DECISION-MAKING POWERS REPORT - European …

1 ECN WORKING group COOPERATION ISSUES AND DUE PROCESS DECISION-MAKING POWERS REPORT 31 October 2012 DISCLAIMER: This publication is a compilation of information received from national competition authorities of the European Union and the Competition Directorate General of the European Commission ("the Authorities"). Information provided in this publication is not exhaustive and is for information purposes only. It does not constitute professional or legal advice and does not give rise to legitimate expectations on the part of any undertaking or third party. The content of this publication is not binding and does not reflect any official or binding interpretation of procedural rules or the practice of any Authority.

2 It does not represent the official position of any Authority. Neither any Authority nor any person acting on its behalf is responsible for the use which might be made of information contained in this compilation. 2 TABLE OF CONTENTS GENERAL REFERENCES .. 4 1. 5 2. INSTITUTIONAL 5 Monist Administrative Model .. 6 Dualist Administrative Model .. 8 Judicial Model .. 9 3. TYPES OF decision FOR ENFORCEMENT OF ARTICLES 101 AND 102 TFEU .. 10 Prohibition decisions .. 10 Differences between national legislation and Article 7 of Regulation 1/2003 .. 11 Parallel application of national legislation and Articles 101/102 TFEU.

3 12 Finding of past infringements .. 12 Prohibition decisions which combine cease and desist orders and the imposition of fines .. 14 Prohibition decisions with remedies .. 14 Monitoring compliance .. 16 Judicial 18 Commitment decisions .. 28 Legal and procedural framework .. 28 Negotiations and market test .. 30 Adoption of commitment decisions .. 33 Assessment of commitment proposals .. 33 Monitoring and compliance with commitment decisions .. 34 Judicial 35 'Positive' 36 Conditions for adopting a positive decision .. 37 Exemption decisions .. 37 Use of positive 38 Possibility to appeal .. 39 Interim measures.

4 40 Legal and procedural framework .. 40 3 Interim measures orders .. 44 Content of interim measures .. 45 Monitoring of interim measures .. 47 Judicial 47 Other types of decisions and actions .. 48 4. PROCEDURE .. 51 Start of 51 Priority setting .. 51 Initiation of investigation .. 53 Duration of proceedings and time limits .. 56 Main procedural steps .. 58 Statement of Objections (SO) .. 58 Commitment procedures and procedural rights of parties .. 61 Procedural rights of parties with regard to other types of decisions . 62 Access to file .. 63 Meetings with parties .. 64 Oral 66 Other procedural steps leading to DECISION-MAKING .

5 69 Publication of decisions .. 69 Complaints/third parties .. 70 Formal complaints .. 70 Main features of the applicable procedure .. 71 Informal complaints .. 72 Rejection of 72 Formal status of 73 Rights of formal complainants .. 74 Confidential 75 Obligation to inform about initiation of commitment 76 Participation of third parties in proceedings .. 76 Criteria for third party participation .. 77 Third parties rights .. 78 5. CONCLUSION .. 80 4 References to jurisdictions AT: Austria BE: Belgium BG: Bulgaria CY: Cyprus CZ: Czech Republic DE: Germany DK: Denmark EE: Estonia EL: Greece ES: Spain EU: European Union.

6 'EU' is used here in reference to enforcement action by the European Commission (COM) under Articles 101/102 TFEU and its review by the EU Courts FI: Finland FR: France HU: Hungary IE: Ireland IT: Italy LV: Latvia LT: Lithuania LU: Luxembourg MT: Malta NL: The Netherlands PL: Poland PT: Portugal RO: Romania SI: Slovenia SK: Slovakia SV: Sweden UK: United Kingdom (all references to the UK competition authority should be understood as referring to the Office of Fair Trading (OFT) GENERAL REFERENCES NCA: National Competition Authority ECN: European Competition Network, which is composed of the NCAs and COM MS: Member State SO: Statement of Objections Competition authorities: the members of the ECN, namely NCAs and COM 5 1.)

7 INTRODUCTION Competition law and enforcement in the EU is characterised by the co-existence of EU law and national laws for substantive rules and procedures. Convergence in substantive analysis in antitrust is achieved through the obligation for NCAs and national courts to apply Articles 101 and 102 TFEU pursuant to Article 3 of Regulation 1/2003 and the mechanisms contained in this instrument to ensure co-operation and coherency (Articles 11 to 16 and 22). However, the situation is more complex in relation to procedures and sanctions for the implementation of the EU competition rules in the Member States, as this is not generally regulated or harmonised by EU law.

8 They are largely governed by national laws, subject to general principles of EU law, in particular, the principles of effectiveness and equivalence. The REPORT on the functioning of Regulation 1/20031 found that divergences of Member States' enforcement systems remain on important aspects. It concluded that this aspect may merit further examination and reflection. In line with this orientation, the ECN Working group on Cooperation Issues and Due Process has prepared this REPORT based on information provided by its members. The purpose of the REPORT is to provide an overview of the different systems and procedures for competition enforcement within the ECN.

9 The REPORT addresses the different models for competition enforcement within the ECN, the types of decision taken to enforce Articles 101 and 102 TFEU, as well as the procedural steps followed in this respect. The REPORT is based on information from 28 jurisdictions (AT, BE, BG, CY, CZ, DE, DK, EE, EL, ES, EU, FI, FR, HU, IE, IT, LT, LV, LU, MT, NL, PL, PT, RO, SK, SI, SV, UK). Input and comments were taken into account up to 31 October 2012. This REPORT reflects the state of convergence within the ECN and can serve as a basis for well-informed discussions on the need for further convergence and how this can be achieved, whether through soft law or legislative harmonisation.

10 2. INSTITUTIONAL SETTING There are three basic institutional models of competition enforcement systems within the EU2: 1. The monist administrative model, where a single administrative authority investigates cases and takes enforcement decisions. In some jurisdictions, the authority may not have the power to impose fining decisions. 1 Communication from the Commission to the European Parliament and the Council, COM (2009)206 final. 2 See also paragraph 2 of the Commission Notice on cooperation within the Network of Competition Authorities, OJ C 101, , p.