Assimakis Komninos, Dec 09, 2010
Competition law futurology can be risky. But perhaps not so risky, if we are talking about EU competition law and policy. While competition policy is utterly connected with economic policy and the latter may inevitably change in a given jurisdiction further to political, social, and ideological shifts, the fact that EU competition policy is not national but supranational makes predictions slightly less adventurous. The European Union will remain a dynamic supranational entity, thus being sheltered from political paradigm shifts which are more likely to affect-at least in a dramatic way-specific Member States than a Union of twenty-seven or thirty-something states. At the same time, EU competition law and policy has been blessed with the existence of strong institutions at the center, which determine, enforce, and adjudicate the applicable rules.
In the last years, EU competition law enforcement has known profound changes both in substance and in procedure. These changes are described as “the modernization” of EU competition law. The great drive for modernization started in 1996 with the publication of the Green Paper on vertical restraints, which brought into European antitrust enforcement a more economic approach. This more economic approach was not limited to vertical agreements but was introduced across the board in Article 101 TFEU. The new generation of block exemption regulations and the adoption of guidelines for specific categories of agreements, as well as in the context of the general framework of Article 101 TFEU, were a success. These developments were then followed by an equally brave-albeit a bit more painful-wave of modernization in Article 102 TFEU. Recently, the Commission adopted a new Block Exemption Regulation and Guidelines for vertical restraints and the same will happen before Christmas for horizontal agreements.
Does this all mean the “end of history” in the modernization of EU competition law? Not really. I offer below some predictions and suggestions as to how modernization might evolve in the next fifteen years.