September 23, 2023


In 2004, the Ecu Union modernised the principles and procedures that govern the enforcement of its festival legislation. The access into drive of Council Legislation (EC) Number 1/2003 on 1 Would possibly 2004 caused essentially the most complete reform of the enforcement laws since they have been first laid down in 1962. The EU moved from a device of centralised notification and authorisation to a decentralised device the place the Treaty’s provisions on festival legislation (Articles 101 and 102 TFEU) have develop into at once and completely appropriate. Specifically, an settlement this is coated by means of the prohibition in Article 101(1) TFEU because of its anti-competitive results however meets the prerequisites for an exemption in Article 101(3) TFEU is now at once legitimate and enforceable, with out the desire for a previous resolution to that impact. The modernised device of festival legislation lets in, and in addition calls for, corporations to evaluate for themselves the legality in their agreements and practices and whether or not efficiencies and shopper advantages outweigh any restriction of festival. Firms are in most cases in a excellent place to habits this type of self-assessment. Then again, the flipside of the abolition of the notification device is that businesses have misplaced the choice of making use of for an legitimate exemption from the Fee which might verify the validity of an settlement underneath EU festival legislation. Regardless of the really extensive frame of case legislation from the courts and steerage paperwork issued by means of the contest government, there regularly stays some extent of uncertainty in regards to the validity and legality of person contracts and agreements. To relieve the uncertainties and dangers for companies created by means of the modernised device of enforcement, Legislation 1/2003 has accredited the Fee to factor, by itself initiative, non-infringement choices the place it reveals that that is in “Neighborhood public pastime” (Article 10). Then again, recourse to such choices is restricted to “outstanding instances” (Recital 14), and it seems that that none have ever been taken. The Fee additionally printed a understand providing casual steerage to undertakings in instances presenting “novel or unresolved questions” (“2014 Understand”, EU OJ C 101, 27/4/2004, p. 78 [Background]). However once more, the necessities for acquiring such casual steerage have been stringent and strictly interpreted by means of the Fee, and as a result, this feature was once infrequently used. Following the reports of the COVID-19 well being disaster, the place the Fee issued a few convenience letters, the Fee seems to have realised that companies require steerage from the contest government in additional scenarios than at the start envisaged within the 2014 Understand or in Article 10 of Legislation 1/2003. It thus comfy the necessities for casual steerage in a brand new understand printed on 3 October 2022 (“New Understand”, C(2022) 6925 ultimate [Background]).


Main points

Even supposing the Fee most often has the power to factor casual steerage to person undertakings, the New Understand nonetheless emphasises that this skill will have to no longer intervene with the self-assessment idea of Legislation 1/2003, and that any casual steerage will have to be suitable with the Fee’s enforcement priorities. The Fee has, subsequently, arrange a “clear out” consisting of 2 checks that will have to be handed ahead of it even considers a request for a steerage letter:

  • Novel or unresolved query: While, underneath the 2014 Understand, it was once vital {that a} query had no longer but been clarified by means of the case legislation of the Ecu courts with the intention to be regarded as “novel”, the New Understand doubtlessly lowers the desired stage of uncertainty in order that it’s now sufficient to turn a loss of “enough” readability from the case legislation or from publicly to be had normal steerage on the EU degree.
  • Hobby in offering steerage: It will be important for the Fee to seek out that public explanation of the applicability of EU festival legislation by way of a steerage letter “would supply added worth with admire to felony walk in the park”.

In regards to the pastime check, the New Understand lists a number of parts that wish to be taken into consideration on this regard; the second one part is new in comparison to the 2004 Steering Understand:

  • Financial significance of the products or products and services involved;
  • Whether or not the targets of the settlement or the apply in query are related for the fulfillment of the Fee’s priorities or EU pursuits;
  • Magnitude of the investments made or to be made;
  • Whether or not the settlement or apply in query is broadly used within the EU.

The New Understand additional clarifies that the Fee won’t “in most cases” believe a request for steerage if the questions raised are an identical or just like problems raised in a case pending ahead of the Ecu Courtroom of Justice, or if they’re the topic of complaints pending with the Fee, a countrywide court docket of a countrywide festival authority.

In spite of everything the New Understand contains directions on easy methods to request recommendation, specifically at the knowledge to be integrated in a request letter. By contrast to the 2004 Understand, it’s specified that candidates will have to come with their very own initial evaluation of (i) why the request raises new or unresolved questions; (ii) why there may be an pastime in offering steerage; and (iii), to the most efficient in their skills, how EU festival legislation will have to be carried out within the case handy.

In regards to the results of a steerage letter, it’s clarified that an applicant stays chargeable for assessing the applicability of EU festival legislation, and that the explanation supplied by means of the Fee relies on the accuracy and truthfulness of knowledge supplied by means of the applicant. A steerage letter does no longer create any rights or tasks, and it can be changed or revoked by means of the Fee if the general public pastime so calls for. Moreover, a steerage letter isn’t binding at the courts or the contest government of the Member States, which can be additionally empowered to use EU festival legislation. Additionally, the truth that a steerage letter has been issued does no longer preclude the Fee from due to this fact investigating that very same settlement or apply in a process underneath Legislation 1/2003. Then again, the Fee assures corporations that it’s going to no longer impose a nice if an organization has relied in excellent religion on a steerage letter.



Whilst the 2004 Understand laid down strict necessities for the issuance of steerage letters, those standards had been comfy slightly by means of the New Understand. Specifically, the Fee now has extra flexibility to reply to a much wider vary of problems with steerage letters the place it deems it related to the fulfillment of the Fee’s priorities and the EU’s pursuits. As well as, the perception of “novel” problems has been broadened somewhat. Most significantly, in its press free up at the New Understand, the Fee expressed the view that it will practice extra “versatile prerequisites” with the purpose of “expanding felony walk in the park, to the advantage of companies” (Conclusion). Due to this fact, we’re hopeful that the Fee will practice this software extra regularly than up to now.