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

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

On July 24, 2008, the Commission launched a public consultation on the functioning of Council Regulation n. 1/2003 (the “Regulation”) that sets out the rules for the Commission’s enforcement of EC Treaty antitrust rules. The Regulation, which took effect on May 1, 2004, aims at simplifying and strengthening antitrust enforcement through a series of far-reaching measures. Four years after entering into force, the Commission is now looking for views from “stakeholders” (e.g., businesses, courts, industry associations, and consumer associations) on all aspects of the Regulation’s practical implementation, with a view to publishing a report on the functioning of the Regulation by May 2009. 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.

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