This article deals with the advantages and disadvantages of filing formal complaints or formally applying for a "formal third party status" in procedures initiated by the Commission under Articles 81 and 82 EC Treaty.

Providing the Commission with Information

The Commission encourages undertakings expressly in various of its regulations and notices to contact the Commission, the national competition authorities and its courts to inform them about suspected infringements of the competition rules. Based on Regulation 1/2003,1 its implementing Regulation 773/2004,2 and the accompanying Complaints Notice,3 the Commission provides guidance how to make the contact effective.

Different possibilities for lodging complaints

A complaint may be brought either to the Commission, a national court or a national competition authority, depending on its nature and the goal pursued. In order to achieve the outcome wanted, the undertaking should make an informed choice concerning which authorities/ courts should be addressed. While this article concentrates on complaints and contact to the Commission, it has to be stressed that following implementation of Regulation 1/2003, the Commission supports expressly competition enforcement at the national level. The Commission itself wants to concentrate on those cases where it is well placed to act, to concentrate its resources on the most serious infringements and to handle cases in relation to which the Commission should act with a view to define community competition policy and/or to ensure coherent application of Articles 81 or 82.4

Possibilities to submit information to the commission

If the assessment of advantages/disadvantages to contact the various authorities or courts leads to the decision of the undertaking to provide information to the Commission, it may choose between the following options:

  • Informal complaint by providing market information;
  • Formal complaint pursuant to Article 7(2) of Regulation 1/2003;
  • Interested third party status.

The formal requirements of each possibility as well as its advantages or disadvantages are as follows:

Informal Complaint

No formal requirements have to be fulfilled if the undertaking decides to provide market information to the Commission. In order to facilitate and incite undertakings to submit possible breaches of EC competition law, the Commission has created a special website to collect information. The website can be found at the following address: http://europa.eu.int.dgcomp/info-on-anti-competitive-practices. In a more conventional way, information can also be provided to the Commission at Commission Européenne/Europese Commissie, Competition DG, B-1049 Bruxelles/Brussel.

The Commission is not obliged to act following such informal complaint lodged by providing information. But it can be an initiative for an investigation by the Commission. The status of the submitting party is not different from that of any third party not related to the case. Therefore, while full anonymity is upheld, the submitting party is not able to acquire more information on the complainant’s behaviour or be heard at the further stages of the investigations.

Formal Complaint

Pursuant to Article 7(2) Regulation 1/2003 any person claiming a legitimate interest (in particular, direct competitors or customers) may lodge a formal complaint that there has been an infringement of Article 81 or 82 EC Treaty and may ask the Commission to bring such infringement to an end.

Formal requirements

Under former Regulation 2842/98, no particular form for making a complaint was required. With the implementation of Regulation 773/2004 and the accompanying Complaints Notice, this has fundamentally changed. Pursuant to Article 5 of Regulation 773/2004, the complaining party shall show its legitimate interest by filling out Form C and adding certain documents required by Form C.5 The complaint must be submitted in three paper copies as well as, if possible, an electronic copy. Furthermore a complainant shall submit a non-confidential version of the complaint, if confidentiality is claimed for any parts of the complaint pursuant to Article 5(2) of Regulation 773/2004. The Commission does not treat correspondence not complying with the requirements of Article 5 of Regulation 773/2004 to constitute a complaint within the meaning of Article 7(2) of Regulation 1/2003. Therefore, if Form C is not used, the Commission is not even obliged, according to its own interpretation, to decide on the complaint. But it may consider the information as general information and may use it to start an own initiative investigation.6

Stages of proceedings

During the first stage of the proceedings, following the submission of the complaint, the Commission examines the complaint and may collect further information in order to decide which action it will take on the complaint. The stage may include an informal exchange of views between the Commission and the complainant. In the second stage, the Commission may investigate the case further with a view to initiating proceedings pursuant to Article 7(1) of Regulation 1/2003 against the undertakings complained of. Where the Commission considers that there are insufficient grounds for acting on the complaint, it will inform the complainant of the reasons and offer the complainant the opportunity to submit any further comments within the time limit which it fixes. If the complainant fails to make known its views within the time limit set by the Commission, the complaint is deemed to have been withdrawn (Article 7(3) of Regulation 773/2004). In all other cases, in the third stage of the procedure, the Commission takes cognisance of the observations submitted by the complainant and either initiates a procedure against the subject of the complaint or adopts a decision rejecting the complaint. While the Commission is obligated to decide on complaints within a reasonable time, it depends on the circumstances of each case when the decision is due. The Commission will in principle inform the complainant within four months whether or not it intends to investigate its case further.

Rejection of complaint or initiation of procedure

If the Commission decides to reject a formal complaint, it must formally provide notice to the complainant, who may then submit additional comments. On request of the complainant, the Commission must adopt a formal rejection decision which may be challenged before the European Court of First Instance ("CFI") under Article 230 EC Treaty. Where the Commission has informed the complainant of its intention to reject a complaint, the complainant may request access to the documents on which the Commission based its provisional assessment pursuant to Article 8 of Regulation 773/2004. The complainant may however not have access to business secrets and other confidential information belonging to other parties involved in the proceedings. If the Commission accepts that there is a prima facie case of infringement, it will formally initiate a procedure against the defending company and issue the so-called "Statement of Objections"7 in which it informs the defending undertaking of the objections raised against it.

The complainant’s status

If an undertaking concerned by an abuse of a market dominant undertaking is to convince the Commission to open an investigation based on a formal complaint according to Article 5(2) Regulation 1/2003, there will be three parties in the upcoming antitrust procedure:

  • the Commission as the "prosecutor and judge";
  • the market dominant undertaking as "defending party"; and
  • the complainant.

Rights related to the complainant status

Participation in proceedings This right remains rather limited, since the complainant receives only a copy of the non-confidential version of the Statement of Objections pursuant to Article 6 of Regulation 773/2004 and point 64 of the Complaints Notice.

Right to get access to file

Just as prior to the introduction of the new Regulation 1/2003 and the related framework, pursuant to section D1 of the Commission’s so-called "Access to the File Notice,"8 the complainant does not have the right of general access to the Commission’s file. In particular, the complainant may not request access to any confidential information or other business secrets which the Commission received from the defending undertaking or from third parties. Any allowance of access to information provided by the defending party would be subject to the defending party’s right to confidential treatment and to the discretion of the Commission. In practice, the Commission usually grants access to non-confidential documents in the files to interested third parties, excluding internal Commission documents.

Right to submit written comments (Article 6(1) Regulation 773/2004)

The complainant has the formal right to make its views known in writing on the statement of objections and the defending undertaking’s statement in reply thereto.

Right to attend an oral hearing with Commission (Article 6(2) Regulation 773/2004)

If complainants request so in their written comments, the Commission may, if appropriate, afford a complainant the opportunity to attend at the oral hearing pursuant to Article 6(2) of Regulation 773/2004. In the past, the Commission has not rejected applications for an oral hearing by a complainant.

The complainant does not have the right to attend meetings between the Commission and the defending party convened for the purpose of discussing proposals of the defending party in order to remedy the subjects of the Commission’s complaint. If separate oral hearings are held, the complainant has the right to receive minutes of the oral hearing of the defending party and to comment on the defending parties’ statements made in or after its oral hearing but only if the complainant can prove that it is necessary for it to exercise its right to be heard.

Risks of having a claimant status

The claimant to a proceeding before the Commission faces certain risks. In particular, it is part of the procedure and its status as claimant is disclosed to the defending party. Furthermore, even if the information provided by the complainant is identified as confidential, this does not prevent the Commission from disclosing and using the information in the complaint, where necessary, to prove an infringement of Articles 81 and 82 EC Treaty.

The "Interested Third Party Status"

If an undertaking concerned by an abuse of a market-dominant undertaking is to convince the Commission to open an investigation without filing a formal complaint, there will only be two parties in the upcoming anti-trust procedure, the Commission and the defending party. Other persons or undertakings may however apply for being granted an interested third party status under Regulation 1/2003 and Regulation 773/2004 if they can show a sufficient interest in the outcome of the proceedings.9

Advantages of having an interested third party status

Right to be informed of the nature and subject-matter of the procedure (Article 13(1) Regulation 773/2004)

The scope of this right remains rather limited. The applicant may expect to receive a non-confidential copy of the Statement of Objections, if even that, and brief information about the current status of the procedure. In contrast to the claimant’s status, the Commission is not obliged to provide the non-confidential Statement of Objections.

Right to get access to the file

Like a formal complainant, an interested third party does not have a right to get general access to the Commission’s files. Pursuant to Section D1 of the Commission’s Access to the File Notice, and point 69 of the Complaints Notice, even complainants do not have such general right. Any allowance of access to information provided by the defending party would be subject to the defending party’s right to confidential treatment and to the discretion of the Commission. As for a Complainant’s case, in practice, the Commission usually grants access to non-confidential documents in the files to interested third parties, excluding internal Commission documents.

Right to submit written comments (Article 13(1) Regulation 773/2004)

As an interested third party, the applicant has the formal right to make its views known in writing on the Statement of Objections and the defending undertakings.

Right to attend an oral hearing with Commission (Article 13(2) Regulation 773/2004)

  • As an interested third party, the applicant does not have an unequivocal right to be granted access to the oral hearing with the defending undertaking. It is in the discretion of the Commission to grant interested third parties such access to the oral hearing, where appropriate. In practice, the Commission does not reject applications for an oral hearing. On the other hand, the Commission may invite even other third parties to orally express their views.
  • Oral hearings can be held separately or jointly with the defendant and third parties (Article 14(6) Regulation 773/2004). It is the common practice of the Commission to organise joint oral hearings. The Commission only restricts participation when business secrets are under discussion.
  • If separate oral hearings are held, the interested third party has a right to receive minutes of the oral hearing of the defending party and to comment on the defending parties’ statements made in or after its oral hearing only if it could prove that it is necessary for it to exercise its right to be heard.
  • Like the complainant, the interested third party has no right to attend meetings between the Commission and the defending party convened with the purpose to discuss proposals of the defending party in order to remedy the subjects of the Commission’s case.

Application before the Court of First Instance

As an interested third party, the applicant may have the right to challenge any decision rejecting its claims or any settlement decision before the CFI. However, the risk of an application to the CFI being inadmissible is significantly higher if lodged without having a formal interested third party status.

Risks of having an interested third party status

If the applicant decides to apply for formal interested third party status, it may face certain risks. In particular it could almost certainly not be excluded in such a case that the applicant’s status as interested third parties would be disclosed to the defending party. This is in particular because

  • the defending party would be granted the opportunity to comment on the applicant’s submissions to the Commission;
  • the applicant’s request lodged with the Commission for access to documents would be communicated to the defending party;
  • the Commission might request the applicants to disclose business secrets where it is found that the information is not protected;
  • in case an oral hearing has been attended, the hearing officer (who leads the hearing procedure) would submit a report which will be communicated to the parties, the Member States’ authorities and will be published in the Official Journal. This report may also disclose the identity of third parties.10

Footnotes

1 Council Regulation No. 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 No. L 1/1), replacing Regulation 17/62.

2 Commission Regulation No. 773/2004 on conduct of proceedings by the Commission pursuant to Article 81 and 82 of the EC Treaty (OJ 2004 No. L 123/18), replacing Regulation 2842/98.

3 Commission Notice on the Handling of Complaints (OJ 2004 C101/05).

4 See for example: Complaints Notice point 11.

5 Form C can be found as Annex of Regulation 773/2004. As mentioned before, since the Commission takes into consideration whether national competition authorities or national courts are better placed to decide on a complaint, information on a possible approach concerning the same or closely related subject matters at any other competition authority or national court has to be provided.

6 See Complaints Notice, point 32.

7 The Statement of Objections is a "letter" in which the Commission lays down all objections it raises against the defending party. It will be sent after the Commission has completed its first investigations via its so-called requests for information, according to Article 18 Regulation 1/2003, and believes to have collected sufficient evidence to prove a violation of Article 82 EC Treaty.

8 Commission notice on the internal rules of procedure for processing requests for access to the file in cases under Articles 85 and 86 [now 81 and 82] of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No. 4064/89 (OJ 1997 No.C23/3).

9 In accordance with the former Regulation 2842/98 based on Regulation 17/62, the requirement for third parties to show "sufficient interest" is similar to the requirement for complainants to show legitimate interest. Based on the Commission’s case law and as described in the Complaints Notice, undertakings can claim such interest when they are operating in the relevant market or where the conduct complained of is likely to directly and adversely affect their interests. This confirms the established practice of the Commission that competitors whose interests have allegedly been damaged by the behavior complained of or by undertakings excluded from distribution systems or of parties to an agreement or practice which is the subject of the complaint leads to a legitimate interest. The application shall be made in writing and be complemented by a written statement explaining the applicant’s interest in the outcome of the procedure. Applications to be heard orally shall be made after the Commission granted the submission of written comments.

10 In such a case, the applicant’s identity might also be identified in the final Commission decision published in the Official Journal. 

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