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Law Notes Competition Law Notes

Enforcement Notes

Updated Enforcement Notes

Competition Law Notes

Competition Law

Approximately 389 pages

Competition Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB and BCL competition law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).

These were the best Competition Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding l...

The following is a more accessible plain text extract of the PDF sample above, taken from our Competition Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Enforcement of EU Competition law

Public enforcement

ENFORCEMENT BY EUROPEAN COMMISSION (EC)

Public enforcement of Article 101 TFEU and Article 102 TFEU carried out by EC using powers provided by Regulation 1/2003.

1 – Prioritisation of enforcement

EC is not required to conduct an investigation in every case – it is entitled to accord different weights to complaint before it according to Union interest.

However, EC discretion not unlimited. EC must:

  1. Assess in each case how serious the alleged interferences with competition are; and

  • EC must consider attentively all matters of law and fact which complainants bring to EC’s attention (Ufex [2009]).

  • Must take into account duration and extent of infringements complained of and their effect on competition within the EU.

  • EC cannot rely on fact that practices have ceased if effects are ongoing.

  • If effects continue then EC remains competent to eliminate or neutralise them.

  • CEAHR [2011]: When considering the Union interest in prioritising a case, EC must in particular weigh:

  1. Significance of alleged infringement as regards functioning of internal market against

  2. Probability of its being able to establish the existence of the infringement; and

  3. Extent of investigative measures necessary to fulfil its tasking of ensuring the observance of Articles 101 and 102 TFEU.

  1. Provide precise and detailed reasons for its decision.

  • Reasons provided by EC must be sufficiently detailed and price to define EC’s priorities (Ufex [2009]).

  • Must set out facts justifying decision and legal considerations on basis of which it was adopted.

EC can decline to investigate complaint for lack of Union interest where National Competition Authorities well-placed to deal with it.

  • Court considers whether this in itself justifies EC’s finding of lack of sufficient Union interest – where multiple Member States are involved, may be that EU-level action more effective than various national-level actions (CEAHR [2011]).

EC Notice on handling of complaints by EC (2004) contains most of the information above, but also notes that EC is not obliged to set aside a complaint where there is no clear Union interest – may still go ahead with investigation.

1.1 – Complaints procedure

Potential infringements of Competition law may be brought to the attention of EC by a complainant – under Regulation 1/2003, EC focuses on serious infringements of Articles 101 and 102 TFEU and hence relies on information supplied by Us and consumers.

Article 7(2), Regulation 1/2003 permits natural or legal persons that can show a legitimate interest to lodge a complaint to ask EC to find an infringement of Article 101 and/or 102 TFEU and require the infringement be brought to an end under Article 7(1).

EC Notice on handling of complaints by EC (2004):

  • [36]: Us can claim a legitimate interest where they are operating in the relevant market or where the conduct is liable to directly and adversely affect their interests.

  • [37]: Consumer associations can lodge complaints with EC, so can individual customers where their economic interests are directly and adversely affected, insofar as they are buyers of the relevant goods and services.

  • [38]: General interest considerations put forward by the complainant are insufficient to amount to a legitimate interest – does not show that complainant liable to be directly and adversely affected by infringement.

EC must decide on complaints within a ‘reasonable time’ ([60]), with what is reasonable depending on the circumstances of each case, including:

  1. Context;

  2. Various procedural steps;

  3. Conduct of parties in course of procedure;

  4. Complexity of case; and

  5. Importance for parties involved.

2 – Enforcement powers of EC and penalties for non-compliance

Regulation 1/2003 gives EC a number of powers in enforcing EU Competition law.

  1. Request for information (Article 18);

  2. Inspection powers (Articles 20 & 21).

  • Inspections of undertakings (Article 20);

  • Power to take statements (Article 19);

  • Inspection of other premises (Article 21).

2.1 – Request for information (Article 18, Regulation 1/2003)

Article 18, Regulation 1/2003 allows EC, in order to carry out the duties assigned to it by Regulation 1/2003, to require undertakings to provide all necessary information by simple request or decision.

‘Necessary information’ refers to the objectives for the achievement of which the powers of investigation have been conferred on EC (SEP [1991]).

  • By simple request:

  • Article 18(2): When sending a simple request for information, EC shall –

  • State legal basis and purpose;

  • Specify information required;

  • Fix time-limit for provision;

  • Indicate penalties provided for in Article 24;

  • Indicate right to have decision reviewed by ECJ.

  • By decision:

  • Article 18(3): When requiring undertakings to supply information by decision, EC shall –

  • State legal basis and purpose;

  • ‘Purpose’ must involved identifying the alleged infringement of competition rules (Heidelberg Cement [2014]).

  • However not required to make precise legal analysis nor communicate to U all information at its disposal.

  • Formulation of reasons in general terms insufficient for determination of suspicion of infringement justifying decision.

  • Specify information required;

  • Fix time-limit for provision;

  • Indicate penalties provided for in Article 23;

  • Indicate or impose penalties provided for in Article 24;

  • Indicate right to have decision reviewed by ECJ.

Article 18(5): EC must forward copy of simple request or decision to National Competition Authority…

  1. In whose territory seat of relevant U is situated; and

  2. Whose territory is affected.

Article 18(6): At EC’s request, governments and National Competition Authorities shall provide EC with all necessary information to carry out duties under Regulation 1/2003.

2.1.1 – Penalties for non-compliance

Articles 23 and 24, Regulation 1/2003 provide for the imposition of fines and periodic penalty payments respectively for a failure to comply with a number of EC’s powers of...

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