Son Güncelleme Tarihi 01.07.2003
 

 

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THE DECENTRALISATION OF THE EUROPEAN UNION COMPETITION LAW

Arş. Gör. Burcu DAL*

 

Özet:

AVRUPA BIRLİĞİ REKABET HUKUKUNDA YETKILERİN PAYLAŞIMI

Avrupa Birliği Rekabet Politikası, bugüne kadar Avrupa Birliğinin entegrasyonunda her zaman temel araç olarak görülmüştür. Avrupa Birliği Anlaşmasının 3(g) maddesine göre, bu anlaşmanın belli başlı hedeflerinden bir tanesi, ortak pazardaki rekabetin bertaraf edilmesinin önlenmesidir. Bu önemli ve zor görevin yüklendiği organ ise Komisyondur.

Avrupa Birliği Anlaşmasının 211. maddesi gereğince, Komisyonun temeli görevi ortak pazarın işleyişi ve gelişimini sağlamak ve rekabet kurallarını yürütmektir. Bu görevin uygulanmasında komisyon diğer Avrupa Birliği organlarınca, özellikle Konsey ve 17 sayılı Tüzük (rekabet kurallarının uygulanması açısından temel düzenleyici çerçeve) tarafından çok geniş yetkilerle donatılmıştır. Öyle ki, madde 81(3)’e göre eylemlere muafiyet tanınmasında tek yetkili organ Komisyondur. Dahası Komisyon çok geniş soruşturma ve yürütme yetkileri ile donatılmış ve böylelikle bazı durumlarda yargı organlarının divanın görevlerini de üstlenmiştir. İşte Komisyonun hem savcı, hem idareci, hem de hakim rolünü oynadığı, tek yetkili olduğu merkezi bir sistem kurulmuştur.

Böylesine geniş yetkilerin atfedildiği dönemde, temel amacın üye devletlerin farklı hukuklarının uyumlaştırılması, aradaki ihtilafların giderilmesi, Avrupa Birliği entegrasyonun sağlanması olması dolayısıyla, güçlü bir sisteme ihtiyaç duyulmuş ve bu merkezi sistem en uygun çözüm olarak öngörülmüştür. Fakat zamanla gerek dünya piyasalarındaki, gerekse Avrupa birliğinin kendi içindeki hızlı genişleme ve büyüme sonucu Komisyonun iş yükü önemli derecede artmış ve eski merkezi sistem yetersiz, işlevini yürütemez bir hal almıştır.

İşte bu sebeplerden ötürü, Komisyonun iş yükünü hafifletmek için son yıllarda çeşitli yollar aranmaktadır. De minimis(hoşgörülebilirlik) doktrini, blok istisnaların tanınması, comfort letters çözüm olarak denenmiş ama yeterli olamamıştır.

Son dönemde çözüm olarak görülen, çok ilgi çeken yeni bir fikir ortaya atılmıştır. Bu akımın adı ‘decentralisation (yetkilerin paylaşımı, adem-i merkeziyet)’dır. İlk defa 1980’lerde ortaya atılan ve 1999’de de Beyaz Kitap ile önerilen bu kavram esas olarak, karar verme ve yürütme görevinin Komisyon ve üye devletler arasında paylaşılması, böylece ulusal otoritelerin Madde 81(şirketlerin uyumlu eylemleri yoluyla rekabetin bozulması) ve 82’nin (bir şirketin hakim durumu kötüye kullanması) uygulanmasında yetkilerinin artırılması fikrine dayanmaktadır. Bu prensibe birliği ilgilendiren konularda komisyonun karar vermesi, üye devletlerin menfaatlerine ilişkin konularda ulusal otoritelerin yetkili olması esasına dayanan ‘subsidiarity’ prensibi kaynaklık etmektedir.

Bu kavram uyarınca ulusal mahkemelerin ve rekabet otoritelerinin karar verme ve uygulamadaki (özellikle madde 81 ve 82 nin uygulanmasındaki) yetkileri artırılacaktır. Böylece ulusal otoriteler kendi devletleriyle ilgili konularla ilgilenirken, Komisyonda birliği ilgilendiren daha önemli konulara eğilebilecektir. Ayrıca kaynak ve yeterli eleman temini sağlanırken, ulusal mahkemelerin ihtiyati tedbir tayin yetkisi gibi uygulamaya dair bir takım avantajlar da sağlanabilecektir.

Her ne kadar iş yükünü hafifletecek iyi bir çözüm gibi görünse de bu sistemin de kendi içinde bir takım dezavantajları vardır. Mesela, davalar komisyondaki tecrübeli kişilerin yerine, bu vakalarla ilk defa karşılaşmış bilgi ve yetki açısından yetersiz kişilerce ele alınacaktır ki bu da yanlış ve eksik uygulamalara sebep olacaktır. Ayrıca üye devletlerin kural ve sistemlerindeki farlılıktan ötürü, hukuki belirlilik ve şeffaflığı ortadan kaldırabilecektir. Dolayısıyla birliğin entegrasyonunu, uyumunu zedeleyici farklı uygulamalar gündeme gelebilecektir.

Kanaatimce yukarıda sayılmış olan sebeplerden ötürü, ‘decentralisation (yetkilerin paylaşımı)’ fikri doğru yönde atılmış doğru bir adım olmasına, bu konuda ilerlemelerin kaydedilebileceği faydalı bir reform olmasına rağmen, tanınan yetkilerin ve mevcut düzenlemelerin yetersiz olmasından dolayı üzerinde daha çok çalışılıp, geliştirilmesi gereken bir girişimdir. 

 

A. INTRODUCTION

Parg. 1.          European Competition policy has always been regarded as one of the main instruments in the integration of the European Community. As it is set out in Article 3(g) of the EC Treaty[1], one of the principle objectives of the EC Treaty is to maintain a system ensuring that competition in the Common Market is not distorted. The organ that is entrusted with the enforcement of this important and the heavy duty is the Commission.

Parg. 2.          According to Article 211 EC (previously Article 155), the Commission’s main responsibility is to ensure the proper functioning and development of the Common Market. While political circumstances have reduced the Commission’s role in many areas to that of a “secretariat”, competition law has stayed as an exception. The Commission had more autonomy here than elsewhere, allowing it to pursue its goals with less political interference.[2] In fact the Commission enjoyed a centralised enforcement with extensive powers given by the Council, such as the authority to promulgate legislation without the approval of the Council. However this led to a margin in the role of national competition authorities and limited them only to the application of Article 81(1) and 82 under strict circumstances.

Parg. 3.          In the course of time, in relation to the changes as the nature of the world’s economy, globalisation of markets, arrival of the new members to the EC, the Commission’s workload has considerably increased. Due to the insufficient resources for the overloaded tasks, the current centralised system has fallen short to meet the needs. As a matter of fact, in recent years, the Commission has been looking for a solution to minimise its current task in the enforcement procedure. The methods of de minimis, issuing block exemptions and comfort letters have been applied but they could not suffice as an effective solution.

Parg. 4.          Moreover since the 1980s, there has been a new approach called “decentralisation”, namely, the process of sharing the decision-making and the enforcement powers between the Commission and the national authorities. Indeed in the White Paper 1999[3], decentralisation has been offered as a solution to the over centralised system and some proposals have been made to elaborate these ideas.

Parg. 5.          On the other hand, like centralisation, decentralisation has also some benefits and drawbacks. In the following sections, the drawbacks and benefits of both systems will be analysed and it will be discussed whether the current system is better than the new one offered.

                  B. THE COMMISSION’S ROLE WITHIN THE CURRENT SYSTEM (STATUS QUO)

Parg. 6.          By virtue of Article 211 of the EC Treaty, the main task, to be “the guardian of the EC Treaty” was given to the Commission and it was also entrusted with the enforcement of the Community Competition Laws. Moreover it exercises some specific powers given to it by the Council of Ministers. As it is looked at the current situation and the extensive powers of the Commission, it can be easily seen that it is not only the EC Treaty that puts the Commission in the centre, but also the Council of Ministers and the Regulation 17/62[4] make its position stronger in the enforcement of competition law. So as a result, all these procedures lead to a central administration in the competition policy.

Parg. 7.          Regulation 17 provides the current centralised enforcement system regarding Article 81. In this regulation, the Commission was granted with extensive powers by the Council of Ministers. Under Article 9(1), the Commission has the sole power to grant exemptions pursuant to Article 81(3) of the Treaty. Moreover in order to be granted exemption, private parties have to notify the relevant agreements and concerted practises, which are considered to fall in the scope of Article 81(1). This authorisation system in Article 4(1) is the main factor, which enhances the centralisation of the enforcement, and causes businesses, and their representatives to turn to the Commission for guidance.

Parg. 8.          Under Article 11-14, the Commission has extensive investigating and enforcement powers. In fact, it can collect information, even from the third parties. Furthermore                                                                           when the Commission has initiated a procedure under Article 2,3,6, national authorities lose their competence to apply Article 81(1) and Article 82 and have to stop their procedures with regard to that conduct. This provision is a significant example that shows the Commission’s supremacy over the national authorities. Indeed, it refrains the Member States from initiating their own investigations.

Parg. 9.          Additionally, it has an extensive decision-making power. Due to this, the Commission does not have to consult any other body of the Community before initiating an investigation and it can issue interim measures to secure the termination of anti-competitive practices, grant an exemption, and it can even levy fines if it finds the practise harmful for competition.

Parg. 10.      On the other hand, the Council contributed to the power of the Commission to a great extent by granting the authority to legislate without the approval of the Council. The Commission also enjoyed the political support of the Court of Justice at the outset. But after the Commission obtained its own power to legislate, it did not need the Court’s leadership anymore. In essence, a political institution has replaced a judicial institution as the driving force within the competition law system.[5]

                  I. Drawbacks of the current system

Parg. 11.      Due to the complex and over-centralised enforcement procedure, such as the broad interpretation of Article 81(1) EC, notification procedure, the caseload of the Commission has been augmented contrary to the insufficient resources and staff. In relation to this, it causes lots of backlogs and delays in the process. For example, in 1998, the Commission adopted only 13 formal decisions, while more than 1,100 proceedings were still pending.[6]

Parg. 12.      Such an extensive set of powers has also been criticised on the grounds that the Commission acts both as prosecutor and judge.[7] However, these criticisms are rejected in relation to the existence of appeal procedure to the Court of First Instance and ECJ and the aim of the EC at the time of the enactment of Regulation 17. The predominant objective of the Community was to overcome any separation of the envisaged Common Market along the lines of the borders of the Member States. Thus, market integration and the promotion of the Common Market were the central features which determined not only the goals but also the scope of the Community’s antitrust system.’[8]

Parg. 13.      Because of the differences and conflicts between the competition laws of the Member States, the Commission was seen as the most suitable body to facilitate the uniform application and interpretation of the competition policy. That is why, it is empowered with the extensive powers, and the central enforcement procedure was seen as an advantage rather than a drawback.

Parg. 14.      In recent years, the conditions such as the speed of the world economy, the coming of the single currency and the globalisation of the world trade, that led the Community to a centralised enforcement, have changed. In addition to these, there have also been lots of developments in the borders of the EC. It is not a Community with six members anymore, but enlarged to fifteen Member States.

Parg. 15.      In retrospect, it is clear that the centralised authorisation system set up by the Regulation 17 in 1962 made sense only if the Commission dealt with a manageable amount of cases.[9] Therefore the competition policy switched from preventing the portioning of the Common Market to providing a workable competition.    

                  II.  Solutions offered

Parg. 16.      In order to decrease the excessive workload and to avoid the drawbacks, the Commission started to look for some solutions and introduced new methods. Firstly in the 1970s, the de minimis rule was introduced. In the case Volk v. Vervaecke, the Court held that Article 81(1) EC would not catch an agreement, if it did not have an appreciable impact on competition or on inter-state trade.[10] So they do not have to be notified.

Parg. 17.      Secondly, the other method found to reduce the workload is the block exemption procedure. Because of the shortage of resources in the Commission, it is really difficult to grant a formal decision for each request under the complex exemption procedure. In order to reduce the burden of thousands of standard notifications, the Commission has adopted a number of block exemptions covering certain categories of agreements, which are generally exempted under Article 81(3), such as block exemptions on vertical agreements of December 1999. Thereby, the need for separate and time-consuming notifications and individual exemptions is obviated.[11]  However this application confronted a criticism on the grounds that due to their systematic and the stereotype characteristics, they entail a considerable loss of flexibility as the undertakings drawing up their contracts are tempted to follow the regulations rather than their own economically orientated ideas.[12]

Parg. 18.      The next solution is an informal way to deal with the situation, namely, the comfort letters. With a comfort letter, the Commission states that it is willing to close the file on the matter, although it may only do so after a process of negotiation with the parties leading to the removal of the clauses from the agreement that it regards as objectionable.[13] They are not binding on the national courts. But these informal letters brought about some problems due to their lack of transparency and legal value, instead of being a solution for the overload.

Parg. 19.      Moreover, the other methods applied by the Commission are expediting the notification process thorough modifications in form “A/B” and reorganising the Commission Directorate General‘s responsibilities for competition enforcement. As Siun O’Keeffe points out, while these changes have created a more efficient process that brings greater clarity to the competition rules, they do not provide a wholly satisfactory response to delays created by the centralisation of the power and the Commission’s lack of adequate resources.[14]

                  C. DECENTRALISATION

Parg. 20.      Owing to the insufficiency of the methods stated above in order to solve the problems of the current over-centralisation, in the 80s, decentralisation was found as an alternative solution to increase the effectiveness of the Community Competition Law enforcement system. The new policy goal is sharing the enforcement procedure between the Commission and the Member States and thereby increasing the powers of national authorities when applying Article 81 and 82.

Parg. 21.      Support for decentralisation by the Commission stemmed from the political problems the Commission was encountering under regulation 17, which led to the redefinition of the Commissions role in enforcement, together with a greater focus in the political arena on the role of the subsidiarity.[15] In the 1980s, with the Maastricht Treaty, the subsidiarity principle was included under the Article 3b (now Article 5 of the EC Treaty) seeking to look for assistance from the Member States. It is actually the principle which is based on the allocation of the decision making competence between national law and the Community law and is seen as the basis of the decentralisation. According to this principle, “in areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the community” “any action by the Community shall not go beyond what is necessary to achieve the objectives of this treaty”(ex article).

Parg. 22.      At this point the problem is what the Community interest is. It is proposed that the “Community interest” threshold should replace the effect on the inter-state trade test as the separating threshold between the application of national law and Community law.[16] Threshold should apply in relation to qualitative criteria, which states that the Community law would apply when there is a community interest and national law would apply when the agreement is likely to have national effects. After the implementing of this article into the Treaty, the Commission has attempted to improve the policy of decentralisation.

Parg. 23.      In the case Stergios Delimitis v. Henninger Brau AG [17], the Court of Justice determined the relationship between the Commission and the national courts in relation to article 81 and 82 stated that “if the conditions for the application of Article 85(1) are clearly not satisfied and there is, consequently, scarcely any risk of the Commission taking a different decision, the national court may continue the proceedings and rule on the agreement in issue”.  It may do the same if the agreement’s incompatibility with article 85(1) is beyond doubt and, regard being had to the exemption regulations and Commission’s previous decisions, the agreement may on no account be the subject of an exemption decision under article 85(3), national courts can play a role in the straightforward cases of Article 81(1).

Parg. 24.      Accordingly, there occurred a very significant development in the decentralisation policy. In the Automec-II[18], the Court of First Instance upheld the Commission’s refusal to investigate a complaint where an adequate remedy could be obtained in the national courts. It introduced a four-fold test that determines when the Commission should initiate an investigation. As a consequence of these developments, the Commission published the Notice on Cooperation between the Commission and the National Courts in 1993.[19]

                  I. Powers of the National Courts within the Current System

Parg. 25.      The courts of Member States are entitled and obliged to apply European law in addition to national law, as Article 81(ex 85) and 82(ex 86) are directly applicable in civil litigation.[20] These are the articles, which prohibit the conducts incompatible within the Common Market and define them as the agreements between undertakings that may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the Common Market. That is why the court acknowledged the co-existence of national and EC Competition Law.

Parg. 26.      As the court stated in the case 127/73, BRT v. SABAM, Articles 85(1) and 86 produce direct effect in relations between individuals and create rights directly in respect of the individuals concerned which the national courts must safeguard.[21]  National Courts are free to implement these both articles, but they must inform the Commission of any EC law proceedings they initiate.

Parg. 27.      On the other hand, as stated in Walt Wilhelm[22], the parallel application of the national system can only be allowed in so far as it does not prejudice the uniform application throughout the Common Market. Moreover if the proceedings of the national authorities conflict with an ongoing Commission proceeding, the national authorities should stay their proceedings and wait for guidance from the Commission (Article 234). This is criticised because it is thought that it increases the load of the Commission.

Parg. 28.      Nevertheless a national court can make an assessment that an exemption is not likely to be granted by the Commission, in determining whether or not to apply Article 81(1) and (2). In relation to the decentralisation policy, the powers of the national courts and authorities do not seem to be enough, and it is desired wanted to enhance their tasks in the procedure especially with the White Paper of 28th of April 1999.

Parg. 29.      In contrast, national competition authorities can apply Community Competition Law only when their national legislation gives them the power to enforce community law and to give priority to Community law. Among the member states, only eight of them apply and enforce Article 81(1). Except France, Germany and Spain, the others prefer to proceed only under national law due to the Article 9(3) of Regulation 17 and the exemption power of the Commission. The others, which still do not grant their competition authorities the authority to apply Article 81(1), have harmonised their national laws with the Community rules and their national laws are applied along lines of subsidiarity or in accordance with the principles of Community Competition Law.[23]

                  II.  Benefits of Decentralisation

Parg. 30.      The fundamental aim of this approach is to reduce the workload of the Commission by delegating some of its tasks to national courts and authorities. With the help of this, the Commission could concentrate its efforts on the most serious issues which have particular political, economic, legal importance for the Community, such as cross-border mergers, liberalisation of new sectors and state aids. This would provide enough resources and staff to deal with the application of a breach of an EC competition rule and facilitate the use of technical experts who are not part of the normal bureaucratic structure.

Parg. 31.      National courts and authorities have also some procedural advantages. For example, as opposed to the Commission, they can award compensation for loss suffered as a result of infringement of Article 81 and 82. Moreover, national courts can usually adopt interim measures in order to protect the rights of the private parties and order the ending of infringement more quickly than the Commission is able to do. Moreover some Member States’ courts have power to award legal costs to the successful applicant. They are also more able than the judiciary to collect and appreciate the complex facts, which are required to apply Article 81 and 82.

Parg. 32.      Finally national courts are closer to the European citizens. Therefore the frequent application of the EC law would increase the awareness of that body of law among EC citizens and ensure greater respect for Community law.[24]

                  III. Drawbacks of Decentralisation

Parg. 33.      Compared to the Commission’s central powers, national courts, authorities have a few competences to offer to the applicants. Firstly, the Commission has extensive information gathering powers, granted to it under Article 11-14 of Regulation 17. It can request information from governments, competent authorities of Member States and undertakings. On the contrary, the private party who wants to sue before the national court might be faced with some difficulties about providing the proof and the availability of interlocutory relief owing to the reason that the judgement mostly depends on the facts provided by the third parties. Furthermore, these cause more expense than an investigation initiated by the commission.

Parg. 34.      The fundamental task of the Commission is to protect the Common Market. Basically each Member State has a different competition law. Actually the reason to collect most of the powers in the centre is to avoid different interpretation of Member States about the Community issues and conflict of laws. By virtue of this, giving some of the powers to national courts would cause certain loss of uniformity and a risk of inconsistency in applying the rules.

Parg. 35.      Accordingly, as Joe Shaw states in his article called decentralisation and law enforcement in EC competition law, “apart from legal costs, these costs can include loss of business or reputation in fields in which it is not customary for trading partners to take each other to court publicly but where partner would not be averse to making an anonymous complaint and leaving it to the Commission to take action.”[25] The second point that can be considered as a loss according to Shaw is that the net loss in terms of law enforcement, if the Commission abandons its mediation role in bringing the parties to the negotiating table and facilitating an amicable settlement. National courts cannot formally take the lead in this way.

Parg. 36.      As regards the capacity of the national courts to deal with these types of questions raised by article 81(3), national courts’ judges are inexperienced as regards the application of Article 81 and 82. This is due to the fact that this article needs the assessment of complex economical elements. Moreover this would cause legal uncertainty. Because when the Commission wants to grant an exemption, there are a lot of formal proceedings that have to be done. The adoption of a formal exemption decision requires the publication of a notice in the Official Journal in currently 11 languages to allow other interested parties to submit their observations, the consultation of the Advisory Committee on the draft decision, the adoption by the Commission, and the publication of the decision in the Official Journal again in 11 languages.

Parg. 37.      In contrast, national competition authorities do not have a procedure like this to provide the legal certainty, and transparency. Besides national court enforcement is not available for mergers. Since they cannot apply Article 81 EC as a whole, for example they cannot grant exemptions. So this eliminates the wills of the claimants to bring suits before the national courts.

Parg. 38.      Furthermore, if the power is given to national competition authorities and the cases are not allocated to particular national authorities, it is likely to cause forum shopping. This would happen in two situations; when a case is about companies of different member states and when it has a trans-border competitive impact. In fact this would cause the national authorities of different Member States to initiate an investigation at the same time, in which case it would raise conflicting judgements again.

Parg. 39.      The last point is that the European Union market has not been completed yet. So decentralisation is likely to harm this process, prevent enlargement and cause the nationalisation of EC law.

                  D. THE WHITE PAPER ON MODERNISATION

Parg. 40.      As it is seen in the present situation, which is stated above, national courts and authorities are not suitable enough with their limited powers and regulations to serve the need to reduce the workload of the Commission. As a matter of fact, some conditions have to be met in order to solve this problem and to establish an effective decentralised system. In short, national courts and authorities should be equipped with the appropriate rules and competent resources allowing them to apply EC competition law. Accordingly, they also need a mechanism to prevent the conflicting of the judgements and a criterion for the allocation of cases between the Commission and the national courts.

Parg. 41.      As a recent development in relation to these aims, the Commission issued its White Paper on Modernisation of the Rules Implementing Articles 81 and 82 of the EC Treaty on April 28 1999 and adopted  “the Proposal for a Regulation modernising the rules implementing articles 81 and 82 of the EC Treaty” on September 27, 2000, which is the most radical reform of EC Competition Law since Regulation 17 was adopted.[26]

Parg. 42.      In the White Paper and in the Proposal, the Commission announced some significant amendments about the enforcement of the EC competition law. At the heart of the proposal there exists the Commission’s idea of a “network of authorities operating on common principles and in close collaboration”, an “enhanced role” applying EC law for national competition authorities as in a directly applicable exemption system.[27] Firstly, the new scheme offers the changing of the current authorisation system into a directly applicable exemption system. In other words national competition authorities and courts will have a power to judge on the complex framework of the Article 81(3) and to assess whether the practice complies with the conditions of the Article 81(3) and will not need the Commission’s authorisation to grant exemption.

Parg. 43.      Furthermore, there will not be any notification system, no prior authorisation is needed if the undertakings believe that their practises fall within 81(3). So this will probably diminish the current workload of the Commission and lead to an “ex post” control instead of an “ex ante” control.  This means that till the time an authority or a court found it unlawful, any agreement or practice can be assumed to be valid. Secondly, the information exchange is found to be compulsory. Article 12 of the proposed regulation envisages that when a national competition authority or the Commission itself is considering a case, it would be able to pass a file on it to the other authority -including confidential information- for possible use in actions for breach of EC law, contrary to the situation in the Spanish Banks[28].

Parg. 44.      Thirdly, as stated in the White Paper and Article 16 “ national competition authorities shall use every effort to avoid any decision that conflicts with decisions adopted by the Commission” and “they have to inform the Commission on the grounds that the matter is within the scope of the Article 81 and 82” (as stated in Article 11.3 to achieve the consistency.) Furthermore, the use of block exemptions besides non-binding notices and guidelines is to be on the scene. National authorities will be able to withdraw the benefit of the block exemptions. Finally, the White Paper gives the Commission the power to intervene as amicus curiae in pending cases.

Parg. 45.      Although both the White paper and he Proposed Regulation offers a wide range of innovations in the enforcement system of the EC competition law and present some methods to empower the national authorities, they are still not enough to serve the need for a workable decentralisation. Basically, the Commission still remains as the central body to work out the Community Competition Policy in order to ensure the consistency and uniformity in the application of the competition rules.

Parg. 46.      The first criticism about the proposals of the White Paper is to be done to the directly applicable system. Given that the ECJ considers itself incompetent to assess the complex economic factors involved, surely national courts are even worse placed to do so.[29] Furthermore, the proposals imply the allocation of the cases between the Commission and the national authorities, but do not indicate the way to determine the competent authority.

Parg. 47.      The next problem stems from the territorial effect of national competition authorities’ decisions. According to the proposals, each national authority’s decision has an effect in its own territory and do not bind outside its region. Consequently, this is likely to lead to conflicting judgements between states and forum shopping. In relation to this there were suggested some possible remedies to preserve the coherence in the decisions of the national authorities.

Parg. 48.      The first model offered is to give Community-wide effect to the decisions of the national authorities to make them binding in all of the Member States. They would gain Community-wide effect either when they are recognised by other Member States or when the Commission adopts and issues them as its own decisions. The second model suggests a mechanism establishing a special court entrusted with sufficient competence and resources in each Member State to apply Community Competition Law.

Parg. 49.      The other criticism rests upon the cooperation and exchange between the national authorities and the Commission. It is argued that it not enough, it should also be between the Member States’ national authorities.

                  E. CONCLUSION

Parg. 50.      According to the Article 211 of the EC Treaty, the main task of the Commission is  “to ensure the proper functioning and development of the Common Market”, for this reason it has mainly been appointed as the “guardian of the treaty”. Due to the need of a strong body to harmonise the policies of the Member States and to remove the discrepancies distorting the integration, the Commission is equipped with full competence and a centralised enforcement system has always been seen as a necessity for the Community.

Parg. 51.      However, the developments in the global markets and the extension in the borders of EC considerably contributed to the workload of the Commission and this led to an insufficient commission that cannot concentrate on the important cases and satisfy the needs. Therefore a new proposal was introduced which offers the transferring some of the powers of the Commission to the national authorities. Whereas this new division of responsibilities, in other words “decentralisation” reduces the workload of the Commission and provides some procedural benefits to the applicants, it is likely to distort competition and lead to uncertainty.

Parg. 52.      Moreover, compared to the Commission with extensive powers, national authorities with inexperienced judges and inadequate competence fall short to provide enough support. Hence the Commission presents some proposals such as a direct applicability of the article 81(3) and a change in the notification procedure with White Paper 1999 in order to improve the capacities of national authorities. Although it provides us with innovations both in the enforcement procedure and the approach of the Commission towards cartels, it still has some deficits. That is why more extensive regulation in this area is required.

Parg. 53.      Consequently the reality is that the over-centralised regime set upon the Commission does not work efficiently anymore. Moreover despite the benefits of the centralised enforcement system and the drawbacks of decentralisation due to its lack in competence in the current situation, as Tim Wibmann states “it is a step in the right direction as it opens grounds for the indispensable debate about future reforms.”[30]


 

BIBLIOGRAPHY

 

ARTICLES:

 

Bael, V., ‘The Antitrust Settlement of the EC Commission’, (1986) 23 CML Rev,p.61; Brent, R., op.cit.,p.455

 

Gerber, D.J., ‘The Transformation Of EC Competition Law’, (1994) 35 Harvard International Law Journal p.118.

 

Kingston, S., ‘A New Division Of Responsibilities’, [2001] ECLR,p.343

 

Klimisch, A and Krueger, B. ‘Decentralised Application of EC Competition Law’, (1999) 24 EL Rev,p. 465

 

O’Keeffe, S. ‘First among equals: The Commission and the National Courts as Enforces of EC Competition Law’, (2001) EL Rev,p. 26

 

Rodger, B.J. and Macculloch, A., Competition Law and Policy in the EC and UK, ( Cavendish,1999),p.71

 

Shaw, J.,  ‘Decentralisation and Law enforcement in EC Competition Law’, (1995) 15 Legal Studies, 158

 

Wibmann, T., ’Decentralised Enforcement of EC Competition Law and the New Policy on Cartels’,(2000) Journal of World Competition, p.124

 

BOOKS:

 

Craig and de Burca, EU Law Text, Cases and Materials, (Oxford, 1998)

 

Korah, V., EC competition Law and Practice, 7th ed. (Oxford, 2000)

 

Furse, Mark, Competition Law of the UK and EC, 3rd ed. (Oxford: Oxford University Press, 2002)

 

Jones, Alison, and Sufrin, Brenda, EC Competition Law: Text, Cases and Materials, (Oxford:Oxford University Press, 2001)

 

Barry, Rodger and Macculloch, Angus, Competition Law and Policy in the EC and UK, 2nd ed. (London: Cavendish, 2001)

 

Lane, R.C., EC Competition Law, (Harlow: Longman, 2000)

 

Wesseling, Rein, Modernisation of EC Competition Law, (Oxford: Hart, 2000)

 

 



* Atatürk Üniversitesi Hukuk Fakültesi Ticaret Hukuku Araştırma Görvelisi

[1] OJ C 132

[2] D.J. Gerber, ‘The Transformation of EC Competition Law’, (1994) 35 Harvard International Law Journal p. ,118.

[3] Regulation 17/62/ Main Implementing Regulation, O.J. Spec. Ed., 1959-62, 87, J.O.1962

[4] 2000/0243 (CNS), 27 Sept. 2000, [2000] C.M.L.R. 1182

[5] D.J.Gerber,op.cit., p.118

[6] A. Klimisch and B. Krueger,,‘Decentralised Application of EC Competition Law’, (1999) 24 EL Rev,p. 465

[7] V. Bael, ‘The Antitrust Settlement of the EC Commission’, (1986) 23 CML Rev, p.61; Brent, R., op.cit, p.455

[8]  T. Wibmann, Decentralised Enforcement of EC Competition Law and the New Policy on Cartels’,(2000) Journal of World Competition, p.124

[9] Ibid, p.127

[10] Case No.5/69, Franz volk v. SPRL Etablissements J. Varvaecke, [1969] 295, para. 3.

[11] P. Craig and G. De Burca, at 919

[12] T. Wissmann, op.cit.

[13] Craig and de Burca, EU Law Text, Cases and Materials, (Oxford, 1998), p.1011

[14] S.O’Keeffe, ‘First among equals: The Commission and the National Courts as Enforces of EC Competition Law’, (2001) EL Rev,p. 26

[15] B.J.Rodger and A.Macculloch, Competition Law and Policy in the EC and UK, ( Cavendish,1999),p.71

[16] B. J. Rodger pg 75

[17] Case C-234/89, Delimitis v. Henninger Brau AG [1991] ECR I-935, [1992] 5 CMLRev  210

[18] Case T-24/90, Automec v. Commission (No 2) ,[1992] ECR II-2223; {1992] 5 CMLRev 431

[19] OJ C39/6,1993

[20] See case Delimitis;A. Klimisch and B. Krueger,op.cit., p.466

[21] Case No. 127/73,Belgisce Radioen televisie and Societe Belge des Auteurs, Compositeurs et Editeurs v. SV SABAM and NV Fonior,[1974] ECR 51 at para.16 et seq

[22] (14/68) [1969] E.C.R. 1 paras

[23] A. Klimisch.,op.cit.,p.466

[24] T. Wissmann, op.cit, 131.

[25] J. Shaw, ‘Decentralisation and Law enforcement in EC Competition Law’, (1995) 15 Legal Studies, 158

[26] V.Korah, EC competition Law and Practice, 7th ed.  ( Oxford,2000),p.187

[27] S.Kingston, ‘A New Division Of Responsibilities’, [2001] ECLR,p.343

[28] Direccion General de Defensa de la Competencia v. Association espana de la Banca Privada (AEB) and Others ( C- 67/91), [1992] E.C.R. I-4785  

[29] Kingston, op.cit., p.348.

[30] T.Wibmann, op.cit., p.157