The article provides an analysis of the practical implications for Norway as an EFTA State in light of the implementation of Directive 2014/104/EU - in particular the consequences following from the lack of decentralised public enforcement of Article 53 and 54 EEA. The topic is highly relevant and widely debated in Europe, and the article provides a thorough and interesting contribution to such debate.
The main issue of the current legal framework is the partial implementation of Regulation 1/2003. The reasoning behind such partial implementation was because the Commission was of the opinion that Article 55 and 56 EEA constitutes a legal obstacle to decentralise public enforcement of Article 53 and 54 EEA. This entails that there is no legal basis for the EFTA National Competition Authorities (hereinafter referred to as the «NCAs») to collaborate with the EU NCAs. This implies limitations in regards to requesting information, accessing confidential information in fact-finding investigations, submitting amicus curia and notifications, in cases with a cross-pillar element.
The introduction of Directive 2014/104/EU brought back the discussion concerning the decentralisation of enforcement of EU/EEA competition law across the EU- and the EFTA-pillar. There is reason to believe that the EFTA States may be reluctant to implement Directive 2014/104/EU before the Commission and the EU Member States accept the necessary amendments to the EEA Agreement in order to achieve a full and symmetric decentralised enforcement of Article 53 and 54 EEA, and consequently a «cross-pillar» application of Regulation 1/2003. The Commission's reluctance may create practical implication for Norway as an EFTA-States, in terms of their ability to participate on an equal footing with the EU Member States in both decentralised public enforcement of the EU/EEA competition law and in the facilitation of their private enforcement. Furthermore, it may result in a widening gap between EU and EEA competition law. The article examines both the legal and political background of such issue, and which amendments are regarded as necessary in order to achieve a cross-pillar application of both Regulation 1/2003 and the Directive 2014/104/EU. The Article further provides an overview of the practical implications that follow from the lack of decentralised private and public enforcement of EU/EEA competition law.