Concurrent jurisdiction under regulation 1/2003 and the issue of case allocation

Common Market Law Review

Volumn 42, Issue 5, 2005, Pages 1383-1424

  Brammer, Silke ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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EID: 33750033627     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (184)

1. Subject to territorial limitations including the effects doctrine (see infra at 2.1).
2. Schaub, "Continued focus on reform: Recent developments in EC competition policy" in Hawk (Ed.), 2001 Proceedings of the Fordham Corporate Law Institute (Juris Publishing, 2002), pp. 31-51, 39. Schaub mentions two principal roles of the Network, namely case allocation and contribution to the coherent application of the Community competition rules.
3. Recital 7 of Regulation 1/2003. It is in fact one of the major goals of the recent EU antitrust reforms (often referred to as "modernization") to enhance the role of national courts. On the modernization in general see Venit, "Brave new world: The modernization and decentralization of enforcement under Articles 81 and 82 of the EC Treaty", 40 CML Rev. (2003), 545-580.
4. Cf. Ehlermann, "The modernization of EC antitrust policy: A legal and cultural revolution", 37 CML Rev. (2000), 537-590, 580, who points out "[t]hat contrary to competition authorities, judges and courts can neither 'cooperate' nor be 'coordinated' when applying Article 81 ...".
5. Pursuant to Art. 15(2) of Regulation 1/2003, national courts are only required to provide the Commission with a copy of any judgment involving the application of Arts. 81 or 82 after it has been handed down.
6. See para 16 of the Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty ("Notice on Complaints") (O.J. 2004, C 101/65).
7. Evidently, the national judge has to respect the supremacy of Community law and the principles developed by the ECJ in Masterfoods (C-344/98, Masterfoods v. HB Ice Cream, [2000] ECR 1-11369, paras. 51-60) and now enshrined in Art. 16(1) of Regulation 1/2003.
8. Cf. Schaub, (Fordham 2001), op. cit. supra note 2, 40.
9. The EC merger control rules provide that concentrations which have a "Community dimension" are within the exclusive jurisdiction of the Commission and subject only to the provisions of the EC Merger Regulation to the exclusion of national competition laws (Art. 21(1)-(3) EC Merger Regulation). The concept of "Community dimension" is defined by means of quantitative criteria (turnover thresholds; see Art. 1 EC Merger Regulation).
10. See infra at 4.3.
11. Basedow, "Who will protect competition in Europe? From central enforcement to authority networks and private litigation" in Einhorn (Ed.), Liber Amicorum Ernst-Joachim Mestmäcker, 2 European Business Organization Law Review (2001) 443-468, 450. The potential number of competent authorities is thus only limited by the actual number of NCAs empowered to apply EC competition law.
12. But see also infra note 12.
13. According to Basedow, op. cit. supra note 11,450, the effects doctrine is almost universally acknowledged.
14. The likelihood of an Art. 81 or 82 case having cross-border effects is naturally quite high, as EC competition law only applies where trade between Member States is affected. This is all the more so since the ECJ ruled in Italian Banks that Art. 81 does not apply to so-called domestic agreements, i.e. agreements that primarily affect consumers in a single Member State.
15. See Joined Cases C-215 & 216/96, Carlo Bagnasco and others v. Banca Popolare di Novara and Cassa di Risparmio di Genova, [1999] ECR1-335, paras. 46-53.
16. Cf. recital 18 of Regulation 1/2003 and para 7 of the Network Notice.
17. Schaub, op. cit. supra note 2, 39, points out that the issue is one of dividing work, not one of attributing competence.
18. See Dekeyser and Dalheimer, "Cooperation within the European Competition Network - taking stock after 10 months of case practice", Paper for the conference Antitrust Reform in Europe: A Year in Practice organized jointly by the International Bar Association (IBA) and the European Commission, Brussels, 9-11 March 2005, p. 6.
19. See also para 48 of the judgment in Masterfoods (supra note 7), where the ECJ ruled that in order to fulfil the role assigned to it, the Commission is entitled to adopt at any time individual decisions under Arts. 81 and 82.
20. O.J. 2004, C101/43. Since the instrument of "notices" is not mentioned in Art. 249, they are generally regarded as not legally binding for Member States. It has however been acknowledged that notices and guidelines have a binding effect on the Commission itself in accordance with the principle of equal treatment. See e.g. Case T-214/95, Vlaams Gewest v. Commission, [1998] ECR 11-717, para 89 (regarding guidelines in the field of State aid) and Case T-224/00,
21. Archer Daniels v. Commission, [2003] ECR 11-2597, para 182 (regarding guidelines for the setting of fines in competition matters).
22. This cooperation took place via the ECN, which actually started to operate prior to 1 May 2004. Already at that time, officials from the 25 present Member States were involved. Dekeyser and Dalheimer, op. cit. supra note 16, 18.
23. Gauer, "Due process in the face of divergent national procedures and sanctions", Paper for the conference Antitrust Reform in Europe: A Year in Practice organized jointly by the International Bar Association (IBA) and the European Commission, Brussels, 9-11 March 2005, p. 3.
24. Dekeyser and Dalheimer, op. cit. supra note 16, 6.
25. Paras. 6 and 7 of the Network Notice.
26. Schaub, supra note 2, 39-40.
27. Cf. para 19 of the Network Notice.
28. So-called Schwerpunkttheorie.
29. See Bundeskartellamt, Praxis und Perspektiven der dezentralen Anwendung des EG-Wettbewerbsrechts (1998), pp. 19-21.
30. The concept was further discussed and defended by the German Monopolies Commission (Monopolkommission).
31. See Monopolkommission, "Problems consequent upon the reform of the European cartel procedures", 32nd Special Report, 2001, para 42 (available at www.monopolkommission.de/sg_32/text_s32_e.pdf).
32. Judgment of the CFI in case T-114/92, BEMIM v. Commission, [1995] ECR 11-147, para 93. Emphasis added. Apparently, the expression had been used by the Commission itself in the letter definitely rejecting the complaint in order to describe the fact that the practices criticized by BEMIM had essentially national effects and were therefore not of any particular importance to the functioning of the common market.
33. See the citation at the end of para 83 of the judgment in BEMIM.
34. Schaub, "Modernisation of EC competition law: Reform of Regulation No. 17" in Hawk (Ed.), 1999 Proceedings of the Fordham Corporate Law Institute (Juris Publishing, 2000), pp. 143-160, 145.
35. P. 6 of the Commission's Explanatory Memorandum of 27 Sept. 2000, which was published together with the proposal for Regulation 1/2003 (COM(2000)582 final; not published in the O.J.).
36. See already paras. 15-19 of the Joint Statement of the Council and the Commission on the functioning of the network of competition authorities of 10 Dec. 2002 (Council of the EU, doc. no 15435/02 ADD 1).
37. See Gauer, op. cit. supra note 19, 3.
38. The criteria for determining the "well placed authority" are apparently based on a proposal of the German and Dutch delegations. Böge, "The Commission's position within the network: The perspective of the NCAs" in Ehlermann and Atanasiu (Eds.), European Competition Law Annual 2002: Constructing the EU Network of Competition Authorities (Hart Publishing, 2003), at p. 3 of the on-line version of the article published on the website of the European University Institute/Robert Schuman Centre for Advanced Studies at www.iue.it/RSCAS/ Research/Competition/2002(papers).shtml.
39. Obviously, they were drawing largely on elements that had already been discussed in the context of the German proposal to apply the "centre of gravity" test. These elements are for example the question whether the authority can effectively investigate the matter and bring the infringement to an end (discussed by the Bundeskartellamt under the heading "Ermittlungs- und Durchsetzungsprobleme"). See Bundeskartellamt (supra note 23), pp. 21-22.
40. Para 8 of the Network Notice.
41. The other two criteria are more efficiency related. Van der Woude, "The modernization paradox: Controlled decentralization", Paper for the IBCs 10th Annual Advanced Competition Law Conference, Brussels, 6 and 7 Nov. 2003, p. 10.
42. The Commission describes this nexus as "material link". See para 9 of the Network Notice. The requirement of a (sufficient) jurisdictional nexus is also emphasized by the International Competition Network ("ICN") in the framework of its recommended practices for merger notification procedures. The ICN suggests that the jurisdictional nexus should be determined by reference to the activities of at least two parties (or of the acquired business) in the local territory. Worldwide revenues or assets alone should in any event not be sufficient to trigger a notification requirement in a particular State. These recommendations indicate that, from an international law perspective, it would be difficult to justify that Member States claim unlimited jurisdiction over any Art. 81 or 82 case.
43. Public international law traditionally regards State jurisdiction as an expression of the sovereignty of States and therefore as being linked to the territory of the State exercising jurisdiction. See Cassese, International Law, 2nd ed. (Oxford, OUP, 2005), p. 49.
44. In Gencor/Lonrho, the CFI namely held that an extraterritorial application of the EC Merger Regulation "is justified under public international law when it is foreseeable that a proposed concentration will have an immediate and substantial effect in the Community".
45. See judgment of the CFI in case T-102/96, Gencor v. Commission, [1999] ECR11-753, para 90.
46. See para 11 of the Network Notice.
47. This scenario would prevail where the companies involved in illegal agreements or practices are located in different Member States. See paras. 12 and 13 of the Network Notice.
48. Schaub op. cit. supra note 2, 40. Such coordination will be particularly crucial with regard to so-called "dawn-raids" (surprise inspections) where secrecy and timing are essential.
49. Para 7 of the Network Notice which mirrors para 16 of the Joint Statement.
50. See para 14 of the Network Notice.
51. Para 15 of the Network Notice.
52. Paras. 7 and 18 of the Network Notice.
53. Para 12 of the Joint Statement.
54. Paras. 18 and 19 of the Network Notice. This situation may occur, for instance, where investigations reveal that a cartel which was initially believed to affect only 2 Member States, involves companies from more than 3 Member States.
55. The other two scenarios are: when an NCA is unduly drawing out proceedings and when the NCA concerned does not object.
56. Para 18 of the Network Notice.
57. Emphasis added.
58. See pp. 19-20 of the Explanatory Memorandum (supra note 26).
59. See Schaub, op. cit. supra note 2, 39 (at note 23).
60. Widegren, "Consultation among members within the Network" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, at p. 4 of the on-line version of the article published on the website mentioned in that footnote. See also para 10 of the Joint Statement.
61. At the end of December 2004, i.e. only 8 months after the coming into force of Regulation 1/2003, information on almost 300 cases had been uploaded in the system. Even if one takes into account that this number includes some old cases which had already been pending before 1 May 2004, it is evident that the Network members will have to deal regularly with huge amounts of incoming information. In January and February 2005 alone, nearly 50 new cases were reported. Dekeyser and Dalheimer, op. cit. supra note 16, 5.
62. Para 17 of the Network Notice.
63. Dekeyser/Dalheimer, op. cit.supra note 16, 5. Information on the standard form is provided in English.
64. Fingleton, "The distribution and attribution of cases among the members of the Network: The perspective of the Commission/NCAs" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, at p. 2 of the on-line version of the article published on the website mentioned in that footnote.
65. Cf. Fingleton, op. cit. supra note 53, 4, pointing to the dilemma between the objective of allocating cases as early as possible and the risk that the relevant allocation information may change at a later stage of the proceedings.
66. See para 21 of the Notice on Complaints.
67. Para 19 of the Network Notice provides that "[r]e-allocation of a case after the initial allocation period of two months should only occur where the facts known about the case change materially during the course of the proceedings." Emphasis added.
68. Emphasis added.
69. Cf. Fingleton, op. cit. supra note 53, 8, and the proposal for para 17 of the Network Notice as contained in an early EU-restricted draft (quoted by Fingleton at note 15) which explicitly provided that "... there is some flexibility in the system: if the authority wants to carry out surprise inspections on the spot, the other competition authorities can be informed only after the inspection has been carried out."
70. See also infra note 64.
71. Fingleton, op. cit. supra note 53, 5.
72. Widegren, op. cit. supra note 49, 4. There may even be different opinions about what constitutes a new case. Ibid.
73. Dekeyser and Dalheimer, op. cit. supra note 16, 7-9.
74. Cf. Schaub, op. cit. supra note 2, 39.
75. See Fingleton, op. cit. supra note 53, 9.
76. Cf. Widegren, op. cit. supra note 49, 5, who even suggests that in such cases it may be justified to limit the number of authorities to whom information is released before the inspection takes place. Such an approach would also seem to be in line with the discretion granted to NCAs under Article 11(3) of Regulation 1/2003 to inform (all or some) Network members only after the first formal investigative measure.
77. See supra at 2.3.
78. Communication of such documents takes place via encrypted e-mail or secure surface mail. Dekeyser and Dalheimer, op. cit. supra note 16, 5.
79. English is in particular used for the standard form providing information on new cases. In personal contacts between officials of the competition authorities, a language is used which is understood by both.
80. Widegren, op. cit. supra note 49, 7.
81. Cf. Fingleton, op. cit. supra note 53, 9.
82. See para 28 lit. (a) of the Network Notice.
83. Cf. judgment in Case 145/83, Adams v. Commission, [1985] ECR 3539, para 34.
84. Widegren, op. cit. supra note 49, 5.
85. This aspect was addressed in the draft text of the Network Notice quoted by Fingleton (see supra note 58) which expressly provided that "[g]iven the extremely sensitive and confidential nature of certain information before the investigation has effectively started ...", in case of surprise inspections, the Network may be informed only after the inspection has actually been carried out.
86. See also Dekeyser and Dalheimer, op. cit. supra note 16, 7, who point to the need for confidentiality when inspections are to be organized by Network members.
87. Para 17 of the Network Notice provides that the standard form should also indicate the origin of the case.
88. Para 34 of the judgment in Adams (supra note 70). According to its wording, Art. 287 merely applies to members and officials of the Community institutions. However, Art. 28(2) of Regulation 1/2003, which implements Art. 287 explicitly, requires also officials and (civil) servants of the NCAs and other national authorities to honour the obligation of professional secrecy. On this basis, the principles developed by the ECJ in Adams equally apply to national officials and civil servants when acting under Regulation 1/2003.
89. Cf. para 13 of the Joint Statement and para 20 of the Notice on Complaints.
90. Widegren, op. cit. supra note 49, 5.
91. Böge, op. cit.supra note 29, 3, even believes that, in the majority of cases, allocation will be unequivocal.
92. Schaub, op. cit. supra note 2, 39.
93. If more than three Member States are affected, the Commission may be expected to initiate proceedings itself in accordance with the "three plus" rule (para 14 of the Network Notice).
94. Cf. Schaub, "The Commission's position within the Network" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, at pp. 3 and 7 of the on-line version of the article published on the website mentioned in that footnote. Schaub admits that there is a need for a referee which can only be the Commission. Schaub also maintains, however, that the Commission will not let itself be turned (by companies) into an appeal body for case allocation. Id., 8. These two positions seem difficult to reconcile.
95. It is true that this paragraph particularly aims at situations where an NCA is already dealing with a case and the Commission intends to de-seize it by applying Art. 11(6) of Regulation 1/2003. However, nothing prevents the Advisory Committee from discussing also other allocation issues.
96. Art. 20(7), last sentence, of Regulation 1/2003.
97. Forrester, "Diversity and consistency: Can they cohabit?" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, at p. 4 of the on-line version of the article published on the website mentioned in that footnote.
98. It can hardly be denied that human resources and budgets have an impact on the way NCAs are perceived and thus on their prestige. Cf. also Forrester, op. cit. supra note 81,6.
99. See the 32nd Special Report of the German Monopolies Commission (supra note 23), para 42.
100. Bourgeois, "Decentralized enforcement of EC competition rules by national competition authorities. Some remarks on consistency, coherence and forum shopping" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, pp. 323-333, at p. 12 of the on-line version of the article published on the website mentioned in that footnote. Bourgeois refers in this respect to an (unspecified) Commission analysis of 1994.
101. See supra note 13.
102. See Competition Law Forum, "Cooperation within the European Competition Network", Suggestions submitted to the members of the European Competition Network, 15 EBLR (2004), 263-273, 266.
103. See Bourgeois, op. cit. supra note 84, 13; Competition Law Forum, op. cit. supra note 86, 269.
104. Cf. Fingleton, op. cit. supra note 53, 10, who speaks of the "boring cases" that might not get taken by any authority.
105. The issue of national bias of NCAs has been raised by many authors. See e.g. Bourgeois, op. cit. supra note 84, 6.
106. Some illustrative examples of national favouritism are provided by Forrester, op. cit. supra note 81, 6-7.
107. Schaub, op. cit. supra note 78, 3.
108. Case T-24/90, Automec v. Commission (Automec II), [1992] ECR 11-2223, paras. 8385.
109. Cf. also para 28 of the Notice on Complaints.
110. Cf. Ehlermann, op. cit. supra note 4, 582, who argues that "it cannot be the job of the EU institutions to assume responsibilities simply because the situation at national level is ... unsatisfactory."
111. Bourgeois, op. cit. supra note 84, 6, concludes that complainants "risk being smashed between the Charybdis of the 'no Community interest' and the Scylla of the NCAs' indifference".
112. Cf. para 86 of the judgment of the CFI in Automec II (supra note 91). See also para 44 of the Notice on Complaints.
113. Art. 11(4) imposes an information duty on NCAs only with regard to negative decisions (i.e. decisions ordering the termination of an infringement), decisions accepting commitments and decisions withdrawing the benefit of a block exemption.
114. The only exceptions (to the rule that the rejection of complaints and the closing of files are not communicated to the Network) are cases of which the Network members have already been informed by an initial case report. In these cases, NCAs will exceptionally inform the Network also of the (formal or informal) closure of the procedure. See para 49 of the Network Notice and para 24 of the Joint Statement.
115. Fingleton, op. cit. supra note 53, 13, even considers that NCAs may be induced to treat cases solely under national law for fear of losing it due to re-allocation if they notify the Network in accordance with Regulation 1/2003.
116. Bourgeois, op. cit. supra note 84, 6.
117. Para 42 of the Network Notice.
118. The list of authorities having signed the declaration is available at europa.eu.int/comm/competition/antitrust/legislation/ list_of_authoritiesJoint_statement.pdf
119. Contra Dekeyser and Dalheimer, op. cit. supra note 16, 15, who submit that leniency applicants are adequately protected against the risk of ex officio investigations generated by the information exchange in the Network. The following considerations show that their position might not always be correct.
120. Currently, 8 Member States do not operate a leniency program: Austria, Denmark, Greece, Italy, Malta, Portugal, Slovenia, and Spain.
121. Commission notice on the non-imposition or reduction of fines in cartel cases (O.J. 1996, C 207/4). In order to remedy certain shortcomings of the 1996 Leniency Notice and converge the EU rules with the US leniency programme, the Commission adopted a new Leniency Notice in 2002 (Commission notice on immunity from fines and reduction of fines in cartel cases, O.J. 2002, C 45/3).
122. If the applicant is second in line, even if only by a matter of hours, he is usually disqualified from (full) amnesty. Leniency applicants are therefore burdened with the need to organize simultaneous multi-jurisdictional filings to a (great) number of authorities, "a coordinated 'race to the regulator' ". Canenbley and Rosenthal, "Co-operation between antitrust authorities in- and outside the EU: What does this mean for multinational corporations? - Part 2", 26 ECLR (2005), 178-187, 186. See also para 38 of the Network Notice which states: "It is therefore in the interest of the applicant to apply for leniency to all competition authorities ... which may be considered well placed to act against the infringement in question." In many cases, the actual effects of a cartel may be difficult to determine. Moreover, since the case allocation criteria are merely indicative, the leniency applicant can never be sure about which authority will effectively assume jurisdiction. He may therefore be inclined to apply to the Commission and all NCAs that might possibly have an interest in prosecuting the infringement in order to reduce risks to a minimum. The whole procedure is not only a delicate and complicated, but above all a burdensome and costly exercise for companies seeking leniency.
123. Case T-62/98, Volkswagen v. Commission, [2000] ECR 11-2707, para 283.
124. See also Joined Cases C-238, 244, 245, 247, 250-252 & 254/99 P, Limburgse Vinyl Maatschappij and others v. Commission (PVC II), [2002] ECR 1-8375, para 322.
125. See further Art. 230 pursuant to which the ECJ reviews the legality of acts of the Commission (and the Council) with regard to inter alia an alleged "infringement of an essential procedural requirement" [emphasis added]. An exception are procedural requirements which are considered so essential (such as the authentication of acts) that the mere failure to observe them invalidates the decision without it being necessary to establish that the infringement actually resulted in harm to the applicant.
126. See Joined cases C-287/95 P & C-288/95 P, Commission v. Solvay, [2000] ECR 1-2391, paras. 45-46.
127. For instance, the fact that certain companies are under investigation may leak to the press, the ongoing investigation by the NCA in one Member State may trigger complaints in other Member States etc.
128. Waelbroeck, '"Twelve feet all dangling down and six necks exceeding long'. The EU Network of Competition Authorities and the European Convention on Fundamental Rights" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, at pp. 4-5 of the on-line version of the article published on the website mentioned in that footnote.
129. See e.g. Cantoni v. France, judgment of 15 Nov. 1996, Recueil/Reports 1996-V, 1615, para 29.
130. See e.g. judgment in Case C-30/S9,Commission v. France, [1990] ECR 1-691, para 23.
131. Penalties for individuals are foreseen inter alia in France, Germany, Greece, Ireland and Spain.
132. In France, for instance, custodial sanctions can be imposed on the officers of a company who have fraudulently played a personal and determining role in the implementation of anti-competitive practices (see Art. L420-6 of the Code de Commerce). Custodial sanctions are also available in Ireland and UK.
133. For an overview illustrating the variations in sanctions for breaches of competition law in the Member States see Maher, "Networking competition authorities in the European Union: Diversity and change" in Ehlermann and Atanasiu (Eds.), op. cit. supra note 29, at p. 9 of the on-line version of the article published on the website mentioned in that footnote.
134. Schwarze and Weitbrecht, Grundzüge des europäischen Kartellverfahrensrechts, 1st ed. (Nomos, 2004), p. 183,
135. para 41. Contra Wils, "European Union and European competition law and policy (Topic 2): The reform of competition law enforcement - Will it work?", Community Report for the FIDE XXI Congress, Dublin, 2-5 June 2004, para 194 (available at www.fide2004.org/reports.html).
136. Schwarze and Weitbrecht, op. cit. supra note 114, p. 183, para 40.
137. Cf. para 51 of the Network Notice which deals with the application of Art. 11(6) of Regulation 1/2003: "This means that once the Commission has opened proceedings, NCAs cannot act under the same legal basis against the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market." Emphasis added. This implies that NCAs can well act on the basis of Art. 81 or 82 with regard to the same agreement and against the same undertakings where the national investigation concerns another product market and/or another geographic market. The approach seems to be inspired by Art.9 of the EC Merger Regulation (so-called "German clause").
138. Cf. Schaub, op. cit. supra note 2, 39;
139. Fingleton, op. cit. supra note 53, 10. Schaub pleads in favour of taking into account the NCAs' resources in order to ensure effective enforcement. It must be feared, though, that such an approach risks leading to an asymmetric involvement of NCAs as some of them are notorious for their resources problems.
140. Fingleton, op. cit. supra note 53, 10.
141. See CR v. United Kingdom, judgment of 22 Nov. 1995, Publications of the ECtHR Series A, No. 335-C, para 34.
142. See Waelbroeck, op. cit. supra note 108, 6.
143. The ECtHR held, however, that Art. 7 of the Convention "also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ...." Kokkinakis v. Greece, judgment of 25 May 1993, Publications of the ECtHR Series A, No. 260-A, para 52.
144. See para 5 of the Network Notice: "At the same time each network member retains full discretion in deciding whether or not to investigate a case."
145. On the divergent rules regarding the rights of complainants see Gauer, op. cit. supra note 19, 4. On protection of rights of undertakings with regard to exchange of information, see Reichelt, "To what extent does the co-operation within the European Competition Network protect the rights of undertakings?", 42 CML Rev., 745-782.
146. Art. 13 of Regulation 1/2003 only facilitates the closure of a procedure in that it entitles NCAs and the Commission to suspend proceedings or reject complaints simply on the ground that another competition authority is dealing with the case.
147. As Gauer puts it, re-allocation is in fact "the result of all individual decisions of the Network members to act or not to act on a case". Gauer, op. cit. supra note 19, 3.
148. See Schaub, op. cit. supra note 2, 42. The discussions will only become known to the extent that they are later reflected in the statement of objections and/or the final decision of the competition authority to which the case has effectively been assigned.
149. See para 4 of the Network Notice: "Consultations and exchanges within the network are matters between public enforcers and do not alter any rights or obligations arising from Community or national law for companies. Each competition authority remains fully responsible for ensuring due process in the cases it deals with."
150. It is true that pursuant to para 34 of the Network Notice the undertakings concerned and the complainants are to be informed if a case is re-allocated. However, this is a mere ex post information duty. It is not foreseen that they be given the opportunity to make their views known prior to the (re-)allocation.
151. Dekeyser and Dalheimer, op. cit. supra note 16, 6.
152. See para 8 of the Network Notice. See also Fingleton, op. cit. supra note 53, 12. Only where an anti-competitive agreement or conduct produces effects exclusively outside the territory of the Member State(s) where the parties are located, will the NCA(s) in the affected Member State(s) not be in a position to end the infringement. Whether in such a situation the case can be allocated to the NCA of the Member State where the defendants are located, but no effects are felt, is doubtful, as most Member States seem to apply some sort of effects doctrine.
153. See supra at 2.1.
154. See para 32 of the Network Notice. The statement that case re-allocation "does therefore not change the position of the parties", which was apparently contained in an early EUrestricted draft of the Network Notice (see Fingleton, op. cit. supra note 53, 1 and 12), has not been retained. In view of the enormous relevance of case allocation for the procedural rights of the defendants, the sanctions that they face, and the legal position of complainants, such a statement would not have been sustainable.
155. For the situation under Community law see Art. 7(2) of the Procedural Regulation, para 35 of the Network Notice and paras. 74 to 77 of the Notice on Complaints. It follows from these provisions that, under Community law, a complainant is entitled to a formal Commission decision susceptible to judicial review where the Commission does not intend to pursue the matter, but instead refers it to one or several NCAs and the complainant has not consented to such referral.
156. Wils, op. cit. supra note 114, para 119.
157. See infra note 152.
158. Wils, op. cit. supra note 114, para 119.
159. Van der Woude, op. cit. supra note 31, 15.
160. Van der Woude, op. cit. supra note 31, 16. The example given by Van der Woude is a case where a company loses the advantage of contradictory proceedings before an independent judicial body.
161. Joined Cases T-346/02 & T-347/02, Cableuropa v. Commission, [2003] ECR 11-4251. The concentration had been notified to the Commission in accordance with the EC Merger Regulation. However, under the German clause applicable at that time (Art. 9 of the 1989 Merger Regulation), the Commission could, under certain conditions, refer a case to the competition authority of a Member State where the concentration concerned a distinct market within that Member State. The possibility of referrals still exists under the 2004 Merger Regulation, but the scope of the provision has been broadened.
162. See paras. 54-68 of the judgment (supra note 138).
163. See also Case T-119/02, Royal Philips Electronics v. Commission, [2003] ECR 11-1433, paras. 276-290.
164. See supra note 125.
165. See Art. 11(6), second sentence, of Regulation 1/2003.
166. See para 55 of the Network Notice which corresponds to para 22 of the Joint Statement.
167. The French text reads: "la Commission expose par écrit ... les motifs d'application"; the German version states: "so erläutert the Kommission ... schriftlich ihre Gründe". None of these language versions thus employs the same terms as Art. 253.
168. The legal effect of depriving the NCAs of their competence to apply Arts. 81 or 82 occurs automatically through the formal act by which the Commission actually opens the proceedings.
169. Cf. Case 133/79, Sucrimex and Westzucker v. Commission, [1980] ECR 1299, paras. 15-18, where it was held that the mere expression of an opinion is not an act of the Commission capable of being challenged under Art. 230 (ex 173) EC.
170. Unless the assessment of parts of a case is formally referred to an NCA by way of a Commission decision under Art. 9(1) of the EC Merger Regulation.
171. Cf. Gauer, op. cit. supra note 19, 7.
172. See also para 276 of the judgment in Royal Philips, supra note 139.
173. Schaub, op. cit. supra note 2, 39.
174. Cf. Gauer, op. cit. supra note 19, 5, who even submits that, since companies are exposed by law to prosecution by a number of NCAs and the Commission, case allocation "is only about removing some of these threats".
175. See e.g. Case 60/81, IBMv. Commission, [1981] ECR 2639, para 9 and Case T-64/89,
176. Automec v. Commission (Automec I), [1990] ECR11-367, para 42. Emphasis added.
177. Case 48/72, Brasserie de Haecht v. Wilkin-Janssen, [ 1973] ECR 77, para 16. The case concerned the interpretation of Art. 81 and Reg. 17.
178. See also para 15 of the judgment in IBM (supra note 150), where
179. Paras. 10-21 of the judgment in IBM, supra note 150.
180. Judgment of the ECJ in Masterfoods, supra note 7, para 48.
181. Even beyond that point, the Commission claims the right to intervene and "overrule" the decision of an NCA if that decision runs counter to a Commission decision or established case law. See para 102 of the Commission's White Paper of 28 April 1999 on modernization (O.J. 1999, C 132/1).
182. Cf. Fingleton, op. cit supra note 53, 12. Wils, op. cit. supra note 114, para 120.
183. Such a review would evidently not extend to the question whether the competition authority to which the case has been reallocated was indeed competent, but would at least allow to verify whether the competition authority closing the case was right in abstaining from any further investigation. Admittedly, Art. 13 of Regulation 1/2003 provides a strong argument in favour of any NCA which closes a file after having "referred" the case to another competition authority.
184. See the speech by Commissioner Croes at the conference Antitrust Reform in Europe: A Year in Practice organized jointly by the IBA and the European Commission, Brussels, 9-11 March 2005. The text is available at europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/05/15 7&format=HTML&aged=0&language=EN&guiLanguage=en