European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Where the Commission wishes to take a decision on the application of Article 101(1) or (3) or Article 102 TFEU, it must first consult the Advisory Committee. This obligation applies equally to decisions finding an infringement or granting derogations and to those imposing fines or penalties . On the other hand, purely procedural decisions relative to requests for information or investigations do n …

Advisory Committee

The Commission, like the Council and the Court of Justice is charged with ensuring the achievement of the task entrusted to the Union (Article 13 TFEU). The Commission, as the administrative authority responsible for the implementation and development of EU competition policy , must ensure the competition rules are applied and thus contribute to the establishment of a system of undistorted competition. To achieve this, it has wide powers and has a dual function as investigating and decision-making authority. This is not contrary to Article 6 of the ECHR insofar as the Commission is not a tribunal and as its decisions are subject to the review of the General Court, which has full jurisdiction and is an independent and impartial court within the meaning of Article 6 ECHR . The Commission actually has three functions: investigative, decision-making and the imposing of sanctions. To bring an Article 101 or 102 infringement to an end, it may hand down a decision that may or may not include the imposition of a fine, after having gathered the necessary evidence establishing the existence of a legitimate interest for such action. It may order interim measures and also has the power to order corrective behavioral or structural measures or to make the commitments proposed by undertakings binding upon them (See No 248). It may also render decisions declaring Articles 101 and 102 inapplicable, particularly in respect of agreements or practices for which there are no jurisprudential or administrative precedents.

According to the system of parallel jurisdiction put in place by Regulation No 1/2003, all EU competition authorities have the power to apply Articles 101 and 102 and the Commission no longer has exclusive jurisdiction. Cases are handled (Regulation No 1/2003, Article 11) within the network of competition authorities, either (i) by a single competition authority, (ii) by several authorities acting in parallel or, (iii) by the Commission . A particular authority will usually be considered as well placed to handle a case where the agreements or practices at issue substantially affect competition on its territory.

The Commission, in its notice , sets out two criteria that will virtually always establish its own jurisdiction. It is particularly well placed to handle a case, on the one hand if the anticompetitive practice in question produces effects on competition in more than three Member States  and, on the other, where the case is closely related to other EU provisions that are exclusively, or more efficiently applied by the Commission, or if the Union interest requires the Commission to adopt a decision for the development of EU competition policy. Such would be the case where a new competition issue arises or where the efficient application of the rules demands its intervention. Except for multi-State cases, the Commission now only examines cases having a particular significance for the Union due to the novelty of the issue raised, its economic impact or its political importance.

If the Commission considers itself competent, it may examine a case of its own initiative. Initiation by the Commission of proceedings for the adoption of a decision relieves the competition authorities of the Member States of their competence to apply Articles 101 and 102 TFEU .

Finally, the Commission retains exclusive competence to hold Articles 101 and 102 inapplicable . Article 10 of Regulation No 1/2003 in effect provides that where the EU public interest so requires, the Commission, acting on its own initiative, may by decision find that Article 101 of the Treaty is not applicable to an agreement, a decision by an association of undertakings or a concerted practice either because the conditions of Article 101(1) are not fulfilled, or because the conditions of Article 101(3) are satisfied.

See Article 4 of Regulation No 1/2003 on the powers of the Commission.

See Case T-348/94 Enso Española v Commission [1998] ECR II-1875, LawLex200500005223JBJ; See Case T-25/95 Cimenteries CBR (SA) v Commission [2000] ECR II-491, LawLex200400003586JBJ.

See Commission Notice No 2004/C 101/03 of 27 April 2004.

See Commission Notice No 2004/C 101/03 of 27 April 2004, at pts 14 and 15.

Regardless of whether it concerns a market of EU dimension, several national markets or a cross-border market. However, for a case concerning several juxtaposed national markets, the Commission can examine only one of them as the "principal case", with the others being examined by the national authorities, especially where each requires individual assessment.

See Article 11(6) of Regulation No 1/2003: "If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority".

Case C-375/09, Tele2 Polska, Judgment of 3 May 2011, LawLex201100000948JBJ.

European Commission

Where the Commission wishes to take a decision on the application of Article 101(1) or (3) or Article 102 TFEU, it must first consult the Advisory Committee. This obligation applies equally to decisions finding an infringement or granting derogations and to those imposing fines or penalties . On the other hand, purely procedural decisions relative to requests for information or investigations do not require prior consultation of the committee unless the Commission plans to impose a pecuniary sanction . The Commission may also include on the agenda of the Advisory Committee cases that are being dealt with by the competition authority of a Member State under Article 101 or 102 TFEU or that it is handling on its own initiative under Article 11(6) of the regulation. It may do so of its own motion or at the request of the competition authority of a Member State. The opinion issued concerns only questions of law and does not address the facts of the case.

Consultation  takes place after the preliminary investigation and the written and oral submissions of parties. On that occasion the Commission submits a presentation of the case, the most important documents and a preliminary draft decision to all the representatives of the Member States that make up the Advisory Committee for an opinion. Undertakings are never given access to the arguments put forward to the Committee . The fact that an opinion is brief and lacking in detail, that the NCA rapporteur on the Advisory Committee was not present at the hearing of the undertakings or that only a small number of representatives of the Member State attended its meetings does not amount to a violation of the consultation obligation . This is also the case even when part of the preliminary draft decision has only been sent to the national authorities ten days before the first meeting, in the absence of a request for postponement by its members . On the other hand, the fact that the Advisory Committee may be aware, before it has delivered its opinion, of a solution previously adopted and, where applicable, confirmed by a judgment of the General Court, subsequently annulled by the Court of Justice, is inherent in the obligation to draw the consequences of an annulment, so that it cannot be inferred that the Committee is biased, unless this prohibits any resumption of the proceedings .

The Committee delivers its opinion, which is made up of a report appended to the draft decision. The opinion is not made public and undertakings cannot obtain a copy , nor can they directly address the Committee. The Advisory Committee can however recommend the publication of its opinion subject to the protection of the undertakings business secrets . The Commission is not bound by the opinion rendered but it can, however, influence its position. It is thus regrettable that undertakings do not have the opportunity to give their own views on the Advisory Committee opinion, even though the Commission can, in principle, only base its decision on the facts on which the parties have been able to express themselves.

Regulation No 1-2003, Art. 14; Notice on cooperation within the network of competition authorities, pts 58-68.

In both cases the Commission informs the competition authority concerned.

This usually takes the form of a meeting but can also, if no Member State objects, be by way of a written procedure; see also Commission Notice No 2004/C 101/03 of 27 April 2004, at pts 65 to 67.

TUE, 5th Ch., 12 July 2019, Hitachi-LG Data Storage, Inc, Case T-1/16, LawLex201900000932JBJ, stressing that the applicants' requests are not among the “most important documents” to be communicated to the Advisory Committee within the meaning of Art. 14(3) of Regulation No 1/2003, which instead include the main factual and legal elements of the proceedings, such as the market, the addressees, the objections, the duration of the infringement, the methodology and calculation of the fines, as well as the views expressed by the addressees in response to the objections raised by the Commission.

TUE, 12 December 2018, Teva UK Ltd, Case T-679/14, LawLex201900002064JBJ.

TUE, 9 November 2022, Ferriera Valsabbia SpA, Case T-655/19, LawLex202400005916JBJ and Alfa Acciai SpA, Case T-656/19 (LawLex not available in English).

See Case 100/80 through 103/80 Musique Diffusion française v Commission [1983] ECR 1825, LawLex200400003564JBJ.

See Commission Notice No 2004/C 101/03 of 27 April 2004, at pt 68.

European Competition Law

176. Advisory Committee

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176. Advisory Committee

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Les décisions de justice citées dans ce paragraphe :

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