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The Dark Matter in EU Competition Law: Non-Infringement Decisions in the New EU Member States Before and After Tele2 Polska

Alexandr Svetlicinii, Maciej Bernatt, and Marco Botta, European Law Review, Forthcoming

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Under Article 11 Regulation 1/2003 every National Competition Authority (NCA) of the EU Member States must notify the EU Commission about the opening of formal investigations for a potential infringement of Articles 101-102 TFEU and the envisaged decisions in that regard. The enforcement statistics for the first decade of Regulation 1/2003 indicates that the number of notified envisaged decisions is only about 50 per cent of the number of investigations opened under EU competition law. The authors explore the resulting “dark matter” in EU competition law by looking specifically at the non-infringement and closure decisions adopted by NCAs under national competition rules. The paper assesses the compatibility of such decisions with the powers of NCAs under Article 5 Regulation 1/2003, as interpreted in the CJEU’s Tele2 Polska case law. The paper shows how the CJEU’s interpretation of Article 5 Regulation 1/2003 has contributed to the development of the “dark matter” in the decentralized system of EU competition law enforcement, which affects the ability of the EU Commission to monitor the enforcement activities of the NCAs.

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