The Obligation for the Competition Authorities of the EU Member States to Apply EU Antitrust Law and the Facebook Decision of the Bundeskartellamt

Abstract

Article 3 of Regulation 1/2003 obliges the competition authorities of the EU Member States (national competition authorities or NCAs) to apply Articles 101 and 102 TFEU (EU antitrust law) whenever they apply national competition law to conduct falling within the scope of EU antitrust law. Moreover, the application of national competition law cannot lead to the prohibition of agreements or concerted practices that affect trade between Member States but are not prohibited by Article 101 TFEU. National competition authorities can however use national competition law to prohibit unilateral conduct that is not prohibited by Article 102 TFEU. This paper examines the content and rationale of these provisions of Article 3 of Regulation 1/2003, and the legal consequences in case of non-respect of these provisions, using as an example the Facebook Decision of 6 February 2019 of the German Federal Competition Authority (Bundeskartellamt).

Keywords: EU, competition, antitrust, national competition authorities, Bundeskartellamt, Facebook, GDPR

JEL Classification: F02, K20, K21, K42, L40