European Community Competition Procedure

Where, after examination of the case and having regard -- where appropriate -- to the information obtained during the preliminary investigation on the basis of requests for information and inspections, the Commission considers that it is able to give a favourable decision on an application or notification or that there is clear evidence of an infringement of competition rules, it initiates the procedure for the formal adoption of a decision on the substance of the case. So far, reference has been made to processing of the case and to 'procedure' in the broad sense. Any procedural step or measure taken by the Commission with a view to applying Articles 85 and 86 of the Treaty in a particular case -- from the opening of the file until the adoption of a formal decision -- falls into that category. But the 'procedure' in the strict sense commences only after preliminary investigation of the case, once the Commission has decided to adopt a formal decision, whether favourable to the undertaking or otherwise.

The formal initiation of the procedure for the adoption of a decision itself takes the form of a sui generis Commission decision. In this case it is a purely internal administrative decision which, as a general rule, is adopted immediately before a statement of objections is served in infringement procedures or, in the case of negative clearances or exemptions, publication of the notice provided for by Article 19(3) of Regulation 17.² Decisions to initiate the procedure are not ones against which an action may be brought under Article 173 of the Treaty. The Court has defined them as 'procedural measures adopted preparatory to the decision which represents their culmination'.³

The Commission may also decide to initiate the procedure for the adoption of a decision prior to the statement of objections or publication referred to above, quite independently. In such cases, the Commission is not required immediately to inform undertakings suspected of being implicated in the infringement or which have submitted an application or notification.

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