Topicality and perspectives of the antitrust "exemption": the general role of articl 101(3) of the Treaty

Since May 2004, decisions applying art. 101(3) TFEU have become very rare. In the Modernization reform (Reg. 1/2003), along with the elimination of the voluntary notifications regime, new, specific application devices of the rule were introduced to allow some room for assessment of new arrangements or new needs for clarity. However, to date, such devices have found no application, and very rare are decisions applying art. 101.3, mostly in the form of rejection of so-called efficiency defences. This paper argues that the reasons why such situation is not desirable not only lie with the opportunity of continuous adaptation of the interpretations of the law to rapidly changing market behaviors and technical conditions, but also with the central role of para. 3 of art. 101, and its distinctive feature of general, legal standard for balancing in European antitrust. Making balancing exercises in European antitrust cannot do away with art. 101(3). It is a Treaty’s rule that sets forth an articulated set of criteria designed to govern the balancing of restrictions of competition with counterweighing values. Balancing, that means to assign comparative importance to the contrasting values and interests at stake, has clear implications on general conceptions of the prohibitions and of their purposes. Decisions applying art. 101(3), encompassing or excluding interests and values in the balancing exercise, take position on the interpretation of a rule of the Treaties and are bound to have wider consequences on the general view of the Union’s antitrust regime and its ultimate goals. Those interpretations, after the 2004 reform, are for all NCAs and all National Courts to make. Although the current Guidelines of the Commission (I refer particularly to the General Guidelines ( ) on art. 101(3)) have narrowed the scope of the balancing with a view to be consistent with the so called “more economic approach” to European antitrust, in 101(3) cases there is still room for the typical question about how much, if at all, weight to assign to “non-economic values”. Finally, the current disuse of art. 101(3) may result in over-deterrence. Distrust in the effective availability of efficiency defenses discourages the undertaking of innovative business conducts, as do the difficulties in triggering the still in force mechanisms to obtain preliminary, although informal, guidance about new situations involving balancing.