The decentralized enforcement regime of EU competition law is based on the assumption that the obligation to apply the same Treaty provisions is sufficient to ensure a uniform administration of the law. This paper questions this assumption. Based on a systematic analysis of a large database of cases, it presents empirical evidence indicating that the Commission, EU courts and five national competition authorities have followed very different interpretations of the law when applying Article 101(3)TFEU. The paper uses the debate over the types of benefit that can be examined under Article 101(3) TFEU as an illustrative example of the struggle between the different competition authorities in shaping the future of EU competition policy.
This article questions the common view that the modernization of EU competition law has removed public policy considerations from the public enforcement of Article 101 TFEU. Based on a large quantitative and qualitative database including all of the Commission’s and five national competition authorities’ enforcement actions (N ≈ 1,700), it maintains that modernization has merely shifted the consideration of public policy from the substantive scope of Article 101(3) TFEU to procedural priority setting decisions. Instead of engaging in a complex balancing of competition and public policy considerations, the competition authorities have simply refrained from pursuing cases against anticompetitive agreements that raise public policy questions or settled those cases by accepting negotiated remedies. This outcome, the article claims, is a double-edged sword. The Commission’s attempt to narrow down the scope of Article 101(3) as part of modernization has not eliminated the role of public policy in the enforcement. Rather, undertakings can reasonably assume that restrictions of competition that produce some public policy objectives will not be enforced, even if they do not meet the conditions for an exception. These discretionary nonenforcement decisions have a detrimental impact on the effectiveness, uniformity, and legal certainty of EU competition law enforcement.
JEL: K21, K230
This book is the first to empirically examine the role of non-competition interests (public policy) in the enforcement of the EU's prohibition on anti-competitive agreements. Based on an original quantitative and qualitative database of over 3,100 cases, this book records all of the public enforcement actions of Article 101 TFEU taken by the Commission, EU Courts, and the national competition authorities and courts of five representative Member States (France, Germany, Hungary, the Netherlands, and the UK). The book not only exposes explicit tools in which non-competition interests played a role, but also sheds light on the “dark matter” of balancing, namely, invisible forms of balancing triggered by the institutional and procedural setup of the competition enforcers. Moreover, it contributes to the empirical-legal study of various other aspects of EU competition law enforcement, such as its objectives, the more economic approach, decentralized enforcement, and the functioning and success of Regulation 1/2003.
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