EU Competition Law and the ‘Effect on Trade’ Test: an empirical study of national courts in the decentralised enforcement system

The decentralised enforcement of EU competition law is reliant upon the obligation of national competition authorities and courts to apply Articles 101 and 102 TFEU when there is an ‘effect on trade’ between Member States. Despite its foundational importance in promoting an effective, uniform, and consistent application of EU law, this criterion remains under-defined at the EU level and is to a great extent operationalised through national-level discretion in its application. Previous studies and the Commission’s 2024 evaluation of decentralisation cautioned that this flexibility may be strategically exploited; yet, no study has systematically examined the application of the test by national courts and their oversight function.
Drawing on comprehensive empirical databases, this article suggests that the EU safeguards for ensuring a correct and uniform application of the ‘effect on trade’ test -judicial review by national courts, preliminary references, and Article 258 TFEU infringement proceedings -have failed, and calls for greater compliance by refocusing the available EU law tools.