EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

while undertakings with a dominant position are prohibited from excluding competitors and exploiting trading partners (Article 102 TFEU). EU competition law enforcement has been traditionally divided into public and private, where the former refers to the enforcement actions of the Commission and the national competition authorities (NCA), whereas the latter refers to the enforcement conducted by courts, whose proceedings are initiated by private individuals (Frese, 2016, p. 4). Competition law enforcement in the EU focuses mainly on public enforcement, with private enforcement seen in many cases as a complement to public enforcement (Ioannidou, 2020, p. 847). Moreover, according to some authors, private enforcement of EU competition law is regarded as underdeveloped in most Member States (Malinauskaite, 2020, p. 109). The scope of this contribution focuses precisely on the area of public enforcement and the related issues of limitation periods for the imposition of sanctions for anticompetitive conduct. In the early days of European integration, public enforcement of competition law was highly centralised with the European Commission (the Commission) leading all enforcement actions under Articles 101 and 102 TFEU (Frese, 2016, p. 1). Over time, however, this strong centralisation began to weaken and, particularly due to the enlargement of the EU in 2004, the role of the Member States in the enforcement of EU competition rules had to be strengthened. This change was achieved through the adoption of Council Regulation (EC) No 1/2003 (Regulation 1/2003), which replaced Regulation No 17 of 1962. The decentralisation brought about by Regulation 1/2003 has allowed parallel powers for the Commission and NCAs to apply and enforce EU competition rules. 1.1 Commission’s power to impose sanctions for anticompetitive conduct A central enforcement tool is the possibility for NCAs and the Commission to impose fines or penalties on companies that infringe competition law. “The purpose of fines is to punish companies which have violated competition rules and to deter the same and other undertakings from engaging in or continuing illegal behaviour” (Malinauskaite, 2020, p. 210). The Court of Justice of the European Union (CJEU or the Court) generally requires that the imposition of a sanction for infringements of Union law should be effective, proportionate, and dissuasive (C-68/88, Commission v Greece ). In relation to sanctions in EU competition law, the CJEU specifically stated that the effectiveness of sanctions imposed by the NCAs, or the Commission was a precondition for the coherent application of the provisions of EU competition law (C-429/07, Inspecteur van de Belastingdienst v X BV ). As indicated above, a key innovation of Regulation 1/2003 was to empower NCAs to apply Articles 101 and 102 TFEU, together with national competition

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