The Modernization of the Enforcement of Articles 81 and 82 EC: A Legal and Economic Analysis of the Commission's Proposal for a New Council Regulation Replacing Regulation No. 17
The purpose of this Essay is to analyze the proposed new regime for the enforcement of Articles 81 and 82 of the EC Treaty, compared with the current situation under Regulation No. 17, in the light of the four dimensions which have just been identified. The issue of timing of legal intervention is discussed first. Indeed, the most important aspect of the proposed reform is the abandonment of the current (pretence at) ex ante enforcement through prescreening and the move to a pure system of ex post enforcement through deterrence. The following section looks at the role of the competition authorities of the Member States (hereafter also called “national competition authorities”) versus the European Commission. The proposed reform facilitates the enforcement of Articles 81 and 82 EC by the national competition authorities, by removing the Commission's current monopoly for the application of Article 81(3), while providing for increased cooperation among the competition authorities of the different Member States and the Commission within a coherent network. The next section considers the role of private parties in the enforcement of Articles 81 and 82 EC, and the role of national courts. The main change here is that the proposed new regulation empowers national courts, when called upon to apply Article 81(1), to apply also Article 81(3) themselves. The following section deals with sanctions, in respect of which no major changes are proposed by the Commission. The final section contains a short conclusion.
Wouter P.J. Wils,
The Modernization of the Enforcement of Articles 81 and 82 EC: A Legal and Economic Analysis of the Commission's Proposal for a New Council Regulation Replacing Regulation No. 17,
24 Fordham Int'l L.J. 1655
Available at: https://ir.lawnet.fordham.edu/ilj/vol24/iss5/6