Competition law increasingly needs to deal with contribution claims. Claims for antitrust damages are selectively brought forward against companies with vast financial assets or established in claimant-friendly jurisdictions. There is thus an emerging need for allocating liability internally among antitrust infringers. However, the ability to claim contribution in competition law cannot be taken for granted. In Texas Industries, the US Supreme Court was clear that such claims are not currently available in US antitrust law. The aim of the book is to explain how the issue of contribution is resolved in EU competition law.

A promising solution is to handle the problem of contribution in a contractual way. Antitrust infringers could conclude an agreement which would determine the amount of their relative liabilities regarding antitrust infringement. The freedom to determine relative shares of liability may yet be viewed reluctantly from a public policy perspective. It is claimed that liability sharing agreements constitute anticompetitive arrangements, they stabilize cartels, weaken the enforcement of competition law and have a negative impact on settlements. This Chapter reveals that these statements are mostly incorrect, being applicable to US antitrust law rather than EU one. The Chapter makes a positive case for liability sharing agreements. It demonstrates that liability sharing agreements are allowed by EU law and can be concluded within certain limitations dictated by compliance with the Commission’s fining decisions and public policy rules.

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 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 entrenched in unique national rules of the Member States. Those national balancing tools bear significantly on balancing in the decentralised enforcement era, during which almost 90 per cent of Article 101 TFEU enforcement actions have taken place in front of NCAs. This chapter highlights the doubts about the compatibility of those national tools with EU competition law, a topic that has been largely overlooked by legal scholarship.

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 studies the balancing entrenched in unique national rules of the Member States. Those national balancing tools bear significantly on balancing in the decentralised enforcement era, during which almost 90 per cent of Article 101 TFEU enforcement actions have taken place in front of NCAs. This chapter highlights the doubts about the compatibility of those national tools with EU competition law, a topic that has been largely overlooked by legal scholarship.

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 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.