Commission activism: subsuming telecommunications and electricity under European competition law

Abstract

ABSTRACT Under European competition law the Commission has far-reaching competences. The article asks about the conditions under which the Commission may use these rights against the member states, focusing on the most powerful provision—the right of the Commission under Article 90 to issue directives by itself in those cases where member state governments have endowed undertakings with rights conflicting with the Treaty's rules. In European telecommunications policy the Commission has used this competence very successfully, with all liberalization directives being based on Article 90. But for European electricity policy the Commission has shrunk away from using these powers in favour of initiating Council legislation. The article analyses the conditions of the Commission's ability to act under European competition law in a multi-level framework, drawing on a principal-agent approach. It presents Article 90 as an example of governments regaining control over their agent.