Browsing by Subject "effective enforcement"

The decentralised enforcement system of the EU antitrust law under Regulation 1/2003 is often described as a model example of informal transnational network governance for the efficient enforcement of EU policies and the promotion of the functioning of the internal market. In the decentralised enforcement system, the national competition authorities and the Commission exercise parallel competences to enforce Articles 101 and 102 TFEU and cooperate closely within the European Competition Network to ensure the effective application of these provisions. Within the network, national competition authorities have wide discretion to allocate cases, define the scope of investigations, and coordinate proceedings. The emphasis on efficient enforcement through flexible cooperation mechanisms poses challenges in monitoring other critical aspects of the system. In particular, this flexibility leads to significant ne bis in idem risks in the enforcement of Article 101 TFEU against cross-border cartels by multiple NCAs acting in parallel. This thesis examines the interplay between national competition authorities' jurisdiction under the decentralised enforcement system of Regulation 1/2003 and the double jeopardy protection afforded to undertaking of Article 50 of the Charter in cross-border cartel cases in light of the CJEU's judgment in case C-151/20, Nordzucker and Others. Despite an opportunity to clarify the position of Regulation 1/2003 on national competition authorities' extraterritorial jurisdiction in the judgment, the CJEU opted to invite parallel proceedings by multiple NCAs concerning the same cross-border cartel, despite the obvious risk of ne bis in idem violations. This approach is aimed at protecting the raison d’être of the decentralised enforcement system, i.e. the effective enforcement of EU competition law through flexible cooperation mechanisms, rather than guaranteeing comprehensive fundamental right protection. This thesis provides a critical analysis of the political and societal motivations that have shaped policy choices regarding the enforcement of EU competition law, and consequently the CJEU's interpretation of ne bis in idem protection in Nordzucker and Others. The conclusion of this underlines the need for EU legislative action to enhance the legitimacy of the decentralised enforcement system by ensuring comprehensive fundamental rights protection. Procedural challenges should be addressed through legislative intervention rather than judicial interpretation. The lack of explicit provisions granting NCAs extraterritorial enforcement powers, together with flexible case allocation principles and the absence of prohibitions on parallel proceedings, raise concerns about legal certainty and ne bis in idem risks. While flexibility may increase efficiency, it also creates uncertainty and potential violations of fundamental rights.