Antitrust Procedure: Regulations 1/2003 and 773/2004 in Review (Demo)

SYMPOSIUM

Edited by: David Pérez de Lamo and Lewis Reed

Table of Contents

1. Introduction

Edited by David Pérez de Lamo and Lewis Reed

2. Looking Backward and Looking Forward: Another Evaluation of the Antitrust Procedural Regulations

Wouter Wils

3. Some Reflections on the Review of Regulation 1/2003

Giovanni Pitruzzella

4. Food for Thought for a Revised Regulation 1/2003

Jérémie Jourdan

5. The “hole” in the (antitrust) “doughnut”: governing the Commission’s administrative discretion in antitrust procedures Or Brook and Katalin J. Cseres

6. Latitude for effective enforcement of Article 101(3) TFEU under the current regulations – a case for revising administrative practice instead of revising the law?

Nils Imgarten

7. The Complaint Crusher: How the revision of Regulation 1/2003 can advance rights of complainants

Malgorzata Kozak and Jacek Mainardi

8. Inapplicability Decisions under Regulation 1/2003: A ‘Dead Letter’ coming back to life?

Georgia Theodorakopoulou

9. The Reform of Regulation 1/2003

Cani Fernández

10. The Future Relationship Between EU Competition Law and National Laws

Miguel Mota Delgado

11. Regulation 1/2003 From Modernisation to Digitisation

Massimiliano Kadar and Sophia Stephanou

12. Modernising the ‘Modernisation Regulation’: towards a ‘Regulation 2’ or a ‘Regulation 1/2003+’?

Andreas Scordamaglia-Tousis

13. EU Competition Procedure: the Ongoing Dialogue Between Brussels and Luxembourg Mark English

Introduction

David Pérez de Lamo (1) and Lewis Reed (2)

Regulation 1/2003, and its implementing Regulation 773/2004, ‘modernised’ EU competition law enforcement. The modernisation revolutionised antitrust by bolstering the EU Commission’s enforcement toolkit and decentralising enforcement to national competition authorities (NCAs) and courts, which in turn allowed the EU Commission to set priorities and focus on the most significant cross-border cases (see O. Brook and K. J. Cseres, EULL 2023, “ The “hole” in the (antitrust) “doughnut”: governing the Commission’s administrative discretion in antitrust procedures”). Two decades later, changes in society and practice suggest that the antitrust procedural framework should be modernised once again, albeit in more concrete areas. The EU Commission’s press release regarding the scope of the new evaluation simply states that, after twenty years, ‘[t]he time is therefore ripe to evaluate the procedural framework that the Regulations have created’. Digitisation is also mentioned as a factor motivating the review, particularly to update the Commission’s powers of investigation to the transition from the ‘paper world’ to the ‘digital world’ (see M. Kadar and S. Stephanou, EULL 2023, “Regulation 1/2003 – From Modernisation to Digitisation”).

Taking a bird’s eye view of the enforcement landscape over the past twenty years, the contributors to the Symposium largely agreed that the original goals of the modernisation of antitrust procedure have certainly been met, notably as regards more intensified decentralised enforcement (see W. Wils, EULL 2023, “Looking Backward and Looking Forward: Another Evaluation of the Antitrust Procedural Regulations”). The creation of the leniency and settlement programmes for cartels has also adapted enforcement to complex factual circumstances and enhanced efficiency. And for undertakings, overall, while the ‘European Commission has the combined role of investigator, prosecutor and (first instance) judge... there has been a consistent and positive evolution in the procedural rights of investigated parties derived from general principles of EU law’ (see M. English, EULL 2023, ‘EU Competition Procedure: the Ongoing Dialogue Between Brussels and Luxembourg ’; see also J. Jourdan, EULL 2023, “Food for Thought for a Revised Regulation 1/2003”).

Yet, the optimistic expectations at the time of reform have been slightly tempered with the reality on the ground. Contrary to what was anticipated, prohibition decisions have slightly decreased over the years. The efficiency gains produced through abolishing notifications of restrictive agreements have therefore not translated directly to higher numerical enforcement output on the Commission’s part (see W. Wils, supra) – even if there may have certainly been a ‘qualitative turn’. The development of digital markets and the enforcement of anticompetitive practices in that space have also evidenced the need for competition authorities to intervene more quickly and to use more modern tools, thus catalysing a series of unprecedented legislative initiatives that materialised in an ex ante enforcement regime that raises a range of intricate legal questions (see G. Pitruzzella, EULL 2023, “Some Reflections on the Review of Regulation 1/2003”; see also J. Jourdan supra). Moreover, with the recognition of the criminal nature of competition law – first in ECtHR Menarini Diagnostics S.r.L. v Italy, no. 43509/08, but more recently confirmed unequivocally by the Court of Justice for the EU legal order in bpost SA, C-117/20, para 27 – it becomes all

1. David Pérez de Lamo is an Associate at an international law firm in Brussels. He holds an LL.M. in EU Law and Economic Analysis from the College of Europe (Bruges) and has published a series of contributions in EU competition and constitutional law.

2. Lewis Reed is an Academic Assistant in the European Legal Studies department of the College of Europe (Bruges). He holds an LL.M. in EU Law from the College of Europe (Bruges) and an LL.B. from Durham University, and has published contributions in EU competition law and constitutional law.

the more important that any enforcement or procedural reform provides adequate procedural guarantees to protect those targeted by the rules (see G. Pitruzzella supra; see also A. Scordamaglia-Tousis, EULL 2023, “Modernising the ‘Modernisation Regulation’: towards a ‘Regulation 2’ or a ‘Regulation 1/2003+’?”).

Lessons for Better Enforcement

While decentralisation has an efficiency-enhancing aspect, the flip side is the risk of inconsistent application of the rules. This is because competition law enforcement is in many ways still not fully harmonised. For instance, certain contributors observed that fine imposition rules and practices diverge by Member States, and thus propose that the reform of the antitrust procedural framework should harmonise these rules, particularly the methodology to calculate the fines and limitation periods (see C. Fernández, EULL 2023, “The Reform of Regulation 1/2003”; see also A. Scordamaglia-Tousis supra)

Conversely, the EU legislator could fill certain gaps at the EU enforcement level that have already been filled at a national level. One such example is the Commission’s power to take statements (Article 19 of Regulation 1/2003). The General Court and the Court of Justice have certainly consistently reinforced the obligations imposed on the Commission when taking statements, thus bolstering procedural rights of undertakings (see Intel, C-413/14 P; Les Mousquetaires, C-682/20 P; Qualcomm, T-235/18; and Google Android, T-604/18). Most recently, the Court of Justice held that the Commission is obliged to comply with procedural rights by recording interviews held not only after the formal opening of an investigation, but also in the period prior thereto when gathering indicia (Les Mousquetaires, C-682/20 P). However, the power to take statements is arguably deprived of its effectiveness to the extent that the Commission can neither oblige natural persons to give evidence nor impose fines if such evidence turns out to be incorrect or misleading (see A. Scordamaglia-Tousis supra). In contrast, the NCAs are equipped through the ECN+ Directive with their ability to summon undertaking representatives to interviews and their power to oblige this through deterrent fines for non-compliance (see J. Jourdan, G. Pitruzzella, M. Kadar and S. Stephanou supra). Accordingly, this is one gap that could be filled at EU level. It might seem lop-sided to strongly police the Commission’s discretion in this matter, while not giving it the teeth to properly utilise this power effectively (see A. Scordamaglia-Tousis supra). Another relevant legislative gap that could be filled, through a simple but effective change, concerns the burden of proof, as set out in Article 2 of Regulation 1/2003. Where that provision already mentions the burden on the undertaking claiming an Article 101(3) TFEU defence, it would be wise to add reference to Article 102 TFEU therein, ensuring an express reference to the necessary burden with regards to all Article 102 TFEU defences, as well as potential wording to account for ‘ancillary restrictions’ given that these arguments could be key to digital markets cases and beyond (see A. Scordamaglia-Tousis supra).

Absent harmonisation, the Commission’s use of soft-law instruments through guidelines and notices have proven instructive. These instruments distil the Commission decisional practice, creating legitimate expectations for companies and thus boosting legal certainty. However, some contributors criticised the Commission for not utilising these tools even further. The possibility for the Commission to provide informal guidance per Recital 38 of Regulation 1/2003 and to adopt decisions declaring the inapplicability of competition law tools per Article 10 of that Regulation are two powers that remain in desuetude. In particular, Article 10 decisions have largely remained a “dead letter” (see G. Theodorakopoulou, EULL 2023, “Inapplicability Decisions under Regulation 1/2003: A ‘Dead Letter’ coming back to life?”), whereas they could be deployed more effectively, for instance, where the non-application of competition rules can give way to public interest objectives, such as sustainability goals (see N. Imgarten, EULL 2023, “Latitude for effective enforcement of Article 101(3) TFEU under the current regulations – a case for revising administrative practice instead of revising the law?”; see also G. Theodorakopoulou supra). Similarly, the Commission issued informal guidance relatively late on per Recital 38, providing some assistance to companies seeking legal certainty when taking action in response to the global Covid-19 pandemic. But these tools have not been used more

widely since. Proposals to encourage the Commission to provide such guidance include elevating Recital 38 to a more prominent place in the articles of the revised Regulation 1/2003 (see N. Imgarten supra).

Another avenue to overcome the lack of harmonisation is to improve coordination within and amongst the members of the European Competition Network (‘ECN’). Certain contributors argued that the ECN could be better operationalised to allow more systematic communication and feedback collection between the members of the ECN (see M. Mota Delgado, EULL 2023, “The Future Relationship Between EU Competition Law and National Laws”). Indeed, the ECN provides an ideal conduit through which NCAs may enhance their cooperation and learn from best practices (see C. Fernández and A. Scordamaglia-Tousis supra). Other potential areas for improvement could be stronger cooperation in sharing best practices, as well as the ‘coordinated and coherent adoption of behavioural or structural measures for companies or greater flexibility in the imposition of interim measures’, in order to deal with specific issues arising in markets such as tech (see C. Fernández supra; on developments for adapting to the digital world, see below). Moreover, the complexity of cross-border cases is made worse by procedural disparities such as in the rules pertaining to legal privilege – in this regard, review and EU-level harmonisation in this matter would be welcomed (see C. Fernández supra).

Decentralisation, however, does not only generate benefits, but also poses ‘structural’ challenges of constitutional nature. Notably, decentralisation leads to a vertical tension in the enforcement of competition rules between the EU and national competition authorities. Under classic EU law doctrine, a Member State is ‘pre-empted’ from acting where there is a conflict between national and EU rules, on account of the primacy of the latter. National rules hindering the substantive or procedural effectiveness of applying Articles 101 or 102 TFEU are thus disapplied, so that EU competition law is given full effect (see, e.g., INNO v ATAB, Case 13/77 and Manfredi, C-295/04). However, Article 3 of Regulation 1/2003 distinguishes three situations determining the scope of application of EU rules in national law: (i) in cases of alleged anticompetitive conduct, NCAs must apply EU rules in parallel with national rules (coordinated and unilateral conduct); (ii) in cases concerning unilateral conduct, NCAs may apply stricter rules; (iii) in cases where the first two situations are not relevant, that is because the national rules predominantly pursue different objectives to the EU competition law provisions, NCAs may apply their own rules. Therefore, while Article 3 of Regulation 1/2003 is designed to foster some ‘convergence’, it also allows ‘divergence’ between Member States, thus creating a risk of fragmentation, which should at least be better harnessed through enhanced ‘experimentalist governance’ (see M. Mota Delgado supra).

Lessons for Better Enforcement in the ‘Digital World’

Technology has made vast leaps since the Commission’s enforcement powers came into being. One of the main factors driving the evaluation of the antitrust procedural framework is the need to update the Commission’s toolkit to a faster and paperless ‘digital world’ (see M. Kadar and S. Stephanou supra).

The digital world poses new hurdles as we contemplate the best ways of processing and storing information. Accordingly, contributors proposed that the Commission should obtain the power to take statements and conduct inspections remotely, for instance, retrieving such information from the ‘cloud’(see M. Kadar and S. Stephanou supra). Sealing off premises and searching through files might look more like logging into a database to ‘plug and play’. Where Article 18 requests for information entail an administrative burden both for undertakings gathering and the Commission collecting such information, the possibility to ‘seal’ off premises to prevent undertakings under investigation from hiding of or tampering with information becomes all important (see M. Kadar and S. Stephanou supra). The time may also be right to rethink the process of access to file, where creating ‘confidentiality rings’ might be a new (and less time-consuming) solution to allow companies to exercise their rights of defence while protecting confidential data obtained by or provided to the Commission (see M. Kadar, S. Stephanou, G. Pitruzzella and J. Jourdan supra).

Lessons to Better Protect Procedural Rights

The Commission may also seize the opportunity to enhance the protection of the procedural rights of defendants during investigations.

Certain authors pointed out that the revised Regulation 1/2003 should foresee an obligation on the Commission to communicate to the undertakings under investigation a copy of the indicia justifying the raid, which should also take the form of a decision that could be challenged before the final infringement decision (see J. Jourdan supra). Similarly, to further improve transparency and accountability, other contributors argued that the Commission’s and NCAs’ (increasing) ‘uncontrolled discretion’ in setting enforcement priorities should be more closely examined and likely limited through some degree of harmonisation, while still not fully relinquishing the benefits of flexible priority-setting powers (see O. Brook and K. J. Cseres supra).

Also important, and possibly overlooked, are the rights of complainants themselves, who seek a level of legal certainty especially where there is risk of a claim being struck out (see M. Kozak and J. Mainardi, EULL 2023, “The Complaint Crusher: How the revision of Regulation 1/2003 can advance rights of complainants”). Both the lack of soft law guidance detailing grounds for rejecting complaints and the wide discretion the Commission has in changing grounds for rejection during case re-evaluation limit the predictability of enforcement, undermining the rights to good administration and effective legal protection of complainants per Articles 41 and 47 CFREU (see M. Kozak and J. Mainardi supra).

The Commission’s desire to act in an expedient fashion might also undermine procedural safeguards (see M. English supra). The 2022 General Court judgment in Qualcomm (T-235/18) serves as an important reminder that the Commission must conduct a thorough investigation, while taking adequate notes of meetings. In relation to the Commission’s power to hold interviews, as confirmed in Intel (C-413/14 P), the burden rests on the undertaking to demonstrate the procedural error of the Commission. It seems like a high hurdle to jump, to prove that had the Commission complied with these obligations, an exculpatory document might have been produced, though Qualcomm at least demonstrates that this is not impossible (see M. English supra). Qualcomm also exposed a gap in the law with regard to third-party informants, where the Commission had relied on third-party allegations to begin their investigation, yet had failed to produce a record of those meetings and the identity of the informants – not only does this re-emphasise the importance of taking notes, but it also highlights the lack of guidance establishing a framework to handle third-party complaints (see M. English supra).

The questions raised undoubtedly require answers, in order to bring clarity to enforcement and safeguard procedural rights. One proposal is to increase internal control within the Commission, whether it be an increased role for the Hearing Officer with regard to third-party informants (see M. English, above) or the creation of an independent officer for the monitoring of potential grounds for rejection (see M. Kozak and J. Mainardi supra). Increased use of guidance, whether it be for the purposes of determining the procedure regarding third-party informants or listing the grounds for rejection of complaints (perhaps in the implementing Regulation) may also be welcomed (see M. English, M. Kozak and J. Mainardi supra).

The Road Ahead

Stock-taking exercises like this one require careful reflection of all relevant factors and proposed solutions. This is especially so where the reform pertains to such a vital part of EU law enforcement, such as the antitrust procedural framework. By gathering the opinions of practitioners, academics, the judiciary and the enforcers, we have sought to complement the ongoing debate and contribute to the reform. We thank the contributors for their diligent work and also for their openness and patience during the discourse which led to the publication of their excellent contributions. While the Commission staff working document with the results of the evaluation due in 2024 is only around

the corner, if these discussions have shown anything it is that the pace of law and policy is tempered by societal change which can be intense even over short periods. This Symposium is therefore not designed to draw a line under, but rather to highlight, the current state of play. That way, the reform will hopefully be shaped and informed by the lessons which we have learned.

Looking Backward and Looking Forward: Another Evaluation of the Antitrust Procedural Regulations

Wouter Wils (1)

On 30 June 2022, the European Commission launched an  evaluation of  Regulation 1/2003 and  Regulation 773/2004 (the ‘antitrust procedural regulations’), which will be carried out under the Commission’s  Better Regulation Guidelines (see Commission press release).

What is the new evaluation about and why is it happening now?

According to these  Better Regulation Guidelines, ‘evaluations gather evidence to assess how a specific intervention [i.e., Regulations 1/2003 and 773/2004] has performed (or is working), taking account of earlier expectations […] ensuing from the adopted legislation and whether there were unintended or unexpected effects that were not anticipated and taken into account in […] the adopted act. They also draw conclusions as to whether the EU intervention: – remains fit for purpose; – should be adjusted for greater effectiveness, relevance and coherence, and/or to eliminate unnecessary burdens or inconsistencies; or – should simply be repealed.’

The new evaluation of the antitrust procedural regulations is not the first one. In fact, there have been several previous evaluations. Article 44 of Regulation 1/2003 instructed the Commission (i) to report, five years after the date of application of this Regulation, to the European Parliament and the Council on the functioning of the Regulation and (ii) to assess, on the basis of this report, whether it was appropriate to propose to the Council a revision of this Regulation. The Commission produced the first evaluation report in 2009. This report highlighted, in a limited number of areas, aspects that merited further evaluation, but left open the question of whether any amendment to the existing rules or practice was required.

In 2014, the Commission published a  second evaluation report, ‘Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives’. This report concluded that it was necessary, in particular, to guarantee further the independence, resources and powers of national competition authorities (NCAs), and to ensure that well-designed leniency programmes are in place in all Member States. The second evaluation report ultimately led to the ECN + Directive 2019/1.

Between 2014 and 2016, the Commission also conducted, with the help of an external contractor, an  ex-post evaluation of two key procedural aspects of Regulation 1/2003:  access to the file and  complaints. The external contractor’s  final report concluded that ‘there is room for improving the cost-efficiency of the EU access to file system’ and ‘scope for improving the complaints system at EU level’.

As to the scope and particular focus of the new evaluation, the Commission’s press release states that it addresses ‘topics of particular importance […], such as the Commission’s investigative powers, the procedural rights of parties to investigations and third parties, the Commission’s enforcement powers and the cooperation of the Commission with national competition authorities (NCAs) and courts’. The evaluation thus covers the whole of Regulations 1/2003 and 773/2004.

1. Wouter Wils is a Legal Advisor in the European Commission Legal Service, a Visiting Professor at King’s College London, and a former Hearing Officer for competition proceedings at the European Commission. All views expressed in this Op-Ed are strictly personal and should not be construed as reflecting the views of the European Commission.

As to the  need for the new evaluation, the Commission’s press release states, again rather generally, that ‘it has been almost 20 years since the adoption of the procedural framework. While the Commission’s enforcement action has adapted to evolving markets, new technologies and changing ways of doing business, the procedural framework has remained largely the same’.

It is true that Regulation 1/2003 has escaped formal amendment in the past twenty years, except for the broadening of its scope of application in the transport sector. As already mentioned, the separate instrument of the  ECN+ Directive 2019/1 did however introduce very substantial additions to the rules concerning the NCAs and the cooperation between the Commission and the NCAs in the  European Competition Network (ECN), as created by Regulation 1/2003.

Regulation 773/2004 has been subject to several formal amendments, in particular by  Regulation 622/2008 for the introduction of the Commission’s settlement procedure in cartel cases, and by  Regulation 2015/1348 on the conduct of proceedings under Articles 101-102 TFEU, in connection with the Damages Directive 2014/104. This Directive also introduced very substantial additions to the rules concerning the enforcement of the EU antitrust rules through actions for damages in the national courts and the cooperation between the competition authorities (Commission and NCAs) and the national courts.

Concerning the procedural rights of parties to investigations and third parties in the Commission’s own proceedings, significant changes to the applicable rules and practice were introduced in 2011 through Decision 2011/695 on the function and terms of reference of the  Hearing Officer and through the Commission’s  Best Practices on the conduct of proceedings under Articles 101-102 TFEU.

Finally,  Regulation 2022/1925 (Digital Markets Act) has created a new (substantive and) procedural framework, allowing the Commission to deal differently with certain issues in digital markets for which the application of the competition rules under Regulation 1/2003 was considered to be insufficiently effective.

As to the expected outcome of the new evaluation, and whether or not it may lead to any legislative proposals, the Commission’s press release merely states that the Commission ‘will summarise the results of the evaluation exercise in a Staff Working Document that is planned to be published in the second quarter of 2024’. Again, everything remains open.

What were the expectations at the time of the preparation of Regulation 1/2003?

As already mentioned above, according to the Better Regulation Guidelines, in assessing how Regulations 1/2003 and 773/2004 have been working, account should be taken of the earlier expectations, at the time of the preparation and adoption of those regulations.

It is thus worthwhile to look back at what expectations were expressed in the White Paper on Modernisation, which set out the ideas for the replacement of the original Regulation 17 by Regulation 1/2003, in the explanatory memorandum of the Commission’s legislative proposal, and in (the recitals of) Regulation 1/2003 itself.

I have done so in detail in a recent paper,  ‘Regulation 1/2003: An Assessment After Twenty years’, only some elements of which can be summarised here.

Regulation 1/2003 brought about a radical change in the way in which the EU antitrust prohibitions contained in Articles 101 and 102 TFEU are enforced (see this detailed analysis). The previous enforcement regime, under Regulation 17, which dated from 1962, was characterised by a centralised notification and authorisation system for Article 101(3) TFEU. Regulation 1/2003 abolished this system and replaced it by a system of decentralised  ex post  enforcement, in which the European Commission and the NCAs, forming together the European Competition Network, pursue infringements of Articles 101 and 102 TFEU.

The White Paper on Modernisation, the explanatory memorandum of the Commission’s legislative proposal, and the recitals of Regulation 1/2003 highlighted two objectives: (i) intensified enforcement by the European Commission, and (ii) decentralisation of enforcement to national authorities and national courts, while maintaining EU-wide consistency in the interpretation of Articles 101 and 102 TFEU.

1. Intensified enforcement

The first objective was to allow the European Commission to become more active and concentrate efforts in the pursuit of serious infringements of Articles 101 and 102 TFEU.

At the time of the White Paper on Modernisation, the European Commission dealt every year with 150 to 200 notification cases through comfort letters. It thus spent substantial resources on cases of little or no value for the effective enforcement of Articles 101 and 102 TFEU. The abolition of the notification system would allow the Commission to redirect these resources to curbing the more serious infringements of Articles 101 and 102 TFEU. The White Paper on Modernisation predicted that thus ‘the number of individual prohibition decisions can be expected to increase substantially’.

This intensified enforcement by the European Commission was further helped by strengthening the Commission’s powers of investigation, and by encouraging the victims of antitrust infringement to approach the Commission as complainants, in particular by introducing a time limit of four months by the end of which the Commission would inform the complainant of the action it proposed to take on the complaint.

2. Decentralisation of enforcement

The second objective was to decentralise the application of Articles 101 and 102 TFEU more to the Member States’ competition authorities and to the national courts, making both the national competition authorities and the national courts play an enhanced role in the application of the EU antitrust rules.

To this effect, Regulation 1/2003 not only abolished the European Commission’s monopoly for applying Article 101(3) TFEU. It also obliged all Member States to designate national competition authorities empowered to apply Articles 101 and 102 TFEU, and obliged both national competition authorities and national courts to apply also Articles 101 and 102 TFEU whenever they apply national competition law to agreements or practices within the scope of Articles 101 and 102 TFEU.

At the same time, this decentralisation was not to lead to inconsistent application of EU antitrust law. To this effect, the European Commission was to continue adopting block exemptions, and draw up more notices and guidelines to provide guidance on the application of Articles 101 and 102 TFEU. The  European Competition Network was created, bringing together the European Commission and the national competition authorities to make them apply Articles 101 and 102 TFEU in close cooperation. Arrangements were also established for cooperation between the national courts and the European Commission.

Has Regulation 1/2003 met the expectations?

Twenty years after the adoption of Regulation 1/2003, there can be no doubt that, as far as the national competition authorities and the functioning of the European Competition Network are concerned, the new enforcement system has been a major success, beyond expectations.

According the ECN statistics, from the start of the application of Regulation 1/2003 on 1 May 2004 until 31 December 2021, the national competition authorities have informed the European Commission and their fellow national competition authorities of 2515 investigations under Articles 101 and 102 TFEU, and of envisaged final decisions ordering termination of infringements, imposing fines or accepting commitments in 1336 cases.  During the same period, the European Commission informed the Network of 429 investigations of its own, and 137 draft final decisions.

The national competition authorities have thus in quantitative terms become the primary public enforcers of Articles 101 and 102 TFEU, adopting 90% of all decisions. Given that, under Regulation 17, the number of cases in which the national competition authorities applied Articles 101 and 102 TFEU was negligible, this means that the overall number of decisions ordering termination of infringements of Articles 101 or 102 TFEU, imposing fines or accepting commitments has increased very substantially.

The functioning of the  European Competition Network has also been a clear success. Work sharing between the different competition authorities has generally been unproblematic, and the cooperation and coordination mechanisms provided for in Regulation 1/2003 have generally worked well. As already mentioned, the ECN + Directive 2019/1 further strengthened the NCAs and the ECN.

The impact of Regulation 1/2003 on the activity of the European Commission has in many respects been as expected. The European Commission has in particular made good use of the increased investigatory and sanctioning powers which it obtained through Regulation 1/2003, such as the increased possibility to ask oral questions during inspections, the possibility to put seals, the possibility to inspect private homes, the increased penalties for obstruction of investigations, and the higher level of periodic penalty payments for non-compliance with decisions.

As to the number of decisions adopted by the European Commission, the prediction in the White Paper on Modernisation that, following the abolition of the notification system, “the number of individual prohibition decisions can be expected to increase substantially”, has however turned out to be too optimistic.

In fact, the detailed analysis of the figures in my paper ‘Regulation 1/2003: An Assessment After Twenty years’ (comparing the first full 17 years of application of Regulation 1/2003 with the last full 17 years of application of Regulation 17, as well as the recent five-year period 2017-2021 with the five-year period 1997-2001 twenty years earlier) shows that, instead of a substantial increase, there has been a slight decrease in prohibition decisions.

The resources saved through the abolition of the notification system, as well as through the generalisation of  leniency in cartel cases and the introduction of the cartel settlement procedure, have thus not allowed the Commission to increase its output in numerical terms.

I do not have the answer to this puzzle, which undoubtedly merits further research. In my paper  ‘Regulation 1/2003: An Assessment After Twenty years’, I have provided some initial, in part speculative, thoughts about possible explanations, including the impact of the  so-called ‘more economic approach’, an  intensification of judicial review by the EU Courts, and loss of expertise due to increased staff turnover.

It is to be hoped that the new evaluation will shed more light on the reasons why the expectation of increased output by the Commission has not been met, and what can be done about it.