Ex Post Assessment of Regulation 1/2003

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Ian Forrester, Oct 29, 2008

More than 25 years ago, Christopher Norall and I wrote an article challenging the Commission’s approach to the application of Articles 81(1) and (3) EC, calling for the priests of competition law in Brussels to trust the laity more, to share enforcement duties with others, and to be less formalistic in interpreting the rules. It was one of a string of articles which suggested that the Commission could not maintain its monopoly over the grant of exemptions. Its theory that the prohibition of Article 81(1) EC caught everything which might have a remotely discernible effect on competition was understandable for the early days of an untested institution, dubious about the scope of its competence and the reception its theories would receive from courts and businesses. The theory needed to adapt to the realities of an enlarged Europe. After years of hesitation, the Commission wisely chose to share enforcement with national courts and national competition authorities. This was a massive change in course, widely and justly commended.