Time for Fresh Guidance? The Return of the Exemption Decision

Regulation 1/2003 abolished the notification system which had been a cornerstone of EU competition law since the early days – the venerable Regulation 17 of 1962. Notifications gave the European Commission (EC) information about commercial practices, and allowed it to develop the law. They were vital in those early days when antitrust was an unfamiliar discipline, and everything remained to be explored as to the interplay between the twin objectives of upholding competition and integrating national markets.

Forty years later, the body of accumulated law and practice was such that the EC felt able to relinquish its monopoly over the power to exempt, and we entered instead into the age of self-assessment. The EC retained a power to adopt “decisions of inapplicability” – but has studiously refrained from using it. Nearly 20 years on, and in a much changed world, is it time to revisit that dormant power?

The Covid-19 pandemic has led the EC to issue more guidance but also to issue its first comfort letter in 20 years. More such comfort letters might be expected in the Covid-19 context.

The present article explores the detail of the Commission’s “guidance powers”, before then noting indications from the EC that it recognises these challenges.