HAVER & MAILÄNDER 1 Procedure in the light of the modernisation package -Regulation 17/62Regulation 1/2003 -Notification and exemptionautomatic derogation -Monopoly of the Commissiondirect applicability of to apply Art. 81(3) ECArt. 81(3) EC by the Commission, the national competition authorities and national courts

HAVER & MAILÄNDER 2 Procedure in the light of the modernisation package Relationship of European and National Laws 1.Art. 3 para.1: Parallel application of European and national laws 2.Art. 3 para.2 first sentence: agreements: priority of European law What is allowed by European law may not be prohibited by national law 3.Art. 3 para.2 second sentence: unilateral conduct: national laws may be stricter than Art. 81 EC 4.Art. 3 para. 3: priority for national provisions that predominantly pursue an objective different from that pursued by Art. 81 and 82 EC

HAVER & MAILÄNDER 3 Procedure in the light of the modernisation package The effect on inter-State trade as the borderline between the application of Community and national law when applying Art. 81 EC Does an agreement infringe Art. 81(1) EC? Are the conditions of Art. 81(3) EC fulfilled? Is there any effect on inter-State trade? Is there any effect on inter-State trade? ProhibitedPermitted National law decides on the case. Permitted National Law decides on the case. YES NO YES NO

HAVER & MAILÄNDER 4 Procedure in the light of the modernisation package When is there (no) effect in trade between Member States? 1.Positive: “Where it is foreseeable with a sufficient degree of probability on the basis of a set of factors of law or fact that the agreement or practise found to exist may have an influence, direct or indirect, actual or potentual, on the pattern of trade between Member States“ (see CFI, judgment of 15 March 2000, Cimenteries CBR and Others v. Commission, [2000] ECR 491, para. 3930) 2.Negative: The effect has to be appreciable There is no appreciability if a) – in the case of horizontal agreements – the combined market share of the parties of the agreement does not exceed 5% on any of the relevant markets covered by the agreement and the combined turnover of the parties does not exceed € 40 Mio! b) – in the case of vertical agreements – the combined market share of the parties of the agreement does not exceed 5% on any of the relevant markets covered by the agreement and the supplier‘s Community-wide turnover does not exceed € 40 Mio.!

HAVER & MAILÄNDER 5 Procedure in the light of the modernisation package Which competence does the Commission enjoy under the new Regulation 1/2003? a)Block Exemption Regulations (strictly spoken no exemption, but only declaratory effect) b)Negative decisions to terminate an infringement and, if applicable, impose a fine (see Art. 7 of Regulation 1/2003); as for fines: see also Guidelines on the method of setting fines (OJ 1998 C9/3) c)Interim Measures d)Commitment decisions (see Art. 9 of Regulation 1/2003) e)Positive decisions (see Art. 10 of Regulation 1/2003) f)Informal guidance letters (see Communication of 27 April 2004, OJ 2004 C101/78)

HAVER & MAILÄNDER 6 Procedure in the light of the modernisation package Undertakings‘ liability for Compliance of their Agreements with Art. 81 EC 1.No possibility for exemption decisions, letter of comfort etc. 2.Self-Assessment 3.Privilege in case of non-compliance? - Not in civil procedure cases - Potentially in cases of impositions of fines

HAVER & MAILÄNDER 7 Procedure in the light of the modernisation package Cooperation of Commission and national competition authorities in the ECN (European Competition Network) 8. An authority can be considered to be well placed to deal with a case if the following three cumulative conditions are met: 1. the agreement or practice has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory; 2. the authority is able to effectively bring to an end the entire infringement, i.e. it can adopt a cease-and- desist order the effect of which will be sufficient to bring an end to the infringement and it can, where appropriate, sanction the infringement adequately; 3. it can gather, possibly with the assistance of other authorities, the evidence required to prove the infringement. (Commission Notice on cooperation within the Network of Competition Authorities, OJ 2004 C101/43, para. 8)

HAVER & MAILÄNDER 8 Procedure in the light of the modernisation package The Commission will, once one or more NRA(s) are already dealing with a case, only initiate proceedings if (a)network members envisage conflicting decisions in the same case. (b)network members envisage a decision which is obviously in conflict with consolidated case law; the standards defined in the judgements of the Community courts and in previous decisions and regulations of the Commission should serve as a yardstick; concerning the assessment of the facts (e.g. market definition), only a significant divergence will trigger an intervention of the Commission; (c)network member(s) is (are) unduly drawing out proceedings in the case; (d)there is a need to adopt a Commission decision to develop Community competition policy in particular when a similar competition issue arises in several Member States or to ensure effective enforcement; (e)the NCA(s) concerned do not object. (Commission Notice on cooperation within the Network of Competition Authorities, OJ 2004 C 101/43, para. 54)

HAVER & MAILÄNDER 9 Procedure in the light of the modernisation package Cooperation Between the Commission and National Courts 1.Requests for information by national courts 2.Observations by the national authorities and the Commission 3.Uniform application of European law (Art. 16): - avoid conflicts with Commission decisions already adopted or contemplated

HAVER & MAILÄNDER 10 Procedure in the light of the modernisation package Questions relating to the applications of Art. 81(3) EC by the national courts 1.Is Art. 83(3) EC capable of being applied by the national courts? 2.Which discretion do national courts have in applying Art. 81(3) EC? - Court as appeals body against decisions of NRAs or - Court as civil law body 3.How to dissolve a non liquet situation?  the development in direction of a discovery procedure?

HAVER & MAILÄNDER 11 Procedure in the light of the modernisation package Commission‘s Powers of Investigation -Investigations in sectors -Requests for Information: can now be answered by lawyers -Power to take statements from any person -Powers of inspection -Inspection of other premises: including private homes