The Assessment of the Effect on Trade by the National Competition Authorities of the 'New' Member States: Another Legal Partition of the Internal Market?

Posted: 25 Sep 2015

See all articles by Marco Botta

Marco Botta

Max Planck Institute for Innovation and Competition

Alexandr Svetlicinii

University of Macau - Faculty of Law

Maciej Bernatt

University of Warsaw, Centre for Antitrust and Regulatory Studies

Date Written: October 1, 2015

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 on trade concept. The paper calls for a reform of Article 3(1) Regulation 1/2003, supplementing the effect on trade criterion with quantitative thresholds.

Keywords: competition law, EU competition law, European Competition Network, national competition authority, effect on trade, Bulgaria, Czech Republic, Estonia, Poland, Romania, Slovakia

JEL Classification: K21

Suggested Citation

Botta, Marco and Svetlicinii, Alexandr and Bernatt, Maciej, The Assessment of the Effect on Trade by the National Competition Authorities of the 'New' Member States: Another Legal Partition of the Internal Market? (October 1, 2015). Common Market Law Review, Vol. 52, No. 5, 2015. Available at SSRN: https://ssrn.com/abstract=2664923

Marco Botta

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

Alexandr Svetlicinii (Contact Author)

University of Macau - Faculty of Law ( email )

Macau

Maciej Bernatt

University of Warsaw, Centre for Antitrust and Regulatory Studies ( email )

Warsaw
Poland

HOME PAGE: http://www.cars.wz.uw.edu.pl/news_gb.html

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