Dear Mr Soderman,

Thank you for your e-mail of 5.2.2004 to Mrs Lowri Evans in which you put a question concerning the comfort letter which Directorate-General Competition of the European Commission sent to ECOMET on 20.10.1999 (case COMP/34563 ECOMET). Head of Unit COMP-D-3 Mrs Anne-Margrete Wachtmeister, to whom your E-mail was forwarded, has asked me to reply in her name.

We understand that you are referring to Regulation 1/2003, the new regulation that will govern the enforcement of Articles 81 and 82 EC Treaty as from 1 May 2004 (text available on http://europa.eu.int/comm/competition/antitrust/legislation/ ).

Regulation 1/2003 introduces new types of procedures and decisions for the Commission's case-handling activity under Articles 81 and 82 EC. In particular, it abolishes the notification and authorisation system for Article 81 EC and the types of decision connected with this system.

Under the new Regulation, Article 81(3) EC becomes directly applicable.Article 1(2) of Regulation 1/2003 provides that "agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which satisfy the conditions of Article 81(3) of the Treaty shall not be prohibited, no prior decision to that effect being required". In other words, a party before a national court or national competition authority that wants to invoke Article 81(3) does not need a Commission statement to do so. The agreement, decision or conduct in question must be found legal if the party can show that it fulfils the conditions set out in Article 81(3). For guidance on the application of Article 81, you may want to consult the Commission's website, in particular the draft Guidelines on the application of Article 81(3) (see http://europa.eu.int/comm/competition/antitrust/legislation/ ).

Against this background, under the new Regulation 1/2003 there is no place for comfort letters any more. Accordingly, after 1 May 2004, neither new comfort letters will be issued nor existing ones will be prolonged. Comfort letters issued before 1 May 2004 may however remain useful for undertakings or associations of undertakings, who were the addressees of a comfort letter, as a starting point for the assessment of their legal situation under Articles 81 and 82 EC, taking account of the extent to which factual or legal circumstances relevant for their case may have evolved in the meantime. Likewise, in case of litigation, it does not seem excluded that a national court, when assessing a case under Articles 81 or 82 EC, would even after 1 May 2004 take a comfort letter into account. This is for the national court in question to decide. Yours sincerely

Rüdiger Dohms