COMPETITION LAW • EUROPEAN LAW • PROCEDURE
When the Commission wishes to take a decision applying Articles 101 TFEU (1) or (3) or 102 TFEU, it is obliged to first consult the Advisory Committee on Restrictive Practices and Dominant Positions, which is composed of representatives of the competition authorities of the Member States (Article 14 of Regulation No 1/2003, Commission Notice on cooperation within the Network of Competition Authorities, paras. 58 to 68). This obligation applies both to decisions finding an infringement or granting an exemption and to decisions imposing a fine or periodic penalty payment. On the other hand, purely procedural decisions, relating to requests for information or inspections, do not require prior consultation, unless the Commission intends to impose a financial penalty. In addition, the Commission may place on the Committee’s agenda cases which are dealt with by a Member State competition authority under Article 101 or 102 TFEU or which have been referred to it under Article 11(6). It may act on its own initiative or at the request of a Member State’s competition authority. The opinion issued concerns only the legal issues raised and not the facts of the case.
The consultation takes place after the preliminary investigation and the written and oral debate (Regulation No 773/2004, Art. 11, para. 1). On this occasion, the Commission submits the preliminary draft decision to all the officials representing the Member States who make up the Committee for their opinion. The undertakings are not aware of the arguments presented to the Committee.
The Committee issues an opinion, a record of which is attached to the preliminary draft decision. This opinion is not made public. Undertakings cannot obtain access to it, nor can they address the Committee directly. However, the Committee may request publication, subject to the preservation of business secrecy. The Commission is not bound by this opinion. It may nevertheless influence its position.
