This article is part of a Chronicle. See more from this Chronicle
Paul Lugard, Sylvia van Es, Oct 31, 2008
Regulation 1/2003, the cornerstone of the modernization of the European antitrust enforcement rules and procedures, entered into force on May 1, 2004. The prime objective of Regulation 1/2003 was to bring about a more effective enforcement system by enabling the Commission to concentrate its resources on the prosecution and punishment of anticompetitive practices rather than the ex ante screening of notified agreements. Most notably, Regulation 1 abandoned the notification system, authorized and directed national competition agencies to apply Articles 81 and 82, and transformed Article 81(3) which includes the conditions under which restrictive agreements are exempted from the prohibition of Article 81(1) into a directly applicable provision. The regulation abolished the exclusive competence of the Commission to balance pro-competitive and anticompetitive aspects in the analysis of agreements under Article 81. Importantly, these changes placed a significantly higher burden on businesses and their advisors to assess, on their own, the legality of potentially restrictive agreements under EC competition rules. Indeed, under the new system, notification of agreements to the Commission to obtain an exemption or modify the arrangement to meet the Commission’s concerns is no longer possible. Overall, Regulation 1 brought the European enforcement system much closer to the U.S. system Some four years after the entry into force of Regulation 1, the question arises whether the new European system of self assessment works and how it could be improved. This contribution seeks to highlight some preliminary considerations of a practical nature with an emphasis on the phenomenon of companies self assessment. Our perspective is that of in-house antitrust counsel to an international high-tech company.
