20 years after the adoption of Regulation 1/2003, one of its most indispensable provisions continues to create uncertainty. Art. 3 has the goal to ensure consistency between the application of national and EU competition law. However, two decades later, this promise remains unfulfilled. Rather than providing clarity, it has become an instrument for fragmentation and legal ambiguity. This tension has surfaced most prominently in the Meta (formerly Facebook) case, revealing the structural limits of the current system and the cost of failing to clarify a clause born as a political compromise rather than a coherent legal rule.
Art. 3(1) established that where conduct has an effect on trade between Member States, NCAs and Courts must apply EU competition law, meaning Articles 101 and 102 TFEU. However, Art. 3(2) introduces an exception: Member States are not precluded from applying “stricter” national laws concerning unilateral conduct. Lastly, Art. 3(3) goes on by allowing Member States to enforce national rules with a predominantly different objective, provided they do not constitute competition law in a strict sense.
These exceptions appear reasonable at the time, however in practice, they have produced what some call an “inoperative compromise.” Primacy is indeed affirmed in Art. 3 (1), but Arts. 3 (2) and (3) muddy the waters by carving out broad and not so well defined exceptions. The distinction between competition law and adjacent fields like consumer protection or data governance becomes blurred, and this ambiguity was presented in the German Facebook case.
The German Federal Cartel Office found that Meta’s terms of service (allowing the combination of data collected) violated German competition law (Sections 19 and 32 GWB). In its decision, the FCO relied on the finding that Meta’s terms of service did not meet the requirements of the GDPR. The key issue, however unanswered, was whether the FCO was also obliged to apply Article 102 TFEU alongside national law, as required by Article 3(1) of Regulation 1/2003. According to the OLG Düsseldorf, the FCO’s failure to apply Article 102 was a procedural error but “irrelevant”. I mean, how relevant can it be the uniform application of EU law, right?
This went unchallenged by both the Advocate General and the CJEU. The Court simply noted that a GDPR infringement could serve as an “important indication” of an abuse under competition law, but avoided clarifying whether EU law should have been applied. The implications of applying EU competition law or not go beyond substance since they also trigger notification and coordination requirements with the European Commission and the ECN. Had the FCO invoked Article 102 TFEU, the Commission and other NCAs could have contributed to the enforcement process and influenced the decision. The failure to do so illustrates how bypassing EU law weakens the cooperative nature of the EU competition system.
Moreover, the another important question left open is what it means for a national provision to be “stricter.” The CJEU’s silence has left national authorities guessing. As noted in doctrinal analyses, “stricter” may refer to a more demanding standard for defining abuse, a lower threshold for establishing dominance, or even broader concepts of economic power like dependency or gatekeeper roles. The FCO and the OLG Düsseldorf took the view that Section 19 GWB is a competition rule (not another rule different from competition law), and that it is “stricter” because it reflects a unique German concept of protection not yet mirrored in EU case law. However, if national provisions with different substantive content are accepted as “stricter,” Article 3(2) becomes a gateway for regulatory fragmentation. There is a real risk that identical cases could be brought under national and EU competition law, leading to inconsistent outcomes.
This issue is far from isolated. In France, for instance, ARCOM recently proposed a national law to protect minors from harmful online content. Although its objective is legitimate, it touches upon an area fully regulated DSA, a directly applicable EU regulation. While this is not a competition issue, it reflects a similar dynamic: Member States asserting national standards in areas already harmonised at EU level. This growing tendency to renationalise calls urgently for judicial guidance.
The Commission could initiate, in theory, infringement proceedings under Art. 258 TFEU against a Member State whose NCA fails to comply with Art.3(1) of Regulation 1/2003. However, while this legal instrument exists, it is barely used in practice for isolated infringements by independent authorities. Moreover, such a procedure would not directly affect the outcome of the national authority’s decision, which would remain valid under national law. Clarification by the CJEU is therefore essential. The application of Art. 3 should not remain a discretionary or political matter. It involves fundamental questions of legal hierarchy, procedural coordination, and the uniform application of EU law. The Court must define the threshold for “stricter” national competition rules, distinguish them from rules pursuing predominantly different objectives, and assert when Article 102 TFEU must be applied in parallel.
The CJEU missed a key opportunity in the Facebook case to clarify the nature and scope of Art. 3. Looking forward, the next revision of Regulation 1/2003 should explicitly address this ambiguity and better delineate the boundaries between national and EU competition law. Only then can the balance between decentralisation and legal unity be truly preserved.
Co(E)mpetition Procedure 