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

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

Umbrella Pricing in Private Enforcement of EU Competition and U.S. Antitrust Law: Another Transatlantic Divergence?

The present work aims at comparing the assessment of umbrella pricing under US antitrust law and EU competition law in the aftermath of the landmark Kone judgment delivered by the European Court of Justice (ECJ). By comparing the reasoning of the ECJ and of the US federal courts on the availability of damages for the private plaintiffs in umbrella pricing cases, the article discusses whether umbrella pricing could represent a new example of transatlantic divergence between EU competition law and US antitrust law. The authors demonstrate that umbrella pricing claims have encountered two types of issues: while in the US the main obstacle for an umbrella pricing claim concerns the legal standing of the plaintiff, in Europe the main issue concerns the existence of a direct causal link between the anti-competitive conduct and the harm suffered by the customers of the non-cartelists. In Kone, the Court ruled that national procedural rules cannot exclude a priori an umbrella pricing claim and introduced a presumption on foreseeability of damages that cartellists would have caused to third parties. However, the Court left to the national courts the task of establishing the nexus of causality between anti-competitive conduct and harm suffered by the purchasers of non-cartellists. In the US, owing to a lack of clear guidance from the US Supreme Court, the federal courts have followed diverging approaches on this issue. In this respect *400 the ECJ’s approach in Kone, if followed by the US courts, could represent another instance of the mutual learning process across the Atlantic in the field of competition law

The Right of Defense in the Decentralized System of EU Competition Law Enforcement: A Call for Harmonization from Central and Eastern Europe

The article compares the application of the right of defence in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defence: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (‘ECN Directive’). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defence by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defence by NCAs of the EU Member States

The European inquisitor - The application of right of defence by Central and Eastern European NCAs

During the past few years, a number of practitioners have criticised DG Competition for not providing sufficient guarantees of right of defence. By comparing the application of the right of defence by the National Competition Authorities (NCAs) from seven EU member states, this article aims to show that the procedural safeguards offered by DG Competition provide a higher level of protection of parties’ right of defence. In other words, the European Commission is not the worst “inquisitor” in Europe. Secondly, the article discusses whether a legislative harmonisation of national procedural rules in this area would be desirable, including analysis of the draft Directive published by the European Commission in March 2017 to harmonise the enforcement powers of NCAs, the ECN+ Directive. At the time of writing, the representatives of the Council and the European Parliament have recently achieved a political agreement concerning a shared text of the legislation. The Directive, however, still needs to be approved by both legislative bodies and later transposed by the EU member states