Article 103 Adoption of Secondary Enforcement Measures for Articles 101 and 102 TFEU

Articles 101 and 102 TFEU put in place the substantive competition law rules of the Treaty. The Treaty does not, however, lay down detailed enforcement rules for these provisions. Rather, Article 103, Article 104 and Article 105 TFEU, operating together, lay down the bare framework for their enforcement. Article 103 TFEU, requires the Council to enact secondary enforcement measures to ensure the effective enforcement of Articles 101 and 102 TFEU. Pending the enactment of appropriate Article 103 TFEU measures, Article 104 TFEU and Article 105 TFEU provide for transitional enforcement arrangements by the MS authorities and the Commission. The omission of enforcement rules in the Treaty stems predominantly from a negotiation impasse between Germany and France and other MS at the time of the Treaty of Rome negotiations. Whereas the French were keen to adopt an abuse model prohibiting only bad anti-competitive agreements with harmful effects and allowing good anti-competitive agreements with pro-competitive benefits under a legal exception system, the Germans were keen on a prohibition model based on notification and authorisation. Compromise was eventually reached on a prohibition of anti-competitive agreements subject to exemption upon the satisfaction of certain conditions, but to avoid further impasse, the decision on how the exemption system was to operate in practice was postponed to a later time, hence the inclusion of Article 103 TFEU. However, Article 103 TFEU has not been the sole legal basis for secondary enforcement measures. Some secondary legislation has required a joint legal basis, such as the Merger Regulation3, which was enacted on the joint legal basis of Article 103 TFEU and Article 352 TFEU, the latter providing a general legal basis where legislation is required to attain an objective of the Treaties and the Treaties do not provide the requisite powers to do so, and both the Private Action Directive4 (also known as the Damages Directive) and the ECN+ Directive), which were enacted on the joint legal basis of Article 103 TFEU and Article 114 TFEU, the latter providing a legislative base for legislation relating to the approximation of MS law for the achievement of the internal market.