Competition Law Intersection (Fall 2012)
This course is based on a research project I wish to carry out this year, and revolves around the following question: how is the interaction between competition law (specifically, but not exclusively, EU competition law) and other fields of law managed? Competition law rules cut across a range of other legal relations, but to date there has not been a systematic review of these intersections and thus no study of whether there is a general approach, or a theory about how to manage the intersection. The most generally accepted position is that if there is a clash between competition law and another norm, then competition law prevails, thus a contract may be lawful under national contract law, but declared void for infringing Article 101 TFEU. My question is why is this generally accepted? Is it simply as a result of the supremacy of EU Law? Or is there a more fundamental reason why competition law takes priority, for example is ‘competition’ a constitutional norm that trumps other considerations that have lesser value? Contrariwise, the other side of the coin might also be worth exploring: a practice lawful under competition law might well be challenged under other legal norms. But might this be undesirable at times? Might the enforcement of another set of rules have anticompetitive effects that we might worry about?
Perhaps more generally we might ask what means of managing the intersection between competition and other laws might be found, one that accommodates other laws and their objectives.
This is a seminar, not a lecture course. Participants are expected to carry out the readings in advance and take part in discussion. I will normally lead with an introduction before leaving the floor open for discussion. Participants are asked to submit a brief reaction paper one day before each seminar. A reaction paper is a brief essay, not more than 500 words, identifying issues/points for discussion that arise from the readings set.
The preponderance of the reading material is available on line.
Beginners: the course assumes some knowledge of competition law, but I think it will be possible to follow the course even if you are new to the field. When possible I will select some preliminary readings for those that have less background knowledge. You might find it helpful to read the competition law sections of an introductory EU Law book. My chapters in Chalmers et al European Union Law: Text and Materials 2nd ed (CUP 2010) are reasonably accessible, as are those in Arnull et al Wyatt and Dashwood’s European Union Law 6th ed (Hart 2011).