Part II
European Law: Enforcement
Content
1.
Enforcement Actions against Member States
2.
Actions Against the Union: Failure to Act
3.
Preliminary Rulings I: General Aspects
4.
Damages Actions: Union Liability
The European Treaties establish a dual enforcement mechanism for European Union law. Apart from decentralized enforcement by national courts, the Union legal order also envisages centralized enforcement of European law in the European Courts. The judicial competences of the European Courts are enumerated in the section of the Treaty on the Functioning of the European Union dealing with the Court of Justice of the European Union (Table 8.1).
Four classes of judicial actions will be discussed in this chapter. The first class is typically labelled an ‘enforcement action’ in the strict sense of the term. This action is set out in Articles 258 and 259 TFEU and concerns the failure of a Member State to act in accordance with European Law (Section 1). The three remaining actions ‘enforce’ the European Treaties against the Union itself. These actions can be brought for a failure to act (Section 2), for judicial review (Section 3), and for damages (Section 4).
Cases
Figures
Extra Materials
Useful websites
Further Reading
A. Albors-Llorens, ‘Remedies against the EU Institutions after Lisbon: An Era of Opportunity’ (2012) 71 Cambridge Law Journal 507
S. Andersen, The Enforcement of EU Law (Oxford University Press, 2012)
S. Balthasar, ‘Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: The New Article 263(4) TFEU’ (2010) 35 EL Rev 542
K. Gutman, ‘The Evolution of the Action for Damages against the European Union and its Place in the System of Judicial Protection’ (2011) 48 CML Rev 695
K. Lenaerts, I. Maselis and K. Gutman, EU Procedural Law (Oxford University Press, 2014)
L. Prete and B. Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 CML Rev 9
J. Usher, ‘Direct and Individual Concern: An Effective Remedy or a Conventional Solution?’ (2003) 28 EL Rev 575
A. Ward, Judicial Review and the Rights of Private Parties in EU Law (Oxford University Press, 2007)
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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