This chapter concludes by answering the three research questions examined in this study: How have the rationale, method, and limits for the balancing of competition and non-competition interests in the enforcement of Article 101 TFEU evolved in the first sixty years of its existence? How has this process of evolution affected the attainment of the objectives of Regulation 1/2003, namely effectiveness, uniformity, and legal certainty? And what role should non-competition interests play in order to conform to such objectives? It presents the three transitions in balancing that emerge through modernisation and discusses their impact on the effectiveness, uniformity, and legal certainty of the enforcement. In addition, it offers policy recommendations on how non-competition interests should be taken into account in the enforcement of Article 101 TFEU.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter examines the implicit-procedural balancing tools, embedded in the exercise of the competition enforcers’ discretion and priority setting powers. Modernisation has entrusted the Commission and NCAs with a new balancing tool in the form of their discretional enforcement powers. Moreover, it has incentivised the Commission and NCAs to direct their enforcement efforts towards clear-cut infringements of Article 101 TFEU, which are unlikely to be justified by overriding non-competition interests. The competition enforcers have used their detection, target, instrument, and outcome discretion to decide not to enforce Article 101 TFEU against other types of agreements even when they do not meet the conditions for an exception under Article 101(1) and (3) TFEU. As a result, investigations into agreements that raised balancing questions were often settled with negotiated remedies or terminated by closing the probe into the case altogether. The chapter investigated various aspects of priority setting, including the selection of a strategy for identifying anti-competitive behaviour; the choice of whether to open an investigation and pursue a case; choice of enforcement instrument (sector regulation, markets-work, informal opinions, and the effect on trade test); and selection of remedies (fines, commitments, and findings of inapplicability).

This chapter concludes by answering the three research questions examined in this study: How have the rationale, method, and limits for the balancing of competition and non-competition interests in the enforcement of Article 101 TFEU evolved in the first sixty years of its existence? How has this process of evolution affected the attainment of the objectives of Regulation 1/2003, namely effectiveness, uniformity, and legal certainty? And what role should non-competition interests play in order to conform to such objectives? It presents the three transitions in balancing that emerge through modernisation and discusses their impact on the effectiveness, uniformity, and legal certainty of the enforcement. In addition, it offers policy recommendations on how non-competition interests should be taken into account in the enforcement of Article 101 TFEU.

This chapter provides a historical overview of the development of Article 101 TFEU balancing to frame and identify the uncertainties surrounding it. The chapter begins with the EU primary and secondary law provisions, illustrating that they do not prescribe a clear balancing framework. Against this backdrop, it shows that the balancing principles have been greatly shaped by the practices of the Commission and EU Courts. It affirms that the development of the balancing principles is best understood by sorting the practices into four enforcement periods, which are then explored throughout the empirical chapters of the book. In addition to the developments at the EU level, the chapter devotes special attention to the competition law set-up and balancing approaches of each of the five Member States examined in the study.

This chapter examines the implicit-procedural balancing tools, embedded in the exercise of the competition enforcers’ discretion and priority setting powers. Modernisation has entrusted the Commission and NCAs with a new balancing tool in the form of their discretional enforcement powers. Moreover, it has incentivised the Commission and NCAs to direct their enforcement efforts towards clear-cut infringements of Article 101 TFEU, which are unlikely to be justified by overriding non-competition interests. The competition enforcers have used their detection, target, instrument, and outcome discretion to decide not to enforce Article 101 TFEU against other types of agreements even when they do not meet the conditions for an exception under Article 101(1) and (3) TFEU. As a result, investigations into agreements that raised balancing questions were often settled with negotiated remedies or terminated by closing the probe into the case altogether. The chapter investigated various aspects of priority setting, including the selection of a strategy for identifying anti-competitive behaviour; the choice of whether to open an investigation and pursue a case; choice of enforcement instrument (sector regulation, markets-work, informal opinions, and the effect on trade test); and selection of remedies (fines, commitments, and findings of inapplicability).

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter provides a historical overview of the development of Article 101 TFEU balancing to frame and identify the uncertainties surrounding it. The chapter begins with the EU primary and secondary law provisions, illustrating that they do not prescribe a clear balancing framework. Against this backdrop, it shows that the balancing principles have been greatly shaped by the practices of the Commission and EU Courts. It affirms that the development of the balancing principles is best understood by sorting the practices into four enforcement periods, which are then explored throughout the empirical chapters of the book. In addition to the developments at the EU level, the chapter devotes special attention to the competition law set-up and balancing approaches of each of the five Member States examined in the study.