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Brook, O and Cseres, KJ (2019) Member States’ Interest in the Enforcement of EU
Competition Law. In: Varju, M, (ed.) Between Compliance and Particularism: Member
State Interests and European Union Law. International, Foreign & Comparative Law .
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Member States’ Interest in the Enforcement of EU Competition Law:
a Case Study of Article 101 TFEU
Or Brook and Katalin J. Cseres
Abstract The decentralisation of the public enforcement of Articles 101 and 102 TFEU under
Regulation 1/2003 altered not only its institutional setup by delegating enforcement responsibilites
to national competition authorities (NCAs) and courts, but also the possibilities for Member States to
implement their respective national competition policies and the domestic interest considerations
embedded therein. In the multilevel governance framework established by Regulation 1/2003, the
enforcement of EU competition law takes place exposed to the national political, institutional and
procedural context. In particular, national laws and legal and administrative practices, which bind
NCAs and national courts, directly influence the application of Articles 101 and 102 in the national
territory. This chapter examines examples of such national measures and practices and assesses their
impact of re-nationalising EU competition law and policy.
O. Brook - K.J. Cseres
University of Amsterdam, Faculty of Law
Amsterdam, the Netherlands
e-mail: k.j.cseres@uva.nl
1 Introduction
Even though competition law has always formed a core pillar of the European integration process,
for several decades EU and national competition laws have developed along each other with little
interaction. EU competition law functioned as a supranational policy in the EU with the European
Commission as the central body of public enforcement. This has fundamentally changed when
Regulation 1/2003 (hereinafter, Regulation) entered into force in May 2004.
1
The Regulation has
decentralised the public enforcement of Articles 101 and 102 TFEU by delegating enforcement
powers to national competition authorities (NCAs) and national courts. The new Regulation paved
the way for a greater role of Member States' courts and NCAs in the enforcement of Articles 101 and
102. Regulation 1/2003 has also introduced various mechanisms of cooperation between the
Commission and the national enforcers, in particular the European Competition Network (ECN) (see
Gauer et al. 2004). The Regulation and the Commission repeatedly emphasised that the multi-
governance enforcement regime should not compromise the creation of a single corpus of rules to
be developed and applied in the same manner throughout the EU.
2
Nevertheless, this chapter will show that the decentralised enforcement system has also opened up
new ways for NCAs to implement their national competition policies. Whereas the combination of
Regulation 1/2003 and the so-called Modernisation Package
3
have stimulated an exceptional process
of Europeanisation, its multi-level governance framework has made the enforcement of EU
competition law subject to to the involvement of diverse national competition enforcers embedded
in different political, institutional and procedural settings. This has given the Member States the
opportunity to implement their own national competition interests within the EU legal and
governance framework, while creating a risk of re-nationalising EU competition law and policy.
In this context, we define national interest as expressed in various measures of the Member States,
such as laws, regulations, soft laws, judicial and administrative decisions and actions. As elaborated
in Sect. 3 below, we will show that national interests can influence the effective scope of Article 101
TFEU by way of the leeway permitted at the national level under the decentralised enforcement
system of Regulation 1/2003 in two distinctive ways: first, Member States can adopt national
measures that limit the enforcement of Article 101 TFEU. Second, NCAs and national courts can apply
the substantive provisions of the Article in ways that bring the enforcement of the Article in line with
their national interest.
1
Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in
Articles 81 and 82 of the Treaty, [2003] OJ L1/1.
2
Regulation 1/2003, Article 16 and preambles 1 and 22; European Commission (1999), points 11, 24.
3
It consists of Regulation 773/2004 on details of its competition law procedures as well as six Commission Notices aimed at
providing guidance on a range of aspects that were of particular significance in the decentralised enforcement system. With
the aid of these soft law instruments, the Commission explained the application of the Treaty articles and provided
guidance to assist undertakings and national competition enforcers in assessing the compatibility of a specific practice with
EU competition law. Regulation (EC) 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission
pursuant to Articles 81 and 82 of the EC Treaty, [2004] OJ L123/18; Commission Notice on cooperation within the Network
of Competition Authorities, [2004] OJ C101/43; Commission Notice on cooperation between the Commission and the courts
of the EU Member States in the application of Articles 81 and 82 EC, [2004] OJ C101/54; Commission Notice on informal
guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (Guidance
Letters), [2004] OJ C101/78; Commission Notice on the handling of complaints by the Commission under Articles 81 and 82
of the EC Treaty, [2004] OJ C101/65; Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty,
[2004] OJ C101/81; Guidelines on the application of Article 81(3) of the Treaty (“Article 101(3) Guidelines”), [2004] OJ
C101/97.
Notably, the role of national interest in the enforcement of EU competition law has so far only
received attention in the fields of merger control and State aid rules (see Jones and Davies 2015;
Reader 2016), which are still enforced in a centralised manner by the Commission. This chapter
provides the first critical assessment of the way in which Member States incorporated national
interests in the enforcement of Article 101 TFEU. The chapter aims to identify and analyse the
manifestation of Member States’ national interest in EU competition law by scrutinising the
decisional practices of five NCAs: those in France, Germany, Hungary, the Netherlands and the UK.
4
Accordingly, this chapter is structured as follows. Sect. 2 examines the transformation of EU
competition law enforcement following Regulation 1/2003 and the Commission’s effort to combat
the risks of re-nationalisation of EU competition enforcement. Sect. 3 analyses the Commission’s
efforts to guarantee uniform enforcement of Article 101 and presents illustrative examples of the
two distinctive ways the Member States use to incorporate their interests in the local enforcement of
Article 101 TFEU. Finally, Sect. 4 concludes by suggesting that the national practices analysed are an
expression of the tension between Member States’ obligation of compliance and the particularism of
national economic policies.
2 The Transformation of EU Competition Law Enforcement and its Impact on
the Uniform Enforcement of Article 101 TFEU
2.1 The Centralised Enforcement System of Regulation 17/62
Competition law has been a fundamental area of EU law ever since the establishment of the Treaty
of Rome in 1957. Before its modernisation in May 2004, the Commission had a central role in the
enforcement of EU competition law. This centralised enforcement system was an important
exception to the generally decentralised enforcement framework of other fields of EU law. Its
introduction was justified by the fact that many Member States lacked a proper competition law and
enforcement regime until the 1980s, or in some cases the late 1990s. Until this period, competition
law has not been regarded as an economic policy tool of primary importance in most of the EU
Member States (Gerber 1998, 398).
The centralised nature of the enforcement system was reflected in the Commission’s monopoly over
the application of Article 101(3) under the centralised enforcement framework of Regulation 17/62.
5
The Commission enjoyed a considerable margin of discretion in applying the conditions laid down in
Article 101(3) in order to guarantee its coherent and uniform application throughout the common
4
The analysis of the national practices of the five NCAs is based on the empirical database developed by Brook, Brook
(forthcoming).
5
Council Regulation 17/62 (EEC) First Regulation implementing Articles 85 and 86 of the Treaty, [1962] OJ L13/204.
market. It was feared that if the NCAs would be given powers to apply Article 101(3) they could
incorporate their own national interests into their decisions (European Commission 1999, point 17)
(See also Wils 2005, 6–7; Gerber 2008, 1239; Ehlermann 2000, 537–538; Temple Lang 1998, 3; Jones
2010, 787–788; Sauter 2018, 41–42). This position was clearly formulated in a 1993 Commission
policy report, noting that “the grant of a derogation from the ban on restrictive agreements requires
assessment of complex economic situation and the exercise of considerable discretionary power,
particularly where different objectives of the EC Treaty are involved. This task can only be performed
by the Commission” (European Commission 1993, point 190).
6
2.2 The Decentralised Enforcement System of Regulation 1/2003
Regulation 1/2003 has fundamentally changed the enforcement system in order to relieve the
Commission of its increasing administrative burden and make the overall enforcement more
effective. The change was twofold. First, the Regulation shifted the enforcement from a notification
to a self-assessment regime. Second, it decentralised the enforcement by entrusting the NCAs and
national courts with power to apply Articles 101 and 102 TFEU in parallel to the Commission.
The motive for decentralisation was not purely administrative. Decentralisation also reflected a
political objective of bringing “the decision-making process closer to citizens” through allowing
consumers to address NCAs and national courts in order to improve the European citizens’
perception of competition policy (European Commission 1999, points 9–10). As such,
decentralisation was seen as an important component to provide a stronger and more democratic
political support to the EU competition policy (European Commission 1999, points 10, 21).
However, bringing the decision-making process closer to citizens carried an inherent risk that NCAs
would incorporate their own economic and political interests into EU competition policy (see Maher
2002, 224; Simonsson 2010, 111).
From the very launch of the Modernisation White Paper (European
Commission 1999), it was feared that the NCAs’ institutional, personal and financial settings would
allow national governments and parliaments to influence the outcome of the enforcement (German
Monopolies Commission 2000, paragraph 40; UK Parliament 2000, paragraphs 11, 150; Wils 2013,
295). Particularly, given the vague wording of Article 101 TFEU, there was a clear risk of the
enforcement of the Article becoming subject to the discretion of each national enforcer, to its
institutional, procedural and political characteristics and competition culture.
6
This position was widely shared by members of the competition epistemic community. For example, Claus-Dieter
Ehlermann, former Director-General of DG COMP until 1995, described the Commission’s monopoly as “almost a religious
belief”, and noted that “Not to adhere to it was considered heresy, and could lead to excommunication”, Ehlermann (2000),
537–538.
