An assessment of Community interest, Community dimension and decentralisation in EU competition policy

The paper discusses how the Commission is shaping a decentralisation policy in the antitrust field. The paper details the procedural architecture ‐ “degrees of priority”, “preconditions for decentralisation” and “Community interest” ‐ which gives the Commission sole discretion to decide whether an antitrust case is dealt with by Brussels or is referred to a Member State. It reveals that the decentralisation procedure has been set up by the Commission, with the blessing of the Community courts, but with little real consultation with the Member States. The paper points out that the decision whether to decentralise turns on a new, qualitative and Commission decided Community interest test. The paper emphasises that the Community interest test runs in parallel with ‐ and has a similar function to ‐ a number of decentralisation provisions which already exist. The final section of the paper contrasts Community interest as a decentralisation test with the rival, and pre‐existing, quantitative approach to decentralisation ‐ the Community dimension test ‐ contained in the EC Merger Control Regulation (MCR). It explains that both tests have strengths and weaknesses and that the recent reform of the MCR has not fully addressed these concerns in respect to Community dimension. The paper’s main conclusion is that the Commission’s appropriation of the ability to decide which Member States are competent to deal with decentralised antitrust cases has created the possibility of a fragmented or two‐speed Europe in competition regulation.