European Commission Changes its Policy on Providing Guidance on Questions of Competition Law

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In 2004, the European Union modernised the rules and procedures that govern the enforcement of its competition law. The entry into force of Council Regulation (EC) No 1/2003 on 1 May 2004 brought about the most comprehensive reform of the enforcement rules since they were first laid down in 1962. The EU moved from a system of centralised notification and authorisation to a decentralised system where the Treaty’s provisions on competition law (Articles 101 and 102 TFEU) have become directly and fully applicable. In particular, an agreement that is covered by the prohibition in Article 101(1) TFEU due to its anti-competitive effects but meets the conditions for an exemption in Article 101(3) TFEU is now directly valid and enforceable, without the need for a prior decision to that effect. The modernised system of competition law allows, and also requires, companies to assess for themselves the legality of their agreements and practices and whether efficiencies and consumer benefits outweigh any restriction of competition. Companies are usually in a good position to conduct such a self-assessment. However, the flipside of the abolition of the notification system is that companies have lost the option of applying for an official exemption from the Commission which would confirm the validity of an agreement under EU competition law. Despite the considerable body of case law from the courts and guidance documents issued by the competition authorities, there often remains a degree of uncertainty regarding the validity and legality of individual contracts and agreements. To alleviate the uncertainties and risks for businesses created by the modernised system of enforcement, Regulation 1/2003 has authorised the Commission to issue, on its own initiative, non-infringement decisions where it finds that this is in “Community public interest” (Article 10). However, recourse to such decisions is limited to “exceptional cases” (Recital 14), and it appears that none have ever been taken. The Commission also published a notice offering informal guidance to undertakings in cases presenting “novel or unresolved questions” (“2014 Notice”, EU OJ C 101, 27/4/2004, p. 78 [Background]). But again, the requirements for obtaining such informal guidance were stringent and strictly interpreted by the Commission, and consequently, this option was hardly ever used. Following the experiences of the COVID-19 health crisis, where the Commission issued a couple of comfort letters, the Commission appears to have realised that businesses require guidance from the competition authorities in more situations than originally envisaged in the 2014 Notice or in Article 10 of Regulation 1/2003. It thus relaxed the requirements for informal guidance in a new notice published on 3 October 2022.