Jagiellonian University Kraków
The Centre for European Studies

The EU Competition Policy
Strategy of Mediation, Impediment & Concentration

by
Heiko Bubholz

Prepared for:
EU Economy in the Global Context

Kraków, 06 February 2002

Table of Content

Table of Content ... II
1. Introduction ... 1
2. Terminology and Definitions ... 2
    2.1 Goals of European Competition Policy ... 2
    2.2 Applicability of the European Competition Law and Policy ... 2
3. EU Competition Policy ... 3
    3.1 Strategy of mediation ... 4
    3.2 Strategy of impediment ... 7
    3.3 Strategy of concentration ... 8
4. European Competition Policy and Merger control (Fusionskontrolle)  ... 8
5. Critical issues of the European Competition Policy ... 10

Abbreviations
[...]

1. Introduction
All European Treaties express an attitude towards integration, which first time had been formulated and later on realised with the Schuman Plan. From that point on, the economic integration evolved to its today‘s magnitude in form of a Common Market and the historical move towards the implementation of €-currency in these days. The advantages of a Common Market had ever been understood regarding the potentially continuing and sustaining growth, guaranteeing a relatively high standard of living in wide area of the Member States of the European Union. Further, the existence of the integrated market may lead to a more or less homogenous and harmonic development of the relations of the Member States and the union’s periphery. The notion that unfair or restraining acts and behaviour will not go along with the liberal minded treaties, and will therefor be prohibited, may be found already in the Treaty of the European Coal and Steal Community (ECSC) from 1952. According to the Single European Act of 1986, an internal market shall be established, characterised by the free movement of goods and services, persons and capital. Article 10 of the TEU requests the Member States „to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community”. Correspondingly, the Member States “shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”. From these less restrictive formulations result some obligations for the Member States in order to assure a free market and liberal competition¹. In contrast to some other but less “communised” field of European policies this is drawn to that extent that national competition regulation are supposed to be adapted, or even abolished, to ensure the jurisdictional unity and equality of competition throughout the European Union (EU) ².

The foundation of European competition law results from Article 81 TEC (restriction of competition) and Article 82 TEC (abuse of dominating position). Article 83 to 89 TEC concern additional regulations, which might not be covered with this paper. According to EMMERICH and despite some more or less spectacular decisions made by the respective competition authorities one can hardly assert that a unique and workable European competition policy is in existence now³.

2. Terminology and Definitions
2.1 Goals of European Competition Policy
The main goal of the Treaties of the European communities / European Union is the promotion of a harmonic development within the region of the Member States. Competition Policy is therefore a principal mechanism. To secure a pure competition a Common Market is needed. The protection of a workable and sustainable competition serves not only to gain international competitiveness, but also to achieve the efficient allocation of resources and formulation of incentives. European competition authorities stress that their policy is not based on a concept of laisses-faire. Rather it shall enforce a somewhat wider kind of economical equality, which is surpassing national horizon(s)⁴. To summarise: The unification of former divided national markets, formerly characterised through deep routed differences, to one huge market area became only feasible after rules and certain ways of conduct had been established5. Yet, European Union is endeavouring to implement this kind of rules regarding their competition policies within the region. Concerns may arise when supranational administrated competition policy opposes with rather nationalised Industrial Policy6. In the nowadays Europe and according to contemporary political issues such incidents might ran counter or at least mix up with the aims of the Common Market. European Structural Policy makes this evidence particularly visible. Competition Policy therefore ought to prevent the “empowerment” of the markets in this regard.

[...]

1 Schmidt/Schmidt (1997), p. 3.
2 Zuleeg (1997), p. 129.
3 Emmerich (1994), p. 512.
4 Kommissionen der Europäischen Gemeinschaften (1982), p. 11.
5 Kommission der Europäischen Gemeinschaften (1980), p. 9.
6 Article 157 TEC.