The Modernization of EC Antitrust Policy: a Legal and Cultural Revolution

Abstract

The White Paper on modernisation of EC antitrust policy suggests a radical departure from the existing system.According to Regulation No.17/62, agreements that fall under Article 81 (1), and are, therefore, prohibited, can only be exempted from this prohibition by the Commission, if they have been notified.Because of the Commission's exemption monopoly, Article 81 (3) has no direct effect.The White Paper proposes to abolish the existing system of notifications and the Commission's exemption monopoly.Instead, it suggests that Article 81 (3) should become directly effective, so that in can be applied also by national competition authorities and courts.Radical decentralisation, leading to a considerable increase of authorities and courts applying Article 81 (3), will obviously give rise to differences in interpretation and application.The White Paper proposes a series of information, coordination and cooperation mechanisms to minimise these risks.The article agrees fundamentally with these suggestions, though they appear to be relatively "soft".They may, however, be reinforced, in the light of practical experience, at a later stage.The reform suggested by the White Paper will increase the responsibility of judges.The article does not share the doubts that judges are not qualified, or that judicial procedures are not adapted to handle the direct application of Article 81 (3).If additional reforms are needed, they can be introduced, again, at a later stage.The White Paper underestimates, however, the difficulties for the accession candidates.These difficulties should be addressed through transitional arrangements.28 Schaub/Dohms (1999), p. 1056.29 Sceptical about the the existence of a solid competition culture throughout the EU Moeschel (1999), p. 510/511; Monopolkommission (1999), para.53/54.30 White Paper, para 4.

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