Last week, the European Commission released its findings from the evaluation of so-called Regulation 1/2003 and Regulation 773/2004, which have been in effect since May 2004. In a comprehensive 270-page report, the Commission offers an in-depth overview of the application of the regulations, which basically regulate cartel and abuse of dominance proceedings in the EU, over the past two decades. Rather than attempting to summarize all 270 pages, I will focus on a few numbers that I find particularly noteworthy (despite having chosen to study law in part to avoid dealing with numbers).
Regulation 1/2003 and Regulation 773/2004
For our readers from non-EU countries and those who are not antitrust lawyers (who presumably also follow the blog): Regulations 1/2003 and 773/2004 lay out the procedural framework of Article 101 TFEU (cartel prohibition) and Article 102 TFEU (abuse of a dominant position). Regulation 1/2003 governs proceedings carried out by the Commission and aims to ensure the effective and consistent application of Articles 101 and 102 TFEU and grants extensive investigative powers to the Commission. Regulation 773/2004 further clarifies various aspects, including procedures for interviews, complaints, and hearings.
Enforcement by the European Commission
But now to the figures: Between May 2004 and August 2024, the Commission issued 225 decisions applying Articles 101 and 102 TFEU, averaging about ten decisions per year. Of the 220 decisions adopted by December 2023, 173 related to the cartel prohibition (with 116 of those involving actual cartels) and 45 to abuse of dominance, with only two decisions addressing both.
In terms of decisions, 52 were commitment decisions, 42 were cartel settlement decisions, 17 involved cooperation leading to reduced fines, and 109 were adopted through the ordinary procedure.
What is particularly interesting is that less than 50% of these decisions (43%) were originally triggered by leniency applications. While the steady decline in leniency applications is well-known (see here and here; even though numbers seem to be going up again), this figure is still surprising given that the report covers a 20-year period. However, there are no leniency applications for abuse of dominance, which is also covered by the numbers. Meanwhile, 14% of the decisions stemmed from formal complaints and 43% were the result of investigations initiated ex-officio (including those based on informal complaints).
Another notable point is the duration of proceedings, which averaged about 4.5 years. However, cases initiated by formal complaints took significantly longer compared to those based on leniency applications or ex-officio investigations.
With a view to industries, most decisions related to basic and manufacturing sectors, followed by tech and consumer electronics. Interestingly, the number of cases in the pharmaceutical sector was relatively low, with only seven cases, placing the industry near the bottom in terms of enforcement activity. It can be assumed that in 20 years from now, the industry mix will be a different one.
Enforcement by National Competition Authorities
In the period from May 2004 to December 2022, 2,707 decisions were issued by National Competition Authorities (NCAs) across Europe, including the UK, concerning Article 101 and/or Article 102 TFEU or their national equivalents. Overall, NCAs adopted 12 times more decisions than the European Commission.
Of these cases, approximately 50% applied only the equivalent national competition laws, while around 7% solely applied Articles 101 and/or 102 TFEU.
Money, Money, Money!
Between May 2004 and August 2024, the Commission imposed fines exceeding EUR 42 billion under Regulation 1/2003. Of this total, approximately 70% relate to decisions under the cartel prohibition and around 26% to abuse of dominance, with the fines for abuse of dominance being higher in average.
Out of the EUR 42 billion in fines, EUR 37 billion were upheld by the EU courts, which is roughly equivalent to the combined contributions of France and Italy to the EU budget in 2023.
What should I do with all the numbers?
Nothing. However, I found it fascinating to observe the impact of Regulation 1/2003 on both the number of cases and the level of fines. Twenty years is a long time – spanning from my graduation to today – during which much has changed in the field of antitrust law. In another 20 years, I plan to write a follow-up post to see how these figures have evolved (provided the EU grants us the courtesy of an updated evaluation). For now, though, that is enough numbers, and I will shift my focus back to substantive legal matters. I truly sympathize with anyone who feels the same!
Photo by Matthew Ball on Unsplash
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