The Silent Co-Author: Article 11(4) of Regulation 1/2003 and the Commission’s Role in National Competition Cases

Every national competition authority in the European Union is bound, before adopting a final decision applying Article 101 or 102 TFEU — a decision finding an infringement, accepting commitments, or withdrawing the benefit of a block exemption — to inform the European Commission and to submit a summary of the case together with the envisaged decision, no later than 30 days in advance. Article 11(4) of Regulation 1/2003 makes this obligation explicit, and Article 11(5) extends a similar information duty to earlier stages of the procedure on a voluntary basis.

The official explanations describe this mechanism in technical, almost bureaucratic terms: “consultation,” “information exchange,” “consistency of application.” These labels obscure rather than illuminate what the provision actually does. The honest question is the following: what is the legal nature of the Commission’s role at this stage of a national proceeding, and what does the answer mean for the rights of the undertaking under investigation?

Decentralization is not disorganization

The starting point must be the structural logic of Regulation 1/2003. The Regulation did not federalize competition enforcement, but neither did it leave it to 27 parallel and disconnected national systems. Article 3 makes the application of Articles 101 and 102 mandatory whenever trade between Member States is affected; Article 16 binds national competition authorities (NCAs) and national courts to Commission decisions; Article 11(6) allows the Commission to relieve an NCA of competence at any moment, terminating its proceedings; and the Notice on Cooperation within the Network of Competition Authorities (2004/C 101/03) sets out detailed case-allocation principles. The ECN+ Directive (2019/1) further reinforced the institutional integration of the network.

This is not a system of mutual independence with occasional dialogue. It is a system of coordinated decentralization, in which 27 enforcement bodies are expected to apply the same substantive rules in a manner consistent enough to preserve the unity of the internal market. The decentralized application of Articles 101 and 102 TFEU cannot be allowed to become a disorganized application in which every NCA articulates its own understanding of, say, what an infringement is, what a restriction by object means, or what abuse of dominant position entails.

If we accept this structural premise — and I see no honest way to avoid it — then Article 11(4) must serve that structural function. It is the mechanism through which consistency is operationally produced, case by case, before a decision becomes final.

Three possible readings — only one survives scrutiny

Article 11(4) can be read in three ways.

The first is the supervisory reading: the Commission monitors NCA decisions to catch deviations and reserves the right to intervene under Article 11(6) if it identifies a problem. This is partly true but plainly insufficient. Pure supervision implies a passive ex post review; in practice, the Commission reads the draft, comments on the legal qualification, raises questions about the theory of harm, and engages with the NCA’s economic analysis well before the decision is adopted. That is not supervision in any ordinary sense.

The second is the advisory reading: the Commission acts as a kind of legal counsellor to the NCA, providing technical input on EU law. This reading is implausible. The Commission is not a neutral law clinic. It is itself a competition enforcer, the historical author of the doctrine (and guidelines) on Articles 101 and 102, and an interested party in how those provisions are interpreted across the Union. To imagine it as offering disinterested advice — and to imagine the NCA as free to disregard it — is to ignore the institutional gravity of the relationship. NCAs do not, in practice, depart from Commission positions expressed through the network without serious cause.

The third reading is the only one that fits both the structure EU competition rules consistent enforcement, the Regulation and the observable practice: the Commission co-owns the theory of the case. It is not the formal author of the national decision, but it endorses, refines, and sometimes shapes the legal qualification and the analytical framework that the NCA will apply. Through Article 11(4), the Commission accepts a measure of substantive responsibility for the case the NCA is about to bring. It is not detached. It is a silent co-author of the prosecution’s theory.

Why this reading is the most legally coherent

Three considerations support this reading.

First, the procedural architecture is unintelligible otherwise. If the consultation were merely informational, there would be no need for a 30-day window calibrated to allow the Commission to react. If it were advisory, there would be no need for Article 11(6) — the safety valve through which the Commission can intervene by removing the case entirely. The pairing of 11(4) with 11(6) only makes sense if the consultation has substantive content: the Commission either accepts the NCA’s case as compatible with the integrity of the network, or it acts to prevent its adoption. Silence after consultation is, in this configuration, a form of endorsement.

Second, the case law of the Court of Justice has insisted on the unity of the application of Articles 101 and 102 across the Union. In Tele2 Polska (C-375/09, judgment of 3 May 2011), the Court refused to allow NCAs to adopt findings of “no infringement” of EU competition law precisely because that power could fragment uniform interpretation. The same logic applies in reverse: a uniform infringement framework requires the Commission to be functionally present in the construction of NCA cases, not merely informed of them.

Third, the gravitational pull of the Commission within the network is a structural feature, not an accident of practice. The ECN+ Directive strengthened the independence of NCAs vis-à-vis national executives but did not weaken — and was not designed to weaken — the substantive coordinating role of the Commission inside the network.

The procedural consequence: a defence rights deficit

If this reading is correct, the legal consequences for the undertaking under investigation are significant — and uncomfortable.

The undertaking formally faces a national authority. It can challenge the national decision and its operative part before national courts. But the case theory it is asked to refute is, in material part, the product of an institution it cannot see, cannot question, and against which it has no procedural rights. The Commission’s observations under Article 11(4) are not communicated to the parties. There is no right to reply to them. There is no right to know whether the legal qualification of the conduct, the chosen analytical framework, or the calibration of the sanction was suggested, endorsed, or imposed by Commission staff during the network exchanges.

Under the ordinary logic of Article 41 of the Charter of Fundamental Rights — the right to good administration, which includes the right to be heard and the right of access to one’s file — and Article 47 — the right to an effective remedy and to a fair trial — this opacity is hard to defend. When the Strasbourg Court in Menarini Diagnostics v. Italy (Application no. 43509/08, judgment of 27 September 2011) recognised that substantial competition fines fall within the criminal limb of Article 6 ECHR, it implicitly extended the full architecture of fair-trial guarantees to these proceedings. The current configuration of Article 11(4) seems to operate beneath that architecture.

The undertaking is, in effect, asked to defend itself against a theory of liability authored in part by an actor who is not in the room.

Towards a more honest model

The argument here is not that the Commission should be excluded from the construction of NCA cases. The opposite: its participation is structurally necessary, and pretending otherwise would weaken the coherence of EU competition law. The argument is that the participation should be acknowledged for what it is — a form of co-authorship of the case theory — and that the procedural rights of the undertaking should follow from that recognition.

Two modest reforms would suffice.

First, where the Commission’s observations to the NCA under Article 11(4) bear on the legal qualification of the conduct or the analytical framework applied to it, those observations should be disclosed to the parties before the final decision is adopted. Confidentiality concerns specific to third parties or to the network’s investigative functions can be managed through redaction, as they are in other contexts.

Second, the parties should have a right to address those observations in their written defence and, where appropriate, at the oral hearing.

These reforms would not slow the network, would not undermine the consistency of the application of Articles 101 and 102 TFEU, and would not deprive the Commission of any meaningful influence over how the law is applied in the Member States. They would simply align procedural reality with constitutional principle: if an institution participates in the construction of an accusation, the accused is entitled to know it and to respond.

The current silence is not a necessity of the system. It is a choice. With respect, it is the wrong one.