ARTICLE: EUROPEAN UNION - COMPETITION LAW ENFORCEMENT - NATIONAL COMPETITION AUTHORITIES - REGULATION - MEMBER STATES OBLIGATIONS

The obligation for the competition authorities of the EU Member States to apply EU antitrust law and the Facebook decision of the Bundeskartellamt

KEYWORDS

Article 3 of Regulation 1/2003 obliges the competition authorities of the EU Member States (national competition authorities or NCAs) to apply Articles 101 and 102 TFEU (EU antitrust law) whenever they apply national competition law to conduct falling within the scope of EU antitrust law. Moreover, the application of national competition law cannot lead to the prohibition of agreements or concerted practices that affect trade between Member States but are not prohibited by Article 101 TFEU. National competition authorities can, however, use national competition law to prohibit unilateral conduct that is not prohibited by Article 102 TFEU. This paper examines the content and rationale of these provisions of Article 3 of Regulation 1/2003, and the legal consequences in case of non-respect of these provisions, using as an example the Facebook Decision of 6 February 2019 of the German Federal Competition Authority (Bundeskartellamt).

I. Article 3 of Regulation 1/2003 1. Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements between undertakings that affect trade between EU Member States and restrict competition without redeeming virtue. Article 102 TFEU prohibits abuse of a dominant position within the EU internal market or in a substantial part of it. [1] 2. The main implementing regulation for Articles 101 and Article 102 TFEU is Regulation 1/2003, which was adopted on the basis of Article 103 TFEU and entered into application on 1 May 2004. [2] Under Regulation 1/2003, both the European Commission and the competition authorities of the EU Member States (national competition authorities or NCAs), forming together the European Competition Network (ECN), pursue infringements

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