Regulation 1/2003 and EU Antitrust Enforcement

Name: Regulation 1/2003 and EU Antitrust Enforcement | A Systematic Guide
Brand: Wolters Kluwer
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A Systematic Guide

Luca Prete Kris Dekeyser Celine Gauer Johannes Laitenberger Nils Wahl(Editor)

Wolters Kluwer (Publisher)

Published on 22. November 2022

1128 pages

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For nearly twenty years, EU antitrust enforcement has been governed by Regulation 1/2003, which ushered in a sweeping reform of the procedures for the application of Articles 101 and 102 TFEU. This systematic article-by-article expert commentary on the Regulation, with additional perspectives and critical views by particularly experienced and qualified authors, provides an in-depth examination of the Regulation's legal achievements, implications, and promise for the future. Analysis of each of the Regulation's articles covers such aspects as: legislative history;rationale and context;practice of the Commission and, where relevant, of the national competition authorities;case law of the Court of Justice of the European Union;international aspects; andoutstanding and problematic issues. Along with many of the article commentaries, 'boxes' have been added on specific issues of particular salience. The critical reflections of the book's second part include perspectives from members and staff of the Court of Justice of the European Union and of the European Commission's Directorate General for Competition and Legal Service, heads of national competition authorities and of national courts, counsel, economists, consumer organisations, and academics. There are also comparisons with various aspects of antitrust enforcement in France, Germany, the Netherlands, and the United States. With this unparalleled book, practitioners and in-house counsel, as well as case-handlers and policymakers, will approach any competition case before the Commission with full awareness of the applicable procedural rules. They will gain a clear understanding of the enforcer's powers and duties, as well as of the various options available to the undertakings involved in antitrust proceedings and their rights.

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Content

Intro
Half-Title Page
Title Page
Copyright Page
Editors
Contributors
Revisor
Summary of Contents
Table of Contents
Preface
Disclaimer
List of Abbreviations
Legislation, Communications and Other Documents Most Frequently Cited
Part I Article-by-Article Commentary to Regulation No 1/2003
Commentary
1. Introduction
2. Contextual Background
3. Legal basis of Reg. 1/2003
4. Content of the Recitals of Reg. 1/2003
4.1. General Principles (Recitals 1-9)
4.2. Powers (Recitals 6, 7, 11 and 34)
4.3. Commission Decisions (Recitals 11-14)
4.4. Cooperation Between the Commission and NCAs (Recitals 15-22)
4.5. Powers of Investigation (Recitals 23-28)
4.6. Penalties (Recitals 29 and 30)
4.7. Limitation Periods (Recital 31)
4.8. Hearing and Professional Secrecy (Recital 32)
4.9. Unlimited Jurisdiction (Recital 33)
4.10. Fundamental Rights (Recital 37)
5. Additional Reading
Chapter I: Principles
Article 1: Application of Articles [101 and 102 TFEU]
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Confirmation of the Principle of Direct Applicability of the Prohibitions of Anticompetitive Conduct under Arts 101(1) and 102 TFEU
4.2. Decentralisation of Art. 101(3) by a System of Legal Exception and a Move to Self-Assessment
4.2.1. Decentralisation and Direct Applicability of Art. 101(3) TFEU
5. End of the Notification System and the Move to Self-Assessment
6. Conclusion
7. Additional Reading
Article 2: Burden of Proof
1. Introduction and Legislative History
2. Concept and Significance of the Burden of Proof
2.1. Allocation of the Burden of Proof
2.2. Burden of Proof in Art. 101 TFEU Cases
2.3. Burden of Proof in Art. 102 TFEU Cases
2.4. The Presumption of Innocence
3. Concept and Significance of the Standard of Proof: The 'Required Legal Standard' Referred to in Recital 5
3.1. Standard of Proof in Art. 101 TFEU Cases
3.2. Standard of Proof in Art. 102 TFEU Cases
4. Evidence
4.1. Admissibility
4.1.1. The Evidence Must Have Been Lawfully Obtained
4.1.2. The Evidence Must Have Been Used in Line with the Right to Be Heard
4.2. Evaluation
5. The Use of Presumptions
5.1. Definition, Examples and Limits of Presumptions
5.2. The Compatibility of Presumptions with the Charter and the ECHR
5.3. Rationale for Using Presumptions
5.4. What It Takes to Rebut a Presumption
6. Additional Reading
The Object/Effect Dichotomy
1. Introduction
2. Identification of by Object Restrictions
3. Procedural Consequences
4. Additional Reading
Article 3: Relationship Between Articles [101 and 102 TFEU] and National Competition Laws
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Art. 3(1)
4.2. Art. 3(2)
4.3. Art. 3(3)
5. Practice of the Commission and the NCAs
6. Outstanding and Problematic Issues
7. Additional Reading
Chapter II: Powers
Article 4: Powers of the Commission
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
5. Additional Reading
Article 5: Powers of the Competition Authorities of the Member States
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Substantive Empowerment
4.2. Procedural Empowerment
4.3. The Ability "Not to Act"
4.4. ECN+ Directive
5. The Relevant Case Law
6. Additional Reading
The Growing Powers of the NCAs M. Snoep & J. Steenbergen
1. The NCAs in Reg. 1/2003
1.1. Where Do We Come From
1.2. Reg. 1/2003
2. Decentralisation in Action
2.1. Some Figures
2.2. Some Experiences
3. The ECN+ Directive: A Levelling Exercise
4. The Digital Revolution and the DMA: The Next Chapter?
5. Conclusion: Growing Powers or Growing Role?
The ECN+ Directive E. Arsenidou
1. Introduction
2. Normative Content
3. Additional Reading
Article 6: Powers of the National Courts
1. Introduction and Legislative History
2. Normative Content
3. The Relevant Case Law
4. Additional Reading
Private Enforcement G. Meeßen
1. Introduction
2. Development under the Treaty
3. Rationale, Legal Basis and Context
4. Normative Content
4.1. International Jurisdiction
4.2. Applicable Law
4.3. Establishment of an Infringement of EU Competition Law
4.4. Causality and Imputability
4.5. Intent or Negligence
4.6. The Entity Liable in Damages
4.7. Principle of Full Compensation and the Assessment of Damages
4.8. Defences
4.9. Limitation
5. Role of the Commission and the NCAs
6. Outlook
7. Additional Reading
The Role of Arbitration Tribunals and Controlling Courts E. Barbier de la Serre
1. Introduction
2. Arbitrability of Competition Law Disputes
3. Arbitrator's Duty (or Lack Thereof) to Apply EU Competition Law Rules on Their Own Motion
4. Cooperation with EU Courts and Competition Authorities
5. Judicial Review of Arbitral Awards
6. Arbitration in Support of Public Enforcement
7. Additional Reading
The Growing Importance of National Courts (I) W. Kirchhoff & P. Roth
1. Germany
1.1. Public Enforcement
1.2. Different Degree of Court Specialisation in Public and Private Enforcement
2. United Kingdom
2.1. Private Enforcement: Pre-modernisation: The Problem of a Stay
2.2. Private Enforcement: Determination of Art. 101(3) by UK Courts
2.3. Public Enforcement
2.4. Conclusion
The Growing Importance of National Courts (II) B. Lasserre
1. Introduction
2. Background
3. The Concept of 'National Courts'
4. The New Powers of National Courts
5. National Courts and the Uniform Application of EU Law
5.1. National Courts Must Apply EU Law
5.2. National Courts Must Pursue the Uniform Application of EU Law
5.3. The Principle of Procedural Autonomy
5.4. Cooperation Between National Courts, the Commission and NCAs
6. Additional Reading
Chapter III Commission Decisions
Article 7: Finding and Termination of Infringement
1. Introduction
2. Legislative History
3. Context
4. Normative Content
4.1. The Form of Art. 7 Decisions
4.2. The Relationship Between Art. 7 and Fines
4.3. Past Versus Ongoing Infringements
4.4. Amendments and Readoptions
5. Additional Reading
Complaints I. Pereira Alves
1. Introduction
2. Requirements (I)
3. Requirements (II)
4. Rejection of Complaints
5. Procedural Rights of Complainants
6. Procedure for the Assessment and Rejection of Complaints
7. Additional Reading
Remedies F. Cannizzaro
1. Introduction
2. Normative Content, Principles and Relevant Case Law
3. Practice of the Commission and Possible Developments
3.1. Cease-and-Desist Orders
3.2. Specific Remedies (Behavioural and Structural)
3.3. Restorative Remedies
4. Conclusions
5. Additional Reading
Cooperation Procedure A. Bogdanov
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Content
4.1. Assessing Suitability for Cooperation
4.2. Acknowledgement: Core Element of the Cooperation Procedure
4.3. Other Elements of Cooperation
4.4. Determining the Reduction of the Fine
4.5. Main Procedural Steps
5. Practice of the Commission
6. Additional Reading
Cartel Settlements K. Dekeyser & E. Van Ginderachter
1. Introduction
2. Brief Overview of the EU Settlement Procedure
3. Objective and Design of EU Settlement
4. Some Fundamental Features of EU Settlement
5. Some Data Illustrating the Use of Cartel Settlements in the EU
6. The Use of Hybrid Cartel Settlements
7. Challenges for the Future: A Few Prospective Issues
8. Additional Reading
Article 8: Interim Measures
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Prima Facie Finding of Infringement
4.2. Urgency due to the Risk of Serious and Irreparable Damage to Competition
4.3. Proportionality and Balance of Interests
5. Procedure
6. International Aspects
7. Outstanding and Problematic Issues
7.1. Issues Concerning the Imposition of Interim Measures by the Commission
7.2. Issues Concerning the Judicial Review by the CJUE
8. Additional Reading
Article 9: Commitments
1. Introduction
2. Legislative Intent
3. Applicable Legal Test and General Principles for Design and Implementation of Commitments
3.1. Assessment of Commitments
3.2. Monitoring and Implementation of Commitments
3.3. Applicability of Guidance for Merger Remedies
4. The Commission's Enforcement Practice
4.1. Commitment Decisions Adopted from 2004 to 2015
4.1.1. Commitment Decisions Addressing Competition Concerns for the Future
4.1.2. Commitment Decisions Involving Complex Remedies
4.1.3. Commitment Decisions Encroaching on Infringement Decisions
4.2. Commitment Decisions Adopted after 2015
4.2.1. Commitment Decisions as a Complement to Interim Measures Decisions
4.2.2. Commitment Decisions to Quickly Address Market Distortions
5. Judicial Review of Commitments Decisions
5.1. Proportionality of the Commitments Offered: The Alrosa Case
5.2. Sufficiency of the Commitments Offered: The Morningstar Case
5.3. Compliance with the Commitments Offered: The CEEES/AGES Case
5.4. Interaction Between Commitment Decisions and National Public and Private Enforcement: The Gasorba Case
5.5. The Necessity to Take into Account the Situation of Third Parties in Commitment Proceedings: The Groupe Canal + Case
5.6. Interplay Between a Statement of Objections and a Commitment Decision: The Gazprom Case
6. Conclusions
6.1. Substantive and Procedural Framework for Commitment Decisions
6.2. Judicial Review of Commitment Decisions
7. Additional Reading
Article 10: Finding of Inapplicability
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. The Concept of 'Community Public Interest'
4.2. Procedure
4.3. The Notice on Guidance Letters
4.4. Practice
5. Outstanding and Problematic Issues
6. Additional Reading
Chapter IV: Cooperation
Article 11: Cooperation Between the Commission and the Competition Authorities of the Member States
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Art. 11(1)
4.2. Art. 11(2)
4.3. Art. 11(3)
4.4. Art. 11(4)
4.5. Art. 11(5)
4.6. Art. 11(6)
5. Practice
6. The Relevant Case Law
7. International Aspects
8. Outstanding and Problematic Issues
9. Additional Reading
Article 12: Exchange of Information
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Art. 12(1) of Reg. 1/2003
4.2. Art. 12(2)
4.3. Art. 12(3)
5. Practice of the Commission and the NCAs
6. The Relevant Case Law
7. International Aspects
8. Outstanding and Problematic Issues
8.1. Outstanding Issues Regarding Art. 12(2)
8.2. Outstanding Issues Regarding Art. 12(3)
9. Additional Reading
Article 13: Suspension or Termination of Proceedings
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Art. 13(1)
4.2. Art. 13(2)
5. Outstanding and Problematic Issues
6. Additional Reading
Article 14: Advisory Committee
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Relevance and Function of the Advisory Committee
4.2. Composition of the Advisory Committee
4.3. Procedure
4.4. Opinions of the Advisory Committee
5. Additional Reading
Article 15: Cooperation with National Courts
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
3.1. System of Parallel Competences under Reg. 1/2003
3.2. Conflict Rule of Art. 16(1) of Reg. 1/2003
3.3. Requests for Preliminary Rulings Pursuant to Art. 267 TFEU
3.4. Commission's Notice on Its Cooperation with National Courts
3.5. Private Enforcement of Arts 101 and 102 TFEU
4. Normative Content
4.1. Common Principles of Art. 15 as a Whole
4.2. Common Concepts Throughout Art. 15
4.2.1. Concept of "Courts of the Member States" or "National Courts"
4.2.1.1. Concept 'Court or Tribunal of a Member State' under Art. 267 TFEU
4.2.1.2. Confirmation by Art. 35 of Reg. 1/2003
4.2.1.3. Conclusions and Practical Implementation
4.2.2. Concept of "Competition Authorities of the Member States" or "National Competition Authorities"
4.2.3. Relation to the "Application" of Arts 101 and 102 TFEU
4.3. Art. 15(1): National Courts Asking the Commission for Information or Opinions
4.3.1. Subject Matter and Framework of the Cooperation under Art. 15(1)
4.3.2. Art. 15(1) First Alternative: National Courts Asking the Commission to Transmit Information
4.3.2.1. Refusal due to professional secrecy
4.3.2.2. Refusal due to Overriding Interests of the EU and the Commission
4.3.3. Art. 15(1) Second Alternative: National Courts Requesting the Commission for Its Opinion
4.3.3.1. Procedure
4.3.3.2. Relation with Requests for Preliminary Rulings under Art. 267 TFEU
4.4. Art. 15(2): Member States Forwarding National Court Judgments to the Commission
4.4.1. Addressee of the Obligation
4.4.2. Scope of the Obligation
4.5. Art. 15(3): NCAs and/or Commission Intervening with Observations in Proceedings Before National Courts
4.5.1. Common Features of Observations by NCAs and by the Commission
4.5.2. (Potentially) Divergent Features of Interventions by NCAs and by the Commission
4.6. Article 15(4): Wider Intervention Powers by the NCAs
5. International Aspects
6. Outstanding and Problematic Issues
7. Additional Reading
Article 16: Uniform Application of Community Competition Law
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Scope of Application of Art. 16
4.2. Obligations of National Jurisdictions and Competition Authorities
4.2.1. Ongoing Proceedings
4.2.2. Existing Commission Decisions
4.2.2.1. Obligations Depending on the Nature of the Decision
4.2.2.1.1. Commission Proceedings Opened after a National Judgment
4.2.2.1.2. Commission Decisions Imposing a Fine and Decisions in Similar Cases
4.2.2.1.3. Non-applicability Decisions
4.2.2.1.4. Guidance Letters
4.2.2.1.5. Decisions Adopted under Reg. 17
4.2.2.1.6. Commitment Decisions
5. Outstanding and Problematic Issues
6. Additional Reading
Chapter V: Powers of Investigation
Article 17: Investigations into Sectors of the Economy and into Types of Agreements
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Subject of the Inquiry
4.2. Procedure
4.3. Investigatory Powers
5. Practice of the Commission and the NCAs
5.1. The Preparation and Choice of Sector Inquiries
5.2. Interplay of Sector Inquiries with Regulation
5.3. The Role of the ECN and of the Sector Inquiries by NCAs
5.4. The Commission's Practice on Information Gathering
5.5. The Final Report and the Typical Follow-Up to a Sector Inquiry
5.6. Evidence Obtained in the Sector Inquiry
6. The Relevant Case Law
7. Additional Reading
Article 18: Requests for Information
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Power of the Commission to Request Information
4.2. Limitations on the Commission's Power to Request Information
5. International Aspects
6. Outstanding and Problematic Issues
7. Additional Reading
Article 19: Power to Take Statements
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
5. Relevant Case Law
6. Commentary
7. Outstanding and Problematic Issues
8. Additional Reading
Article 20: The Commission's Powers of Inspection
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. The Commission's Decision to Inspect: Procedure and Conditions
4.2. Commission Powers
4.2.1. Access and Examination: Art. 20(4)(a-b)
4.2.2. Taking Copies: Art. 20(2)(c)
4.2.3. Limitations to the Search Powers in Art. 20(2)(a-c)
4.2.4. Sealing Business Premises and Records: Art. 20(2)(d)
4.2.5. Explanation of Facts and Documents: Art. 20(2)(e)
4.3. Role of NCAs
4.4. Obstruction and Penalties
4.5. Judicial Review
4.5.1. Role of the National Courts
4.5.2. Role of the EU Courts
4.5.2.1. Challenging the Inspection Decision
4.5.2.2. Challenging the Commission's Conduct During the Inspection
4.5.2.3. Action Against the Commission's Final Infringement Decision
4.5.2.4. Review of Measures Taken During the Inspection
4.5.2.5. Action for Damages
4.5.2.6. Interim Measures
5. International Aspects
6. Outstanding and Problematic Issues
6.1. Interim Measures
6.2. Personal Data
7. Additional Reading
Moving Towards a Digital Competition Enforcement F. Laina
Article 21: Inspection of Other Premises
1. Introduction
2. Rationale and Context of the Provision
3. Normative Content
3.1. Commission Inspection Powers and Associated Conditions
3.2. Decisional Practice and Case Law
4. International Aspects
5. Outstanding and Problematic Issues
6. Additional Reading
Article 22: Investigations by Competition Authorities of Member States
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
3.1. Art. 22(1)
3.2. Art. 22(2)
4. Normative Content
4.1. Art. 22(1)
4.2. Art. 22(2)
4.3. ECN Approach Towards Art. 22
4.4. The Application of Art. 22(1) in Practice
5. Outstanding and Problematic Issues
6. Additional Reading
Chapter VI: Penalties
Article 23: Fines
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Which Type of Fine?
4.2. What Level of Fine?
4.2.1. The Commission's Method According to the 2006 Guidelines
4.2.1.1. Basic Amount
4.2.1.1.1. Calculation of the Value of Sales
4.2.1.1.2. Determination of the Basic Amount of the Fine
4.2.1.2. Adjustments to the Basic Amount
4.2.1.2.1. Aggravating Circumstances
4.2.1.2.2. Mitigating Circumstances
4.2.1.2.3. Deterrence Factor
4.2.1.2.4. Others Considerations
4.2.2. Situations Where the 2006 Guidelines Do Not Apply
4.3. What Nature of Fine?
5. Conclusion
6. Additional Reading
Concept of Undertaking and Allocation of Liability for Antitrust Fines C. Urraca Caviedes
1. Introduction
2. The Concept of Undertaking
3. The Concept of Economic Unit
4. Attribution of Liability
5. Determination of the Entities Liable to Provide Compensation
6. Additional Reading
Leniency I. Taccani & M. L. Tierno Centella
1. Introduction
2. Legislative History and Context
3. Normative Content
3.1. The 2006 Leniency Notice
3.2. The Damages Directive
3.3. The ECN+ Directive
4. Practice of the Commission
5. The Relevant Case Law
6. International Aspects
7. Additional Reading
Ne bis in idem P. Rossi
1. The Bis and the Idem Elements
2. The End of the Specific Case Law on the Idem Concept in Competition
3. Additional Reading
Article 24: Periodic Penalty Payments
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Art. 24(1): Potential Maximum Daily Periodic Penalty Payment
4.2. Art. 24(2): Definitive Daily Periodic Penalty Payment
5. Practice of the Commission
6. Outstanding and Problematic Issues
7. Additional Reading
Chapter VII: Limitation Periods
Article 25: Limitation Periods for the Imposition of Penalties
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Paragraphs 1 and 2
4.2. Paragraphs 3 and 4
4.3. Paragraph 5
4.4. Paragraph 6
5. Outstanding and Problematic Issues
6. Additional Reading
Article 26: Limitation Period for the Enforcement of Penalties
1. Introduction
2. Rationale and Context of the Provision
3. Normative Content
3.1. Beginning of the Limitation Period
3.2. Interruption of the Limitation Period
3.3. Suspension of the Limitation Period
4. Outstanding and Problematic Issues
5. Additional Reading
Chapter VIII: Hearings and Professional Secrecy
Article 27: Hearing of the Parties, Complainants and Others
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
3.1. Nature and Structure of the Commission's Enforcement Procedures
3.2. Art. 27 Is a Concise Provision Supplemented by Other Texts
3.3. Further Rights, Not Set out Explicitly in Art. 27, Arise from General Principles of EU Law / Fundamental Rights
4. Normative Content
4.1. Right to Be Heard of the Main Parties
4.1.1. Statement of Objections
4.1.2. Possible Complements to an SO
4.1.3. Oral Hearing
4.1.4. The Commission Decision May Only Retain Objections on Which the Parties Concerned Have Been Able to Express Their Views
4.2. Complainants' Rights in the Procedure Concerning the Main Parties
4.3. Interested Third Persons and Other Persons
4.3.1. Need to Demonstrate a Sufficient Interest
4.3.2. Participation of Interested Third Persons in the Procedure
4.3.3. Rejection of a Request to Be Heard as Interested Third Person
4.4. Other Procedural Options
4.4.1. Commitment Decisions
4.4.2. Settlement Procedure
4.4.3. Hybrid Procedures
4.4.4. Cooperation Procedure in Non-cartel Cases
4.5. Market Test in the Context of Procedures under Art. 9 and 10 of Reg. 1/2003
5. Outstanding and Problematic Issues
6. Additional Reading
Access to File F. van Schaik
1. Introduction
2. When Is Access Granted and to Whom?
3. How Is Access Granted?
4. Scope of Access
5. Requests for Further Access
6. Failure to Provide Proper Access
7. Challenges Related to Access to the File
8. Additional Reading
Article 28: Professional Secrecy
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Art. 28(1): Restrictions as to the Use of Information
4.1. Scope: Information Acquired under Reg. 1/2003
4.2. The Permissible Use of Information
4.2.1. The Purpose for Which the Information Was Acquired
4.2.2. The Use of Information Exchanged in the ECN
4.2.3. The Transmission of Information to Member States' National Courts
4.2.4. The Special Protection Afforded to Leniency and Settlement Submissions
5. Art. 28(2): Restrictions as to the Disclosure of Information
5.1. Scope: Information Covered by the Obligation of Professional Secrecy
5.1.1. The General Confidentiality Test
5.1.1.1. Information Known Only to a Limited Number of People
5.1.1.2. Disclosure Must Be Liable to Cause Serious Harm
5.1.1.3. Interests Liable to Be Harmed Must Be Worthy of Protection
5.1.1.4. The Special Case of Business Secrets
5.1.2. Protection under Other Rules and Principles of EU Law
5.2. Procedural Safeguards
5.3. The Role of the Hearing Officer
6. Consequences of Breaches
7. Additional Reading
Chapter IX: Exemption Regulations
Article 29: Withdrawal in Individual Cases
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
4.1. Requirements for the Withdrawal of the Benefit of a Block Exemption Regulation by the Commission or a Member State's NCA
4.2. Decisional Practice and Jurisprudence
5. Outstanding and Problematic Issues
6. Additional Reading
Chapter X: General Provisions
Article 30: Publication of Decisions
1. Introduction
2. Scope
3. Publication of a Summary in the Official Journal
4. Publication of a Non-confidential Version on DG COMP Website
5. Procedure
6. Timing
7. Legitimate Interests Opposing Publication
8. Judicial Review
9. Outstanding and Problematic Issues
10. Additional Reading
Article 31: Review by the Court of Justice
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
4. Normative Content
5. The Relevant Case Law
5.1. The Control of Legality: An In-Depth Review of All Relevant Elements
5.2. An Unlimited Jurisdiction: The Power to Reappraise the Fine
5.2.1. Scope of the Unlimited Jurisdiction
5.2.2. Formal Prerequisites
5.2.3. Triggering Event
5.2.4. Factors Used to Determine the Amount of a Fine
5.2.5. Unlimited Jurisdiction Within the Framework of the Appeal Before the Court
6. Outstanding and Problematic Issues
6.1. Criminal or Not?
6.2. Increase the Amount of the Fine?
6.3. Default Interests or Not?
7. Additional Reading
The Consequences of Procedural Errors J. Jourdan
1. Introduction
2. An EU 'Harmless Error Rule'?
3. Harmless and Harmful Procedural Errors in Competition Cases
4. The Burden of Proving That the Error Was Harmful
5. Readoption Post-annulment?
6. Conclusions
7. Additional Reading
Article 33: Implementing Provisions
1. Introduction and Legislative History
2. Rationale and Context of the Provision
3. Normative Content
4. Outstanding and Problematic Issues
Language Regime E. Paunio
1. Introduction
2. Linguistic Rights as Procedural Rights
3. Discussion
4. Additional Reading
Chapter XI: Transitional, Amending and Final Provisions
Article 34: Transitional Provisions
1. Introduction
2. Legislative History
3. Rationale and Context of the Provisions
4. Normative Content
5. Outstanding and Problematic Issues
Article 35: Designation of Competition Authorities of Member States
1. Introduction
2. Legislative History
3. Rationale and Context of the Provision
3.1. The Need for a Designation of NCAs
3.2. Administrative and Judicial Competition Authorities: Coexisting Institutional Models
3.3. The Effect of the Withdrawal of Jurisdiction by the Commission under Art. 11(6)
4. Normative Content
4.1. The ECN+ Directive and National Enforcement Models
4.2. The Principle of Effectiveness and National Administrative Competition Authorities
5. Additional Reading
Article 37: Amendment of Regulation (EEC) No 2988/74
Article 38: Amendment of Regulation (EEC) No 4056/86
Article 39: Amendment of Regulation (EEC) No 3975/87
Article 40: Amendment of Regulations No 19/65/EEC, (EEC) No 2821/71 and (EEC) No 1534/91
1. Introduction
2. Legislative History
3. Rationale and Context of the Provisions
4. Normative Content
Article 43: Repeal of Regulations No. 17 and No. 141
1. Introduction
2. Legislative History, Rationale and Context of the Provision: The Original Goals of Reg. 17 and the Reasons Leading to the Framing of Reg. 1/2003 and the Repeal of Regs 17 and 141
3. The System of Administrative Implementation of Arts 85 and 86 EEC Pursuant to Reg. 17
4. The Reasons Leading to the Repeal of Reg. 17
5. The Repeal of Reg. 141 of the Council Exempting Transport from the Application of Reg. 17
6. Additional Reading
Article 44: Report on the Application of the Present Regulation
1. Introduction
2. Legislative History
3. Report on Five Years of Reg. 1/2003
4. Communication on Ten Years of Enforcement Reg. 1/2003: Achievements and Future Perspectives
5. Additional Reading
Article 45: Entry into Force
1. Introduction
2. Rationale and Context of the Provision
3. Normative Content
Part II Reflections
Chapter 1 The EU Competition Procedures from the Perspective of the Directorate General for Competition
1. Introduction
2. Striking the Right Balance Between Art. 7 and Art. 9 Decisions
3. Fining Policy, Leniency and Ex Officio Intervention: Creating the Right Incentives to Blow the Whistle
4. Interim Measures: 'Back to the Future'
5. A Renewed Need for Guidance?
6. Conclusions
Chapter 2 The EU Competition Procedures from the Perspective of the Legal Service
1. Introduction
2. Status, Structure, and Role of the LS on Matters of EU Competition Law
2.1. Institutional Position of the LS
2.2. Organisational Structure and Role of the LS
3. Cooperation of the LS with DG Competition
3.1. Obligation to Consult the LS
3.2. Independent Legal Advice
4. Representation of the Commission in Court
4.1. Preparing and Pleading Cases in Court
4.2. Contact with Outside Lawyers
5. The LS's Perspective on EU Competition Law
6. Conclusion
Chapter 3 The EU Competition Procedures from the Perspective of the Chief Economist
1. Introduction
2. History
3. The Mandate of the Chief Economist
4. Involvement of the Chief Economist Team in Antitrust Issues
4.1. Antitrust Cases
4.2. Antitrust Policy Projects
4.3. Sector Inquiries
5. Research and Development
6. Additional Reading
Chapter 4 The EU Competition Procedures from the Perspective of the Hearing Officer
1. Introduction
2. History
3. Status of the Hearing Officer
4. Powers and Functions of the Hearing Officer
4.1. Direct Role in the Conduct of Competition Proceedings
4.2. Independent Review of Issues Concerning the Effective Exercise of Procedural Rights
4.3. Verification of the Respect for Procedural Rights on the Hearing Officer's Own Initiative
4.4. Advice to the Competition Commissioner on Any Matter Arising out of Any Antitrust Procedure
5. Additional Reading
Chapter 5 The EU Competition Procedures from the Perspective of the College of Commissioners
1. Introduction
2. The European Commission: A Powerful, Sui Generis Institution, Subject to Multiple Internal Checks & Balances and Forms of External Accountability
3. Collegiate Decision-Making and Collective Responsibility and Accountability
4. Impact of Collegiality on the Management of Competition Law and Policy Procedures
5. The Chief Economist and the College Need for Technical Expertise
6. The Hearing Officer and the College Duty to Protect the Rights of Defence
7. Policy Coherence and the College Duty to Mainstream Sustainable Development into Competition Policy
8. Conclusions
Chapter 6 The EU Competition Procedures from the Perspective of the Court of Justice
Chapter 7 The EU Competition Procedures from the Perspective of an Advocate General
1. Introduction
2. Examples of Advocates General Shaping the Interpretation of Reg. 1/2003
2.1. The Power of the Commission to Conduct Interviews (Intel)
2.2. Dawn Raids and 'Surprise Discoveries' (Deutsche Bahn)
2.3. Commission's Powers of Inspection in Cartel Proceedings and Copies of Data (Nexans)
2.4. Decisions Accepting Commitments and the Principle of Proportionality (Groupe Canal+)
Chapter 8 The EU Competition Procedures from the Perspective of the General Court
1. Introduction
2. The Situation Before 1 May 2004
3. The Situation after 1 May 2004
4. A Diffuse and Scattered Landscape
5. An Alignment of Powers?
Chapter 9 The EU Competition Procedures from the Perspective of National Competition Authorities (I)
1. Introduction
2. The ECN Information, Cooperation and Harmonisation Procedures Have Had a Major and Lasting Impact on NCAs Enforcement
3. What Have Been the Results of ECN Cooperation from the Point of View of an NCA?
4. A Reciprocal Convergence Between NCAs and the European Commission, That Will Be Reinforced by the ECN+ Directive
5. The European Commission and NCAs Share Some Common Challenges
6. Conclusion
Chapter 10 The EU Competition Procedures from the Perspective of National Competition Authorities (II)
1. Reg. 1/2003 and the Cooperation Mechanisms
2. The ECN+ Directive: Closing Enforcement Gaps
3. Making Full Use of Powers
Chapter 11 The EU Competition Procedures from the Perspective of the International Competition Network
1. Introduction
2. ICN Work on Competition Procedures
2.1. The ICN
2.2. Setting ICN Principles on Procedures
2.3. ICN's Long-Term Investigative Process Project
2.4. The ICN Framework on Competition Agency Procedures
3. Fruitful Tension
4. Digital Markets as a New Field for Even Enhanced Cooperation
5. Building Bridges
6. Conclusion
Chapter 12 The EU Competition Procedures from the Perspective of the OECD
1. Introduction
2. An Historical Perspective on the Work of the EU Competition Committee on Transparency and Procedural Fairness
3. The OEC 2021 Recommendation
4. The Limits of the Assessment of Whether the EU Competition Law Enforcement Procedure Satisfies the Requirements of the OECD Recommendation
5. Assessment of EU Competition Enforcement Procedures in Light of the OECD Recommendation
6. Conclusion
Chapter 13 Antitrust Enforcement in a Globalised World
1. Introduction
2. Enforcing EU Antitrust Rules Vis-à-Vis Non-EU Undertakings
2.1. The Competencies of the Commission
2.2. The Involvement of Foreign Competition Authorities in EU Antitrust Enforcement
3. When the Same Conduct Breaches Antitrust Rules in Several Jurisdictions
3.1. International Comity
3.2. International Cooperation in Enforcement Cases
4. Conclusion
Chapter 14 The EU System and the French System
1. Introduction
2. The Main Characteristics of the French Institutional System in Competition Law
2.1. The French System Partly Remains a Dualist One
2.1.1. The Allocation of Powers Between the Autorité and the Ministry of Economy
2.1.2. The Consequences of the Limited Dualist System
2.2. The Organisation of the Autorité Relies on the Principle of Strict Separation Between the Investigation and the Decision
2.2.1. The Consequences of the 'Principle of Separation of Functions' on the Organisation of the Autorité
2.2.2. The Consequences of the 'Principle of Separation of Functions' on the Proceedings
3. The Main Characteristics of French Antitrust Proceedings
3.1. Preliminary Steps
3.2. Ordinary Proceedings
3.3. Specific Proceedings
3.4. Final Decisions
4. Cooperation Within the ECN and Conclusions
5. Additional Reading
Chapter 15 The EU System and the German System
1. Introduction
2. General Institutional Setting
3. The Administrative Procedure
4. Fine Proceedings
5. Specific Issues
5.1. The Addressee of the Fine
5.2. Calculating the Fine
5.3. Fact-Finding
5.4. Court Proceedings
6. Harmonies, Disharmonies and the Future of German Competition Procedure
7. Additional Reading
Chapter 16 The EU System and the Netherlands System
1. Introduction
2. Historical Background
3. ACM and Decision-Making in Antitrust Cases
3.1. From Investigation to Decision-Making
3.2. Before Going to the Courts
3.3. Making Decisions Public
4. Future Trends and Developments
5. Concluding Remarks
Chapter 17 The EU Competition Procedures from the Perspective of a US Enforcer
1. Introduction
2. The Microsoft Cases: Adversarial and Administrative Systems
3. Modern Case Cooperation: Comparing Investigative Tools
4. Cartel Case Cooperation: Impact of Leniency and Individual Accountability
5. Cooperation on Policy Issues
6. Conclusion
Chapter 18 Reflections on Regulation No 1/2003 and Article 101(3) TFEU
1. Introduction
2. The Abolition of Notification and Individual Exemptions
3. Art. 10 of Reg. 1/2003 and Informal Guidance
3.1. Art. 10
3.2. Informal Guidance
3.3. Art. 10 and Informal Guidance in Practice
3.4. Art. 9 Commitment Decisions
3.5. The Non-prosecution of Beneficial Agreements
4. Art. 101(3) TFEU
4.1. Art. 101(3) and 'Object' Restrictions
4.2. The Art. 101(3) Guidelines
4.3. Negative Application of Art. 101(3)
4.4. No Positive Application of Art. 101(3) by NCAs
5. The COVID-19 Crisis, 'Comfort Letters' and the Future
6. Additional Reading
Chapter 19 A Learning Experience: Is the EU's Administrative Model Fit for Purpose?
1. Introduction
2. Legal Arguments
2.1. The Rule of Law Argument
2.2. The Specifics of the EU
2.3. Checks and Balances
3. Effectiveness, Expertise and Biases
4. The European Enforcement Model in the Future
4.1. Solving an Information Problem
4.2. Tradition, Technology, Time and Third Parties
4.3. The Strength of the Union
5. Additional Reading
Chapter 20 The Digital Markets Act: Rationale and Operation
1. Introduction
2. Legislative History
3. Rationale and Context of the Provisions
4. Normative Content
4.1. The DMA as a Hybrid Instrument
4.2. Designation of Providers as Gatekeepers: Procedural Issues
4.3. Defining the Scope of the Obligation
4.4. Ensuring Compliance
5. Discussion
5.1. The Interplay with Competition Law
5.2. Coordination Between Authorities
5.3. The Definition and Administration of Complex Remedies
Chapter 21 An Unorthodox Perspective: EU Modernisation 2.0 - An Adjudicatory System for Articles 101 and 102 TFEU
1. Introduction
2. Bias, Due Process and Rights of Defence
3. Administrative Costs and Duration of Proceedings
4. Questions and Possible Disadvantages of an Adjudicatory System
5. Conclusion
Chapter 22 The EU Competition Procedures from the Perspective of a Counsel
1. Introduction
2. The Role of Procedure in Shaping the Nature of the Practice of EU Competition Law
3. The Role of Procedure in Shaping the Outcome of EU Competition Cases
4. The Role, Challenges, and Responsibilities of Outside Counsel
Chapter 23 The EU Competition Procedures from the Perspective of an In-House Counsel: On a Quest for Legal Certainty in a World of Self-Assessments
1. Introduction
2. The Quest for Legal Certainty
3. Consistency Across National Borders
4. Efficiency, Clarity and Transparency
5. Conclusion
Chapter 24 The EU Competition Procedures from the Perspective of an Economist: Decision Theory and Legal Process in EU Competition Law
1. Introduction
2. The Mathematics of the Decision Process in EU Competition Cases
2.1. Notation
2.2. The Error Cost Minimisation Principle
2.3. The Intimate Conviction Standard of Proof
2.4. The Threshold of Persuasion
2.5. The Relative Plausibility Test: Formulation
2.6. The Relative Plausibility Test: Optimality
3. The Normative Procedural Benchmark
4. Assessing Actual Procedure: An Economist's Viewpoint
5. Conclusion
Chapter 25 The EU Competition Procedures from the Perspective of the European Consumer Organisation
1. Introduction
2. History
3. Status of Consumer Organisations in Competition Proceedings
3.1. Requirements to Participate in Competition Proceedings
3.2. The Role of Consumer Organisations Once Admitted to Competition Proceedings
4. Examples of Involvement
5. Additional Reading
General Bibliography
Index

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