Enforcement of European Competition Law by the NCAs and More Particularly by the ACM
National competition authorities (NCAs) are responsible for the national enforcement of (both national and European) competition law. Regulation 1/20031 empowered NCAs (and also national courts) to apply all aspects of European competition law, reducing some of the European Commission’s burden in enforcing European competition law. Several NCAs combine competition law enforcement with other functions. In the Netherlands, the ACM (Authority for Consumers & Markets) has combined sector-based regulatory functions and competition supervision since its merger with the consumer authority and the postal and telecoms regulator.2
All European Union Member States’ NCAs are obliged to enforce the same substantive rules as laid down in articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). However, the NCAs have a significant amount of discretion and flexibility to design their own enforcement regimes.3 The only requirement that Regulation 1/2003 imposes on the NCAs is that they comply with the substantive terms of Regulation 1/2003. Thus, competition law enforcement in the European Union is largely decentralized. In order to evaluate this system and to determine whether there is room for improvement, the European Commission adopted the Communication on Ten Years of Regulation 1/2003 (the Communication). The European Commission concluded that despite that absence of explicit requirements in EU law for NCAs to apply uniform procedures when applying EU competition rules, there has been voluntary convergence of procedures across the EU jurisdictions. However, the degree of procedural convergence on procedures differs, and the NCAs’ procedures often diverge, even as to some fundamental powers.4
The ACM chairman, Mr. Chris Fonteijn, in his Nov. 25, 2014 speech at the association for competition law, also touched upon this conclusion expressed in the Communication. Specifically, in his speech, the ACM chairman underlined that vertical restraints pose a high risk of harm to consumers when (i) such restraints are instrumentally used to facilitate collusion between producers, or (ii) when such restraints are used to exercise market power in a field where interbrand competition is already limited. However, the mere awareness of these high-risk situations has not, to date, triggered the ACM to apply a strict approach to vertical restraints, although the Austrian, French, German and British NCAs have adopted such an approach. The ACM’s approach thus is not in harmony with that of several other NCAs in comparable jurisdictions.
The ACM now seeks to ensure that undertakings and consumers benefit from obvious efficiencies related to vertical agreements, but that they do not suffer from anticompetitive effects. Thus, it prioritizes those situations where there is a high risk of consumer harm.5 In so doing the ACM seeks to provide consumers, companies, and their advisors transparency and predictability. To this end, the ACM will cooperate with other NCAs and the European Commission in order to reduce legal uncertainty.
1 Council Regulation (EC) No 1/2003 of Dec. 16, 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L1, 4.1.2003).
2 April 1, 2013.
3 See Communication from the Commission to the European Parliament and the Council, ‘Ten years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives’, COM (2014) 453, at 4. See also Commission White Paper, ‘Towards more effective EUR merger control’ of July 9, 2014, COM (2014) 449 final.
4 Communication from the Commission to the European Parliament and the Council, ‘Ten years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives’, COM (2014) 453, at 18
5 Speech, Association of Competition law meeting Nov. 25, 2014: ACM’s strategy regarding enforcement of vertical restraints.