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The New Council Regulation (EC) No. 1/2003 on the Implementation of the Rules on Competition

Published online by Cambridge University Press:  06 March 2019

Felix Müller

Abstract

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The new Council Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Article 81 and 82 of the EC-Treaty, which came into force on 1 May 2004, brings fundamental changes in the application of European competition law. It replaces the Antitrust-Regulation No. 17 which has been in force for more than 40 years. Regulation No. 1/2003 establishes a system of direct applicability of Article 81(3) EC-Treaty, which abandons the requirement of notification as a key element of the old system under Regulation No. 17. Under the new scheme set up by Regulation No. 1/2003 Article 81(3) will be directly applicable. This enables national competition authorities and national courts to apply Article 81 and 82 of the EC-Treaty in their entirety, including paragraph 3 of Article 81. Although the new regulation is to be considered as an important step in strengthening and reinforcing European competition policy, in particular in view of the enlargement of the European Union, the numerous changes involve uncertainties which call for adjustment. The following article gives an overview of the new enforcement system for Articles 81 and 82 of the EC-Treaty, set up by Regulation No. 1/2003.

Type
European & International Law
Information
German Law Journal , Volume 5 , Issue 6 , 01 June 2004 , pp. 721 - 740
Copyright
Copyright © 2004 by German Law Journal GbR 

References

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20 However, it was controversial whether there is a legal basis in the Treaty to establish direct and therefore decentralised application of Article 81(3) EC-Treaty. The legal basis for the Regulation No. 1/2003 is Article 83 of the EC-Treaty. This provision empowers the Council to lay down the appropriate regulations or directives to give effect to the principles set out in Articles 81 and 82. In a non-exhaustive list, Article 83(2) enumerates elements that should in particular be covered by implementing rules created on this basis. The old Regulation No. 17 endowed the Commission with exclusive power to apply Article 81(3) in the framework of an administrative procedure having as its object an authorisation decision. However, the legal basis in Article 83 is not limited to the application of Articles 81 and 82 by specific decision-makers. Article 83 is rather suitable for direct application which can be carried out by other authorities then the Commission. While leaving a certain margin of appreciation as to its interpretation, Article 81(3) does not imply discretionary powers that could only be exercised by an administrative body. A limited margin of appreciation does not make a Treaty provision unsuitable for direct application. On balance, it might be said that Article 83 EC-Treaty is a sufficient legal basis to establish direct applicability of Article 81(3) EC-Treaty by means of adopting a Regulation such as No. 1/2003. See C.-D-Ehlermann, The Modernization of EC Antitrust Policy: A Legal and Cultural Revolution, (2000) 37 CMLRev. 537, P. Craig/G. de Búrca, EU Law, Oxford University Press, 3rd ed., 1063 (2002).Google Scholar

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