Article 3 of Regulation 1/2003 and the Doctrine of Pre-Emption

Abstract

This chapter examines Article 3 of Regulation 1/2003, a provision that contains exceptions to the uniform application of EU competition law. By reference to the constitutional law doctrine of pre-emption, this chapter argues that in Regulation 1/2003, the Council of the EU validly modulated the effects of the principle of primacy of EU law. Concretely, this chapter defends that Article 103 of the Treaty on the Functioning of the EU allows the Council of the EU to limit the displacement of national law contrary to EU competition law and that this was done concerning national rules on unilateral conduct stricter than Article 102 of the same treaty.

Note: “Reprinted from The Transformation of EU Competition Law: Next Generation Issues, May 10, 2023, pages 113-130, with permission of Kluwer Law International.”

Keywords: antitrust, competition, constitutional, pre-emption, doctrine, conflict, primacy, EU

JEL Classification: K21, K23