The Dark Matter in EU Competition Law: Non-Infringement Decisions in the New EU Member States Before and After Tele2 Polska

European Law Review, Vol. 43, No. 3, pp.424-446, 2018

34 Pages Posted: 9 Nov 2017 Last revised: 28 Jun 2018

See all articles by Alexandr Svetlicinii

Alexandr Svetlicinii

University of Macau - Faculty of Law

Maciej Bernatt

University of Warsaw, Faculty of Management

Marco Botta

Max Planck Institute for Innovation and Competition; European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

Date Written: April 1, 2017

Abstract

Under art.11 Regulation 1/2003, every national competition authority (NCA) of the EU Member States must notify the EU Commission about the opening of formal investigations for a potential infringement of arts 101-102 TFEU and the envisaged decisions in that regard. The enforcement statistics for the first decade of Regulation 1/2003 indicate that the number of notified envisaged decisions is only about 50 per cent of the number of investigations opened under EU competition law. The authors explore the resulting“dark matter”in EU competition law by looking specifically at the non-infringement and closure decisions adopted by NCAs under national competition rules. The article assesses the compatibility of such decisions with the powers of NCAs under art.5 Regulation 1/2003, as interpreted in the ECJ’s Tele2 Polska case law.The article shows how the ECJ’sinterpretation of art.5 Regulation 1/2003 has contributed to the development of the “dark matter” in the decentralised system of EU competition law enforcement, which affects the ability of the EU Commission to monitor the enforcement activities of the NCAs.

Keywords: Anti-competitive practices, Bulgaria, Competence, Croatia, Czech Republic, Declarations of non-infringement, EU law, National competition authorities, Poland, Romania, Slovakia

JEL Classification: K21, L40

Suggested Citation

Svetlicinii, Alexandr and Bernatt, Maciej and Botta, Marco, The Dark Matter in EU Competition Law: Non-Infringement Decisions in the New EU Member States Before and After Tele2 Polska (April 1, 2017). European Law Review, Vol. 43, No. 3, pp.424-446, 2018, Available at SSRN: https://ssrn.com/abstract=3066627

Alexandr Svetlicinii

University of Macau - Faculty of Law ( email )

Macau

Maciej Bernatt (Contact Author)

University of Warsaw, Faculty of Management ( email )

Warsaw
Poland

HOME PAGE: http://www.wz.uw.edu.pl/en/pracownicy/lista/maciej-bernatt/cv

Marco Botta

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

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