Commission Regulation (EU) 2015/1348 of 3 August 2015 amending Regulation (EC) No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (Text with EEA relevance)
Commission Regulation (EU) 2015/1348of 3 August 2015amending Regulation (EC) No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty(Text with EEA relevance)THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to the Agreement on the European Economic Area,Having regard to Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the TreatyOJ L 1, 4.1.2003, p. 1., and in particular Article 33 thereof,After consulting the Advisory Committee on 19 June 2015,Whereas:(1)Commission Regulation (EC) No 773/2004Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18). Regulation as amended by Regulation (EC) No 1792/2006 (OJ L 362, 20.12.2006, p. 1), and by Regulation (EC) No 622/2008 (OJ L 171, 1.7.2008, p. 3). lays down rules concerning — among others — investigations undertaken by the Commission and access to the Commission's file.(2)Cartels are agreements or concerted practices between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices such as the fixing or coordination of purchase or selling prices or other trading conditions, the allocation of production or sales quotas, the sharing of markets and customers including bid-rigging, restrictions of imports or exports and anti-competitive actions against other competitors. Such practices are among the most serious violations of Article 101 of the Treaty.(3)By their very nature, secret cartels are often difficult to detect and investigate without the cooperation of undertakings or individuals implicated in them. Therefore, the Commission considers that it is in the Union interest to reward undertakings involved in this type of illegal practices which are willing to acknowledge and to put an end to their participation and to cooperate in the Commission's investigation, independently of the rest of the undertakings involved in the cartel. The interests of consumers in ensuring that secret cartels are detected and punished outweigh the interest in imposing fines, at a level commensurate with their illegal conduct, on those undertakings that enable the Commission to detect and prohibit such practices. To that end, the Commission has been operating a leniency programme since 1996. In its leniency programme the Commission sets conditions under which it may reward undertakings for their cooperation in the Commission's investigation. The leniency programme has proved to be an effective tool for the Commission to uncover and punish numerous secret cartels. Moreover, by helping uncover more infringements and making public enforcement more effective, the leniency programme also serves as a deterrent against cartels and, ultimately, provides a basis for injured parties to claim damages for the harm suffered from those infringements.(4)As part of their cooperation undertakings may voluntarily submit to the Commission leniency corporate statements, which may include statements by current and/or former employees and representatives of the undertaking. However, undertakings may be dissuaded from cooperating with the Commission if doing so might have negative consequences for their position in civil proceedings.(5)Parties to proceedings before the Commission as well as third parties, such as complainants and other interested persons, can obtain certain information from the Commission's file pursuant to Regulation (EC) No 773/2004.(6)Information obtained pursuant to Regulation (EC) No 773/2004 can be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 of the Treaty. However, it should not be possible to use such information in proceedings before national courts where this could unduly affect the effectiveness of the Commission's enforcement of Articles 101 and 102 of the Treaty.(7)In order to ensure that undertakings are not discouraged from voluntarily acknowledging their participation in infringements of Union competition law in the context of the Commission's leniency programme or settlement procedure, other parties will be granted access to such acknowledgement through access to the file pursuant to Regulation (EC) No 773/2004 only for the purposes of exercising their rights of defence in proceedings before the Commission. This information may only be used in the review proceedings before the European Union courts or before national courts in cases which are directly related to the case in which access has been granted and which either concern the allocation of a fine between cartel participants or the review of an infringement decision adopted by a national competition authority.(8)Moreover, the use of information obtained pursuant to Regulation (EC) No 773/2004 in proceedings before national courts should not unduly interfere with a pending Commission investigation of an infringement of Union competition law. Where such information was prepared by the Commission in the course of its proceedings for the enforcement of Union competition law (such as a statement of objections) or by a party to those proceedings (such as replies to requests for information of the Commission), a party should not be able to use such information in proceedings before national courts until after the Commission has closed its proceedings against all parties under investigation by adopting a decision under Article 7, 9 or 10 of Regulation (EC) No 1/2003 or has otherwise terminated its administrative procedure.(9)The rules in this Regulation governing the handling of leniency corporate statements and settlement submissions should also apply where leniency statements and settlement submissions as defined in Article 2 of Directive 2014/104/EU of the European Parliament and of the CouncilDirective 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing action for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ L 349, 5.12.2014, p. 1). on Antitrust Damages Actions are transmitted to the Commission by the competition authorities of the Member States under Regulation (EC) No 1/2003.(10)Regulation (EC) No 773/2004 should therefore be amended accordingly,HAS ADOPTED THIS REGULATION: