On October 3, 2022, the Commission adopted a Revised Informal Guidance Notice on the application of Articles 101 and 102 TFEU to novel or unresolved competition law questions. The Revised Informal Guidance Notice gives the Commission more flexibility in issuing informal advice compared to the 2004 guidance.
Prior to 2003, the Commission frequently issued “comfort letters” under Regulation 17 to applicants seeking clarity as to whether their agreements and conduct complied with EU competition rules. This placed a considerable burden on the Commission’s resources and prompted a shift towards a system of “self- assessment” under Regulation 1/2003, which remains applicable to date. The Commission only retained limited powers to issue informal guidance with a view to ensuring legal certainty.
The 2004 Guidance Notice
Under the 2004 Informal Guidance Notice, the Commission would only provide informal guidance if “no clarification [exists in the] EC legal framework” and that clarification would be “useful”. The rationale for setting a very high threshold was to prevent a reintroduction of the abolished notification system though the back door. In practice, the Commission reportedly did not issue any guidance letters in the past two decades.
The 2022 Guidance Notice
The Revised Informal Guidance Notice introduces increased flexibility for the Commission to engage in informal discussions. The starting point remains the same: the Commission should only provide informal guidance when: (i) a novel or unresolved competition law question is at issue; and (ii) there is “an interest” in providing guidance. To ensure a more effective application of this tool, though, the Revised Informal Guidance Notice increases the Commission’s discretion to act through three principal changes.
First, informal guidance can now be given in the absence of “sufficient clarity” on the underlying point of law, compared to the previously required absence of any clarification. The Commission can now issue guidance where there is a gap in existing precedent, and clarification would provide “added value with respect to legal certainty.” For example, this is arguably the case with respect to pricing algorithms. Second, the Commission can take into account the “Commission’s priorities or Union interest” when deciding whether there is sufficient interest in providing guidance. Third, a number of procedural changes open the door for increased communication with undertakings applying for guidance (e.g., requirement that applicants submit their own preliminary assessment on the application of Articles 101 and 102 TFEU; informal pre-application discussion with the Commission). In the same vein, the Commission ought to “use its best efforts to inform the applicant of the course of action that it intends to take […] within a reasonable time,” including if it decides not to issue any guidance.
The Revised Informal Guidance Notice introduces much overdue flexibility for the Commission to give informal guidance on novel competition law questions. This sends a message that the Commission is determined to increase its informal engagement with undertakings and make effective use of its entire competition enforcement toolkit. However, the Commission’s informal guidance process does not provide sufficient protection against self-incrimination and explicitly preserves the Commission’s power to launch proceedings based on informal guidance applications. This may end up disincentivizing most undertakings from directly engaging with the Commission on the very issues that are most in need of clarification.
 Commission notice on informal guidance relating to novel or unresolved questions concerning Articles 101 and 102 of the Treaty on the Functioning of the European Union that arise in individual cases, OJ 2022 C 381/9 (“Revised Informal Guidance Notice”)
 Commission notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases, OJ 2004 C 101/78 (“2004 Informal Guidance Notice”).
 Article 4-8 of Regulation No. 17 implementing Articles 65 and 86 of the Treaty OJ 1962 L 204/62 (“Regulation 17”).
 Council Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty OJ 2004 L 1/1 (“Regulation 1/2003”)
 Rec. 38 of Regulation 1/2003.
 Para. 8 of the 2004 Informal Guidance Notice.
 European Commission, “Call for Evidence for an initiative on Anti-competitive agreements and abuse of a dominant market position – update of informal guidance notice for businesses,” May 24, 2022, 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.
 Ibid.; Para. 8 of the 2004 Informal Guidance Notice.
 Para. 7 of the Revised Informal Guidance Notice.
 Ibid., para. 7(a).
 Para. 8(a) of the 2004 Informal Guidance Notice.
 Para. 7(a) of the Revised Informal Guidance Notice.
 Ibid., para. 7(b).
 Ibid., paras. 12–13.
 Ibid., para. 17.
 Ibid., para. 19.