Skip to main content
Competition Policy

Update of the Informal Guidance Notice

Policy field

Competition: Antitrust

 

Target group

All citizens and organisations are welcome to contribute to this consultation.

Nevertheless, given its more specific nature, this consultation is more suitable for stakeholders involved in conducting their business within the internal market, and in particular, undertakings that asked or considered asking for informal guidance on antitrust issues from the Commission.

Contributions are also sought from public authorities of EU Member States (in particular competition authorities), consultancy and law firms.

 

Period of consultation

From 24.05.2022 to 21.06.2022

 

Objective of the consultation

Regulation 1/2003 (Council Regulation (EC) No 1/2003 of 16 December 2022, OJ L 1, 4.1.2003, p. 1) set up an enforcement system for Articles 101 and 102 of the Treaty on the Functioning of the European Union. The system is based on self-assessment as businesses are generally well placed to assess the legality of their actions. They are closer to the facts and have at their disposal the framework for assessment in the form of block exemption regulations, the Commission’s case practice, guidelines and notices and the case law of the EU Courts.

Pursuant to Recital 38 of Regulation 1/2003, the Commission adopted at the same time as Regulation 1/2003 a Notice on Informal Guidance (Commission Notice on informal guidance relating to novel questions, OJ C 101, 27.4.2004, p. 78). The purpose of the Notice was to specify the circumstances in which the Commission would consider issuing informal guidance to individual businesses in cases where they were genuinely uncertain about the application of antitrust rules.

In order to ensure that the notification system under Regulation 17/62 (repealed by Regulation 1/2003) would not in effect be reintroduced, the Notice on Informal Guidance adopted criteria narrowly interpreting the circumstances in which the Commission could provide informal guidance pursuant to Recital 38 of Regulation 1/2003. Such a very strict approach is no longer justified as the system based on the principle of self-assessment by businesses has been tried and tested, and become generally accepted by stakeholders. The desirability of a system allowing the Commission to provide informal guidance to individual businesses in case of genuine uncertainty has also been confirmed in the context of both the evaluation of the Horizontal Block Exemption Regulation (Evaluation Staff Working Document of 6 May 2021, p. 42 and 118) and the consultation on competition policy and sustainability (Competition Policy Brief 2021-01 of September 2021, p. 3).

The purpose of this initiative is therefore to update the criteria in the current Notice to enable the Commission to provide informal guidance to businesses in line with recital 38 of Regulation 1/2003, in cases in which they are genuinely uncertain about the application of antitrust rules. This will enable the Commission to use this tool more flexibly to the benefit of businesses and to increase legal certainty.

The objective of this consultation is to obtain views from stakeholders on the initiative and the envisaged amendments to the text of the Notice. In parallel to asking for feedback on the revised text, the Commission has also published a Call for evidence concerning this initiative (see here).

 

How to submit your contribution

You can contribute to this consultation by submitting your feedback on the draft revised text of the Notice (see under “Consultation document”) to:
COMP-INFORMAL-GUIDANCE-NOTICE@ec.europa.eu

You can also submit your feedback on the Call for evidence, which can be consulted by clicking here.

We would appreciate receiving documents in an electronic format.

Please note that we cannot guarantee to take account of replies received after the deadline.

 

Consultation document  / Questionnaire

Draft revised text of the Commission Notice on informal guidance (all EU languages)

 

Reference documents and other, related consultations

  • Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters), OJ C 101, 27.4.2004, p. 78
  • Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1

 

Contact details

Responsible service:
Directorate-General for Competition – Unit A.1: Antitrust Case Support and Policy
Please always indicate the reference number in your correspondence: HT.6309 Review of Informal Guidance Notice

e-mail: COMP-INFORMAL-GUIDANCE-NOTICE@ec.europa.eu

Postal address:
European Commission
Directorate-General for Competition
1049 Brussels
Belgium

 

View the contributions

In the interests of transparency, organisations have been invited to provide the public with relevant information about themselves by registering in the Transparency Register and subscribing to its Code of Conduct. If the organisation is not registered, the submission is published separately from the registered organisations.

 

Results of consultation and next steps

A summary report of the comments to both the draft text of the Notice and the Call for evidence will be published once the consultation is concluded, along with the contributions to the public consultation.