Part II
European Law: Enforcement
Content
1.
Direct Applicability and Direct Effect
2.
Direct Effect of Primary Law
3.
Direct Effect of Secondary Law: Directives
4.
Indirect Effects Through National and European Law
Classic international law holds that each State can itself determine the relationship between its ‘domestic’ law and ‘international’ law. Two—constitutional—theories thereby exist: monism and dualism. Monist States make international law part of their domestic legal order. International law will here directly apply as if it were domestic law. By contrast, dualist States consider international law separate from domestic law. International law is viewed as the law between States; national law is the law within a State. While international treaties are thus binding—externally—‘on’ States, they cannot be binding ‘in’ States. International law here needs to be ‘transposed’ or ‘incorporates’ into domestic law and may, at most, have indirect effects through the medium of national law. For an illustration of the two theories see Figure 5.1.
Did the European Union leave the choice between monism and dualism to its Member States? Section 1 examines this question in greater detail, and we shall see there that the Union insists on a monistic relationship between European and national law. This, in particular, means that the Union will itself determine the effect of its law in the national legal orders. The remainder of this chapter then explores the doctrine of direct effect for European law. Section 2 starts out with the direct effect of the European Treaties. The European Treaties are, however, mainly framework treaties; that is: they primarily envisage the adoption of European secondary law and especially EU legislation. This secondary law may take various forms. These forms are set out in Article 288 TFEU. The provision defines the Union’s legal instruments, and states:
The provision acknowledges three binding legal instruments—regulations, directives, and decisions—and two non-binding instruments. Why was there a need for three types of binding instruments? The answer seems to lie in their specific—direct or indirect—effects in the national legal orders. While regulations and decisions were considered to be Union acts that would contain directly effective legal norms, directives appeared to lack this capacity. Much of the constitutional discussion on the direct effect of European secondary law has consequently concentrated on the direct effect of directives. Section 3 will look at them specifically in much detail. Finally, Section 4 analyses the doctrine of indirect effect within the Union legal order.
Cases
Figures
Extra Materials
Useful videos
Useful websites
Further Reading
P. Craig, ‘Once Upon a Time in the West: Direct Effect and the Federalisation of EEC Law’ [1992] 12 Oxford Journal of Legal Studies 453
A. Dashwood, ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity’ [2006/07] 9 Cambridge Yearbook of European Legal Studies 81
S. Drake, ‘Twenty Years after Von Colson: The Impact of “Indirect Effect” on the Protection of the Individual’s Community Rights’ (2005) 30 EL Rev 329–48
P. Pescatore, ‘The Doctrine of “Direct Effect”: an Infant Disease of Community Law’ [1983] 8 EL Rev 155
S. Prechal, Directives in EC Law (OUP, 2006)
A. Schrauwen & J. Prinssen, Direct Effect: Rethinking a Classic of EC Legal Doctrine (Europa Law Publishing, 2004)
R. Schütze, ‘The Morphology of Legislative Power in the European Community: Legal Instruments and Federal Division of Powers’ [2006] 25 YEL 91
J. Steiner, ‘Direct Applicability in EEC Law – A Chameleon Concept’ [1982] 98 Law Quarterly Review 229–248
Content
1.
Past: Britain as an ‘Awkward Partner’?
2.
Present: Withdrawing under Article 50 TEU
3.
Future I: (Possible) Trade Agreements with the Union
4.
Future II: A ‘Hard’ Brexit and the ‘WTO Model’
The British exit from the European Union (‘Brexit’) has occupied the Union for much of the last four years. For the first time since its founding, a Member States decided to deliberately dissociate itself from European integration in an attempt to regain sovereignty and independence.
Why and how did this happen; and may it happen to other Member States of the Union? With several severe crises afflicting the Union in the past decade—especially the financial and the migration crises—the question of whether Brexit constitutes an isolated case or a signal for an era of European disintegration has legitimately been posed.
This chapter, however, seeks to pursue a less ambitious task: it aims to explore the past, present, and future of the British exit decision. Section 1 begins by offering a brief historical overview of the past tensions between the United Kingdom and the European Union in an attempt to better explain the ‘special’ unease with which the United Kingdom viewed European integration. A former imperial and global power, its political self-understanding indeed differed from the very beginning from that of other Member States. Section 2 explores the ‘present’ withdrawal process under Article 50 TEU and the ‘Withdrawal Agreement’. Section 3 tries to look into the future by analysing four possible EU-UK trade relationship options. Will both parties decide to create a common customs union or will they conclude a ‘Canada Plus’ agreement? A future trade deal is currently being negotiated; yet the option of a ‘hard Brexit’ remains. This option is discussed in Section 4.
Figures
Content
1.
The “Market”: Product and Geographic Dimensions
3
1. The “Market”: Product and Geographic Dimensions 3
2.
Market Dominance
5
2. Market Dominance 5
(a) General Considerations
5
(b) Collective Dominance
8
3.
Abuse of Market Dominance
10
3. Abuse of Market Dominance 10
(a) Article 102 [2] (a) and “predatory pricing”
(a) Article 102 [2] (a) and “predatory pricing” 12
12
(b) Article 102 [2] (b) and “refusal to supply”
(b) Article 102 [2] (b) and “refusal to supply” 14
14
(c) Article 102 [2] (c) and “discretionary pricing”
(c) Article 102 [2] (c) and “discretionary pricing” 16
16
(d) Article 102 [2] (d) and “tying or bundling”
(d) Article 102 [2] (d) and “tying or bundling” 18
18
4.
Objective Justification: Apparently Abusive Behaviour?
20
4. Objective Justification: Apparently Abusive Behaviour? 20
The second pillar of EU competition law focuses on the – bad – behaviour of a single undertaking. For Article 102 does not require the collusive behaviour of two or more economic actors. It sanctions the unilateral behaviour of a dominant undertaking where this behaviour amounts to a “market abuse”. The provision states:
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Article 102 encapsulates a number of fundamental choices with regard to the Union’s economic constitution. For by concentrating on a “dominant position within the internal market”, it goes beyond pure monopolies and is thus wider than its American counterpart.1 But by insisting on market abuse, it is also narrower than the American equivalent. For unlike the latter, Article 102 will not directly outlaw market structures. Dominance is not itself prohibited – only the abuse of a dominant position.
Like Article 101, the prohibition of market abuse will however only apply where an abusive behaviour “may affect trade between Member States”. Yet when this abuse is shown to have Union-wide effects it appears to be prohibited as such. For Article 102 has – unlike Article 101 – no “third paragraph” exempting abusive behaviour on the ground of its pro-competitive effects.
In sum: a violation of Article 102 implies the satisfaction of only three criteria. First, we must establish what the “market” is in which the undertaking operates. Second, the undertaking must be “dominant” within that market. And third, the undertaking must have “abused” its dominance.4 All three aspects will be discussed below (a–c). Finally, we will analyse whether the Union legal order has – despite the absence of an express exemption – allowed for “objective justifications” of abusive conduct (d).
Chapter "Competition Law II: Abuse"
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