Industry is opposed to the Commission exercising discretion as to whether it wants to decide a specific case or whether it delegates it to one of several national authorities. Some have suggested an allocation system based on turnover whereby the Commission would deal with the larger cases and national authorities with the smaller ones. It may seem a crude system but is one that nevertheless works well for merger control. Otherwise, an agreement could be attacked simultaneously or successively in different jurisdictions until the complainant is successful in one country which would, in most cases, in practice terminate the agreement also for the other countries. Application of Art.
National courts can today apply Art.
81.3 only within narrow confines when there is no doubt that an agreement fails to meet the exemption requirements. It seems only a small technical step to give national courts permission to apply Art. We doubt whether national courts are adequately equipped for this task. We fear that, because of the great number of courts, the incentive for forum shopping will be overwhelming. As with national authorities, incoherence in the application of EC law is another danger.