On 3 August 2015, the European Commission adopted amendments to Regulation 773/2004 on the conduct of proceedings pursuant to Articles 101 and 102 TFEU (the "Regulation on Procedure") as well as four related Notices in order to bring the procedural rules and practices in line with the recently adopted Directive 2014/104/EU on Damages Actions.

The Directive on Damages Actions aims, first, to ensure that damages for antitrust violations can effectively be claimed, whether before a court or otherwise, and secondly, that there is sufficient interrelation between any private actions for damages and investigations conducted by the Commission or national competition authorities. To achieve these aims, the Directive on Damages Actions limits the disclosure and use of leniency corporate statements and settlements submissions in relation to national courts and national competition authorities. In order to facilitate these aims and streamline the law, the Commission has now amended the Regulation on Procedure and four related Notices in relation to the disclosure and use of information obtained during Commission proceedings. The Commission has also taken this opportunity to introduce, for the first time, core concepts of its leniency programme into hard law.

Three aspects of the Regulation on Procedure have been amended. First, regarding the leniency programme, a new Article 4a enshrines into hard law the main principles of the Commission's leniency programme, which had been previously set out in the form of a Commission Notice. These principles govern the conditions and requirements according to which the Commission may grant immunity from or a reduction of fines to undertakings party to secret cartels, and the rules regarding leniency corporate statements. Second, on the topic of settlement submissions, Article 10a has been amended to provide that settlement submissions are specifically drawn up by undertakings as a formal request to the Commission to adopt a decision in their case following the settlement procedure. The amendments also introduce the possibility for oral settlement submissions. Third, in relation to access to file, Articles 15 and 16 have been amended to include specific rules regarding access to and use of settlement submissions and leniency corporate statements. This includes a provision stating that access shall only be granted for the purposes of exercising the rights of defence in proceedings before the Commission (not in damages actions before national courts). 

The Commission amendments also update the Notice on access to file by including references to the Commission's Notice on best practices for the conduct of proceedings. In addition, the Notice now states that misuse of information obtained during access to file may be subject to penalties under national law.

Two aspects of the Commission's Leniency Notice have been amended. First, regarding the use of information obtained through access to the Commission's file, failure to comply with the rules on the use of such information can now be deemed as lack of cooperation and may be subject to penalties under national law, and in certain situations, the undertaking concerned may also be subject to an increased fine. Second, regarding the cooperation between the Commission and national courts, it is stipulated that the Commission will never transmit leniency corporate statements to national courts for use in damages actions.

The Notice on Settlements has been amended to provide that settlement submissions cannot be withdrawn unilaterally by the parties. The amendment also sets out the conditions under which a settlement submission is deemed to be endorsed by a statement of objections and reflected by a final decision, and the rights of the Commission to do otherwise. The Notice now also makes clear that the Commission will not transmit settlement submissions to national courts for use in damages actions.

The final Notice amended by the Commission is the Notice on cooperation with national courts. Pursuant to the amendments, the Commission shall only disclose information to national courts where this will not unduly affect the effectiveness of its enforcement activities, in particular as regards pending investigations, leniency programmes and settlement procedures. Moreover, it is repeated that the Commission will never transfer leniency corporate statements and settlement submissions to national courts for use in damages actions. Finally, the Notice now provides that the Commission will not transfer information that was prepared specifically for Commission proceedings until it has closed its proceedings or has otherwise terminated its administrative procedure.

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