Article 104 [Transitional Enforcement Arrangements

Abstract

AbstractWhereas 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 (➔ Article 103 TFEU para 2, 4), 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 (➔ Article 101 TFEU para 60), and Article 102 TFEU by MS authorities in conjunction with the Commission under Article 105 TFEU (➔ Article 105 TFEU paras 1, 4). 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 (➔ para 8), arguably means that the real enforcement power lies with national competition authorities in transitional enforcement arrangements.