The EC Competition Law (Articles 84 and 85)Enforcement Regulations 2001

Proposed infringement and conditional exemption decisions

10.—(1) If the Director proposes to make a decision that the prohibition in Article 81(1) or the prohibition in Article 82 has been infringed he shall give written notice:

(a) where an application has been made, to the applicant and, subject to rules 17 and 18 below, to those persons whom the applicant has identified in the application as being the other parties to the agreement, or the other persons, if any, who are engaged in the conduct, as the case may be, which the Director considers has led to the infringement; and

(b) where no application has been made, subject to rules 17 and 18 below, to each person who the Director considers is a party to the agreement, or is engaged in the conduct, as the case may be, which the Director considers has led to the infringement.

(2) If the Director proposes to grant an exemption subject to conditions or obligations, he shall give written notice to the applicant and, subject to rules 17 and 18 below, to those persons whom the applicant has identified in the application as being the other parties to the agreement to which the application relates.

(3) A written notice given under paragraph (1) or (2) above shall state the facts on which the Director relies, the matters to which he has taken objection, the action he proposes and his reasons for it.

(4) A written notice given under paragraph (1) or (2) above shall specify a period within which each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, may indicate to the Director any part of the information contained in the notice which he considers the Director would find to be confidential, in the sense given to that word by sub-paragraph (1)(c) of rule 21 below.

(5) Subject to paragraph (6) below, the Director shall give each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, a reasonable opportunity to inspect the documents in the Director’s file relating to the proposed decision.

(6) The Director may withhold any document:

(a) to the extent that it contains information which a person has stated to the Director to be, and which the Director has found to be, confidential, in the sense given to that word by sub-paragraph (1)(c) of rule 21 below;

(b) which is, in the opinion of the Director, otherwise confidential; or

(c) which is internal, in the sense given to that word by sub-paragraph (1)(e) of rule 21 below.

(7) Subject to rules 17 and 18 below, the Director shall give each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, written notice of the period within which that person may make written representations to him on the information referred to in paragraph (3) above.

(8) The Director shall give each person referred to in sub-paragraph (1)(a) or (b) or paragraph (2) above, whichever is applicable, a reasonable opportunity to make oral representations to him on the information referred to in paragraph (3) above.