The temptation of 'per-se' : what is wrong with the EU competition enforcement

Abstract

The enforcement of competition law in the EU is at historic heights, with numerous cases and high-profile decisions which made it, without any doubt, the "star" of EU law. Due to its perceived success, EU competition law and enforcement became a model followed by an increasing number of emerging and developing economies outside the Union itself—a "beacon" for the enforcement of competition rules across the world. Such an enviable position does not preclude but, on the contrary, warrants more scrutiny of the way the EU competition law is enforced. Is the EU system fully compliant with the requirements of due process, what is the quality of the decisions, and how prone is this system to errors—all these are valid and more meaningful questions than ever. This article aims to sketch out an analysis of the way the EU competition law is enforced, and I intend to delve into this analysis in future contributions. For the time being, this endeavour is limited to outlining certain aspects of the enforcement of the EU competition rules that have been and are raising concerns. Thus, I shall focus this preliminary analysis on cartels, as perhaps the most important part of the competition law, in terms of number of cases and effects on consumer welfare. I consider that this is the appropriate moment to discuss flaws and their possible fixes, given that the European Commission is approaching the end of the legislative process for a new directive aimed at switching the enforcement of the EU competition law into a higher gear, through the empowering of the national competition authorities with the right tools in order to achieve a fully effective enforcement of these rules ("a genuine common competition enforcement area", in the words of the Commission), a process dubbed as ECN+. Whilst I mostly agree with the contemplated changes, I am of the opinion that they do not cover the main concerns raised with regard to the EU competition enforcement. There are early claims in various forums for a reform of the enforcement structure which was established in 1962. Even if the EU competition enforcement structure proved to be mostly effective over time, due to a changing landscape of both the economy, where new challenges arose, especially in the digital economy, and of the legal background, where the fundamental rights have come to prominence in the case law of the European Court of Human Rights and of the European Court of Justice, the reform thereof appears to be worth considering at this point. I argue in this article that the need for a reform of the EU competition enforcement became stringent, even if it does not necessarily entail major structural changes, which are more difficult to implement. I am pragmatic and I advocate for, at least, a more careful analysis of the factual circumstances in order to avoid the per-se trap—using the by-object box too frequently and considering too easily that such an infringement exists, based on only a slim layer of facts.