Communication from the Commission to the European Parliament and the Council - Report on the functioning of Regulation 1/2003 {SEC(2009)574}
Date: 2009-04-29
Institutions: European Commission
Subjects: EU law, centralisation of information, competition law, harmonisation of standards, information system

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.4.2009 
COM(2009) 206 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Report on the functioning of Regulation 1/2003 

{SEC(2009)574} 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Report on the functioning of Regulation 1/2003 

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INTRODUCTION 

Regulation  1/20031,  the  keystone  of  the  modernisation  of  the  European  Union's 
antitrust enforcement rules and procedures, entered into application on 1 May 2004. 
Article 44 of Regulation 1/2003 provides that the Commission shall by 1 May 2009, 
i.e. after five years of application, report to the European Parliament and the Council 
on its functioning. 

Regulation  1/2003  was  the  result  of  the  most  comprehensive  reform  of  procedures 
for the enforcement of Articles 81 and 82 EC since 1962. Its main features are:  

– 

– 

The  abolition  of  the  practice  of  notifying  business  agreements  to  the 
Commission,  enabling  the  Commission  to  focus  its  resources  on  the 
important fight against cartels and other serious violations of the antitrust 
rules. 

The empowerment of national competition authorities and courts to apply 
EC antitrust rules in their entirety, so that there are multiple enforcers and 
therefore wider application of the EC antitrust rules. 

–  More  level  playing  field  for  businesses  operating  cross-border  as  all 
competition enforcers, including the national competition authorities and 
national courts, are obliged to apply EC antitrust rules to cases that affect 
trade between Member States. 

– 

– 

Close  cooperation  between  the  Commission  and  national  competition 
authorities in the European Competition Network (the "ECN"). 

Enhanced  enforcement  tools  for  the  Commission  so  that  it  is  better 
equipped to detect and address breaches of the antitrust rules. 

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Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L1, 4.1.2003, p.1), as amended by 
Council  Regulation  (EC)  No  411/2004  of  26  February  2004  repealing  Regulation  (EEC)  No  3975/87 
and  amending  Regulations  (EEC)  No  3976/87  and  (EC)  No  1/2003,  in  connection  with  air  transport 
between the Community and third countries (OJ L 68, 6.3.2004, p.1) and Council Regulation (EC) No 
1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules 
for the application of Articles 85 and 86 of the Treaty to maritime transport, and amending Regulation 
(EC)  No  1/2003  as  regards  the  extension  of  its  scope  to  include  cabotage  and  international  tramp 
services (OJ L 269, 28.9.2006, p. 1). 

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In  the  context  of  Regulation  1/2003,  the  Commission  further  adopted  the 
Commission  implementing  Regulation  773/20042  as  well  as  six  new  Commission 
Notices and Guidelines.3 

The Report is a stock-taking exercise, the aim of which is to understand and assess 
how modernisation of the EC antitrust enforcement rules has worked during the first 
five years. It is to be read in conjunction with the accompanying Commission Staff 
Working Paper which contains a more detailed review. 

SYSTEM  CHANGE:  FROM  THE  NOTIFICATION  SYSTEM  TO  DIRECT  APPLICATION  OF 
ARTICLE 81(3) EC 

Regulation 1/2003 introduced a fundamental change in the framework for applying 
Articles  81  and  82  EC.  It  replaced  the  centralised  notification  and  authorisation 
system which was created by Regulation 17 by an enforcement system based on the 
direct application of Articles 81 and 82 EC in their entirety.  

Under  Regulation  1/2003,  the  Commission,  national  competition  authorities  and 
courts  have  the  power  to  apply  Articles  81  and  82  EC  in  full.  In  particular, 
agreements which are caught by Article 81(1) EC but which satisfy the conditions of 
Article  81(3)  EC  are  now  directly  valid  and  enforceable,  no  prior  decision  to  that 
effect being required. In the context of public enforcement, the conditions of Article 
81(3) EC are principally being assessed where the provision is invoked as a defence 
in enforcement cases. 

The change from a system of notification and administrative authorisation to one of 
direct application has been remarkably smooth in practice. Overall, neither the case 
practice  of  the  Commission  and  the  national  enforcers,  nor  the  experience  reported 
by  the  business  and  legal  community,  indicate  major  difficulties  with  the  direct 
application of Article 81(3) EC which has been widely welcomed by stakeholders. 

The system change has supported a shift in priorities of the Commission, enabling it 
to  focus  its  resources  on  areas  where  it  can  make  a  significant  contribution  to  the 
enforcement of Articles 81 and 82 EC. This proactive approach is clearly illustrated 
by  the  launch  of  large  scale  inquiries  in  key  sectors  of  the  EU  economy  which 
directly impact consumers. The Commission has further implemented a more effects-
based  approach  in  all  areas  of  antitrust  case  work  and  policy,  outside  the  field  of 
cartels.  The  more  pro-active  stance  of  the  Commission  is  further  illustrated  by  an 

Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by 
the  Commission  pursuant  to  Articles  81  and  82  of  the  EC  Treaty  (OJ  L  123,  27.4.2004,  p.18),  as 
amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 
773/2004, as regards the conduct of settlement procedures in cartel cases (OJ L 171, 1.7.2008, p. 3). 
The  Modernisation  Package,  cf.  Commission  Notice  on  Cooperation  within  the  Network  of 
Competition Authorities (OJ C 101, 27.4.2004, p.43), Commission Notice on Cooperation between the 
Commission and the Courts of the EU Member States in the application of Articles 81 and 82 EC (OJ C 
101,  27.4.2004,  p.54),  Commission  Notice  on  Informal  Guidance  relating  to  Novel  Questions 
concerning Articles 81 and 82 of the EC Treaty that arise in Individual Cases (Guidance Letters) (OJ C 
101,  27.4.2004,  p.78),  Commission  Notice  on  the  Handling  of  Complaints  by  the  Commission  under 
Articles  81  and  82  of  the  EC  Treaty,  (OJ  C  101,  27.4.2004,  p.65),  Guidelines  on  the  effect  on  trade 
concept contained in Articles 81 and 82 of the Treaty (OJ C 101, 27.4.2004, p.81) and Guidelines on the 
application of Article 81(3) of the Treaty (OJ C 101, 27.4.2004, p.97). 

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increase  in  the  number  of  enforcement  decisions  adopted,  compared  with  earlier 
periods.  

The  reform  of  the  antitrust  rules  entailed  a  shift  from  giving  comfort  to  individual 
agreements  to  a  system  in  which  the  emphasis  is  on  general  guidance  that  can  be 
helpful to numerous undertakings and other enforcers. This was a process which the 
Commission had already started prior to 2004 for vertical restraints4 and horizontal 
cooperation  agreements.5  The  2004  Modernisation  package  included  general 
guidelines  on  the  application  of  Article  81(3)  EC6  and  the  Transfer  of  Technology 
Block  Exemption  and  guidelines  were  adopted  in  the  same  year.7  On  9  February 
2009, the Commission published guidance on its enforcement priorities in applying 
Article  82  EC  to  abusive  exclusionary  conduct  by  dominant  undertakings,  in 
response  to  a  strong  demand  from  many  stakeholders.8  With  regard  to  individual 
guidance,  the  Commission  remains  firmly  committed  to  providing  guidance  to 
companies  which  encounter  novel  or  unresolved  questions,  in  accordance  with  the 
Notice on informal guidance.9 Very few approaches have, however, been made to the 
Commission during the reporting period. 

COMMISSION PROCEDURES UNDER REGULATION 1/2003  

Regulation  1/2003  equipped  the  Commission  with  a  renewed  set  of  enforcement 
powers  which  are  geared  towards  its  principal  objectives  of  effective  and  coherent 
enforcement.  The  Commission  has  used  its  new  or  revised  powers  actively,  and 
overall successfully, for effective enforcement.  

Regulation  1/2003  clarified  and  reinforced  the  Commission's  investigation  powers 
(Articles  17  to  22).  Sector  inquiries  have  become  one  of  its  key  investigative  tools 
and  have  enabled  it  to  identify  shortcomings  in  the  competitive  process  of  the  gas 
and  electricity,  retail  banking,  business  insurance  and  pharmaceutical  sectors.  They 
have  provided  a  wealth  of  factual  material  that  has  supported  the  Commission's 
enforcement of Articles 81 and 82 EC in individual cases.  

The  new  or  revised  powers  have  been  used  to  the  extent  necessary  in  the  cases 
investigated. The power to seal, as well as the power to ask questions about facts or 
documents  during  inspections  in  business  premises,  have  been  regularly  employed. 
Inspections  in  non-business  premises  have  been  carried  out  on  two  occasions.10 
Regulation 1/2003 also introduced the power to interview legal and natural persons 

Commission Regulation No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the 
Treaty  to  categories  of  vertical  agreements  and  concerted  practices  (OJ  L  336,  29.12.1999,  p.  21-25) 
and Commission Notice on Guidelines on Vertical Restraints (OJ C 291, 13.10.2000, p.1).  
Commission Regulation No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the 
Treaty  to  categories  of  specialisation  agreements  (OJ  L304,  5.12.2000,  p.3),  Commission  Regulation 
No 2659/2000 of 29 November 2000 on the application of Articles 81(3) to categories of research and 
development agreements (OJ L 304, 5.12.2000. p.7) and the Guidelines on the applicability of Article 
81 of the EC Treaty to horizontal cooperation agreements (OJ C 3, 6.1.2001, p.2). 
Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.4.2004, p.97.). 
Commission Regulation No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty 
to categories of technology transfer agreements (OJ L 123, 27.04.2004, p.11-17). 
OJ C 45, 24.02.2009, p.7. 
Commission Notice on informal guidance, see footnote 3.  
See Commission Press Release IP/09/137 for the recently decided Marine Hoses cartel case. 

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with  their  consent.  While  the  Commission  has  used  this  instrument  regularly, 
experience  has  shown  that  the  absence  of  penalties  for  misleading  or  false  replies 
may  be  a  disincentive  to  provide  correct  and  complete  statements.  Moreover,  the 
Commission has rarely used the power to request national competition authorities to 
carry out inspections on its behalf, as provided for in Article 22(2). Further reflection 
on these two preceding matters may be appropriate. 

Regulation  1/2003  introduced  a  renewed  set  of  decisions.  The  main  innovation  is 
Article  9  which  empowered  the  Commission  to  make  commitments  offered  by 
undertakings binding and enforceable upon them. The Commission has used it in the 
adoption of 13 decisions. Article 9 pursues the objective of enhancing administrative 
efficiency  and  effectiveness  in  dealing  with  competition  concerns  identified  by  the 
Commission where the undertaking(s) concerned voluntarily offer commitments with 
a view to address these concerns. It ensures rapid change in the marketplace and has 
added  considerable  value  in  comparison  to  Regulation  17,  under  which  no 
enforcement possibility was available for cases concluded by informal commitments.  

The  Commission  has  adopted  numerous  prohibition  decisions  in  accordance  with 
Article  7  of  the  Regulation.  That  provision explicitly  foresees  the  power  to  impose 
structural remedies. So far the Commission has not used this power. It has, however, 
accepted structural changes as commitments.11 

During the reported period, the Commission has not adopted decisions in accordance 
with Article 10 of the Regulation. This instrument was principally created to ensure 
consistency. The extensive efforts of the ECN in promoting the coherent application 
of the EC antitrust rules have made its use unnecessary to date. 

Regulation 1/2003 has taken over from Regulation 17 the possibility for persons that 
are able to show a legitimate interest to be (formal) complainants that enjoy certain 
procedural  rights.  The  Commission  welcomes  complaints  that  trigger  priority  cases 
and  encourages  complainants  to  provide  substantiated  input.  At  the  same  time,  it 
should be further examined how to streamline the handling of complaints that do not 
give rise to priority cases in accordance with the case law of the Community Courts. 

Fines  with  sufficient  deterrent  effect,  coupled  with  an  effective  leniency  program, 
constitute the most efficient weapon in the Commission's armoury to fight cartels, in 
particular. The legal basis for the Commission's power to impose fines for breaches 
of  substantive  competition  law  under  Regulation  1/2003  was  essentially  taken  over 
from Regulation 17. The Commission may impose fines on infringing undertakings 
and associations of undertakings that do not exceed 10% of its total turnover in the 
preceding  business  year.  The  Commission  has  further  refined  and  elaborated  its 
fining policy in its 2006 Fining Guidelines. The Community Courts have reviewed a 
great  number  of  fines  imposed  by  the  Commission  and  have  largely  endorsed  the 
Commission's approach. 

Regulation  1/2003  introduced  more  effective  sanctions  for  non-compliance  with 
obligations  incumbent  on  undertakings  in  the  context  of  investigations.  The 
Commission made use of this provision for the first time and imposed a fine of €38 

E.ON  German  electricity  market,  OJ  C  36,  13.02.2009,  p.8  and  the  RWE  Gas  Foreclosure  case,  see 
Commission Press Release IP/09/410 of 18.03.2009. 

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million  for  breach  of  a  seal.12  Another  important  improvement  introduced  by 
Regulation 1/2003 was the substantial increase in the ceilings for penalty payments 
that can be imposed for failure to comply with a Commission decision. Experience 
with  this  provision  has  shown  that  the  procedure  foreseen  in  Article  24  can  prove 
relatively  lengthy  and  cumbersome13  and  the  potential  for  improvement  could  be 
examined.  

APPLICATION  OF  EC  COMPETITION  LAW  IN  ACCORDANCE  WITH  ARTICLE  3  OF 
REGULATION 1/2003 

Article 3 of Regulation 1/2003 regulated for the first time the relationship  between 
national competition law and the EC competition rules. Stakeholders from the legal 
and  business  communities  have  largely  confirmed  that  Regulation  1/2003  has 
positively contributed to the creation of a level playing field, in line with the Lisbon 
objectives.14 

Article 3(1) obliges national competition authorities and courts to apply Articles 81 
EC and 82 EC to agreements or conduct capable of affecting trade between Member 
States. This rule is intended to ensure that the EC competition rules are applied to all 
cases  within  their  scope.  Compliance  also  entails  that  the  cooperation  mechanisms 
set forth in Articles 11 to 13 and 15 of Regulation 1/2003 are fully applicable in such 
cases. The obligation to apply the EC competition rules in Article 3(1) has led to a 
very significant increase in the application of Articles 81 and 82 EC, making a single 
legal standard a reality on a very large scale. 

The  convergence  rule  contained  in  paragraph  2  of  Article  3  seeks  to  create  a  level 
playing  field  by  providing  for  a  single  standard  of  assessment  for  agreements, 
concerted  practices  and  decisions  by  associations  of  undertakings.  Conversely, 
Member States remain free to enact and maintain stricter national competition laws 
than  Article  82  EC  to  prohibit  or  sanction  unilateral  conduct.  Provisions  of  these 
types  exist  in  a  number  of  Member  States  and  include  notably:  national  provisions 
which  regulate  the  abuse  of  economic  dependence,  'superior  bargaining  power'  or 
'significant  influence'15;  legal  provisions  concerning  resale  below  cost  or  at  loss16; 
national laws that foresee different standards for assessing dominance17 and stricter 
national provisions governing the conduct of dominant undertakings. 

22. 

The  divergence  of  standards  regarding  unilateral  conduct  was  commented  on 
critically  by  the  business  and  legal  communities  which  consider  that  the  diverging 
standards  fragment  business  strategies  that  are  typically  formulated  on  a  pan-
European or global basis. This is a matter which should be further examined, both in 

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E.ON, OJ C 240, 19.09.2008, p.6.  
A  complete  set  of  the  documents  relating  to  the  Microsoft  procedure  can  be  found  at: 
http://ec.europa.eu/competition/antitrust/cases/microsoft/index.html. 
The so-called Lisbon strategy was agreed by the European Council in Lisbon in March 2000 and aims 
to promote sustainable economic growth in the EU. 
Rules of this type exist in France, Germany, Greece, Portugal, Latvia, Hungary and Ireland. 
The  Member  States  currently  prohibiting  resale  below  cost  or  at  loss  include  notably  France  and 
Germany. 
An example is found in Austrian law, according to which an undertaking is deemed to be dominant if it 
has a superior position in the marketing relation to its customers or suppliers. 

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terms  of  evaluating  the  extent  of  the  problems  caused  and  assessing  the  need  for 
action at European level.  

THE EUROPEAN COMPETITION NETWORK 

Regulation  1/2003  entrusted  the  national  competition  authorities  with  a  key  role  in 
ensuring  that  the  EC  competition  rules  are  applied  effectively  and  consistently,  in 
conjunction with the Commission. After five years, it is apparent that the challenge 
of boosting enforcement of the EC competition rules, while ensuring their consistent 
and coherent application, has been largely achieved.  

Enforcement  of  the  EC  competition  rules  has  vastly  increased  since  the  entry  into 
application of Regulation 1/2003. By the end of March 2009, more than 1000 cases 
have  been  pursued  on  the  basis  of  the  EC  competition  rules  in  a  wide  variety  of 
sectors.  

the  enforcers 

Work  sharing  between 
the  network  has  generally  been 
unproblematic.  Five  years  of  experience  have  confirmed  that  the  flexible  and 
pragmatic  arrangements  introduced  by  Regulation  1/2003  and  the  Network  Notice 
work well. Discussions on case-allocation have come up in very few cases and have 
been resolved swiftly. 

in 

Cooperation mechanisms for fact-finding purposes within the ECN have worked well 
overall.  The  possibility  to  exchange  and  use  information  gathered  by  another 
competition  authority  enhances  the  overall  efficiency  within  the  network  and  is  a 
pre-condition for a flexible case-allocation system. Moreover, the power of national 
competition  authorities  to  carry  out  inspections  or  other  fact-finding  measures  on 
behalf  of  another  national  competition  authority,  while  encountering  some 
limitations as a result of the diversity of national procedures, has been used actively 
in appropriate cases and has contributed to effective enforcement.  

A discussion has arisen on whether the ban on the use of information by a national 
competition  authority  for  the  imposition  of  custodial  sanctions  which  has  received 
the information from a jurisdiction which does not have such sanctions, as provided 
for by Article 12(3), is too far-reaching and is an obstacle to efficient enforcement. It 
may  be  appropriate  to  examine  whether  other  options  are  available,  while  fully 
preserving parties' rights of defence. These considerations could also be relevant for 
future  discussions  concerning  international  cooperation  agreements  with  selected 
jurisdictions with criminal enforcement systems. 

By the end of the reporting period, the Commission had been informed of more than 
300  envisaged  decisions  by  the  national  competition  authorities  on  the  basis  of 
Article 11(4). None of these cases resulted in the Commission initiating proceedings 
pursuant  to  Article  11(6)  to  relieve  a  national  competition  authority  of  its 
competence  for  reasons  of  coherent  application.  Experience  indicates  that  national 
competition authorities are generally highly  committed to  ensuring consistency  and 
efforts undertaken in the ECN have successfully contributed to this aim. Pursuant to 
Article  11(4),  a  practice  of  informally  discussing  the  national  authority's  proposed 
course  of  action  at  services'  level  and  within  the  confines  of  confidentiality  in  the 
network  has  been  developed.  Stakeholders  are  largely  satisfied  with  the  results  of 
application of the EC competition rules within the ECN. 

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The  ECN  has  proven  to  be  a  successful  forum  to  discuss  general  policy  issues. 
Constant dialogue between the network members on all levels over the last years has 
significantly contributed to coherent application of the EC competition rules.  

While  Regulation  1/2003  does  not  compel  Member  States  to  adopt  a  specific 
institutional  framework  for  the  implementation  of  EC  competition  rules,  many 
Member States have reinforced or reviewed their enforcement structures to optimise 
their effectiveness.  

Regulation  1/2003  does  not  formally  regulate  or  harmonise  the  procedures  of 
national competition authorities, meaning that they apply the same substantive rules 
according  to  divergent  procedures  and  they  may  impose  a  variety  of  sanctions. 
Regulation  1/2003  accommodates  this  diversity.18  It  has  also  given  rise  to  a 
significant  degree  of  voluntary  convergence  of  Member  States'  laws  that  has  been 
supported by policy work in the ECN.  

The ECN Model Leniency Programme19 illustrates how the ECN is able to combine 
its forces and jointly develop a new vision to address real and perceived deficits in 
the  existing  system.  The  work  within  the  ECN  has  been  a  major  catalyst  in 
encouraging Member States and/or national competition authorities to introduce and 
develop  their  own  leniency  policies  and  in  promoting  convergence  between  them. 
Today,  only  two  Member  States  do  not  have  any  kind  of  leniency  policy  in  place. 
The Model Programme foresees that the ECN will evaluate the state of convergence 
of the leniency programmes by the end of 2008. The assessment will form the basis 
for a reflection on whether further action is needed in this field.  

Notwithstanding,  divergences  of  Member  States'  enforcement  systems  remain  on 
important  aspects  such  as  fines,  criminal  sanctions,  liability  in  groups  of 
undertakings,  liability  of  associations  of  undertakings,  succession  of  undertakings, 
prescription  periods  and  the  standard  of  proof,  the  power  to  impose  structural 
remedies, as well as the ability of Member States' competition authorities to formally 
set enforcement priorities. This aspect may merit further examination and reflection. 

INTERACTION WITH NATIONAL COURTS 

Since the entry into application of Regulation 1/2003, national courts have the power 
to apply both Articles 81 and 82 EC in full. National courts have applied Articles 81 
and  82  EC  in  a  variety  of  sectors  and  have  tackled  a  range  of  issues.  However, 
stakeholders  have  pointed  to  what  they  perceive  as  uneven  enforcement  of  the  EC 
competition rules by national courts. 

Regulation 1/2003 provides for a number of devices to promote coherent application 
of the competition rules by national courts. Since 1 May 2004, the Commission has 
issued  opinions  on  18  occasions  to  national  courts  on  questions  concerning  the 
application  of  Articles  81  and  82  EC.  Both  the  Commission  and  the  national 
competition authorities have the power to make observations as amicus curiae under 
Article  15(3).  This  is  a  tool  which  is  well  used  by  several  national  competition 

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See the conditions for the use in evidence of exchanged information in Article 12(2) and (3). 
Available at http://ec.europa.eu/competition/ecn/model_leniency_en.pdf. 

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authorities.  The  Commission  has  decided  to  submit  amicus  observations  on  two 
occasions during the reporting period where it considered that there was an imminent 
threat  to  the  coherent  application  of  the  EC  competition  rules.  Stakeholders  have 
called on the Commission to have greater recourse to this instrument and it should be 
reflected upon how this practice should further develop. 

Regulation 1/2003 requires Member States to forward to the Commission a copy of 
any written judgment of national courts deciding on the application of Articles 81 or 
82 EC. However, this has not functioned optimally and options for ensuring efficient 
and effective access to national court judgments should be reflected upon.  

INTERFACE WITH THIRD COUNTRY ENFORCEMENT 

The  Commission  attaches  great  importance  to  fostering  constructive  cooperation 
with  third  country  authorities,  in  particular  as  concerns  infringements  with  an 
international  dimension.  The  effectiveness of international cooperation is, however, 
interdependent  on  the  effectiveness  of  Commission's  own  investigations  for  the 
enforcement of Articles 81 and 82 EC. 

the  reported  period 

issues  of  disclosure  of 

the 
During 
Commission's  file  in  third  jurisdictions  arose.  Such  issues  were  encountered  in  the 
context  of  private  litigation  in  third  country  jurisdictions  and,  on  a  more  limited 
scale,  with  respect  to  the  exchange  of  information  with  third  country  public 
authorities.  

information  from 

The Commission is a strong proponent of effective civil proceedings for damages, in 
particular,  against  cartel  participants.  However,  disclosure  of  information  from  the 
Commission file in the context of private litigation in third country jurisdictions, in 
particular  of  information  voluntarily  submitted  during  the  investigation,  may 
seriously  undermine 
the  effectiveness  of  public  antitrust  enforcement.  The 
Commission  has  intervened  through  amicus  curiae  briefs  before  courts  of  the  US 
against  the  discoverability  of  information  that  has  been  prepared  solely  for  the 
purpose of its investigation. The Commission's Directorate-General for Competition 
also made a submission to the US Antitrust Modernisation Commission to this effect.  

Overall,  there  is  a  perception  that  the  legal  framework  could  be  clarified  and 
reinforced  to  further  enhance  existing  levels  of  protection  against  disclosure,  vis-à-
vis both private litigation in third jurisdictions and the exchange of information with 
third country public authorities. 

CONCLUSION 

Regulation  1/2003  has  brought  about  a  landmark  change  in  the  way  the  European 
competition  law  is  enforced.  The  Regulation  has  significantly  improved  the 
Commission's enforcement of Articles 81 and 82 EC. The Commission has been able 
to become more proactive, tackling weaknesses in the competiveness of key sectors 
of the economy in a focused way.  

36. 

7. 

37. 

38. 

39. 

40. 

8. 

41. 

42. 

The EC competition rules have to a large extent become the “law of the land” for the 
whole  of  the  EU.  Cooperation  in  the  ECN  has  contributed  towards  ensuring  their 

EN 

9 

   EN 

coherent  application.  The  network  is  an  innovative  model  of  governance  for  the 
implementation  of  Community  law  by  the  Commission  and  Member  State 
authorities. 

43. 

In  a  limited  number  of  areas20,  this  Report  highlights  aspects  which  merit  further 
evaluation, but leaves open the question of whether any amendment to the existing 
rules or practice is required. It will serve as a basis for the Commission to assess, in a 
further stage, whether it is appropriate to take further policy initiatives. 

20 

See paragraphs 12, 16, 18, 22, 27, 32, 33, 35, 36 and 40. 

EN 

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   EN