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

When the Commission considers that the facts found during the investigation are sufficient to justify legal action, it may decide to initiate proceedings. According to Article 2 of Regulation No 773/2004 , this decision may take place at any point in time, but no later than the date on which a preliminary assessment of the competition concerns expressed by the Commission, or a Statement of Objections or a request for the parties to express their interest in engaging in settlement discussions is issued, or the date on which a notice of commitments offered by the parties under Article 9 of Regulation No 1/2003 is published, whichever is the earlier.

The concept of the initiation of proceedings is particularly important since it is the starting point of the adversarial procedure. From the notification of the Statement of Objections, the rights of defense of the undertakings are fully respected and, pursuant to Article 27 of the Regulation, those undertakings can be heard on the matters to which the Commission has taken objection. Therefore, it would appear to be essential for the undertaking involved to know with certainty whether an action has been initiated against it. The initiation of the proceedings produces one further effect: it deprives the national authorities having jurisdiction from the right to apply Articles 101 and 102 TFEU. When the Commission initiates the administrative procedure, those authorities must suspend their ruling until a decision is adopted (Regulation No 1/2003, Article 11(6)). By contrast, the national courts still have jurisdiction to apply Articles 101 and 102 TFEU . Due to the risk of inconsistency between the national decision and the Commission's decision, it is however better for the court to suspend its decision when the solution is not certain or to apply the amicus curiae procedure provided for by Article 15 of Regulation No 1/2003.

In order to initiate the proceedings, the Commission must produce an authoritative measure under which it states its intention of taking a decision . The adversarial proceedings thus initiated consist of two phases: a written phase and an oral phase, in which both the undertakings involved and any third parties participate. The initiation of proceedings does not produce any other effect. As it is a preliminary measure, no action for annulment can be brought against it.

The Commission may make public the initiation of proceedings in any appropriate way but before doing so, it must inform the parties concerned (Regulation No 773/2004, Article 2(2)).

In its version amended by Regulation No 622/2008 of 30 June 2008, OJ L 171, 3.

The jurisdiction of the national courts to apply Articles 101 and 102 TFEU results from the direct effect of those articles in relations between individuals: Case 127/73 BRT v SABAM [1974] ECR 51, LawLex200400002886JBJ.

Such evidence must be unambiguous and shall be notified to the Member State: CA Paris, 26 January 1963, UNEF v Consten; CA Paris, 22 February 1967; Case 48/72 SA Brasserie de Haecht v Wilkin-Janssen [1973] ECR 77, LawLex200400002770JBJ: such act can be neither a complaint nor a filing letter.

231. Initiation of proceedings