21 - EU competition law and European private law

Summary

Introduction

EU competition law regulates the behaviour of firms and can also apply to the actions of Member States. For the purposes of this chapter the most relevant provisions are Article 81 EC [Article 101 TFEU] (prohibiting agreements between undertakings that restrict competition) and Article 82 EC [Article 102 TFEU] (prohibiting dominant undertakings from abusing their position). These two Treaty rules may be administered by national competition authorities (for example, the Office of Fair Trading in the United Kingdom), the European Commission and private actors, who may seek damages, injunctions or other remedies in the national courts. It is worthy of note that the Europeanisation of domestic competition law has been more successful than the creation of a European private law system. First, all Member States have implemented national competition rules that are broadly analogous to Articles 81 and 82 [Articles 101 and 102 TFEU], and some have even gone as far as to ensure that these national provisions are interpreted in a manner consistent with EU competition law (for example, the United Kingdom in section 60 of the Competition Act 1998). Second, Regulation 1/2003 provides that where a national authority (court or competition agency) applies national law to an agreement that may also infringe Articles 81 and 82 [Articles 101 and 102 TFEU], it must apply the EU competition provisions in parallel and the application of national law may not be stricter than the application of Community law. So an agreement that does not infringe Article 81[Article 101 TFEU] cannot be found to infringe national competition law. Third, national courts are bound by decisions of the Commission: ‘when national courts rule on agreements, decisions or practices under Article 81 or Article 82 [Articles 101 and 102 TFEU] of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission’ (Article 16(1), Regulation 1/2003, codifying Masterfoods Ltd v. HB Ice Cream Ltd (Case C-344/98)). So a finding by the Commission that an undertaking has infringed Article 81 must be followed in a national court if a person seeks damages against that undertaking.