ICLE Comments on Regulation 1/2003
Introduction
We thank the European Commission for this opportunity to respond to the request for information on the revision of Regulation 1/2003, the flagship legislation on the implementation of competition law at the European level. The Call for Evidence correctly identifies that legal and economic developments brought about significant challenges for competition enforcement in Europe. While Regulation 1/2003 has been largely effective, it could also benefit from certain improvements, especially considering the digitalization of business over recent decades.
The International Center for Law & Economics (ICLE) is a nonprofit, nonpartisan research organization whose core mission is to promote the application of law & economics methodologies to inform public-policy discussion. Our work focuses on developing intellectually rigorous, data-driven analyses to foster efficient policy solutions that enhance consumer welfare and global economic growth. ICLE previously submitted comments to the Commission regarding the first consultation on the Digital Markets Act (DMA), as well as the revision of the regulatory framework on merger control. These comments concentrate on three questions raised in the Call for Evidence: interim measures and commitments, rights of complainants, and legal fragmentation.
First, the consultation proposes making interim measures and commitment procedures under Regulation 1/2003 faster and easier. While attractive in theory, lowering the legal or procedural thresholds for Article 8 interim measures or compressing Article 9 commitment negotiations would heighten the risk of false positives. Such interventions may chill procompetitive conduct before any infringement has been proven. EU law has long cautioned against this danger. The Court of Justice of the European Union’s (CJEU) case law requires a strict test of urgency, serious and irreparable harm, and a prima facie finding before interim measures can be imposed, precisely to avoid irreversible remedies that later prove unjustified. Similarly, Article 9 commitments already provide for broad Commission discretion. Imposing deadlines or procedural shortcuts could pressure firms into overly broad concessions that are not calibrated to actual harm, thereby locking in industry structures and deterring innovation.
These risks are particularly acute in dynamic markets, where rapid change makes it difficult to distinguish in real time examples of competition on the merits from exclusionary conduct. Interim measures providing access to inputs or redesigns may be operationally irreversible. Rushed commitments may entrench inefficient outcomes. The better path would be to preserve and reinforce existing safeguards: interim measures should remain exceptional and grounded in strong evidence of irreparable harm (without themselves creating such irreparable harm), while commitments should remain voluntary, flexible, and proportionate. Speed is valuable, but only if it comes with reliable evidence and sober effects analysis; otherwise, consumer welfare may be reduced, rather than enhanced.
Second, the Commission is considering whether to simplify the participation of complainants and third parties in competition investigations, including by abolishing the right to a formal rejection decision. We support this option. Under the current framework, complainants face minimal costs to file, but the Commission bears significant procedural burdens in responding, which include the duty to issue detailed, reasoned rejection decisions within tight deadlines. This asymmetric allocation of rights and obligations creates moral hazard: rivals and self-interested parties have strong incentives to exploit the system for strategic gain, while the Commission is forced to expend scarce resources on marginal complaints.
Abolishing the obligation to issue formal rejection decisions would help to correct this imbalance, reduce procedural costs, free up enforcement resources, and allow the Commission to focus on cases with genuine anticompetitive harm. This does not mean complainants’ input should be discouraged: useful information should still be welcomed and can help to detect real infringements. But forcing the Commission to issue detailed dismissal decisions in every case magnifies enforcement costs without improving outcomes. In line with error-cost reasoning, complaints that are clearly inconsistent with protecting competition—for example, those aimed at protecting competitors from lower prices—should be deprioritised. Streamlining complainants’ rights in this way would enhance procedural economy, while safeguarding the Commission’s ability to act where it truly matters.
Finally, the Commission is right to revisit Article 3(2) of Regulation 1/2003, which permits member states to adopt stricter national rules on unilateral conduct. While such flexibility was intentional, its recent proliferation—from Belgium’s abuse of economic dependence law to Germany’s regime for firms of “paramount significance”—risks serious fragmentation of the internal market. Parallel national enforcement not only multiplies compliance costs for firms but also raises ne bis in idem concerns when layered on top of EU competition law and the DMA. Cases such as the Bundeskartellamt’s investigations into Meta, Amazon, and Booking.com illustrate how national and EU rules can converge on similar conduct—blurring substantive differences, while multiplying burdens.
Strengthening coordination is therefore not an “option” but a necessity. The ECN+ Directive already envisages information exchange, but its practical use remains limited. A more robust framework is needed to ensure complementarity, rather than duplication, consistent with the CJEU’s insistence on uniform interpretation and coherence of enforcement. More fundamentally, the Commission should reassess whether the asymmetric pre-emption logic of Regulation 1/2003, strong for Article 101 but loose for Article 102, remains justified. If the original rationale has lost its force, reform should aim to rebalance towards greater harmonisation, while carefully weighing the trade-off between uniformity and Member State autonomy.
I. Interim Measures and Commitments
The Commission asks whether it should amend Article 8 of Regulation 1/2003 to enable swifter interim interventions, including by revising the substantive legal test and/or streamlining procedural requirements so that measures can be adopted even in cases of extreme urgency. It also asks whether it should adapt Article 9 by imposing deadlines for parties to submit binding-commitment offers to speed up commitment decisions:
Option 1: amend the Commission’s power under Article 8 of Regulation 1/2003 to allow for faster interventions when necessary. Sub-option 1: Change the legal test for imposing interim measures to allow for the effective use of interim measures. and/or Sub-option 2: Change the procedural requirements for imposing interim measures to allow for faster proceedings. and/or
Option 2: adapt the Commission’s power to make commitments binding under Article 9 of Regulation 1/2003 by imposing a deadline for the submission of binding commitment offers on the investigated parties to ensure faster.[1]
Unfortunately, simply making it easier for the Commission to impose interim measures or to extract commitments is unlikely to benefit consumers. This is particularly the case in markets characterized by rapid innovation and network effects, where premature intervention risks imposing irreversible constraints on firms not yet proven to be infringing. This would raise the likelihood and cost of false positives.
Indeed, the central insight of the error-cost framework is that, when (competition) enforcers act under significant uncertainty, the expected welfare loss from deterring procompetitive conduct can exceed the harm from delayed intervention against actual violations.[2] EU competition law has long recognized this danger, which why it establishes demanding substantive and procedural requirements before any kind of remedy is imposed—not least when this is done prior to a full infringement decision.
From a procedural standpoint, both Regulation 1/2003 and the CJEU’s case law require genuine urgency and a real risk of serious and irreparable harm (as well as a prime facie finding of liability) before interim measures can be imposed pending a merits outcome:
In cases of urgency due to the risk of serious and irreparable damage to competition, the Commission, acting on its own initiative may by decision, on the basis of a prima facie finding of infringement, order interim measures.[3]
These requirements are echoed by the CJEU. For instance, in NDC Health Corp. v. IMS Health, the CJEU’s president refused to order interim measures because, among other things, the defendant’s conduct was not unambiguously illegal:
[W]here the abusive nature of the applicant’s conduct is not unambiguous having regard to the relevant case-law and where there is a tangible risk that it will suffer serious and irreparable harm if forced, in the meantime, to license its competitors, the balance of interests favours the unimpaired preservation of its copyright until judgment in the main action.[4]
In that same case, the CJEU also cautioned against interim measures when their effect would be hard to reverse:
[M]any of the market developments to which immediate execution of the decision is likely to give rise would be very difficult, if not impossible, later to reverse if the application in the main action were to be upheld.[5]
Arguing further that:
[I]t cannot be excluded that implementation of the contested decision will restrict the applicant’s freedom to define its business policy.[6]
These procedural rules echo European competition law’s broader concern with false positives. After all, on the substance, the CJEU has fleshed out numerous legal tests that aim to avoid wrongly punishing innocent firms. For instance, the court in Bronner and IMS Health (concerned about interferences with parties’ property rights) confined duty-to-deal theories to “exceptional circumstances”, requiring indispensability, elimination of competition, and (in intellectual-property cases) the prevention of a new product for which there is consumer demand, absent objective justification.[7] Likewise, in Post Danmark, the court held that exclusionary “effects” must be assessed with care, so as to avoid chilling procompetitive conduct:
Not every exclusionary effect is necessarily detrimental to competition… Competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality or innovation.…[8]
Finally, the Intel court made clear that, where the dominant firm adduces evidence that its conduct is incapable of restricting competition, the Commission must undertake an effects-based assessment—examining dominance, market coverage, conditions, duration, amounts, and any strategy to exclude equally efficient rivals.[9] This reflects clear concern about Commission decisions being made without a sufficiently robust evidentiary basis.
Importantly for the matter at hand, all these substantive guardrails would be rendered ineffective if enforcers had free rein to mandate interim measures before a case is decided. Lowering those standards, whether by softening the legal test or compressing procedural safeguards, would shift error-cost risk onto consumers and defendants by making Type I errors of overenforcement more likely, along with their chilling effect on investment and rivalry. Interim measures are thus rightly circumscribed to exceptional situations where the balance of interests warrants their imposition.
Commitment decisions raise a distinct-but-related risk. Article 9 decisions are expressly designed to trade a formal infringement finding for speed and procedural economy. The CJEU has emphasized that the Commission enjoys broad discretion in accepting commitments and that proportionality review is correspondingly limited—i.e., whether the commitments address the stated concerns and whether less onerous commitments would do so.[10] Given these already limited guardrails surrounding the application of this proportionality test, Article 9 can readily undershoot or overshoot what would be necessary under Article 7 after full fact-finding, especially if deadlines or procedural shortcuts pressure firms into overly broad concessions. That dynamic can lock in industry structures, deter entry, or curb product changes that would benefit consumers. Further eroding the limited requirements of Article 9 to tilt the bargaining scales in the Commission’s favor of would thus likely do more harm than good.
Against this legal backdrop, the consultation’s Option 1 (changing Article 8’s legal or procedural tests to accelerate interim measures) and Option 2 (imposing deadlines that pressure Article 9 commitments) would predictably increase the incidence and cost of false positives. Interim orders are often operationally irreversible (e.g., forced access, product redesigns, long-term supply or interoperability obligations) and could chill procompetitive experimentation. Commitment deadlines risk extracting overly broad, innovation-reducing concessions that are not calibrated to proven harm.
These error-cost risks are particularly acute in dynamic digital markets, where short-run structure is a poor proxy for long-run consumer welfare, and where rapid data-driven iteration can make intense platform competition look like anticompetitive foreclosure. Several scholars have therefore cautioned against hastening to intervene, absent robust evidence of anticompetitive effects.[11]
Concrete examples illustrate the point. As ICLE scholars discussed in an amicus brief submitted to the Epic Games litigation in the United States, overly hasty platform remedies risk degrading product quality, security, privacy, and multisided pricing models before a record proves competitive harm (a risk at odds with Post Danmark’s warning not to protect less-efficient rivals at consumers’ expense):
The Order would effectively obviate various of Apple’s legal business practices, including steps Apple might take to protect the integrity and security of its platform and IAP, the privacy and data security of consumers who use the Apple ecosystem, and the value of its intellectual property, all of which were previously identified by this Court as legitimate. [12]
Accordingly, if reforms are pursued, they should preserve (and, where needed, reinforce) the evidentiary and proportionality safeguards that EU law has developed precisely to mitigate error costs. For interim measures, that means retaining a stringent merits-and-urgency filter keyed to serious and irreparable harm and to sound effects evidence. For commitments, it counsels against rigid deadlines or presumptions that would shift bargaining power in ways likely to produce overly inclusive, innovation-reducing remedies. Speed can be valuable, but only when paired with procedures that ensure decisions rest on a reliable factual foundation and a sober assessment of competitive effects.
II. Rights of Complainants
With respect to the participation of complainants and third parties in competition investigations, the Commission asks whether it should simplify the procedure to reduce complexity and resource intensity. Under Regulation 1/2003, natural or legal persons with a ‘legitimate interest’ may lodge a formal complaint. But the evaluation of Regulation 1/2003 revealed the current system is burdensome for both complainants and the Commission, and that the existing categories of third-party rights may undermine effectiveness and add procedural complexity. The following options are under consideration:
Option 1: abolish formal complainants’ right to a rejection decision. and/or
Option 2: streamline or clarify the rights of third parties in competition investigations to reduce complexity and improve effectiveness.[13]
Abolishing complainants’ rights to a rejection decision would free a substantial share of the Commission’s resources, reduce overall procedural costs under Articles 101 and 102 TFEU, and streamline enforcement by eliminating a cumbersome three-step procedure that requires complainants’ active participation—disproportionately burdensome for the Commission. By contrast, option two would likely only add pressure to resources that are already overstretched. We therefore support option one, for reasons set out below.
In competition law, disgruntled rivals and self-interested parties often have a strong incentive to lodge complaints. These grievances may or may not coincide with the public interest—that is, the protection of competition for the ultimate benefit of consumers—and indeed, they very often do not. As U.S. Judge Frank Easterbrook observed in 1984:
Courts cannot review old decrees on their own motion, but they should be careful not to create new restraints. They therefore should treat suits by horizontal competitors with the utmost suspicion. They should dismiss outright some categories of litigation between rivals and subject all such suits to additional scrutiny.[14]
Easterbrook’s advice was addressed to U.S. courts, where antitrust litigation is predominantly private and driven by plaintiffs. There is, however, no reason the same guidance should not also inform the Commission’s approach under the EU’s public-enforcement system. Indeed, much of Easterbrook’s reasoning stems from a deeper ambiguity that underlies both U.S. antitrust and EU competition law alike: the fine distinction between protecting competition and protecting competitors.
That enduring dilemma ensures that rivals and other self-interested parties will always have strong incentives to exploit enforcement for private gain. In the EU, this dynamic is reinforced by the Commission and the European Courts’ recognition of a broad range of actors as having a “legitimate interest” in lodging complaints under Articles 101 and 102 TFEU. These include, among others, competitors,[15] undertakings excluded from a distribution system,[16] traders unable to penetrate a market because customers are allegedly tied to another supplier,[17] and suppliers paid “low” prices by large purchasers.[18]
The incentive to employ the mechanism of competition law for private interest is further compounded by certain procedural rules that make the benefits of filing a complaint—even if potential—vastly outweigh its costs.
Indeed, lodging a complaint with the Commission entails only modest costs for complainants, at least at the initial phase. There is no filing fee and no sanction for submitting a meritless claim. Completing Form C of the Commission’s complaint notice may entail minor costs—such as gathering information on the parties involved or submitting relevant documents (texts, minutes, terms of transactions, etc.)—but the form itself is concise, high-level, and limited to a single page.
At the same time, the potential rewards of a successful complaint can be substantial, and likely to far outweigh any filing costs incurred. A strategically framed complaint may weaken a rival’s competitive position by imposing fines, remedies, or the financial burden of compliance with an investigation under Regulation 1/2003. This can allow a third party to secure access to another firm’s infrastructure at little or no cost, or by create grounds for follow-on private litigation (follow-on litigation constitutes the lion’s share of EU private enforcement). Meanwhile, the bulk of investigative costs falls on the Commission.
While the Commission is under no obligation to investigate every complaint, it does not have unlimited discretion on how it handles complaints. On receipt of a complaint, the Commission must consider whether, if confirmed, the facts would constitute an infringement and whether there is an EU interest in pursuing the matter;[19] carry out an assessment on the basis of matters of fact and law;[20] and undertake a diligent and impartial examination of the complaint in accordance with the principle of sound administration.[21][22] It must also, in each case, assess the seriousness and duration of any interferences with competition and the persistence of their consequences,[23] and take into account the existence of other similar complaints. If the reason given by the Commission for rejecting a complaint is inconsistent with its previous treatment of such conduct, the decision rejecting the complaint may be challenged on the grounds of lack of reasoning under Art. 296 TFEU.[24]
It is unclear how much time and staff the Commission must devote to meeting these procedural requirements, but the burden is unlikely to be negligible. For reference, the Commission has committed to responding to all complaints within four months.[25] As of the late 1990s, Advocate General Giuseppe Tesauro considered a period of three to six months a “reasonable” timeframe for issuing a decision.[26] Such compressed deadlines place additional strain on the Commission’s already-limited resources. In 2024, the Directorate-General for Competition employed 851 staff members, 70% of which are dedicated to enforcement activities.[27] These resources are now spread even thinner due to the enforcement needs of the DMA.
To be sure, complainants also bear some costs when a rejection decision is at stake under Article 7 of Regulation 73/2004—e.g., engaging in exchanges with the Commission or submitting additional written observations. [28] Yet the bulk of the burden still falls on the Commission, which must adopt a detailed decision rejecting the complaint within a reasonable period or risk legal challenge: either for failure to act under Article 265 TFEU, for insufficient reasoning under Article 296 TFEU, or for annulment under Article 263 TFEU. Conferring these review rights onto interested parties therefore means the Commission must act diligently and within a tight deadline or risk litigation, which would require additional operational and reputational costs.
This lopsided allocation of rights and obligations generates moral hazard. Complainants face limited downside but potentially significant upside, which systematically encourages an oversupply of complaints and thereby increases the system’s total procedural costs, of which they bear only a fraction. Complainants therefore have incentives to over-report, while the Commission bears almost the full cost of monitoring and enforcement. Critically, because the law requires the Commission to respond even to frivolous complaints with a reasoned decision, the procedural rules amplify the inefficiency. Complaints are almost costless to lodge, but never costless to process. Even those that pass the initial threshold, yet ultimately prove unfounded, consume substantial administrative and investigative resources.
Viewed economically, this is a suboptimal outcome. The procedural system’s objective is to minimize the combined costs of erroneous judicial decisions and the operation of the system itself.[29] Given many substantive and procedural factors—including the inherent complexity of competition law, its susceptibility to be used both to stifle competitors and to free ride on their investments, and the relatively low cost of filing a complaint—parties have strong incentives to lodge more complaints than is socially optimal. Abolishing the duty to respond to every complaint will not fix this, but relieving the Commission of the obligation to issue a formal rejection in every case would mitigate at least some of the procedural costs of enforcing Arts. 101 and 102 TFEU.
Legal decisionmaking and enforcement are always difficult and potentially costly.[30] In competition law, those costs are especially high, because competition decisions are rarely straightforward. Most conduct falls into a grey zone where effects are ambiguous and possibly forward-looking,[31] knowledge is incomplete, and enforcement operates under conditions of genuine ignorance and uncertainty.[32]
Granted, some of these costs are mitigated by the valuable information provided by complainants. Indeed, to the extent that they contribute useful insights and evidence, complaints should be encouraged.[33] But forcing the Commission to devote scarce time and expertise to explaining the dismissal of marginal or strategic complaints only magnifies the already high operating costs of enforcing EU competition law and diverts attention from genuinely anticompetitive practices—where those limited resources would be better deployed.
Which suits the Commission should dismiss automatically is a different question altogether. But, once again, one can look to the error-cost framework for guidance. As Easterbrook explains:
Some of these suits explicitly request the court to order a business rival to raise price, and they may be dismissed quickly.[34]
And:
One category of complaints that should not be entertained at all concerns lower prices … dismissal should be automatic.[35]
In other words, complaints that, on their face, challenge competitive rather than anticompetitive conduct should be summarily dismissed. Admittedly, distinguishing between the two is rarely straightforward, and much—if not virtually all—of competition law is devoted to precisely that task.[36] As a result, only a fraction of complaints may fall into the “dismiss outright” category. Yet where a complaint is clearly at odds with the overarching purpose of the law, principles of procedural economy and the error-cost framework counsel that it be treated with minimal attention. Such complaints, in particular, should not trigger any obligation to issue a formal rejection decision.
III. Legal Fragmentation in Unilateral-Conduct Cases
Finally, the Commission asks whether the system of pre-emption under Article 3 should be amended. This is especially pertinent as regards unilateral conduct, on which member states are empowered to adopt stricter national laws under the second sentence of Article 3 (2).
The Commission notes that numerous member states have recently introduced stricter laws on unilateral conduct, such as abuse-of-economic-dependence rules and targeted measures on digital markets. Such instruments may pose challenges from an internal-market perspective, as multiplying regulatory regimes may cause fragmentation and administrative inefficiency.
In response, the Commission proposes two potential solutions:
Option 1: Adapt the existing coordination and information exchange mechanisms between competition authorities under Regulation 1/2003 so that these cover the application of stricter national laws on unilateral conduct in order to ensure the coherent, effective and complementary enforcement of available competition law instruments.
Option 2: Discontinue the current system as described here under section B.[37]
In addition, the Commission wishes to adapt relevant notices to provide additional guidance where necessary. The Commission also intends to incorporate recent CJEU case law into the regulations. Finally, it notes the possibility of simplifying and clarifying the rules where possible, including in areas where the evaluation identified a need for clarification.
We welcome the Commission’s questions as timely and warranted. In particular, we note that strengthening the coordination of enforcement constitutes not merely an option but a necessity in contemporary competition policy. Furthermore, we invite the Commission to reconsider the pre-emption procedure under Article 3(2) and to consider seriously whether the conditions for the special treatment of unilateral-conduct rules continue to be relevant.
Given member states’ growing reliance on stricter national rules on unilateral conduct, the Commission’s proposal to enhance coordination under Regulation 1/2003 is, in principle, difficult to contest. Stronger coordination can bring clear benefits: improving the effectiveness and deterrence of enforcement, safeguarding firms’ rights of defence, ensuring complementarity between overlapping regimes, and promoting efficient use of administrative resources.[38]
With that said, presenting this as merely an “option” is somewhat misleading. The current system already permits member states to maintain “stricter national laws” that pursue objectives similar to Article 102 TFEU.[39] These include, for instance, rules on abuse of economic dependence, resale below cost, termination of supply, or sector-specific competition laws that apply more stringent rules. When applied in parallel with EU rules, such laws allow undertakings to be investigated and potentially sanctioned twice for the same conduct. This raises issues under the fundamental right to ne bis in idem. According to the CJEU, exceptions to this principle are permissible only if enshrined in law, respect the essence of the right, and are proportionate.[40] Proportionality, in turn, requires an “appropriate legal framework” of coordination—not just on paper, but in practice.
The ECN+ Directive already provides for information exchange between the Commission and national competition authorities. But the Commission’s consultation suggests that existing mechanisms are not functioning effectively. Indeed, recent enforcement actions, particularly in the digital sector, demonstrate that stricter national laws have been applied in ways that risk fragmenting the internal market. Against this backdrop, strengthening coordination looks less like an “option” and more like a “necessity” if the current system is to remain compatible with both the internal-market objective and the protection of fundamental rights.
Article 3(2) Regulation 1/2003 permits member states to maintain stricter national competition rules on unilateral conduct. Over time, many have done so. Belgium’s abuse-of-economic-dependence rules and France’s “petit droit de la concurrence” are notable examples. With growing regulatory interest in digital platforms, these national laws have multiplied.
The most prominent case is Germany’s amendment to its competition law that empowers the Bundeskartellamt to designate firms as being of “paramount significance for competition across markets” and to impose special obligations on them. This framework has already underpinned investigations against Apple, Meta, and Amazon. In Meta’s case, the Bundeskartellamt relied on its “stricter” powers under Article 3(2), which resulted in a long-running case that has reached the German federal courts and the CJEU.[41] Other member states, such as Italy and Spain, have also enacted or contemplated similar rules.
Such enforcement actions raise two kinds of concerns. First, they risk engaging the principle of ne bis in idem, especially when layered on top of parallel enforcement under EU competition law and the DMA. Second, even if double (or triple) jeopardy is avoided, businesses still face double (or triple) the compliance costs.[42]
A recent Bundeskartellamt case illustrates the point. In June, the German authority announced an investigation of Amazon and Booking’s “price control mechanisms” under national law.[43] To be sure, the Bundeskartellamt is targeting pricing practices in Amazon’s own platform, while the price-parity clauses regulated under the DMA limit Amazon’s reach into prices set by sellers on alternative platforms. That difference, nonetheless, may be exaggerated. Both mechanisms serve a similar purpose of making Amazon’s marketplace more attractive, while the rules targeting them (under the DMA, as well as competition law) seek to ensure sellers’ freedom to set prices.
Hence, the substantive differences may be marginal. If sellers’ freedom to set prices is the core concern, then the DMA is the natural instrument through which such practices should be addressed—not divergent national rules. The Commission should therefore weigh carefully whether the benefits of parallel enforcement (if any) justify the costs. Fragmentation of the internal market and rising compliance burdens may ultimately hinder innovation and harm consumer welfare.
The Commission has signalled its intent to incorporate recent CJEU case law into the regulations. In its latest judgments, the court has underlined the importance of a consistent and uniform interpretation of competition rules within the EU legal order.[44] This principle extends not only to substantive interpretation, but also to the overall coherence of the enforcement architecture established by Regulation 1/2003.
That insight raises a structural question. Under the current framework, Regulation 1/2003 adopts different pre-emption logics for Articles 101 and 102 TFEU.[45] Article 101 is subject to strong pre-emption, preventing member states from adopting stricter rules on interfirm agreements. By contrast, Article 102 allows member states to apply stricter rules on unilateral conduct. This asymmetry was deliberate when Regulation 1/2003 was adopted, but it is legitimate to ask whether the rationale for differentiated treatment still holds today.[46]
If the legislative reasons for looser pre-emption under Article 102 have lost their force, the Commission—as the initiator of legislative reform—has both the opportunity and the responsibility to steer the debate toward a new approach. Any shift would, of course, need to weigh the benefits of uniformity against the costs of reducing member state autonomy. But a reassessment now seems warranted, considering both recent case law and the evident risks of fragmentation.
[1] See Call for Evidence for an Impact Assessment: EU Antitrust Procedural Rules (Revision), Eur. Comm’n (10 July 2025), https://competition-policy.ec.europa.eu/public-consultations/eu-antitrust-revision-procedural-rules-revision_en.
[2] See Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984); see also Keith N. Hylton & Michael Salinger, Tying Law and Policy: A Decision-Theoretic Approach, 69 Antitrust L.J. 469 (2001); Joshua D. Wright & Douglas H. Ginsburg, The Goals of Antitrust: Welfare Trumps Choice, 81 Fordham L. Rev. 2405 (2013).
[3] Regulation 1/2003, Art. 8.
[4] See Order of the President, Case C-481/01 P(R), NDC Health Corp. v. IMS Health Inc., 2002 E.C.R. I-3401, ¶144.
[5] Id. ¶ 129.
[6] Id. ¶ 130.
[7] See Case C-7/97, Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, 1998 E.C.R. I-7791; Case C-418/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, 2004 E.C.R. I-5039.
[8] See Case C-209/10, Post Danmark A/S v. Konkurrencerådet, EU:C:2012:172, ¶ 22,
[9] See Case C-413/14 P, Intel Corp. v. Commission, EU:C:2017:632.
[10] See Case C-441/07 P, Commission v. Alrosa Co. Ltd., 2010 E.C.R. I-5949, ¶ 50.
[11] See, e.g., Daniel F. Spulber, Unlocking Technology: Antitrust and Innovation, 4 J. Competition L. & Econ. 915 (2008).
[12] See Brief of Amicus Curiae Int’l Ctr. for Law & Econ., Epic Games, Inc. v. Apple Inc., No. 21-16506 (9th Cir. 2022), at 2; see also Brief of Amicus Curiae Int’l Ctr. for Law & Econ., Epic Games, Inc. v. Google LLC, No. 25-70072 (9th Cir. 2025) (emergency-stay filings).
[13] Commission Call for Evidence, supra note 1, at 3.
[14] Easterbrook, supra note 2, at 35.
[15] See, e.g., Joined Cases 142 & 156/82, British Am. Tobacco Co. & R.J. Reynolds Indus., Inc. v. Commission, 1987 E.C.R. 4487
[16] Case 26/76, Metro SB-Großmärkte GmbH & Co. KG v. Commission, 1977 E.C.R. 1875.
[17] Commission Decision 79/86/EEC, Vaessen/Moris, 1979 O.J. (L 19) 32.
[18] Case 298/83, CICCE v. Commission, 1985 E.C.R. 1105.
[19] Case T-24/90, Automec Srl v. Commission, 1992 E.C.R. II-2223.
[20] Case T-306/05, Scippacercola & Terezakis v. Commission, ECLI:EU:T:2008:9.
[21] Case T-54/99, max.mobil Telekommunikation Service GmbH v. Commission, 2002 E.C.R. II-313.
[22] The three criteria outlined above are codified in Article 7 of Regulation Council Regulation 773/2004. See Commission Regulation (EC) No 773/2004 of 7 April 2004, 2004 O.J. (L 123) 18, art. 7 (“Regulation 773/2004”).
[23] Case C-119/97 P, Ufex & Others v. Commission, 1999 E.C.R. I-1341.
[24] Case T-206/99, Métropole Télévision v. Commission, 2001 E.C.R. II-1057.
[25] Commission Notice on Best Practices for the Conduct of Proceedings Concerning Articles 101 & 102 TFEU, 2011 O.J. (C 308) 6, ¶ 16 (“Best Practices”).
[26] Case C-282/95 P, Guérin Automobiles v. Commission, 1997 E.C.R. I-1503.
[27] European Commission, Directorate-General for Competition, Annual Activity Report 2024, Ref. Ares (2025) 2900758 (Apr. 9, 2025), at 851.
[28] Commission Notice on the Handling of Complaints by the Commission Under Articles 81 and 82 of the EC Treaty, 2004 O.J. (C 101) 65, ¶ 69 (“Complaints Notice”).
[29] Richard A. Posner, Economic Analysis of Law 773 (9th ed., 2014).
[30] Paul L. Joskow & Alvin K. Klevorick, A Framework for Analyzing Predatory Pricing Policy, 89 Yale L.J. 213 (1979).
[31] Posner, supra note 27, at 4. (“Information is costly, and often the costs are prohibitive, especially when the information one would like to have concerns the future”.).
[32] Geoffrey A. Manne, Error Costs in Digital Markets, in The Global Antitrust Institute Report on the Digital Economy 33, 34–41 (Joshua D. Wright & Douglas H. Ginsburg eds., 2020).
[33] Complaint Notice, paras. 2–3
[34] Easterbrook, supra note 2, at 36.
[35] Id., at 35.
[36] Dirk Auer & Lazar Radic, The Growing Legacy of Intel, 14 J. Eur. Comp. L. & Prac. 1, 15 (2022).
[37] Commission Call for Evidence, supra note 1, at 3.
[38] Claudia Massa, Sincere Cooperation and Antitrust Enforcement: Insights from the Damages and ECN+ Directives, 16 Eur. Compet. J. 126 (2020).
[39] Directive (EU) 2019/1 of the European Parliament and of the Council of 11 Dec. 2018, 2019 O.J. (L 11) 3, art. 2(1)(3).
[40] Marco Cappai & Giuseppe Colangelo, Applying ne bis in idem in the Aftermath of bpost and Nordzucker: The Case of EU Competition Policy in Digital Markets, 60 Common Mkt. L. Rev. 431 (2023)
[41] Giuseppe Colangelo & Mariateresa Maggiolino, Antitrust Über Alles: Whither Competition Law After Facebook?, 42 World Compet. 372 (2019).
[42] Mikolaj Barczentewicz, The Digital Markets Act as an EU Digital Tax: When Compliance Costs Dwarf Regulatory Estimates, Truth on the Market (8 July 2025), https://truthonthemarket.com/2025/07/08/the-digital-markets-act-as-an-eu-digital-tax-when-compliance-costs-dwarf-regulatory-estimates.
[43] Giuseppe Colangelo, Still Haven’t Found What the Bundeskartellamt Is Looking For: Thoughts on the German Amazon Case, Truth on the Market (11 June 2025), https://truthonthemarket.com/2025/06/11/still-havent-found-what-the-bundeskartellamt-is-looking-for-thoughts-on-the-german-amazon-case.
[44] Case C-606/23, AS “Tallinna Kaubamaja Grupp” & AS “KIA Auto” v. Konkurences padome, ECLI:EU:C:2024:1004.
[45] Miguel Mota Delgado & Nicolas Petit, Article 3 of Regulation 1/2003 and the Doctrine of Pre-emption, in The Transformation of EU Competition Law: Next Generation Issues 113 (Anca D. Claici, Assimakis P. Komninos & Denis Waelbroeck eds., 2023).
[46] Koen Lenaerts & Damien Gerard, Decentralisation of EC Competition Law Enforcement: Judges in the Frontline, 27 World Compet. 313 (2004).