New Regime to modernise the EU antitrust enforcement rules and procedures come into effect

On the 1st May 2004 a set of six new Notices to modernise the EU Commission antitrust enforcement regime came into effect (having been adopted on the 30th March) at the same time as the new antitrust enforcement Regulation 1/2003 ("Regulation") collectively known as the "Modernisation Package".

The Regulation is the mechanism whereby the EU Treaty rules banning restrictive agreements (Article 81) and abuses the dominant positions (Article 82) are enforced.

European Competition Network (ECN)

A core element of this new regime is the Notice of Cooperation among the network of national competition authorities under the auspices of the ECN which was launched in 2003.

In summary terms, national competition authorities will cooperate closely in the enforcement of EU competition law, including work-sharing and information exchange.

System of Notification to the EU Commission abolished.

The system of notification of business agreements with anticompetitive effects to the EU Commissions seeking authorisation and thus confirmation of legality on the grounds of countervailing benefits for consumers has been abolished by the Regulation. Previously such authorisations ("individual exemptions") were applied for if a block exemption regulation did not apply.

Instead such authorisations can be sought from the relevant national competition authority in the relevant Member State. If the conditions set out in Article 81 (3) are present then the arrangement or conduct in question must be found to comply with the law.

Guidelines as to the proper application of Article 81 (3) have also issued designed to ensure coherent application to the rules and to provide guidance to businesses.

Where novel issues as to the proper interpretation of Articles 81 or 82 arise businesses may still apply to the EU Commission for guidance. Following consideration the commission may issue what are termed "guidance letters" in response.

Conclusion

This Modernisation Package is a significant updating of the law in this area. The intention is to empower both national courts and competition authorities in the enforcement of EU Competition law. Additionally all businesses and national competition authorities will be operating on the proverbial "level playing pitch" in the application of EU Competition law to cases that affect trade between Member States.

For further information contact:
Anthony Layng at
Email : alayng@kilroys.ie

© Kilroys Solicitors June 2004