Evaluating EU Antitrust Procedures: EC Key Findings and Future Directions

By:  Kaan Gürer, Maëlys Duval & Joost Dibbits (Linklaters)

The European Commission has released its findings on the evaluation of Regulations 1/2003 and 773/2004, which define the procedural framework for enforcing Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This publication marks the conclusion of the evaluation process, which the Commission initiated in March 2022 to determine if the antitrust procedural framework remains effective after 20 years. As part of the evaluation, the Commission engaged with stakeholders (see our submission here) and organized a conference in June 2023, followed by an interactive workshop in October 2023, which we attended. In this blog post, we review the Commission’s key findings, where more could have been done, and the next steps.

Key Findings
The Commission, along with most stakeholders involved in the consultation process, acknowledged that the Regulations have been successful in ensuring an “effective, efficient, and uniform application of EU competition rules.” The Regulations replaced the previous centralized enforcement system, which required companies to notify the Commission of restrictive agreements to obtain exemptions under Article 101(3) TFEU. The new framework introduced direct applicability of antitrust rules, replaced the notification system with a self-assessment process, and established a decentralized system for parallel enforcement by the Commission, National Competition Authorities (NCAs), and national courts.

However, 20 years since the Regulations came into effect, the Commission is reconsidering the efficiency and effectiveness of certain procedures, particularly given the increasing complexity brought by digitization and globalization of the economy, and the need for more timely decisions. The new Competition Commissioner, Teresa Ribera Rodríguez, has been tasked by Ursula von der Leyen to “strengthen and accelerate the enforcement of competition rules.” The Commission highlighted several procedural inefficiencies:

1. Interview Powers:
   The Commission’s power to take statements is limited, as it can only interview individuals who consent to being interviewed and cannot impose penalties for providing false or misleading information. This restriction, which has led to infrequent use of this power, is out of step with the broader interviewing powers granted to some NCAs. Given the Commission’s desire to initiate more ex officio investigations, this limitation is becoming increasingly problematic.
2. Coordination within the European Competition Network (ECN):
   Greater coordination within the ECN is necessary, particularly to avoid unnecessary parallel investigations. Following the hotel booking cases, an early warning system was implemented for cases presenting novel issues, resulting in 65 early warnings since 2016. Balancing information sharing across the ECN—without compromising the outcome of investigations—remains a challenge that needs to be addressed.
3. Evidence Gathering:
   Conducting inspections is resource-intensive, with 15.6 full-time employees dedicated to inspections in 2023. While digitalization has given the Commission access to far more data, it has not necessarily improved its effectiveness due to the exponential increase in data volumes. Discussions during the workshop explored solutions such as digital inspections or data freezing orders, which could secure data while reducing the burden on companies. Requests for Information (RFIs), typically taking 40 to 90 days for responses, often fail to comply with the principles of proportionality and necessity, indicating inefficiencies in the process. The Commission agrees that the RFI tool needs to be updated to reflect the realities of the digital economy. Additionally, clarifying how data protection rules apply to investigations may help mitigate delays. Here too, data freezing orders could be a viable solution.
4. Interim Measures:
   The substantive legal test required for interim measures is overly stringent, as the Commission must demonstrate “serious and irreparable damage to competition.” An independent report on interim measures by NCAs found inconsistencies in the application of the legal test among Member States. While 15 NCAs apply the same standard as Regulation 1/2003, 12 NCAs use a less demanding legal test (e.g., Austria requires only prima facie evidence of an infringement, regardless of harm).

Despite these challenges, the EC remains committed to adapting the procedural framework to the demands of the modern economy, ensuring the continued effective enforcement of competition rules across the EU…

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