On 17 December 2014, the European Commission published a proposal to amend its procedural rules and notices following the recent adoption of Directive 2014/104 on competition damages actions (see VBB on Competition Law, Volume 2014, No. 11, available at www.vbb.com). The proposed amendments concern Regulation 773/2004 on the procedural rules and four Commission communications, namely the communications on access to the file, leniency, settlements and the cooperation between the Commission and Member States' courts.
With regard to Regulation 773/2004, the Commission's proposal aims at formalising into hard law provisions which are currently only contained in soft law (i.e., notices). Specifically, the main changes relate to leniency statements, settlements and access to the file.
First, the Commission proposes to create a new article in Regulation 773/2004 to reflect the basic principles of the 2006 Leniency Notice. On the substance, the proposal does not contain any novelty with regard to the current situation.
Second, the Commission proposes to amend Article 10(a) of Regulation 773/2004 in relation to the settlement procedure. Pursuant to the proposal, the Commission will be able to set a time limit within which the parties may commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the settlement discussions and by acknowledging their infringement of Article 101 TFEU and their liability. Prior to the setting of a time limit by the Commission, the undertakings concerned will be granted access to some information in a timely manner (e.g., objections, evidence, non-confidential versions of documents in the file, range of potential fines). Settlements submissions, which can also be made orally, can be dismissed by the Commission after the expiration of the time limits.
Third, the proposal will amend Article 15 of Regulation 773/2004 which deals with access to the file. The proposed amendment provides a specific set of rules for access to settlement and leniency documents. As mentioned above, the Commission will grant access to the evidence and documents requested by undertakings wishing to introduce settlement submissions. In addition, access to the file will be granted to the parties following the adoption of the statement of objections should it not reflect the parties' settlement submissions. Such an access will also be granted unconditionally when a Statement of Objections is addressed to undertakings with which settlement discussions were discontinued. The proposed amendment also provides that leniency corporate statements and settlement submissions can only be granted at the Commission's premises and cannot be copied.
Finally, the Commission's proposal will create a new Article 16 relating to access to the file. According to this new article, information obtained under Regulation 773/2004 shall only be used for the purposes of judicial or administrative proceedings relating to the application of Articles 101 and 102 TFEU. Furthermore, access to leniency corporate statements and settlement submissions will only be granted for the purposes of exercising the rights of defence in proceedings before the Commission. Before the courts, information obtained from such statements can only be used by undertakings wishing to exercise their rights of defence before the EU Courts against a Commission decision. Such information can only be used before national courts in cases relating to the allocation of joint and several liability between undertakings and to the review of fines imposed by a competition authority under Article 101 TFEU. Additionally, the proposed amendments also provide that some information can be used in proceedings before national courts only after the proceedings before the Commission have terminated. This would be the case for information prepared by other natural or legal persons specifically for the Commission's proceedings and for information that the Commission has drawn up and sent to the parties in the course of its proceedings.
Concerning the Communication on access to the file, the proposed amendments mainly provide for minor changes, including the update of references to the latest Decision on the terms of reference of Hearing Officers, and the Commission's Notice on best practices for the conduct of proceedings. The major change envisaged by the proposed amendments relates to the express mention of possible penalties under national law for persons using information from the file in cases which do not relate to proceedings for the application of the EU competition rules. According to the proposal, should the breach of such limitations be caused by an external counsel, the Commission can report the infringement to the Bar of that counsel for disciplinary action.
In relation to the amendments to the Leniency Notice, the proposal explicitly states that the use of information obtained through access to the file which infringes the provisions of Regulation 773/2004 can be regarded as failure to cooperate and gives rise to penalties to be laid down under national law. Moreover, the proposal provides that should such use of information occur after the notification of a prohibition decision, the Commission may ask the EU Courts to increase the fine of the responsible undertaking. Another significant change contained in the proposal relates to the mention that the Commission will never transmit leniency corporate statements to national courts in cases of damages for breach of Articles 101 and 102 TFEU.
In respect of the Notice on settlements, the settlement procedure will be amended in order to deprive the parties of the current possibility to unilaterally revoke a settlement request as provided by point 22 of the Notice. In addition, it follows from the proposed amendments that the Commission will not transmit settlement submissions to national courts in cases of damages for breach of Articles 101 and 102 TFEU.
Finally, the proposal also aims at amending the Notice on cooperation between the Commission and EU Member States' courts. In line with the amendments dealing with the Leniency and Settlement Notices, the Commission proposes to introduce a provision aiming to ensure that disclosure of documents to national courts does not unduly affect the effectiveness of EU competition law, in particular with reference to pending investigations and to the functioning of the leniency and settlement programs. Therefore, no leniency applications or settlement submissions will be disclosed to national courts. Similarly, other types of information will not be disclosed to national courts in damages proceedings before the case has been closed against all investigated parties by the Commission.
The proposed amendments are open to consultation until 25 March 2015. Reportedly, the Commission intends to adopt the amended texts before the end of 2015.
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