The End of Agricultural Exceptionalism in EU Free Movement Law and Competition Law after Lisbon?

Abstract

Within the EU, the agricultural market has been treated as an exceptional sector, to which rules of EU law such as free movement law, competition law, environmental law and consumer law apply only in exceptional cases, and conditional on their contribution to the goals of the Common Agricultural Policy (CAP). This exceptional treatment has been much critiqued and has come under scrutiny by political science and environmental policy. Legal analysis of this question has thus far been lacking.

This piece fills this gap, by first outlining the legal roots of exceptionalism in EU agricultural law; second, by addressing changes in the law which pave the way for a more post-exceptionalist understanding of agricultural law in the EU after the reforms introduced by the Lisbon Treaty.

The piece concludes that a mixed picture has emerged with regards to agricultural post-exceptionalism in EU law. In relationship to free movement law, there is indeed evidence that the exceptional treatment of agriculture in EU law has been widely eroded, leading towards a more inclusive, post-exceptionalist understanding of agriculture. This has great consequences for the interpretation of agricultural provisions in EU law, but also on other EU law provisions that touch upon agricultural produce. In EU competition law, exceptionalism is still applied in its traditional sense. Not only are large parts of the EU’s agricultural market shielded from the application of competition law; where it applies its application is often only in line with EU law when it does not touch upon the goals of Art. 39 TFEU. Directive (EU) 2019/633 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain based on Art. 43(2) TFEU even expands the rationale of Art. 39 TFEU to markets usually governed by classical EU competition law, thereby expanding agricultural exceptionalism beyond the limits of agricultural law.

Keywords: European Union, Free Movement of Goods, Competition Law, Common Agricultural Policy, Exceptionalism