The Double Helix of Rule of Law And EU Competition Law: An Appraisal

Abstract

By discussing the experiences of two EU Member States: Hungary and Poland, the article aims to demonstrate that there are three layers of rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States which competition law is part of. In national legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal environment for the competition law system to perform its role. The second one is internal: it concerns rule of law safeguards in relation to the Member States’ competition authorities, in particular their independence. The third one is consequential: the weakening of the rule law within the external and internal layers affects the proper functioning of the competition law system. The effective functioning of a decentralised system of EU competition law enforcement is also becoming an issue. As a result, the effectiveness of Articles 101-102 TFEU is endangered and a vicious circle of mutually reinforcing competition law and rule of law crises unfolds. The article speaks to the recent developments in the EU case-law, i.e. the General Court’s judgment of 9 February 2022 in Sped-Pro case (T 791/19) and creeping mutual distrust within the European Union.

Keywords: Rule of law, competition law, democracy, market regulation, democratic backsliding, EU, Poland, independence, regulatory agencies, competition authorities, enforcement

JEL Classification: K10, K21, K23