Frank Fine


The European Commission is achieving ever greater rationalization and efficiencies in the field of merger control, thereby maximizing commercial benefits while minimizing regulatory hurdles. The Commission appears to be on a completely different track when it comes to non-merger arrangements, such as strategic alliances, distribution agreements, technology licenses, joint selling agreements and joint purchasing agreements. While the Commission is seeking to maximize legal certainty for companies planning concentrations, in the other spheres of business activity which fall within the ambit of Articles 81 and 82, including those noted above, the Commission has decided that the legal certainty afforded by the old notification/exemption system should be abandoned in favor of a "self-assessment" system. In short, the Commission's time-honored notification regime will vanish starting in May 2004. The self-assessment system is actually part of a larger reform of Commission enforcement policy known as the "modernization" program, which is intended to result in a large devolution of enforcement of Articles 81 and 82 to the Member State competition authorities and courts. The post-modernization climate will have long-lasting effects on the way in which competition law is practiced in the European Union. The most significant trade-off for "self-assessment" will be increased reliance by companies on their outside competition advisors.