The Constitutional Limits of EU Competition Law – United in Diversity

Posted: 24 Feb 2019

See all articles by Christopher Townley

Christopher Townley

King's College London - The Dickson Poon School of Law; A Dickson Poon Transnational Law Institute

Alexander Turk

King's College London - The Dickson Poon School of Law

Date Written: February 8, 2019

Abstract

The allocation of legislative and executive competences in multi-level governance structures affects who controls norms. Over the last two decades we see a general trend in EU law, towards ‘flexibility, mixity and differentiation.’ Yet, many think that EU competition policy and enforcement marches to a different tune. Competence is rarely discussed there and, when it is, most assume that uniformity is desirable.

This paper discusses the EU constitutional system as it relates to competition policy and enforcement. It investigates what choices the EU Treaties make about diversity. As with many constitutional arrangements, the EU Treaties sometimes leave space for others to decide. In these spaces we advocate answers, based on our understanding of the constitutional settlement between the EU and the Member States. This has major implications for, amongst others: the Commission’s power to relieve the Member States’ competition authorities (NCAs) of their competence to apply Articles 101 and 102 TFEU; the vires of EU merger control outside of the remit of Articles 101 and 102 TFEU; Commission efforts to make the NCAs more independent of political influence; and the resolution of conflicts between EU and national competition rules.

Keywords: EU Competition Law, Constitutional Law, Competence, Legislative, Executive, Multi-Level Governance, Uniformity, Diversity, National Competition Authorities

JEL Classification: K21, K23

Suggested Citation

Townley, Christopher and Turk, Alexander, The Constitutional Limits of EU Competition Law – United in Diversity (February 8, 2019). Antitrust Bulletin, Forthcoming, King's College London Law School Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3331011

Christopher Townley (Contact Author)

King's College London - The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

HOME PAGE: http://www.kcl.ac.uk/schools/law/about/staff/t/townleyc.html

A Dickson Poon Transnational Law Institute ( email )

London, England WC2R 2LS
United Kingdom

Alexander Turk

King's College London - The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom
+44 0 20 7848 2925 (Phone)

HOME PAGE: http://https://www.kcl.ac.uk/schools/law/staff/t/turka.html

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