Article 103 [Adoption of Secondary Enforcement Measures for Articles 101 and 102 TFEU]

Articles 101 and 102 TFEU put in place the substantive competition law rules of the Treaty. The Treaty does not, however, lay down detailed enforcement rules for these provisions. Rather, Article 103, Article 104 and Article 105 TFEU, operating together, lay down the bare framework for their enforcement. Article 103 TFEU requires the Council to enact secondary enforcement measures (➔ para 2–47) to ensure the effective enforcement of Articles 101 and 102 TFEU. Pending the enactment of appropriate Article 103 TFEU measures, Article 104 TFEU and Article 105 TFEU provide for transitional enforcement arrangements by the MS authorities and the Commission (➔ Article 104 TFEU para 1–4, ➔ Article 105 TFEU para 1–2, 4–5). The omission of enforcement rules in the Treaty stems predominantly from a negotiation impasse between Germany and France and other MS at the time of the Treaty of Rome negotiations (➔ para 2). Whereas the French were keen to adopt an abuse model prohibiting only “bad” anti-competitive agreements with harmful effects and allowing “good” anti-competitive agreements with pro-competitive benefits under a legal exception system (➔ para 20), the Germans were keen on a prohibition model based on notification and authorisation. Compromise was eventually reached on a prohibition of anti-competitive agreements subject to exemption upon the satisfaction of certain conditions, but to avoid further impasse, the decision on how the exemption system was to operate in practice was postponed to a later time, hence the inclusion of Article 103 TFEU.