European Community Competition Procedure

By Luis Ortiz Blanco | Go to book overview

8

Infringement Decisions and Penalties. Rejection of Complaints

section I: GENERAL CONTENT OF INFRINGEMENT DECISIONS

(A)
Layout

The basic layout of decisions applying Articles 85 and 86 of the Treaty consists of (1) a title, (2) a preamble, (3) an account of the facts, (4) a legal assessment of the facts and (5) the articles of the decision, known as the operative part or simply the 'decision'.1

It should be borne in mind that the Commission may and must withdraw its objections against undertakings wholly or in part, amend or correct them, or supplement them, taking into account the action taken during the observations phase. Decisions are not, therefore, a copy of the statement of objections.2

It should also be remembered that the Commission is not required to refer in its decisions to all the documents on which it relied in adopting them. Although they must specify the evidence on which the Commission's opinion is based, decisions do not have to enumerate exhaustively every available item of evidence and may refer to evidence in general terms.3

As regards the reasoning on which its decisions are based, it is true that, under Article 190 of the Treaty, the Commission is required to give a statement of the reasons for its decisions, indicating the matters of fact and of law on which it relied in adopting them. But the Commission cannot be required to discuss each and every one of the points of fact and law invoked by each of the parties involved in the course of the administrative procedure.4

This chapter will focus on infringement decisions as such. Particular attention will be paid to the operative part, comparable to a judicial decision, although it takes the form of articles (as if it were a piece of legislation). The last part will deal principally with declaratory decisions, enforcement decisions (orders or notices), obligations, and fines, and periodic penalty payments imposed on

____________________
1
Infringement decisions make no reference to the right of undertakings to contest the decision before the European Court -- within a period of 2 months from the day following the date of notification, under Art. 173(4) of the Treaty. That formal requirement applies only to procedural decisions adopted under the Commission's investigative powers pursuant to Arts 11(5) (decisions to request information) and 14(3) (inspection decisions) of Reg. 17.
2
See above, Ch. 7.II.A.
3
See Case T-2/89 Petrofina v. Commission [ 1991] ECR II-1087, para. 39, and Case T-43/92 Dunlop v. Commission [ 1994] ECR II-441, para. 34.
4
See Case T-8/89 DSM v. Commission [ 1991] ECR II-1833 at para. 257, and Case T-2/93 Air France v. Commission II [ 1994] ECR II-323, para. 92.

-216-

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