Ex ante-Kontrolle versus ex post-Kontrolle im Recht der Wettbewerbsbeschränkungen

The EU Commission plans to fundamentally change the competition law of the European Union. According to these plans, the current system of a prohibition in Art. 81 Sec. 1 of the Treaty with the possibility of an exemption subject to a decision according to Art. 81 Sec. 3 would be replaced by a system of an automatic statutory exemption. Article 81 Sec. 1 and Sec. 3 of the Treaty would then be directly applicable as one integrated rule. A prior examination by the competition authorities would not take place any more. This would be a change from an ex ante enforcement through prescreening to an ex post enforcement through deterrence. The author shows the mixture of elements of ex ante control and of ex post control in the German, the European and the US American legal systems. He assumes the proposals of the EU Commission to be risky in terms of competition policy. He tests this hypothesis against the criteria of transparency, legal certainty, coherency of legal enforcement, subsidiarity, deterrence effects and costs of enforcement. The logic of the proposals of the EU Commission implies the introduction of imprisonment as a sanction for antitrust offenses.