¹ Council Regulation (EC) on the implementation of the rules on competition laid down in Article 81 and 82 of the Treaty Establishing the European Community, No. 1/2003, OJ 2003 (L 1)1.Google Scholar

² Council Regulation No. 17 of 6 February 1962, OJ 13, 21.2.1962, 204/62.Google Scholar

³ Recital 1 to 4 of Regulation No. 1/2003, as in note 1, supra.Google Scholar

⁴ Commission Reg. (EC) No. 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ 2004 (L 123) 18, Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), OJ 2004 (C 101/43, Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (2004/C 101/04), OJ 2004 C 101/54, Commission Notice on the handling of complaints by the Commission under Articles 81 and 83 of the EC Treaty (2004/C 101/05), OJ 2004 C 101/65, Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) (2004/C 101/06), OJ 2004 C 101/78, Commission Notice – Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (2004/C 101/07), OJ 2004 C 101/81, Commission Notice – Guidelines on the application of Article 81(3) of the Treaty (2004/C 101/08), OJ 2004 C 101/97.Google Scholar

⁵ Regulation No. 17 was last amended by Regulation (EC) No. 1216/1999, OJ 1999 L 148/5.Google Scholar

⁶ See Art. 4, 5, 6 and 9 of Reg. No. 17, as in note 2, supra.Google Scholar

⁷ See IP/04/441, Brussels, 30 March 2004.Google Scholar

⁸ See recitals 1 to 4 of Regulation No. 1/2003, as in note 1, supra.Google Scholar

⁹ e.g. Reg. 2658/2000, OJ 2000 L 304/3, Regulation 2659/00, OJ 2000 L 304/7, Regulation 2790/99, OJ 1999 L 336/21, Regulation 240/96, OJ 1996 L 31/2, Regulation 4087/88, OJ 1988 L 359/46.Google Scholar

¹⁰ Stevens, D., The„Comfort Letter“: Old Problems, New Developments, ECLR 1994, 81, R. Whish, Competition Law, in Butterworths, 4^TH ed. 217 (2001) 217.Google Scholar

¹¹ White Paper on Modernization of the Rules Implementing Articles 85 and 86 of the EC Treaty, Commission Programme 99/27, OJ 1999 C 132/1.Google Scholar

¹² There is a voluminous literature on the White Paper, which contains all shades of opinion. J. Nazerali and D. Cowan, Modernising the Enforcement of EU Competition Rules – Can the Commission Claim to be Preaching to the Converted?, ECLR 1999, 442, R. Wesseling, The Commission White Paper on Modernisation of EC Antitrust Law: Unspoken Consequences and Incomplete Treatment of Alternative Options, ECLR 1999, 420, C.-D. Ehlermann, The Modernization of EC Antitrust Policy: A Legal and Cultural Revolution, 37 CMLRev. 537 (2000), A. Schaub, Modernisation of EC Competition Law: Reform of Regulation No. 17, in B. Hawk (ed.), Fordham University 2000 at chapter 10‥ I. Forrester, Modernisation of EC Competition Law, id at…, chapter 12, M. Siragusa, A Critical Review of the White Paper on the Reform of the EC Competition Law Enforcement Rules, id. at chapter 15, R. Wish and B. Suffin, Community Competition Law: Notification and Exemption – Goodbye to All That, in D. Hayton (ed.), Law's Future(s): British Legal Developments in the 21^ST Century, chapter 8 (Hart, 2000), D. Gerber, Modernising European Competition Law: A Developmental Perspective, ECLR 2001, 122, S. Kingston, A New Division of Responsibilities in the Proposed Regulation to Modernise the Rules Implementing Articles 81 and 82 EC? A Warning Call, ECLR 2001, 340, M. Monti, European Competition Law for the 21^st Century, in B. Hawk (ed.), Fordham University, 2001, chapter 15, W. Wils, The Modernisation of the Enforcement of Articles 81 and 82 EC: A Legal and Economic Analysis of the Commission's Proposal for a New Council Regulation Replacing Regulation No. 17, id. at chapter 18.Google Scholar

¹³ White Paper, supra at note 11, 11.Google Scholar

¹⁴ The Commission emphasized that it was extremely rare that notifications lead to prohibition decisions. In more than 35 years of application of Regulation No. 17 there have been only 9 decisions in which a notified agreement was prohibited without a complaint having been lodged against it, see White Paper, supra at note 11, 20.Google Scholar

¹⁵ White Paper, supra at note 11,19.Google Scholar

¹⁶ White Paper, supra at note 11,29.Google Scholar

¹⁷ White Paper, supra at note 11,22.Google Scholar

¹⁸ Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and amending Regulations (EEC) No. 1017/68, (EEC) No. 2988/74, (EEC) No. 4056/86 and (EEC) No. 3975/87, COM 582 final (2000).Google Scholar

¹⁹ Venit, J. S., Brave New World: The Modernization and Decentralization of Enforcement Under Articles 81 and 82 of the EC Treaty, 40 CMLRev 545 (2003).Google Scholar

²⁰ However, it was controversial whether there is a legal basis in the Treaty to establish direct and therefore decentralised application of Article 81(3) EC-Treaty. The legal basis for the Regulation No. 1/2003 is Article 83 of the EC-Treaty. This provision empowers the Council to lay down the appropriate regulations or directives to give effect to the principles set out in Articles 81 and 82. In a non-exhaustive list, Article 83(2) enumerates elements that should in particular be covered by implementing rules created on this basis. The old Regulation No. 17 endowed the Commission with exclusive power to apply Article 81(3) in the framework of an administrative procedure having as its object an authorisation decision. However, the legal basis in Article 83 is not limited to the application of Articles 81 and 82 by specific decision-makers. Article 83 is rather suitable for direct application which can be carried out by other authorities then the Commission. While leaving a certain margin of appreciation as to its interpretation, Article 81(3) does not imply discretionary powers that could only be exercised by an administrative body. A limited margin of appreciation does not make a Treaty provision unsuitable for direct application. On balance, it might be said that Article 83 EC-Treaty is a sufficient legal basis to establish direct applicability of Article 81(3) EC-Treaty by means of adopting a Regulation such as No. 1/2003. See C.-D-Ehlermann, The Modernization of EC Antitrust Policy: A Legal and Cultural Revolution, (2000) 37 CMLRev. 537, P. Craig/G. de Búrca, EU Law, Oxford University Press, 3rd ed., 1063 (2002).Google Scholar

²¹ Monti, G., Article 81 EC and Public Policy, 39 CMLRev. 1058 (2002).Google Scholar

²² See Art. 10 of Reg. No. 1/2003, supra at note 1.Google Scholar

²³ See also recital 17 of Reg. No. 1/2003, supra at note 1.Google Scholar

²⁴ See recital 14 of Reg. No. 1/2003, supra at note 1.Google Scholar

²⁵ Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) (2004/C 101/06), OJ 2004 C 101/78, point 3.Google Scholar

²⁶ The Commission adopted seven documents which complement Regulation No. 1/2003. The entire exercise is commonly referred to as the “Modernisation Package”. The latter comprises the documents listed supra at note 4.Google Scholar

²⁷ See Art. 15(5) of Reg No. 17. The Commission has made only exceptional use of Article 15(6) of Regulation No. 17, which empowers the Commission to withdraw notifying undertakings’ immunity from fines.Google Scholar

²⁸ However, the powers conferred on the Commission by Art. 23 and 24 shall be subject to limitation periods for the imposition of fines, as Article 25 of the Regulation No. 1/2003 provides.Google Scholar

²⁹ Wils, W. P.J., The Principle of Ne Bis in Idem in EC Antitrust Enforcement: A Legal and Economic Analysis, 26 World Competition 2, 131 (2003).Google Scholar

³⁰ In practice, most notified cases are closed by a non-binding administrative letter from the Commission, the so-called comfort letter.Google Scholar

³¹ A complete list embracing all block exemption regulations, notices and guidelines is available on the website of the Directorate General for Competition of the European Commission: http://europa.eu.int/comm/competition/antitrust/legislation/.Google Scholar

³² Commission Notice – Guidelines on the application of Article 81(3) of the Treaty (2004/C 101/08), OJ 2004 C 101/97.Google Scholar

³³ See recital 14 of Reg. No. 1/2003, as in note 1 above.Google Scholar

³⁴ Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) (2004/C 101/06), OJ 2004 C 101/78.Google Scholar

³⁵ Craig, P./de Búrca, G., EU Law, Oxford University Press, 3rd ed., 237, 75 (2002).Google Scholar

³⁶ Article 3(2) of Regulation 1/2003, supra at note 1‥Google Scholar

³⁷ Also see recital 9 of Reg. No. 1/2003, supra at note 1.Google Scholar

³⁸ However, this does not mean that Member States are precluded from adopting and applying on their territory stricter national competition laws which prohibit or impose sanctions on unilateral conduct engaged in by undertakings. These stricter national laws may include provisions which prohibit or impose sanctions on abusive behaviour toward economically dependent undertakings. Additionally, Reg. No. 1/2003 does not apply to national laws which impose criminal sanctions on natural persons except to the extent that such sanctions are the means whereby competition rules applying to undertakings are enforced.Google Scholar

³⁹ Commission Notice – Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (2004/C 101/07), OJ 2004 C 101/81, Commission Notice – Guidelines on the application of Article 81(3) of the Treaty (2004/C 101/08), OJ 2004 C 101/97.Google Scholar

⁴⁰ The guidelines are without prejudice to the interpretation of Article 81 and 82 which may be given by the Court of Justice and the Court of First Instance, as point 5 of the Notice clearly provides, Commission Notice – Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (2004/C 101/07), OJ 2004 C 101/81.Google Scholar

⁴¹ Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), OJ 2004 C 101/43.Google Scholar

⁴² Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), point 1, OJ 2004 C 101/43.Google Scholar

⁴³ See Article 11(3) of Reg. No. 1/2003, supra at note 1. This information may also be made available to the competition authorities of the other Member States.Google Scholar

⁴⁴ Recital 16 of Reg. No. 1/2003, supra at note 1, states that notwithstanding any national provision to the contrary, the exchange of information and the use of such information in evidence should be allowed between the members of the network even where the information is confidential.Google Scholar

⁴⁵ Also see recitals 19 and 20 of Reg. No. 1/2003, supra at note 1.Google Scholar

⁴⁶ According to point 58 of the Commission notice, the Advisory Committee is the forum where experts from the various competition authorities discuss individual cases and general issues of Community competition law. Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), OJ 2004 C 101/43.Google Scholar

⁴⁷ However, the Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), OJ 2004 C 101/43 provides orientations for the work sharing between the Commission and the Member States’ competition authorities.Google Scholar

⁴⁸ Commission Notice on the handling of complaints by the Commission under Art. 81 and 83 of the EC Treaty (2004/C 101/05), OJ 2004 C 101/65, (para. 20).Google Scholar

⁴⁹ Commission Notice on the handling of complaints by the Commission under Art. 81 and 83 of the EC Treaty (2004/C 101/05), OJ 2004 C 101/65, (para. 11).Google Scholar

⁵⁰ Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Art. 81 and 82 EC (2004/C 101/04), OJ 2004 C 101/54.Google Scholar

⁵¹ Art. 15(3) of Reg. No. 1/2003, supra at note 1.Google Scholar

⁵² Recital 25 of Reg. No. 1/2003, supra at note 1.Google Scholar

⁵³ The Commission's powers of investigation under Reg. No. 17 are covered by Art. 11, 12 and 14 of Reg. No. 17.Google Scholar

⁵⁴ See recital 26 of Reg. No. 1/2003, supra at note 1.Google Scholar

⁵⁵ Wils, W. P.J., supra at note 29.26 World Competition 2, 131 (2003), underlines the importance of the ‘ne bis in idem’ principle in the context of the EU network of competition authorities set up under Reg. No. 1/2003. Wils concludes that the principle will have the effect of inducing effective coordination between the European Commission and the competition authorities of the Member States as well as harmonization of their laws and policies on fines and leniency.Google Scholar

⁵⁶ Commission Reg. (EC) No. 773/2004 relating to the conduct of proceedings by the Commission pursuant to Art. 81 and 82 of the EC Treaty, OJ 2004 L 123/18.Google Scholar

⁵⁷ Chapter II of Commission Reg. (EC) No. 773/2004, supra at note 56.Google Scholar

⁵⁸ Chapter III of Commission Reg. (EC) No. 773/2004, supra at note 56.Google Scholar

⁵⁹ Chapter IV of Commission Reg. (EC) No. 773/2004, supra at note 56. Also see Commission Notice on the handling of complaints by the Commission under Art. 81 and 82 of the EC Treaty (2004/C 101/05), OJ 2004 C 101/65.Google Scholar

⁶⁰ Chapter V of Commission Reg. (EC) No. 773/2004, as footnote 56 above.Google Scholar

⁶¹ Council Reg. on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices, No. 19/65/EEC, OJ 36, 6.3.1965, 533.Google Scholar

⁶² Council Reg. on the application of Art. 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices, (EEC) No. 2821/71, OJ 1971 L 285/46.Google Scholar

⁶³ Council Reg. on the application of Art. 81(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector, (EEC) No. 3976/87, OJ 1987 L 374/9.Google Scholar

⁶⁴ Council Reg. on the application of Art. 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector, (EEC) No. 1534/91, OJ 1991 L 143/1.Google Scholar

⁶⁵ Council Reg. on the application of Art. 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies, (EEC) No. 479/92, OJ 1992 L 55/3.Google Scholar

⁶⁶ A complete list embracing all block exemption regulations, notices and guidelines is available on the website of the Directorate General for Competition of the European Commission: http://europa.eu.int/comm/competition/antitrust/legislation/.Google Scholar

⁶⁷ Commission Notice – Guidelines on the application of Art. 81(3) of the Treaty (2004/C 101/08), OJ 2004 C 101/97, point 2.Google Scholar

⁶⁸ Commission Notice – Guidelines on the application of Art. 81(3) of the Treaty (2004/C 101/08), OJ 2004 C 101/97, point 37.Google Scholar

⁶⁹ See recital 10 of Reg. No. 1/2003, supra at note 1.Google Scholar

⁷⁰ Art. 230(4) of the EC-Treaty provides that any natural or legal person may, under the conditions set out in paragraph 2, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or decision addressed to another person, is of direct and individual concern to the former.Google Scholar

⁷¹ Charter of Fundamental Rights of the European Union, OJ 2000 C 364/01.Google Scholar

⁷² Commission Reg. (EC) No. 773/2004 relating to the conduct of proceedings by the Commission pursuant to Art. 81 and 82 of the EC Treaty, OJ 2004 L 123/18, Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), OJ 2004 C 101/43, Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Art. 81 and 82 EC (2004/C 101/04), OJ 2004 C 101/54, Commission Notice on the handling of complaints by the Commission under Art. 81 and 83 of the EC Treaty (2004/C 101/05), OJ 2004 C 101/65, Commission Notice on informal guidance relating to novel questions concerning Art. 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) (2004/C 101/06), OJ 2004 C 101/78, Commission Notice – Guidelines on the effect on trade concept contained in Art. 81 and 82 of the Treaty (2004/C 101/07), OJ 2004 C 101/81, Commission Notice – Guidelines on the application of Art. 81(3) of the Treaty (2004/C 101/08), OJ 2004 C 101/97.Google Scholar

Regarding block exemption regulations and guidelines see the list available on the website of the Directorate General for Competition of the European Commission: http://europa.eu.int/comm/competition/antitrust/legislation.Google Scholar