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.

The European Commission’s dawn raids have long been one of the most powerful investigative tools in competition enforcement. But as companies move to the cloud, employees work from home, and communication happens across encrypted channels, we have to ask whether the dawn raid, as we know it, is still the right fit for the digital age.

In September 2024, the Commission published a Staff Working Document reflecting on the effectiveness of its investigative powers under Regulation 1/2003. Although no legislative proposals were made, the report raised questions that we can no longer afford to ignore: what happens to dawn raids when the world goes remote?

Remote Inspections: A Logical Step in a Digital World

Let’s start with a basic fact: most corporate data is now hosted in the cloud. It’s no longer locked away in filing cabinets or even in office desktops. That’s not just a matter of convenience, it’s a structural shift. And it means that the physical location of data is becoming increasingly irrelevant.

This also affects how we think about inspecting private homes. Traditionally, this has been a sensitive issue; dawn raids at domestic premises raise privacy concerns and legal complexities. But if the employee’s device is just a terminal to access a shared company server, then why go to the home at all? Access to the server is access to the data.

From my perspective, this is where remote inspections make a lot of sense. The technology is already there. Lawyers, corporate executives, and Commission officials all now use secure digital platforms in their daily work. The legal framework should be flexible enough to adapt to exceptional circumstances, like pandemics or crises, but also to the routine digitalisation of corporate environments. Remote inspections could ensure that investigations continue—without compromising privacy or relying on outdated assumptions about where evidence “lives”.

Digital Evidence Can Disappear in Seconds: Enter Freezing Orders

One of the main challenges with digital evidence is its fragility. Unlike paper documents, electronic records can be deleted or altered in seconds, even unintentionally. A recent case makes this clear: in 2024, the Commission fined International Flavors & Fragrances €15.9 million after an employee deleted WhatsApp messages during a dawn raid while investigators were already on-site.

This is where freezing orders come into play. Already discussed in the context of the DMA, these orders would allow the Commission to remotely lock down specific data sources at the start of an investigation. It’s a way to preserve evidence without stepping into physical spaces or risking its destruction.

Combined with remote inspections, freezing orders could replace the need for intrusive, resource-heavy, and potentially privacy-invasive actions, while still securing access to the full scope of relevant documents.

A Balanced, Modern Enforcement Model

I’m not suggesting that dawn raids should disappear entirely. There will always be cases where physical presence is necessary, for example, where covert practices require on-the-ground discovery. But it’s time to acknowledge that digital tools are now strong enough to support remote inspections as a standard option in the Commission’s toolbox.

What’s more, remote inspections and freezing orders would likely reduce unnecessary burdens on companies. Instead of unannounced visits and staff disruption, companies could cooperate through secure, well-defined digital channels, knowing their rights and obligations from the start.

Conclusion: Time to Embrace the Cloud

Competition law enforcement doesn’t operate in a vacuum. It must adapt to the way companies operate and the way evidence exists in a digital world. Remote inspections are not just about convenience. They’re about respecting privacy, ensuring continuity in crisis, and using the right tools for the digital economy.