MP 2014/164 - Art. - Don’t slice the onion, take the whole bulb
Aflevering 4, gepubliceerd op 01-07-2014 geschreven door dr. S. Brammer LL.M.Ten years ago, on 1 May 2004, Regulation 1/20031 entered into force. It brought about major changes in the way in which the competition rules of the European Union (‘EU’ or ‘the Union’) are enforced. Regulation 1/2003 established, inter alia, a formal obligation on the national competition authorities (‘NCAs’) to apply Articles 101 and 102 TFEU whenever they apply their domestic competition rules and the relevant conduct has an effect on trade between Member States.2 As a consequence, NCAs have since then become increasingly active in the enforcement of the Union’s antitrust law. Generally, the decentralised enforcement system is considered to work smoothly.3 However, also after a decade of involvement of the NCAs, a number of issues associated with the implementation of Articles 101 and 102 TFEU at national level remain unsolved. One of them is the question to which extent an NCA, when imposing sanctions for violation of Article 101 TFEU, can take into account that the geographic scope of the anticompetitive conduct reaches beyond the NCA’s territory, i.e. that it has extraterritorial effects. Yet, this is a common problem as Article 101 TFEU only applies if the relevant behaviour – actually or potentially – affects trade between Member States. In other words, the activities of a cartel prosecuted under Article 101 TFEU typically span several Member States.