Article 104 Transitional Enforcement Arrangements

Whereas Articles 101 and 102 TFEU govern substantive EU competition law rules, the TFEU does not cater for their enforcement beyond providing a broad enforcement framework in Articles 103, 104 and 105 TFEU combined. Until such time as the Council enacts appropriate Article 103 TFEU legislation to ensure the effective enforcement of Articles 101 and 102 TFEU, the opening words of Article 104 TFEU provide for the provisional or transitional enforcement of national law and Article 101 TFEU, particularly the Article 101.3 TFEU exemption, and Article 102 TFEU by MS authorities in conjunction with the Commission under Article 105 TFEU. The power of MS authorities to rule on Article 101.3 TFEU exemptions in transitional arrangements is important as it suggests that the Commission does not have the authority to do so. Moreover, Article 104 TFEU suggests that a ruling is necessary, meaning that Article 101.3 TFEU does not operate as a directly applicable exception system during transitional arrangements. That the MS authorities have the power to so rule in transitional arrangements, coupled with the fact that only they have powers of compulsion and sanctions during such arrangements, arguably means that the real enforcement power lies with national competition authorities in transitional enforcement arrangements. Although the opening words of the provision indicate that it is a transitional rule, Article 104 TFEU should not simply be understood as transitional in nature because, in fact, decentralised enforcement by MS authorities is the default rule in situations where Article 103 TFEU legislation has not been introduced, has expired without being repealed or replaced or has been annulled by the CJEU. In general, however, as a result of the coverage of the general enforcement regime of Regulation 1 20032 and the numerous appropriate legislative measures that have been adopted under Article 103 TFEU, recourse is rarely made to Article 104 TFEU, and it currently plays a marginal role only in the enforcement of Articles 101 and 102 TFEU. However, any area that may be excluded from the general and sector-specific enforcement regimes provided for in Article 103 TFEU legislation remains under the scope of Article 104 TFEU and is subject to the jurisdiction of national competition authorities