European Competition Network (ECN)

 

Author Definition

 

Definition

The “European Competition Network” (ECN) is a network that the competition authorities of the EU Member States (NCAs) and the European Commission formed in 2004 together with the adoption of Regulation 1/2003. The ECN functions as a forum for discussion and close cooperation in the application and enforcement of Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). The ECN aims at ensuring the coherent application of competition rules across the EU. It also allows the European competition authorities to pool their experience, discuss competition related topics and identify best practices.

 

Commentary

Regulation 1/2003 introduced a system of parallel competences in which the European Commission and the NCAs have the power to apply Articles 101 and 102 TFEU in full. The same Regulation established the ECN as the new form of close cooperation between the Commission and the NCAs in order to ensure both an effective and consistent application of EU competition rules and an efficient division of work.

The main principles on the functioning of the ECN are set out in the "Commission Notice on cooperation within the Network of Competition Authorities" (ECN Notice) and the "Joint Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities". According to the case law in DHL and in Pfleiderer, the ECN does not adopt legally binding rules for NCAs or national courts. The ECN is responsible to ensure the efficient division of work on the investigation of cases. The ECN members have agreed on flexible work sharing mechanisms including non-binding case allocation rules which are laid down in the ECN Notice. In particular, the ECN Notice sets out the criteria that indicate when an ECN member is usually considered “well placed” to deal with a case, mainly focusing on the existence of a material link between the infringement and the territory of a Member State. It is however clear from the case law of EU courts that neither Regulation 1/2003 nor the ECN Notice creates rights or expectations for an undertaking to have its case dealt with by a particular competition authority. In addition, the NCAs and the Commission cooperate with each other through the ECN by various means, such as by: (i) informing the ECN members of new cases and envisaged enforcement decisions; (ii) exchanging evidence and other information; (iii) helping each other with investigations; and (v) discussing various competition law related issues.

At an early stage of an investigation under Articles 101 or Article 102 TFEU, the Commission and the NCAs need to inform each other in accordance with Article 11 of Regulation 1/2003. By informing each other of new cases, the ECN is able to ensure an efficient and quick re-allocation of cases and avoid multiple procedures. In practice, the ECN members need to complete a standard form electronically containing basic information about the case, such as the product, territories and parties concerned, the alleged infringement, the suspected duration of the infringement and the origin of the case.

The NCAs are also obliged to inform the Commission of an envisaged enforcement decision at least 30 days before its adoption in line with Article 11(4) of Regulation 1/2003. This consultation between the NCAs and the Commission is important in order to ensure the coherent application of EU competition rules by all competition enforcers. In practice, the NCAs usually submit a draft decision or statement of objections to DG Competition of the Commission. DG Competition may convey comments to the NCAs. The comments aim to ensure a coherent approach in the application of EU competition rules and concern, for example, the relevant market definition, the coordination with ongoing Commission cases or the application of the case law of EU Courts. This consultation is an internal process of the ECN and any comments from the Commission to an NCA are treated as ‘network internal documents’ and cannot be shared outside the ECN. In the Unión de Almacenistas de Hierros de España, the General Court confirmed that access to such comments cannot be granted based on the general EU transparency or access to documents rules.

The NCAs and the Commission can also exchange information, including documents and digital information, and use this information in their investigations pursuant to Article 12 of Regulation 1/2003. The ECN allows for the secured exchange of confidential information between its members as well as for informal exchanges in the context of their close cooperation. Finally, an NCA and the Commission may ask another NCA to carry out an inspection or other fact-finding measures (e.g. requests for information or interviews) to collect information on its behalf in the context of the enforcement of EU competition rules.

Over time, the ECN has developed different fora in which its members discuss various issues at different levels. The work in these fora includes fruitful discussions, exchanges of views and the development of common positions and policies. The ECN meets at different levels as follows:

  1. the meeting of the heads of the European competition authorities, the so-called DGs’ Meeting, discusses strategic issues about competition enforcement and policy and constitutes the top level of the ECN. It usually takes place twice per year.
  2. the ECN Plenary where representatives of the Commission and the NCAs responsible for ECN matters participate twice per year and discuss horizontal issues of common interest. The ECN Plenary meeting takes place before the DGs Meeting in order to allow the NCAs to discuss issues and submit proposals to the DGs Meeting.
  3. the horizontal working groups: the ECN includes a number of working groups dealing with horizontal matters of legal, economic or procedural nature. The ECN members have the opportunity to discuss policy and case law developments, exchange views on experience and best practices and promote a common approach. Examples of such groups include the Horizontals and Abuse Working Group, the Verticals Working Group, the Cooperation Issues and Due Process Working Group and the Competition Chief Economists Working Group.
  4. The sectoral subgroups: the ECN also includes subgroups dealing with particular sectors, such as banking and payments, energy, environment, financial services, food, healthcare and pharma, insurance, media, sport, telecommunications and transport. Experts in specific sectors from the Commission and the NCAs exchange views on competition issues and best practices in these sectors.

DG Competition is responsible for the coordination of the ECN, including in chairing and preparing ECN meetings. The EFTA Surveillance Authority and the competition authorities of the EFTA States (Norway, Iceland and Liechtenstein) may participate in ECN meetings to ensure effective and consistent enforcement of the EEA competition rules throughout the EEA.

Since its creation, the ECN has published statements, reports, resolutions, best practices and recommendations on different matters (for example, the ECN Model Leniency Programme in 2012, seven ECN Recommendations on investigative and decision-making powers in 2013 and the Joint statement on application of competition law during the Corona crisis in 2021). These ECN documents set out the ECN’s position and are intended to be used mainly as advocacy tools.

 

Bibliography

E. Arsenidou, J. Capiau, A. Sinclair, J. Stanciute, ‘Cooperation Within the ECN and Strengthening of National Competition Authorities’ in E. Rousseva (ed), EU Antitrust Procedure (1st edn, Oxford University Press, 2020), Chapter 19.

B. Rayment and N. Grubeck, ‘The Enforcement of the Competition Rules by National Competition Authorities, The European Competition Network’ in D. Bailey and L. E. John (eds), Bellamy & Child: European Union Law of Competition (8th edn, Oxford University Press, 2019), Chapter 15.

Richard Whish and David Bailey, Competition Law (9th end, Oxford University Press, 2018), Chapter 7.

E. De Smijter and A. Sinclair, ‘The Enforcement System under Regulation 1/2003, Cooperation between Enforcers’ in J. Faull and A. Nikpay (eds), The EU Law of Competition (3rd edn, Oxford University Press, 2014), Chapter 2.

This article is being reviewed by the Editors of the Dictionary.

Author

Quotation

Efstathia Pantopoulou, European Competition Network, Global Dictionary of Competition Law, Concurrences, Art. N° 86025

Visites 2168

Publisher Concurrences

Date 1 January 1900

Number of pages 500

 

Institution Definition

The European Competition Network (ECN) has been established as a forum for discussion and cooperation of European competition authorities in cases where Articles 101 and and 102 of the Treaty of the Functioning of the European Union are applied. It should ensure an efficient division of work and an effective and consistent application of EC competition rules. The EU Commission and competition authorities from EU member states cooperate with each other through the ECN by: (i) informing each other of new cases and envisaged enforcement decisions; (ii) coordinating investigations, where necessary; (iii) helping each other with investigations; (iv) exchanging evidence and other information; and (v) discussing various issues of common interest.

The objective of the European Competition Network is to build an effective legal framework to enforce EC competition law against companies who engage in cross-border business practices which restrict competition and are therefore anti-consumer. The basic foundations of the functioning of the ECN are laid out in the "Commission Notice on cooperation within the Network of Competition Authorities" and in the "Joint Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities". Within the ECN, groups of experts in specific sectors (banking, securities, energy, insurance, food, pharmaceuticals, professional services, healthcare, environment, motor vehicles, telecommunications, media, IT & information & communication, Abuse of dominant positions, Competition Chief Economists and railways) discuss competition problems and promote a common approach. In this way, the ECN allows competition authorities to pool their experience and identify best practices. © European Commission

 
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