Volume 10 - Issue 1
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Competition Law Review - Volume 10 Issue 1
Editorial - ‘Competition law and the Courts’ in view of the Interface between Law and Economics
One of the criticisms against the new rules applicable to the granting of State aid to finance the provision of services of general economic interest (SGEI) in the ‘Almunia package’ is that enforcement is likely to be their weakest point. Similarly, in the more general setting of the ‘private’ enforcement of State aid rules, the 2006 Study on the Enforcement of State Aid Law at National Level recommended that the European Commission create a common minimum standard of remedies applicable in all EU jurisdictions, stressing that ‘one possible means of creating such a standard would be to adopt a remedies directive for State aid cases, which could be modelled on the remedies directive for procurement cases’. Building upon these considerations, the extent to which the existing remedies within the system for the enforcement of EU public procurement rules provide an effective platform to enforce EU State aid rules, particularly those for the financing of SGEI, before public procurement review bodies and courts is assessed. The paper describes the main groups of cases where public procurement litigation ‘phagocytises’ State aid considerations. It then proceeds to explore the viability, from an EU law perspective, of configuring public procurement review bodies and courts as ‘State aid courts’ for the purposes of the simultaneous enforcement of both sets of rules in a single setting of ‘private’ litigation. It also submits that using the public procurement system in this way provides effective remedies for the enforcement of the Almunia Package for the financing of SGEI, and adds consistency in terms of harmonisation of the material rules to be applied.
EU competition law decisions and enforcement structures at both the supranational and national levels have increasingly been subject to intensified judicial scrutiny by the Court of Justice of the European Union. As a result, different and comprehensive supranational judicial review standards, both guiding and structuring EU competition law, have simultaneously emerged across several enforcement levels. This paper identifies those different standards and relates their simultaneous emergence to modernisation debates in, and the developing more economic approach towards, EU competition law enforcement. In particular, the paper argues that differentiated comprehensive standards better allow the Court to construct the legal boundaries within which economic arguments can effectively be translated into justiciable claims as a matter of EU competition law.
The recovery remedy as administered by the European Commission in case of incompatible but already granted state aid is currently understood and substantiated in a way that allows Member States to fulfill its recovery obligations by merely asking a refund of the state aid amount plus interest from the aid beneficiary. However, it is argued that “recovery” in this current one-dimensional interpretation and substantiation falls short in contributing to the achievement of the economic outcome pursued by EU state aid law. It is argued that “recovery” should be perceived as a multi-dimensional remedy, leaving room to tailor this remedy in view of the situation in order to achieve the economic outcome pursued by EU state aid law, which is efficiency and welfare.
The problems of defining the limits to the application of national procedural rules and the alternate emergence of public and private enforcement of EU competition law lie at the root of the strand of case law of the Court of Justice of the EU regarding antitrust damages actions. While this case-law seems to encourage private claimants and to call national judges to take on new and delicate responsibilities, the new package presented by the Commission, which should be aimed at strengthening private enforcement, is based on a rather conservative approach, privileging the role of public enforcers. It has to be admitted that in a number of cases the latter are in a better position to detect and deal with competition law infringements; moreover, the evolution of the case-law of the Court of Justice, in line with the basics of the EU legal system, paves the way for a step-by-step approach to a greater role for public enforcement, including collective litigation (thus only partially and gradually imitating the US model). Integrating public and private enforcement seems the best way forward and hopefully the draft Directive on antitrust damages actions will be amended in the course of the legislative process with a view to favouring such an integration.
Case Comment – Case C-557/12 Kone AG and Others v ÖBB Infrastruktur AG
S Vande Walle, Private Antitrust Litigation in the European Union and Japan (Maklu, 2013); D McFaden, The Private Enforcement of Competition Law in Ireland (Hart Publishing, 2013); and, D Ashton & D Henry, Competition Damages Actions in the EU (Edward Elgar, 2013)
• ©2003-2011 Angus MacCulloch & Andrew Matthews •