
- 3 Decisions imposing sanctions under the Merger Control Regulation
- 4 Referral decisions
- 5 Article 8 decisions
- 6 Acts adopted in the implementation of merger clearance decisions
- 7 Article 21 decisions
- 8 Investigatory measures (Article 11 and Article 13 decisions)
- C Locus Standi
- D Actions for Damages
- E Time-Period to Bring an Action
- F Scope of Revision and Discretion of the Commission
- G Interim Measures
- H Procedure before European Courts
- I Appeals to the European Court of Justice
- J Consequences of Judicial Review
- 16 General Issues: Scope of Control
- Part III Public Undertakings and Exclusive or Special Rights
- 19 Procedure on State Measures—Decisions under Article 106(3) TFEU
- Preliminary Material
- A Introduction
- B Procedures for the Application of the European Union Rules
- 19.02
- 1 Procedure regarding the behaviour of undertakings
- 2 Procedures regarding State measures
- C Decisions under Article 106(3) TFEU
- 1 General points
- 19.13
- Application to the grant or maintenance of exclusive rights
- Justification for a special procedure
- Procedural sources
- Competent authority
- The discretionary nature of the decision to initiate infringement proceedings
- Optional nature of the procedure under Article 106(3)
- Commencing proceedings ex officio
- 2 The processing of complaints and ‘own initiative’ proceedings
- 3 Infringement proceedings
- 4 The formal decision and its effects
- Formal decisions under Article 106(3)
- The obligatory nature of Article 106(3) decisions
- Proceedings for annulment against a formal decision under Article 106(3)
- Proceedings in the event of non-compliance with the decision by the Member State
- Liability of Member States for failure to fulfil their obligations under EU law
- 1 General points
- 20 Directives under Article 106(3)
- Preliminary Material
- A Functions of Directive under Article 106(3) TFEU
- B Directives Adopted on the Basis of Article 106(3) TFEU
- 20.05
- 1 Preventive function of directives under Article 106(3) TFEU
- 2 The rules concerning directives under Article 106(3) TFEU
- 20.22
- Preparation of Article 106(3) directives
- Adoption of the directive
- Limits on the rule-making power of the Commission
- Article 106(3) directives and the behaviour of undertakings
- Clear and obscure acts
- How specific can directives under Article 106(3) be?
- Directives under Article 106(3) are not a repressive instrument of specific infringements
- The principles of ‘necessity’ and ‘proportionality’
- Form of directives under Article 106(3)
- Reasons for adopting directives under Article 106(3)
- Publication and entering into force of directives under Article 106(3)
- Binding nature of directives under Article 106(3)
- Direct effect of Article 106(3) directives
- 3 Relations between directives under Article 106(3) TFEU and harmonization directives
- C Regulations under Article 14 TFEU
- 19 Procedure on State Measures—Decisions under Article 106(3) TFEU
- Part IV State Aid
- 21 General Questions on Procedure. Control of State Aid Compatibility. Council’s Decision-Making Power
- Preliminary Material
- I Introduction
- II Classification of Measures as State Aid
- III Control of State Aid Compatibility
- A Introduction
- B General Principles
- C Regulatory Framework
- IV Council’s Decision-Making Power
- 22 Prior Control of New Notified Aid
- Preliminary Material
- 22.01
- 22.02
- A Concept of New Aid
- B Prior Notification Obligation for New Aid
- 1 Prior notification obligation
- 22.13
- Scope of the notification obligation
- Notification in case of doubt?
- Notification in cases of presumption of aid
- Notification of an individual case of application of aid schemes
- Purpose, contents, and arrangements of the notification
- Subsequent alterations
- Publicizing the notification
- Withdrawal of the notification
- Exemption from the notification obligation
- Simplified notification
- 2 Suspension obligation
- 3 The Notice from the Commission on a simplified procedure
- 4 The Code of Best Practice
- 1 Prior notification obligation
- C Preliminary Examination Procedure for Notified Aid
- D Formal Examination Procedure for Notified Aid
- 22.65
- 1 Opening of the procedure
- Doubts about the compatibility of the aid (Article 4 of the Procedural Regulation)
- Doubts about the existence of aid
- Control
- Purpose of the formal examination procedure
- Contents and scope of the decision to initiate the procedure
- Assessment of the nature of the aid
- Assessment of the nature of new aid
- Assessment of compatibility
- Penalizing the failure to initiate the procedure
- Cases in which the Commission is not empowered to initiate the procedure
- 2 Extension of the procedure
- 3 Suspensive effect
- 4 Procedural arrangements
- E Final Decision
- 23 Unlawful Aid
- Preliminary Material
- I General Matters
- II Recovery of Incompatible Aid Unlawfully put into Effect
- A Recovery Principle
- B Exceptions to Recovery
- C Implementation
- III Interim Measures and the Commission’s Power to Grant Injunctions
- 24 Control of Existing Aid Schemes
- Preliminary Material
- 24.01
- 24.02
- I Concept of Existing Aid Scheme
- II Determination of whether Aid can be Considered to be Existing Aid
- 24.17
- 24.18
- A Importance of the Question
- B Procedure
- III Permanent Review of the Compatibility of Existing Aid
- 25 Implementation of the Commission’s Decisions
- 26 Role of National Courts
- Preliminary Material
- I The Enforcement of the Obligation not to Grant Unauthorized Aid
- 26.01
- A Role of the National Judge
- 1 Direct effect of Article 108(3) TFEU, last sentence
- 2 Powers of the national courts
- 26.03
- 26.04
- Determination of the existence of a breach of Article 108(3) TFEU, last sentence
- Consequences flowing from the unlawful character of aid
- General matters
- 26.10 Implementation of the aid is rendered void
- 26.11 Preventing the payment of unlawful aid
- Reimbursement of aid
- 26.15 Recovery of interests
- 26.16 Liability of the Member State
- 26.17 Damages claims against the beneficiary
- 26.18 Provisional jurisdictional protection
- 26.19 Particular cases: tax-financed aid
- 26.20 Extension of aid?
- Influence of the Commission’s decisions on the obligations of the national judge
- Cumulative infringement of the last sentence of Article 108(3) TFEU and of another provision of EU law
- 3 Distinction between the role of the national judge and the role of the Commission
- B Cooperation with the European Court of Justice and the Commission
- II Other Litigation before the National Courts
- 27 State Aid Litigation before the European Union Courts
- Preliminary Material
- 27.01
- 27.02
- 27.03
- 27.04
- I Procedures against the Commission
- A Scope of the Judicial Review
- B Action for Annulment
- 1 General principles
- 2 Appeal against a decision not to raise objections/a refusal to initiate the formal examination procedure
- 3 Appeal against a decision considering aid to constitute existing aid
- 4 Appeal against a final decision
- Contestable act
- Eligibility for bringing the action
- Beneficiaries
- Competitors
- Associations
- Effects of an annulment
- Appeal against a decision to propose appropriate measures or a refusal to adopt such a decision
- Appeal against a refusal to bring an action for failure to fulfil an obligation pursuant to subparagraph 2 of Article 108(2) TFEU
- C Action for Failure to Act
- 1 General principles
- 2 Appeal against a failure to adopt a decision not to raise objections
- 3 Appeal against a failure to rule on a complaint and/or to initiate the formal examination procedure
- 4 Appeal against a failure to bring an action for failure to fulfil an obligation under the second subparagraph of Article 108(2) TFEU
- 5 Appeal against a failure to take the measures involved in the execution of a judgment of the ECJ or the GC
- D Action for Non-Contractual Liability
- E Application for Interim Measures
- 1 General principles
- 2 Interim measures and stay of execution of a decision to initiate the formal examination procedure
- 3 Interim measures and stay of execution of a decision to amend or abolish an existing aid scheme
- 4 Interim measures and stay of execution of a negative decision
- 5 Interim measures and stay of execution of a positive decision
- II Procedures against Member States
- III Procedure for Action against Council Decisions Adopted on the Basis of the Third Subparagraph of Article 108(2) TFEU
- IV Reference for a Preliminary Ruling
- 21 General Questions on Procedure. Control of State Aid Compatibility. Council’s Decision-Making Power
- Part V Competition Law and Procedure in the European Economic Area
- 28 European Economic Area Competition Procedure
- Preliminary Material
- I Introduction to the Agreement on the European Economic Area
- II The Substantive Competition Rules of the EEA Agreement: A Brief Description
- III The Procedure for the Application of the EEA Competition Rules
- IV Practical Procedural Aspects in Articles 53 and 54 Cases
- A The Former System of Notifications, Applications, and Complaints
- B The Decentralized Enforcement of the EEA Competition Rules
- C The Main Features of the Decentralized Regime
- D Powers of the Competition Authorities and National Courts of EFTA/EEA States
- E Powers of the ESA as a Competent Surveillance Authority under the Modernized Regime
- V Practical Procedural Aspects in Merger Cases
- VI An Overview of the EEA Provisions on State Aid
- VII Adaptation Periods
- VIII Conclusion
- 28 European Economic Area Competition Procedure
- Part VI Arbitration
- 29 EU Competition Arbitration
- Preliminary Material
- I Introduction
- II Some Ontological Preliminaries
- 29.11
- A Context
- B Antitrust Arbitrability
- C The Arbitration Agreement
- III Ordinary EU Competition Arbitrations
- 29.51
- A Scope of Ordinary EU Competition Arbitrations
- B The Arbitrator’s Mandate
- C Procedural Conduct of EU Competition Arbitrations
- D Supervisory Court Review of EU Competition Law Awards
- IV EU Commitment Arbitrations
- V Other EU Competition-Related Arbitrations
- VI Conclusion
- 29 EU Competition Arbitration
- Part I Antitrust Rules (Articles 101 and 102 TFEU)
- Further Material
