EUR-Charts

The box in the 3rd row, on the left hand side, entitled “Hearing”, must read:

Hearing

Art. 27 of Regulation 1/2003/EC, Arts. 11-14 of Regulation 773/2004/EC

• Upon the request of a party in the written reply to the statement of objection or of a third party that can show sufficient interest;
• Conducted by the hearing officer who ensures respect for the rights of defence, Decision 2011/695/EU.

The box in the 2nd last row, entitled “Possibility of judicial review”, must read:

Possibility of judicial review

• Action for annulment to the General Court under Art. 263 TFEU; see Chart B18.
• Appeal on points of law to the Court of Justice; see Chart B20.

Note: The judicial review provided is compatible with the requirements of the principle of effective judicial protection by EU Courts as required by Art. 6 ECHR and the Charter of Fundamental Rights; KME (2011), which in fact is a follow-up case on the ECHR case Menarini (2011).

The box in the 2nd row, entitled “Generally: a system of parallel competences”, must read:

Generally: a system of parallel competences

• Arts. 4, 5 and 6 of Regulation 1/2003/EC: the NCAs, the national courts and the Commission share the competence to apply Arts. 101 and 102 TFEU (note: regarding Art. 5, only the Commission and not the NCA is empowered to make a finding that there has been no breach of Article 102 TFEU, even if that provision is applied in a procedure undertaken by an NCA; Tele2 Polska (2011)).;
• Any person or firm affected by anti-competitive behaviour may bring the matter before the national courts and seek damages (private enforcement); e.g. Pfleiderer (2011); see Chart B17.

The box in the 3rd row, entitled “Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case”, must read:

Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case

• Art. 11(1) of Regulation 1/2003/EC: the Commission and the NCAs apply the EU competition rules in close cooperation;
• Art. 11(6) of Regulation 1/2003/EC: proceedings by the Commission under Chapter III of the Regulation relieve the NCAs of their competence. For effect prior to accession: Toshiba (2012).

The box in the 4th row, on the right hand side, must read:

Information by the undertaking to the Commission, in order to obtain a certain (beneficial) reaction from the Commission, namely:

• Finding of inapplicability of Art. 101 TFEU (formal decision), Art. 10 of Regulation 1/2003/EC;
• Informal guidance letter; recital 38 in the preamble to Regulation 1/2003/EC, Commission Notice on guidance letters (2004);
• Immunity from fines (provided cooperation by the undertaking was full, continuous and expeditous; Deltafina (2011)).

The box in the 6th row, entitled “Second generation of secondary legislation on enforcement: The European Competition Network”, must read:

Second generation of secondary legislation on enforcement:
The European Competition Network

Regulation 1/2003/EC (in force since 1 May 2004):
• Chapter IV: close cooperation between the Commission and the NCAs, which together make up the European Competition Network; see Commission Notice on cooperation with the Network of
Competition Authorities (2004);
• Arts. 5 and 6: NCAs and national courts have the power to apply Art. 101 TFEU in full as well as Art. 102 TFEU; for a practical example, see Pierre Fabre (2011).

Add a new box at the very bottom of the chart:

With regard to private enforcement, see Chart C56

The box in the 4th row must read:

Obligation of the undertakings to cooperate

In principle, the undertakings must cooperate with the Commission. In certain circumstances, undertakings may withhold information:
• Self-incrimination:
No obligation of undertakings to admit infringements, though factual questions must be answered; recital 23 in the preamble to Regulation 1/2003/EC; Orkem (1989), Solvay (1989), Société Générale (1995).
• Legal professional privilege (attorney – client):
No obligation of an undertaking to disclose confidential communications with its external counsel; AM & S (1982). No such privilege for in-house counsel; AKZO Nobel (2010);
• Protection of business premises:
Art. 8 ECHR (protection of the home) may in certain circumstances cover business premises. The Commission’s measures must not be arbitrary or disproportionate; Roquettes Frères (2002);
• Breach of seal during an inspection:
In the case of a breach of a seal, the undertaking must prove that the seal was neither wilfully nor negligently broken; E.ON (2012).

The box in the 4th row, on the right hand side, entitled “Penalties”, must read:

Penalties

Imposition of financial penalties is possible, Arts. 23 et seq. of Regulation 1/2003/EC:
• Fines;
• Period penalty payments.

Commission Guidelines on the method of setting fines (2006) mentions mitigating and aggravating circumstances; e.g. Intel (2014), involving the highest fine imposed so far.

Ne bis in idem, Art. 6 ECHR:
• The Commission must take account of fines imposed for the same conduct under the national law of a Member State; Boehringer Mannheim (1972), SGL Carbon (2007).
• However, this does not apply in relation to fines imposed for the same conduct under the national law of a third country; SGL Carbon (2007).