21 June, 2022

ETNO response to the public consultation on the Informal Guidance Notice for businesses – anti-competitive agreements and abuse of a dominant market position

ETNO welcomes the update of the Commission Notice on informal guidance and appreciates the intent of the revision.

Indeed, ad hoc guidance letters, that are also publicly accessible, are a very important complement to the other existing competition tools. In particular, wider and more flexible criteria for providing individual businesses with guidance letters could significantly improve legal certainty. Therefore, a review that will enable companies and the Commission to use this tool more often and in a more flexible way would benefit the businesses, but also the market (and, in the end, the consumers too).

In this sense, ETNO is pleased that the explicit purpose of the review is to change the current criteria that narrowly interpreted the circumstances in which the Commission could provide informal guidance pursuant to Recital 38 of Regulation 1/2003, and that the Commission has affirmed that “such a very strict approach is no longer justified”.

Therefore, we welcome that the draft of the Notice has explicitly extended – also in the title itself – the scope of application of the Notice, which is now more in line with recital 38 of Regulation 1/2003; enabling the Commission to provide informal guidance to businesses in cases of «unresolved» questions, and not only in the case of new questions (as per the current Notice).

This way, the Notice would cover cases in which businesses are genuinely uncertain about the application of antitrust rules. Thus, the main positive achievement in the draft is that cases where there is no «sufficient clarity» (instead of «no clarification») in the existing Union legal\ framework, nor «sufficient» (the term “sufficient” has been added in the draft) publicly available general guidance at Union level in decision-making practice or previous guidance letters could now fall within the scope of the Note (par. 7(a) of the draft Notice).

However, in our vision, the relevant purposes and objectives mentioned above cannot be better achieved without some revisions of the draft, as suggested in the next two paragraphs of this paper. These revisions are necessary to ensure that the objective of making guidance more accessible to applicants, and thereby to obtain sufficient legal certainty, can be met without imposing further burdensome obligations on companies. Without these changes, applicants may be dissuaded from seeking guidance and no progress in use of the tool would be achieved.

Read the whole document at the link below. For questions and clarifications regarding this paper, please contact Maarit Palovirta, Senior Director of Regulatory Affairs (palovirta@etno.eu).


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