1
ECN Working Group on Cooperation Issues
Results of the questionnaire on the reform of Member States (MS) national
competition laws after EC Regulation No. 1/2003
(as of April 14, 2008)
"DISCLAIMER:
The present table is based on information provided on a voluntary basis by the ECN
National Competition Authorities (hereinafter, NCAs) and reflects their replies to a
questionnaire.
For the purpose of this table, the term "convergence" should be construed as referring to a
voluntary process of approximation of national antitrust legislation to EC Regulation No
1/2003 (hereinafter, Reg. 1/2003), and does not imply that such approximation is mandatory
in respect of all the provisions of the Regulation referred to in the table.
The table is not meant to express or reflect any view as to the compliance of national
antitrust legislation with certain mandatory provisions of the Reg. 1/2003 and, more
generally, may not be regarded as reflecting or stating an official position of the European
Commission or any NCA.
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Answers received from all the 27 Member States: AUSTRIA AT, BELGIUM BE, BULGARIA
BG, CYPRUS CY, CZECH REP. CZ, DENMARK DK, ESTONIA EE, FINLAND FI, FRANCE
FR, GERMANY DE, GREECE GR, HUNGARY HU, IRELAND IE, ITALY IT, LATVIA LV,
LITHUANIA LT, LUXEMBOURG LU, MALTA MT, NETHERLANDS NL, POLAND PL,
PORTUGAL PT, ROMANIA, RO, SLOVAK REP. SK, SLOVENIA SI, SPAIN ES, SWEDEN SE,
UNITED KINGDOM UK.
RESULTS OF QUESTIONNAIRE ON CONVERGENCE OF NATIONAL COMPETITION LAWS, BASED
ON THE ANSWERS RECEIVED FROM THE NCAS
MAJOR CHANGES
INTRODUCED BY EC
REG. 1/2003 OR
ORIGINATING FROM
EC PRACTICE
CORRESPONDING NATIONAL PROVISIONS
Fully convergent Partially
convergent
Amendments
proposed
(or still under
consideration)
No
Convergence
1) Abolition of
notification
system for
agreements and
introduction of a
legal exception
system (Art. 1)
ATAT1
, BEBE1
, CZ,
DEDE1
, EEEE1
, ESES1
,
FI, FR, HU, IE,
NLNL1
, LT, LU, MT,
PL, SE, SI, SK, UK
PT BGBG1
,CY,
RO
DKDK1
, GRGR1
,
ITIT1
, LV LV1
AT1
The positions indicated in this table for Austria take into account the new provisions published in the official journal on
July 5, 2005 (the Competition Act, BGBl I no. 62/2002 as amended by BGBl I no. 62/2005), and the Cartel Act (BGBl I no.
61/2005). The amendments of the Competition and the Cartel Act came into force on January 1, 2006.
BE1
The law of 10 June 2006 (published 29 June 2006), entered into force on Oct. 1, 2006, introduced a legal exception
system.
DE1
The positions indicated in this table for Germany take into account the new provisions of the Act against Restraints of
Competition, as amended on July 7, 2005 (BGBl. I S. 1954), entered into force with retroactive effect on July 1, 2005.
EE1
The amendments of the Competition Act came into force on July 1, 2006.
ES1
The positions indicated in this table for Spain take into account the provisions of the new Competition Law of July
3, 2007 no.15,
which came in force on September 1, 2007. It introduced a legal exception system.
NL1
The positions indicated in this table for the Netherlands take into account the recent amendments to the
competition law introduce by law no. 30071 entered into force on September 1, 2007.
BG1
Draft of new law on protection of competition.
DK1
According to the Danish Consolidated Competition Act no. 1027 of August 21, 2007, the notification system for non-art.
81 agreements has been upheld. However, this notification system is non-compulsory. If a notified agreement has an impact
on trade between member states the NCA can abstain from making a decision.
GR1
The positions indicated in this table for Greece take into account the provisions of the new law adopted on July 14, 2005
and amending law no.703/1977 "on the control of monopolies and oligopolies and the protection of competition".
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2) Parallel
application of
Community and
national antitrust
rules (Art. 3.2)
AT, BE, BG, CY, CZ,
DE, DK, EE, ES, FI,
FR, GR, HU, IE, LT,
LU, LV, MT, NL, PL,
PT, SE, SI, SK, UK
RO IT
IT1
The notification system for non-art. 81 agreements still exists in the framework of a "single-barrier" legal system.
LV1
If a notified agreement has an impact on trade between member states the NCA can abstain from making a decision.
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3) Power to impose
structural
remedies (Art. 7)
AT, BEBE2
, CZ, DE,
ESES2,
GR, IEIE1
, MT,
NL, SI, UK
FRFR1
, RORO1
,
SE
BG BG2,
CY DK, EE, FI, HU,
LT, LV LV2
, LU,
PL, PT, SK
4) Power to order
interim measures
(Art. 8)
AT, BE, CZ, DE, ES,
FI, FRFR2
, GR, HUHU1
,
IEIE2
, IT, LT, LV, MT,
NL, PL, PT, RO, SE,
SI, SK, UK
LU BGBG3
, CY DK, EE
5) Power to adopt
commitment
decisions (Art. 9)
AT, BEBE3
, CZ, DE,
DK, ESES3
, FI, FRFR3
,
GR, HU, IEIE3
, ITIT2
,
LT, LU, NL, PL, SE,
SI, SK, UK
LVLV3
BGBG4
, CY,
PT, RO
EE, MT
6) Power to seal
business premises,
books and records
(Art. 20)
BE, BG, CZ, DE, DK,
EEEE2
, ESES4
, FI,
FRFR4
, GR, HU, LV,
MT, NL, PT, RO, SE,
SK, UK
ITIT3
, PLPL1
CY, LT AT, IE, LU, SI
BE2
Article 53 § 1, WBEM.
ES2
The Competition Act no.15/2007 introduces the power to impose structural remedies.
IE1
The Irish Competition Authority is not a decision maker with reference to Arts. 81 and 82 EC or the corresponding
domestic rules (Sections 4 & 5 of the Competition Act 2002). However, all National Courts were declared Competition
Authorities for the purpose of Reg. 1/2003. As a result, while the actual Competition Authority does not have the power
to impose structural remedies under Art. 7, the National Courts do have this power when acting in their capacity as a
Competition Authority for the purpose of Reg. 1/2003.
FR1
NCA may propose to the Ministry of Economy structural remedies in case of abuse of dominance.
RO1
If the measures applied by the Competition Council to an undertaking abusing its dominant position do not remedy
the situation and prevent the abuse from repeating, the Competition Council, for the reason of serious damage to a
major public interest, may request the Bucharest Court of Appeals to order adequate measures to remove the dominant
position.
BG2
The draft of a new law on protection of competition envisages CPC's power to impose structural remedies.
LV2
On the basis of the amendments introduced in the Competition Law 2008, NCA will have the power to conclude
administrative agreement accepting structural remedies regarding infringement of national antitrust law.
FR2
Also upon complaint.
HU1
Also upon complaint.
IE2
The Competition Authority cannot make a decision regarding interim measures but the National Courts acting in
their capacity as Competition Authorities for the purpose of Reg. 1/2003 can order interim measures.
BG3
The draft of the new law on protection of competition envisages CPC's power to order interim measures.
BE3
The law of 10 June 2006, entered into force on Oct. 1, 2006 allows the adoption of commitment decisions.
ES3
Commitment decisions were allowed but only before the Statements of Objections. The new Competition Act
no.15/2007 allows its adoption also after the Statements of Objections.
FR3
Order no.2004-1173 of Nov. 4, 2004; Art. L.464-2-I of Code of Commercial Law.
IE3
The Competition Authority is not a decision maker with reference to Arts. 81 and 82 EC (or Sections 4 & 5 of the
Competition Act 2002) and cannot adopt commitment decisions. The National Courts, acting in their capacity as
Competition Authorities for the purposes of Reg. 1/2003, can adopt commitment decisions.
IT2
Law no.248 of August 4, 2006.
LV3
On the basis of the amendments introduced in the Competition Law 2008, NCA will have the power to conclude
administrative agreement accepting commitments regarding infringement of national antitrust law.
BG4
The draft of the new law on protection of competition envisages CPC's power to adopt commitment decisions.
EE2
Only in criminal and misdemeanor proceedings.
ES4
The Competition Act no.15/2007 foresees the power to seal.
FR4
Order no. 2004-1173 of Nov. 4, 2004; Art. L.450-4, alinea 1, of Code of Commercial Law.
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7) Power to inspect
non-business
premises (Art. 21)
AT, BE, CZ, EE EE3
,
ESES5
, FIFI1
, FR, GR,
HU, IE, LU, LV, MT,
NL, PL, RO, SE, SI,
SK, UK
DEDE2
CYCY1
, LT BG, DK, IT, PT
8) Fines on
associations of
undertakings
(Arts. 23.2 and
23.4)
BE BE4
, ESES6
, FI, HU,
LT, LV, NL
ATAT2
, DEDE3
,
DKDK2
, EEEE4
,
FRFR5
, GRGR2
,
IEIE4
, ITIT4
,
PLPL2
, PT,
RORO2
, SESE1
,
SISI1
, SK,
UKUK1
BGBG5
, CY,
CZ
LU
IT3
Through the assistance of Tax Police.
PL1
Time of sealing is limited to 7 days.
EE3
Only in criminal and misdemeanor proceedings.
ES5
Introduced by the Competition Act no.15/2007.
FI1
But only when assisting the EC Commission in the application art. 21, Reg 1/2003; not in investigations under the
national procedure.
DE2
Provisions of German law wider than Art. 21, Reg. 1/2003.
CY1
The current legislation provides for the power to inspect private premises (homes) upon obtaining a reasoned
judicial order for the application of the national legislation. With the adoption of the amended legislation the powers of
the CPC will be extended to the inspections of private premises, land and transport for the application of the
Community Law.
BE4
Introduced by the law of 10 June 2006 entered into force on Oct. 1, 2006.
ES6
New provision introduced by the Competition Act no.15/2007.
AT2
The Cartel Court can impose fines on associations of undertakings to the same extent as it can do on undertakings
upon request of the Federal Competition Authority or/and the Federal Cartel Prosecutor. Fines imposed on an
association of undertakings may not be enforced against its members.
DE3
Associations of undertakings can be fined, but responsibility does not automatically extend to the member
undertakings as is the case under Community law.
DK2
Associations of undertakings can be imposed criminal sanctions (only by national courts) in the form of fines but
there is no convergence to Arts. 23.2 and 23.4, Reg. 1/2003.
EE4
Associations of undertakings can be fined but there is no convergence with Art. 23.4, Reg. 1/2003.
FR5
Convergence to Art. 23.2, not to Art. 23.4, Reg. 1/2003.
GR2
Convergence to Art. 23.2, not to Art. 23.4, Reg. 1/2003
IE4
The National Courts acting as a competition authorities can impose fines for breach of Arts. 81 and 82 EC, but not
for contravening an order on interim measures, or failure to comply with commitments.
IT4
Associations of undertakings can be fined but there is no convergence with Art. 23.4, Reg. 1/2003.
PL2
Associations of undertakings can be fined but there is no convergence with Art. 23.4, Reg. 1/2003.
RO2
Associations of undertakings can be fined under the Romanian competition law, but the responsibility does not
extend to the member undertakings.
SE1
The association and individual undertakings which take active part in the infringement can be fined, but the method
is not convergent to Arts. 23.2 and 23.4, Reg. 1/2003.
SI1
Associations of undertakings can be fined but there is no convergence to Arts. 23.2 and 23.4, Reg. 1/2003.
UK1
Convergence to Art. 23.2, not to Art. 23.4, Reg. 1/2003.
BG5
The draft of the new law on protection of competition envisages the possibility to impose fines on associations of
undertakings.
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9) Informal guidance
(Recital 38)
AT, BGBG6
, BE, DK,
DE, IE, ESES7
, LV,
NL, PLPL3
, PT, RO,
SE, SI, UK
FIFI2
, IT, LT,
SK
CYCY1
CZCZ1
, EEEE5
,
FR, GR, HU,
LU, MT
BG6
No rules for informal guidance in the national competition law. However, in the practice, such guidance may be
given by the Competition Authority.
ES7
No rules for informal guidance in the national competition law. However, in the practice, such guidance (opinions
on interpretation of competition rules) is issued by the Spanish Competition Authority.
PL3
No rules for informal guidance in the national competition law. However, in the practice, such guidance (opinions
on interpretation of competition rules) is issued by Polish Competition Authority.
FI2
The NCA may issue guidelines.
CY1
The NCA has a general power to give opinions.
CZ1
The NCA provides undertakings with informal opinions in practice.
EE5
De facto, informal guidance are already given.
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10) Treatment of
individual
exemptions
granted before
May 1, 2004 (Art.
43.1)
BE, CZ, DK, EEEE6
,
FI, FRFR6
, GR, HU,
IE, LT, LV, MT, , PL,
PT, SE, SI, SK, UK
ATAT3
, DEDE5
,
NLNL4
ES BG, CYCY2
, IT,
RORO3
11) Investigations into
sectors of the
economy and into
types of
agreements (Art.
17)
BE, BG, CZCZ2
, DE,
DKDK4
, EE, ES, FI,
GR, IE, IT, LT, LV,
NL, PL, PT, SE, SI,
SKSK1
ATAT4
, FRFR7
,
HUHU2
, MT,
RORO4
, UKUK2
LU, CY
EE6
Exemptions granted before May 1, 2004 are valid until the date of expiration.
FR6
No exemption ever granted.
AT3
Exemptions granted before May 1, 2004 will be valid until December 31, 2006; in any case the exemptions shall not
be valid once expired the time period granted in the approval.
DE5
Exemptions granted before July 1, 2005 will be valid until December 31, 2007.
NL4
With a maximum duration of 5 years from August 1, 2004.
CY2
The new drafted legislation has not come into force and undertakings may still file for an application of individual
exemption up until the abolition of the notification system.
RO3
No specific provision on the treatment of the individual exemptions granted before accession date.
CZ2
No explicit provision in Czech law; sector inquiries carried out within general powers of the NCA.
DK4
The NCA may request any information (including accounts, records, other business records and electronic data)
which are considered necessary for its activities.
AT4
No explicit rule in Austrian law to carry out inquiries into a particular type of agreements across various sectors.
FR7
No specific provision in the French law, however DGCCRF regularly carries out sectors inquiries on the basis of its
general powers of investigation. The Competition Council, although non specifically provided, could do the same.
HU2
The NCA cannot use all the investigative powers available in normal investigations.
RO4
The Competition Council has no investigative powers as in normal investigation proceedings.
UK2
The Enterprise Act 2002 provides powers to carry out market studies and to refer markets to the Competition
Commission for investigation, which may result in competition problems being identified.
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12) Do you have (or intend
to have) specialised
national courts for dealing
with competition issues in
the context of civil
proceedings? If so, which
court(s)? Does that court
also deal with cases where
competition issues are only
ancillary?
AT (No), BEBE5
(Yes), BG (No), CY (No), CZ (No), DE (Yes) DE4
,
DKDK5
(Yes), EE (No), ES (Yes), FI (No), FRFR8
(Yes), GR (No), HU
(No), IE (No) IE4
, ITIT5
(No), LT (No), LU (No), LV (No), MT (No), NL
(No), PL (No), PT (No), RO (No)RO5
, SE (No), SI (No), SK SK1
, UK
(Yes) UK3
.
13) Does (or will) your
national law include
provisions to facilitate the
use of Art. 15.3, Reg.
(amicus curiae)?
ATAT5
, BE (No), BG (No), CYCY2
, CZCZ3
, DE (Yes), DKDK6
(Yes),
EEEE7
, ES (Yes), FIFI3
, GR (Yes), FR (Yes), IE (Yes), HU (Yes), IT(No),
LT (Yes), LVLV2
, MT (No), NL (Yes), PL (Yes), PT (No, amendments
under consideration), RORO6
(Yes), SE (Yes), SI (No, amendments under
consideration), SK (Yes), UK (Yes).
* * *
BE5
Commercial Courts; preliminary ruling system.
DE4
Regional Courts, Courts of Appeal; Federal Supreme Court.
DK5
A specialized court - the Copenhagen Maritime and Commercial Court - is dealing with civil proceedings when
competition issues are essential for a case.
FR8
Ordinance no.2004-1173 of Nov. 4, 2004, art. 1. The specialized courts have been designated by decree no. 2005-
1756 of Dec. 30, 2005. According to that decree, there are 8 courts of first instance competent to apply competition law
(8 civil and commercial courts), and one Court of Appeal (Paris' Court of Appeal).
IE4
However, special judges are appointed in each court, District, Circuit, High, to take the decisions in competition
matters.
IT5
Ongoing debate on this issue.
RO5
All competition cases are dealt with in first instance by the Bucharest Court of Appeal-Administrative Section;
however, the Court does not exclusively deal with competition cases.
SK1
Since Jan. 1st
, 2005, Regional court in Bratislava is dealing in first instance as the general court for competition
issues for the whole territory of the Slovak Republic, Highest court in Bratislava is the second instance body.
UK3
A specialised court - the Competition Appeal Tribunal (CAT) - is provided for only to hear private actions in cases
where there has been a prior decision of the European Commission or the OFT.
AT5
Present rules deemed sufficient.
CY2
No specific rules adopted; the Supreme Court will issue a Procedural Order.
CZ3
No specific provisions, but it is made possible by the Czech code of civil procedure.
DK6
No specific rule concerning the application of Art. 15.3 Reg. 1/2003, but no specific legal problem for its
application.
EE7
The NCA must be consulted by national civil courts in antitrust cases.
FI3
No special provisions on amicus curiae. Most 81/82 cases are dealt with by administrative courts where NCA is
usually party to the case or otherwise is always heard. In civil proceedings, courts usually ask statement of the NCA if
art 81/82 is to applied, although not obliged to do it. De facto no legal problems exist.
LV2
The NCA may be consulted by national civil courts in antitrust cases.
RO6
The Competition Council shall communicate its point of view on any competition issue, at the request of national
courts.