ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13431-EU-antitrust-procedural-rules-evaluation_en">Staff Working Document ('SWD') summarising the findings of the evaluation of the EU Regulations which lay out the procedures for the application of EU competition rules (Regulation 1/2003 and Regulation 773/2004, together the 'Regulations').
The Regulations set out the procedural framework for the implementation of EU competition rules laid down in Articles 101 and Article 102 of the Treaty on the Functioning of the EU ('TFEU'). They have played a crucial role in the enforcement of EU antitrust rules since their entry into force 20 years ago.
Between 1 May 2004 and August 2024, the Commission has adopted 225 enforcement decisions, either finding an infringement of EU competition rules or accepting commitments that would remove its preliminary concerns. The Commission has imposed fines of over €42 billion under Regulation 1/2003, approximately €37 billion of which has been upheld by the EU Courts. Between 2012 and 2021, the estimated total customer savings from all cartel and antitrust interventions by the Commission were between €50 to €87 billion.
Main findings of the evaluation
The evaluation has shown that:
- The Regulations have generally achieved their objective of effective, efficient and uniform application of EU competition rules. They continue to have EU added value and remain relevant.
- The main changes brought about by Regulation 1/2003 consisted in:
- First, the removal of the old system that required the notification of agreements to the Commission in order for companies to benefit from an exemption under Article 101(3) TFEU, is viewed very positively.
- Second, the implementation of a decentralised system of parallel enforcement of EU competition rules by the Commission and NCAs, which led to more effective enforcement. NCAs and the Commission have together adopted over 1,650 decisions of which more than 85% were adopted by NCAs. This shows that NCAs have become key enforcers of EU competition law together with the Commission.
- The European Competition Network ('ECN') has been pivotal to achieving a uniform and effective application of EU competition rules, even if the cooperation within the ECN could be enhanced further. The evaluation showed the need to avoid unnecessary parallel investigations and further improve the relationship between EU and national competition laws to ensure a coherent enforcement of all available legal instruments.
- The evaluation also underlines the need for faster investigations. It identified several issues, some of which are connected to digitalisation, which may impact the effectiveness of investigation tools and powers that were written for 'paper world' investigations. For example, the system of creating and granting access to a non-confidential version of the Commission's file in order to ensure parties' rights of defence was conceived at a time when investigations were much smaller in size. With the proliferation of data and larger files that we are looking at, the creation of a non-confidential version of the file creates a significant burden on parties, information providers and the Commission alike.
During the evaluation, the Commission collected evidence to understand how the Regulations have functioned since they entered into force in 2004. This evidence included feedback gathered in a public consultation, in a conference organised by the Commission on the 20 years of Regulation 1/2003 and in a stakeholder workshop. The Commission also commissioned an external evaluation support study. The final report of the support study is also published today together with the summaries of the National Competition Authorities ('NCAs') feedback and the stakeholder workshop.
In parallel, the Commission has adopted today a Report to the Council and the European Parliament on the legal framework for and the use of interim measures by NCAs. Interim measures ensure that competition is preserved while an antitrust investigation is ongoing. The ECN+ Directive provides the NCAs with a minimum set of enforcement powers, including the power to impose interim measures. The report finds that NCAs that make more use of interim measures often have lighter procedural rules, sometimes coupled with less stringent legal requirements to impose those measures.
Next steps
During the next months, the Commission will reflect on the evaluation results and decide whether to launch a process for the revision of the Regulations.
Background
Article 101 TFEU prohibits agreements between companies that restrict competition. Article 102 TFEU prohibits abusive conduct by companies that have a dominant position on a particular market.
Regulation 1/2003 and its Implementing Regulation 773/2004 establish a procedural framework aimed at ensuring the effective and uniform application of Articles 101 and 102 of the TFEU. At the time of its adoption, Regulation 1/2003 represented a major reform of the way EU antitrust rules were enforced. In particular, it: (i) introduced a system of direct application of antitrust rules, (ii) empowered Member States to apply all aspects of the rules, (iii) strengthened the cooperation between the Commission and the NCAs, and (iv) enhanced the enforcement tools for the Commission to be better equipped to detect and address breaches of the EU antitrust rules.
After 20 years of experience in the application of the Regulations, the Commission launched the evaluation to assess whether the Regulations remain fit for purpose, before considering whether any amendment to the Regulations might be necessary. The evaluation is part of a broader review in the area of EU competition law launched in recent years. It also follows the Five-Year and Ten-Year reports on the functioning of Regulation 1/2003.
