The development of the European Commission policy and case-law after Altmark on the relationship between Articles 107(1) and Article 106(2) TFEU (original) (raw)
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Under Regulation 1/2003, NCAs of EU Member States must apply Articles 101–102 TFEU to anti-competitive conducts with an effect on intra-Community trade, and must notify the Commission of investigations and envisaged decisions based on Articles 101–102 TFEU. In the last decade, the NCAs of the “new” EU Member States have notified a lower number of envisaged decisions in comparison to “old” EU Member State; this has been explained by the institutional constraints of the individual NCAs. However, the paper shows that the NCAs of the “new” EU Member States have not been “less active” in terms of enforcement, but have adopted most of their decisions under the national competition rules. Also, there is significant divergence in the assessment of the effect on trade by the NCAs of the selected jurisdictions. Some NCAs have not taken account of the relevant ECJ case law and the 2004 Commission Notice on the effect on trade concept. The paper calls for a reform of Article 3(1) Regulation 1/2003, supplementing the effect on trade criterion with quantitative thresholds.
Under Article 3(1) Regulation1/2003, the national competition authorities (NCAs) of the EU Member States have to apply Articles 101-102 TFEU vis a vis anti-competitive conducts which have an effect on intra-community trade. Under Article 11 Reg. 1/2003, NCAs have to notify the EU Commission about the opening of the investigations and the envisaged decisions based on Articles 101-102 TFEU, while such obligation does not exist in relation to decisions adopted under the national competition law. During the last decade, the NCAs of the “new” EU Member States have notified a lower number of envisaged decisions in comparison to the fellow authorities of the “old” EU Member States. The lower number of notifications has been explained by the institutional constraints of the individual NCAs. Contrary to such perception, the paper shows that the NCAs of the “new” EU Member States have not been “less active” in terms of enforcement, but they have adopted the largest part of their decisions under the national competition rules. By analysing the application of the effect on trade assessment by the selected NCAs of the “new” EU Member States, the paper reveals significant divergences in the assessment of the effect on trade by the NCAs of the selected jurisdictions; divergence which undermines the functioning of the decentralized system of the EU competition law enforcement. The paper calls for a reform of Article 3(1) Reg. 1/2003, supplementing the effect on trade criterion with clearer quantitative thresholds.