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See original article in english Procedural rights and obligations of third parties in antitrust investigations and proceedings by the European Commission

Procedural rights and obligations of third parties in antitrust investigations and proceedings by the European Commission

Ce document fournit un aperçu des droits et obligations procéduraux des tiers dans les enquêtes et procédures menées par la Commission européenne pour l’application des articles 101 et 102 du TFUE. Les tiers sont toutes les personnes physiques ou morales, les entreprises et les associations d’entreprises autres que celles faisant l’objet d’une enquête. Le document examine les possibilités pour les tiers d’informer la Commission européenne d’une infraction présumée et de déclencher une enquête ; les obligations et les droits des tiers lorsqu’ils répondent aux demandes d’information qui leur sont adressées par la Commission européenne, lorsqu’ils participent à des entretiens et lorsqu’ils se soumettent aux inspections ; les possibilités pour les tiers d’obtenir des informations sur les procédures en cours et d’y exprimer leur point de vue ; les règles relatives à l’emploi des langues ; et la protection du secrets d’affaires et autres informations confidentielles, ainsi que les restrictions à l’utilisation d’informations obtenues par les tiers du fait de leur participation aux procédures de la Commission européenne.

I. Introduction

1. This paper provides a systematic overview of the procedural rights and obligations of third parties in investigations and proceedings conducted by the European Commission for the enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

2. Article 101 TFEU prohibits agreements between undertakings and decisions by associations of undertakings that may affect trade between EU Member States and restrict competition without redeeming virtue. Article 102 TFEU prohibits any abuse by one or more undertakings of a dominant position within the EU internal market or in a substantial part of it in so far as it may affect trade between EU Member States. [1]

3. The main implementing regulation of Articles 101 and 102 TFEU, adopted on the basis of Article 103 TFEU, is Regulation 1/2003.  [2] Under Regulation 1/2003, both the European Commission and the competition authorities of the EU Member States have the task of enforcing Articles 101 and 102 TFEU. [3] This paper only considers investigations and proceedings conducted by the European Commission.

4. This paper does not cover proceedings for the control of concentrations under the EU Merger Regulation. [4]

5. The third parties considered in this paper comprise all natural or legal persons, undertakings and associations of undertakings other than those under investigation (and other than the European Commission, which conducts the investigation and proceedings, and the competition authorities of the EU Member States and other authorities with which the European Commission cooperates in its investigations and proceedings). More detail is provided in chapter II. “Who are third parties ?”

6. This paper considers all stages or phases of antitrust investigations or proceedings conducted by the European Commission, from (before the start of) the preliminary investigation phase until the closure of proceedings through the adoption of a final decision or otherwise, but not subsequent actions for annulment before the EU Courts. An overview of the European Commission’s antitrust procedures from start to end is provided in chapter III. “Overview of the European Commission’s antitrust procedures.”

7. Chapter IV examines the possibilities for third parties to inform the European Commission about a suspected infringement and to trigger an investigation by the European Commission. Chapter V deals with the obligations and rights of third parties when responding to requests for information sent to them by the European Commission, when participating in interviews, and when submitting to inspections conducted by the European Commission. Chapter VI analyses the possibilities for third parties to obtain information about pending proceedings and to express their views in them. Chapter VII sets out the rules on the use of languages, and chapter VIII deals with the protection of business secrets and other confidential information, and the restrictions on the use of information obtained by third parties through their participation in the European Commission’s proceedings.

II. Who are third parties ?

1. Natural or legal persons, undertakings and associations of undertakings other than those under investigation

8. As already mentioned, third parties are all natural or legal persons, undertakings and associations of undertakings other than those under investigation (and other than the European Commission, which conducts the investigation and proceedings, and the competition authorities of the EU Member States and other authorities with which the European Commission cooperates in its investigations and proceedings).

2. The concept of an undertaking in EU competition law and the need to conduct proceedings against companies or other persons

9. Article 101 TFEU prohibits “agreements between undertakings” and “decisions by associations of undertakings” that may affect trade between EU Member States and restrict competition without redeeming virtue. Article 102 TFEU prohibits any abuse “by one or more undertakings” of a dominant position within the EU internal market or in a substantial part of it in so far as it may affect trade between EU Member States.

10. As the EU Court of Justice has pointed out, “[t]he authors of the Treaties [thus] chose to use the concept of an undertaking to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to (…) Articles 101 TFEU and 102 TFEU, and not the concept of a company or firm or of a legal person. [5]

11. The concept of an undertaking has been defined by the EU Courts and designates an economic unit even if in law that economic unit consists of several legal or natural persons. [6] For instance, a parent company and one or more subsidiaries that together form a single economic unit constitute a single undertaking for the purposes of Articles 101 and 102 TFEU.

12. For reasons of enforceability,  [7] the European Commission does however not address its decisions (for instance a decision finding an infringement of Article 102 by an undertaking, ordering its termination and/or imposing fines (infringement decision)), to the undertaking concerned, but rather to the legal (or natural) [8] persons that are responsible for the operation of the undertaking concerned. [9] For instance, if the undertaking under investigation comprises a parent company and a subsidiary, the European Commission may address the infringement decision to the parent company or the subsidiary or both. [10]

13. The companies or other persons that are the envisaged addressees of the decision are also the persons that each enjoy the procedural rights that the European Commission must respect before adopting the decision.  [11] For instance, before adopting an infringement decision addressed to a parent company and a subsidiary that are both held liable for the infringement, the European Commission must initiate proceedings against both companies and send a statement of objections to both. Each of these companies has a separate right to have access to the file, make written submissions and request an oral hearing. [12]

14. While the investigation in substance concerns the suspected infringement by the undertaking under investigation, the European Commission thus conducts its proceedings against the companies (or other persons) under investigation, being the companies (or other persons) considered responsible for the operation of the undertaking under investigation. [13]

15. The undertaking/person distinction is not only relevant on the side of those under investigation, but also on the side of third parties.

16. Where Regulation 1/2003 grants certain rights to third parties, such as the right to lodge a complaint or the right to be heard as interested third person, it grants these rights to natural or legal persons.  [14]

17. The concept of an undertaking is however also relevant when third parties are the target of the European Commission’s powers of investigation. Article 18 of Regulation 1/2003 empowers the European Commission to require “undertakings and associations of undertakings” to supply information necessary for its investigation, and Article 20 of Regulation 1/2003 empowers the Commission to conduct “all necessary inspections of undertakings and associations of undertakings.” These powers of investigation can also be used to obtain information from third party undertakings. [15] For reasons of enforceability, decisions are however addressed to the companies (or other persons) responsible for the operation of the undertaking.  [16]

3. Who are the undertakings/companies under investigation depends on the scope of the investigation

18. Who are the undertakings/companies under investigation (and hence who are third parties) depends on the scope of the investigation as conducted by the European Commission.

19. The European Commission has a broad discretion to determine the scope of its investigations. [17] It may, on grounds of expediency, limit its investigation and proceedings to certain undertakings (for instance, the main participants to a suspected cartel, or those participants for which the evidence is most readily available) or to certain companies responsible for the operation of the undertakings concerned (for instance, only the companies directly involved in the cartel behaviour, or also the ultimate parent companies). [18] It may also change the scope of the investigation in the course of the investigation, adding or removing companies under investigation.

20. When exercising this discretion as to the scope of its investigations, the European Commission must however use objective criteria, compatible with the principle of equal treatment and the principle of proportionality. [19]

21. Whether an undertaking/company is an undertaking/company under investigation or rather a third party in relation to certain proceedings may also depend on whether the European Commission has made a certain factual situation the subject of one or more separate proceedings. The European Commission is entitled both to disjoin and to join proceedings for objective reasons. [20] For instance, in the Alrosa and De Beers case, which concerned the supply of rough diamonds between Alrosa and two subsidiaries of the De Beers group, the European Commission opened two parallel proceedings, one based on Article 101 TFEU, in which it sent a statement of objections to both Alrosa and De Beers, and the other based on Article 102 TFEU, in which it sent a separate statement of objections only to De Beers. Following the Opinion of Advocate General Kokott, the Court of Justice confirmed that, in relation to the proceedings under Article 102 TFEU, Alrosa was a third party. The situation would have been different only if it had transpired that the European Commission had arbitrarily, that is without an objective reason, made a single factual situation the subject of two separate proceedings. This was however not the case, as it was objectively justified to conduct two separate proceedings in view of their different material legal bases, Article 101 TFEU on the one hand and Article 102 TFEU on the other. [21]

4. How to find out who are the undertakings/companies under investigation

22. An essential step in any antitrust procedure that advances beyond the preliminary investigation stage is the initiation or opening of proceedings.  [22] In cases other than cartel cases,  [23] the initiation of proceedings usually takes place once the European Commission’s initial assessment leads to the conclusion that the case merits further investigation and the scope of the investigation has been sufficiently defined. The initiation of proceedings then signals a commitment on the part of the European Commission to further investigate the case. [24] In cartel cases, the initiation of proceedings usually takes place later, simultaneously with the adoption of the statement of objections. [25]

23. One of the functions of the initiation of proceedings is to identify the companies under investigation. [26] The decision initiating proceedings is notified to the companies under investigation. In addition, the European Commission’s practice is to publish the initiation of proceedings on its website and to issue a press release, unless such publication may harm the investigation.  [27]

24. If at a later stage of the proceedings, the European Commission considers that the proceedings should be extended to cover more companies, it may take a further decision initiating proceedings also against those additional companies. Again, this decision will be notified to the companies concerned, and may be made public.  [28]

25. If the European Commission at a later stage of the proceedings concludes that there are no grounds to continue the proceedings with regard to one or more of the companies under investigation, it will close the proceedings in relation to those companies. It will again notify the companies concerned of this decision, and, if the initiation of proceedings had been made public, note the closure on its website and/or issue a press release. [29]

26. Already before the initiation of proceedings, companies subject to an investigative measure by the European Commission under Chapter V of Regulation 1/2003, for instance a request for information pursuant to Article 18 of regulation 1/2003, have the right to be informed of their procedural status, in particular whether they are themselves subject to an investigation.  [30]

27. Companies that have been subject to an investigative measure may at any time inquire with the Directorate-General for Competition about the status of the investigation. If such a company considers that it has not been properly informed by the Directorate-General for Competition of its procedural status, it may refer the matter to the Hearing Officer. If the Hearing Officer finds that the company has not been properly informed, the Hearing Officer will take a decision that the Directorate-General for Competition will inform the company of its procedural status. [31]

III. Overview of the European Commission’s antitrust procedures

28. The antitrust procedures before the European Commission are administrative procedures, in which the Commission, which is an administrative, non-judicial body, acts both as investigator and as first-instance decision-maker. [32]

29. Investigations may get started on the basis of a complaint, [33] information otherwise received from market participants or informants, [34] information received from other authorities, [35] or obtained by the European Commission through its own monitoring of markets, [36] or in the context of another investigation, [37] or, for secret cartels, an application for immunity under the European Commission’s Leniency Programme. [38]

30. To supplement the initial information thus obtained, the European Commission can make use of the powers of investigation set out in Chapter V of Regulation 1/2003, namely requests for information pursuant to Article 18, interviews pursuant to Article 19, and inspections pursuant to Articles 20 and 21 of Regulation 1/2003. [39]

31. The investigation or proceedings will ultimately end in one of four possible ways :

– the European Commission may adopt a decision pursuant to Article 7 and/or Article 23(2) of Regulation 1/2003 finding an infringement of Articles 101 and/or 102 TFEU, ordering its termination and/or imposing fines (infringement decision) ;

– it may accept commitments and make these binding through a decision pursuant to Article 9 of Regulation 1/2003 (commitment decision) ;  [40]

– in exceptional cases where the public interest of the EU so requires, [41] it may, pursuant to Article 10 of Regulation 1/2003, adopt a declaratory decision finding that Articles 101 and/or 102 TFEU are not applicable to the agreements or practices investigated (non-infringement decision) ; or

– it may simply close the investigation or proceedings (simple closure).

32. Before an infringement decision can be adopted, the European Commission must take a decision initiating proceedings, [42] and address a statement of objections to the companies under investigation. [43] Following the receipt of the statement of objections, the companies under investigation are entitled to access the European Commission’s investigation file,  [44] and to respond in writing to the statement of objections within a set time limit. [45] If they request so in their written reply to the statement of objections, the companies under investigation are also entitled to develop their arguments further at an oral hearing. [46] As the investigation progresses and conclusions are drawn from the replies to the statement of objections, the European Commission may adopt supplementary statements of objections, which again trigger for the companies under investigation the rights of access to the file, written reply and oral hearing.  [47] As a final step before adopting the infringement decision, the European Commission must consult the Advisory Committee on Restrictive Practices and Dominant Positions, which is composed of representatives of the competition authorities of the EU Member States. [48]

33. In cases of urgency due to the risk of serious and irreparable damage to competition, the European Commission may, already before adopting an infringement decision, on the basis of a prima facie finding of infringement, order interim measures pursuant to Article 8 of Regulation 1/2003 (interim measures decision). Like the adoption of an infringement decision, the adoption of an interim measures decision must be preceded by a decision initiating proceedings, [49] as well as a statement of objections, [50] which triggers for the companies under investigation the rights of access to the file, [51] written reply and oral hearing. [52] The Advisory Committee must also be consulted. [53]

34. Specifically for cartel cases,  [54] the European Commission has created a cartel settlement procedure, [55] which is an alternative procedure for reaching an infringement decision, which can be used if both the European Commission and the companies under investigation prefer it instead of the normal procedure. Under the cartel settlement procedure, after the initiation of proceedings but before the adoption of a statement of objections, the European Commission and the companies under investigation conduct settlement discussions, culminating in the companies under investigation making settlement submissions. The statement of objections then mirrors those settlement submissions, and the companies under investigation in their written reply to the statement of objections simply confirm their agreement, and waive their right to an oral hearing. Like for any other infringement decision, as a final step before adopting the infringement decision, the European Commission must consult the Advisory Committee.  [56]

35. In cases other than secret cartel cases, [57] the companies under investigation may, at any time during the investigation and proceedings, propose to the European Commission to close the proceedings through a commitment decision.  [58] The European Commission is however never obliged to close the proceedings through a commitment decision instead of an infringement decision. [59] If the companies under investigation offer the commitments after the statement of objections or after an interim measures decision, the commitments must meet the concerns expressed in the statement of objections and/or interim measures decision. [60] If they are offered at an earlier stage of the investigation or proceedings, and the European Commission is willing to close the case through a commitment decision, the European Commission will first adopt a preliminary assessment, [61] and the commitments offered must meet the concerns expressed in that preliminary assessment. Before adopting the commitment decision, the European Commission must publish a concise summary of the case and the main content of the commitments, inviting observations from interested third parties (market test).  [62] As a final step before adopting the commitment decision, the European Commission must consult the Advisory Committee. [63] The commitment decision makes the commitments binding, while concluding that there are no longer grounds for action by the European Commission, but without concluding whether or not there has been or still is an infringement.  [64]

36. Before adopting a non-infringement decision, the European Commission must, like before adopting a commitment decision, publish a concise summary of the case and the main content of the proposed course of action, inviting observations from interested third parties (market test),  [65] and consult the Advisory Committee. [66]

37. Finally, at any time during the investigation and proceedings, the European Commission can bring the investigation and proceedings to an end through a simple closure. Unless it had not yet contacted the companies under investigation, the European Commission will inform those companies of the closure, and if it had already made public its investigation, it will note the closure on its website and/or issue a press release. [67]

IV. Informing the European Commission about a suspected infringement and triggering an investigation

1. Informing the European Commission about a suspected infringement

1.1 Anyone can provide information in any way or form

38. Information from citizens and businesses is important in triggering investigations by the European Commission.  [68] The European Commission therefore encourages citizens and businesses to inform it about suspected infringements of Articles 101 and 102 TFEU. [69]

39. Any third person can inform the European Commission about a suspected antitrust infringement : consumers, consumer associations, competitors, customers, suppliers, business associations, disgruntled current or former employees, et cetera. [70]

40. The website of the Directorate-General for Competition provides a dedicated email address and telephone number for information about suspected infringements, [71] but information can also be provided in any other way or form. [72]

41. If the information is provided orally, there is no need to follow the formal requirements for interviews pursuant to Article 19 of Regulation 1/2003 and Article 3 of Regulation 773/2004, given that the European Commission has at this preliminary stage not yet started an investigation. [73]

1.2 Informants can remain anonymous

42. Informants have the right to remain anonymous if they wish so. Indeed, where the European Commission accepts information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity, it is in principle bound to comply with such a condition.  [74]

43. The EU Courts have affirmed that the European Commission’s ability to guarantee the anonymity of certain of its sources of information is of crucial importance for the effective enforcement of Articles 101 and 102 TFEU. [75]

44. An anonymous whistleblower tool is available on the website of the European Commission. [76] It is a specifically designed encrypted messaging system that allows two-way communications between informants and the Directorate-General for Competition. The service is run by a specialised external service provider that acts as an intermediary, and which relays only the content of received messages without forwarding any metadata that could be used to identify the informant. [77]

45. If the information provided by the informant is subsequently used by the European Commission to justify the opening of an investigation and the conduct of inspections at the premises of the suspected companies, the European Commission will not share with the national competition authorities and courts involved in those inspections any information revealing the identity of the informant, or enabling that identity to be deduced. [78]

46. If the information provided by the informant who requested anonymity subsequently leads to the adoption of a statement of objections and an infringement decision against the companies under investigation, the anonymity of the informant will remain protected. The European Commission may use the information provided by the informant as evidence in the statement of objections and the infringement decision, but only if this can be done without revealing the identity of the informant or enabling that identity to be deduced. [79] Similarly, when granting the companies under investigation access to its investigation file, [80] the European Commission will ensure that the anonymity of the informant remains protected, by denying access to any information that would allow the informant’s identity to be deduced. [81]

47. The informant requesting anonymity should, when providing documents, inform the European Commission that it is possible to infer his or her identity as the informant from the documents themselves.  [82]

1.3 Informants can strengthen their procedural position by lodging a complaint

48. Provided that they fulfil the substantive and procedural requirements set out below,  [83] informants can strengthen their procedural position by lodging a complaint. [84]

49. Article 7(1) of Regulation 1/2003 provides that the European Commission can find an infringement of Articles 101 or 102 TFEU “acting on a complaint or on its own initiative.”  [85] The last sentence of Article 27(1) of Regulation 1/2003 provides that “complainants shall be closely associated with the proceedings.”

50. It should be noted that the procedural status of complainant has been created by Regulation 1/2003 in relation to its Article 7 (finding of an infringement and ordering its termination).  [86] There is no procedural status of complainant in relation to Article 23 of Regulation 1/2003 (imposition of fines), [87] or in relation to Article 8 of Regulation 1/2003 (interim measures). [88]

1.3.1 Substantive and procedural requirements to become a complainant

51. According to Article 7(2) of Regulation 1/2003, “those entitled to lodge a complaint (…) are natural or legal persons who can show a legitimate interest and Member States.”  [89]

52. According to the case law, the requirement to show a legitimate interest means that the natural or legal person (other than an EU Member State) must show that “his [or her] economic interests have been harmed or are likely to be harmed” as a result of the alleged infringement of Articles 101 or 102 TFEU.  [90]

53. A person that is a party to a contract that constitutes or is part of the alleged infringement can also lodge a complaint, if that person does not bear significant responsibility for the alleged infringement, particularly where the terms of the contract were imposed on that person by a stronger party against its economic interests. [91]

54. Business associations and consumer associations can lodge a complaint if, first, they are entitled to represent the interests of their members and, secondly, the interests of their members have been harmed or are likely to be harmed as a result of the alleged infringement.  [92]

55. In addition to the substantive requirement of having a legitimate interest, Regulation 773/2004 imposes also a procedural requirement for a complaint to be admissible, namely the provision of the information required by Form C, set out in the Annex to Regulation 773/2004. [93]

56. The European Commission may however dispense with this obligation as regards part of the information, including documents required by Form C. [94]

57. There is no incompatibility between lodging a complaint and remaining anonymous.  [95] As mentioned above, [96] it is clear from the case law of the EU Courts that, where the European Commission accepts information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity, it is in principle bound to comply with such a condition. [97] Lodging a complaint is always a purely voluntary act, and there is no provision in Regulation 1/2003, Regulation 773/2004 and Form C precluding anonymous complaints.  [98]

58. Finally, whereas the European Commission has delegated to its Hearing Officer the power to decide on applications to be heard by interested third persons, [99] the Hearing Officer does not have any role in deciding on the admissibility of complaints.  [100]

1.3.2 Procedural rights of complainants

59. Becoming a complainant provides two types of procedural benefits.

60. First, if the European Commission initiates proceedings and if it subsequently issues a statement of objections relating to a matter covered by the complaint, the complainant must, according to Article 27(4) of Regulation 1/2003, “be closely associated with the proceedings.”

61. This does however not mean that the proceedings become adversarial proceedings between the complainant and the companies under investigation. Even when a complaint is at the origin of the investigation, the ensuing proceedings are proceedings commenced and conducted by the European Commission, in fulfilment of its task to implement EU competition policy, against the companies under investigation.  [101] It follows that complainants and companies under investigation are not in the same procedural situation, and that the procedural rights of complainants are not as far-reaching as the procedural rights of the companies under investigation. Whereas complainants must be given the opportunity to defend their legitimate interests in the course of the proceedings initiated by the European Commission and therefore be closely associated with them, their procedural rights are not as far-reaching as the rights of the defence of the companies under investigation, and cannot be allowed to interfere with the rights of the defence of the companies under investigation.  [102]

62. As will be discussed further below, [103] the main manifestations of the complainants’ close association with the proceedings are that they are entitled to a copy of the non-confidential version of the statement of objections if a statement of objections is issued on a matter covered by their complaint, [104] and that they are most likely to be allowed to express their views at the oral hearing of the addressees of the statement of objections if those addressees request such a hearing. [105]

63. Secondly, as discussed further below, [106] if the European Commission does not intend to act on the complaint or part of the complaint, including if the European Commission, after having initially acted on the complaint by initiating proceedings and possibly subsequently issuing a statement of objections, later decides no longer to act on the complaint, the complainant is entitled to a reasoned decision rejecting its complaint.

2. No right to trigger an investigation, let alone an infringement decision

2.1 The European Commission has a wide discretion to set its enforcement priorities

64. Whereas, as mentioned above,  [107] anyone can inform the European Commission about a suspected infringement of Articles 101 or 102 TFEU, nobody can compel the European Commission to carry out an investigation, to initiate proceedings, or to continue proceedings up to the stage of a final decision as to the existence or non-existence of the alleged infringement.  [108]

65. According to the case law of the EU Courts, the European Commission, entrusted by Article 105(1) TFEU with the task of ensuring the application of the principles laid down in Articles 101 and 102 TFEU, is responsible for defining and implementing the orientation of EU competition policy. In order to perform that task effectively, the European Commission has a broad discretion to select the cases which it investigates and in which it continues the proceedings up to the stage of a final decision. [109]

66. It is not the task of the European Commission to settle individual disputes. [110] Third parties that consider themselves harmed by an alleged infringement of Articles 101 or 102 TFEU are not dependent on action by the European Commission, as they can bring a private action in the courts of the EU Member States. [111] Indeed, Article 101(2) TFEU provides that any agreements or decisions prohibited pursuant to Article 101 TFEU shall be automatically void, and the case law has clarified that Article 101(1) and Article 102 TFEU produce direct effects between individuals and create rights for these individuals, and that the national courts whose task it is to apply the provisions of EU law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals, by granting injunctive relief, including interim relief, as well as compensation for harm suffered, under conditions that may not be less favourable than those governing the protection of comparable rights under national law and that ensure the effective protection of the rights conferred by Articles 101(1) and 102 TFEU.  [112]

2.2 Complainants are entitled to a reasoned and reviewable decision settling the fate of their complaint

67. While complainants, like anyone else, cannot compel the European Commission to carry out an investigation, to initiate proceedings, or to continue proceedings up to the stage of a final decision as to the existence or non-existence of the alleged infringement,  [113] complainants have the right to have the fate of their complaint settled within a reasonable time by a decision of the European Commission against which they can bring an action before the EU Courts.  [114]

68. The European Commission has indicated that it “will in principle endeavour to inform complainants of the action that it proposes to take on a complaint within an indicative time frame of four months from the reception of the complaint.” [115]

69. If the European Commission already at this stage comes to the preliminary conclusion that it does not intend to act on the complaint, it must start the procedure for rejecting the complaint.

70. The same procedure for rejecting the complaint must also be followed if the Commission does not immediately reject the complaint but at a later stage of the investigation or proceedings comes to the preliminary conclusion that it does not or no longer intend to adopt a decision pursuant to Article 7 of Regulation 1/2003 finding an infringement and ordering its termination as requested by the complainant.

71. Before starting the procedure for rejecting the complaint, the European Commission will normally first inform the complainant in a meeting or by phone. The complainant may then decide to withdraw its complaint. [116]

72. If the complainant has not withdrawn its complaint, the European Commission must send the complainant a pre-rejection letter pursuant to Article 7 of Regulation 773/2004, informing the complainant of the reasons why it does not intend to act or to continue acting on the complaint, and set a time limit within which the complainant may make know its views in writing.  [117]

73. The complainant may then request access to the documents on which the European Commission bases its reasoning, or at least non-confidential versions of those documents, as the complainant is not entitled to have access to business secrets or other confidential information belonging to the other parties involved in the proceedings.  [118] This right of access is limited to the documents on which the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based. It is thus not as far-reaching as the right of access to the entire investigation file afforded to addressees of a statement of objections. [119]

74. If the complaint is rejected at a very early stage, merely on the basis of an analysis of the complaint itself, without the European Commission having collected any other information, the complaint itself may be the only document on which the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based. In such a case, there are no documents the European Commission needs to give access to.

75. In other cases, the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, may be based on information it has collected from the undertakings targeted by the complaint or from third parties in response to requests for information, [120] or on the response of the undertakings targeted by the complaint if these have been granted the opportunity to comment on a non-confidential version of the complaint. [121] In such a case, access will be given to a non-confidential version of these responses. [122]

76. Where the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based on the intention to close the proceedings through the adoption of a commitment decision pursuant to Article 9 of Regulation 1/2003 making binding the commitments offered by the companies under investigation that meet the concerns expressed to them in a preliminary assessment, [123] access will be given to a non-confidential version of the preliminary assessment and of the commitments. [124]

77. If the complainant considers that it has not been given the access to documents it is entitled to under Article 8 of Regulation 773/2004, the complainant may, after having raised the issue with the Directorate-General for Competition, make a reasoned request to the Hearing Officer, to whom the European Commission has delegated its decisional powers in this respect.  [125]

78. The time limit within which the complainant may make known its views in writing must be at least four weeks. [126] If the complainant considers that the time limit is too short, it may request an extension first from the Directorate-General for Competition and, if unsuccessful, from the Hearing Officer, to whom the European Commission has delegated its decisional powers in this respect. [127]

79. The complainant is entitled to make known its views in writing, but not at an oral hearing.  [128]

80. If the complainant fails to make known its views in writing within the time limit set by the European Commission, the complaint is deemed to have been withdrawn. [129]

81. If the complainant makes known its views within the time limit set by the European Commission, and those written submissions do not lead the European Commission to change its intention not or no longer to act on the complaint, the European Commission must reject the complaint by decision. [130]

82. This decision, against which the complainant can bring an action for annulment before the EU General Court, with a possible subsequent appeal on points of law before the EU Court of Justice, must “state the reasons for [the European Commission’s] assessment of whether or not it was appropriate to examine the complaint any further, in a sufficiently precise and detailed manner to enable the [EU Courts] effectively to review the Commission’s use of its discretion to define priorities.” [131]

83. However, according to settled case law, [132]the review by the Courts of the European Union of the Commission’s exercise of its discretion must not lead them to substitute their assessment of [the priorities of EU antitrust enforcement] [133] for that of the European Commission, but focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers.”

84. In practice, in some cases complainants have been successful in obtaining the annulment of a decision rejecting their complaint. [134] However, in all the cases where this has happened, the European Commission subsequently adopted a new decision, again rejecting the complaint but now with a better reasoning. [135] Never has a complainant been successful in making the European Commission change course after an annulment, in the sense that the European Commission would have started acting (again) on the complaint as a result of the annulment. All annulments of decisions rejecting complaints have thus been Pyrrhic victories. [136]

85. This state of affairs is not really surprising, given that, as mentioned above, the European Commission has a broad discretion to select the cases which it investigates and in which it continues the proceedings up to the stage of a final decision. [137]

86. While this state of affairs should certainly make complainants that have received a decision rejecting their complaint think twice before embarking on an application for annulment, it does not in my view follow that the right of complainants to a reasoned and reviewable decision and the procedure for rejecting complaints do not serve any useful purpose. [138]

87. First, while there are no examples of cases where the European Commission changed its orientation following the annulment of a decision rejecting a complaint, there is at least one known example of a case in which such a change happened following the receipt of the complainants’ written observations on the pre-rejection letter pursuant to Article 7 of Regulation 773/2004. [139]

88. Secondly, the threat of a possible annulment by the EU Courts and the subsequent need to adopt a new decision, with the resulting administrative and reputational costs, has a disciplining effect on the European Commission, thus ensuring that it considers attentively all matters of fact and of law which the complainant brings to its attention and considers all the relevant matters of law and of fact in setting its enforcement priorities in relation to the complaint, as required by the case law. [140] This is turn provides a guarantee to prospective complainants, and may help convince them to lodge complaints which the European Commission would be interested in receiving and acting upon.

89. Finally, the right of complainants to a reasoned and reviewable decision rejecting their complaint strengthens the European Commission’s independence, in that it can help deflect pressure not to act on complaints against politically well-connected targets.  [141]

V. Responding to requests for information, participating in interviews and submitting to inspections

90. To collect information beyond the initial information triggering the investigation, the European Commission can make use of the powers of investigation set out in Chapter V of Regulation 1/2003, namely requests for information pursuant to Article 18, interviews pursuant to Article 19, and inspections pursuant to Article 20 of Regulation 1/2003.  [142]

91. These powers of investigation can be used during all stages of the investigation, from the preliminary investigation before the initiation of proceedings until after the statement of objections and the oral hearing. [143]

92. They can be used to obtain information not only from the undertakings/companies under investigation but also from third parties. [144]

1. Responding to requests for information

93. Article 18(1) of Regulation 1/2003 provides that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information.”  [145]

94. Requests for information are regularly sent not only to the undertakings under investigation but also to other undertakings or associations of undertakings that may have information relevant for the case. [146]

95. While the European Commission’s power to request information concerns undertakings,  [147] requests for information are addressed to one or more of the companies (or other persons) responsible for the operation of the undertaking, for reasons of enforceability.  [148]

96. Article 18(4) of Regulation 1/2003 provides that the owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.

97. There are two types of requests for information : simple requests pursuant to Article 18(2) and requests by decision pursuant to Article 18(3) of Regulation 1/2003.

98. Addressees of simple requests for information are under no obligation to respond, but if they choose to respond (as most addressees do, if only to avoid receiving a request by decision), they can be fined up to 1% of their turnover in the preceding business year if they intentionally or negligently supply incorrect or misleading information in response to the request.  [149]

99. Addressees of requests for information by decision are under an obligation to respond. They can be fined up to 1% of their turnover in the preceding business year if they intentionally or negligently supply incorrect, incomplete or misleading information or do not supply information within the required time limit. [150] The European Commission can also, either in the decision requesting information or in a subsequent decision, impose periodic penalty payments of up to 5% of the average daily turnover in the preceding business year per day to compel the addressee to supply complete and correct information.  [151]

100. Both in simple requests for information and in decisions requesting information, the European Commission must state the legal basis and the purpose of the request, specify what information is required and fix the time limit within which the information is to be provided. [152]

101. The reasoning of the request must clarify whether the addressee is an undertaking/company under investigation or a third party.  [153]

102. Requests for information can be used to request both the handing-over of (copies of) existing documents that are detained by or accessible to [154] the undertakings or associations of undertakings concerned and the provision of answers to questions.

103. The power of the European Commission to request information, and the obligation to provide it if requested by decision, extends to “all necessary information,” [155] that is, all information for which the European Commission may reasonably suppose that it will help it to determine whether the infringement under investigation has taken place. [156] In practice, that means that there must be a connection between the information requested by the European Commission and the alleged infringement it investigates. [157]

104. There are two exceptions to this broad power to request “all necessary information.”  [158] These exceptions are primarily relevant for the undertakings under investigation, but may occasionally also be relevant for third parties.

105. The first exception flows from the privilege against self-incrimination. According to the case law of the EU Court of Justice, whilst the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.  [159] The privilege against self-incrimination thus only extends to directly incriminating questions (involving an admission of infringement), not to purely factual questions, nor to the disclosure of documents, and does not amount to a general right to remain silent. [160]

106. The privilege against self-incrimination can only be violated in case of compulsion, i.e. only in case of a request for information by decision pursuant to Article 18(3) of Regulation 1/2003, not in case of a simple request pursuant to Article 18(2) of Regulation 1/2003.  [161] It is, however, the Commission’s policy to avoid directly incriminating questions also in simple requests for information.  [162]

107. The second exception concerns legal professional privilege.  [163] According to the case law of the EU Court of Justice, the protection of the confidentiality of certain communications between lawyer and client is an essential corollary to the rights of the defence and serves the important requirement that everyone should be able without restraint to consult a lawyer to obtain independent legal advice.  [164] The communications protected are, however, limited to those between a client and an independent lawyer (not in-house counsel) entitled to practice in one of the EU or EEA Member States. [165] The protected communications are those made “for the purpose and in the interests of the client’s rights of defence,” that is to say which come into existence after the initiation of proceedings or which, although made earlier, “have a relationship to the subject-matter of that procedure.” [166] Internal documents of an undertaking summarising advice received from independent lawyers are also protected. [167] Similarly, internal preparatory documents are protected if drawn up exclusively for the purpose of seeking legal advice from an external lawyer in exercise of the rights of defence.  [168]

108. As to the time limit for responding to the request, paragraph 38 of the Notice on Best Practices provides that addressees are given a reasonable time limit to reply to the request, according to the length and complexity of the request taking into account the requirements of the investigation. In general, this time limit will be at least two weeks from the receipt of the request. If from the outset, it is considered that a longer period is required, the time limit to reply to the request will be set accordingly. When the scope of the request is limited, for example if it only covers a short clarification of information previously provided or information readily available to the addressee of the request, the time limit will normally be shorter (one week or less). [169]

109. Paragraph 39 of the Notice on Best Practices provides that, if the addressee of a decision requesting information considers that the time limit imposed for its reply is too short, it can make a reasoned request for extension to the Directorate-General for Competition, sufficiently in advance of the expiry of the time limit. If the Directorate-General for Competition considers the request to be justified, additional time will be granted. The Directorate-General for Competition may also agree with the addressee of the request that certain parts of the requested information that are of particular importance or easily available for the addressee will be supplied within a shorter time limit, whereas additional time will be granted for supplying the remaining information.

110. With regard to request for information by decision, Article 4(2)(c), read in conjunction with Article 3(7), of Decision 2011/695/EU, provides that, if the addressee is unsuccessful in resolving its concerns about the time limit with the Directorate-General for Competition, it may refer the matter to the Hearing Officer, in due time before the expiry of the original time limit set. The Hearing Officer shall decide on whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation. [170]

111. The possibility to request from the Hearing Officer an extension of the time limit for replying to a request for information does not exist for simple requests for information, pursuant to Article 18(2) of Regulation 1/2003. This makes sense, because the addressees of such simple requests for information cannot be fined for not supplying information within the required time limit, only for supplying incorrect or misleading information. [171] Addressees of simple requests for information that consider that the time limit for their reply is too short, and that cannot obtain an extension from the Directorate-General for Competition, can thus not be sanctioned for not replying within the time limit. [172]

2. Participating in interviews

112. Article 19(1) of Regulation 1/2003 provides that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of the investigation.” [173]

113. Whereas the European Commission can only send requests for information to undertakings or associations of undertakings, any natural or legal person, including in particular any third party, can be an interviewee.

114. Both the European Commission and the interviewee can take the initiative for the interview, but interviews are always voluntary. The European Commission does not have the power to summon any natural or legal person to an interview. [174]

115. Interviews can take place remotely, by telephone or other electronic means, or in person, at the premises of the European Commission or of the interviewee or elsewhere. [175]

116. The European Commission must record the interview in full, but it is free to decide on the type of recording. [176] A copy of the recording must be made available to the interviewee. [177]

3. Submitting to inspections

117. Article 20(1) of Regulation 1/2003 provides that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.” [178]

118. Article 20(2) of Regulation 1/2003 specifies that the officials and other accompanying persons authorised by the European Commission to conduct the inspection are empowered “(a) to enter any premises, land and means of transport of undertakings and associations of undertakings ; (b) to examine the books and other records related to the business, irrespective of the medium on which they are stored ; (c) to take or to obtain in any form copies of or extracts from such books or records ; (d) to seal any business premises and books or records for the period and to the extent necessary for the inspection ; (e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers.” [179]

119. Even if much less frequent than requests for information addressed to third parties, inspections of undertakings and associations of undertakings other than those under investigation are possible, [180] and indeed have happened in some cases.

120. The European Commission’s powers of inspection concern undertakings. [181] Inspection decisions are typically addressed to the parent company “together with all subsidiaries directly or indirectly controlled by it.” [182]

121. Undertakings and associations of undertakings are required to submit to inspections ordered by decision, [183] and must actively cooperate with it. [184]

122. In case of opposition, the authorities of the Member State in whose territory the inspection is to be conducted must afford the necessary assistance to enable the inspection to proceed. [185] The European Commission can also impose fines of up to 1% of the total turnover in the preceding business year on undertakings that intentionally or negligently refuse to submit to inspections, produce the required books or other records relating to the business in incomplete form or give an incorrect or misleading answer to a question, or when seals are broken. [186]

123. Legal professional privilege and the privilege against self-incrimination, discussed above with respect to requests for information, [187] similarly limit the European Commission’s powers of inspection. The European Commission can neither examine nor copy documents protected by legal professional privilege as defined in the case law of the EU Courts, [188] nor ask for explanations that would require an admission of infringement.  [189]

VI. Obtaining information about and expressing one’s views in pending proceedings

1. Possibilities available to any third party

1.1 Press releases and publications on the website of the European Commission

124. As already mentioned above, [190] the European Commission normally publishes the initiation or opening of proceedings on its website and issues a press release. When the European Commission has addressed a statement of objections to the companies under investigation, it also normally publishes a press release setting out the key issues in the statement of objections. [191]

125. Even if these press releases and website publications normally do not contain any invitation for third parties to express their views, nothing prevents third parties from doing so, by using the general contact channels indicated on the European Commission’s website and referring to the press release and the case number usually mentioned in it.

1.2 Market test notices

126. As already mentioned above,  [192] before adopting a commitment decision or a non-infringement decision, the European Commission must publish in the Official Journal of the European Union a notice (market test notice) containing a concise summary of the case and the main content of the commitments or the proposed course of action. [193] The European Commission normally also publishes a parallel press release and may provide further information on its website. [194]

127. The market test notice always contains an explicit invitation for third parties to submit observations within a fixed time limit of no less than one month. [195]

1.3 No access to (documents in) the European Commission’s investigation file

128. While the companies under investigation, once the European Commission has addressed to them a statement of objections, have a right of access to the European Commission’s investigation file,  [196] third parties do not have any such right. [197]

129. Third parties might try to obtain access to documents in the European Commission’s investigation file by making a request for public access on the basis of the Regulation (EC) No 1049/2001 (the “Transparency Regulation”), [198] but such attempts are unlikely to be successful.

130. The Transparency Regulation defines the principles, conditions and limits on grounds of public or private interest governing the right of public access to documents held by EU institutions, including the European Commission.

131. Under the European Commission’s detailed internal rules for the application of the Transparency Regulation,  [199] it is open to any natural or legal person to request, on the basis of that regulation, access to documents held by the European Commission. [200] In accordance with Article 6(1) of the Transparency Regulation, there is no obligation to give reasons for such a request.

132. The Transparency Regulation does not allow the European Commission the possibility of granting access to a document subject to restrictions on the subsequent use and disclosure of that document. [201] Documents disclosed under the Transparency Regulation thus enter the public domain. [202]

133. Regulation 1/2003, however, contains specific rules regarding access to and the use of documents in the European Commission’s investigation file in antitrust proceedings. [203] The Transparency Regulation does not have primacy over either of those regulations. In these circumstances, the EU Courts have recognised that, in relation to such documents, the Commission is entitled to rely on a general presumption that they are not to be disclosed, even in part, on the basis of the Transparency Regulation. [204]

134. This does not rule out the possibility for an applicant under the Transparency Regulation to demonstrate that a given document is not covered by that general presumption, or that there exists an overriding public interest justifying the disclosure of the document. [205] In normal circumstances, however, third parties, who typically want to have access to documents in the European Commission’s investigation file because of their private interest in the case, are unlikely to be able to demonstrate this. [206]

135. Requests under the Transparency Regulation for access to documents related to the Commission’s antitrust proceedings are dealt with in the first instance by the Directorate-General for Competition and in the second instance by the Secretary-General of the European Commission. [207] The Hearing Officer does not play any role.

2. Third parties can strengthen their procedural position by requesting to be heard as an interested third person

136. Provided that they fulfil the substantive and procedural requirements set out below,  [208] third parties can strengthen their procedural position by requesting to be heard as an interested third person.

2.1 Substantive and procedural requirements to be heard as an interested third person

137. Article 27(3) of Regulation 1/2003 provides that natural or legal persons who “show a sufficient interest” have a right to be heard.  [209]

138. Recital 32 of Regulation 1/2003 clarifies what is meant by a third party having “a sufficient interest,” namely that “[its] interests may be affected by a decision.”

139. Whereas complainants must show that “[their] economic interests have been harmed or are likely to be harmed” as a result of the alleged infringement of Articles 101 or 102 TFEU, [210] interested third persons could either be harmed by the alleged infringement or benefitting from it. Their interest in being heard may thus be either against or in support of the companies under investigation.

140. It would also seem that the sufficient interest does not need to be of an economic nature, even if it most often is. [211]

141. The sufficient interest must be defined in the light of the precise conduct that is the subject of the proceedings at stake, and not in the light of abstract legal arguments that go beyond that conduct. [212] A general interest in the policy choices and legal reasoning which the Commission may develop in a potential decision but not linked to the conduct which is the subject of the proceedings cannot confer a right to be heard. [213]

142. Recital 11 of Regulation 773/2004 indicates that consumer associations that apply to be heard should generally be regarded as having a sufficient interest, where the proceedings concern products or services used by the end-consumer or products or services that constitute a direct input into such products or services. [214]

143. Similarly, business associations have a sufficient interest if their members would individually have a sufficient interest and the association is entitled to represent the interests of its members. [215]

144. There is certainly no requirement that the interested third person can provide useful information for the European Commission’s proceedings. The “sufficient interest” relates only to the interests of the third party that requests to be heard.  [216]

145. Article 5 of Decision 2011/695 empowers the Hearing Officer to decide whether third persons are to be heard, after consulting the Director from DG Competition responsible for the case.

146. Applications to be heard by interested third persons must be submitted in writing, and explain the applicant’s interest in the outcome of the procedure. [217]

147. Applications to be heard can be submitted from the date of the initiation of proceedings and until the European Commission consults the Advisory Committee on the basis of a draft decision. [218]

148. Where the Hearing Officer considers that an applicant has not shown a sufficient interest to be heard, they must inform the applicant in writing of the reasons thereof, and set a time limit for a further written submission. If the applicant responds within the time limit and the written submission does not lead to a different assessment, the Hearing Officer will take a reasoned decision.  [219]

149. If the application to be heard is granted, the Hearing Officer must inform the parties to the proceedings as from the initiation of proceedings of the identities of interested third persons to be heard, unless such disclosure would significantly harm a person or undertaking.  [220] In particular, according to the case law of EU Courts, keeping the identity of third parties confidential is justified where there is a risk that an undertaking holding a dominant position on the market might adopt retaliatory measures against competitors, suppliers or customers that have collaborated in the investigation carried out by the Commission.  [221] There is thus no incompatibility between being heard as an interested third person and remaining anonymous.  [222]

150. On the other hand, nothing prevents interested third persons from making public the fact that their application to be heard has been granted.  [223]

2.2 Procedural rights of interested third persons whose application to be heard has been granted

151. When the application to be heard of the interested third person has been granted by the Hearing Officer, the European Commission must inform the interested third person in writing of the nature and subject matter of the procedure and must set a time limit within which the interested third person may make known its views in writing.  [224]

152. It is for the Directorate-General for Competition to provide the written information on the nature and subject matter of the procedure, and to set the time limit for the interested third person’s written comments.

153. The Directorate-General for Competition has a wide discretion as to how it provides the written information on the nature and subject matter of the procedure. It may do so in the form of a summary document prepared specifically for this purpose. If a statement of objections has been sent, it may also do so by providing the interested third person with a non-confidential version of the statement of objections, but it is not obliged to do so.  [225] If the European Commission has published a detailed press release, which sets out the nature and subject matter of the procedure, the Directorate-General for Competition might simply provide the interested third person with this press release.

154. If the interested third person considers that it has not been (sufficiently) informed in writing of the nature and subject matter of the procedure, it may, after having first raised the issue with the Directorate-General for Competition, make a reasoned request to the Hearing Officer, who will take a reasoned decision on such request.  [226]

155. If the interested third person considers that the time limit to make its views known in writing is too short, it may seek an extension, first from the Directorate-General for Competition, and, if unsuccessful, subsequently from the Hearing Officer. [227]

156. If the interested third person requests so in its written comments, the Hearing Officer may, “where appropriate,” allow the interested third person to express their views also at the oral hearing of the parties to which a statement of objections has been issued.  [228]

157. Several points should be noted :

– First, interested third persons cannot request an oral hearing. They can only request to be allowed to express their views at the oral hearing of the addressees of the statement of objections, which presupposes that at least one of these addressees has requested an oral hearing.

– Second, interested third persons can only request to be allowed to express their views at the oral hearing if they have first requested and been allowed to be heard in writing, and have in their written comments requested the opportunity to participate in the oral hearing.

– Third, even if they have made the request in their written comments, interested third persons have no right to participate at the oral hearing. The Hearing Officer has a discretionary power to decide whether or not it is appropriate to admit an interested third person to the oral hearing.  [229] An important consideration which the Hearing Officer must take into account in making this decision is the contribution which the interested third person can make to the clarification of the relevant facts of the case.  [230] Normally a good indicator for this is the contribution which the interested third person has already made to the Commission’s investigation through written comments and responses to requests for information. Practical considerations may also play a role, such as the fact that the interested third person made its request to be heard relatively late, shortly before the oral hearing. [231]

– Fourth, third parties cannot anonymously participate in the oral hearing. Interested third persons that have requested to remain anonymous,  [232] must thus give up their anonymity if they want to express their views at the oral hearing.  [233]

3. Third parties can further strengthen their procedural position by lodging a complaint

158. Provided that they fulfil the substantive and procedural requirements for becoming a complainant,  [234] third parties can further strengthen their procedural position by lodging a complaint.

159. The possibility for informants to strengthen their procedural position by lodging a complaint has been discussed above in chapter IV “Informing the European Commission about a suspected infringement and triggering an investigation.” [235] The possibility for third parties to strengthen their procedural position by lodging a complaint is however not only available to informants that bring information on a matter which the European Commission is not yet investigating, but is also available to third parties at any point during ongoing investigations and proceedings, until the European Commission has sent its draft final decision to the Advisory Committee. [236]

160. Sometimes a third party which has already made a successful request to be heard as an interested person later lodges a complaint, so as to be benefit from the stronger procedural position which the status of complainant entails.  [237]

161. The procedural position of a complainant is indeed in three respects stronger than that of an interested third person :

– First, except in cases handled under the cartel settlement procedure,  [238] complainants are entitled to a non-confidential version of any statement of objections relating to a matter covered by the complaint,  [239] while interested persons are only entitled to written information on the nature and subject matter of the procedure, which, at the discretion of the Directorate-General for Competition, may or may not be given in the form of a non-confidential version of the statement of objections.  [240]

– Second, because complainants must be “closely associated with the proceedings,”  [241] complainants are most likely to be allowed to express their views at the oral hearing of the addressees of the statement of objections if those addressees request such a hearing. Like for interested third persons, [242] the admission of complainants to be oral hearing requires a request to this effect in the complainants’ written comments and is to be granted by the Hearing Officer “where appropriate. [243] Given the complainants’ right to be closely associated to the proceedings, their participation in the oral hearing is however much less likely to be found inappropriate than that of interested third persons.  [244]

– Third, as explained above, if the European Commission later decides no longer to act on the matter covered by the complaint, the complainant is entitled to a reasoned decision rejecting its complaint, must be heard in writing before such a decision is taken through a pre-rejection letter, and has a right of access to non-confidential versions of the documents on which the European Commission’s intended rejection of the complaint is based.  [245]

VII. Use of languages

162. According to Article 1 of Regulation 1 determining the languages to be used by the European Union,  [246] the official languages of the European Union and the working languages of the European Commission are Bulgarian, Croatian, Czech, Danish, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish. [247]

163. According to Article 41(4) of the Charter of Fundamental Rights of the European Union, every person may write to the European Commission in any of the EU official languages selected by the sender, and must have an answer from the European Commission in the same language. [248]

164. Third parties can thus inform the European Commission about a suspected infringement, either informally or by lodging a complaint, in any of the EU official languages. [249] Similarly, third parties can provide comments in response to a market test notice, or request to be heard as an interested third person in any of the EU official languages.

165. All subsequent correspondence from the European Commission to the third party must in principle be in the same language as that initially chosen by the third party. For instance, if the European Commission subsequently wants to reject the complaint, [250] both the pre-rejection letter pursuant to Article 7 of Regulation 773/2004 and the decision rejecting the complaint must in principle be in the same language as the complaint.

166. According to Article 3 of Regulation 1, documents which the European Commission sends to a person subject to the jurisdiction of a Member State must be drafted in the language of such State. For instance, if the European Commission addresses a request for information to a third party in Sweden, the request must thus in principle be drafted in Swedish. [251]

167. A party can however waive its language rights, and agree to receive correspondence from the European Commission in another language. [252]

168. According to the case law of the EU Courts, the language rules do not constitute an essential procedural requirement, within the meaning of Article 263 TFEU, the infringement of which necessarily affects the validity of any document addressed by the European Commission to a person in another language. An infringement of the language rules by the European Commission vitiates the procedure only if it gives rise to harmful consequences for that person in the course of the administrative procedure, which can normally be excluded if that person has read and understood the document. [253]

VIII. Confidentiality and use of information

1. Protection of confidential information of third parties

169. Third parties that provide information in the European Commission’s antitrust investigations and proceedings are entitled to protection of their business secrets and other confidential information.  [254]

170. As already mentioned above,  [255] where the European Commission accepts information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity, it is in principle bound to comply with such a condition. [256] The informant requesting anonymity should, when providing documents, inform the European Commission that it is possible to infer his or her identity as the informant from the documents themselves.  [257]

171. Also when the information is not provided on a purely voluntary basis (for instance, in response to a request for information by decision  [258]), justified specific fears of reprisals by (dominant) companies under investigation entitle third party information providers to confidentiality protection.  [259]

172. More generally, third parties are entitled to protection of their business secrets and any other confidential information that they provide in the course of the European Commission’s investigations and proceedings. [260]

173. In general, [261] for given information to be considered as confidential, it is necessary : (i) that it be known only to a limited number of persons ; (ii) that the disclosure of that information be liable to cause serious harm to the person who has provided it or to other parties ; and (iii) that the interests liable to be harmed by disclosure be objectively worthy of protection. [262]

174. When providing their written comments on a non-confidential version of the statement of objections, [263] or on a pre-rejection letter, [264] or on the information they have received on the nature and subject matter of the procedure, [265] as well as when they subsequently submit further information in the course of the same procedure, complainants or interested third persons are under an obligation to clearly identify any material which they consider to be confidential, giving reasons, and to provide a separate non-confidential version by the date set by the European Commission for making their views known. [266] If undertakings or associations of undertakings fail to comply with this obligation, the European Commission may assume that the documents or statements concerned do not contain confidential information. [267]

175. In all other situations in which third parties, at least those that are undertakings or associations of undertakings, [268] provide documents or statements, the European Commission may also require them to identify any material which they consider to be confidential, giving reasons, and to provide a separate non-confidential version within a time limit set by the European Commission. [269] Again, if they fail to comply with this obligation, the European Commission may assume that the documents or statements concerned do not contain confidential information. [270]

176. With the exception of the identity of informants from whom the European Commission has accepted information supplied on a purely voluntary basis, accompanied by a request for confidentiality to protect the informant’s anonymity  [271] (and the identity of (non-voluntary) information providers with justified specific fears of reprisals by (dominant) companies under investigation [272]), for which confidentiality protection appears absolute, [273] the protection of confidential information of third parties is not absolute, however.

177. In particular in the context of access to the file by the companies under investigation to whom the European Commission has addressed a statement of objections, [274] and as regards confidential information on the investigation file that is capable of having some (exculpatory or inculpatory) evidential value, there is a need to strike a proportionate balance between the protection of confidentiality, on the one hand, and the rights of the defence and the need to ensure efficient application by the European Commission of EU antitrust rules, on the other hand. [275]

178. Even if third parties are thus not guaranteed absolute protection of their confidential information, they do however benefit from strong procedural safeguards in case the European Commission intends to disclose information for which the third party has claimed confidentiality :

179. Article 8(1) and (2) of Decision 2011/695/EU provide that, where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate-General for Competition. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the Hearing Officer. If the Hearing Officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification. [276]

180. Article 8(4) of the Decision 2011/695/EU adds that, where appropriate in order to balance the effective exercise of a party’s rights of defence with legitimate interests of confidentiality, the Hearing Officer may decide that parts of the file which are indispensable for the exercise of the party’s rights of defence will be made accessible to the party requesting access in a restricted manner, the details of which shall be determined by the Hearing Officer. Recital 16 of Decision 2011/695/EU further explains that such access in a restricted manner may involve, for example, a limitation of the number or category of persons having access, and a limitation of the use of the information being accessed.  [277] The so-called data room procedure is a type of such restricted access.  [278]

181. The third party the disclosure of whose alleged business secrets or other confidential information the Hearing Officer’s decision allows can immediately bring before the EU General Court an action for annulment against the Hearing Officer’s decision, as well as a request for suspension or other interim measures.  [279]

2. Third parties have no access to business secrets or other confidential information of the undertakings/companies under investigation

182. Third parties are not allowed to have access to business secrets or other confidential information of the undertakings/companies under investigation.  [280]

183. Complainants are therefore only entitled to receive a non-confidential version of any statement of objections, [281] and the information on the nature and subject matter of the procedure to which interested third persons that have shown a sufficient interest are entitled must be similarly stripped of any business secrets or other confidential information of the undertakings/companies under investigation. [282]

184. Contrary to what has been mentioned above about the need to balance the protection of third parties’ right to confidentiality with the defence rights of the companies under investigation and the need to ensure efficient application by the European Commission of EU antitrust rules, [283] there is no balancing involved here. Business secrets or other confidential information of the undertakings/companies under investigation cannot be disclosed to third parties. [284]

185. This asymmetry in the level of protection of business secrets and other confidential information of the undertakings/companies under investigation as compared to those of third parties is justified by the different interests at stake (the rights of the defence of the companies under investigation and the effective enforcement of the EU antitrust rules by the European Commission weighing more heavily than the participation rights of third parties) as well as by the need to avoid “the unacceptable consequence that an undertaking may be inspired to lodge a complaint with the Commission solely in order to gain access to its competitors’ business secrets.  [285]

3. Restrictions on the use of information obtained by third parties through their participation in the European Commission’s proceedings

186. Article 16a(1) of Regulation 773/2004 provides that any information obtained pursuant to this Regulation can only be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 TFEU.

187. Article 16a(3) of Regulation 773/2004 further provides that information that was prepared by other natural or legal persons specifically for the European Commission’s proceedings and information that the European Commission has drawn up and sent to the parties in the course of its proceedings cannot be used in proceedings before national courts until the European Commission has closed its proceedings against all parties under investigation. [286]

— I am grateful to Eric Gippini Fournier and Sophia Stephanou for their comments on an earlier version of this paper. All views expressed in this paper are strictly personal, and should not be construed as reflecting the opinion of the European Commission or any of the above-mentioned persons. This paper was completed on 1 November 2021 and has also been published in World Competition, Volume 45, Issue 1, March 2022. Comments are welcome at wouter.wils@ec.europa.eu.

Notes

[1These two prohibitions were previously contained in Articles 85 and 86 of the Treaty establishing the European Economic Community (EEC) and in Articles 81 and 82 of the Treaty establishing the European Community (EC).

[2Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1, last amended by Council Regulation (EC) No. 1419/2006 [2006] OJ L 269/1 (“Regulation 1/2003”). Antitrust proceedings conducted by the European Commission are further regulated by Commission Regulation (EC) No. 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, [2004] OJ L 123/18, last amended by Commission Regulation (EU) 2015/1348 of 3 August 2015, [2015] OJ L 208/3 (“Regulation 773/2004”), and by Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings, [2011] OJ L 275/29 (“Decision 2011/695/EU”). See also Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, [2011] OJ C 308/6 (“Notice on Best Practices”). As indicated in its paragraph 7, the Notice on Best Practices does not create any new rights or obligations, nor alter the rights or obligations which arise from the Treaty, Regulation 1/2003, Regulation 773/2004 and the case law of the EU Courts ; see Judgment of 19 January 2016, Toshiba v. Commission, T-404/12, EU:T:2016:18, paragraph 56.

[3Articles 101 and 102 TFEU are also enforced through private litigation ; see my papers Private Enforcement of EU Antitrust Law and its Relationship with Public Enforcement : Past, Present and Future (2017) 40 World Competition 3 and The Relationship between Public Antitrust Enforcement and Private Actions for Damages (2009) 32 World Competition 3, both also accessible at http://ssrn.com/author=456087.

[4Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings, [2004] OJ L 24/1.

[5Judgments of 18 July 2013, Schindler Holdings and Others v. Commission, C-501/11 P, EU:C:2013:522, paragraph 102, and of 6 October 2021, Sumal, C-882/19, EU:C:2021:800, paragraph 39.

[6Judgments of 18 July 2013, Schindler Holdings and Others v. Commission, C-501/11 P, EU:C:2013:522, paragraph 103, of 10 September 2009, Akzo Novel and Others v. Commission, C-97/05 P, EU:C:2009:536, paragraph 55, of 25 November 2020, Commission v. GEA Group, C-823/18 P, EU:C:2020:955, paragraph 64 and of 6 October 2021, Sumal, C-882/19, EU:C:2021:800, paragraphs 41 to 47 ; see further O. Odudu and D. Bailey, The Single Economic Entity Doctrine in EU Competition Law (2014) 51 Common Market law Review 1721 ; C. Koenig, An Economic Analysis of the Single Economic Entity Doctrine in EU Competition Law (2017) 13 Journal of Competition Law and Economics 281, and Comparing Parent Company Liability in EU and US Competition Law (2018) 41 World Competition 69 ; and my papers The Undertaking as Subject of E.C. Competition Law and the Imputation of Infringements to Natural and Legal Persons (2000) 25 European law Review 99, and Antitrust Compliance Programmes and Optimal Antitrust Enforcement (2012) 1 Journal of Antitrust Enforcement 52, text accompanied by footnotes 22 to 29, also accessible at http://ssrn.com/author=456087.

[7See Opinion of Advocate General Kokott of 23 April 2009, Akzo Nobel NV and Others v. Commission, C-97/08 P, EU:C:2009:262, paragraph 37 and footnote 24 ; and Article 299 TFEU.

[8If the undertaking concerned were found to consist of an unincorporated business (a single trader, with or without employees, who has not incorporated his or her business, or a professional exercising his or her profession alone and unincorporated, or several natural persons operating a single business without any employment relationship between them and without any form of legal person), the European Commission would necessarily have to address its decision to the natural person or persons operating the business. However, this situation almost never occurs : in practice proceedings are always conducted against companies or other legal persons. In the Pre-Insulated Pipes case, one of the undertakings fined for participation in the cartel was controlled and managed by a natural person, Dr. W. H., but the European Commission appears to have made an effort to avoid imposing the fine on him, identifying instead a collection of companies which it held jointly and severally liable for the fine ; see recitals 157–160 and Article 3(d) of the Decision of 21 October 1998, Pre-Insulated Pipe Cartel, [1999] OJ L 24/1, and paragraph 105 of the Judgment of 20 March 2002, HFB and Others v. Commission, T-9/99, EU:T:2002:70, in which the Court found that the European Commission had “intentionally” not established Dr H.’s liability. See also Judgment of 2 October 2003, Siderurgica Aristrain Madrid v. Commission, C-196/99 P, EU:C:2003:529, paragraphs 91 and 101 ; and see further my paper Is Criminalisation of EU Competition Law the Answer ? (2005) 28 World Competition 117, also accessible at http://ssrn.com/author=456087.

[9Judgments of 17 December 1991, Enichem Anic v. Commission, T-6/89, EU:T:1991:74, paragraph 236 ; and of 27 March 2014, Saint-Gobain Glass France and Compagnie de Saint-Gobain v. Commission, T‑56/09 and T‑73/09, EU:T:2014:160, paragraph 312 ; and of 12 July 2018, Silec Cable and General Cable v. Commission, T-438/14, EU:T:2018:447, paragraph 194.

[10See Opinion of Advocate General Kokott of 12 January 2012, Alliance One and Others v. Commission, C-628/10 P and C-14/11 P, EU:C:2012:11, paragraphs 46 to 67 ; Judgment of 8 July 2004, JFE Engineering and Others v. Commission, T-67/00, etc., EU:T:2004:221, paragraph 414 ; Judgment of 9 September 2015, LG Electronics v. Commission, T-91/13, EU:T:2015:609, paragraphs 64 to 91 ; and Judgment of 6 October 2021, Sumal, C-882/19, EU:C:2021:800, paragraphs 62 and 63.

[11Judgments of 15 July 2015, Akzo Nobel NV and Others v. Commission, T-47/10, EU:T:2015:506, paragraph 126, of 10 September 2009, Akzo Nobel NV and Others v. Commission, C-97/08 P, EU:C:2009:536, paragraph 57, and of 6 October 2021, Sumal, C-882/19, EU:C:2021:800, paragraph 56.

[12In practice, companies belonging to the same undertaking most often exercise their procedural rights jointly, but not always, especially not if they contest that they form a single undertaking. In the European Commission’s cartel settlement procedure, companies within the same undertaking must appoint a joint representative ; see paragraph 12 of Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No. 1/2003 in cartel cases, [2008] OJ C 167/1, and text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[13Where the suspected infringement concerns a decision by an association of undertakings, and the association of undertakings has legal personality, proceedings are usually only conducted against the association of undertakings.

[14See Articles 7(2) and 27(3) of Regulation 1/2003 and text accompanied by notes Error : Reference source not found and Error : Reference source not found below.

[15See paragraph 32 of the Notice on Best Practices, Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraph 284, and text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[16See text accompanied by note Error : Reference source not found below.

[17See further my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456078.

[18See Opinion of Advocate General Kokott of 19 July 2012, Alliance One and Others v. Commission, C-628/10 P and C-14/11 P, EU:C:2012:11, paragraphs 46–47 ; Judgment of 8 July 2004, JFE Engineering and Others v. Commission, T-67/00 etc., EU:T:2004:221, paragraph 414 ; Judgment of 9 September 2015, LG Electronics v. Commission, T-91/13, EU:T:2015:609, paragraphs 64 to 91 ; and Judgment of 6 October 2021, Sumal, C-882/19, EU:C:2021:800, paragraphs 62 and 63.

[19See Opinion of Advocate General Kokott of 19 July 2012, Alliance One and Others v. Commission, C-628/10 P and C-14/11 P, EU:C:2012:11, paragraphs 48 to 67, and Judgment of 9 December 2020, Groupe Canal + v. Commission, C-132/19 P, EU:C:2020:1007, paragraphs 94 to 127.

[20See Judgment of 16 June 2016, FSL Holdings and Others v. Commission, T-655/11, EU:T:2015:383, paragraphs 56, 57, 131 and 148, and the case law cited therein.

[21Opinion of Advocate General Kokott of 17 September 2009, Commission v. Alrosa, C-441/07 P, EU:C:2009:55, paragraphs 174 to 177, and Judgment of 29 July 2010, Commission v. Alrosa, C-441/07 P, EU:C:2010:3775, paragraphs 88 and 89.

[22Whereas in Article 11(6) of Regulation 1/2003 and in Article 2 of Regulation 773/2004 the term “initiation of proceedings” is used, the term “opening of proceedings” is used in paragraphs 17 to 24 of the Notice on Best Practices. An introductory overview of the European Commission’s antitrust procedures from start to end is provided in chapter III. “Overview of the European Commission’s antitrust procedures” below.

[23For the definition of “cartels,” see Article 2(14) of Directive 2014/104/EU of the European Parliament and the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] OJ L 349/1, and recital 2 of Commission Regulation (EU) 2015/1348 of 3 August 2015 amending Regulation (EC) No. 773/2004 on the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty [2015] L 208/3.

[24See paragraphs 17 and 18 of the Notice on Best Practices.

[25See paragraph 24 of the Notice on Best Practices.

[26Paragraph 19 of the Notice on Best Practices.

[27See Article 2(2) of Regulation 773/2004 and paragraphs 20 and 21 of the Notice on Best Practices. Paragraph 20 of the Notice on Best Practices refers to “the website of the Directorate-General for Competition.” What is meant is the “Competition Policy” section of the website of the European Commission ; see https://ec.europa.eu/competition-policy/index_en.

[28See paragraph 23 of the Notice on Best Practices.

[29See paragraphs 76 and 114 of the Notice on Best Practices.

[30See Judgments of 8 July 2008, AC-Treuhand v. Commission, T-99/04, EU:T:2008:256, paragraphs 52 to 59, and Article 4(2)(d) of Decision 2011/695/EU ; see also text accompanied by note Error : Reference source not found below.

[31See Article 4(2)(d), read in conjunction with Article 3(7), of Decision 2011/695/EU ; paragraph 15 of the Notice on Best Practices ; and my paper The Role of the Hearing Officer in Competition Proceedings before the European Commission (2012) 35 World Competition 431, updated version accessible at http://ssrn.com/author=456078.

[32The addressees of Commission decisions can subsequently bring an action for annulment against the Commission decision before the EU Courts, thus ensuring the compatibility of the enforcement system with the fundamental right of access to an independent court ; see Judgments of 8 December 2011, Chalkor v. Commission, C-386/10 P, EU:C:2011:815 ; of 18 July 2013, Schindler v. Commission, C-501/11 P, EU:C:2013:522 ; and of 25 October 2018, Emesa-Trefilería and Industrias Galycas v. Commission, T-406/10, EU:T:2015:499 ; View of Advocate General Kokott of 13 June 2014, Opinion procedure 2/13 (Accession of the EU to the ECHR), EU:C:2014:2475, paragraphs 146 to 150 ; Judgment of the European Court of Human Rights of 27 September 2011, Menarini Diagnostics v. Italy (Application No. 43509/08), and Decision of the European Court of Human Rights of 13 March 2012, Bouygues Telecom v. France (Application No. 2324/08) ; and my papers The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement : A Legal and Economic Analysis (2004) 27 World Competition 201, The Increased Level of EU Antitrust Fines, Judicial Review and the ECHR (2010) 33 World Competition 5, and The Compatibility with Fundamental Rights of the EU Antitrust Enforcement System in Which the European Commission Acts Both as Investigator and as First-Instance Decision Maker (2014) 37 World Competition 5, all three also accessible at http://ssrn.com/author=456078.

[33See below, text accompanied by notes Error : Reference source not found and following. Even when a formal complaint is at the origin of the investigation, the ensuing proceedings are not adversarial proceedings between the complainant and the companies under investigation, but proceedings commenced and conducted by the European Commission, in fulfilment of its task to implement EU competition policy, against the companies investigated ; see Judgments of 17 November 1987, British American Tobacco and Reynolds Industries v. Commission, 142 and 156/84, EU:C:1987:490, paragraphs 19 and 20 ; of 11 July 2013, Diamanthandel A. Spira v. Commission, T-108/07 and T-354/08, EU:T:2013:367, paragraph 59 ; and of 16 December 2020, Fakro v. Commission, T-515/18, EU:T:2020:620, paragraph 41.

[34See below, text accompanied by notes Error : Reference source not found and following.

[35See Article 12 of Regulation 1/2003, and Opinion of Advocate-General Kokott of 17 November 2016 and Judgment of 27 April 2017, FSL Holdings and Others v. Commission, C-469/15, EU:C:2016:884 and EU:C:2017:308.

[36Such market monitoring can be informal or can take place within the formal framework of a sector inquiry pursuant to Article 17 of Regulation 1/2003.

[37See Judgment of 18 June 2015, Deutsche Bahn and Others v. Commission, C-583/13 P, EU:C:2015:404, paragraph 59.

[38See Article 4a of Regulation 773/2004 ; Commission Notice on Immunity from fines and reduction of fines in cartel cases, [2006] OJ C 298/11, as amended by Communication from the Commission Amendments to the Commission Notice on Immunity from fines and reduction of fines in cartel cases, [2015] OJ C 256/1 ; and my papers Leniency in Antitrust Enforcement : Theory and Practice (2007) 30 World Competition 25 and The Use of Leniency in EU Cartel Enforcement : An Assessment after Twenty Years (2016) 39 World Competition 327, both also accessible at http://ssrn.com/author=456078.

[39These investigative measures can be used during all stages of the investigation, from the preliminary investigation before the initiation of proceedings until after the statement of objections and the oral hearing ; see Article 2(3) of Regulation 773/2004 and Judgment of 9 April 2019 in Qualcomm and Qualcomm Europe v. Commission, T-371/17, EU:T:2019:232, paragraphs 67 to 76, confirmed on appeal in Judgment of 28 January 2021 in Qualcomm and Qualcomm Europe v. Commission, C-466/19 P, EU:C:2021:76, paragraphs 72 and 73.

[40See my papers Settlements of EU Antitrust Investigations : Commitment Decisions under Article 9 of Regulation No. 1/2009 (2006) 29 World Competition 345, The Use of Settlements in Public Antitrust Enforcement : Objectives and Principles (2008) 31 World Competition 335, and Ten Years of Commitment Decisions under Article 9 of Regulation 1/2003 : Too Much of a Good Thing ? (2005) Concurrences No. 3, all three also accessible at http://ssrn.com/author=456078.

[41See recital 14 of Regulation 1/2003 ; at the time of writing, no inapplicability decision has been adopted yet.

[42See Article 2(1) of Regulation 773/2004 and text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[43See Article 27(1) of Regulation 1/2003, Article 10 of Regulation 773/2004 and paragraphs 81 to 91 of the Notice on Best Practices.

[44See Article 27(2) of Regulation 1/2003, Article 15 of Regulation 773/2004, paragraphs 92 to 98 of the Notice on Best Practices, and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087.

[45See Articles 10 and 11 of Regulation 773/2004, and paragraphs 99 to 103 of the Notice on Best Practices.

[46See Article 12 of Regulation 773/2004, paragraphs 106 to 108 of the Notice on Best Practices, and my paper The Oral Hearing in Competition Proceedings Before the European Commission (2012) 35 World Competition 397, updated version accessible at http://ssrn.com/author=456087.

[47See paragraphs 109 to 112 of the Notice on Best Practices.

[48See Article 14 of Regulation 1/2003.

[49See Article 2(1) of Regulation 773/2004 and text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[50See Article 27(1) of Regulation 1/2003 and Article 10 of Regulation 773/2004.

[51See Article 27(2) of Regulation 1/2003, and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087.

[52See Articles 10 to 12 of Regulation 773/2004, and Final Report of the Hearing Officer in Case AT.40608 Broadcom – Interim Measures Procedure, [2021] OJ C 81/13.

[53See Article 14 of Regulation 1/2003.

[54See note Error : Reference source not found above. Also in cases other than cartel cases, the companies under investigation may cooperate with proceedings leading to an infringement decision ; see European Commission, Fact Sheet – Cooperation – FAQ (17 December 2018), accessible at https://ec.europa.eu/competition/publications/data/factsheet_guess.pdf. No specific procedural rules for such cooperation cases have been enacted so far.

[55See Article 10a of Regulation 773/2004, as inserted by Commission Regulation (EC) No. 622/2008 of 30 June 2008 amending Regulation (EC) No. 773/2004, as regards the conduct of settlement procedures in cartel cases, [2008] OJ L 171/3 ; Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No. 1/2003 in cartel cases, [2008] OJ C 167/1, amended by Communication from the Commission – Amendments to the Commission Notice on the conduct of settlement procedures, [2015] OJ C 256/2 ; and my paper The Use of Settlements in Public Antitrust Enforcement : Objectives and Principles (2008) 31 World Competition 335, also accessible at http://ssrn.com/author=456078.

[56See Article 14 of Regulation 1/2003.

[57In line with recital 13 of Regulation 1/2003, the European Commission does not adopt commitment decisions in secret cartel cases ; see paragraph 116 of the Notice on Best Practices.

[58See paragraphs 1118 to 128 of the Notice on Best Practices.

[59See Judgment of 11 July 2007, Alrosa v. Commission, T-170/06, EU:T:2007:220, paragraph 130.

[60In other words, the statement of objections and/or interim measures decision qualifies as preliminary assessment within the meaning of Article 9 of Regulation 1/2003 ; see, by way of examples, Summary of Commission Decision of 29 April 2019 in Case AT.40049 – Mastercard II, [2019] OJ C 300/6 and Summary of Commission Decision of 7 October 2020 in Case AT.40608 – Broadcom, [2021] OJ C 81/9.

[61If the European Commission had not yet initiated proceedings, it must do so at the latest simultaneously with the adoption of the preliminary assessment ; see Article 2(1) of Regulation 773/2004.

[62See Article 27(4) of Regulation 1/2003 and paragraphs 129 to 133 of the Notice on Best Practices, and text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[63See Article 14 of Regulation 1/2003.

[64See Article 9(1) and recital 13 of Regulation 1/2003.

[65See Article 27(4) of Regulation 1/2003. If the European Commission had not yet initiated proceedings, it must do so at the latest simultaneously with the publication of the market test notice ; see Article 2(1) of Regulation 773/2004.

[66See Article 14 of Regulation 1/2003.

[67See paragraphs 76 and 114 of the Notice on Best Practices.

[68See paragraph 10 of the Notice on Best Practices, and Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraph 222.

[69See paragraph 10 of the Notice on Best Practices, and paragraph 3 of Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty, [2004] OJ C 101/65 (“Notice on Complaints”).

[70The undertakings that committed the infringements can also themselves inform the European Commission about their infringements and seek leniency ; see Commission Notice on Immunity from fines and reduction of fines in cartel cases, [2006] OJ C 298/11, as amended by Communication from the Commission Amendments to the Commission Notice on Immunity from fines and reduction of fines in cartel cases, [2015] OJ C 256/1 ; Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No. 1/2003, [2006] OJ C 210/2, paragraph 29, fourth indent ; and my papers Leniency in Antitrust Enforcement : Theory and Practice (2007) 30 World Competition 25 and The Use of Leniency in EU Cartel Enforcement : An Assessment after Twenty Years (2016) 39 World Competition 327, both also accessible at http://ssrn.com/author=456078.

[72See paragraph 10 of the Notice on Best Practices, and Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-245/17, EU:T:2020:459, paragraph 206.

[73See Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraphs 193 to 201 ; pending on appeal Intermarché Casino Achats v. Commission, C-693/20 P.

[74See Judgments of 7 November 1985, Adams v. European Commission, 145/83, EU:C:1985:448, paragraph 34 ; of 8 July 2004, Mannesmannröhren-Werke v. Commission, T‑44/00, EU:T:2004:218, paragraph 84, confirmed on appeal in Judgment of 25 January 2007, Salzgitter Mannesmann v. European Commission, C‑411/04 P, EU:C:2007:54, paragraph 45 ; of 8 July 2004, Dalmine v. European Commission, T‑50/00, EU:T:2004:220, paragraph 72, confirmed on appeal in Judgment of 25 January 2007, Dalmine v. European Commission, C‑407/04 P, EU:C:2007:53, paragraph 49 ; and of 8 July 2008, BPB v. European Commission, T‑53/03, EU:T:2008:254, paragraph 36.

[75See Judgments of 22 October 2002, Roquette Frères, C-94/00, EU:C:2002:603, paragraph 64, and of 5 October 2020, Intermarché Casino Achats v. Commission, T-245/17, EU:T:2020:459, paragraph 124.

[77See European Commission Press release IP/17/591 of 16 March 2017 and https://ec.europa.eu/competition-policy/cartels/whistleblower_en.

[78See Judgment of 22 October 2002, Roquette Frères, C-94/00, EU:C:2002:603, paragraphs 62 to 65.

[79The mere fact that the Commission does not disclose the source of that information does not prevent the Commission from relying on it as evidence, although it might have a bearing on the credibility of that evidence ; see Judgments of 25 January 2007, Dalmine v. Commission, C‑407/04 P, EU:C:2007:53, paragraphs 48 to 51 ; of 8 July 2004, JFE Engineering and Others v. Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 273 ; and of 8 July 2004, Mannesmannröhren-Werke v. Commission, T‑44/00, EU:T:2004:218, paragraphs 84 to 86.

[80See (text accompanied by) note Error : Reference source not found above.

[81See W. Wils and A. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 98 to 102.

[82See, to that effect, Judgment of 7 November 1985, Adams v. European Commission, 145/83, EU:C:1985:448, paragraphs 53 to 55.

[83See text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[84The possibility for third parties to strengthen their procedural position by lodging a complaint is not only available to informants that bring information on a matter which the European Commission is not yet investigating, but is also available to third parties at any point during ongoing investigations and proceedings, until the European Commission has sent its draft final decision to the Advisory Committee ; see Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraphs 90 and 91, 148 to 150, and 160 ; and text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[85Article 29(1) of Regulation 1/2003 similarly provides that the Commission may, “acting on its own initiative or on a complaint,” withdraw the benefit of a block exemption regulation in an individual case.

[86As well as in relation to its Article 29(1) (withdrawal of the benefit of a block exemption regulation in an individual case) ; see note Error : Reference source not found above. Article 9(2) of Regulation 1/2003 also provides that the Commission may “upon request or on its own initiative” reopen proceedings previously closed through the adoption of a commitment decision pursuant to Article 9(1) of Decision 1/2003. Such request could be made either by an addressee of the commitment decision or by a third party. For an example of such a request by a third party, see Judgment of 6 February 2014, Confederación Española de Empresarios de Estaciones de Servicio (CEEES) and Asociación de Gestores de Estaciones de Servicio v. Commission, T-342/11, EU:2014:60.

[87This point appears to have been overlooked in Confederación Española de Empresarios de Estaciones de Servicio (CEEES) and Asociación de Gestores de Estaciones de Servicio v. Commission, as note Error : Reference source not found above, paragraphs 74 to 81. To the extent that the applicants in that case sought the imposition of a fine, they had no procedural status as complainants, and their application for annulment against the Commission’s refusal to impose a fine should have been declared inadmissible by the General Court ; see, by analogy, Judgment of 9 October 2018, 1&1 Telecom v. Commission, T-43/16, EU:T:2018:660, paragraphs 47 and 48, and Order of 19 February 1997, Intertronic v. Commission, T-117/96, EU:T:1997:16.

[88Whereas the Court of Justice’s interpretation of Article 3 of Regulation 17 in Camera Care as covering also interim measures simultaneously extended the legal status of complainant under Regulation 17 to interim measures (Order of 17 January 1980, Camera Care v. Commission, 792/79 R, EU:C:1980:18), it is clear from the text of Article 8 of Regulation 1/2003 (compared to the text of its Article 7), as well as from the legislative history of Regulation 1/2003 (Explanatory Memorandum accompanying the Commission’s legislative proposal, COM(2000) 582 final of 27.9.2000 at page 18 (explanations relating to Article 8 – Interim measures)) that interim measures can only be adopted at the Commission’s own initiative ; see also paragraph 80 of the Notice on Complaints, and paragraph 35 of the Final Report of the Hearing Officer in Case AT.40608 Broadcom – Interim Measures Procedure, [2021] OJ C 81/13.

[89The procedural rights of the complainant belong to the natural or legal person which lodged the complaint and, if that person no longer exists, its legal successor, but not a mere economic successor ; see Final Report of the Hearing Officer in Case COMP/E-1/38.113 – Prokent/Tomra, [2008] OJ C 219/7.

[90Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraphs 114 and 115. In paragraphs 34 to 38 of its Notice on Complaints, which predates the judgment in Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission (but which has not been amended since ; see in this respect Opinion of Advocate General Geelhoed of 27 April 2006, VW-Audi Forhandlerforenigingen v. Skandinavisk Motor, C-125/05, EU:C:2006:262, paragraph 38), the European Commission has set out an alternative test of “being directly and adversely affected by the alleged infringement.” Whereas the requirement of being adversely affected is in line with the judgment in Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, the additional requirement of being directly affected does not appear correct ; see also, by analogy, Judgments of 5 June 2014, Kone and Others, C-557/12, EU:C:2014:1317, paragraphs 33 and 34 ; of 12 December 2019, Otis and Others, C-435/18, EU:C:2019:1069, paragraphs 27 and 32 ; and of 12 October 2011, Association belge des consommateurs test-achats v. Commission, T-224/10, EU:T:2011:588, paragraphs 40 to 44.

[91See, by analogy, Judgment of 20 September 2001, Courage and Crehan, C-453/99, EU:C:2001:465, paragraphs 24 to 34.

[92See Judgments of 24 January 1995, Bureau Européen des Médias de l’Industrie Musicale (BEMIM) v. Commission, T-114/92, EU:T:1995:11, paragraphs 28 and 29, and of 18 May 1994, Bureau Européen des Unions des Consommateurs and National Consumer Council v. Commission, T-37/92, EU:T:1994:54, paragraph 36.

[93See Article 5 and recitals 6 and 7 of Regulation 773/2004, and Judgment of 19 May 2011, Ryanair v. Commission, T-423/07, EU:T:2011:226, paragraphs 55 to 59.

[94Article 5(1), last sentence, of Regulation 773/2004. According to paragraph 31 of the Notice on Complaints, this possibility can in particular play a role to facilitate complaints by consumer associations where they, in the context of an otherwise substantiated complaint, do not have access to specific pieces of information from the sphere of the undertakings complained of.

[95See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[96See text accompanied by note Error : Reference source not found above.

[97See Judgments of 7 November 1985, Adams v. European Commission, 145/83, EU:C:1985:448, paragraph 34 ; of 8 July 2004, Mannesmannröhren-Werke v. Commission, T‑44/00, EU:T:2004:218, paragraph 84, confirmed on appeal in Judgment of 25 January 2007, Salzgitter Mannesmann v. European Commission, C‑411/04 P, EU:C:2007:54, paragraph 45 ; of 8 July 2004, Dalmine v. European Commission, T‑50/00, EU:T:2004:220, paragraph 72, confirmed on appeal in Judgment of 25 January 2007, Dalmine v. European Commission, C‑407/04 P, EU:C:2007:53, paragraph 49 ; and of 8 July 2008, BPB v. European Commission, T‑53/03, EU:T:2008:254, paragraph 36.

[98Not all potential procedural benefits of lodging a complaint may be available to an anonymous complainant, however. As mentioned below (text accompanied by note Error : Reference source not found), it is not possible to participate anonymously in the oral hearing.

[99See text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[100See Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraph 132.

[101See Judgments of 17 November 1987, British American Tobacco and Reynolds Industries v. Commission, 142 and 156/84, EU:C:1987:490, paragraphs 19 and 20 ; of 11 July 2013, Diamanthandel A. Spira v. Commission, T-108/07 and T-354/08, EU:T:2013:367, paragraph 59 ; and of 16 December 2020, Fakro v. Commission, T-515/18, EU:T:2020:620, paragraph 41. It follows that, if the complainant withdraws its complaint in the course of proceedings started on the basis of that complaint, the European Commission can still continue the proceedings on its own motion ; for an example, see Final Report of the Hearing Officer in Case COMP/37.860 – Morgan Stanley Dean Witter/Visa International, [2009] OJ C 183/4 at 5.

[102See, to that effect, Judgments of 17 November 1987, British American Tobacco and Reynolds Industries v. Commission, 142 and 156/84, EU:C:1987:490, paragraphs 19 and 20 ; of 11 July 2013, Diamanthandel A. Spira v. Commission, T-108/07 and T-354/08, EU:T:2013:367, paragraph 59 ; of 26 September 2018, European Association of Euro-Pharmaceutical Companies (EAEPC) v. Commission, T-574/14, EU:T:2018:605, paragraph 93 ; and of 16 December 2020, Fakro v. Commission, T-515/18, EU:T:2020:620, paragraph 41. In these judgments the term “right to a fair hearing” is used as shorthand for the more far-reaching procedural rights of the companies under investigation. In the light of the case law on the procedural rights of companies under investigation, the term “rights of the defence” is arguably the best shorthand ; see the excellent discussion and overview in A. Scordamaglia-Toussis, An Overview of the Rights of the Defence in EU Antitrust Proceedings, in E. Rousseva (ed.), EU Antitrust Procedure (Oxford 2020), 337.

[103See text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[104See Article 6(1) of Regulation 773/2004 and text accompanied by notes Error : Reference source not found to Error : Reference source not found below. As indicated in that Article 6(1), in cases where the cartel settlement procedure applies, complainants are only entitled to written information about the nature and subject matter of the procedure.

[105See Article 6(2) of Regulation 773/2004 and text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[106See text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[107Text accompanied by notes Error : Reference source not found and following.

[108See Judgments of 18 September 1992, Automec v. Commission, T-24/90, EU:T:1992:97, paragraphs 75 and 76 ; of 17 May 2001, International Express Carriers Conference (IECC) v. Commission, C-449/98 P, EU:C:2001:275, paragraphs 35 to 37 ; and of 16 December 2020, Fakro v. Commission, T-515/18, EU:T:2020:620, paragraph 98. The Commission can however be required to give a decision if the subject-matter of a complaint falls within its exclusive competence, as in the case of the withdrawal in an individual case of the benefit of an exemption regulation ; see Automec v. Commission, as just above, paragraph 75, and Articles 29(1) and (2) of Regulation 1/2003 ; see further my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456078.

[109See Judgments of 14 December 2000, Masterfoods, C-344/98, EU:C:2000:689, paragraph 46 ; of 4 March 1999, Ufex and Others v. Commission, C-119/97 P, EU:C:1999:116, paragraphs 88 and 89 ; and of 17 May 2001, International Express Carriers Conference (IECC) v. Commission, C-449/98 P, EU:C:2001:275, paragraphs 35 to 37 ; see also Judgment of 20 April 1999, Limburgse Vinyl Maatschappij and Others v. Commission, C-238/99 P, etc., EU:C:2002:582, paragraphs 148 to 154 (discretion to take a new decision following annulment of a first decision on purely procedural grounds) ; see further my paper Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement (2011) 34 World Competition 353, also accessible at http://ssrn.com/author=456078.

[110Judgment of 14 February 2001, Système Européen Promotion (SEP) v. Commission, T-115/99, EU:T:2001:54, paragraph 43.

[111As already mentioned in note Error : Reference source not found² above, the Commission can however be required to give a decision if the subject-matter of a complaint falls within its exclusive competence, as in the case of the withdrawal in an individual case of the benefit of an exemption regulation ; see Judgment of 18 September 1992, Automec v. Commission, T-24/90, EU:T:1992:97, paragraph 75, and Articles 29(1) and (2) of Regulation 1/2003.

[112Judgments of 30 January 1974, BRT and SABAM, 127/73, EU:C:1974:6, paragraph 16 ; of 19 June 1990, Factortame and Others, C-213/89, EU:C:1990:257, paragraphs 19 to 21 ; and of 20 September 2001, Courage and Crehan, C-453/99, EU:C:2001:465, paragraphs 19 to 29. Article 1 of Regulation 1/2003 has given direct effect also to Article 101(3) TFEU. See further my paper Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement : Past, Present and Future (2017) 40 World Competition 3, also accessible at http://ssrn.com/author=456087.

[113See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[114Judgments of 4 March 1999, Ufex and Others v. Commission, C-119/97 P, EU:C:1999:116, paragraph 86 ; of 18 March 1997, Guérin Automibiles v. Commission, C-282/95 P, EU:C:1997:159, paragraphs 36 to 38 ; of 12 March 2020, LL-Carpenter v. Commission, T-531/18, EU:T:2020:91, paragraphs 78 to 80 ; and of 16 December 2020, Fakro v. Commission, T-515/18, EU:T:2020:620, paragraphs 80 to 124.

[115Notice on Complaints, paragraph 61, indicating further that, thus, “subject to the circumstances of the individual case and in particular the possible need to request complementary information from the complainant or third parties, the Commission will in principle inform the complainant within four months whether or not it intends to investigate the case further. The time-limit does not constitute a binding statutory term.”

[116See paragraphs 139 and 61 of the Notice on Best Practices.

[117Article 7(1) of Regulation 773/2004.

[118See Article 8(1) of Regulation 773/2004 ; Judgments of 17 November 1987, BAT and Reynolds v. Commission, 142 and 156/84, EU:C:1987:490, paragraph 23, and of 11 July 2013, Diamanthandel A. Spira v. Commission, T-108/07 and T-354/08, EU:T:2013:367, paragraphs 70 and 71 ; see also text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[119See Judgments of 11 July 2013, Diamanthandel A. Spira v. Commission, T-108/07 and T-354/08, EU:T:2013:367, paragraphs 64 and 65 ; of 11 January 2017, Topps Europe v. Commission, T-699/14, EU:T:2017:2, paragraph 30 ; of 26 September 2018, European Association of Euro-Pharmaceutical Companies (EAEPC) v. Commission, T-574/14, EU:T:2018:605, paragraph 93 ; and of 16 December 2020, Fakro v. Commission, T-515/18, EU:T:2020:620, paragraph 43 ; and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087.

[120See below, text accompanied by notes Error : Reference source not found and following.

[121See paragraph 71 of the Notice on Best Practices.

[122See, for instance, Judgment of 11 January 2017, Topps Europe v. Commission, T-699/14, EU:T:2017:2, paragraphs 30 to 40.

[123See text accompanied by notes Error : Reference source not found and Error : Reference source not found to Error : Reference source not found above.

[124See Final Report of the Hearing Officer in Case AT.39740 – Google Search (Shopping), [2018] OJ C 9/6, paragraph 6.

[125Article 3(7) and Article 7(2)(b) and (3) of Decision 2011/695/EU. See, for example, Final Report of the Hearing Officer in Case AT.39740 – Google Search (Shopping), [2018] OJ C 9/6, paragraph 6.

[126Article 17(2) of Regulation 773/2004. According to paragraph 139 of the Notice on Best Practices, the time limit will start to run from the date when access has been granted to the main documents on which the European Commission’s intention to reject the complaint, as set out in the letter pursuant to Article 7 of Regulation 773/2004, is based.

[127Article 9(2) of Decision 2011/695/EU ; see also paragraph 139 of the Notice on Best Practices.

[128Judgment of 24 September 1996, National Association of Licensed Opencast Operators (NALOO) v. Commission, T-57/91, EU:T:1996:125, paragraph 276.

[129Article 7(3) of Regulation 773/2004.

[130Article 7(2) of Regulation 773/2004.

[131Judgment of 17 May 2001, International Express Carriers Conference (IECC) v. Commission, C-450/98 P, EU:C:2001:276, paragraph 54. While the European Commission must provide reasons why acting (further) on the complaint it is rejecting would not fit within its enforcement priorities, it is not required to set out positively what its enforcement priorities are, given that these may in general be confidential ; see Judgment of 12 March 2020, LL-Carpenter v. Commission, T-531/18, EU:T:2020:91, paragraph 96.

[132Judgments of 15 December 2010, Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v. Commission, T-427/08, EU:T:2010:517, paragraph 65 ; and of 21 January 2015, easyJet Airline v. Commission, T-355/13, EU:T:2015:36 ; paragraph 19.

[133The judgments use the term “Community interest” or “European Union interest” as shorthand for (what informs) the priorities of EU antitrust enforcement. The use of this term is however not mandatory ; see Judgment of 17 May 2001, International Express Carriers Conference (IECC) v. Commission, C-450/98 P, EU:C:2001:276, paragraph 54, and Opinion of Advocate-General Ruiz-Jarabo Colomer of 11 January 2001, International Express Carriers Conference (IECC) v. Commission, C-449/98 P and C-450/98 P, EU:C:2001:7, paragraph 57.

[134See, for example, Judgment of 17 May 2001, International Express Carriers Conference (IECC) v. Commission, C-450/98 P, EU:C:2001:276.

[135For an overview of the different grounds for rejecting complaints that have been accepted by the EU Courts, see A. Dawes and E. Rousseva, Handling and Rejecting Complaints, in E. Rousseva (ed.), EU Antitrust Procedure (Oxford 2020), 305, at 320–331.

[136See also G.-K. de Bronett, Das formelle Verfahren der Komission zwecks Zurückweisung von Antitrust-Beschwerden im Spannungsverhältnis zwischen Politik und Recht (2015) Wirtschaft und Wettbewerb 26.

[137See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[138Compare with G.-K. de Bronett, Das formelle Verfahren der Komission zwecks Zurückweisung von Antitrust-Beschwerden im Spannungsverhältnis zwischen Politik und Recht (2015) Wirtschaft und Wettbewerb 26, pleading for the abolition of the complaint rejection procedure.

[139See Final Report of the Hearing Officer in Case AT.39740 – Google Search (Shopping), [2018] OJ C 9/6, paragraph 7 ; Interview Joaquín Almunia, Financial Times, 29 October 2014 ; and How Google ended up “on the wrong side of history,” Financial Times Weekend, 18 April/19 April 2015 ; and text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[140See Judgments of 17 May 2001, International Express Carriers Conference (IECC) v. Commission, C-450/98 P, EU:C:2001:276, paragraph 57 ; and of 11 July 2013, Diamanthandel A. Spira v. Commission, T-108/07 and T-354/08, EU:T:2013:367, paragraph 98.

[141See my paper Independence of Competition Authorities : The Example of the EU and Its Member States (2019) 2 World Competition 149, also accessible at http://ssrn.com/author=456087, text accompanied by footnotes 90 to 96.

[142These powers of investigation can also be used during sector inquiries pursuant to Article 17 of Regulation 1/2003 ; see Article 17(2) of Regulation 1/2003 and European Commission Press Release IP/08/49 of 16 January 2008, Antitrust : Commission launches sector inquiry into pharmaceuticals with unannounced inspections.

[143See Article 2(3) of Regulation 773/2004 and Judgment of 9 April 2019 in Qualcomm and Qualcomm Europe v. Commission, T-371/17, EU:T:2019:232, paragraphs 67 to 76, confirmed on appeal in Judgment of 28 January 2021 in Qualcomm and Qualcomm Europe v. Commission, C-466/19 P, EU:C:2021:76, paragraphs 72 and 73.

[144See paragraph 32 of the Notice on Best Practices and Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraph 284.

[145For a more detailed discussion of requests for information, see M. Kellerbauer and K. Strouvali, Requests for Information and Sector Inquiries, in E. Rousseva (ed.), EU Antitrust Procedure (Oxford 2020), 65.

[146Paragraph 32 of the Notice on Best Practices.

[147On the concept of an undertaking, see text accompanied by notes Error : Reference source not found to Error : Reference source not found above. The European Commission does not have the power to request information from natural or legal persons other than undertakings or associations of undertakings (and other than the governments and competition authorities of the EU Member States ; see OECD Global Forum for Competition, Requests for Information : Limits and Effectiveness – Contribution from the European Commission (document DAF/COMP/GF/WD(2018)74 of 24 November 2018), paragraph 5. This contrasts with the competition authorities of the EU Member States, for which this further power is prescribed by the last sentence of Article 8 of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be effective enforcers and to ensure the proper functioning of the internal market, [2019] OJ L 11/3.

[148See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[149See Article 23(1)(a) of Regulation 1/2003.

[150See Article 23(1)(b) of Regulation 1/2003.

[151See Articles 18(3) and 24(1)(d) of Regulation 1/2003.

[152See Article 18(2) and (3) of Regulation 1/2003 and, on the obligation to state specific reasons in decisions requesting information, Judgments of 10 March 2016, HeidelbergCement v. Commission, C-247/14 P, EU:C:2016:149, paragraph 19, and of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraph 109.

[153See Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraphs 109 and 131, and text accompanied by note Error : Reference source not found above.

[154See also similarly the second sentence of Article 8 of Directive 2019/1, as note Error : Reference source not found above. According to the case law of the EU Courts, by virtue of a general duty of care, any undertaking or association of undertakings is required to ensure the proper maintenance of records in its books or files of information enabling details of its activities to be retrieved, in order, in particular, to make the necessary evidence available in the event of legal or administrative proceedings ; Judgments of 16 June 2011 in Heineken Nederland and Heineken v. Commission, T-240/07, EU:T:2011:284, paragraph 301, and of 14 March 2014 in Schwenk Zement v. Commission, T-306/11, EU:T:2014:123, paragraph 83.

[155Article 18(1) of Regulation 1/2003.

[156See Judgment of 12 December 1991, SEP v. Commission, T‑39/90, EU:T:1991:71, paragraph 29, upheld on appeal by Judgment of 19 May 1994, SEP v. Commission, C‑36/92 P, EU:C:1994:205, paragraph 21, and Opinion of Advocate General Jacobs of 15 December 1993, SEP v. Commission, C‑36/92 P, EU:C:1993:928, paragraph 21 ; Judgment of 14 March 2014, Holcim (Deutschland) and Holcim v. Commission, T-293/11, EU:T:2014:127, paragraph 110 ; and Opinion of Advocate General Wahl of 15 October 2015, HeidelbergCement v. Commission, C-247/14 P,EU:C:2015:694, paragraph 85.

[157OECD Global Forum for Competition, Requests for Information : Limits and Effectiveness – Contribution from the European Commission (document DAF/COMP/GF/WD(2018)74 of 24 November 2018), paragraph 8.

[158There is no exception for business secrets, nor for personal data within the meaning of Article 8(1) of the Charter of Fundamental Rights of the European Union, Article 16(1) TFEU, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), [2016] OJ L 119/1, and Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, [2018] OJ L 295/39 ; see letter from the European Data Protection Supervisor of 22 October 2018 (WW/OL/sn/D (2018) 2422 C 2018-0632), and Order of the President of the General Court of 29 October 2020, Facebook Ireland v. Commission, T-451/20 R, EU:T:2020:515, paragraphs 54 to 66.

[159Judgment of 18 October 1989, Orkem v. Commission, 374/87, EU:C:1989:387, paragraphs 34 and 35, and Judgment of 28 January 2021 in Qualcomm and Qualcomm Europe v. Commission, C-466/19 P, EU:C:2021:76, paragraphs 142 and 143 ; see also recital 23 of Regulation 1/2003.

[160See Judgment of 29 June 2006 in Commission v. SGL Carbon, C-301/04 P, EU:C:2006:432, Opinion of Advocate General Geelhoed of 19 January 2006, Commission v. SGL Carbon, C-301/04 P, EU:C:2006:53, and Opinion of Advocate General Pikamäe of 27 October 2020, DB v. Consob, C-481/19, EU:C:2020:861, paragraphs 97 to 99 ; see also my papers Self-incrimination in EC Antitrust Enforcement : A Legal and Economic Analysis (2003) 26 World Competition 567, EU Antitrust Enforcement Powers and Procedural Rights and Guarantees : The Interplay between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights (2011) 34 World Competition 189 at 204–206, and Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network (2020) 43 World Competition 5 at 31–34, all three also accessible at http://ssrn.com/author=456087.

[161Judgment of 25 January 2007, Dalmine v. Commission, C-407/04 P, EU:C:2007:53, paragraphs 31 to 35.

[162Article 4(2)(b), read in conjunction with Article 3(7), of Decision 2011/695/EU, provides that, where the addressee of a simple request for information pursuant to Article 18(2) of Regulation 1/2003 refuses to reply to a question in such a request invoking the privilege against self-incrimination, as determined by the case law of the Court of Justice, it may refer the matter, in due time following the receipt of the request, and after having first raised the issue with the Directorate-General for Competition, to the Hearing Officer. In appropriate cases, and having regard to the need to avoid undue delay in proceedings, the Hearing Officer may make a reasoned recommendation as to whether the privilege against self-incrimination applies and inform the Director responsible of the conclusions drawn, to be taken into account in case of any decision taken subsequently pursuant to Article 18(3) of Regulation 1/2003. The addressee of the request shall receive a copy of the reasoned recommendation.

[163Article 4(2)(a), read in conjunction with Article 3(7), of Decision 2011/695/EU, provides that, where an undertaking or association of undertakings has withheld from the Commission a document, claiming that it is covered by legal professional privilege within the meaning of the case law of the Court of Justice, the undertaking or association of undertakings may, after having raised the matter with the Directorate-General for Competition, ask the Hearing Officer to examine the claim. The Hearing Officer may only review the matter if the undertaking or association of undertakings making the claim consents to the Hearing Officer viewing the information claimed to be covered by legal professional privilege as well as related documents that the Hearing Officer considers necessary for his review. Without revealing the potentially privileged content of the information, the Hearing Officer shall communicate to the Director responsible and the undertaking or association of undertakings concerned his preliminary view, and may take appropriate steps to promote a mutually acceptable resolution. Where no resolution is reached, the Hearing Officer may formulate a reasoned recommendation to the Competition Commissioner, without revealing the potentially privileged content of the document. The party making the claim shall receive a copy of this recommendation. If, after the intervention of the Hearing Officer, the undertaking maintains its claim, and the Commission still wants to read and use the document, then the Commission must do what it would also have to do if the intervention of the Hearing Officer had not been asked, namely take a decision ordering production of the document or opening the sealed envelope, allowing the undertaking to bring the matter immediately before the General Court through an application for annulment of that decision and an accompanying request for interim relief ; see Judgments of 18 May 1982, AM&S v. Commission, 155/79, EU:C:1982:157, paragraph 32, and of 17 September 2007, Akzo Nobel v. Commission, T-125/03, EU:T:2007:287, paragraphs 79 and 85.

[164Judgment of 18 May 1982, AM&S v. Commission, 155/79, EU:C:1982:157, paragraphs 18 and 23. See further my paper Legal Professional Privilege in EU Antitrust Enforcement : Law, Policy & Procedure (2019) 42 World Competition 21, also accessible at http://ssrn.com/author=456087.

[165Judgments of 18 May 1982, AM&S v. Commission, 155/79, EU:C:1982:157, and of 14 September 2010, Akzo Nobel v. Commission, C-550/07 P, EU:C:2010:512.

[166Judgment of 18 May 1982, AM&S v. Commission, 155/79, EU:C:1982:157, paragraph 23.

[167Order of 4 April 1990, Hilti v. Commission, T-30/89, EU:T:1990:27.

[168Judgment of 17 September 2007, Akzo Nobel v. Commission, T-125/03, EU:T:2007:287, paragraph 123.

[169With regard to requests by decision, the EU General Court has held that, because of this threat of a fine, the examination of the appropriateness of the time limit fixed in a decision requesting information is particularly important. That time limit must enable the addressee of the decision not only to provide its reply in practical terms, but also to satisfy itself that the information is complete, correct and not misleading ; Judgment of 14 March 2014 in Schwenk Zement v. Commission, T-306/11, EU:T:2014:123, paragraphs 72 and 73. In the absence of a specific need of the inquiry which warranted the fixing of a particularly short time limit, the imposition of a two-week time limit for a German cement manufacturer to provide information on all contacts, including informal ones, between two of its employees and other manufacturers of cement and related products or their representatives in Germany, over periods of three and seven years, was held to be disproportionate ; Judgment of 14 March 2014 in Schwenk Zement v. Commission, T-306/11, EU:T:2014:123, paragraphs 80 to 92. On the other hand, a time limit of 12 weeks for the provision of a particularly large amount of information, to be provided in a particularly demanding format, was not disproportionate, given the means available to the undertaking concerned because of its economic size ; Judgment of 14 March 2014 in Cemex v. Commission, T-292/11, EU:T:2014:125, paragraphs 132 to 135.

[170The EU General Court has held that, if the addressee of a decision requesting information fails to request an extension of the time limit, the time limit is deemed to be sufficient ; Judgments of 14 May 1998 in Finnboard v. Commission, T-338/94, EU:T:1998:99, paragraph 54 and of 14 March 2014 in Cementos Portland Valderrivas v. Commission, T-296/11, EU:T:2014:121, paragraph 95. The possibility to request first from the Directorate-General for Competition and subsequently from the Hearing Officer an extension of the time limit fixed in a European Commission decision requesting information pursuant to Article 18(3) of Regulation 1/2003 does not alter the time limit for bringing an application for annulment against that Commission decision before the EU General Court. As Article 18(3) of Regulation 1/2003 requires to be indicated in any decision based on that provision, the addressee of a Commission decision requesting information pursuant Article 18(3) of Regulation 1/2003 can have that decision reviewed by the General Court ; see also Judgment in Schwenk Zement v. Commission, T-306/11, EU:T:2014:123, paragraph 75. According to Article 263 TFEU and Articles 58 and 60 of the Rules of procedure of the General Court ([2015] EU L 105/1), the application for annulment of the Commission decision must be brought within two months and ten days of the notification of the decision to the addressee.

[171See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[172The absence of a reply within the time limit may of course prompt the Commission to request the information by decision pursuant to Article 18(3) of Regulation 1/2003, in which case Article 4(2)(c) of Decision 2011/695/EU becomes applicable.

[173For a more detailed discussion of interviews, see A. ter Heegde and E. Rousseva, Power to Take Statements, in E. Rousseva (ed.), EU Antitrust Procedure (Oxford 2020), 130.

[174This contrasts with the competition authorities of the EU Member States, for which this further power is prescribed by the Article 9 of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be effective enforcers and to ensure the proper functioning of the internal market, [2019] OJ L 11/3.

[175See Article 19(2) of Regulation 1/2003 and Article 3(2) of Regulation 773/2004.

[176Judgment of 6 September 2017, Intel v. Commission, C-413/14 P, EU:C:2017:632, paragraph 90.

[177Article 3(3) of Regulation 773/2004.

[178For a more detailed discussion of inspections, see J. Nuijten, Inspections, in E. Rousseva (ed.), EU Antitrust Procedure (Oxford 2020), 93, and N. Jalabert-Doury, Competition Inspections under EU Law – A Practitioner’s Guide (Concurrences Books 2020) ; see also the Inspection Explanatory Note and the further information available on the website of the European : https://ec.europa.eu/competition-policy/antitrust/procedures/inspections_en.

[179While inspections pursuant to Article 20 of Regulation 1/2003 always start at the premises of the undertaking or association of undertakings, they may continue at the European Commission’s premises ; see Inspection Explanatory Note available on the website of the European Commission’s Directorate-General for Competition https://ec.europa.eu/competition-policy/antitrust/procedures/inspections_en and Judgment of 16 July 2020, Nexans France and Nexans v. Commission, C-606/18 P, EU:C:2020:571, paragraphs 56 to 90. Article 21 of Regulation 1/2003 provides for the further possibility, under strict conditions, of inspecting any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned.

[180Judgment of 5 October 2020, Intermarché Casino Achats v. Commission, T-254/17, EU:T:2020:459, paragraph 284.

[181See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[182J. Nuijten, Inspections, in E. Rousseva (ed.), EU Antitrust Procedure (Oxford 2020), 93 at 97.

[183Article 20(4) of Regulation 1/2003. Undertakings and associations of undertakings are not obliged to submit to inspections not ordered by decision, but if they agree to such an inspection pursuant to Article 20(3) of Regulation 1/2003, they can be fined up to the 1% of their turnover in the preceding business year if they intentionally or negligently produce the required books or other records relating to the business in incomplete form or if they give an incorrect or misleading answer to a question ; see Article 23(c) and (d) of Regulation 1/2003.

[184Judgment of 18 October 1989, Orkem v. Commission, 374/87, EU:C:1989:387, paragraph 27.

[185See Article 20(6) to (8) of Regulation 1/2003.

[186See Article 23(c) to (e) of Regulation 1/2003, and Commission Decision of 30 January 2008, Case COMP/B-1/39.326 – E.ON Energie AG, [2008] OJ C 240/6, confirmed by Judgments of 15 December 2010, E.ON Energie v. Commission, T-141/08, EU:T:2010:516, and of 22 November 2012, E.ON Energie v. Commission C-89/11 P, EU:C:2012:738 ; and Commission Decision of 28 March 2012, Case COMP/39.793 – EPH and others, [2012] OJ C 316/8, confirmed by Judgment of 26 November 2014, Energetický a prüyslový v. Commission, T-272/12, EU:T:2014:995. Article 24(1) of Regulation 1/2003 further provides for the imposition of periodic penalty payments to compel submission to an inspection ordered by decision.

[187See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[188See text accompanied by notes Error : Reference source not found to Error : Reference source not found above and, for a detailed analysis, my paper Legal Professional Privilege in EU Antitrust Enforcement : Law, Policy & Procedure (2019) 42 World Competition 21, also accessible at http://ssrn.com/author=456087. Where during an inspection an undertaking claims that a document is protected by legal professional privilege, it must substantiate its claim and, unless this would not be possible without revealing the protected information, allow the Commission officials to have a cursory look at the general layout, heading, title or other superficial features of the document so as to enable them to confirm the accuracy of the claim. In case of disagreement as to whether the document is privileged, the Commission officials may place a copy of the document in a sealed envelope and take it with them ; Judgment of 17 September 2007, Akzo Nobel v. Commission, T-125/03, EU:T:2007:287, paragraphs 80 to 83. The undertaking may then make a request to the Hearing Officer pursuant to Article 4(2)(a) of Decision 2011/695/EU ; see note Error : Reference source not found above. If no such request is made or the request does not lead to an agreed solution, and the European Commission still wants to read and use the document, then the Commission must take a decision ordering production of the document or opening the sealed envelope, allowing the undertaking to bring the matter immediately before the General Court through an application for annulment of that decision and an accompanying request for interim relief ; Judgments of 18 May 1982, AM&S v. Commission, 155/79, EU:C:1982:157, paragraph 32, and of 17 September 2007, Akzo Nobel v. Commission, T-125/03, EU:T:2007:287, paragraphs 79 and 85.

[189See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[190See (text accompanied by) note Error : Reference source not found above.

[191Paragraph 91 of the Notice on Best Practices.

[192See text accompanied by notes Error : Reference source not found and Error : Reference source not found above.

[193Article 27(4) of Regulation 1/2003 and paragraphs 129 to 133 of the Notice on Best Practices.

[194Paragraph 129 of the Notice on Best Practices.

[195Article 27(4) of Regulation 1/2003. While the term “interested third parties” is used in this context, any third parties can submit their observations, not only those who fulfil the requirements to be heard as “interested third persons” within the meaning of Article 27(3)of Regulation 1/2003, Article 13 of Regulation 773/2004 and Article 5 of Decision 2011/695 ; see below, text accompanied by notes Error : Reference source not found and following.

[196See (text accompanied by) notes Error : Reference source not found and Error : Reference source not found above.

[197See Opinion of Advocate General Kokott of 17 September 2009, Commission v. Alrosa, C-441/07 P, EU:C:2009:555, paragraph 182 ; and Judgment of 11 January 2017, Topps v. Commission, T‑699/14, EU:T:2017:2, paragraph 30 ; and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 33 to 36.

[198Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, [2001] OJ L 145/43.

[199These detailed rules are set out in an annexe to the Commission’s rules of procedure that was added by Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure, [2001] OJ L345/94.

[200Articles 2(1) to (3) of the Transparency Regulation, read in conjunction with Article 1 of the annexe to the Commission’s rules of procedure mentioned in note Error : Reference source not found above.

[201Order of 7 March 2013, Henkel v. Commission, T‑64/12, EU:T:2013:116, paragraph 47.

[202Judgments of 21 May 2014, Catinis v. Commission, T‑447/11, EU:T:2014:267, paragraph 62 ; and of 26 April 2016, Strack v. Commission, T‑221/08, EU:T:2016:242, paragraph 128.

[203See text accompanied by notes Error : Reference source not found and Error : Reference source not found and Error : Reference source not found to Error : Reference source not found above and by notes Error : Reference source not found to Error : Reference source not found and Error : Reference source not found to Error : Reference source not found below.

[204Judgment of 7 July 2015, Axa Versicherung v. Commission, T‑677/13, EU:T:2015:473, paragraphs 39, 40, 42 and 94. This presumption applies in relation to proceedings for the application of Article 101 TFEU (Judgment of 27 February 2014,Commission v. EnBW, C‑365/12 P, EU:C:2014:112, paragraphs 92, 93, 101 and 134) and Article 102 TFEU (Judgment of 28 March 2017, Deutsche Telekom v. Commission, T‑210/15, EU:T:2017:224, paragraphs 30 to 32, 43, 44 and 46). The presumption also applies if access to only one document is requested (Judgment of 5 February 2018, Edeka-Handelsgesellschaft Hessenring v. Commission, T-611/15, EU:T:2018:63, paragraphs 68 to 74).

[205Judgments of 27 February 2014, Commission v. EnBW, C‑365/12 P, EU:C:2014:112, paragraphs 100 and 117 ; of 7 July 2015, Axa Versicherung v. Commission, T‑677/13, EU:T:2015:473, paragraph 59 ; and of 28 March 2017, Deutsche Telekom v. Commission, T‑210/15, EU:T:2017:224, paragraph 62.

[206See Judgment of 28 March 2017, Deutsche Telekom v. Commission, T‑210/15, EU:T:2017:224, paragraphs 64 to 72.

[207See Commission’s rules of procedure mentioned in note Error : Reference source not found above.

[208See text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[209As note Error : Reference source not found above.

[210See (text accompanied by) note Error : Reference source not found above and text accompanied by notes Error : Reference source not found to Error : Reference source not found below.

[211See also S. Durande and A. Montesa Lloreda, Les droits des tiers dans les procédures concurrences devant la Commission européenne, Concurrences No. 4-2005, pp. 34-44, paragraph 42. Under the EU Merger Regulation (Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings, [2004] OJ L 24/1), which provides for a very similar right to be heard of third parties that show a sufficient interest, requests to be heard as interested third persons by the International Panel of Experts on Sustainable Food Systems (IPES-Food) in Case M.8084 – Bayer/Monsanto and by Privacy International in Case M.9660 – Google/Fitbit have been granted ; see Final Report of the Hearing Officer in Case M.8084 – Bayer/Monsanto, [2018] OJ C 459/19, paragraph 5, and Final Report of the Hearing Officer in Case M.9660 – Google/Fitbit, [2021] OJ C 194/6.

[212See, by analogy, Order of the President of the Court of 5 February 2009, Akzo Nobel Chemicals and Akros Chemicals v. Commission, C-550/07 P, EU:C:2009:60, paragraphs 8 and 9 ; Order of the President of the Court of 3 April 2014, Commission v. Jorgen Andersen and Others, C-303/13 P, EU:C:2014:226, paragraph 7 ; and Order of the Vice-President of the Court of 1 March 2016, Cousins Material House v. Commission, C-635/15 P, EU:C:2016:166, paragraph 30.

[213Final Report of the Hearing Officer in Case AT.40208 – International Skating Union’s Eligibility Rules, [2018] OJ C 148/7, paragraph 6 and footnote 7.

[214Final consumers can also individually request to be heard as interested third persons ; see Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraph 114.

[215See, by analogy, (text accompanied by) note Error : Reference source not found above concerning business associations as complainants.

[216See, by analogy, Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraph 163, concerning complainants. As mentioned below (text accompanied by note Error : Reference source not found), the contribution which the interested third person can make to the clarification of the relevant facts of the case is however one of the factors to be taken into account by the Hearing Officer in deciding whether to admit an interested third person to the oral hearing.

[217Article 5(1) of Decision 2011/695.

[218See Article 11(6) of Regulation 1/2003, Article 2 of Regulation 773/2004 and paragraphs 17 to 23 of the Notice on Best Practices ; Judgment in Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraphs 148 to 151 ; and, by analogy, W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 178 to 181.

[219Article 5(3) of Decision 2011/695.

[220Article 5(4) of Decision 2011/695 ; see Article 11(6) of Regulation 1/2003, Article 2 of Regulation 773/2004 and paragraphs 17 to 23 of the Notice on Best Practices. The companies under investigation have thus no right to be heard on requests by third parties to be heard as interested third person. The companies under investigation cannot either request the Hearing Officer to reverse or reconsider a decision granting the request to be heard of an interested third person.

[221Judgments in BPB Industries and British Gypsum v. Commission, C-310/93 P, EU:C:1995:101, paragraphs 26 and 27, and in General Electric v. Commission, T-210/01, EU:T:2005:456, paragraph 650.

[222See, similarly, text accompanied by notes Error : Reference source not found to Error : Reference source not found above concerning anonymous complainants. Not all potential procedural benefits of being heard as an interested third person may be available to an anonymous interested third person, however. As mentioned below (text accompanied by notes Error : Reference source not found and Error : Reference source not found), it is not possible to participate anonymously in the oral hearing.

[223See, for example, BEUC to be involved in EU investigation on Aspen Pharma, BEUC NEWS, 27 November 2017, https://www.beuc.eu/press-media/news-events/beuc-be-involved-eu-investigation-aspen-pharma.

[224Article 13(1) of Regulation 773/2004.

[225Judgment in Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraph 107. For an example of a case in which the interested third persons received a non-confidential version of the statement of objections, see Final Report of the Hearing Officer in Case COMP/C-3/37.792 – Microsoft, [2007] OJ C 26/5.

[226Article 7(2)(b) and (3) juncto Article 3(7) of Decision 2011/695.

[227Article 9(2) of Decision 2011/695 and paragraph 105 of the Notice on Best Practices.

[228Article 13(2) of Regulation 773/2004 and Article 6(2) of Decision 2011/695 ; see further my paper The Oral Hearing in Competition Proceedings Before the European Commission (2012) 35 World Competition 397, updated version accessible at http://ssrn.com/author=456087.

[229See Judgments of 17 January 1984, VBVB and VBBB v. Commission, 43/82 and 63/82, EU:C:1984:9, paragraph 18, and of 28 February 2002, Compagnie générale maritime and Others v. Commission, T-86/95, EU:T:2002:50, paragraph 468.

[230See recital 13 of Decision 2011/695.

[231See Final Report of the Hearing Officer in Case AT.40608 – Broadcom – Interim Measures Procedure, [2021] OJ C 81/13, paragraphs 59 and 60, and Final Report of the Hearing Officer in Case AT.40049 – Mastercard II, [2019] OJ C 300/3, paragraph 21.

[232See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[233While parties may be assisted at the oral hearing by their lawyers or other qualified persons admitted by the Hearing Officer, they must appear either in person or be represented by a duly authorised agent from among their permanent staff or by legal representatives or representatives authorised by their constitution ; see Article 14(4) and (5) of Regulation 773/200, Judgment of 14 July 1972, Badische Anilin- & Soda-Fabrik v. Commission, 49/69, EU:C:1972:71, paragraph 11, and my paper The Oral Hearing in Competition Proceedings Before the European Commission (2012) 35 World Competition 397, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 78 and 79.

[234See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[235See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[236See Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraphs 90 and 91, 148 to 150, and 160.

[237For an example of this, see Final Report of the Hearing Officer in Case COMP/F/38.638 – BR/ESBR, [2008] OJ C 7/8.

[238See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[239See Article 6(1) of Regulation 773/2004, and recital 5 of Commission Regulation (EC) No. 622/2008 of 30 June 2008 [2008] OJ L 171/3. In cases handled under the cartel settlement procedure, complainants are, in the same way as interested third persons, only entitled to written information about the nature and subject matter of the procedure.

[240See text accompanied by note Error : Reference source not found above.

[241See Article 27(4) of Regulation 1/2003.

[242See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[243Article 6(2) of Regulation 773/2004 and Article 6(2) of Decision 2011/695.

[244See also my paper The Oral Hearing in Competition Proceedings Before the European Commission (2012) 35 World Competition 397, updated version accessible at http://ssrn.com/author=456087.

[245See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[246Council Regulation No. 1 determining the use of languages by the European Economic Community, [1958] OJ 17/385, last amended by Council Regulation (EU) No. 517/2013, [2013] OJ L 158/1.

[247See also Article 55(1) of the Treaty on European Union (EU), and S. Van der Jeught, EU Language Law (Europa Law Publishing 2015).

[248See also Article 20(2)(d) TFEU and Article 2 of Regulation 1, as note Error : Reference source not found above.

[249See also Article 5(3) of Regulation 773/2004, which provides that complaints must be submitted in one of the official languages of the European Union.

[250See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[251According to paragraph 28 of the Notice on Best Practices, for simple requests for information (as opposed to requests by decision ; see text accompanied by notes Error : Reference source not found to Error : Reference source not found above), it is standard practice to send the cover letter in the language of the addressee’s location or in English (including a reference to Article 3 of Regulation 1) and to attach the questionnaire in English. The addressee is also clearly informed—in the language of the addressee’s location—of its right to obtain a translation of the cover letter and/or questionnaire into the language of the addressee’s location, as well as the right to reply in that language. This practice allows for more expeditious treatment of information requests, while preserving the rights of addressees.

[252See paragraph 27 of the Notice on Best Practices.

[253See Judgments of 9 June 2016, Compañia Española de Petróleos (CEPSA) v. Commission, C-608/13 P, EU:C:2016:414, paragraphs 36 to 39 ; of 15 July 1970, Chemiefarma v. Commission, 41/69, EU:C:1970:71, paragraphs 49 to 53 ; of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v. Commission, C-591/18 P, EU:C:2019:1026, paragraphs 24 to 31 ; of 15 March 2000, Cimenteries CBR and Others v. Commission, T-25/95, EU:T:2000:77, paragraphs 643 to 645 ; and of 12 March 2020, LL-Carpenter v. Commission, T-531/18, EU:T:2020:91, paragraphs 113 to 115.

[254See Article 339 TFEU, Articles 28 and 27(4) of Regulation 1/2003 and Articles 16(1) and 15(2) of Regulation 773/2004. On the notions of “confidential information” and “business secrets” (the latter being a (not really distinctive) subcategory of the former), see W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 87 to 115.

[255See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[256See Judgments of 7 November 1985, Adams v. European Commission, 145/83, EU:C:1985:448, paragraph 34 ; of 8 July 2004, Mannesmannröhren-Werke v. Commission, T‑44/00, EU:T:2004:218, paragraph 84, confirmed on appeal in Judgment of 25 January 2007, Salzgitter Mannesmann v. European Commission, C‑411/04 P, EU:C:2007:54, paragraph 45 ; of 8 July 2004, Dalmine v. European Commission, T‑50/00, EU:T:2004:220, paragraph 72, confirmed on appeal in Judgment of 25 January 2007, Dalmine v. European Commission, C‑407/04 P, EU:C:2007:53, paragraph 49 ; and of 8 July 2008, BPB v. European Commission, T‑53/03, EU:T:2008:254, paragraph 36.

[257See, to that effect, Judgment of 7 November 1985, Adams v. European Commission, 145/83, EU:C:1985:448, paragraphs 53 to 55.

[258See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[259See Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No. 139/2004, [2005] OJ C325/7, amended by Communication from the Commission – Amendments to the Commission Notice on rules for access to the Commission file, [2015] OJ C256/3, paragraph 19 ; Judgments of 8 July 2004, Mannesmannröhren-Werke v. Commission, T‑44/00, EU:T:2004:218, paragraph 84, confirmed on appeal in Judgment of 25 January 2007, Salzgitter Mannesmann v. European Commission, C‑411/04 P, EU:C:2007:54, paragraph 45 ; of 8 July 2004, Dalmine v. European Commission, T‑50/00, EU:T:2004:220, paragraph 72, confirmed on appeal in Judgment of 25 January 2007, Dalmine v. European Commission, C‑407/04 P, EU:C:2007:53, paragraph 49 ; and of 8 July 2008, BPB v. European Commission, T‑53/03, EU:T:2008:254, paragraph 36 ; and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 98 to 101.

[260As note Error : Reference source not found above.

[261In addition to this general confidentiality test, confidentiality may also result from specific EU law rules that afford given information specific protection or otherwise preclude, in particular circumstances, the disclosure of that information ; see Judgment of 14 March 2017, Evonik Degussa v. Commission, C‑162/15 P, EU:C:2017:205, paragraphs 51, 53 and 55 ; W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 103 to 108 ; and Publication of Antitrust Decisions of the European Commission, Concurrences No. 4-2020, art. No. 97/102, pp. 93–108, also accessible at http://ssrn.com/author=456087, text accompanied by footnotes 46, 47 and 81 o 90.

[262See Judgments of 30 May 2006 in Bank Austria Creditanstalt v. Commission, T‑198/03, EU:T:2006:136, paragraph 71 ; and of 14 March 2017 in Evonik Degussa v. Commission, C‑162/15 P, EU:C:2017:205, paragraphs 103 and 107 ; W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 85 to 102 ; and Publication of Antitrust Decisions of the European Commission, Concurrences No. 4-2020, art. No. 97/102, pp. 93–108, also accessible at http://ssrn.com/author=456087, text accompanied by footnotes 43 to 45 and 50 to 80.

[263See text accompanied by notes Error : Reference source not found and Error : Reference source not found above.

[264See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[265See (text accompanied by) notes Error : Reference source not found and Error : Reference source not found above.

[266See Article 16(2) of Regulation 773/2004.

[267Article 16(4) of Regulation 773/2004.

[268See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[269Article 16(3) of Regulation 773/2004.

[270Article 16(4) of Regulation 773/2004.

[271See text accompanied by notes Error : Reference source not found to Error : Reference source not found and Error : Reference source not found to Error : Reference source not found above.

[272See text accompanied by notes Error : Reference source not found and Error : Reference source not found above.

[273See text accompanied by notes Error : Reference source not found to Error : Reference source not found and Error : Reference source not found and Error : Reference source not found above.

[274See text accompanied by notes Error : Reference source not found and Error : Reference source not found above, and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087. On disclosure of information through the publication of the European Commission’s final decisions, see my paper Publication of Antitrust Decisions of the European Commission, Concurrences No. 4-2020, art. No. 97/102, pp. 93–108, also accessible at http://ssrn.com/author=456087.

[275See the last sentence of Article 27(2) of Regulation 1/2003 and Article 15(3) of Regulation 773/2004 ; Judgments of 29 June 1995 in Solvay v. Commission, T‑30/91, EU:T:1995:115, paragraph 88 ; of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v. Commission, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, EU:T:1999:80, paragraph 1016 ; of 14 February 2008 in Varec, C‑450/06, EU:C:2008:91, paragraph 52 ; and of 13 September 2018 in UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraphs 68 and 69 ; and W. Wils and H. Abbott, Access to the File in Competition Proceedings Before the European Commission (2019) 42 World Competition 255, updated version accessible at http://ssrn.com/author=456087, text accompanied by footnotes 117 to 126.

[276See further my paper The Role of the Hearing Officer in Competition Proceedings before the European Commission (2012) 35 World Competition 431, updated version accessible at http://ssrn.com/author=456078.

[277Such a limitation of the use of the information would be in addition to the generally applicable limitations laid down in Article 16a of Regulation 773/2004.

[278See paragraphs 97 and 98 of the Notice on Best Practices, and DG Competition Best Practices on the disclosure of information in data rooms in proceedings under Articles 101 and 102 TFEU and under the EU Merger Regulation (2 June 2015), accessible at http://ec.europa.eu/competition/antitrust/legislation/legislation.html.

[279See Judgment of 24 June 1986 in AKZO v. Commission, 53/85, EU:C:1986:256, paragraph 29 ; see also Order of 10 September 2013 in Commission v. Pilkington Group, C-278/13 P(R), EU:C:2013:558, paragraphs 56 to 58, and Order of 2 April 2019 in Lantmännen v. Commission, T-79/19 R, EU:T:2019:212.

[280See Article 8(1) and recital 8 of Regulation 773/2004, and Judgments of 17 November 1987, British American Tobacco and Reynolds Industries v. Commission, 142 and 156/84, EU:C:1987:490, paragraph 21, and of 24 June 1986 in AKZO v. Commission, 53/85, EU:C:1986:256, paragraph 29. While these provisions and this judgment concern in particular complainants, the same applies a fortiori to other third persons, given that complainants are the category of third persons with the most extensive procedural rights ; see Judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v. Commission, T-213/01 and T-214/01, EU:T:2006:151, paragraph 106.

[281See text accompanied by notes Error : Reference source not found and Error : Reference source not found above.

[282See (text accompanied by) notes Error : Reference source not found and Error : Reference source not found above.

[283See text accompanied by notes Error : Reference source not found to Error : Reference source not found above.

[284A different position was taken by the Hearing Officer in one (apparently isolated) case ; see Final Report of the Hearing Officer in Case COMP/C-3/37.990 – Intel, [2009] OJ C 227/7, at 9.

[285Judgment of 24 June 1986 in AKZO v. Commission, 53/85, EU:C:1986:256, paragraph 28 ; see also text accompanied by notes Error : Reference source not found and Error : Reference source not found above, and my paper Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network (2020) 43 World Competition 5, also accessible at http://ssrn.com/author=456087.

[286See also my paper The Oral Hearing in Competition Proceedings Before the European Commission (2012) 35 World Competition 397, updated version accessible at http://ssrn.com/author=456087, text accompanied by notes 139 to 141.

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Wouter Wils, Procedural rights and obligations of third parties in antitrust investigations and proceedings by the European Commission, May 2022, Concurrences N° 2-2022, Art. N° 106139, www.concurrences.com

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