In this issue:

Ex Post Assessment of Regulation 1/2003

Stephen Kinsella, Anouck Meier, Oct 29, 2008

Decentralization or the Law of Unintended Consequences

Five years on, the Commission is carrying out the scheduled review of the success of Regulation 1. To that end it has solicited comments from its “customers.” There are signs that it may have already prejudged the outcome of the consultation in remarks that express satisfaction at how the Regulation has workedstating that antitrust enforcement was both “strengthened and simplified.” It seems timely to question whether that satisfaction is in fact merited.

Ian Forrester, Oct 29, 2008

Ex Post Assessment of Regulation 1/2003

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.

Jerome Gstalter, Christophe Lemaire, Oct 31, 2008

The Silent Revolution Beyond Regulation 1/2003

Currently, the European Commission is about to assess the five years’ implementation of this Regulation. To this end, it launched a public consultation on July 24, 2008. It is expected that the answers to this consultation will show some problems in the functioning of the ECN and more generally in the implementation of Regulation 1/2003. However, we assume that this regulation did not raise critical problems and that the main challenges are located outside the scope of this regulation.

Paul Lugard, Sylvia van Es, Oct 31, 2008

Four Years of Self-Assessment Under Regulation 1

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.

Pierantonio D’Elia, Michele Piergiovanni, Oct 31, 2008

Self-Assessment of Agreements under Article 81 EC: Is There a Need for More Commission Guidance?

This article addresses one of most crucial measures introduced by the Regulation, namely the abolition of the obligation to notify the Commission of restrictive agreements. We submit that more guidance from the Commission may be required to reduce the possible negative effects for businesses (and society as a whole) deriving from the lack of a body of recent Commission precedents on the application of competition rules and in particular, of Article 81 EC, to complex horizontal and vertical agreements.