The assessment of the effect on trade by the national competition authorities of the “new” Member States: Another legal partition of the Internal Market?

Abstract:

Under Regulation 1/2003, NCAs of EU Member States must apply Articles 101–102 TFEU to anti-competitive conducts with an effect on intra-Community trade, and must notify the Commission of investigations and envisaged decisions based on Articles 101–102 TFEU. In the last decade, the NCAs of the “new” EU Member States have notified a lower number of envisaged decisions in comparison to “old” EU Member State; this has been explained by the institutional constraints of the individual NCAs.

However, the paper shows that the NCAs of the “new” EU Member States have not been “less active” in terms of enforcement, but have adopted most of their decisions under the national competition rules. Also, there is significant divergence in the assessment of the effect on trade by the NCAs of the selected jurisdictions. Some NCAs have not taken account of the relevant ECJ case law and the 2004 Commission Notice on the effect.