Ben Smulders, Eric Gippini-Fournier, Some Critical Comments on the Report of the Global Competition Law Centre on the Directly Applicable Exception System and the Direct Applicability of Article 81 (3) EC: Positive Enforcement and Legal Certainity (November 1, 2009). Available at SSRN
This brief text is based on the commentary delivered by the authors at the 5th Annual Conference of the Global Competition Law Centre: The Commission’s review of regulation 1/2003. (Brussels, 11 June 2009). The organisers of the conference invited the authors to take the role of „discussant” and panel member, respectively, and to examine critically the extensive draft report prepared by a group of lawyers and scholars coordinated by Bernard van de Walle de Ghelcke, entitled „The directly applicable exception system and the direct applicability of article 81(3) EC: positive enforcement and legal certainty”. Apart from minor editing (typos and addition of footnotes) the paper retains the format -and the limitations- inherent in an almost improvised commentary on a draft report received by the authors a few days before the conference.
The authors take issue with some of the critical views and proposals contained in the report. In their view, the experience so far with the application of Article 81 EC under Regulation 1/2003 is, overall, satisfactory.
The authors’ commentary focuses on the respective roles of paragraphs 1 and 3 of Article 81, on the evaluation of the functioning of the ECN and of the role of national courts in applying EC competition law.