Tuesday, December 23, 2014
John Temple Lang, University of Dublin - Trinity College; Cleary Gottlieb Steen & Hamilton LLP - Rome Offiice asks After Fifty Years – What Is Needed for a Unified European Competition Policy?
ABSTRACT: The first task set by the European Treaties in 1957 was to eliminate tariffs and quotas on trade between Member States. However, it was understood that this would achieve little unless companies were prevented from fixing prices and allocating markets. It was also understood that State subsidies and State monopolies had to be regulated. Thus, it was essential to create a European competition policy that applied to all these elements.
European competition law has developed along a series of channels which it is traditional and convenient to consider separately. They are listed below, not in the order in which they developed from the initial Treaty provisions, but starting with the two areas of law which appear now to be most satisfactorily developed. This paper suggests that the economic principles are still not clear in three other areas and that policy is unsatisfactory and ineffective: Rules on restrictive agreements and practices involving two or more enterprises; Control of large mergers and joint ventures; Rules on State aid to industry; Rules on “abuse” of monopoly power and dominant market positions, by individual enterprises; Limits on national measures establishing monopolies and restricting competition; Private enforcement.
Alongside these six areas of substantive law, and important for all of them, are the areas of European Commission procedure and of judicial review of the actions of the Commission and, more recently, of the actions of national competition authorities. These are also commented on briefly below.
This paper does not attempt to summarise the entire field of European competition law. Instead, it comments on some of the principal developments in each of these areas and describes in more detail the principal problems as they stand today. It will be seen that these areas have developed unevenly and without clear objectives. This is understandable because there were no European Federalist Papers on competition policy. One step was taken at a time, and many steps were needed. It will also be seen that these areas have never been thought of, even by the Commission, as a single body of economic and legal principles. This paper describes what a unified European competition policy would look like and the most important tasks needed to create it.