The Modernisation of European Competition Law: First Experiences with Regulation 1/2003 (Report to FIDE Congress 2008)

Posted by D. Daniel Sokol

Eric Gippini-Fournierof the European Commission, Legal Service has written on The Modernisation of European Competition Law: First Experiences with Regulation 1/2003 (Report to FIDE Congress 2008). 

ABSTRACT: This paper is the institutional report written by the author for the Twenty-Third Congress of the FIDE - International Federation for European Law (Fédération Internationale pour le Droit Européen). The biennial FIDE Congresses are widely recognized as the premier forum for discussion of EU law developments. The twenty-third Congress took place in Linz, Austria, 28 to 31 May 2008.

This extensive Report reviews the practical experience acquired with operation of Regulation 1/2003, the Modernisation Regulation. This statute introduced Copernican changes in the enforcement system of EU competition law such as the abandonment of the notification system, and the transformation of Article 81(3) into a legal exception directly applicable by all enforcers and national judges. The Regulation also set out mechanisms for cooperation between the Commission and national authorities and courts, provided for new types of decisions, and expanded the Commission's remedial and investigative powers in competition cases.

The Report:
- outlines the decision-making practice of the Commission in the last four years, and examines the impact of the new procedural arrangements on the Commission's productivity and duration of proceedings;
- describes the experiences made by the Commission in cooperating with national competition authorities and national courts;
- discusses the Commision's new powers of investigation, such as the power to inspect private homes;
- discusses in detail the case law from the European Court of Justice (ECJ) or the Court of First Instance interpreting the new provisions of Regulation 1/2003, including landmark cases such as France Télecom (case allocation) Akzo Nobel (attorney-client privilege), and Alrosa/De Beers (limits of negotiated commitments leading to closure of a case).

Although written by an official of the European Commission, the report reflects personal views not attributable to the institution. In relation to individual, identifiable cases, the report refers exclusively to information publicly available. Developments in substantive competition law are outside the scope of the report, which focuses on the procedural and institutional aspects of the enforcement of Articles 81 and 82 EC.