Three Shifts in EU Competition Policy: Towards Standards, Decentralization, Settlements

AuthorPablo Ibáñez Colomo
Publication Date01 September 2013
20 MJ 3 (2013) 363
P  I  C*
EU competition policy has unde rgone fundamental transformations o ver the past 20 years.
e changes observed are substant ive, procedural and institutional in nature. Two decades
ago, EU competition policy was enforced centrally by the Commission in a way that is
probably best described a s traditional administrative law-making. Policy was formulated
by means of formal decisions adopted in individual cases and by legislative instruments
regulating rm behaviour in detail. Following the adoption of Regulation 1/2003, and as
a result of the use of economic analysis, the enforcement landscape is more diverse and
decentralized. National com petition authorities have emerged as key player s in the eld (a
trend that is also obser ved in other elds of EU economic regulation, including en ergy and
electronic communications). Individual deci sions are now crucially complemented by so
law instruments, th e use of which started in the 1990s and which now permeate the whole
discipline, and by negotiate d procedures.
Keywords: administrat ive law; cartels; competition; economic regulation; judicial
review; so law
It is not an overstatement to say that EU competition policy has cha nged beyond
recognition in the past t wo decades. Changes are noticeable at the formal, inst itutional
and substantive levels. A look at the website of the D irectorate General for Competition
(hereinaer, ‘DG Comp’) reveals the extent to which the enforcement agenda of the
European Commission (herei naer, the ‘Commission’) has evolved over the years. Some
* Department of L aw, London School of Economics and Pol itical Science, e-ma il: P.Ibanez-Colomo@l se.
Pablo Ibáñez Colomo
364 20 MJ 3 (2013)
of the issues to which the authorit y devoted a substantial f raction of its enforcement
eorts in the late 1980s are no longer among its priorities. In parallel, the ght against
hard-core cartels (unani mously understood to be the most egregious of competition law
violations) has acquired ever greater prominence.1 Formal ly, decisions adopted 20 years
ago strike one as brief and u nsophisticated by today’s standards.
Two main forces are behind the observed evolution of thi s eld of EU law. Increased
reliance on economic analysis i s one of them. e transformative impact of t his analytic al
tool on policy-making is bes t epitomized by the 1995 Green Paper on vertical restra ints,2
which led to a complete overhaul of the Commission policy towa rds distribution
agreements and opened the door to simi lar mutations in other areas. e formali stic and
all-encompassing approach towards enforcement found in preced ing texts was replaced
by a more selective form of intervention that relies on the sel f-assessment by rms of their
practices and takes account of the context in which they a re implemented. Economic
analysis now permeates t he application of Ar ticle101 and 102 TFEU and inuenced the
analysis of concentrations v irtually since the adoption of the rst of the t wo successive
Merger Regulations (Regu lation 4064/89 and Regulation 139/2004).3 e so-ca lled ‘more
economics-based approach’ has had a profound impact on the denition of the policy
agenda of the Commission, in t hat it makes it possible to distingu ish those practices with
an ambiguous impact on welfa re and those which rarely ever lead to eciency gains .
e dismantlement of the system of centra lized enforcement of competition law
(what was graphically ca lled the ‘big bang’4 at the time of its entry into force) provisions
introduced by virtue of Regulation 1/20035 is the other fu ndamental factor driv ing
change. National competition authorities (hereinaer, ‘NCAs’) and national court s are
empowered to apply both Articles101 and 102 TFEU and have emerged in pract ice as major
players in the eld during the per iod under consideration. While obviously advanta geous
in many respects (in par ticular, it makes it easier for the Com mission to redene its
enforcement priorities around the most har mful infri ngements), the decentralized model
of enforcement requires sophisticated and well-c alibrated institutional arra ngements to
preserve the uniform appl ication and interpretation of EU competition law…
e move away from legal formalism and a bureaucrat ic, top-down, approach to
enforcement required the use of innovative tools a nd techniques. e implementation
1 According to the st atistics provided on the DG C omp website, the Commission decide d on 20 cartel
cases betwe en 1990 and 1999, and 63 ca ses between 2 000 and 20 09. See http://ec.europa. eu/competition/
index_en. html (last visite d on 27August 2013).
2 Green Paper on Vertical Re straints in EC Comp etition Policy, COM (96) nal 721.
3 Council Reg ulation (EEC) No 4064/89 of 21De cember 1989 on the control of concentrat ions between
undertak ings, [1990] OJ L 395/1; Council Regu lation (EC) No 139/2004 of 20 January 2004 on the
control of concentrat ions between undert akings, [2004] OJ L 24/1.
4 See I. Van Bael, ‘A “Big Bang” in EC Ant itrust Enforcement Proce dure’, in P. Demaret, I. Govaere and
D. Hanf (eds.), 30 Years of European Lega l Studies at the College of Europe (PIE Pet er Lang, Brussels
2005), p.371–385.
5 Council Reg ulation (EC) No 1/2003 of 16 December 2002 on the implementation of t he rules on
competition lai d down in Articles81 and 82 of t he Treaty, [2003] OJ L 1/1.

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