Client Alert

December 2008

Contact Hunton & Williams advises complainant before

Robert Klotz European Commission using new fast-track
Park Atrium procedure
Rue des Colonies 11
1000 Brussels Robert Klotz, a member of the firm’s
+32 2 643 58 49
Global Competition Practice, and formerly
rklotz@hunton.com
with DG Competition at the European
Commission, is using a new fast-track
procedure in counseling a German
provider of wireless broadband technology.
The case is directed against the German
government and seeks to ensure fair and
non-discriminatory access to the frequency
spectrum. The Commission has decided to
handle the case under the new “EU Pilot”
procedure.
New Procedure for Complaints
“EU Pilot” is a new fast-track procedure
for complaints that is designed to ensure
the correct implementation and application
of Community law at the national level.
The European Commission launched
the procedure in April 2008, in order to
reach faster and more efficient solutions in
disputed cases.
This new procedure is clearly distinguish-
able from the infringement proceedings
under Art. 226 EC. Under the “EU Pilot”
procedure, the Commission forwards
complaints by individuals or companies
directly to the Member State concerned.
The Member State’s response may be
subsequently brought to the attention of
the complainant. The complainant thus
plays a more involved role than under
infringement proceedings.
Participating Member States and
Execution of Procedure
Fifteen Member States are participating
in the “EU Pilot” procedure on a voluntary
basis: Austria, Czech Republic, Denmark,
Finland, Germany, Hungary, Ireland, Italy,
Lithuania, the Netherlands, Portugal,
Slovenia, Spain, Sweden, and the United
Kingdom. The procedure will operate
for a one-year trial period. It will then be
assessed, and possibly extended to all
Member States.
Complaints brought to the Commission
by individuals or companies are
examined by the responsible services.
If the Commission concludes on a prima
facie breach of Community law after
this initial examination, it can decide to
initiate the “EU Pilot” procedure. Next, the
Commission informs the complainant in
writing of this decision. It then forwards the
complaint electronically to a designated
contact person at the Member State con-
cerned, and may add its own comments or
questions.
The objective is that the Member State
stops within ten weeks the infringement of
Community law set out in the complaint. If

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this requirement is not met, the Member
State shall send the Commission and/
or the complainant a written statement
explaining its position on the complaint.
The Commission evaluates the
response and informs the complainant
of the result. If the problem cannot be
solved at this stage, the Commission
can elect to open infringement proceed-
ings against the Member State under
Art. 226 EC.
The rules on data protection are fully
respected under the framework of the
“EU Pilot” procedure. The Commission
may divulge the identity of the complain-
ant only if the latter has granted express
permission to do so.
Practical Consequences
If the “EU Pilot” procedure is successful
in a given case, it will provide a rapid
solution to the problem that has arisen
in the context of the implementation and
application of Community law on the
national level. The Commission has one
year to decide whether or not to open
infringement proceedings under Art. 226
EC and those proceedings can extend
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over a period of several years. The “EU
Pilot” procedure operates in a consider-
ably more efficient manner, since its
time frame is ten weeks. Moreover,
the increased transparency gives the
complainant the opportunity to influence
the proceedings by making comments
and suggestions. This increased
transparency reflects the intentions of
the Commission and is in line with the
aims of the EU initiative “A Europe of
Results”.
Even if formal infringement proceedings
are opened later on, the “EU Pilot” will
make proceedings more efficient, since
the complaint and the Commission’s
questions are forwarded to the Member
State in a rapid manner. Moreover, as
a result of the improved exchange of
information, the Commission will be able
to assess more quickly whether or not to
open formal proceedings.
Finally, if the “EU Pilot” procedure
is not successful, and the Member
State’s response to the complaint is not
satisfactory, the Commission will have
to provide substantial support for not
opening infringement proceedings. All
these factors contribute to an enhanced
legal protection of the complainant in
cases of Community law breaches by
Member States.
As of mid-September 2008, the
Commission has handled more than 130
cases using the “EU Pilot” procedure.
The cases have arisen in a variety of
fields, such as health and security of
employees, social security and free
movement of workers, visa issues, free
movement of persons, data protection,
public procurement, environmental law,
free movement of goods, and indirect
and direct taxation.
We Can Help
Hunton & Williams’ Global Competition
Practice has extensive experience in
advising clients in matters concerning
the correct implementation and applica-
tion of Community law by national
authorities. We follow these issues
closely and are available to answer your
questions and address your concerns.