European Competition Network
Frequently Asked Questions
1. What is the origin of the ECN?
The entry into force, on 1 May 2004, of
Council Regulation 1/2003 on the implementation of the rules of competition laid down in
Articles 81 and 82
EC developed the enforcement powers of the competition authorities of the EU Member States (also referred to as national competition authorities or NCAs).
Regulation 1/2003 made it compulsory for national competition authorities (NCAs)
to apply Article 81 of the EC Treaty where they apply national competition law to agreements or concerted practices which may affect trade between EU Member States, and to apply Article 82 of the EC Treaty where they
apply national competition law to any abuse prohibited by Article 82. Furthermore, Regulation 1/2003 foresees mechanisms of close co-operation
between all competition authorities in the European Union. As a framework for these mechanisms, the network of European competition authorities (ECN) has been established, in particular:
- to agree on working arrangements and cooperation methods, in keeping with Regulation 1/2003, and to provide an efficient framework for the obligatory and optional information mechanisms;
- to establish a continual dialogue between the different enforcers, to discuss and build a common competition culture approach.
From the outset, it was made clear, as stated in the Joint
Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities which was adopted together with
Regulation 1/2003, that all competition authorities are independent from one another and that cooperation takes place on the basis of equality,
respect and solidarity. In this field, NCAs have parallel competences to those of the Commission.
Further details of ECN rules are to ensure that the same rules are applied consistently throughout the enlarged EU and that the work-sharing is as efficient as
possible. They are set out in the "Commission Notice on cooperation within the Network of Competition Authorities" (the "Network Notice"), to which all competition authorities in the network have adhered by a special statement.
2. Which powers and competences does the ECN exercise?
The ECN as such does not have any autonomous powers or competences. It is not an institution, and it does not have any legal personality. It is the competition
authorities of the Member States and the European Commission that have powers and competences to apply, in particular, the Community competition rules laid down
in Articles 81 and 82 EC. The ECN is the framework for the close cooperation mechanisms of Council Regulation 1/2003. At the same time it is a discussion
forum dealing with a variety of topical issues of interest to its member authorities. Therefore, companies and individuals do not enter in contacts
with the ECN but always with one or more of the competition authorities.
3. How is the ECN organised?
The rules regarding communications between ECN authorities are laid down in Regulation 1/2003 and in the Commission's Notice on cooperation within the Network of Competition Authorities ("Network Notice").
Contacts are frequent at all levels of administrations. Depending on the nature of the contact, it may be established at case-handler level or between dedicated
contact points in each authority. Transparency within the Network about relevant cases is ensured by means of standard forms providing limited details in an electronic case database.
Moreover, working groups have been established where the Network members can discuss general issues or issues relating to certain sectors. There are no voting rules,
because this type of cooperation relies on consensus building. The Commission as the guardian of the Treaty has the ultimate but not the sole responsibility for developing policy and safeguarding efficiency and consistency.
4. Which kinds of cases are discussed in the ECN? What is the difference with an Advisory Committee?
Agreements and practices which are capable of having an appreciable effect on trade between EU Member States come under the close cooperation rules and mechanisms
and thus are “ECN-relevant”. This is the hard legal framework of the ECN.
In addition, the authorities meeting in the ECN can exchange their experience and views regarding particular sectors of the economy. This is the common competition
culture enhancement role of the ECN.
The Commission’s draft decisions are discussed in the Advisory Committee, bringing together competition experts from the Member States, just like before Regulation
1/2003. The ECN has not changed anything in this regard. Individual cases dealt with by NCAs’ can be discussed in the Advisory Committee but without
any formal opinion being issued. The Advisory Committee could also serve as a forum for discussion on case allocation, in particular where the
Commission intends to initiate proceedings with the effect of relieving NCAs of their competence to apply Articles 81 and 82 of the Treaty in
a particular case. Furthermore, an Advisory Committees may also discuss general issues of Community competition law.
5. The sharing of work among the competition authorities within the ECN: How are cases allocated across the network?
Usually the competition authority that starts investigations after receiving a complaint or launching proceedings ex officio retains responsibility for the case. The issue of a possible re-allocation arises, for instance,
if a single practice affecting trade between Member States is subject to multiple procedures carried out at the same time by several Network members who would be interested to deal with the case. In these situations these authorities start discussions between them about a possible re-allocation
with a view to a quick and efficient sharing of work within the network. There must be a close connection between the infraction and the territory of a Member State, in order for the competition authority of that Member State to consider itself "well placed" to handle the case. The
Network Notice explains in more detail the conditions for being a "well placed" authority. If a case needs to be re-allocated to protect competition and the Community interest effectively, members of the Network strive to ensure that it is handed to one, well placed authority wherever possible.
The duty to inform the other network members either before or immediately after the first formal investigative measure, where acting under Article 81 or 82 EC, allows the detection of multiple proceedings (for instance parallel complaints) and allows an efficient and rapid re-allocation if appropriate.
6. What information is available to the public about discussions and information exchanges within the ECN? What happens to business secrets of companies?
The competition authorities cooperating within the ECN are under professional secrecy rules and cannot disclose outside the Network any information received pursuant to Regulation 1/2003, unless it is necessary to prove an infringement of Articles 81 and 82 EC. They must in particular protect the business
secrets and other confidential information of companies from being unduly disclosed to anyone outside the Network.
Nonetheless, the authorities cooperating within the ECN have started to select ECN-related information that would not fall under the professional secrecy rule and
could thus be communicated to the outside in order to increase transparency where possible. The first concrete result is the regular publication of aggregate figures of new investigations in the Network and of envisaged decisions of which the NCAs have informed the Commission pursuant to their
legal obligation. This information is available on the Commission / DG Competition Internet website.
7. Does cooperation in the ECN also involve the network "ECA" and national courts?
The "European Competition Authorities" ("ECA") is a grouping of the competition authorities in the European Economic Area (EU Member States and the European Commission, Norway, Iceland, Liechtenstein and the EFTA Surveillance Authority). The
ECN and the "ECA" exist in parallel. They have different origins and there are no formalised links between the two networks.
In order to avoid undue interference with the independence of the judiciary, a network such as the ECN could NOT be established with national courts. Many national judges, however, seek contacts with their peers in order to exchange experience and to establish some ‘best practices’ for the swift and coherent application of the EC competition rules. The Association of European Competition Law
Judges (AECLJ) is probably the best known network in that respect, but there are no links between the ECN and the AECLJ. Again, this is a matter of independence of the judiciary. To gather information of enforcement actions taken by national courts, the Commission has built a database
of national courts' judgements applying EC competition rules, and this is accessible on the DG Competition website.