Seminar 4: State Action and EU competition Law (25 October 2012)
This seminar focuses on the scope of the doctrines of anticompetitive state action, with a special focus on the overlap between them and the rules applicable to the internal market. It is the reverse side of the issues we looked at in seminar 3.
Case C-2/91 Meng  ECR I-5791 (plus AG Tesauro’s Opinion)
Case C-198/01 Consorzio Industrie Fiammiferi  ECR I-8055
Case C-323/93 La Crespelle  ECR I-5080
Case T-169/08 Greek Lignites judgment of 20 September 2012
Cruz ‘The State Action Doctrine’ in Amato & Ehlermann (eds) EC Competition Law – A Critical Assessment (2007)
Edward and Hoskins “Article 90, [now Art 106] deregulation and EC Law”  32 Common Market Law Review 157
1. The first two cases and the Cruz article address one theory by which EU competition law applies to state action. Points to consider are: (a) what is the scope of this doctrine? (b) what is the effect of this doctrine: on liability (who is liable: the state, the undertakings?); on the effect of a finding of breach? (c) what happens when a state measure falls outside the scope of this rule, is it necessarily caught by the internal market rules? (d) reversing the question, why have this doctrine when we have rules regulating state measures in the internal market rules?
2. The next two cases deal the role of Article 106(1) read together with Article 102. Edward and Hoskins try and explore the theoretical basis of the early case law; I have selected one odd case (Crespelle) and the newest judgment (Greek Lignites). Consider: (a) given the scope of the state action doctrine in Q.1, why do we need Article 106(1)? Could we not just slot these cases under state action? (b) when Art 106(1) cannot apply, like in the two cases extracted, what is the scope for the free movement rules? (c) if you were the Commission, how would you deal with the Greek Lignites case? Can you still challenge the state measure?
3. More abstractly, is there a gap in the regulatory framework when it comes to anticompetitive state action? Do we have an incomplete economic constitution?
If you are new to this, most general EU Law books have some discussion. Mine is in Chalmers et al European Union Law: Text and Materials 2nd ed (2010) ch.24. See also Dashwood et al Wyatt and Dashwood’s European Union Law 6th ed (2011) ch.26 parts XI and XIII,
Pescatore “Public and Private Aspects of European Competition Law” (1987) 10 Fordham International Law Journal 373
Marenco “Competition Between National Economies and Competition between business: a reply to Judge Pescatore” (1987) 10 Fordham International Law Journal 163
Marenco “Government action and anti-trust in the US: What lessons for Community law?” (1987) 14 LIEI 1
Gagliardi “United States and European Union antitrust versus state regulation of the economy: is there a better test?” (2000) 25 European Law Review 353
Szoboszlaj Delegation of State Regulatory Powers to Private Parties – Towards an Active Supervision Test (2006) 29 World Competition 73
Sauter and Schepel State and Market in European Union Law (Cambridge University Press, 2009) chs.4 and 6. You can also download the working paper on which this book is based at: Sauter, Wolf and Schepel, Harm, ‘State’ and ‘Market’ in the Competition and Free Movement Case Law of the EU Courts (August 2007). TILEC Discussion Paper No. 2007-024. Available at SSRN: http://ssrn.com/abstract=1010075