From the White Paper to the Proposal for a Council Regulation: How to Treat the New Kids on the Block?
This Paper analyses how the network of enforcers envisaged in the Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (September 2000) would operate. We identify four issues. First, we observe that the Proposal (unlike the White Paper) includes safeguards to avoid a shift of competence in favor of national competition laws, which may be questionable in terms of subsidiarity. Second, we recognize that the accountability of antitrust authorities might vary across the members of the network, so that, for instance, some authorities may be more prone than others to accept industrial policy considerations. The preservation of the Commission’s monopoly (among administrative units) with respect to decisions granting a positive application of Article 81(3) (a matter which was not fully clear in the White Paper) can be seen in this light. We suggest that the imposition of institutional constraints on Member States like accountability and independence standards could have been a more effective way of addressing the issue. Third, we observe that in the proposed framework, sequential enforcement by several authorities is likely to occur and that each Member States will have little incentive to take into account in its decision the interests of other Member States. We show that such a system of enforcement can have a ‘disintegrating effect ’, to the extent that it does not allow for a balance between positive and negative net benefits across Member States. The Proposal contains a number of measures which may reduce the scope of multiple enforcement, without however addressing the underlying incentive issue. We suggest that additional co-ordination between the members of the network may prove necessary. In particular, we advocate the re-emergence in the intra-EC context of a ‘positive comity’ obligation and we suggest that a formal procedure for co-ordination between different institutions might turn out to be necessary. Finally, we observe that if the Proposal formalises the (vertical) relationship between the Commission and the national competition authorities (beyond what was considered in the White Paper), it fails to bind the Commission discretion. We argue, in light of the US experience with multiple enforcement that such commitment would be useful.
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- December 16, 2015