EU Antitrust Proceedings And National Competition Authorities: A Leap In The Wrong Direction

Article by Anne MacGregor and Bogdan Gecic*

The European Court of Justice (ECJ) ruled in May 2011¹ that national competition authorities (NCAs) in the 27 EU Member States do not have the power to decide that there has been no breach of EU competition law. In other words, a company prosecuted or investigated by an NCA under EU antitrust rules (as opposed to national competition provisions) may be found guilty of a competition infringement or the procedure may be dropped on "lack of grounds for action", but the NCA cannot take a formal decision declaring that the company has not breached EU rules. That prerogative has been solely left to the European Commission (Commission) which can adopt so-called "non-applicability" decisions.