European competences
Mandatory application and decentralisation shift: the contributions of EC Regulation 1/2003
When EC Regulation 1/2003 came into force on 1 May 2004, the application of European law by national competition authorities (NCAs), optional until then, became compulsory. When the [NCAs apply] national law to matters of anticompetitive agreements and dominant positions, European law must also be applied if the practices affect trade between Member States. The application of European law in matters of anticompetitive practices was decentralised so as to improve the efficiency of competition policy. Agreements between companies, formerly subject to a prior-scheme of clearance to be delivered by the European Commission, can now only be contested by way of legal exception before national courts. The objective of this reform is to allow the Commission to focus on larger transactions (or transaction of significant interest for Europe) and to use to a full extent the NCAs’ resources, as they are often best placed to assess the context in which the anticompetitive practices are implemented. The Commission’s monopoly on exemptions was also brought to an end: regarding anticompetitive agreements, national competition authorities may also apply the provisions of §3 of Article 101 TFEU (formerly Article 81 ECT), whereby anticompetitive agreements contributing to economic progress may benefit from an exemption.
The [NCA] within the European Competition Network (ECN)
EC Regulation 1/2003 and its implementation texts institutionalise tight cooperation between NCAs and the European Commission. This cooperation is based on the creation of a network of NCAs, steered by the Commission and relying on a wide exchange of information via a secure Intranet platform. The ECN enables optimal communication between NCAs. It is the foundation stone of the creation and preservation of a common competition culture in Europe and it must maintain both an efficient division of tasks and an efficient and homogenous implementation of European competition rules. The information exchanged may be used as evidence. EC Regulation 1/2003 provides NCAs with the possibility to use the information exchanged as evidence, not just as clues. This right is strictly controlled.
Sharing of cases within the ECN
A single practice affecting trade between Member States may be pending before several NCAs, either in the context of their ex officio self-referral or following a referral from different or same complainants . The Commission Notice on cooperation within the Network of Competition Authorities (2004/C, 101/03) specifies, among others, that there must be a close link between the infringement and the territory of a Member State for the competition authority of said Member State to deem itself "in the best of positions" to take the case, and that it is preferable that the case be taken by a single NCA. Besides, this Communication Notice lists optional criteria for the sharing of cases should several NCAs be competent to take on the same case. © French Competition Authority
