New commission notice on informal guidance concerning articles 101 and 102 TFEU

On 4 October 2022, the European Commission adopted a new Notice on informal guidance relating to novel or unresolved questions concerning Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) that arise in individual cases (the “Notice”).

Regulation 1/2003, of 16 December 2002, replaced the former notification system under Council Regulation No 17 of 6 February 1962 with the self-assessment of agreements and practices of undertakings. This change in the enforcement of articles 101 and 102 TFEU sought to increase efficiency while allowing the Commission to reassess its enforcement priorities.

Under the current self-assessment system, agreements that fulfil the conditions of article 101(3) TFEU are valid and fully enforceable without a prior decision by a competition authority.

To ensure legal certainty for undertakings’ self-assessment, since 2003 the European Commission has adopted several notices aimed at providing general guidance to economic operators (Guidelines on horizontal cooperation agreements, Guidelines on vertical restraints, Guidance on the application of article 102 TFEU). Undertakings can also take into account the Commission’s decision-making practice.

Furthermore, where the existing guidelines and CJEU case law are not sufficient and “cases (…) give rise to genuine uncertainty because they present novel or unresolved questions for the application of articles 101 or 102 TFEU,” undertakings may consult the Commission on the compatibility of an agreement with competition law.

To this end, in 2004 the Commission adopted its Notice on informal guidance relating to novel questions concerning articles 81 and 82 of the EC Treaty [now articles 101 and 102 TFEU] that arise in individual cases. The Commission could thus issue guidance letters in response to specific consultations on the interpretation and application of articles 101 and 102 TFEU. The Notice specified the content and legal effects of such guidance.

After almost 20 years since the publication of this first Notice, the Commission has considered it necessary to update and extend it with new guidelines.

Requests and admissibility criteria

Requests for guidance do not entitle applicants to receive any such guidance: the Commission has full discretion to consider whether it is appropriate to process them based on its enforcement priorities.

The Commission will consider the following two cumulative requirements:

• First, the relevant agreement or unilateral practice must pose a question of interpretation of articles 101 and 102 TFEU unresolved by CJEU case law, existing guidelines or previous guidance letters.

• Second, public clarification through a guidance letter must provide added value in terms of legal certainty, taking into account one or more of the following elements: the actual or potential economic importance of the goods or services concerned by the agreement or unilateral practice, in particular taking into account the consumers’ interests; the magnitude of the investments made or to be made by the undertakings concerned; the extent to which the agreement or practice corresponds to more widely spread usage in the Union; and, as a novelty, whether the objectives of the agreement or unilateral practice are relevant for the achievement of the Commission’s priorities or Union interest.

On the other hand, the Commission is clear that it will not consider requests for guidance which involve questions identical or similar to those raised in cases pending before the CJEU or the Commission itself. Nor will it respond to hypothetical questions or, in particular, to consultations on agreements or unilateral practices that are no longer implemented by the parties. However, requests will be considered admissible in respect of planned agreements or practices at an advanced stage, even if not yet implemented.

Processing of the requests

Requests may be submitted by post or email.

The new Notice is more comprehensive than the previous one regarding the applicants’ information and preliminary assessment. In particular, requests must include, in addition to the identity of the undertakings concerned:

• the specific questions on which informal guidance is sought;

• full and exhaustive information on all points relevant for an informed evaluation of the questions raised;

• the applicants’ own preliminary assessment (i) as to why the request presents novel or unresolved questions; and (ii) as to why a public clarification would provide added value with respect to legal certainty;

• the applicants’ own preliminary assessment, to the best of their abilities, of the application of articles 101 or 102 TFEU to the novel or unresolved questions.

If the Commission refuses to issue a guidance letter, it will inform the applicants accordingly. Applicants may withdraw their requests at any time, declining in such cases to receive guidance. However, any information supplied in the context of a request for informal guidance will remain available to the Commission and may be used to launch subsequent procedures.

Content of the guidance

The content of the guidance letters is essentially the same as under the previous Notice.

Guidance letters issued by the Commission set out: (i) a summary description of the facts on which they are based; and (ii) the principal legal reasoning underlying the understanding of the Commission on the application of articles 101 or 102 TFEU to the questions raised.

The Commission is not required to respond to all the questions raised and may limit its assessment to part of them. It may also decide to address additional issues to those set out in the request.

The Commission may also establish a time limit for the application of its guidance letters or specify that they are premised on the existence or absence of certain factual circumstances.

Legal effects of informal guidance

The main purpose of guidance letters is to help undertakings make a sufficiently informed assessment of their agreements and unilateral practices. In that respect, applicants remain responsible to carry out their own self-assessment of the applicability of articles 101 and 102 TFEU based on their content.

Being informal instruments, guidance letters do not create any rights or obligations for applicants or third parties, nor do they prejudge the assessment of the same question by the CJEU or by Member States’ courts and competition authorities.

Finally, the issuance of a guidance letter on an agreement will not prevent it from being subject to infringement proceedings by the Commission. In that case, however, the Commission will take the previous guidance letter into account, so that in principle it will not impose any fines with respect to actions taken by the applicants relying in good faith on such guidance. The Commission expressly reserves the right to modify or revoke a guidance letter where the public interest so requires.