On September 5, 2024, the European Commission (“Commission”) published a Staff Working Document[1] summarizing the outcome of an evaluation of Regulations 1/2003 and 77/2004, which govern the procedural framework for enforcing EU competition rules under Articles 101 and 102 TFEU (“EU Antitrust Enforcement Framework”). On the same day, the Commission adopted a report on the use of interim measures by National Competition Authorities (“NCAs”).[2]
Background
After 20 years of applying the rules introduced by the modernization of the EU Antitrust Enforcement Framework, including the possibility of parallel direct enforcement of EU competition rules by NCAs and the elimination of the prior system requiring notification of agreements to the Commission for an exemption under Article 101(3) TFEU, the Commission initiated an evaluation to determine if Regulation 1/2003 and its Implementing Regulation 773/2004 were still effective and whether any changes were needed.[3] The evaluation is part of a wider assessment of EU competition law which will allow the Commission to decide whether to launch a process of legislative review of the EU Antitrust Enforcement Framework.
The Commission also adopted a report on the use of interim measures by NCAs. The report highlights changes in the relevant legal frameworks and analyzes the variation between NCAs when it comes to adopting interim measure decisions.[4]
Main Findings of the Evaluation and Report
The evaluation finds that the EU Antitrust Enforcement Framework has been successful overall. In particular, there has been positive feedback on the removal of the old system of notifying agreements for exemption under Article 101(3) TFEU. The evaluation also praises the shift to a decentralized enforcement system, with NCAs and the Commission adopting over 1,650 decisions, 85% by NCAs, showing their key role in enforcing EU competition law.[5]
The Commission notes that it has imposed over €42 billion in fines, with €37 billion upheld by EU Courts on the basis of the EU Antitrust Enforcement Framework. From 2012 to 2021, cartel and antitrust interventions by the Commission are estimated to have saved customers between €50 and €87 billion.[6]
The evaluation notes that the European Competition Network (“ECN”) has ensured a uniform application of antitrust rules, but it highlights that further cooperation and faster investigations are needed. Specifically, the evaluation stresses the need to prevent unnecessary parallel investigations and strengthen the relationship between EU and national competition laws for consistent enforcement of all legal instruments.[7]
Finally, the evaluation points out the need for faster investigations and identifies several challenges, including those related to digitalization. It mentions that investigation tools designed for a paper world struggle to keep pace with larger, data-heavy cases. For instance, creating non-confidential versions of the Commission’s files, originally intended for smaller investigations, now places a heavy burden on parties, information providers, and the Commission.[8]
The Commission’s report on interim measures includes a review of key cases and points out that certain jurisdictions—those with simpler procedural rules and less stringent legal requirements for imposing such measures—allow for NCAs to impose interim measures more often. However, the use of interim measures remains as a strategic choice.[9] Over half of the 95 interim measure decisions adopted between May 1, 2004 and June 1, 2024, came from just three authorities: France (20), Belgium (18), and Italy (14).
Conclusion and Takeaways
The evaluation of the EU Antitrust Enforcement Framework was a timely and necessary step, which has shed light on certain outdated aspects of antitrust investigations. In particular, the digital age calls for faster access to files and better coordination among European competition enforcers. However, it remains to be seen whether a legislative review of the EU Antitrust Enforcement Framework will remain a priority for the new Competition Commissioner-designate, Teresa Ribera, who is expected to take office in November 2024.
[1] Commission Staff Working Document Evaluation of Regulation 1/2003 and 773/2004, SWD (2024) 217 final of September 5, 2024.
[2] Report from the Commission to the Council and the European Parliament on the legal framework for and the use of interim measures by National Competition Authorities, COM (2024) 394 final of September 5, 2024.
[3] The Commission gathered evidence on the functioning of the EU Antitrust Enforcement Framework through a public consultation (see press release), a conference on 20 years of Regulation 1/2003 (see press release), a stakeholder workshop (see press release), and an external evaluation support study.
[4] Report from the Commission to the Council and the European Parliament on the legal framework for and the use of interim measures by National Competition Authorities, COM (2024) 394 final of September 5, 2024.
[5] Commission Staff Working Document Evaluation of Regulation 1/2003 and 773/2004, SWD (2024) 217 final of September 5, 2024. pp. 49, 55, 61, 228.
[6] Ibid.
[7] Ibid., pp. 76–77, 138.
[8] Ibid., pp. 66–67, 186–187.
[9] Report from the Commission to the Council and the European Parliament on the legal framework for and the use of interim measures by National Competition Authorities, COM (2024) 394 final of September 5, 2024, pp. 10–15.