¹ Reg 1/2003 OJ 2003 L1/1.

² (2000) 49 ICLQ 232–4Google Scholar; (2004) 53 ICLQ 465–6.Google Scholar

³ Regulation 1/2003, Art 11(6).

⁴ Art 16(2).

⁵ Art 16(1).

⁶ ibid. This is codification of a principle recognized by the Court of Justice in Case C-344/98 Masterfoods v HB Ice Cream [2000] ECR I-11369.Google Scholar

⁷ Art 11(1).

⁸ Art 11(2). This is a substantial change from previously, for it jeopardizes the confidentiality purported to be protected (Art 28) but was better protected under Reg 17—eg the disappearance of the bar to using information provided the Commission to make out an infringement of national competition law.

⁹ Art 11(3).

¹⁰ Art 11(4).

¹¹ Commission Notice on cooperation within the Network of Competition Authorities, OJ 2004 C101/43; buttressed by Notice on the handling of complaints by the Commission under Arts 81 and 82 of the EC Treaty, OJ 2004 C101/65.

¹² Reg 1/2003, Art 13.

¹³ Council of the EU, Doc 15432/02 Add 1, 10 12 2002. The ECN thus has no formal basis and creates neither rights nor obligations.Google Scholar

¹⁴ For banking, securities, insurance, food, pharmaceuticals, professional services, healthcare, environment, energy, railways, motor vehicles, telecoms, and media.

¹⁵ See below.

¹⁶ Reg 1/2003, Art 15(3). This derives from German practice, in which the Bundeskartellamt appears frequently, and to persuasive effect, before national courts in cases in which the Gesetz gegen Wettbewerbsbeshränkungen (GWB) is in issue; § 90 II GWB.

¹⁷ Art 15(2).

¹⁸ Art 15(1).

¹⁹ Notice on informal guidance relating to novel questions concerning Arts 81 and 82 of the EC Treaty that arise in individual cases (guidance letters), OJ 2004 C101/78.

²⁰ Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Arts 81 and 82 EC, OJ 2004 C101/54.

²¹ These and subsequent data taken from the annual Report on Competition Policy and the DG Competition website.

²² Reg 1/2003, Art 3(1).

²³ Loi sur la protection de la concurrence, Art 7.

²⁴ закон за защита иа конкуренцята, Arts 11–13.

²⁵ LBK nr 785 af 8 Aug 2005 om Konkurrenceloven, § 8(2).

²⁶ Ley 16/1989, Art 3, 4.Google Scholar This will change under proposed reform of the competition law; see Proyecto de Ley de Defensa de la Competencia, published 25 08 2006.Google Scholar

²⁷ Legge N° 287 of 10 Oct 1 1990, Art 4.

²⁸ Nóμος 207/89, Arts 4(3), 5.

²⁹ Konkurences likuma, Art 11(2).

³⁰ Legea concurentia nr. 21/1996, Art 5(3).

³¹ Reg 1/2003, Art 3(2).

³² Commission Notice on the non-imposition or reduction of fines in cartel cases, 1996 OJ 1996 C207/4.Google Scholar

³³ Case COMP/38.638 (Synthetic Rubber), decision of 29 Nov 2006, not yet published. The highest fine ever imposed was €855 million in a global vitamins cartel, by Decision 2003/2 (Vitamins) OJ 2003 L6/1.Google Scholar

³⁴ ECN Model Leniency Programme, 26 09 2006; unpublished.Google Scholar

³⁵ Commission Notice on immunity from fines and reduction of fines in cartel cases, OJ 2006 C298/17.Google Scholar The original 1996 notice was first amended in 2002; see OJ 2002 C45/3.Google Scholar

³⁶ paras 8–22.

³⁷ paras 23–30.

³⁸ paras 14–15.

³⁹ paras 31–5.

⁴⁰ For agriculture, Reg 26/62 JO 1962, 993Google Scholar; for transport Reg 17 was expressly excluded by Reg 141/62 JO 1962, 2751Google Scholar, the competition rules applied by Reg 1017/68 JO 1968 L175/1Google Scholar (rail, road, and inland waterways); Reg 4056/86 OJ 1986 L378/4 (maritime transport)Google Scholar; Reg 3975/87 OJ 1987 L374/1 (civil air transport).Google Scholar

⁴¹ Reg 141/62 repealed and Reg 1017/68 repealed in part by Reg 1/2003, Arts 43(2) and 36 respectively; Reg 3975/87 repealed by Reg 411/2004 OJ 2004 L68/1Google Scholar; Reg 4056/86 repealed by Reg 1419/2006 OJ 2006 L269/1.Google Scholar

⁴² Reg 411/2004 OJ 2004 L68/1.Google Scholar

⁴³ Reg 1419/2006 OJ 2006 L269/1.Google Scholar

⁴⁴ Reg 1184/2006 OJ 2006 L214/7.Google Scholar

⁴⁵ COM(2006) 722 final. The regulation is proposed to be adopted by the Parliament and the Council as it relies upon both Arts 71 and 83 of the Treaty as its legal base.

⁴⁶ Reg 1/2003, Art 2.

⁴⁷ See (n 41); Reg 4056/86 not only applied Arts 81 and 82 to maritime transport, it contained elements of block exemption which the Commission considered no longer justified. The block exemption for liner shipping consortia (Reg 823/2000 OJ 2000 L100/24) remains in force.Google Scholar

⁴⁸ Now Reg 772/2004 OJ 2004 L123/11.Google Scholar

⁴⁹ Reg 1459/2006 OJ 2006 L272/3.Google Scholar

⁵⁰ Case 22/71 Béguelin v GL Import Export [1971] ECR 949, para 29Google Scholar; Case 319/82 Société de Vente de Ciments et Bétons de l'Est v Kerpen & Kerpen [1983] ECR 4173, para 11.Google Scholar

⁵¹ Case 22/71 Béguelin, ibid para 29.

⁵² Case 319/82 Kerpen & Kerpen, para 12.

⁵³ Case C-453/99 Courage v Crehan [2001] ECR I-6297.Google Scholar

⁵⁴ ibid paras 26 and 27.

⁵⁵ This is because a contract which infringes Art 81 is in English law not only void but illegal, so barring recovery by a party to it either in reparation or in restitution; see Gibbs Mew v Gemmell [1998] EuLR 588 (CA).Google Scholar

⁵⁶ (n 53) para 28.

⁵⁷ Joined Cases C-299 to 298/04 Manfredi v Lloyd Adriatico Assicurazioni, judgment of 13 July 2006, not yet reported.Google Scholar

⁵⁸ eg the Court first established a general right in reparation from the Member States in the joined Cases C-46 & 48/93 Brasserie du Pêcheur v Germany and R v Secretary of State for Transport, ex parte Factortame (No 3) [1996] ECR I-1029.Google Scholar Factortame eventually recovered damages (of some £55 million plus costs) in the English courts (see Factortame v Secretary of State for the Environment, Transportation and the Regions [2002] EWCA Civ 22, [2002] 2 All ER 838)Google Scholar but Brasserie du Pêcheur recovered nothing because it failed to meet the (higher) standard of causation required in German law (BGH, 24 10 1996, BGHZ 134, 30).Google Scholar

⁵⁹ Study on the conditions of claims for damages in case of infringement of EC competition rules; consisting of a comparative report, an analysis of economic models for the calculation of damages, and a national report (with executive summary) from each Member State.

⁶⁰ Damages actions for breach of the EC antitrust [sic] rules, COM(2005) 672Google Scholar; see also the Commission Staff working paper, SEC(2005) 1732.Google Scholar

⁶¹ For an anticompetitive agreement or practice to be caught by Art 81 it must affect, or have the potential to affect, trade between Member States ‘appreciably’; see Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235Google Scholar; Case 5/69 Völk v Vervaecke [1969] ECR 295Google Scholar; Commission Notice on agreements of minor importance which do not appreciably restrict competition under Art 81(1) of the Treaty establishing the European Community (deminimis), OJ 2001 C368/13.Google Scholar

⁶² From Case C-234/89 Delimitis v Henninger Bräu [1991] ECR I–935.Google Scholar

⁶³ Decision 1999/230 (Whitbread) OJ 1999 L88/26Google Scholar; Decision 1999/473 (Bass) OJ 1999 L186/1Google Scholar; Decision 1999/474 (Scottish & Newcastle) OJ 1999 L186/28. Courage had notified its standard lease to the Commission for negative clearance and/or exemption but withdrew the notification; Art 81(3) therefore had no bearing in the case.Google Scholar

⁶⁴ Crehan v Inntrepreneur Pub Company [2003] EWHC 1510 (Ch)Google Scholar, [2003] EuLR 663; Courage's estates of public houses had in the meanwhile been acquired by Inntrepreneur.Google Scholar

⁶⁵ [2004] EWCA Civ 637Google Scholar, [2004] EuLR 693, paras 84, 97, and 98.Google Scholar

⁶⁶ This was very much less than the £1,311,500 Park J in the High Court would have awarded (for loss of profits and loss of capital assets, subject to capital gains tax) had the claim been made out.

⁶⁷ The first English case to proceed to full trial and judgment was Arkin v Borchard Lines [2003] EWHC 687Google Scholar, [2003] 2 Ll Rep 225Google Scholar, in which no damages were awarded as the claimant failed to show a breach of either Art 82 (the primary claim) or Art 81; the case was described subsequently by the Court of Appeal as a ‘disastrous piece of litigation’ (Arkin v Borchard Lines and ors [2005] EWCA 655Google Scholar, [2005] 3 All ER 613, 615), defendants' (unrecoverable) costs put at around £6 million.Google Scholar

⁶⁸ Inntrepreneur Pub Company v Crehan [2006] UKHL 38, judgment of 19 July 2006, not yet reported.Google Scholar

⁶⁹ paras 67 and 69.

⁷⁰ Reg 1/2003, Art 16.

⁷¹ See (n 6).

⁷² Inntrepreneur Pub Company v Crehan [2006] UKHL 38, para 67.Google Scholar

⁷³ See Reg 1/2003, Art 7(1): ‘If the Commission has a legitimate interest in doing so, it may … find that an infringement has been committed in the past.’ Legitimate interests would include clarification of a point of law in order to prevent future infractions or, as here, establishing civil liability. Any fine would be time barred; Art 25.

⁷⁴ See Decision 98/531 (van den Bergh Foods) OJ 1998 L246/1Google Scholar, in which the Commission intervened to reopen a case thought settled by the Irish courts. The Commission disagreed with the latters' findings, issued a decision at variance with them, caused a reference from the Supreme Court as to the course it ought to follow in the face of the conflicting compulsory directions (see Case C-344/98 Masterfoods v HB Ice Cream [2000] ECR I–11369)Google Scholar, but was eventually—17 years after the origins of the dispute—proved to have been right (Case T-65/98 van den Bergh Foods v Commission [2003] ECR II-4653Google Scholar, upheld on appeal as Case C-552/03P Unilever Bestfoods (Ireland) v Commission, order of 28 Sept 2006, not yet reported).Google Scholar

⁷⁵ Reg 1/2003, Art 23(5).

⁷⁶ Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769.Google Scholar

⁷⁷ See Société Stenuit v France (1992) 14 EHRR 509.Google Scholar

⁷⁸ This is the case, for example, in England (and presumably the rest of the UK), see Napp Pharmaceuticals v Director General of Fair Trading [2002] CompAR 13, paras 91ff (CCAT); in Denmark a ‘penalty’ (strafansvar) may be imposed by a court and fixed by reference to the general rules of the Penal Code; LBK nr 785 (n 25).Google Scholar

⁷⁹ Karistusseadustik 2006, §§ 399–402.Google Scholar

⁸⁰ Code de Commerce, Art L 420–6.Google Scholar

⁸¹ Competition Act, 2002 (No 14 of 2002), ss 6, 7.Google Scholar

⁸² Nóμος 207/89, Art 32; but an offence consists only in a persisting breach in defiance of a direction of the Commission for the Protection of Competition.

⁸³ Zàkon č 300/2005 (Trestný Z´kon), § 250.

⁸⁴ Enterprise Act 2002, s 188.

⁸⁵ Competition Act, 2002, ss 6, 7.Google Scholar

⁸⁶ s 8(1)(b).

⁸⁷ See eg Wils, W, ‘Is Criminalization of EU Competition Law the Answer?’ (2005) 28 World Competition 117.Google Scholar

⁸⁸ sub nom DPP v Flanagan and ors, a series of circuit criminal court judgments, none reported.

⁸⁹ This is an offence under s 6(1) of the Competition Act, 2002, but charges were actually brought under effectively identical provisions of prior legislation (the Competition Act, 2001 (No 24 of 1991) and the Competition (Amendment) Act, 1996 (No 19 of 1996)) because the events occurred (Jan 2001–Feb 2002) prior to the entry into force of the 2002 Act.

⁹⁰ Some of the cases were moved to Dublin in the interests of a fair trial. Under the 1991 Act indictable offences were tried before the circuit criminal court, but must now be tried before the Central Criminal Court; Competition Act, 2002, s 11.

⁹¹ Cartel Immunity Programme agreed between the Competition Authority and the Director of Public Prosecutions, established 20 12 2001.Google Scholar

⁹² See, eg, the (UK) Enterprise Act 2002, s 188, which creates the ‘cartel offence’ but limits its application to hardcore cartels, to agreements to that end, and requires that they be accompanied by ‘dishonesty.’Google Scholar

⁹³ Competition Act, 2002, s 6(2)Google Scholar; to the same effect, Competition Act, 1991, s 4(1)Google Scholar in combination with Competition (Amendment) Act, 1996, s 2.Google Scholar

⁹⁴ sub nom DPP v Manning, pending. In fact this is not the first criminal case under the 2002 Act: there was an earlier case brought by the Competition Authority by summary proceedings (so tried without jury) against individual farmers and Irish Farm Association leaders for blockading a shipload of British grain in the port of Drogheda, and charged under s 6, sub nom Competition Authority v Deasy and ors, unreported. Convictions were secured in the district court against six accused in March 2003 and fines imposed; three of the six convictions were set aside on appeal. Whilst it is now clear that French trade associations and unions may be fined under Community competition rules for similar (if more spirited) conduct (see Cases T-217 and 245/03 Fédération nationale de la coopération bétail et viande v Commission, judgment of 13 12 2006Google Scholar, not yet reported) the Irish precedent of the application of criminal penalties is something at which the French authorities might usefully look.

⁹⁵ Reg 1/2003, Art 3(1).

⁹⁶ Commission notice on agreements of minor importance (n 61) para 3.

⁹⁷ Decision 85/206 (Aluminium Imports from Eastern Europe) OJ 1985 L92/1Google Scholar; Case T-56/99 Marlines v Commission [2003] ECR II-5225.Google Scholar

⁹⁸ Case 22/78 Hugin Kassaregister v Commission [1979] ECR 1869Google Scholar; decision of the OFT in London-wide Newspaper Distribution [2006] UKCLR 491, paras 54–7Google Scholar; Case C-209/98 Entreprenørforeningens Affalds/Miljøsektion v Københavns Kommune [2000] ECR I-3743.Google Scholar

⁹⁹ See, eg, the Finnish Laki Kilpailunrajoituksista, § 1a.

¹⁰⁰ Case T-319/99 Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental (FENIN) v Commission [2003] ECR II-357Google Scholar; discussed in (2004) 53 ICLQ 468.Google Scholar

¹⁰¹ Case C-205/03P Federación Española de Empresas de Tecnología Sanitaria v Commission, judgment of 11 07 2006, not yet reported.Google Scholar

¹⁰² Case C-264/01 AOK Bundesverband v Ichthyol-Gesellschaft Cordes [2004] ECR I-2493.Google Scholar

¹⁰³ Cases C-159 & 160/91 Poucet et Pistre v Assurances Générales de France [1993] ECR I-637.Google Scholar

¹⁰⁴ See Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43.Google Scholar

¹⁰⁵ Case T-155/04 SELEX Sistemi Integrati v Commission (Eurocontrol II), judgment of 12 12 2006, not yet reported. The CFI considered whether the various activities of Eurocontrol could be severed, and determined that its activities in technical standardization and research and development (in particular the acquisition of prototypes) were not economic activities but that its assistance to national administrations (drafting contract documents of public tenders, taking part in selection procedures, both for remuneration) was, and so Eurocontrol was, but to that extent only, an undertaking.Google Scholar

¹⁰⁶ Case T-319/99 FENIN, para 39.

¹⁰⁷ Case T-155/04 SELEX, para 67.

¹⁰⁸ Case C-309/99 Wouters v Algemene Raad van de Nederlandse Orde van Advokaten [2002] ECR I-1577Google Scholar; discussed in (2004) 53 ICLQ 470.Google Scholar

¹⁰⁹ para 86.

¹¹⁰ para 94.

¹¹¹ para 107.

¹¹² Case COMP/38.158 (Meca-Medina & Majcen), decision of 1 08 2002, not published. The complaint also alleged (equally unsuccessfully) an infringement of Art 49 as a breach of their freedom to provide services.Google Scholar

¹¹³ Case T-313/02 Meca-Medina & Majcen v Commission [2004] ECR II-3291.Google Scholar

¹¹⁴ Case C-519/04P Meca-Medina & Majcen v Commission, judgment of 18 07 2006, not yet reported, para 33.Google Scholar

¹¹⁵ paras 42–5.

¹¹⁶ para 47.

¹¹⁷ Case T-193/02 Piau v Commission [2005] ECR II-209Google Scholar, upheld on appeal as Case C-171/05P Piau v Commission [2006] ECR I-37*.Google Scholar

¹¹⁸ Case T-193/02 Piau, ibid para 117.

¹¹⁹ Reg 4064/89 OJ 1990 L257/13; in force Sept 1990.Google Scholar

¹²⁰ Reg 1310/97 OJ 1997 L180/1; in force Mar 1998.Google Scholar

¹²¹ Case T-342/99 Airtours v Commission [2002] ECR II-2585Google Scholar; Case T-77/02 Schneider Electric v Commission [2002] ECR II-4201;Google ScholarCase T-5/02 Tetra Laval v Commission [2002] ECR II-4381Google Scholar; discussed in (2004) 53 ICLQ 472.Google Scholar The disputes rumble on: the CFI judgment in Tetra Laval was upheld on appeal (Case C-12/03P Commission v Tetra Laval [2005] ECR I-987), Schneider Electric objected to the manner in which the Commission responded to annulment of its decision (Case T-48/03 Schneider Electric v Commission, order of 31 Jan 2006, not yet reported, under appeal as Case C-188/06P Schneider Electric v Commission, pending) and both Airtours and Schneider have raised actions in damages against the Commission (Case T-212/03 MyTravel v Commission and Case T-351/03 Schneider Electric v Commission, both pending).Google Scholar

¹²² Case T-342/00 Petrolessence v Commission [2003] ECR II-1161, para 101; Case T-177/04 easyJet v Commission, judgment of 4 July 2006, not yet reported, para 44.Google Scholar

¹²³ Reg 4064/89, Art 6(1)(c).

¹²⁴ Reg 139/2004 OJ 2004 L24/1.Google Scholar See also Commission Reg 802/2004 OJ 2004 L133/1 (‘the implementing regulation’).Google Scholar

¹²⁵ Reg 139/2004, Art 1(2)–(3).

¹²⁶ Art 10.

¹²⁷ Reg 4064/89, Art 2(1); Reg 139/2004, Art 2(1).

¹²⁸ Reg 4064/89, Art 2(2), (3); the letters in square parentheses appear in Art 2(3).

¹²⁹ (Irish) Competition Act, 2002, ss 21(2)(a), 22(3); (UK) Enterprise Act 2002, ss 22(1)(b), 35(1)(b), 35(2).

¹³⁰ Reg 139/2004, Art 2(2), (3).

¹³¹ Preamble, recital 25. This had been addressed more clearly in an earlier draft (OJ 2003 C20/4), Art 2(2) providing that one or more undertakings are ‘deemed to be in a dominant position if, without coordinating, they hold the economic power to influence appreciably and sustainably the parameters of competition … or appreciably to foreclose competition’, but it did not survive into the final text.

¹³² Guidelines on the assessment of horizontal mergers, OJ 2004 C31/5.Google Scholar

¹³³ Reg 139/2004, preamble, recital 28.

¹³⁴ Commission Notice on Case Referral in respect of concentrations, OJ 2005 C56/2.Google Scholar

¹³⁵ Commission Notice on restrictions directly related and necessary to concentrations, OJ 2005 C56/24.Google Scholar

¹³⁶ Commission Notice on a simplified procedure for treatment of certain concentrations, OJ 2005 C56/32.Google Scholar

¹³⁷ OJ 1998 C66/5.Google Scholar

¹³⁸ OJ 1998 C66/1.Google Scholar

¹³⁹ OJ 1998 C66/14.Google Scholar

¹⁴⁰ OJ 1998 C66/25.Google Scholar

¹⁴¹ Draft adopted on 28 Sept 2006, not yet published; the text of the draft is available at <http://www.ec.europa.eu/comm/competition/mergers/legislation/jn.html>.

¹⁴² EC Commission, DG Competition, Merger Remedies Study, 2005, unpublished; text available at <http://www.ec.europa.eu/comm/competition/mergers/studies_reports/remedies_study.pdf>..>Google Scholar

¹⁴³ That is, the relevant undertakings achieve more than two-thirds of their annual Community wide turnover in more than one Member State, otherwise it is not a concentration ‘with a Community dimension’; Reg 139/2004, Art 1(2), (3).

¹⁴⁴ Art 4(4).

¹⁴⁵ ibid.

¹⁴⁶ Art 4(5).

¹⁴⁷ ibid.

¹⁴⁸ The last prohibition decision, on a proposed acquisition of joint control of Gás de Portugal by Energias de Portugal and Ente Nazionale Idrocarburi, was taken in December 2004 (Decision 2005/801 OJ 2005 L302/69Google Scholar) but because all agreements defining the transactions had been signed on 31 Mar 2004 the old regulation applied. The Commission decision was challenged and heard by the CFI using the ‘expedited’ or ‘fast track’ procedure (see rules of procedure of the CFI, Art 76a) for only the third time since it was created in 2001, indicating that it attached some considerable importance to the case. In the event it upheld the Commission; Case T-87/05 Energias de Portugal v Commission [2005] ECR II-3745.Google Scholar

¹⁴⁹ Decision 2004/134 OJ 2004 L48/1Google Scholar; upheld in Case T-209/01 Honeywell v Commission and Case T-210/01 General Electric v Commission, judgments of 14 Dec 2005, not yet reported. The Honeywell case appears to have foundered in part upon poorly constructed submissions; the GE judgment—GE represented before the CFI by two senior counsel, two junior counsel, two solicitors and three other lawyers, and the judgment running to 735 paragraphs—is much more substantial.

¹⁵⁰ In 1997 the Commission imposed conditions upon a merger, already approved by the Federal Trade Commission, between Boeing and McDonnell Douglas (Decision 97/816 OJ 1997 L336/16).Google ScholarBy a 416 to 2 vote, the American House of Representatives ‘warned’ the Community against ‘an unwarranted and unprecedented interference in a Unites States business transaction’ and called upon the president to make representation to the Commission; Congressional Record, 22 07 1997, p H5517.Google Scholar

¹⁵¹ See (n 121).

¹⁵² Case COMP/37.792 Microsoft, decision of 24 Mar 2004, not yet published. For a brief description of the litigation between Microsoft and various federal and state antitrust authorities see paras 14–20 of the decision. The Commission fine also illustrates its flexibility on fining, notwithstanding its 1998 guidelines (replaced in 2006; see now Guidelines on the method of setting fines imposed pursuant to Art 23(2)(a) of Regulation No 1/2003, OJ 2006 C210/2) intended to provide a degree of transparency, impartiality, and predictability in the matter: the ‘initial amount’ was first computed, by reference to the guidelines, as some €165 million, then doubled so as to ensure sufficient deterrent effect given Microsoft's economic capacity, and then increased another 50 per cent owing to the duration of the infringement.Google Scholar

¹⁵³ para 435.

¹⁵⁴ Case T-201/04 Microsoft v Commission, pending.

¹⁵⁵ Case T-201/04R Microsoft v Commission [2004] ECR II-4463.Google Scholar

¹⁵⁶ Case COMP/37.792 Microsoft, decision of 12 July 2006, not yet published. This is a material change introduced by Reg 1/2003: under Reg 17 the Commission could impose periodic penalty payments of no more than €1000 per day (Art 16(1)); under Reg 1/2003 the limit is increased to 5 per cent of average daily turnover in the preceding business year (Art 24(1)).

¹⁵⁷ Cases C-241 and 242/91P Radio Telefis Éireann & Independent Television Publications v Commission (Magill) [1995] ECR I-743Google Scholar; see more recently Case C-418/01 IMS Health v NDC Health [2004] ECR I-5039.Google Scholar

¹⁵⁸ The ‘formation’ of the grand chamber (of both Court and CFI) of 13 judges was introduced by the Treaty of Nice (in force 2003) and is used when ‘the legal difficulty or the importance of the case or special circumstances so justify’ (Rules of Procedure of the CFI, Art 14). The only other case in which the CFI sat as the grand chamber was Case T-69/00 Fabbrica italia accumulatori motocarri Montecchio v Council & Commission and Case T-383/00 Beamglow v Parliament, Council & Commission, judgments of 14 Dec 2005, not yet reported, two linked and very complicated cases involving a WTO trade dispute and the non-contractual liability of the Community.

¹⁵⁹ Notes for the Guidance of Counsel at the Hearings of Oral Argument [before the Court of First Instance], unpublished, para II.4; the time limit may be extended, by leave of the Court, where the complexity of a case requires it (‘if circumstances so require’).

¹⁶⁰ Report by the EAGCP, A More Economic Approach to Article 82, unpublished; available at <http://www.europa.eu.int/comm./competition/publications/studies/eagcp_july_21_05.pdf>.

¹⁶¹ EAGCP Report, p 2.Google Scholar