Block Exemption Regulations and Public Policy: in The Defence of BERS

Abstract

This article defends Block Exemption Regulations (‘BERs’) as a legitimate and effective tool for the consideration of public policy within Article 101 of the TFEU enforcement. Going against popular opinion, it argues that as the expression of a clearly defined EU-wide political consensus, BERs carry several advantages over the traditional balancing tools of Article 101(1) and (3) individual exceptions, guidelines, or balancing by the exercise of enforcement discretion. BERs offer pre-determined and transparent rules, safeguarding the independent competition authorities’ political accountability and democratic legitimacy, promoting uniformity and legal certainty, reducing compliance and enforcement costs, inviting scrutiny and debate, and fostering experimentalism and flexibility.