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Priority-setting as a double-edged sword: How modernisation strengthened the role of public policy

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"This article questions the common view that the modernisation of EU competition law has removed public policy considerations from the public enforcement of Article 101 TFEU. Based on a large quantitative and qualitative database including all of the Commission’s and five national competition authorities’ enforcement actions (N≈1700), it maintains that modernisation has merely shifted the consideration of public policy from the substantive scope of Article 101(3) TFEU to procedural priority setting decisions. Instead of engaging in a complex balancing of competition and public policy considerations, the competition authorities have simply refrained from pursuing cases against anti-competitive agreements that raise public policy questions or settled those cases by accepting negotiated remedies. This outcome, the article claims, is a double-edged sword. The Commission’s attempt to narrow down the scope of Article 101(3) as part of modernisation has not eliminated the role of public policy in the enforcement. Rather, undertakings can reasonably assume that restrictions of competition that produce some public policy objectives will not be enforced, even if they do not meet the conditions for an exception. These discretionary non-enforcement decisions have a detrimental impact on the effectiveness, uniformity, and legal certainty of EU competition law enforcement.