“United (should) we stand?” : on the interplay between European and national competition law after regulation 1/2003

Abstract

The enactment of Regulation 1/2003 radically changed the rules for the application of Art. 101 and Art. 102 TFEU, replacing the existing system of prior administrative authorisation by one of a directly applicable exception coupled with the possibility of national authorities applying Art. 101(3) TFEU. Concerns over substantial consistency in the application of European competition law (“ECL”) were the main reason for the introduction of the so-called rule of convergence under Art. 3 of Regulation 1/2003. Although Art. 3 expanded and gave statutory weight to the assertion of supremacy of ECL over national competition law (“NCL”), initially acknowledged in the Walt Wilhelm judgement, it did not rule out completely the possibility of Member States applying stricter NCL to unilateral conduct adopted by undertakings (Art. 3(2) second sentence). Prima facie, the exception would cover national provisions prohibiting the abuse of economic dependence/superior bargaining power, resale below cost/at a loss, as well as some types of unilateral conduct not related to economic dependence (e.g. boycott). An inquiry into four selected jurisdictions (France, Germany, Italy and the UK) reveals that not all national provisions whose primary goal is “the protection of competition on the market” (Rec. 9 of Regulation 1/2003) should be taken as a legitimate manifestation of plurality compatible with the concerns over substantive consistency mirrored in Art. 3(2) second sentence. The primary reason for this selective approach is that some national provisions, in particular those that prohibit per se resale below cost/at a loss, want a valid economic rationale for the purpose of competition law. Conversely, other stricter national provisions may be regarded as performing a complementary role vis-à-vis ECL, as it may be the case of the prohibition of economic dependence applied to the automotive and food-supply sectors. Despite the substantial changes introduced by Art. 3 in the relationship between ECL and NCL, Art. 3(2) second sentence can be regarded as a continuation of the case law inaugurated by the Walt Wilhelm judgement, recognising, albeit in more limited terms, that “unitas in diversitate” is an integrating part of competition law.