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This chapter details how Regulation 1/2003 equipped the European Commission with the power to take statements from natural or legal persons. It enables the Commission to interview any persons who may be in possession of useful information for an investigation, record the statements made, and use them as evidence. Giving an interview is a voluntary act. The Commission cannot compel a person to do so, nor can it fine the person for having provided incomplete or misleading information. This makes the power to take statements a much softer investigative tool than requests for information or inspections that come with the possibility to impose fines and periodic penalties. While this is a downside, the voluntary nature of giving an interview has certain advantages. It allows for a spontaneous discussion that may enable the Commission to collect valuable information that could not have been collected otherwise. Moreover, the power to take statements allows the Commission to reach out to informants who do not carry out an economic activity and thus do not qualify as undertaking in the meaning of Articles 101 and 102 TFEU. The chapter then considers the procedure for conducting an interview.

This chapter explores the grounds for, and the process of, rejecting complaints, and outlines complainants’ rights. Complaints are crucial for effective antitrust enforcement. They are a tool to trigger cases and help the European Commission to focus on markets and practices that matter to EU citizens. The Commission therefore encourages the submission of complaints. At the same time, the Commission, as any administrative body, has limited resources. To this effect, the EU Courts have on many occasions acknowledged the Commission’s discretion to give differing degrees of priority to the examination of complaints and to choose the criteria for rejecting complaints. The EU competition rules take into account the fact that complaints are better dealt with by the competition authority which is closer to the facts. Moreover, once an allegedly anticompetitive practice is being reviewed or has been already reviewed by a competition authority, Article 13 of Regulation 1/2003 provides that other competition authorities can rely on this review to reject the same allegations if brought to their attention. The approach to complaints also takes into account that Articles 101 and 102 TFEU are directly applicable and that persons affected by allegedly anticompetitive practices may seek redress before national courts.

This chapter looks at the procedural steps from formal initiation of proceedings to the adoption of a prohibition decision—with possible fines and remedies—and indicates the circumstances in which a decision to close a case will be adopted. If the European Commission decides to pursue a case, it will initiate proceedings with a formal decision. The decision for initiating proceedings is addressed to the legal entities comprising the undertakings suspected of an antitrust infringement. After the initiation of proceeding, the Commission will adopt a statement of objections (SO). The SO sets out the Commission’s preliminary view as to why the undertakings’ market behaviour may constitute an infringement of Article 101 and/or Article 102 TFEU. Once the SO is sent, the parties are given access to the file and can exercise their right to reply to the SO in writing. If the objections are maintained after the parties have replied to the SO and/or have been orally heard, the Commission will proceed by adopting a prohibition decision pursuant to Article 7 of Regulation 1/2003.

This introductory chapter provides an overview of the procedure governing the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) or the ‘antitrust rules’. The EU antitrust procedural rules are the tools that enable enforcement of the EU substantive antitrust rules. At top of the hierarchy of rules governing EU antitrust enforcement are the procedural rules set out in the Treaty on European Union (TEU) and TFEU. Article 103 TFEU defines the type of legal acts that the EU institutions should adopt in order to give effect of the principles set out in the substantive provisions. Article 104 TFEU defines the duties of the Member State until such regulations are adopted, while Article 105 TFEU defines the scope of the power of the European Commission in the area of antitrust. Other general principles of law, such as proportionality and legal certainty, also form an integral part of EU antitrust procedural law.

This book offers an original interpretation of the case law on exclusionary abuses under Article 82 EC (now Article 102 TFEU, according to the numbering introduced by the Treaty of Lisbon), and it identifies the various factors that have shaped the application of this provision through its history. The book provides an in-depth analysis of the European Commission's Guidance on enforcement priorities under Article 82 and it makes a provocative proposal for further modernisation of the analysis of exclusionary abuses by recasting the prohibition of abuse of dominance as a norm which deals only with unilateral conduct. The first part of the book reconsiders fundamental legal and economic concepts underpinning the assessment of exclusionary abuses and identifies the difficulties posed by the principal forms of abusive practices (refusals to deal, predatory pricing, rebates and tying). The EU case law is compared with the US experience under Section 2 of the Sherman Act. The second part of the book explores solutions, based on the premise that the reform of Article 82 (now Article 102 TFEU) should be in line with the modernisation of Article 81 (now Article 101 TFEU) and the EU merger control rules. The last chapter demonstrates the gradual convergence of the application of Articles 81 and 82 in the area of vertical restraints. It points towards a redefined division of labour between these two provisions with a view to ensuring efficient enforcement, better protection of consumer interests, and clearer incentives for dominant firms to invest in desirable commercial practices. The book will be of interest to students and practitioners of EU competition law, and to those in other jurisdictions where the application of competition law to practices of dominant firms is controversial. Published version of EUI PhD thesis, 2008

Defence date: 04 July 2008 Examining Board: Mr. Giorgio MONTI, London School of Economics Professor Ernst-Ulrich PETERSMANN, EUI (supervisor) Professor Heike SCHWEITZER, EUI Professor Richard WHISH, School of Law, King’s College London PDF of thesis uploaded from the Library digital archive of EUI PhD theses The present thesis explores the application of Article 82 to exclusionary abuses throughout the history of the Community Courts’ jurisprudence with the purpose of identifying the evolution and the outstanding problems in the case law. Armed with this knowledge the thesis then considers options for reforming the current application of Article 82 to exclusionary abuses so that the interpretation of the provision accommodates modern economic theories and that it applies in the interest of consumers. The thesis seeks to answer the question of whether a 'soft' reform can attain these objectives, or whether there is instead a need for a more revolutionary approach.