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International arbitration report
In this edition, we focused on the Shanghai International Economic and Trade Arbitration Commission’s (SHIAC) new arbitration rules, which take effect January 1, 2024.
Regulation 1/2003 2.0: What to expect for a revised procedural antitrust framework under a new European Commission?
Global | Publication | November 2024
The European Commission (EC) is contemplating a revision of the procedural framework for antitrust investigations that is laid down in Regulation 1/20031 and Regulation 773/20042 (together, the “Regulations”). After collecting evidence from stakeholders, the EC published, as the final step in the evaluation, its Commission Staff Working Document on 5 September 2024.3 The overriding theme of the EC’s evaluation is to assess whether the Regulations, having come into force 20 years ago, are coherent with the digital age as well the objective to achieve a stronger single market.
We anticipate the following changes under the new EC mandate, expected to commence in December 2024:
Better, faster, stronger?
The EC is likely to propose measures to tackle one of the most heavily criticized characteristics of antitrust proceedings – the length of investigations. Based on the aspects discussed in the Commission Staff Working Document, the most probable changes will involve streamlining the complaints process, the access to file process, the request for information process and the interim measures procedure.
The DMA as inspiration for Regulation 1/2003?
The introduction of the Digital Markets Act4 (DMA) enhanced the procedural powers of the EC in ways that, in some instances, go beyond the EC’s powers under Regulation 1/2003. By way of example, the EC’s power to take statements under Article 19 of Regulation 1/2003 lags behind the EC’s power to carry out interviews and take statements under Article 22 of the DMA. Here, the main difference is that Regulation 1/2003 does not give the EC the possibility to impose financial penalties in connection with a company’s failure to provide the explanations requested in voluntary interviews, whereas the DMA does foresee this ability by virtue of Article 30(3) lit. f of the DMA. Another example is the EC’s power under Article 26(1) of the DMA to issue data retention orders alongside requests for information, whereas there is no such (preventive) possibility under Article 18 of Regulation 1/2003.5
Comeback of interim measures?
Another tool likely to be up for a remodel will be the interim measures procedure under Article 8 of Regulation 1/2003. So far, the EC only employed that tool under Regulation 1/2003 once in the Broadcom6case, which was ultimately resolved via a commitment decision.7 While it is unlikely that the EC will substantially lower the legal threshold for intervention, the procedure to issue interim measures – which currently does not differ much from a non-interim antitrust investigation under Article 7 of Regulation 1/2003 – will potentially be subject to a streamlining process (e.g., largely by waiving a written procedure and limiting the right to be heard for the company under investigation).
Next steps
There is currently no clear timeline as to when the EC will a present a new proposal for revised Regulations. This is largely due to the ongoing procedure for appointment of the new EC, led by the EC’s President-elect Ursula von der Leyen. The Executive Vice-President and Commissioner-designate for the Clean, Just and Competitive Transition, Teresa Ribera, indicated in her confirmation hearing before the European Parliament that improving the speediness of enforcement and simplifying competition rules will be among her priorities.8 If appointed, it remains to be seen how quickly Ribera will be able to realise her (many) priorities.
Footnotes
1
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. 1–25 (“Regulation 1/2003”).
2
Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p. 18–24 (“Regulation 773/2004”).
3
EC, 05.09.2024, Commission Staff Working Document, Evaluation of Regulations 1/2003 and 773/2004, SWD(2024) 216 final, available here: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13431-EU-antitrust-procedural-rules-evaluation_en.
4
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act), OJ L 265, 12.10.2022, p. 1–66.
5
This was also indicated publicly by EC officials, see: https://ionanalytics.com/insights/mergermarket/ec-could-see-use-of-document-retention-orders-in-antitrust-cases/.
6
Commission, Case AT.40608 – Broadcom. See e.g. the EC’s press release of 7.10.2020: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1852.
7
See also our discussion with Prof. Whish discussing the case: https://www.nortonrosefulbright.com/en-vn/knowledge/video/1d78cc56/the-broadcom-case-eu-antitrust-commitments-and-interim-measures.
8
Hearing of Executive Vice-President-designate Teresa Ribera Rodríguez, 12.11.2024, p. 2, available here: https://www.europarl.europa.eu/pdfs/news/expert/2024/11/press_release/20241029IPR25053/20241029IPR25053_en.pdf
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