Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise

Brook, O. and Eben, M. (2022) Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise. Working Paper. SSRN. (doi: 10.2139/ssrn.4237413).

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Publisher's URL: https://ssrn.com/abstract=4237413

Abstract

Combining historical, conceptual and empirical approaches, this article studies one of the most fundamental, yet underexplored, questions surrounding Regulation 1/2003: what limits EU competition law places on the adoption and application of national competition and other laws (such as unfair trading practices provisions or the regulation of digital markets). After many years of uncertainty, the relationship between EU competition and national laws was supposedly settled with the adoption of Regulation 1/2003. Article 3(1) states that when there is an effect on trade between Member States, national competition authorities and courts must apply EU competition law when applying their national competition laws, and that EU provisions enjoy primacy. There are two exceptions: Article 3(2) leaves room for “stricter” national competition rules on unilateral conduct, and Article 3(3) for national rules pursuing a “predominantly different objective”. The solution offered by Article 3 is not workable and has failed in its mission of ensuring a level playing field across the EU. Based on a historical study of the political discussions preceding Article 3’s adoption, a conceptual analysis of potential interpretations, and a systematic content analysis of French and German practice, this article reveals the lack of a dividing line to distinguish between the notions of national competition laws and other laws. It calls for substantive reform of Article 3 based on a new political compromise to ensure that conduct that should be governed by EU law is not assessed under national rules and standards that differ from one Member State to another.

Item Type:Research Reports or Papers (Working Paper)
Status:Published
Glasgow Author(s) Enlighten ID:Eben, Dr Magali
Authors: Brook, O., and Eben, M.
Subjects:K Law > K Law (General)
College/School:College of Social Sciences > School of Law
Publisher:SSRN

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