On June 30, 2022, the European Commission (“EC”) launched a public consultation seeking feedback on the performance of Regulation 1/2003[1] and Regulation 773/2004[2] (the “Regulations”), which govern the enforcement procedure of EU antitrust law.[3] Interested parties are invited to provide comments by October 6, 2022.
Background
Regulation 1/2003 entered into force in 2004 and reformed the procedure for the enforcement of Articles 101 and 102 TFEU. It abolished the ex ante notification system for potentially restrictive agreements, granted national competition authorities (“NCAs”) and national courts concurrent jurisdiction to apply EU antitrust rules, enhanced the EC’s enforcement tools, and strengthened the cooperation between the EC and the NCAs through the creation of the European Competition Network. It also delegated to the Commission the power to adopt an implementing regulation (Regulation 773/2004), which reinforced the rights of complainants and, following amendment in 2008, introduced a settlement procedure.
In 2014, the EC published a Communication that assessed the antitrust enforcement under Regulation 1/2003 after its first ten years.[4] The Communication concluded that, while Regulation 1/2003 transformed the enforcement landscape and resulted in a strong enforcement record, further work was necessary to guarantee the independence of the NCAs. In particular, the Commission sought to ensure that all NCAs had a complete set of effective investigative and decision-making powers, the ability to impose effective and proportionate fines, and well-designed leniency programs. Some of these goals were pursued by the ECN+ Directive 2019/1, which entered into force on February 3, 2019.[5]
Evaluation objective
The objective of the EC’s current evaluation is to assess whether the procedural antitrust rules in the EU need to change after almost 20 years of application. The EC notes that, while its enforcement action has adapted to evolving markets, new technologies, and changing ways of doing business, the procedural framework has remained largely the same.
The EC intends to evaluate the Regulations as part of a broader review exercise aimed at ensuring that EU antitrust procedure remains “fit for purpose”.[6] In addition to the public consultation, the EC’s evaluation will involve an expert survey, one or more stakeholder workshops, and a targeted consultation with NCAs.
Public consultation
As part of the consultation, the EC asks general questions, grouped by five evaluation criteria focusing on the (i) effectiveness, (ii) efficiency, (iii) relevance, (iv) coherence, and (v) EU added value of the Regulations (assessing the incremental value of EU-level rules compared to Member States’ individual actions in this area).
The EC’s questions also cover specific topics, such as (i) the EC’s powers of investigation (e.g., sector investigations, requests for information, power to take statements, and inspections), (ii) the rights of defense (particularly with regard to the right to be heard and the role of the Hearing Officer, access to file, and handling of formal complaints), (iii) the EC’s decisional powers (e.g., the powers to order interim measures or the adequacy of the EC’s powers to address structural competition concerns in markets investigated by the EC), and (iv) the EC’s cooperation with NCAs and Member State courts.
Interested parties can also submit any other comment or share documents that may be relevant for the EC’s evaluation.
How to respond
Interested parties can choose to reply to a short general questionnaire[7] or a more detailed questionnaire[8] on the application of Regulation 1/2003 and Articles 101 and 102 TFEU. The shorter questionnaire is intended for the general public.
Both questionnaires are open for 14 weeks, until October 6, 2022. We invite you to contact us with any views on the EC’s consultation or any questions. The responses will serve as input for a Staff Working Document summarizing the results of the evaluation exercise, which the EC intends to publish by mid-2024.
[1] Council Regulation (EC) No. 1/2003 of December 16, 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1/18 (“Regulation 1/2003”).
[2] Commission Regulation (EC) No. 773/2004 of April 7, 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ 2004 L 123/18 (“Regulation 773/2004”).
[3] EC, Competition Policy, Public Consultations, EU Antitrust procedural rules – evaluation, available at https://ec.europa.eu/competition-policy/public-consultations/2022-antitrust-procedural-rules_en.
[4] Communication from the Commission to the European Parliament and Council of July 9, 2014, “Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives”, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0453&from=EN.
[5] Directive (EU) 2019/1 of the European Parliament and of the Council of December 11, 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, OJ 2019 L 11/3 (“Directive 2019/1”).
[6] The EC also intends to update the criteria of the 2004 Communication on informal guidance to be able to provide informal guidance under Articles 101 and 102 TFEU in cases where there are novel or unresolved issues, in particular where companies resort to new business practices or face a crisis or other emergency. The EC launched a one-month call for contributions between May 24, 2022 and June 21, 2021. See EC, Have your say, Published initiatives, Anti-competitive agreements and abuse of a dominant market position – update of informal guidance notice for businesses, available at https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13448-Anti-competitive-agreements-and-abuse-of-a-dominant-market-position-update-of-informal-guidance-notice-for-businesses_en.
[7] Evaluation of Regulations 1/2003 and 773/2004 – General questionnaire, available at https://ec.europa.eu/eusurvey/runner/Reg12003OpenPublicConsultation2022.
[8] Evaluation of Regulations 1/2003 and 773/2004 – detailed questionnaire, available at https://ec.europa.eu/eusurvey/runner/Reg12003detailedquestionnaire.