Secondly, if the Commission disagrees, and finds the agreement in breach of the regime, the company can plead immunity from fines in relation to acts taking place in relation to that agreement from the date of notification.   So, why doesn't everyone try to benefit from this supposedly win-win situation by adopting the apparent "cure" to the pain caused by the regime?

The reason is that the process is both slow and expensive.  The Commission is clogged up with notification cases and it may take years to get clarity.

More importantly, notification means that the Commission's attention will be drawn to a practice which might have remained unnoticed!

This could result in an adverse finding that might have a disproportionate effect on the company's operations.  In addition, if the Commission considers that exemption is not justified, the Commission may lift the immunity from fines, despite notification.  It does this by giving a preliminary decision that exemption is not justified. This exposes the company to fines even before the final decision is given. In such circumstances, the procedure becomes a curse, not a cure.

Whether notification is a cure or a curse depends on the particular circumstances of each case.  But in any event, adopting a policy of notification is unlikely to be an effective long-term strategy, as the system is currently under review.

The Commission, bogged down by the weight of notification cases, has proposed changes to the regime that will remove the right to notify altogether. 

Under the new system, each member state will have the power to grant exemption from the regime.  Currently, the Commission has sole authority to do this.  The new legislation is being prepared and it is expected that the new system will come into force from the beginning of 2004.

The effect will be to force companies to rely even more heavily on their own judgement and on that of their advisors in determining whether their trade practices cross the line of acceptability.