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In the late 1990s the European Commission started to conceive a complete overhaul of its competition policy. In view of the imminent enlargement of the Community to central and eastern Europe and the accession of a great number of new Member States, the Commission feared that it would be less and less able to ensure a satisfactory degree of enforcement of European competition law. In the spring of 1999 it therefore published a White Paper that suggested an entirely new structure for the enforcement of Articles 81 and 82 EC.1 Its most important effect was that it replaced the previous monopoly of the European Commission to grant exemptions under Article 81(3) with a network of national competition authorities, which would be entitled to the direct application of Article 81(3) EC. This decentralisation, which will be outlined in the first part of this paper, is accompanied by a certain change in the application of the substantive provisions. It is probably due to an increased American and Anglo-Saxon influence on European competition law that a shift towards a more economic approach can be observed. Various Commission instruments give evidence of this trend. It comes to the surface most clearly in the new Merger Control Regulation 139/2004, which will be discussed in the second part. A third spectacular change of direction became visible in late 2005 and relates to private enforcement of Articles 81 and 82. The Commission had already hinted at the need for an increased use of private litigation in its early proposals for Regulation 1/2003.2 A Green Paper on this subject was published in December 2005.3 I. DECENTRALIZATION Ever since the promulgation of Regulation 17 in 1962(4) European competition law has been characterized by the Commission's monopoly to grant exemptions under Article 81(3) EC. While national competition authorities and courts were allowed or even under an obligation to apply the prohibition of restrictive agreements laid down in Article 81(1) EC, they were not in a position to decide whether the case under scrutiny was exempted or not. Since the defendant undertakings usually invoke some justification for their anticompetitive behaviour, complaints lodged with a national competition authority or litigation started in a national court for violation of Article 81 were rather useless. Those who suffered from anticompetitive behaviour preferred to directly address the European Commission. The number of such complaints grew constantly with the accession of new Member States, and the Commission was less and less able to efficiently enforce European competition law. The Commission used two instruments to cope with the problem. With regard to standard situations it issued block exemption regulations which declared Article 81(1) inapplicable to certain categories of agreements and concerted practices. Moreover, individual applications for exemptions were more and more often answered by so-called comfort letters. Without providing for definite clearance of the respective behaviour, they would state that the Commission, while reserving the right of later investigation, did not see any reason to intervene for the time being. The resulting uncertainty was most clearly felt when contracts containing anticompetitive clauses gave rise to private litigation: Would a national judge be allowed to consider a clause covered by a comfort letter as null and void under Article 81(2) EC, or would that clause have to be respected as valid until further action would be taken by the Commission?5 In view of the imminent enlargement of the Community towards central and eastern Europe and the accession of 10 new Member States, the Commission feared a flood of new cases would cause the situation to become untenable. It therefore gave up its monopoly on granting exemptions. Under Article 1(2) of Regulation 1/2003 agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which satisfy the conditions of Article 81(3) of the Treaty shall not be prohibited, no prior decision to that effect being required. …
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