Article 105 The Role of the Commission

The Treaty does not provide detailed enforcement rules for Articles 101 and 102 1 TFEU. Instead, it establishes a broad enforcement framework in Article 103 TFEU, Article 104 TFEU and Article 105 TFEU. Detailed enforcement rules are to be legislated by the Council under Article 103 TFEU, and until such time as this legislation is enacted, the MS authorities under Article 104 TFEU, along with the Commission under Article 105 TFEU, are responsible for the provisional or transitional enforcement of Articles 101 and 102 TFEU. In the original wording of the 1957 Treaty of Rome, then Article 89 TEEC specified: `Without prejudice to Article 88 the Commission shall as soon as it takes up its duties ensure the application of the principles laid down in Articles 85 and 86. The words `as soon as it takes up its duties are considered to be suggestive that this provision was of a temporal nature, allowing the Commission to enforce the competition law provisions of the Treaty until such time as the Council implemented the Article 103 TFEU enforcement legislation. The words `as soon as it takes up its duties were removed by the amending Treaty of Amsterdam 1997, indicating that albeit a temporary or transitory power, the Commission has in fact a `permanent residual power to intervene. In combination with Article 104 TFEU, Article 105.12 TFEU envsages a largely decentralised application of Articles 101 and 102 TFEU during transitional enforcement arrangements. This is due to the limited role of the Commission during such arrangements, with the power of compulsion and sanction resting with the MS authorities. The term `[w]ithout prejudice to Article 104 in Article 105.1 TFEU indicates that the Commission nonetheless retains a certain centralised supervisory function in ensuring the application of the principles set out in Articles 101 and 102 TFEU. Indeed, the CFI has acknowledged that Article 105.1 TFEU is a specific expression of the general supervisory role conferred on the Commission by old Article 115 TEEC as regards Articles 101 and 102 TFEU. Broadly speaking, this supervisory function has been carried over to the current Article 17.1 TEU. While initially this made the Commission the main agent responsible for ensuring the application of Articles 101 and 102 TFEU, the advent of Regulation 1 20035 marked the decentralisation of enforcement, enabling the national competition authorities and national courts to apply these provisions to competition issues. Nonetheless, deriving from Article 105.1 TFEU, the Commission is entrusted with the responsibility for `defining and implementing the orientation of [Union] competition policy. As Article 104 and Article 105.1, together with Article 105.2, TFEU operate in tandem with each other and as the enforcement of Articles 101 and 102 TFEU has been comprehensively legislated for, Article 105.1 2 TFEU currently plays a mostly residual and default role only in the EU competition law enforcement regime. Article 105.1 TFEU, however, has more than a residual or transitory significance as regards the Commissions supervisory function, and also Article 105.3 TFEU, introduced by the Lisbon Treaty 2009, has more than a residual or transitory significance. The legislative authority the latter conferred on the Commission gives the Commission considerable law- and policy-making powers in the field of competition law.