The Modernisation of UE Competition Law over the Past Ten Years - Research Paper Example

 1.) INTRODUCTION 2.) WHAT IS COMPETITION LAW? a) The Birth of Competition Law b) The Idea Behind Competition Law c) Growth of Competition Law d) The Law Now i) Article 101 ECT ii) Regulation 2790/99/EECT iii) Article 102 ECT iv) Regulation 139/2004 v) Articles 106 and 107 ECT vi) Commission for Competition 3.) MODERNISATION OF COMPETITION LAW a) Enlargement b) Regulation 9/2003 c) Treaty Establishing a Constitution for Europe d) The Lisbon Treaty e) Leniency Policy 2002 4.) CONCLUSION 5.) BIBLIOGRAPHY Introduction EU Competition Law has been an active and constantly adapting concept of the EU. The integration of ever increasing Member States of the EU has fuelled the need for the regulation of trade practice and rules between Member States. Since the primary goal of EU Competition Law is to help level and equal competition between Member States, the law has sought to achieve a ‘middle ground’ upon which all Member States are able to trade freely and equally between one another. Indeed, “the starting point of supra-national competition law in Europe was the series of pro-competitive measures adopted by France, Germany, Italy and the Benelux countries in the 1951 Treaty of Paris”1 It is not a trivial matter that the regulation of competition within the EU between Member States is a necessary element “to ensure that a common (or internal) market with effective competition would come into being”.2 Thus emerges the need for competition authorities to check, avoid, and punish any anti-competitive actions, through the power given to them by the relevant rules, regulations and articles. This task is not readily a successful one, and the integration of larger numbers of Member States into the EU appears to have made this an even more troublesome concept. Indeed, it is not difficult to see that the large number of states within the EU increases dramatically the amount of competitive activity and also provides a much more diverse set of practices to be placed under the single set of rules and regulation of EU Competition Law. Thus, a need for change, constant updating and a broader reaching concept of competition law has arguably fuelled some changes in EU Competition Law over the years. But exactly what changes have occurred, and from which stage did these changes begin? Have they been dramatic, sparse changes, or more gradual and constant alterations over the years? What is the reasoning behind these changes, and how have they served to change the reach of EU Competition Law up to today? These are the questions to be explored, for they will shed much light on the way the EU functioned before, and up to, the way it functions today. The need to also observe the theoretical concepts behind any major changes is paramount to understanding just why and how they took place, and what they aimed to achieve. Indeed the past ten years in the history of the EU has seen massive expansion and increasingly complicated changes in its functioning and application. But what specifically is EU Competition Law? What aspects does it encompass? What Is EU Competition Law? Competition law has a history that can be traced back to the Roman Empire. Guild, governments, and, market traders have always been subject to severe sanctions and inquiries with regards to business practices. One of the primary targets of the founders of the European Community – statesmen Jean Monnet and Robert Schuman – was to establish a single market. In order to achieve this, a standardized, transparent and compatible working skeleton had to be made. The legal act that was constituted was Commission Regulation 17/62 of 06 February 1962 Articles 85 and 86 of the Treaty3 (now outdated). The Commission in 1964 took their first important decision under Article 81 and established that Grundig, a German industrialist of household appliances, illegally participated in providing exclusive dealership rights to its French subordinate4. The Commission’s decision was accepted by the European Court of Justice in the year 1966 and it also stretched out the guidelines affecting trade rights to cover “potential effects” and affirmed its position in Competition Law enforcement along with the Commission. Competition law gained global popularity in the twentieth century, as businesses grew in numbers and competition thus became more important to provide all with a chance of succeeding, and to protect consumers against the downfalls of monopolies. It is now contained in specific articles of the European Community Treaty (the “ECT”)5, all aiming at the prevention of anti-competitive practices. A brief analysis and statement of these articles is necessary in order to understand both the content of EU Competition Law and the types of practices condoned and prohibited. Article 101 ECT encompasses all anti-competitive agreements which distort or prevent competition and classes such practices as void under Article 101(2) ECT. This, however, is a broad terminology, and thus much case law has helped to shape the definition and scope of Article 101(1) ECT. However, the definitions are still arguably broad, as the term ‘undertaking’ has been interpreted as the offering of goods or services in a particular market.6 Similarly, the terminology ‘agreement’ is also interpreted broadly (it need not be contractual; a gentleman’s agreement can suffice,7 and appears to be dependent on the circumstances of the case.8 Indeed, it appears that any practice capable of having a negative effect on competition between Member States9 of the EU is likely to be caught within the ambit of Article 101 ECT. Of course, exemptions do exist under Article 101(3) ECT, and the de minimis principle addressed by Volk10 has served to keep a limit on the ambit of practices found to affect competition and inter-state trade. Article 101(3) ECT derogations have been arguably labelled as the American Rule of Reason when assessing whether practices are anti-competitive.11 However, it is clear to see, that while the original ambit of Article 101(1) ECT is potentially broad, the case law and concepts surrounding it as well as the additional subsections of Article 81 do serve to create some boundaries within which is can be confined. This expresses the balance that the courts have attempted to maintain between protecting the EU from anti-competitive behaviour and the freedom to actually undertake business effectively. Commission Regulation 2790/99/EECT of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices12 also serves to create block exemptions for parties to an agreement which possess 30% of a market share or less for vertical agreements. Indeed the case law and regulations surrounding Article 101 ECT show an increasing desire to simplify and clarify the aspect of what is classed as an anti-competitive agreement or undertaking. This expresses the acknowledgement that, as more states enter into the EU, the need for simplification becomes a more vital aspect of competition law within the EU. This aspect will be explored more below. Article 102 concerns Monopolies or firms that have a fairly large market share, compared to the rest of the market. Such firms often attempt to amend market fluctuations as per their requirements since they hold a majority share in the said market. ECT law has never imposed a punishment on existing monopolistic firms, but it has imposed additional responsibility to conduct them appropriately in the existing market. Special categories of misuse are listed in Article 102, and domination can also be joint if two or more companies work in agreement with one another.13 Article 102 ECT non-exhaustively lists the types of abuse which fall within its ambit (unfair selling prices, exclusive supply, tied sale), but does not define it specifically. This is an interesting aspect, as it recognises the ever-increasing ways in which companies operate, and thus also create new forms of abuse. Thus one can see the beginning of a legal rule which prohibits the misuse of dominant positions within the EU market, whilst leaving open its boundaries in the event of future emergences of abuse. Such a broad element of the law is recognised as not being able to be confined to a set of limits and this conveys an ever-present recognition of the constant evolution of the EU. There appears to be strong theme of ‘leaving legislation open-ended’ in the event of evolution of the EU, which attempts to mirror the development of the law and the EU functioning as the years pass. Indeed, this is more a gradual and natural progression rather than an intended, precise change in the competition law of the EU. However, it could be argued that such gradual changes are more effective and natural than the overhauls which will be addressed and further explored below. The European council has been given the authority under Council Regulation 139/2004 of 20 January 2004 on the control of concentrations between undertakings (“Merger Regulation”)14to impose control upon mergers of firms. The purpose of this regulation is to check if the focus (acquisition or combination) in a particular section with a community facet (i.e. impact on various EU members) would obstruct the growth of effective competition. Lastly, Articles 106 and 107 ECT normalize the state's role in the market. Article 106(2) clearly advises that none of the conditions outlined in the ECT can stop a member state from practicing their right to deliver public services, although this does not include the functioning of public enterprises. State Funding has a special importance in the EU Competition Law Administration. Since the EU has been made as collaboration between independent Member States, the birth of the European single market and the competition policy could be proven unsuccessful if the Member States could support the public/national companies as per their individual guidelines instead of the EU laws prescribed. Article 107 ECT, parallel to Article 101 ECT, specifies a general rule that the state may not assist or fund private parties in the alteration of free competition; however disasters, charities or regional development can be funded by the state as an exception. The current commissioner to regulate and act on behalf of the European Commission is Neelie Kroes (ALDE). The Commissioner for Competition is the member of ECT accountable to standardize competition. The Commissioner has to deal with matters of Commercial competition, company acquisitions, cartels, state funding and anti-trust law. Since September 1990, the Commissioner’s position has been granted complete authority for mergers in the European economic Area. The Commissioner for Competition has a very powerful position in the European Commission and prominently affects companies across the globe. The prevention of a merger between General Electric and Honeywell in the year 2001 is a very good example that describes the powers held in a Commissioner’s position. The Four policy areas contain Cartels, Monopolies, Merger and State Funding. Cartels, or Collusion control and control of monopoly practices affect the EU. This has been outlined under Articles 101 of the TECT. Monopolies or the prevention of exploitation of the firms holding top positions in the market is governed by Article 102 TECT. The Commission’s authority level increases under the next area due to this current specified policy area. Mergers or handling of future acquisitions or partnership projects between companies that may have a certain, definite amount of income in EU is handled by the Merger Regulation). State Funding or control of aid issued by the Members of the EU to private or public companies, is covered and governed by Article 107 ECT. Modernisation of Competition Law of the EU So just how has Competition Law changed over the past ten years? In what ways and under what bases have these changes taken place? Why did they take place? Indeed, one of the most radical overhauls of EU Competition Law and Policy took place in 2004, under which modernisation, procedural reform and enlargement were addressed. With the accession of ten new Member States, it was seen as necessary to bring EU Competition law into a new and more revised era, or recreate it with a ‘big bang’.15 After such a major expansion, it became necessary for the EU to be able to deal with such a diverse integration of cultures and business practices. In turn, it was required that businesses ensure that their practices and mergers comply with EU regulations, as well as state legislation undertaking the same checks. Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid in Articles 81 and 82 of the Treaty16 was designed to tackle serious violations of competition law, and to allow the deployment of resources in less productive areas from a more traditional point of view. Much of the Commission’s time was used in considering requests for the exemption under Article 101(3) ECT under the previous regime, whereas this regulation assigns to all national competition authorities the power to apply EU competition law. It also allows the competition authorities and national courts to directly apply the provisions of Article 101(3) ECT. A declaration could be issued only by the Commission, on the issue of the agreement satisfying the requirements of the Article 101(3) ECT, whereas now both the national authorities and the Commission can cooperate with one another in investigations. Primarily, Articles 101 and 102 ECT were applied under a different framework, inducing a higher involvement of National Competition Authorities, requiring companies to perform stricter self-assessments and thus increasing interaction with the legislation on a much deeper level. This in turn freed up resources of the EU and thus assigned them more power and time to assess more intense cases, as well as reducing the number of instances of abuse on many levels. It seems that from this alteration, the EU recognised the massive expansion of the Member States within the EU and the parallel increase of workload, and in turn assigned the responsibility to co-operate with competition provisions earlier in the chain. Thus, “Member States not only pursue competition policy goals but also seek to minimise the need for institutional adjustments…[and]…will try to manage as far as possible with the instruments they already possess”17 EC Merger Regulations were also revised, and the Commission published a set of guidelines of Best Practice. A new substantive test was introduced, raising the standard of anti-competitive practices to those which have a significant impediment to effective competition. This broadened the reach of the relevant articles, and again seeks to prevent anti-competitive practice from the outset, rather than allow it to occur and impose invalidations and fines. One can see an emerging pattern in which prevention of anti-competitive practices are the main aim, which reduces the workload of the EU institutions and allows its resources to be channelled to more serious instances of abuse. Attempts to come more in line with increasing technology developments have also been recognised, where block exemptions were extended to software copyright and design licensing. Again, the need to conform to emerging technological developments has been recognised as a running theme and constant necessity of EU Competition Law. One finds it difficult to find specific major changes to EU Competition Law in legislation and Treaty Articles other than those already stated. One of the main objectives of the EU, as was earlier mentioned in Article 3(1)(g) ECT18, is the execution of “a system ensuring that competition in the internal market is not distorted”. An attempt to reinforce this was suggested for the rejected Treaty Establishing a Constitution for Europe19, stating that a major goal of the EU was to be free and undistorted competition. When removed from the ECT, many feared that this would jeopardize the legal basis of free competition within the EU, despite assurances that its legal basis remained in other Treaties.20 The general discussions revealed a concern amongst the members that this may reduce the Commission’s authority to enforce EU Competition law and also provide amendments in the EU Courts relating to competition law. Considering these thoughts, a new lawful procedure on Internal Market Competition affirms that “the internal market as set out in Article 2 of the Treaty on EU includes a system ensuring that competition is not distorted”21. The Legal Service of the European Council has confirmed and issued a statement that the removal of Article 3(1)(g) ECT would not negate the rights of the legal representative to ensure that the competition in the internal market is not faint. It appears that there is a constant need to reiterate the importance and presence of competition law within the EU, whereas it has been a constant and emergent aspect of the EU for many years: “The ECT Treaty does not moreover prelude the taking account of non-market values, such as health and safety, even within internal market legislation, provided that the initial economic hurdle is met”.22 It is arguably important that the EU does not buckle under pressure to alter competition law unless necessary; the constant alteration and addition of competition law could prove to be more detrimental than beneficial: “regulative competition is tending to make European regulation more and more dense and detailed, because it is in the interests of certain Member States to introduce their own ideas into European Policy”.23 If this statement has any strength to it, it may be necessary to regulate the level of national participation and responsibilities within competition law, although the current level does not seem to threaten the content of EU Competition law to any alarming degree. The Treaty of Lisbon amending the Treaty on European Union and the EC came into effect on 1st December 2009. The Reform Treaty was signed by the EU Member States on 13th December 2007, and came into existence on 1st December 2009 as the Treaty of Lisbon. It changes the Treaty on EU (TEU, signed at Maastricht in 1992)24 and the Treaty establishing the European Community (ECT, signed at Rome in 1957). Due to these actions, the Treaty of the European Community was renamed to Treaty on the Functioning of the EU (TFEU). The Treaty of Lisbon assigned exclusive competence to the EU institutions to make directives establishing competition rules needed to ensure the function of the market of the EU. Despite this provision, it does not have any significant impact on competition law, as this concept was already provided for in the other Treaties. Does this mean that any changes to competition law are seen as unnecessary? Perhaps so; it at least seems that competition law is as developed as is necessary at this time. The closest recognition of competition law can be found in the Protocol on Internal Market Competition, which simply ensures that “the internal market as set out in Article 2 of the Treaty on EU includes a system ensuring that competition is not distorted”. It is also worth noting the introduction of the Leniency Policy in 2002, which assigns immunity and reductions in penalties to firms who co-operate with the Commission in the detection of cartels.25 This has an obvious goal; it is a form of ‘self help’ system, in which any firms who are indeed breaching competition law will be more likely to co-operate and thus eliminate their anti-competitive behavior. This is a massive resource saver for the EU Institutions and again increases the participation of companies on all levels of the EU competition law concept. Conclusion Thus it seems that the changes to competition law on a legislative basis have been rather sparse. Rather, EU competition law has progressed gradually over a long period of time, through experience, case law applications and general analysis. This is an arguable effective way of developing an aspect of the EU which is vital to its functioning, and it seems that Europe has arrived at a stage where any further development of competition law is not seen as necessary at this point in time. Rather, it seems that reinstatements of it continued existence and importance seem to be a more pressing requirement, at least for Member States. Indeed, decentralization of responsibilities, assigning more power to Member States on a national level and even businesses has aided the workload of the institutions of the EU, where a form of ‘prevention over cure’ approach has been addressed. This is particularly prominent in the birth of the Leniency Policy. But is it entirely desirable to keep competition alive in this way? Should it be monitored, or does it need to be left alone to function naturally? Critics such as Robert Bork26 believe that competition laws can have severe affects when they protect incapable competitors and lower competition in markets. It is arguable that the law should not be over-protectionist in its approach, and should be able to distinguish between organized, well-functioning businesses and those that are hopeless. Perhaps it is plausible that consumers be protected as well as competitors – there needs to be a boundary. It could be argued that the existing legislation of competition law aims to set these limits, especially in respect of case by case bases, in which the market share, cross-elasticity and other such aspects of the product and business are assessed singularly. It seems that in general, as much regulation and suitability of competition law as possible has been conducted, at least for the time being. Indeed, it is almost impossible to legislate and govern such a broad area of any aspect without some issues and problematic areas. But as to date, the changes in competition law have been sparse yet intense on a legislative level and constant yet subtle on a practical level. Bibliography Law European Union Treaties and Conventions 1. European Community Treaty (consolidated version) [2002] OJ C325/33 (ECT). 2. Single European Act [1987] OJ L169/1 (SEA). 3. Treaty of Amsterdam [1998] OJ C340/1 (ToA). 4. Treaty of Nice [2001] OJ C80/1 (TN). 5. Treaty on European Union [2002] OJ C325/5 (TEU). 6. Treaty Establishing a Constitution for Europe, [2004] OJ C310/01 (TCE). 7. Treaty of Lisbon [2007] OJ C306/01. EC Directives 8. Council Directive of 11 May 1960 for the implementation of article 67 of the Treaty [1960] OJ L43/921. 9. 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Case T-193/02 Laurent Piau v Commission of the European Communities [2005] ECR II-209 85. Case T-282/02 Cementbouw Handel & Industrie BV v Commission of the European Communities [2006] ECR II-319; on appeal Case C-202/06 [2007] ECR I-12129 86. Case T-279/02 Degussa AG v Commission of the European Communities [2006] ECR II-897; on appeal Case 266/06 (2008) OJ C171/4. 87. Case T-48/03 Schneider Electric v Commission [2006] ECR II-111; on appeal Case C-188/06P [2007] ECR I-35; 88. Case T-351/03 Schneider Electric SA v Commission of the European Communities [2007] ECR 2237; on appeal Case C-440/07 (2009) OJ C220/4. 89. Case T-340/03 France Télécom SA v Commission of the European Communities [2007] ECR II-107; on appeal Case C-202/07 (2009) OJ C141/2 90. Case T-155/04 SELEX Sistemi Integrati SpA v Commission of the European Communities [2006] ECR II-4797 on appeal Case C-113/07 (2009) OJ C113/4. 91. Case T-464/04 Independent Music Publishers and Labels Association (Impala, International Association) v Commission of the European Communities [2006] II-2289; on appeal Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala (2008) OJ C223/7. 92. Case T-109/06 Vodafone España SA and Another v Commission of the European Communities Order of 12 December 2007 (2008) OJ C51/42 93. Case T-170/06 Alrosa Company Ltd v Commission of the European Communities (2007) OJ C199/37, on appeal C-441/07. UK Law House of Lords 94. Crehan v Inntrepreneur Pub Co (CPC) and another (Office of Fair Trading and others intervening) [2006] UKHL 38 Other official documents 95. EC Commission ‘Green Paper on Damages for Breach of the EC Antitrust Rules’ COM(2005)672 assessed 14 December 2009. 96. EC Commission, ‘White Paper on Damages Actions for Breach of the EC Antitrust Rules’, COM(2008)165. assessed 14 December 2009. Books 1. A Arnull, The European Union and its Court of Justice. (Oxford University Press, USA 1999) 2. P Craig and G Burca, EU Law: Text, Cases, and Materials. (Oxford University Press, USA 2008) 3. EC Competition Law: The New Regime (PLC Magazine Jan/Feb 2004) 4. A Jones and B Surfrin, EC Competition Law: Text, Cases and Materials. (Oxford University Press, USA 2008) 5. F Leveque and H Shelanski, Merger Remedies in American and European Union Competition Law. (Edward Elgar Publishing, Inc., UK 2003) 6. M Motta, Competition Policy: Theory and Practice. (Cambridge University Press, USA 2004) 7. W Sauter, Competition Law and Industrial Policy in the EU. (Oxford University Press, New York 1997) 8. E Szyszczak, The Regulatioin of the State in Competitive Markets in the EU. (Hart, USA 2007) 9. E Szyszczak and A Cygan, Understanding EU Law. (Sweet & Maxwell, USA 2005) 10. A Windhoff-Heritier, C Knill and S Mingers, Ringing The Changes In Europe: Regulatory Competition and Redefinition of The State. (Walter de Guyter and Co., Berlin 1996) Articles 1. M Monti, European Union Competition Law: The May Day ‘Big Bang’. Freshfields Bruckhaus Deringer Briefing (May 2004) 2. M Pirrung, European Union Enlargement Towards Cartel Paradise? An Economic Analysisof The Reform of European Competition Law. Erasmus Law and Economics Review, Vol. 1, pp. 77-109 (Feb 2004) 3. W Sauter and H Schepel, ‘State’ and ‘Market’ in the Competition and Free Movement Case Law of the European Union Courts. TILEC Discussion Paper No. 2007-024 (Aug 2007) Internet pages 1. http://ec.europa.eu/competition/ Read More