Some Critical Comments on the Report of the Global Competition Law Centre on the Directly Applicable Exception System and the Direct Applicability of Article 81 (3) EC: Positive Enforcement and Legal Certainity

12 Pages Posted: 20 Oct 2010

See all articles by Ben Smulders

Ben Smulders

European Commission, Legal Service

Eric Gippini-Fournier

European Commission, Legal Service; affiliation not provided to SSRN; Université de Tours

Date Written: November 1, 2009

Abstract

This brief text is based on the commentary delivered by the authors at the 5th Annual Conference of the Global Competition Law Centre: The Commission's review of regulation 1/2003. (Brussels, 11 June 2009). The organisers of the conference invited the authors to take the role of "discussant" and panel member, respectively, and to examine critically the extensive draft report prepared by a group of lawyers and scholars coordinated by Bernard van de Walle de Ghelcke, entitled "The directly applicable exception system and the direct applicability of article 81(3) EC: positive enforcement and legal certainty". Apart from minor editing (typos and addition of footnotes) the paper retains the format -and the limitations- inherent in an almost improvised commentary on a draft report received by the authors a few days before the conference.

The authors take issue with some of the critical views and proposals contained in the report. In their view, the experience so far with the application of Article 81 EC under Regulation 1/2003 is, overall, satisfactory.

The authors' commentary focuses on the respective roles of paragraphs 1 and 3 of Article 81, on the evaluation of the functioning of the ECN and of the role of national courts in applying EC competition law.

Keywords: competition, antitrust, Regulation 1/2003, exemption, consumer welfare, enforcement, Europe, ECN

JEL Classification: K21, K41, K42, L40

Suggested Citation

Smulders, Ben and Gippini-Fournier, Eric and Gippini-Fournier, Eric, Some Critical Comments on the Report of the Global Competition Law Centre on the Directly Applicable Exception System and the Direct Applicability of Article 81 (3) EC: Positive Enforcement and Legal Certainity (November 1, 2009). Available at SSRN: https://ssrn.com/abstract=1476962 or http://dx.doi.org/10.2139/ssrn.1476962

Ben Smulders

European Commission, Legal Service ( email )

Brussels
Belgium

Eric Gippini-Fournier (Contact Author)

affiliation not provided to SSRN

European Commission, Legal Service ( email )

B-1049 Brussels
Belgium

Université de Tours ( email )

60 rue du Plat D'Etain
Tours, 37020
France

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