COMPETITION • EUROPEAN LAW • PROCEDURE
As the administrative authority responsible for implementing and guiding European competition policy, the Commission is responsible for ensuring that the competition rules are applied thus contributing to the establishment of a system of undistorted competition. It has extensive powers and combines the functions of investigation and decision making.
The Commission actually has three functions: investigative, decision-making and the imposing of sanctions. To bring an Article 101 or 102 infringement to an end, it may hand down a decision that may or may not include the imposition of a fine, after having gathered the necessary evidence establishing the existence of a legitimate interest for such action. It may order interim measures and also has the power to order corrective behavioral or structural measures or to make the commitments proposed by undertakings binding upon them. It may also render decisions declaring Articles 101 and 102 inapplicable, particularly in respect of agreements or practices for which there are no precedents.
According to the system of parallel jurisdiction put in place by Regulation No 1/2003, all EU Member States’ competition authorities have the power to apply Articles 101 and 102 and the Commission no longer has exclusive jurisdiction.
Cases are handled (Regulation No 1/2003, Article 11) within the network of competition authorities, either (i) by a single competition authority, (ii) by several authorities acting in parallel or, (iii) by the Commission.
A particular authority will usually be considered as well placed to handle a case where the agreements or practices at issue substantially affect competition on its territory.
In Notice No 2004/C 101/03 of 27 April 2004 the Commission sets out two criteria that will virtually always establish its own jurisdiction. It is particularly well placed to handle a case where:
– the anticompetitive practice in question produces effects on competition in more than three Member States and the case is closely related to other EU provisions that are exclusively, or more efficiently applied by the Commission, or
– where the Union interest requires the Commission to adopt a decision for the development of EU competition policy.
Except for multi-State cases, the Commission now only examines cases having a particular significance for the Union due to the novelty of the issue raised, its economic impact or its political importance.
If the Commission considers itself competent, it may examine a case of its own initiative. Initiation by the Commission of proceedings for the adoption of a decision relieves the competition authorities of the Member States of their competence to apply Articles 101 and 102 TFEU.
