The challenge of decentralized competition enforcement
By Dr Peter Whelan
The adoption of Regulation 1/2003 produced a number of significant effects for the enforcement of EU competition law. The European Commission was of course provided with more robust enforcement powers; the relationship between national competition law and EU competition law was clarified; and the EU-level notification system was abolished, with Article 101(3) TFEU becoming directly applicable for the first time. The latter two of these changes in particular have increased the need for EU competition law experts to keep abreast of national competition law developments in the EU.
The relationship between national competition law and EU competition law is now clear: when enforcing national competition law, national competition law enforcers must also apply the relevant EU competition law provision if there is an effect on trade between Member States. The application of national competition law may not lead to the prohibition of agreements, which may affect trade between Member States but which do not fall foul of EU competition law. A comprehensive knowledge of national developments is important here as national cases on restrictive agreements can inform us: (a) whether the Member States are adhering to EU competition law in practice; and (b) whether national enforcers have novel, inspired, or, indeed, unenlightened interpretations of what Article 101 TFEU does and does not prohibit. Regarding unilateral conduct, the Member States can adopt national laws which are stricter than Article 102 TFEU. This fact also ensures that a decent knowledge of national developments concerning unilateral conduct cases is desirable; such cases could provide interesting insights into how jurisprudence on Article 102 TFEU should (or should not) develop in future. These insights could be relevant to practitioners arguing a case before the EU courts or to academics arguing that a different approach to the regulation of unilateral conduct is warranted.
The fact that both Article 101 TFEU and Article 102 TFEU are now directly applicable in the Member States also increases the need for a detailed knowledge of national developments. Private enforcement of competition law has been facilitated by Regulation 1/2003, and, although it remains underdeveloped in Europe, recent developments (such as the publication of a draft Directive on actions for damages) and anticipated future developments could well inspire the growth of private enforcers. If so, such national cases could again provide interesting insights into how the EU competition law rules should be interpreted, particularly if they are stand-alone cases.
Decentralization of EU competition law enforcement is not the only factor leading to the need to understand national competition law decisions and judgments within the EU. A ‘modern’ competition law is a ‘global’ one, a fact that is borne out by the inability of antitrust academics, practitioners and officials, wherever they may be, to continue to ignore the antitrust ideas generated in those regimes that are not their own. An understanding of developments in Europe, then, is also desirable for non-European antitrust practitioners and academics.
Dr Peter Whelan is a Senior Lecturer in Law at UEA Law School and is a Faculty Member of the ESRC Centre for Competition Policy, University of East Anglia. He is the Managing Editor of Oxford Competition Law. A version of this post appears on Oxford Competition Law.
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