Part II
European Law: Enforcement
Content
1.
The European Perspective: Absolute Primacy
2.
Supremacy’s “Executive” Nature: Disapplication, not Invalidation
3.
National Challenges I: Fundamental Rights
4.
National Challenges II: Competence Limits
Sincere European law is directly applicable in the Member States, it must be recognised alongside national law by national authorities. And since European law may have direct effect, it might come into conflict with national law in a specific situation.
Where two legislative wills come into conflict, courts need to know how these conflicts are to be resolved. The resolution of legislative conflicts here requires a hierarchy of norms. Modern federal States typically resolve conflicts between federal and State legislation in favour of the former: federal law is supreme over State law. This centralized solution has become so engrained in our constitutional mentalities that we tend to forget that the decentralized solution is also possible: local law may reign supreme over central law. Each federal order must thus determine which law prevails. The simplest primacy format is one that is absolute: all law from one legal order is superior to all law from the other. Absolute primacy may however be given to the legal system of the smaller or the bigger political community. Between these two extremes lies a range of possible nuances.
When the Union was born, the European Treaties did not expressly mention the primacy (or ‘supremacy’) of European law. Did this mean that primacy was a matter to be determined by each national legal order; or was there a Union doctrine of primacy? We shall see in this chapter that there are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not, however, shared by the Member States. According to the national perspective, the primacy of European law is relative. National challenges to the absolute primacy of European law are thereby traditionally expressed in two contexts. First, some Member States—in particular their supreme courts—have fought a battle over human rights within the Union legal order. They claim that European law cannot violate national fundamental rights. The most famous battle over the primacy of European law in this context was the conflict between the European Court of Justice and the German Constitutional Court. A similar contestation occurred in a second context: ultra vires control. In denying the Union an unlimited competence to determine the scope of its own competences, Member States here insisted that they have the last word with regard to the competence limits of the Union.
This chapter analyses the primacy doctrine within the Union legal order in four steps. We shall start with the European doctrine of absolute primacy in Section 1, before looking at the effect of the principle on national law in Section 2. The subsequent sections, by contrast, analyse the national perspective on the primacy principle in the form of two challenges to the primacy of European law.
Section 3 explores the national claim asserting the relative primacy of European law in the context of fundamental human rights. Section 4 extends this analysis to the contested question of who is the ultimate arbiter of the scope of the Union competences.
Cases
Figures
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Extra Materials
No extra materials available for this chapter.
Useful websites
Further Reading
K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford University Press, 2001)
P. Craig, ‘Britain in the European Union’ in J. Jowell and D. Oliver (eds.), The Changing Constitution (Oxford University Press, 2011), 102
B. Davies, Resisting the European Court of Justice: West Germany’s Confrontation with European Law 1949–1979 (Cambridge University Press, 2014)
U. Everling, ‘The Maastricht Judgment of the German Federal Constitutional Court and its Significance for the Development of the European Union’ (1994) 14 YEL 1
R. Kovar, ‘The Relationship between Community Law and National Law’ in EC Commission (ed.), Thirty Years of Community Law (EC Commission, 1981), 109–49
M. Kumm, ‘Who Is the Final Arbiter of Constitutionality in Europe’ (1999) 36 CML Rev 351
W. Sadurski, ‘“Solange, Chapter 3”: Constitutional Courts in Central Europe –Democracy – European Union’ (2008) 14 ELJ 1
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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