The European Commission's Ability to Act Under European Competition Law. The Example of Telecommunications and Electricity Policy

Abstract

European competition law allocates far-reaching competences to the European Commission. The paper asks for 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 allocated specific rights to undertakings that conflict with the Treaty's rules. In addition the Commission may pursue Treaty violations on a case-by-case basis. In European telecommunications policy the Commission has used its powers rather successfully, with all liberalization decisions being based on Article 90. But for European electricity policy the Commission has shrunk away from using these powers in favor of initiating council legislation. The paper analyzes the conditions of the Commission's ability to act under European competition law in a multi-level framework, drawing among others on a principal-agent approach.