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ECN MODEL LENIENCY PROGRAMME

Resumé

In a system of parallel competences between the European Commission (hereinafter the Commission) and National Competition Authorities (hereinafter NCAs), an application for leniency1 to one authority is not to be considered as an application for leniency to another authority. It is therefore in the interest of the applicant to apply for leniency to all Competition Authorities (hereinafter CAs) which have competence to apply Article 101 of the Treaty on the Functioning of the European Union (hereinafter TFEU) in the territory which is affected by the infringement and which may be considered well placed to act against the infringement in question. The purpose of the ECN Model Leniency Programme (hereinafter the ECN Model Programme) is to ensure that potential leniency applicants are not discouraged from applying as a result of the discrepancies between the existing leniency programmes within the ECN. The ECN Model Programme therefore sets out the treatment which an applicant can anticipate in any ECN jurisdiction once alignment of all programmes has taken place. In addition, the ECN Model Programme aims to alleviate the burden associated with multiple filings in cases for which the Commission is particularly well placed by introducing a model for a uniform summary application system. The ECN Model Programme sets out a framework for rewarding the cooperation of undertakings which are party to agreements and practices falling within its scope. The ECN members commit to using their best efforts, within the limits of their competence, to align their respective programmes with the ECN Model Programme. The ECN Model Programme does not prevent a CA from adopting a more favourable approach towards applicants within its programme.

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UNILATERAL CONDUCT WORKBOOK CHAPTER 1: THE OBJECTIVES AND PRINCIPLES OF UNILATERAL CONDUCT LAWS

Resumé

This introductory Chapter of the Unilateral Conduct Workbook aims to provide a foundation to the following Chapters that deal with specific types of unilateral conduct. By describing the objectives and principles underlying unilateral conduct laws, the Chapter attempts to increase awareness and understanding among competition law enforcers of the rationale for their intervention.

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Best Practices on Cooperation between EU National Competition Authorities in Merger Review

Resumé

The national competition authorities of the EU who have responsibility for merger review (“NCAs”) operate in compliance with different national legal systems. They believe, however, that it is desirable to cooperate in the review of some mergers which meet the requirements for notification or investigation in more than one Member State (“multi-jurisdictional mergers”), and have therefore decided jointly to publish an agreed set of Best Practices on Co-operation in Merger Review. This document, which has been drawn up by the EU Merger Working Group, sets out the Best Practices which the NCAs, to the extent consistent with their respective laws and enforcement priorities, aim to follow when they review the same merger transaction. It also sets out the steps that merging parties and third parties are encouraged to take in order to facilitate cooperation between NCAs. Cooperation extending beyond the existing ECA Notice system is limited to NCAs who are reviewing the same merger transaction (“the NCAs concerned”). It is not intended that cooperation should provide a forum whereby NCAs not concerned will be involved in the review of a specific case. This document is intended to provide a non-binding reference for cooperation between NCAs. NCAs reserve their full discretion in the implementation of these Best Practices and nothing in this document is intended to create new rights or obligations which may fetter that discretion.

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ICN Investigative Techniques Handbook for Merger Review

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This Handbook is one step in that path. It is the result of a three-year effort by the members of the Investigative Techniques Subgroup of the Merger Working Group (see Annex 1 for a list of Subgroup members). The chapters appearing in this Handbook are updated versions of articles published on the ICN website in 2004. The materials were composed, compiled and reviewed by all of the subgroup members, and the Handbook represents the collective experience of the group with investigative tools and techniques used in merger review. The legal and economic importance of effective merger review via the use of suitable investigation techniques cannot be overemphasized. From a legal perspective, our basic duty in the merger process is to investigate proposed mergers and acquisitions to determine – empirically not theoretically – whether they may substantially harm competition. The ability to determine whether a merger likely will create or enhance market power is dependent upon the use of appropriate investigative tools. The importance of having appropriate tools to obtain information relevant to the review of proposed transactions is recognized by the ICN in its Recommended Practice on Competition Agency Powers, proposed for adoption in Bonn, which advocates that “Competition Agencies should be provided with appropriate investigative tools and mechanisms by which the agency can compel merging and third parties to produce relevant information, for example, by providing the competition agency with the ability to seek effective sanctions for non-compliance with formal requests for documents, testimony and other information.” From an economic standpoint, mergers have an immediate effect on the structure of the market, and prohibiting potentially damaging mergers is an effective way to prevent the creation of market power. On the other hand, the cost to the merging firms, consumers and other market participants of a wrong decision can be substantial. The use of appropriate investigation techniques to evaluate the competitive concerns a merger can raise – using the right tools for the job – is crucial to reach the “correct” decision as quickly and efficiently as possible. In addition, common knowledge of the techniques used by the agencies can increase certainty in the market, as firms know what to expect when submitting a merger request. The objectives of this Handbook are to inform ICN members of the various tools and techniques used in merger review as well as to help members organize and use their

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Principles on the application, by National Competition Authorities within the ECA, of Articles 4 (5) and 22 of the EC Merger Regulation

Resumé

These Principles were agreed on by the National Competition Authorities (NCAs) within the European Competition Authorities Association (“ECA”) in 2005 and relate to Articles 4(5) and 22 EC Merger Regulation ("ECMR") as set out in Council Regulation (EC) No 139/04 of 20 January 2004 on the control of concentrations between undertakings. They replace the version of 2002 and may be reviewed by the NCAs from time to time to reflect legislative developments (European or national) or decisional practice. The Principles should be read in conjunction with and as complementary to the EU Commission's Notice on Case Referrals in respect of concentrations (the EU Commission Notice) and the relevant parts of Commission Regulation (EC) No. 802/2004 implementing the ECMR including its annexes (Form CO, Short Form CO and Form RS).

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