EC Regulation 1/2003: views on its functioning

The first four years of experience with the new rules allow a preliminary assessment of the new system. ICC thanks the European Commission, which is going to prepare a report on the functioning of Regulation 1/2003, for the opportunity to provide its views. By virtue of its cross-sectoral and international membership, ICC has a privileged viewpoint on the experience of these four years across the various Member States.

ICC wishes to highlight the following possible improvements:

• the review of the rule on the burden of proof contained in Article 2 of Regulation 1/2003;
• extending the subjective scope of application of legal professional privilege, in order to also include, under clear conditions, in-house lawyers;
• the harmonization of procedural rules concerning investigations;
• the review of Article 3(2) of Regulation 1/2003 to promote convergence of national rules on unilateral conduct which have as their aim the protection of competition;
• a more active role of the Commission in the interplay with NCAs, including a more frequent use of its powers to “claw back” a case even after a NCA’s opening of proceedings;
• the review of the Notice on cooperation within the ECN to allow undertakings to submit their arguments to the Commission explaining why they deem that a case should be dealt with at Community level;
• the review of the Notice on informal guidance, aimed at relaxing the requirements under which the Commission is available to issue guidance letters.
• the appointment of a senior independent official who has not been involved in the investigation, to review the evidence, to hear the case team and the undertakings concerned, and to determine whether there is sufficient evidence to support a possible finding of infringement.
• in setting the amount of fines, the Commission should clearly distinguish between intentional infringements and infringements resulting from mere negligence, while the existence of serious and comprehensive compliance programs should be considered as a mitigating factor.