The Constitutional Limits of EU Competition Law – United in Diversity
Antitrust Bulletin, Forthcoming
Posted: 24 Feb 2019
Date Written: February 8, 2019
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: Suggested Citation