A constitutional analysis of multijurisdictional conflicts in the EU legal order confirms that diversity is possible in EU competition law

• Main Author: Tavares, Mariana
• Other Authors: Townley, Christopher Paul ; Turk, Alexander Heinrich
• Published: King's College London (University of London) 2018
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.754958

Is diversity in European Union (EU) competition law possible from a constitutional point of view? This question has become even more contentious after the Treaty of Lisbon. Under Article 3(1)(b) TFEU, establishing the competition rules necessary for the functioning of the internal market is within the exclusive competence of the Union. Under Article 2(1) TFEU, when the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or when implementing Union acts. The exclusive nature of the Union’s competence in the area of competition is controversial. The majority of the authors criticise the policy choice of EU exclusive competence, but seem to accept that diversity in EU competition law is excluded under the Treaties. This thesis, however, challenges that conclusion. First it is submitted that EU system of competences as introduced by the Treaty of Lisbon the competence to legislate on substantive principles of EU competition law remained shared. It will be seen that under this system, Article 3(1)(b) TFEU excludes much more than it includes. Secondly, it is showed that the principles of direct effect, primacy of EU law and the fundamental principle of ne bis in id allow for diversity in EU competition law. These principles certainly have the potential to affect Member States’ sphere of competence. However, it will be seen that they do not exclude Member States’ competence in the area of competition. On the contrary, diversity in European Union competition law is allowed. There are nonetheless several bottlenecks to the recognition of this diversity that should be removed, and some other potential obstacles that should be avoided. This thesis does not ask the question of whether diversity in EU competition law is desirable, and it also does not discuss the limits to the application of divergent national competition laws stemming from the internal market freedoms. These questions complete the picture of the scope for diversity in EU competition law and are identified as avenues for future research work.