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    Antitrust Law Journal

    Volume 85, Issue 3

    Evaluating 20 Years of Regulation 1/2003: Are EU Antitrust Procedures “Fit for the Digital Age”?

    Massimiliano Kadar

    Mar 12, 2024

    35 min read

    Antitrust Antitrust Litigation & Enforcement Antitrust Policy & Legislation Europe Foreign Competition Law Enforcement

    Summary

    • Massimiliano Kadar, a Deputy Head of Unit at DG COMP, addresses a range of potential reforms of EC enforcement of Articles 101 and 102 under Regulation 1/2003.
    • He focuses especially on potential changes to address the “digitization” of the economy, including faster enforcement mechanisms to stop in their incipiency competitive harms in rapidly changing markets and effectively deal with the challenges posed by increased investigation complexity and data intensity.
    • Kadar discusses reforms to (i) better balance the right to defense with confidentiality concerns by using “confidentiality rings” to grant the parties’ lawyers full access to the case file, and (ii) encourage the EC to use its power to provide informal guidance “in situations of genuine uncertainty on the application of EU competition laws” to help businesses more accurately self-assess their conduct under Articles 101 and 102.
    Evaluating 20 Years of Regulation 1/2003: Are EU Antitrust Procedures “Fit for the Digital Age”?
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    Introduction

    Regulation 1/2003 represented a revolutionary step in the European Union antitrust enforcement landscape. Enforcement of Articles 101 and 102 of the Treaty on Functioning of the European Union (TFEU), which until then had been mainly in the hands of the European Commission, became effectively shared with National Competition Authorities (NCAs) and courts of EU Member States. The so-called “notification system” for agreements was replaced by a new regime based on self-assessment. A new array of powers and procedures was introduced or codified, including the possibility for the Commission to impose interim measures and make commitments binding.

    The comprehensive modernization of the antitrust procedural framework introduced by Regulation 1/2003 has generally been considered a success. But almost 20 years have passed since its adoption. Business realities and the enforcement landscape have inevitably changed, primarily due to the digitization of the global economy. Recognizing this issue, in March 2022, Executive Vice President (EVP) Margrethe Vestager announced that Regulation 1/2003 would be subject to an evaluation process to assess whether it is still “fit for the digital age,” considering the Commission’s intervening enforcement experience. Notably, the Commission is assessing whether the current procedural framework, which has remained unchanged for the past two decades, still allows the Commission to intervene in an effective and timely fashion, specifically taking into account the challenges brought about by digitization, including the increased complexity of cases and larger investigative files. This article will briefly discuss the background, rationale, and principal areas of focus of this evaluation.

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