Some Preliminary Remarks on the Limitations of European Competition Law

Abstract

The article analyses the possible limits of negative integration on the basis of the competition law of the European Community. In contrast to the fundamental freedoms of the Community, its competition law is not subject to any explicit exceptions or limitations (apart from the possibility of an exemption under Art. 81 (3) EC). That is problematic, because in competition law just as with the fundamental freedoms issues of competence must be taken into account. An appropriate relationship between supranationality (internal market, market opening) and conflicting national requirements and competences must be taken into account in the determination of the scope and limits of the Community law prohibition of anti-competitive agreements. While the Member States, because of the increased sensitivity of the European Court of Justice in relation to the fundamental freedoms, have won back some national room for manoeuvre, such a tendency towards flexibility is less apparent in the case law of the European Court of Justice on competition law. Such indications as exist are apt to be characterised and developed as a European rule of reason. Considerably more thorough-going are comments in the legal literature that directly challenge the principle of the priority of Community law and in the case of so called indirect or diagonal conflicts argue that supremacy should be treated as an "optimisation principle" according to the principle of "practical concordance". In contrast, it is suggested here that the principle of "practical concordance" should only be applied to the (growing) number of horizontal conflicts between European competition law and the other policies of the Community. For diagonal conflicts between Community competition law and other policies of national law it seems appropriate to read across the limitations inherent in the Cassis- jurisprudence of the European Court of Justice to Arts. 81 I and 82. This contribution does not include any consideration of the procedural aspects of competition law or of the ideas for reform discussed by the Commission in its White Paper of May 1999 on modernising the application of the provisions of competition law.