A Missing Step in the Modernisation Stairway of EU Competition Law – Any Role for Block Exemption Regulations in the Realm of Regulation 1/2003?

TLDR: In this paper, the authors revisited the institution of BER, its justification and need in the modernised and decentralised system brought forward by Regulation 1/2003 and the more economic approach to EC competition law.

Abstract: Block exemption regulations (BER) survived the modernisation of EC competition law. According to the European Commission and some commentators, BER have a major role to play in the system instituted by Regulation 1/2003. Others are more critical and consider that BER are hard to nest within the new system, but that they can continue to play a role in providing legal certainty. Still others adopt a more critical approach and propose their axing. This paper adopts the latter approach. In view of the mixed messages that the European Commission is sending in the recent and current review of existing general and sector - specific BER, this paper undertakes to revisit the institution of BER, its justification and need in the modernised and decentralised system brought forward by Regulation 1/2003 and the more economic approach to EC competition law. After reminding the initial justification for BER under the prior enforcement system, the paper stresses the difficulties for its fitness within the new paradigm - with particular focus on the distortions that BER can generate for an effective and consistent enforcement of EC competition law. The paper concludes with the recommendation of a complete repeal of the BER mechanism and its substitution with general guidance through non‐binding guidelines.