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

Within the system of parallel competence instituted by Regulation No 1/2003, each competition authority may handle cases under EU law. The Notice on cooperation within the network of competition authorities sets out the criteria by which competence is divided and settles the issue of re-allocation of cases .
"Cases are dealt with by:
- a single NCA [national competition authority], possibly with t …

Network of competition authorities

Within the system of parallel competence instituted by Regulation No 1/2003, each competition authority may handle cases under EU law. The Notice on cooperation within the network of competition authorities sets out the criteria by which competence is divided and settles the issue of re-allocation of cases .

- a single NCA [national competition authority], possibly with the assistance of NCAs of other Member States; or;

In most instances the authority that receives a complaint or starts an ex-officio procedure takes charge of the case. Under the principle of subsidiarity, the Commission is not in itself better placed than a national authority to deal with the case. On the other hand, if the national authority considers that it is not the best placed, or if other authorities consider themselves better placed, the reassignment of the case will be planned at the start of the procedure . The case is allocated by the member of the network to a single well placed competition authority as often as is possible.

An authority is well placed where three cumulative conditions are met:

"- the agreement or practice has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory;

- the authority is able to effectively bring to an end the entire infringement, i.e. it can adopt a cease-and desist order the effect of which will be sufficient to bring an end to the infringement and it can, where appropriate, sanction the infringement adequately;

- it can gather, possibly with the assistance of other authorities, the evidence required to prove the infringement .

A close link between the territory of a Member State and the infringement under review must exist for the national authority to be considered to be well placed to deal with the case . However, the General Court has specified that neither Regulation No 1/2003, nor the Notice on cooperation within the network of competition authorities creates rights or expectations for an undertaking as far as the dealing of its case by a given competition authorities is concerned, since the conditions in which an authority may, according to the notice, be considered as well placed to act in a case are not restrictive . On the other hand, even if this criterion is not expressly referred to, compliance with the requirements of the State of Law, in particular the allegation of systemic or generalized failings likely to compromise the independence of national courts and authorities, is a relevant factor which the Commission must take into account, for the purposes of determining the competition authority best placed to examine a complaint .

The regulation has created an information mechanism for the competition authorities to ensure that cases are handled by a well placed authority. Article 11(3) of the regulation lays down an obligation for NCAs to inform the Commission when acting under Article 101 or 102 of the Treaty before or without delay after commencing the first formal investigative measure. The Commission is under the same obligation . In principle, the authorities have a period of two months from the date of notice to settle any allocation issues , although this period is not mandatory, according to the General Court . Article 11(6) of Regulation No 1/2003 enables the Commission to relieve the competition authorities of the Member States of their competence to apply Articles 101 and 102 TFEU. The Commission may exercise this prerogative, without any complaint of abuse of process or infringement of the principle of subsidiarity, when it deems it necessary to intervene itself in order to prevent shortcomings in the national system for sanctioning infringements of the competition rules of the best-placed authority from enabling an undertaking to escape liability, all the more so when it acts at the express request of that Member State and suspicions of infringement of competition law in several Member States have arisen in the course of the investigation .

The competition authority or authorities dealing with a case at the end of the re-allocation period should continue to deal with the case until the completion of the proceedings. Exchanges of information may not only take place between an NCA and the Commission but also between and amongst NCAs. The exchange and the use of information must guarantee the protection of business secrets. Information gathered can be used in evidence for the purpose of applying national competition law but only if the application of national law does not lead to an outcome as regards the finding of an infringement different from that under Articles 101 and 102 TFEU. Sanctions can only be imposed on individuals on the basis of information exchanged pursuant to the Council regulation if the laws of the transmitting and the receiving authorities do not provide for sanctions of a similar kind in respect of individuals, unless the rights of the individual concerned as regards the collection of evidence have been respected by the transmitting authority to the same standard as they are guaranteed by the receiving authority .

Where several competition authorities have received a complaint or are acting on their own initiative against the same agreement, Article 13 of the regulation provides a mechanism for the suspension of proceedings or rejection of the complaint. The national authority may suspend or terminate the proceedings but is under no obligation to do so. Suspension of the proceedings allows the authority to postpone its decision to terminate the proceedings. Where an authority terminates or suspends proceedings, it hands over all the evidence at its disposal to the authority continuing proceedings.

The inspection conducted by a national competition authority cannot, in any case, give rise to the legitimate expectation, on the part of the applicant, that the Commission will refrain from intervening in the case. In effect, the Commission is entitled to adopt at any time individual decisions under Articles 101 and 102 TFEU, such as to conduct a surprise inspection, even where an agreement or practice has already been the subject of a decision by a national court and the decision contemplated by the Commission conflicts with that national court's decision . 

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

Case T-587/22 Crown Holdings, Inc., Judgment of 2 October 2024, LawLex202400007276JBJ and Case T-589-22, Silgan Holdings, Inc., not available in English, cited above.

See Commission Notice No 2004/C 101/03 of 27 April 2004, at pt 28(c).

Case T-325/16 Ceské dráhy a.s. c., Judgment of 20 June 2018, LawLex201800001736JBJ.

Case T-587/22 Crown Holdings, Inc., Judgment of 2 October 2024, LawLex202400007276JBJ and Case T-589-22, Silgan Holdings, Inc. not available in English, holding that the principle of subsidiarity cannot be invoked by an undertaking when the Commission has dealt with the case similarly at the request of the Member State concerned.

See Commission Notice No 2004/C 101/03 of 27 April 2004, at pt 8.

Case T-791/19 Sped-Pro S.A., Judgment of 9 February 2022, LawLex202300002466JBJ, holding that the Commission makes no manifest error of assessment in considering that a national authority is best placed to examine a complaint when the practices complained of mainly concern a market located in that Member State, and that this authority has acquired detailed knowledge of the sector in question.

Case T-144/07 ThyssenKrupp Liften Ascenseurs v Commission, not available in English; Case T-201/11 Si.mobil telekomunikacijske storitve d.d., Judgment of 17 December 2014, LawLex201400001466JBJ; Case T-574/14 European Association of Euro-Pharmaceutical Companies, Judgment of 26 September 2018, LawLex201800001412JBJ.

TUE, 9 February 2022, Sped-Pro S.A., Case T-791/19, LawLex202300002466JBJ, cited above.

See however, Case T-339/04 France Télécom v Commission [2007] ECR II-521, LawLex200900000050JBJ emphasizing that the Commission is not obliged to consult the national competition authority already acting on the case before carrying out an inspection insofar as the decision to carry out inspections does not have the effect of formally initiating proceedings within the meaning of Article 11(6) of Regulation No 1/2003.

See Commission Notice CE 2004-C 101-03 of 27 April 2004, pt 18.

European Competition Law

177. Network of competition authorities

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177. Network of competition authorities

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise