EU: EC looks into giving more powers to national competition watchdogs

While the European Commission is — and always will be — the antitrust arbiter-in-chief, national competition authorities in the EU’s 28-member countries also play a role in fighting cartels and monopolies, one the EC is thinking about beefing up after more than a decade of cooperation.

The twin-track enforcement stems from a landmark reform in place since May 2004, when the EU grew from 15 to 25 countries in an eastern expansion and the EC sought to offload some of its antitrust work. Regulation 1/2003, as the overhaul is formally known, empowered NCAs and national courts to apply all aspects of EU competition law while also giving the EC greater scope to set its priorities.

Europe’s twin-track approach to antitrust enforcement is more pronounced than the arrangement employed in the US, where enforcement is primarily the purview of either the Department of Justice or the Federal Trade Commission. Individual states do have their own enforcement powers but in practice generally work in tandem with federal regulators and rarely deviate from DOJ and FTC decisions.

In Europe, it’s “like having a DOJ or FTC at the central level, and then having a mini-DOJ in every state, except we are talking about countries,” said Assimakis Komninos, a Brussels-based competition partner with White & Case law firm who spent two years on Greece’s Hellenic Competition Commission. “Each of those mini-DOJs may be enforcing EU competition law in parallel to their own competition laws, but the procedures are national and non-federal.”

For the most part, the power sharing works well, at least in cartel probes: NCAs are supposed to alert Brussels when they open a probe under EU competition rules and when they are about to issue a positive decision. And if the EC looks into a potential infringement, NCAs cannot probe the same infringement.

That may change as EU Competition Commissioner Margrethe Vestager considers how to give NCAs more teeth, following a recent public consultation.

“It’s because we want consumers to be adequately protected, wherever they are in Europe, that we’re looking to make sure national competition authorities have all the powers they need to enforce our rules,” the Vestager said in a speech in May. She also told EU legislators in April that consumers should expect the same level of market fairness no matter where in the EU they live.

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