The Interface between Ec Competition Law and the Competition Laws of the New Member States: Implementation or Innovation?

Abstract

This paper discusses the interaction between European competition law and the national competition laws of the new Member States. The scope of this paper is limited to eight of the ten new Member States: the eight Central and Eastern European countries. It principally reviews how competition laws developed in these from the early 1990s to present. This development is discussed from two main perspectives: it deals with the interaction between European competition law and the national competition laws of the new Member States and it assesses whether the specific market failures inherent in small and transition economies have been efficiently dealt with. On the one hand, the focus here is the effectiveness of competition law implementation. Implementation of competition law will be reviewed from a new perspective, not focusing on whether faithful implementation has taken place but whether this implementation has been justified from the point of view of these countries' economic situation. The questions discussed here are the following. What was the extent to which the candidate countries were obliged to bring their competition law regimes in harmony with that of the EU? What was the content of their legal obligations with regard to competition law? What was the leg room they were provided to diverge from the EC rules? And did they make use of this room in order to draft and implement legal solutions that they thought fit for their own economy? Were there political or economic reasons that made these countries to converge their competition regime more than legally required? On the other, this paper evaluates the effectiveness of the enforcement of the new competition laws and their efficiency to address various market failures inherent in the transition economies of the Central and Eastern European countries. This part of the paper tries to answer the question whether the adoption of EC-kind competition rules has been an effective and sufficient market-disciplining tool in these transition economies. The particular characteristics of these small economies and the legal and economic needs of firms and consumers might have called for different and more flexible measures. This paper presents a critical assessment of the harmonisation process of competition law. While it is undeniable that the harmonisation obligations speeded up the development of several legal areas and especially competition law, there was perhaps not always enough room to experiment with national legislation beyond the obligations to implement EC competition rules and principles.