It has been almost one year since the world of European antitrust enforcement was radically reformed. The new EU antitrust regime is characterized by more proactive enforcement, increased co-operation, and better priority setting. The changes resulted from the efforts of former European Competition Commissioner, Mario Monti, whose commitment to antitrust reform ensured that all the necessary regulatory instruments were in place by May 1, 2004. While no firm conclusions can be drawn because the reference period is relatively short (and, some powers have yet to be exercised, or have not had any reported outcome), what follows is a short overview of the enforcement of the new EU competition rules during the past eleven months.
The first apparent success has been the creation of a network between all national competition authorities who, together with national courts, have the power alongside the European Commission, to apply EU competition rules. Enforcement is no longer dependent on the European Commission alone. Eleven cartel decisions have been taken under Article 81 since May 1, 2004. Five were taken by national authorities, and six were taken by the Commission. There have been nine Article 82 decisions, eight taken by national authorities, and just one by the Commission. This is a clear increase of enforcement of European competition rules, and they demonstrate a clear focus on the most serious antitrust violations.
National judges who have increased jurisdiction over competition matters, have also improved their cooperation, and antitrust knowledge. Many have participated in networking activities organized by, for example, the Association of European Competition Law Judges and, the Presidents of European Supreme Courts. There are also an increasing number of judges are taking up the antitrust training on offer to support the European modernization process. It is estimated that over 700 judges will receive European competition law training from projects co-financed by the European Commission during the next twelve months.
Decentralization has provided for an unprecedented degree of co-operation and exchange between national competition authorities who now meet in both formal working groups, and informal meetings. They discuss antitrust law and economics, as well as problems in individual sectors. Such cooperation within the network is paying dividends in terms of determining which national authorities are better placed to take on particular cases. For example, following complaints from customers suggesting that a cartel was operating in the flat glass sector., the respective national competition authorities met, and concluded that the case was appropriate for Commission action, resulting in “dawn raids” two months ago. The action of the Commission, and that of a Member State competition authority have also complemented each other, for example, in the simultaneous handling of complaints against Deutsche Post by both the Commission, and the German Bundeskartellamt for violations of European, and national law respectively.
Looking beyond individual cases, modernization has produced increasing coherence in the policies and practices of EU competition authorities. National competition laws are increasingly becoming aligned with EU competition law. Member States are leaving behind their notification systems and leniency programs are now in place in 17 Member States. Furthermore, the Commission is engaged in an exchange of views on draft decisions bringing about a convergence in the application of Articles 81 and 82.
In her recent speeches, Ms. Kroes, has ruled out any further major European antitrust reform, but has stated that she will take certain measures to actively promote good competitive practice. First, the Commission will conduct antitrust investigations of markets which are key to the EU’s overall competitiveness, such as the financial services and energy sectors, where competition does not appear to be functioning as well as it might. Second, the Commission will systematically examine the impact of proposed new EU legislation on the level of competitiveness. The aim is to gauge the competitive impact of proposed legislative measures and to ensure that they do not undermine the interests of European consumers or the growth of the European economy. Finally, the Commission will also attempt to change the general perception of the competition rules. Ms. Kroes believes that is important to explain in general terms how competition policy make a real difference to the lives of EU consumers, for example, by spurring innovation so that people can buy better goods and better services, lowering prices so that people can make their money go further, and strengthening the economy so that EU citizens can have better, more secure jobs.
The Commission will also establish a new Directorate devoted exclusively to cartel enforcement. The Directorate will bring together the resources, the people, and the investigative and procedural expertise, needed for effective action against cartels. The creation of this new Directorate is a concrete expression of the zero tolerance policy the European Commission is committed to implement in the face of this serious type of anticompetitive practice.
Finally, the Commission has recognized that there have been only a very limited number of successful damages awards for breaches of EU competition law in the last forty years. This failure to resort to the courts means that the comprehensive enforcement of the competition rules is not yet complete, and the victims of anticompetitive activity are not being compensated for their losses. The Commission is, therefore, committed to presenting a Green Paper by the end of the year which will set out various options for improving the current system of private enforcement.
While much has been achieved since May 1, 2004, we can expect to see the wider implications of the reforms over the next five years. We will then be able to better assess whether Ms. Kroes is accurate in her prediction of a virtuous circle of more and better enforcement. The challenge will be to make sure that the new antitrust regime is used as effectively and efficiently as possible, leading to increased innovation and competitiveness throughout the Europe Union.