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Notes from the fourth interactive session in the European Competition law master's subject.
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Lecture 4 Enforcement of Articles101-102 TFEU
Video: this in an old case:
The fines would be higher. By now, EU is leading in the amount of fines
There’s no talk about private enforcement.
I. Modernisation
Modernisation = more economic thinking + ‘decentralisation’
• Revised de minimis
• Revised ancillary restraints
• New block exemptions
• Regulation 1/2003 on enforcement of 101-102
1. Main changes in Regulation 1/2003:
Parallel application of national and EU competition law (Art. 3): major controversy. EU and national law are
applied in parallel.
Directly applicable exception system (do it yourself)
Notifications abolished
This was immediately copied on national level, to avoid that companies would look for legal certainty on the
national level which they could no longer find on the EU level
2. Other changes in Regulation 1/2003 (procedural)
NCAs and EC form 'European Competition Network' (ECN), ‘best placed authority’, possibilities for
exchange of (also confidential) information. In that Network, there’s the Commission and the national
competition authorities. Officially it is a network of equals, but in practice the Commission sort of takes
NCA by the hand. That network is totally informal and therefore not transparent but important decisions
are made: which authority is the best placed to deal with your case. There’s no possibility to appeal this
decision, because it is not a formal decision. ECN + Directive 2019/1
o The directive tries to strengthen the position of national competition authorities
o The directive does not necessarily change much, but it tells us that de NCA’s should be fully
independent. The terms are actually too vague and it will not force politics to change something
o It states that NCA’s should have sufficient recourses (as they get more work with the
decentralization), but it does not tell you how much this should be.
o The one thing that really bites: if an NCA applies EU completion law and fines then it should no
longer limit its fines in the sense that they should calculate the fines not on the basis of national
sales but on the basis of global sales/turn over. Combining this with ne bis in idem means , you
can’t only be fined 29 times, but also not only the commissions fine will have the high ceiling of
10% of global turnover, also all national fines can up to that limit
NCAs cannot adopt decisions running counter to EC decisions on 101/102 even if the commission decisions
are contemplated decisions. According to the prof., this is acceptable. What is less, is that national courts
cannot take decisions running against EC decisions one 101 and 102. This is problematic because of the
independence of judiciary. Judiciary is here bound by the executive (EC decisions).
, Measures to prevent renationalization of competition law: If we decentralize, then we will have a lot of
national authorities dealing with the same case and 28 different regimes of competition law and therefore
there is the the risk is to have contradictory decisions. Commission needs tools to remain in charge.
Among those tools: e.g. finding of inapplicability, amicus curiae, Art. 11(6)
o Art. 11(6): as soon as the Commission takes a case, the NCA is relieved of that case, they lose
power to deal with the case (case in which EU competition law has to be applied at a national
level). In other words, if the commission is not satisfied with the way the NCAs are handling the
case, the commission can start deciding itself and the NCA will be relieved
o Amicus curiae (friend of the court): The commission van control the NCA’s but it can’t control the
national courts. You send a friend of the court to the national court, who will tell them that
even though the court is independent how they would solve the case NCA (part of this
executive) or the Commission have the right to go to a national court handling a
competition case and to give it its opinion. So, the amicus curiae is not really a friend, it is rather
controlling what the EC does.
o Finding of inapplicability: there is no longer notification and therefore it is no longer possible to
ask the commission for clarification. This is the commission giving you an exemption, while they
aren’t even supposed to know about your agreement, but nevertheless they say that to this case
EU competition law does not apply, or it does apply but 101(3) gets you if the hook. It is the
commission telling you what you never asked for because you can no longer notify. This is
because they want to preserve unity, to set a precedent, to show that these kind of cases do not
come under the scope of EU Law
National courts cannot adopt decisions running counter to EC decisions on 101/102
EC power to adopt decisions making commitments binding
.../...
Other changes in Regulation 1/2003
Enlarged powers for EC to ask information and organize inspections
Enlarged powers for EC to ask information and organise inspectionsenlarged investigation powers for EC
'on the spot‘, e.g. interview persons, record statements, affix seals, ask information on the spot, enter
private homes,
...
Increased powers to fine and impose periodic penalty payments
→ What remains?
Substantive law (art. 101&102)
System of block exemptions was not changed by Reg. 1/2003
3. Parallel application
But in practice, which competition law had to apply between the national and the EU one? The system chosen is a
system of parallel application of national and EU competition law (Art. 3):
National courts or NCAs that apply national compition law must also apply 101-102 TFEU if trade between
MS affected; you can apply both to the same case. This only rule is that if it deals with an affect on trade
between MS, you can (may) also apply national law, but you must apply EU law.
But no exclusive application of EU law in such cases, as originally planned. It could have been easier. MS
did not want to loose to much of their national powers.
If agreements do not restrict competition (Art. 101), fulfil conditions of Art. 101(3) or are covered by block
exemption. If EU law says this is allowed or it does not even fall under the scope of EU law, then you
cannot undo this with national law
, o For example: shop that sell newspaper: every time one of these editors wants to do a commercial
gest, we have to pay part of it. If they don’t accept to pay, they don’t provide the newspaper
anymore. There’s dominance in the contractual relationship. It doesn’t come under the scope of
art. 102 but you can bring it under your national law. Half of the number states have adopted
national rules about that type of relative dominance.
no national prohibition but national comp law can be stricter on unilateral behaviour: this is targeting
byer power. These are cases of relative dominance (not absolute): I am not dominant in its entirety, but I
am dominant with my relationship with you on our contract.
But not applicable for national law "predominantly pursuing an objective different from that pursued by
Art. 101-102": it refers to all national unfair trade practices law, this remains valid because of article 3
Could have been much easier and say if there is an impact on trade between member states we apply EU
law, if this is not the case we apply national law. Some national authorities did not want this, they wanted
to keep the national powers.
Within the system, you are bound by EU law: you have to apply if there’s an inter-state element in your case. you
remain free to adopt laws on unilateral behaviour and free to work on unfair trade practice.
1. ECJ 7 Dec. 2010, C-439/08, VEBIC
It was a case where the Belgian authorities, on its motion (without a complain) started an investigation on price
fixing in the sector of bakery and they imposed a fine. The authority fined. The fined federation appealed the fines.
The judges said “ok, you’re unhappy but where is the authority to defend the fine. It was not present at it was a
administrative court. In many MS, A national judge never goes to a higher judge to defend a judgement: the
judgement should speak for itself. The NCA said that it was not going to appeal. Finally, the appeal decision was
totally national. However, the Court of Appeal didn’t like that there was only one party: it found an inter-state
element and asked for a preliminary ruling.
Is it permitted under modernized completion law for an NCA not to show up in defence its judgment. It’s a
principle question: are we ready to give up that principle: a judge never goes to a higher court to defend its
judgement? The case went to Court, the NCA refused to go Luxembourg (also higher court). The Court basically
said: we can’t force the NCA to always show and it should be the NCA deciding where it wants to go. If you have a
national rule prohibiting the NCA to go there, then this is contrary to EU law. Belgium had to change its law and
change its model: same model as commission model: an authority and not a court anymore as an NCA.
EU competition law has a major effect on the national legal system, not only on the national competition law but
on the entire national procedural law. This is because we don’t have 2 sets of procedural rules (for completion law
cases and non-competition law cases). We have one set of procedural rules. Here in a purely national case the ECJ
forced Belgium to change its national procedural law This is the spill over effect: EU law is more involved where
you don’t expect it and where it should not be (because it is not competent to rule on national procedural law)
“Reg. 1/2003 precludes nat’l rules which do not allow a [NCA] to participate, as a defendant or respondent, in
judicial proceedings brought against a decision that the authority itself has taken.”
“It is for the [NCAs] to gauge the extent to which their intervention is necessary and useful having regard to the
effective application of EU competition law.”
“However, if the [NCA] consistently fails to enter an appearance in such judicial proceedings, the effectiveness of
Articles 101-102 TFEU is jeopardised.”
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