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

Brook, O. and Eben, M. (2023) Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise. Journal of Antitrust Enforcement, (doi: 10.1093/jaenfo/jnad037) (Early Online Publication)

Abstract

Combining historical, conceptual, and empirical approaches, this article studies one of the most fundamental, yet underexplored, questions surrounding Regulation 1/2003: What limits European Union (EU) competition law places on the adoption and application of national competition and other laws? The relationship between EU competition and national laws was supposedly settled with the adoption of Regulation 1/2003. There are two exceptions to the rule in Article 3(1), under which national competition authorities and courts must apply EU competition law when applying their national competition laws, with primacy for EU provisions: 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. Through 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 between the notions of national competition laws and other laws. It calls for reform of Article 3 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: Articles
• Status: Early Online Publication
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Eben, Dr Magali
• Authors: Brook, O., and Eben, M.
• College/School: College of Social Sciences > School of Law
• Journal Name: Journal of Antitrust Enforcement
• Publisher: Oxford University Press
• ISSN: 2050-0688
• ISSN (Online): 2050-0696
• Published Online: 20 June 2023
• Copyright Holders: Copyright © The Author(s) 2023
• First Published: First published in Journal of Antitrust Enforcement 2023
• Publisher Policy: Reproduced under a Creative Commons license