Seminar 3: Convergence Between Competition Law and Internal Market Law (18 October 2012)
The next two seminars are linked, so there is likely to be some overlap in the concepts and ideas, as it is not easy to divide the topic up in a tidy manner. There are three general legal issues for consideration:
- First, how far the approach to (a) identifying the application of competition law or of the internal market rules (e.g. free movement of goods) and (b) justifying a restriction on competition or on the free movement of goods differs between the approach taken in internal market law and competition law.
- Second, to what extent are the EU’s internal market rules, which are addressed to states, also applicable to firms or associations of firms. (This is the so-called horizontal effect of internal market law.)
- Third, how far the do the EU’s competition rules also apply to anticompetitive state action?
As you might have noted, the second and the third issue are mirror images of each other: the former asks how far rules addressed to states bind private parties; the latter asks how rules addressed to private parties bind states. In this seminar we look at the first and second issue, in the next one we turn to the third and the first again.
There is also some overlap with some later seminars, for example Prechal and de Vries speak of Viking Line, which we will look at later on when considering labour law.
K. Mortelmans ‘Towards Convergence in the Application of the Rules on Free Movement and Competition?’ (2001) 38 Common Market Law Review 613
S. Prechal and S. de Vries ‘Seamless web of judicial protection in the internal market?’ (2009) 34 European Law Review 5
Case C-281/98 Angonese v Cassa di Risparmio di Bolzano SpA  ECR I-4139
Case C-519/04 P Meca-Medina and Majcen v Commission  ECR I-6991 (time permitting, have a look at the judgment of the Court of First instance as well: Case T-313/02 Meca-Medina and Majcen v Commission  ECR II-3291)
Case C-171/11 Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW), judgment of 12 July 2012. (Please read also the Advocate General’s Opinion!)
Is there any good reason for aligning the approaches under the internal market rules and the competition rules? Any good reasons for keeping them separate?
What lesson, if any, does Meca-Medina hold for the application of the internal market and the competition rules? Do you understand what the restriction of competition was in this case?
Why is the horizontal effect of the internal market provisions so contested? Is the answer in Angonese wider than the one in Fra.bo, and if so, is it for good reason?
Why did the ECJ in Fra.bo decline to answer the competition law question? Or, putting it another way, is there any reason why the court should have chosen to tackle the internal market question before the competition question? How would you answer the competition question? And how does your answer compare to the assessment made by the ECJ under the free movement of goods provisions?
An EUI thesis was written that looks over the issues in these two seminars: J. Baquero Cruz Between Competition and Free Movement (Hart Publishing, 2002)
S. Weatherill, ‘Anti-doping revisited – the demise of the rule of ‘purely sporting interest’?’  European Competition Law Review 645
Case C-309/99 Wouters  ECR I-1577
If you are new to this stuff:
The Prechal and de Vries paper is probably an easy place to start, the Mortelmans is a bit less clear.
On general internal market law issues, have a look at any European Union textbook, for example Wyatt and Dashwood’s European Union Law chapter 14, sections I- VII have an accessible introduction to the internal market rules.