The uniform application of european competition law: a non-negotiable value

Competition enforcement is facing an increasing need for international cooperation. Such phenomena would require that all the subjects involved in ensuring the respect of the competition principle (either competition authorities, or courts depending on the national peculiarities of each national/regional enforcement system) communicate, co-operate, and interact one another constantly, on a daily basis. This is the case both at global as much as at European level. Notwithstanding international co-operation has registered a positive trend during the last decade, the outcomes achieved so far are not satisfying. The inability of regional and national legal systems to provide effective answers to the need of greater co-operation in competition law enforcement is undermining the constitutional structure of the major western, capitalistic, liberal democracies. The credibility and the utility of competition enforcement regimes are also under attack. Individuals and companies have always less fate in the fairness and effectiveness of competition enforcement proceedings. This has led to calls for a fundamental rethink of the principles and purpose of competition law and policy. Due to the increased national markets’ integration and firms’ interaction on a global scale, international co-operation has become one of the most crucial challenge to be solved by competition enforcers. The incapability (and sometimes unwillingness) of competition enforcers to effectively and fully co-operate has led to conflicting (and embarrassing) results. The victim of competition enforcers’ international co-operation shortages has been the principle of uniform application of competition law. A given conduct X has been deemed anticompetitive in Country Y, and lawful in Country Z. While such situation might be tolerable at global level, it is not within the European Union (‘EU’) due to the existence of the EU Single Market, which does not offer room for the existence of different EU competition rules across European Member States (‘MS’). Within the EU infrastructure, indeed, the existence of inconsistencies in the enforcement of EU competition law may (i) compromise the internal market, (ii) increase the cost of international trade, (iii) raise the threat of externalities and races to the bottom, (iv) set back the progress of a unified body of case law and, most importantly, (v) weaken the legal certainty and predictability of EU competition law, thus undermining the credibility of the all EU competition enforcement regime.In other words, inconsistencies in the enforcement of EU competition law may compromise the entire EU infrastructure.From this emerges that the uniform application of EU Competition Law is an essential and non-negotiable value. Preserving the uniform application of EU Competition Law, however, requires coordination and collaboration among different sets of subjects. Due to the complexity of the EU competition enforcement system, the EU Commission (‘Commission’ or ‘EC’), the National Competition Authorities (NCAs), the National as well as the EU Courts are all called to play a role in carrying out the heavy task of ensuring and protecting the uniform application of EU Competition Law. At EU level, therefore, the uniform application of EU Competition Law requires a co-ordination between both Public and Private Enforcement. Based on this premises, this thesis’s relevance lies in its questioning who should produce EU competition law’s substantive policy, mainly focusing on digital markets. It focuses on new policy-making methods; and renegotiating Member States’ roles, vis-à-vis the Commission. In EU competition law, for example, there is conflict regarding aims and methods. Should the Commission suppress this as damaging fragmentation, imposing its regulatory vision; or, celebrate this debate in areas of doubt? This thesis turns the spotlight on these crucial issues. In order to achieve the above-mentioned objectives, the thesis will be structured as follow: (i) Chapter 1, as introductory chapter, will set the stage for the reforms to be suggested in Chapters 2 and 3. Specifically, it will show the main factors driving up the demand for international co-operation among competition enforcers. It will also offer a picture of the status and forms of international co-operation in the competition enforcement world as well as describing its current risk, and problems. Such representation will be also done through a collection of multijurisdictional cases. Finally, it will analyse how the demand for international co-operation has been dealt with at regional level, with a particular focus on the EU; (ii) Chapter 2 will analyse how the principle of uniform application of EU Competition Law is protected within the EU Public enforcement framework as represented by the European Competition Network (‘ECN’). Particularly, Chapter 2, will firstly retrace the ECN’s history, showing the reasons behind its current configuration, and introduce the ECN’s operating mechanism. Secondly, it will analyse which are the problematic aspects of the current EU Public enforcement system in terms of ensuring the respect of the principle of uniform application of EU competition law. Finally, it will present a reform of the EU Public enforcement system that the author of this thesis believes needed both: (i) to ensure the uniform application of EU Competition Law within the EU Single Market; (ii) to allow the ECN to be able to cope with the challenges presented by the digitalisation of the economy. (iii) Chapter 3 will analyse how the principle of uniform application of EU Competition Law is protected within the EU Private Enforcement framework. Since such complex task within the EU system is left to Article 16(1), Regulation n. 1/2003 (‘Art. 16(1)’), Chapter 3, will firstly present the contents of Art. 16 (1) and its predominantly accepted interpretation. Subsequently, Chapter 3 will analyse the historical and legal reasons that led to the adoption of Art. 16 (1) and then it will suggest a new interpretation of Art. 16(1) that is most consistent with its historical purposes and background. According to the author of this thesis, while it is not strictly necessary to modify the literal datum of Art. 16(1), a change in its interpretation is needed to ensure the uniform application of EU competition law within the EU Private Enforcement ecosystem. Finally, Chapter 3 will evaluate the boundaries of the binding effects of Commission’s decisions ex Art. 16 (1), and it will investigate the relationship existing between those effects and the principles of ‘res judicata’ and ‘nemo iudex in causa sua’. (iv) Chapter 4 will offer some conclusions.