ABSTRACT
Summary 871
30.1 Introduction 874
30.2 Enforcement of Articles 81 and 82 EC by the Commission 876
30.3 Enforcement of Articles 81 and 82 EC before national courts and cooperation between the Commission and national courts 894
30.4 Enforcement of Articles 81 and 82 EC by national competition authorities (NCAs), co-operation between the Commission and NCAs, and co-operation between NCAs within the European Competition Network (ECN) 900
Aide-mémoire 907
SUMMARY
1. This chapter examines the enforcement of Articles 81 and 82 EC by the Commission, by national courts and by NCAs and the manner in which all competition law enforcement bodies within the EU are required to co-operate in order to ensure the uniform application of EC competition law. 2. The process of modernisation and simplification of EC competition law has resulted in the major overhaul of the enforcement of Articles 81 and 82 EC. Its main components are:
First, prior to the overhaul (which decentralised the enforcement of EC competition law) national courts could apply Articles 81(1) and 82 EC, as both have direct effect, but not Article 81(3) EC. As a result of Regulation 1/2003 the Commission has relinquished its exclusive power to grant exemptions under Article 81(3) EC. This article has become directly effective and can be applied by NCAs and national courts. The major implication for undertakings is that the previous system of notification under Article 83(3) EC has been abolished. If an agreement satisfies the requirements of Article 81(3) EC, it is valid and enforceable ab initio. It is for the undertaking concerned to assess whether this is the case and, if necessary, to defend its assessment before national courts and NCAs.
