Maybe Definitely – Definitely Maybe? EC Competition Law – Is the Time Ripe for Reform?

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EIPASCOPE, Vol: 2001, Issue: 2, Page: 1-7

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Peter I. B. Goldschmidt; Christopher Lanz
article description
[Summary]. The aim of this article is to discuss whether the timing for the Commission’s Proposal for reforming the implementation of Articles 81 and 82 of the EC Treaty is appropriate based on legal certainty considerations. The Proposal suggests to decentralise the day-to-day application of the EC antitrust rules further than is the case today and to abolish the present notification system whereby undertakings can apply for exemptions pursuant to Article 81(3) and negative clearances. The article provides examples showing that presently, the answers to certain legal questions of EC competition rules are vague or contradictory, and that if the proposed reform were to be implemented in its present form, the undertakings would have to carry the full risk for compliance with the competition rules but without a simple or straightforward way of obtaining guidance or legally binding exemptions or negative clearances. While recognising the need for a reform of the implementation system of the EC competition rules, the article argues that consistency and coherence in the understanding and application of the competition rules are a prerequisite to ensure legal certainty which, in turn, is a prerequisite for the implementation of the Commission’s plans to decentralise EC competition law application. It is therefore suggested that the time is not yet ripe for the type of reform proposed by the Commission and that efforts should instead focus on creating the basis for such a reform by adopting clear guidelines and/or binding legislation that secure the legal certainty of the undertakings that have to operate under the EC competition law framework.