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Towards a convergence of the application of the rules on free movement and competition?
K.J.M. Mortelmans
A recent communication of the European Commission may clarify the purpose of this article. In the UEFA case the Commission took the view that the notified rules on competitions for club teams could be qualified as a decision of an association of undertakings. "Taking into account what the Court of Justice has recognised in the Bosman Case as legitimate objectives in the view of the considerable social importance of football in the Community, the Commission considers that the restrictions imposed by the rule may escape the prohibition laid down in Article 81(1) of the Treaty. In order to establish whether this preliminary conclusion can be upheld or not, the Commission has to know if such restrictions are limited to what is necessary to preserve the integrity of the UEFA club competitions and to ensure the uncertainty as to results." [1]
The Commission bases this preliminary view on the Court's Judgment in the Bosman case. [2] In this Judgment the Court confined its analysis to the provisions on the free movement of workers. Unlike the Advocate General it did not discuss the rules on competition. The Commission now uses the Court's interpretation in one area (free movement) in order to determine its position in another area (competition).
This convergence between the rules on free movement and the competition rules will be further analyzed in this article. The discussion will concern both the provisions containing prohibitions, such as Articles 28 and 81(1) EC, and the exceptions to these prohibitions, such as Articles 30 and 81(3) EC.
Following a number of observations on convergence in general, first the convergence between the prohibitions and next the convergence between the exceptions in the fields of free movement and competition will be discussed. The article will end with a number of conclusions.
The application of Article 21(3) of the Merger Regulation on the protection of legitimate interests will not be dealt with as there as yet not much legal practice on this provision. [3]
The Commission's policy on state aids will also, for the greater part, be left out of consideration. This subject was dealt with in detail in an article by Gyselen. [4] Taking environmental interests as his point of departure he examines the convergence between the policies on competition and state aids.
In the present article the main emphasis will be on the convergence between the provisions on competition and free movement. The Commission's policy provides a number of indications in this respect, as is demonstrated by the UEFA case mentioned above. However, in most cases the Commission in dealing with a given problem will base its approach on only one of the two policy areas: either free movement or competition. Then there will be no question of convergence.
Most information on convergence is to be found in case law of the Court of Justice, particularly in preliminary rulings. This type of cases gives the national courts the opportunity to submit a mix of questions concerning both the provisions on free movement and competition. Well known examples of this are provided by Dassonville, Leclerc and Banchero. [5]
It is quite clear from the Court's case law, especially in the field of sport, that the Court is not (yet) inclined to adopt a total approach on all aspects of the cases submitted to it (and therefore providing answers to all questions referred). Usually, for procedural and other reasons, the Court confines its answer to a number of questions. Questions not answered by the Court in its Judgment are often dealt with in the opinions of the Advocates General. [6] Some national courts are similarly not inclined to submit questions on other prohibitions which may be relevant to the case before them. [7]
Topicality of the subject
A number of recent developments will lead to the convergence process becoming part of the agendas of the (national) authorities and courts.
First, non-economic interests (culture, education, public health, environment, sport etc.) are increasingly being given a place in the EC-Treaty. The policies conducted by the Community in these fields together with the Member States, in many cases on the basis of the principle of subsidiarity, can be characterised by the term: horizontal and flanking policies. [8] Depending on the subject matter, the EC Treaty provides the institutions with powers of varying intensity in these fields.
On the whole a distinction can be made between two types of policy. The first type of Community policy provides for incentive measures and regulatory measures (harmonisation). This is the case in respect of environmental protection and, to a certain extent, public health. [9] Community policy in these areas leads to the adoption by the Community institutions of directives and regulations, so that here the Community follows a regulatory approach. [10] The effect of these Community measures is that, given the Tedeschi case law [11] and provided that stricter national measures do not exist [12], there can be no violation of the provisions on free movement: the national interests have been 'communautarised'. The second type of Community policy exists in certain areas where the Community does not have the power to adopt harmonisation measures. This applies to sport, education and culture [13] and to a certain degree also for public health. [14] National policies in these areas will therefore continue to be affected by the provisions on free movement. [15]
Second, the Community has recently started propagating the use of agreements concluded by public authorities with the economic sector concerned (hereafter: covenants) for certain aspects of environmental policy in particular. [16] The use of these instruments put the competition rules in a different perspective. The companies which conclude such covenants will argue that they are eligible for an exemption under Article 81(3) EC.
Third, competition authorities are being confronted more and more with agreements in areas where non-economic interests are involved: sport, culture, public health, environment. This does not only affect the Commission. In a number of cases, national competition authorities can also be confronted with these issues in cases which, in the Commission's terminology, should be "decentralised". Although the public health sector is the clearest example of this, certain covenants relating to the environment and agreements in the field of sports may fall within this category. [17]
Fourth, reference may be made to the modernisation of the Community's competition policy. Lifting the exclusiveness of the Commission's power to decide on the applicability of Article 81(3) EC will result in national courts having to deal with the directly effective provisions on free movement and competition. [18]
1. Introductory remarks on convergence
With the exception of the provisions on the free movement of capital, the Treaty provisions subject to the convergence analysis in this article have never been amended since the entry into force of the EEC Treaty in 1958. [19]
Nevertheless, the Member States as High Contracting Parties have approved a number of policy integration provisions, such as Article 6 EC on environmental protection and Article 151(4) EC on culture. [20] In a number of declarations, adhered e.g. to the Treaties of Amsterdam and Nice, they have also emphasised the importance of services of general interest and the social importance of sport. As is emphasised explicitly in the Declaration on Article 16 EC on public services, these declarations are applied with full respect for the case law of the Court of Justice. [21]
Until the High Contracting Parties adapt the relevant provisions in the EC Treaty the convergence process will be governed by preliminary questions submitted to the Court of Justice by national courts and by the competition policy conducted by the European Commission under the scrutiny of the European Courts.
Convergence between the four freedoms: a breeding ground
The study of the convergence between the provisions on free movement and the rules on competition follows more or less naturally from the convergence which has been partially accomplished between the four freedoms inter se. Although this latter process is still in progress, the main direction of this development is apparent in the case law of the Court of Justice. These developments are analysed and systematised in legal writing. [22] The basic prohibitions of restrictions of free movement apply both to measures which make a distinction between national and foreign goods, persons, services and capital and national measures which do not make this distinction, although these measures may be justified under the exceptions laid down in the Treaty or the exceptions which have been recognised under the "rule of reason". In interpreting the basic prohibitions on free movement and the exceptions the Court has always sought to strike a balance. [23] The clearest example of this approach is the Court's Judgment in Cassis de Dijon. In this case the extension of the basic prohibition of Article 28 EC (to measures which applied without distinction) was compensated by the new "rule of reason" exceptions. [24] However, the balance struck by the Court between the basic rule and the exception is dynamic as is apparent from inter alia its Judgment in the Keck Case. In this case the Court determined that certain categories of measures which apply indistinctively to national and foreign goods do not come within the scope of Article 28 EC. The dynamic nature of the balance between basic prohibitions and exceptions is also demonstrated by the still unsettled case law on the possibility of invoking rule of reason exceptions in respect of discriminatory measures. [25]
Nevertheless, there are still differences in the approaches in respect of the provisions on free movement. In part, these are related to the particular characteristics of the various freedoms: a person, after all, has greater (incalculable) value than a good; and where goods are tangible, services are not. In part these differences are due to the fact that the Court has not yet had the opportunity to extend its case law in respect of one freedom, e.g. on the free movement of goods, to another, e.g. the free movement of capital, or that it is reticent to take this step. This is quite evident where it is called upon to apply the Keck rule to the other freedoms. [26]
Be that as it may, the convergence within the framework of one policy area, free movement, provides a suitable breeding ground for starting a process of convergence between two policy areas: free movement and competition. The existing process of convergence between the four freedoms demonstrates that the Court is willing to eradicate the distinctions made in the Treaty between the various categories of prohibitions and corresponding exceptions. In doing so, the Court is implicitly developing a "grand design" of Community law on the internal market. The contours of this design sometimes emerge on the surface, as in the Court's Judgment in Gebhard, [27] which formulated the four conditions for invoking the rule of reason exceptions in the context of establishment and which were later repeated in various Judgments on the provision of services, such as Broede. [28]
This article will not dwell further on the convergence between the four freedoms. Suffice it to say that the case law as it stands shows that convergence is possible but that there are certain restrictions. This is, broadly speaking, the conclusion that will be drawn in this article in respect of the convergence between the provisions on free movement and the rules on competition.
Convergence between the provisions on free movement and the rules on competition: as yet no systematic approach
In its case law the Court has still not dealt with the possible convergence between the provisions on free movement and the rules on competition in an explicit or systematic manner as it has done in respect of the convergence between the freedoms inter se. [29]
This type of convergence could have been the subject of deliberation in the Meng Case. [30] This case concerned the so-called new norm: the application of Articles 3, sub g, 10 and 81 EC to acts of public authorities where they have an effect on competition which, if the source of the restriction had been private, would have been subject to the competition rules. At the reopening of the proceedings the Court asked the intervening parties a number of questions.
The Court asked whether in case of violation of the new norm it could refer in that connection to the grounds set out in Article 81(3) EC, or take into account the overriding requirements of the general interest the significance of which it has recognised in relation to Articles 28 and 49 EC? Most Member States took the view that the Member States should be able to invoke both categories of exceptions. The German Government considered that State measures having an anti competitive effect could be justified only where they pursued Community law objectives and did not affect the system of undistorted competition to an extent contrary to the Community interest. For the Irish Government a rule contrary to Articles 3, sub g, 10 and 81 EC can never be justified. The Commission stated that a Member State measure may be justified by considerations relating to public policy, going beyond the grounds set out in Article 81(3) EC, for example the prohibition of advertising tobacco. As regards the combined application of Articles 10 and 81 EC, the provision infringed by the Member State would be Article 10 EC, not Article 81(1) EC. The grounds set out in Article 81(3) EC are insufficient to justify State measures. By contrast with undertakings, Member States act in the public interest: they may therefore invoke not only economic considerations but also other objectives worthy of protection. [31]
The matter was, however, not pursued further in Meng, as the new norm was not found to have been violated. [32] If such a violation had been established and the Court had followed the answers provided by some Member States and the Commission, this would have led to a certain degree of convergence.
Up till now, to my knowledge, the subject of the convergence between the provisions on free movement and the competition rules has been given but little systematic attention in legal writing. There are certain exceptions: an article by Schmid [33], who discusses cultural interests, the article mentioned earlier by Gyselen which deals with environmental interests, [34] an article by P. VerLoren van Themaat [35] and an article by Stuyck. [36] O'Keeffe and Bavasso in their analysis of the four freedoms also discuss the convergence with competition policy. [37]
Stuyck concentrates particularly on the convergence between the prohibitions in both sets of provisions; he devotes much less attention to the exceptions. He concluded his article in August 1998 and was therefore unable to take account of a number of subsequent developments.
VerLoren Van Themaat stresses the convergence in the early case law of the Court (Grundig/Consten, Dassonville and Cassis de Dijon) on the interpretation of the prohibitions on the freedom of goods and on competition. However, he points out that recent case law of the Court (since Keck and Meng) may have a diverging effect.
O'Keeffe and Bavasso emphasise the common ancestry of competition and free movement: both sets of rules are subject, albeit in different forms, to an assessment of the effect on trade between Member States. They also refer to the differences between the two sets of provisions. "Competition rules provide for an endo-integrated and positive set of rules and principles whilst the free movement rules provide a negative rule, a prohibition of restrictions. As a result, EC competition rules developed as a self-standing body of law which, in some cases, existed in parallel with national rules, and in the majority of cases, filled a gap in the national legislation. [38] Moreover, unlike competition rules, in the free movement provisions, the circulation of the activity or of products is the value protected by the set of rules. It is true that both sets of rules ultimately relate to the attainment of a common market but in the case of the free movement provisions, the freedom of circulation is the very means to attain the objective." [39] Both authors use this comparison as a step towards their conclusion on the case law on the four freedoms. They do not support the rule oriented interpretation of the Keck Judgment. Rather they prefer a more market-oriented interpretation, in which a cross-border element forms the point of reference. [40] They base their views inter alia on the post-Keck [41] Opinions of Advocate General Jacobs and on the Court's case law in the competition case Bagnasco [42]. Nevertheless they do remark: "one should not overstate the benefits of this approach. One could easily imagine a transnational case with little impact on the common market and an internal matter with a major effect on the common market," like Lancry. [43] They conclude: "one cannot always square the circle." But they believe that something can still be done in the case law of the Court to refine the relevant tests. [44] I reach the same conclusion in emphasising that more attention be given to the convergence between the tests applied in the context of free movement and competition law.
Schmid discusses the question as to whether 'a Cassis-type exception to the competition rules' is possible. As was indicated above this point was also touched upon in the Meng Case. Schmid raises the question following his analysis of book price fixing.
Gyselen systematically examines the relationship between Articles 81 and 87 EC in respect of environmental measures. He submits that the Commission should operate an identical legality standard when it assesses the compatibility of market-based or regulatory environmental action with the Common Market. [45]
He also discusses Article 28 EC in his analysis and devotes a number of general remarks to the subject matter at hand. In his opinion, the provisions on the freedoms and competition should all contain the same legality standard. He calls this the seamless web approach. If competition policy were more generous than internal market policy, companies located in States with a strong regulatory tradition might seek to collude among themselves. If competition policy were stricter than internal market policy, companies located in States with an outspoken deregulatory tradition might put pressure on their authorities to regulate their activities and impose certain duties upon them which they would otherwise have been happy to agree upon among themselves.
Gyselen concludes that although he feels strongly about this need for synchronisation, he must recognise that there seems to be a disequilibrium between on the one hand the internal market policy and the antitrust branch of competition policy and on the other hand the state aid branch of competition policy. The latter has the virtue of fine-tuning the proportionality principle because it operates a scale of aid intensities. [46]
2. Convergence between the provisions on free movement and the rules on competition: general remarks
Before discussing the convergence between the prohibitions and the exceptions concerning free movement and competition in more detail, first a number of general remarks must be made about the convergence between these two sets of provisions.
Public and private interests: imperium en dominium
The Treaty provisions on free movement are basically applicable to the acts of public authorities involving national public interests. The Treaty provisions on competition apply as a rule to acts of private undertakings and involve private interests.
In a number of Opinions of Advocates General in cases raising questions on both free movement [47] and competition, [48] this dividing line is marked by the terms 'imperium' and 'dominium' [49] In its response, referred to above, to questions put by the Court of Justice in the Meng Case, the Commission reasons along similar lines. [50]
The common market as a level playing field
In the Grundig & Consten Case the question was raised as to how the term 'agreements which may affect trade between Member States' should be interpreted. The Court observed that in defining this term it is important to determine whether the agreement is capable of constituting a threat, either direct or indirect, actual or potential to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States. [51] In the Dassonville Case the definition of the term 'measure with equivalent effect to a quantitative restriction' was strongly inspired by the Judgment in Grundig & Consten. The standard consideration, which was also reiterated in Keck, is that all trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. [52]
Both Judgments illustrate the primary and overriding objective of the provisions on free movement and competition: [53] the establishment and operation of the common market. This common objective is a perfect point of departure for convergence. [54] However, as appears from O'Keeffe and Bavasso's analysis described above, it remains important not to ignore the differences between the two sets of provisions.
The convergence of public and private activity
From the perspective of the market, barriers to trade may arise both from acts by public authorities and private undertakings. [55] In many cases there may a certain conspirational convergence between the two where measures adopted by the public authorities and the activities of (national) companies appear to be mutually supportive or reinforcing. The case law on the new norm was developed in this grey area. [56]
As was indicated in the introduction, this convergence often incited national courts referring cases to the Court of Justice to submit a bundle of questions on the interpretation of both the provisions on free movement and the competition rules, [57] sometimes in combination with questions on the new norm. [58]
The actors: economic activity
The nature of an activity determines whether or not it falls within the scope of a prohibition.
In the context of free movement this aspect is particularly relevant in qualifying the activities of natural and legal persons. [59] In a number of cases concerning sports activities the Court determined that these activities fell within the scope of the provisions on the free movement of persons in so far as they could be considered to be "economic activities". [60]
In a number of competition cases concerning the activities of public bodies, the Court has held that, as these activities were economic in character and that to that extent the bodies concerned should be qualified as "undertakings", the competition rules apply to these activities. [61]
Further outline of this article
Following this introductory analysis, I will now turn to a more systematic discussion of the subject of this article. First, I will deal with the question as to whether certain obstacles fall within the scope of the prohibitions (paragraph 3).This will be followed by a discussion of the elements of these basic provisions (paragraph 4) and the exceptions to the prohibitions in these provisions (paragraph 5). Finally, a number of concluding remarks will be made on the convergence process (paragraph 6).
3. The scope of the basic provisions
In its case law the Court, over the years, has adopted various approaches which have led to certain restrictions being excluded from the scope of either the basic provisions on the internal market or the rules on competition. It will be examined whether an approach developed in the context of the one set of provisions, e.g. free movement, may be applicable or matched in the context of the other set of provisions, i.e. competition.
3.1. The Keck approach
In its Judgment in Keck the Court considered that national legislative measures relating to "selling arrangements" or marketing conditions are not designed to regulate trade in goods between Member States. Such rules may restrict the volume of sales, and hence, the volume of sales of products from other Member States, but the question remains whether such a possibility is sufficient to characterise a national measure as a measure having equivalent effect to a quantitative restriction on imports. [62] If rules such as these are non-discriminatory they will not be caught by the prohibition of Article 28 EC. As was indicated above, the Keck case law has not yet been extended to the other basic freedoms of the internal market. [63]
In its considerations in the Keck Judgment the Court refers to the purpose of the national rules (see paragraph 12) and the effect of these rules (see paragraph 17). The Court does not opt for a concrete, measurable standard in order to determine whether intra-Community trade is adversely affected, it rather adopts an rule-oriented test, namely the nature of the legislation concerned (product requirements or selling arrangements).
In the Torfaen Case, a predecessor of Keck, Advocate General Van Gerven had already suggested applying a concrete test (screening off the domestic market test) for determining whether a restrictive measure falls within the scope of Article 28 EC. The Court did not follow his Opinion in either Torfaen or Keck. Van Gerven's approach was based explicitly on the Court's case law in respect of Article 81(1) EC. [64] He wrote: "If the national rule at issue merely increases the difficulty in penetrating the national market, the prohibition of Article 28 EC is applicable only if it appears from the entire legal and economic context that the economic interweaving of national markets sought by the Treaty is thereby threatened." [65] O'Keeffe and Bavasso in essence also support such an approach. [66]
In an article in this review I criticised the approach suggested by Van Gerven: "This approach would have failed to provide the courts with a clear and decisive guideline on which to base their judgments, since it would have required them to have regard to the entire legal and economic context." [67]
If the European Commission's draft regulation on the modernisation of competition policy is adopted by the Council, [68] the national courts will be confronted with similar complex problems in applying both Article 81(1) EC and Article 81(3) EC. Don't the Commission's views on the decentralised application of the competition rules provide an argument in favour of adopting Van Gerven's approach as yet?
It cannot be denied that the new approach in the field of competition will force the national courts to engage in some form of economic analysis. Yet there is an important difference between the application of the provisions on free movement and the competition rules. The competition rules are applied to a given agreement and the parties involved can only use that agreement, or decision by an association of undertakings or concerted practice, as the case may be, as their point of reference. In the context of the prohibitions in the provisions on free movement the abstract rule in a government measure is the point of reference. The trade flows between companies are a derivative of the agreements between them and form the basis of the potential conflict between them. The case law on Belgian price policy in the agricultural sector and the question as to its conformity with Article 28 EC in the 1970's [69] and the case law on Sunday trading (1989-1992) [70] demonstrate that applying a concrete test in reviewing the compatibility of national legislation with the provisions on free movement leads to fragmentation. Secure bookkeeping or local circumstances (in border regions) may demonstrate that a national measure has a (potential) adverse effect on cross-border trade. This causes inequality in the application of the same national rules. This aspect does not arise in the context of judging the legality of an agreement, which is essentially unique. Be that as it may, the decentralised application of the competition rules in the new setting by the national courts constitutes a challenge for applying the Keck approach. To be continued.
The Keck approach may also be related to the application of Article 82 EC. In the Banchero case the Court applied its Keck approach on the Italian tobacco market. [71] According to Mr. Banchero, Italian law protected the national monopoly in manufactured tobacco products because the national legislation limited the retail sale of tobacco products to authorized distributors. The Court considered that this legislation related to selling arrangements and that it was applied, in law and in fact, in a non-discriminatory way. It therefore concluded that the Italian legislation did not fall within the scope of Article 28 EC. Answering the question relating to Article 82 EG, the Court reiterated its case law that the mere creation of a dominant position by the granting of exclusive rights is not in itself incompatible with Article 82 EC. Examining a possible matter of abuse, the Court considered that, as pointed out in its analysis of Article 28 (the Keck test), the fact that producers of tobacco products manufactured in other Member States prefer to use the monopoly depots rather than set up their own wholesale depots may be attributable to considerations specific to those traders. It can not lead to the conclusion that the Italian legislation causes the monopoly to channel sales of manufactured tobacco products and thereby abuse the dominant position which it may enjoy on the distribution market. In this case the Court uses explicitly, the same reasoning, first to interpret the de facto test of the Keck approach; secondly to interpret the abuse element in Article 82 EC. The ruling is not in line with other case law on exclusive rights and other monopolies, such as Crespelle, Franzèn and the Electricity Cases. [72]
3.2. The Gottrup and Deliège/Lehtonen approach
In a growing number of cases the Court held that clauses which restrict rivalry may nevertheless fall outside the prohibition of Article 81 (1) EC if they are objectively necessary to secure the implementation of a lawful agreement. [73] This line of reasoning was first used in Metro I and in Pronuptia. [74] In Gottrup the Court applied this so called ancillary restraints doctrine to the activities of cooperative purchasing associations. [75]
Recently this approach was applied in two cases which deal with the free movement of sportsmen. The Deliège Case concerned the selection rules of the Belgian judo federation. [76] These selection rules applied to the participation in (international) tournaments. The Court observed that although such rules inevitably have the effect of limiting the number of participants in a tournament, such a limitation is inherent in the conduct of an international high-level sports event. Selection rules of this kind cannot therefore be regarded as a restriction prohibited by Article 49 EC. The questions on the infringement of the competition rules were not answered by the Court in the absence of concrete facts. Advocate General Cosmas, however, took the view that although the rules did restrict competition, they were not contrary to Article 81(1) EC, because the rules were indispensable in order to attain legitimate objectives which are connected with the specific character of judo.
In his Opinion in Lehtonen Advocate General Alber, following Advocate General Cosmas' Opinion in Deliège, considered in relation to the competition rules that the reasoning in Gottrup may be transposed, at least partially, to the Lethonen case. In so far as the present transfer deadlines do not disproportionately affect freedom of movement for workers, they guarantee comparability of results of matches within a season. That objective is decisive for the competition between clubs which consists in increasing the attractiveness of their matches. Transfer periods are therefore compatible with Article 81 EC to the extent that they may be reconciled with the freedom of movement for workers. [77]
According to the opinions of both Advocates General, this "inherent restriction" approach which was first employed in the Bosman Case and more recently again in Deliège and Lehtonen in the context of free movement could also be applied in the field of competition law. In the UEFA Case mentioned in the Introduction of this article the Commission also uses this inherent restriction approach. [78]
3.3. The Brentjens approach
In the Judgments in Brentjens, Pavlov and Van der Woude concerning agreements in respect of wages, pensions and other terms of employment Article 81(1) EC was applied in a manner which is, in part, comparable to the inherent restriction approach. [79]
The decisive criteria for placing an agreement outside the scope of the competition rules are its purpose (wages and other terms of employment) and the nature of the agreement (determined by the capacity of the parties concluding the agreement). If the agreement is concluded between the social partners, employers and employees, in the context of collective bargaining and has a "social" objective, the resultant collective agreement will not be caught by the competition rules (Brentjens and Van der Woude). If, on the other hand the parties concerned are considered to constitute an association of undertakings, Article 81(1) EC will be applicable (Pavlov).
This approach can only be compared with the Deliège/Gottrup approach to a certain degree, as in this case the existence of certain restrictions, like the discrimination in Lehtonen, leads to the applicability of the prohibitions. This - in all probability (there is no explicit case law on this point) - is not the case in the Brentjens approach. Here tangible restrictions fall outside the scope of the prohibition if they fulfil the dual requirement of "nature and purpose".
This Brentjens approach does not apply in the context of free movement of persons. It may be inferred from the case law on horizontal effect of provisions of the EC Treaty that the capacity of the parties involved (public body or private organisation) is irrelevant in determining whether or not the restriction falls within the scope of the basic prohibitions of the Treaty. Collective labour agreements relating to wages and other terms of employment may fall under the prohibition of Articles 39 and 49 EC. [80]
3.4. The internal situation and free movement
As far as freedom of movement is concerned, it is settled case law that situations which have do not have an intra Community point of reference do not come within the scope of the basic provisions relating to the internal market. It is up to the Member States to find the solutions to possible discrimination - usually reverse discrimination - in such cases. [81]
As is apparent from the Court's Judgment in Höfner, this approach to the applicability of the rules on the internal market and competition can lead to anomalies. [82] In this case the Court determined that the exploitation of a monopoly held by a public body, the Bundesanstalt, fell within the scope of the rules on competition in the Treaty. The provisions on the free movement of services were not considered to be applicable as the Court regarded the situation as an internal situation.
This case law on internal situations, which is frequently invoked by Member States, [83] is now beginning to show some weaknesses as a result of the operation of the internal market and the evolution of national and Community competition law. [84] In some cases tariff and non-tariff barriers to trade existing within a single Member State (between islands or regions) have been brought within the ambit of Articles 25 and 28 EC. [85] Stated in more general terms: a market without internal frontiers between the Member States (see Article 14 EC) presumes a fortiori that there are no barriers within a Member State. [86]
3.5. Intra-Community trade and competition law
In the field of competition law, the criterion of affecting intra-Community trade was used in the Consten & Grundig Case as a criterion for delimiting the scope of Community competition law vis-à-vis national competition law. [87] If trade between Member States is not (adversely) affected the Community competition rules do not apply, but the national rules on competition may. This case law is based on the difference between restrictions at national and Community level and therefore a conflict rule is necessary to determine which system should prevail: the Walt Wilhelm solution. [88] The Walt Wilhelm formula, however, has become rather outdated for a number of reasons.
First, since the completion of the internal market the emphasis of competition law lies less on the establishment of the common market [89] and more on prohibiting restrictions of competition within the internal market. [90] The first consideration of the draft regulation on the implementation of the rules on competition also refers to meeting 'the challenges of the integrated market.' [91]
Second, the national competition authorities have an important function in that integrated market. Under Article 3 of the draft regulation these authorities are to apply the Community competition rules to restrictions of 'European' competition and the national rules to restrictions which only have a national or regional impact.
Third, from the perspective of national competition law a convergence process is already in course in many Member States in that national competition law is being aligned with the Community system and therefore also with the systems of other Member States. [92]
These trends in competition law do not automatically imply that there is direct convergence between the provisions on freedom of movement and the competition rules. Nevertheless, the way is being paved for a combined approach. This is apparent from the decisions of the national competition authorities and the National Regulatory Authorities in network sectors. In these cases the national authorities have not only to apply general and specific rules of competition law, [93] they must also determine whether the national measures (usually taken in respect of former monopolists) are not contrary to the provisions on free movement within the internal market. [94]
4. The basic prohibitions
Following these general remarks, I will now take a closer look at the substance of these provisions. Two aspects will be dealt with: the types of restrictions which are prohibited and the bodies and persons to whom these provisions are addressed. In the discussion of the exceptions (in paragraph 5) this same approach will be followed.
4.1. Types of restriction
Not every restriction affects with the same intensity. The degree of intensity may determine how the prohibition and subsequently the exception are applied.
Hard core measures and measures which apply indistinctively
In competition law and in the context of the provisions on freedom of movement a distinction can be made between manifest and less manifest restrictions.
Hard core cartels (agreements on prices and dividing markets) are prohibited per se. They are only eligible for an exemption in exceptional cases. Softer cartels are subject to a more lenient régime. This was recently laid down in a new regulation on vertical agreements [95] and in the Commission's guidelines on horizontal cooperation agreements. [96] The new approach, which is more determined by economic considerations, goes more and more in the direction of market power analysis.
In the context of free movement a distinction is made between national measures which apply with and without distinction to national and foreign products, services, persons and capital. Quota and discriminatory measures are prohibited per se and may only be justified by an exception laid down in the Treaty. Certain measures which apply without distinction (selling arrangements) do, according to Keck, not come within the scope of the prohibition (of Article 28 EC); others may be justified under the rule of reason besides the possibility of justification under the exceptions in the Treaty. [97]
At first sight there are possibilities for convergence between the two groups of provisions, although differences still exist. [98] Some price regulations issued by public authorities fall within the terms of Keck and, therefore, escape from the prohibition of Article 28 EC, [99] whereas price agreements between undertakings as a rule are considered to be hard core cartels. [100] On the other hand, the provisions on free movement of goods are applied strictly to product requirements and quality standards [101], whereas competition law is more lenient in this respect, as long as there is no question of discrimination and objective criteria, e.g. relating to professional skills, are used. [102]
De minimis and hypothetical situations
At the other end of the scale we can place the restrictions which do not have an appreciable effect or only have a slight effect on intra-Community trade. Whereas in the context of the competition rules a de minimis approach applies, [103] the de minimis rule does not apply to the provisions on free movement. [104]
In Leclerc-TF1 Advocate General Jacobs came out in favour of applying a de minimis rule in the context of Article 28 EC as an alternative to the Keck route. However, the Court did not follow his suggestion. [105] The Court does not give any reasons for this, but as Barents observed some years ago "state interventions on the market may be said to have an appreciable effect by their very nature." [106] To this it may be added that this applies to all discriminatory measures and to non-discriminatory product requirements.
In some cases concerning certain non-discriminatory measures the Court, even post-Keck, applies the technique of the hypothetical situation. If the effects of a measure on intra-Community trade are too uncertain and indirect, it simply places the measure outside the scope of the prohibition. [107] In such cases the prohibition does not apply. Here there is a certain degree of convergence with the policy on the application of the competition rules.
4.2. Addressees
In Van der Haar the Court considered that whereas Article 81 EC belongs to the rules on competition which are addressed to undertakings and associations of undertakings and which are intended to maintain effective competition in the common market, Article 28 EC belongs to the rules which seek to ensure the free movement of goods and to that end to eliminate measures taken by Member States. [108] In other words the competition rules are an instrument of Community policy which can be used against economic operators; the provisions on free movement are aimed at influencing the policy of the Member States. [109]
However, it would be an oversimplification to infer from this consideration in Van der Haar that the provisions on free movement only apply to actions by public authorities and that the competition rules only apply to the practices of private undertakings.
First, the provisions on free movement of persons can be invoked against organisations not governed by public law [110] and private persons. [111] There is no explicit case law on this point for the other freedoms. [112]
Second, the EC competition rules can be invoked indirectly against national public authorities under the combined Treaty provisions of Article 10 EC with Articles 3, sub g, 81 or 82 EC. However, this is only possible if there is an underlying infringement of Article 81 or 82 EC. [113] This can result in a measure of a public body falling within the scope of both the provisions on free movement and the competition rules as may be inferred from the GB-INNO Case. [114]
Third, as appears from the Spanish Strawberries Case, Member States may not only be found to have infringed their Treaty obligations for having adopted measures contrary to the provisions on free movement, but also for abstaining from taking action. [115] This passivity may also take the form of not taking action against a national cartel (groups of farmers) which has as its objective to obstruct the freedom of movement.
5. Exceptions
The convergence between the prohibitions in the provisions on free movement and the competition rules which has already been discerned on certain points provides a suitable basis for further convergence in the context of the exceptions justifying an infringement of the basic rule. The question as to whether or not a partial convergence is taking place between the exceptions has only been raised more recently. Indeed, under the law as it stands and the case law of the Court there does not appear to be much room for convergence here.
Article 81(3) EC contains four cumulative conditions for granting an exemption to the prohibition of Article 81(1) EC the fulfilment of which is subject to the exclusive assessment of the Commission. Essentially these conditions are related to the economic interests of the various operators on the market and to the market in general.
As to the exceptions in the context of the provisions on freedom of movement it is the settled case law of the Court that the national interests subject to protection must be general interests of a non-economic character. [116]
However there is common ground between the two sets of provisions in that the proportionality requirement applies in both cases. This requirement plays an important role both in the application of Article 81(3) EC and in the application of the exceptions recognised in the Treaty and the case law of the Court. It constitutes the link between the justification invoked on the one hand and the restriction on the other.
Yet another trend is becoming visible which may have an converging effect in due course. In a number of cases the Court seems to have abandoned its standard Cassis de Dijon-approach. This concerns the aspect which is conditional for invoking the rule of reason exceptions. According to this case law, which was summarised in the Keck-arrest [117], mandatory requirements of general interest may only be invoked in respect of measures which apply without distinction to national products and products from other Member States. Judgments, as in the Walloon Waste Case, Decker and Angonese [118] demonstrate that - without giving any explicit explanation - the Court does not always follow its own system. [119]
These cases frequently concern exceptions which relate to policy areas which are not primarily aimed at economic objectives e.g. in the field of the environment, culture and public health (also termed 'horizontal and flanking policies', see Introduction of this article) and, which, as will be pointed out later (see paragraph 5.1.2), are eligible for being considered in the context of the decision on granting an exemption under Article 81(3) EC. In the context of free movement the Court has therefore accepted - in certain cases - that the 'rule of reason' exceptions may have a broader scope, in that they may also apply to certain discriminatory restrictions. This opening in the application of the free movement exceptions provides a basis for giving these exceptions a place in the context of the application of the competition rules.
In the next subparagraphs, in line with the approach followed in respect of the restrictions, I will first discuss the types of exceptions (paragraph 5.1) and then the addresses of these exceptions.
5.1. Types of exceptions
This is where the bottleneck in the convergence process lies. The exceptions in the context of free movement are essentially non-economic in character, whereas the grounds for exemption in Article 81(3) EC concern economic interests. The economic grounds which be invoked in the context of free movement basically deal with the protection of the local or national market. [120] The economic interests accepted by Article 81 (3) EG relate to efficiency. The net effect of the agreement must be beneficial and the benefit must be to the general welfare, not merely to the parties involved. [121] The proportionality test is applicable in both cases, but this remark is academic if an exception cannot be invoked.
Nevertheless in the Court's recent case law and recent Commission decisions on Article 81 EC there are a number of points of reference for a limited form of convergence. Both groups of exceptions are beginning to converge in certain situations. In the application of the provisions on free movement sometimes economic interests are taken into account. In competition policy attention is also given to non-economic interests. This tendency will be looked at in more detail. The policy integration provisions, such as Article 6 EC (environment) or Article 151(4) EC (culture) may have an important part to play in this respect. [122] Up till now these provisions have not had much effect in this respect.
5.1.1. Economic interests and exceptions to free movement
This point will be raised especially in cases involving strategic matters, e.g. concerning oil or electricity, or fundamental interests, e.g. in the field of public health and the environment. Until recently these areas were not subject to the operation of the market, but were often characterised by the presence of State monopolies or public undertakings.
In its Judgment in Campus Oil the Court created an opening for permitting economic interests to be taken into consideration in deciding whether an infringement of Article 28 EC could be justified on the grounds laid down in Article 30 (public policy and public security). [123]
In the Electricity Cases the Court adopted a different approach. The exclusive rights at issue were not considered in the light of Articles 28 and 29 EC and the exception contained in Article 30 EC, as the Commission had requested. Instead, the Court decided that there was an infringement of Article 31 EC, and subsequently turned to examine whether this infringement could be justified under Article 86 (2) EC, not therefore under Article 30 EC. [124] In this approach it was possible to include economic interests in considering whether there was a justification of the infringement of Article 31 EC (a lex specialis for State product monopolies). [125]
However the basic rule stated in the Italian Case of 1961 [126] that Article 30 EC 'is directed to eventualities of a non-economic kind' still stands.
It is clear from the case law on public health matters, such as Duphar [127] and Kohll how delicate this area is. The Court's Judgment in Duphar was in line with its Judgment in the 1961 Italian Case. [128] In Kohll the Court considered that "aims of a 'purely' economic nature cannot justify a barrier to the fundamental principle of freedom to provide services." To this it added that "the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier of that kind." [129] This Kohll exception was in a certain way codified by the Treaty of Nice in Article 137(4) EC.
5.1.2. Non-economic interests and the prohibition of cartels
The recent developments in the public health sector provide a suitable point of departure for discussing this subject. Here the market mechanism is beginning to operate in two ways. First, there is an increasing degree of free movement of goods and services between the Member States: the Kohll route. Second, the public health sector is increasingly being liberalised within the Member States. In contrast with other sectors (energy, telecommunications), however, this has not been imposed by EC Directives. It is an autonomous choice of policy within the Member States, independent of Community obligations. The Community, after all, only possesses limited powers in this field. In other words, as the Court states in Duphar and Kohll, Community law does not detract from the powers of the Member States to organise their social security systems.
The operation of the market in the public health sector, as well as in other fields such as environmental policy, leads to private operators on the market concluding agreements which are induced, at least so they will claim, by considerations relating to public health or the environment.
Until recently cartels of this kind, with the exception of the cartels in the books sector, were not a subject of Community competition policy. The policies and case law in a number of these sectors will now be briefly reviewed. They provide good insight into the degree of convergence already achieved.
Culture
The Leclerc Case raised the question of the compatibility with Community law of a French Act on book prices (loi Lang). The French court before which this case served submitted preliminary questions to the Court of Justice on the applicability of Article 28 EC and Article 81 EC. As to the latter, this concerned the applicability of the trio of provisions Articles 10, 3, sub g, and 81 EC. The Court held that the French Act was incompatible with Article 28 EC and that it could not be justified on grounds of cultural policy as the measure was discriminatory. As to the competition rules the Court observed that there were as yet no Community rules concerning purely national practices in the book sector. There was therefore no basis for the Court to apply the prohibition of Article 81(1) EC and consequently no reason to consider whether the exception on grounds of cultural policy could be invoked. [130]
In the VBBB-VBVB Case of the early 1980's, an attempt to justify a book cartel on cultural grounds was not accepted by the Commission or the Court. [131] The European Commission stated in its decision in the case of the Dutch-Flemish book cartel that it was not for undertakings or associations of undertakings to conclude agreements on cultural matters, even though the Commission recognises that undertakings may make a valuable contribution to the dissemination of culture. [132]
However, it may be inferred from recent case law [133] and policy [134] that the Commission is now giving more attention to cultural interests. This evolution follows on the introduction of an exception on cultural grounds for state aids in Article 87 EC.
On the other hand attempts to replace national policies on book prices by a Community policy laying down a European book price arrangement have failed till now. The prohibitions in the provisions on free movement remain relevant, as the Court confirmed recently. [135]
Sport
In recent years the Commission has been confronted with restrictive agreements in the field of sports in which non-economic interests are involved, and which are even predominant. This has resulted in a policy aimed at excluding certain agreements from the scope of Article 81(1) EC at the gate (see Introduction and paragraph 3.2).
In other cases this was not possible. The agreements and decisions concerned were then caught by Article 81(1) EC. The next question was whether Article 81(3) EC or another exception could be invoked. [136]
A number of cases are still pending with the European Commission. However, compared with other non-economic interests, like culture and the environment, a separate paragraph on sport has not yet been included in the Treaty. Various parties involved in this sector have made a case for the inclusion of such a paragraph in the EC Treaty in order to curtail the effects of the Bosman Judgment or to alleviate the effects of the outcome of cases which are still pending. This attempt was not successful. A Declaration on sport adhered to the Treaty of Amsterdam. [137] In the Treaty of Nice sport, as a Community policy, is not mentioned. Nevertheless, the European Council of Nice, december 2000 approved a declaration on the specific characteristics of sport and its social function of sport in Europe of which account should be taken in implementing common policies.
Public health
The Commission has not yet issued a decision in respect of the public health sector. This is not so strange as this is a policy area in which the Member States - within the limits set by Community law - retain full competence. As many Member States are opening these fields to the operation of the market, national competition authorities are being confronted with agreements and dominant positions in the public health sector.
Here the national competition authorities are confronted with the paradoxical situation that - given the basic premise of their new national schemes - they have to comply with non-existent Community policy. Indirectly the Court's case law on the free movement of goods (Duphar and Decker) and the free movement of services (Kohll) plays a part in this respect. However, in contrast with the sports cases (Bosman, Lehtonen and Deliège), the national courts involved in these cases did not submit preliminary questions on the competition rules, so that there are still no indications in the Court's case law - or even in the Opinions of the Advocates General - as to how agreements in the public health sector ought to be regarded. Quite recently, the Court was given the opportunity to examine the Luxembourg public health system and the agreements existing in that context in the light of Article 81 EC. The Court decided that, given the fact that it had been found that there was an infringement of Article 12 EC, there was no need to consider the question on Article 81 EC. [138] In his Opinion in this case Advocate General Cosmas did address this question. He arrived at the conclusion that there was a restriction of competition and that it was up to the national court to decide whether there was a negative effect on intra-Community trade.
Environment
It may be inferred from recent Commission practice, as in the CECED Case, [139] and its guidelines on horizontal agreements [140] that it is developing a policy on competition and environment. The Commission interprets the two positive conditions of Article 81(3) EC in such a way that environmental concerns may be taken into account to a greater or lesser degree. [141] The Commission is obliged to do so under the various policy integration provisions which have been included in the EC Treaty to accommodate various non-economic interests, e.g. in Article 6 EC on the environment.
The tendency to accommodate non-economic interests in the first two conditions of Article 81(3) EC leads to a certain degree of assimilation with the exceptions in the context of free movement. However, this convergence is limited because the non-economic interests are not decisive in this context: these interests are only included in the general consideration as to whether the two positive conditions of Article 81(3) EC have been fulfilled, although they do carry considerable weight in this context.
A further reaching interpretation in which the objective of protecting the environment would be decisive in setting an agreement outside the scope of Article 81(1) EC would lead to greater convergence. [142]
The influence of environmental interests on restrictions of competition is currently under discussion. This is, quite eminently, a subject on which the Commission, in line with its proposals in its White Paper on the modernisation of competition policy, should issue guidelines. In contrast with the situation in respect of sports, there is a Treaty basis for such action (policy integration provision, Title XVI on the environment).
5.2. The addressee of the exception
In the classical situation, companies confronted with the prohibition of Article 81(1) EC will invoke Article 81(3) EC and a Member State and its organs which are confronted with a prohibition in one of the provisions on free movement will invoke the derogations recognised either in the Treaty or in the case law of the Court of Justice.
It appears from an analysis of the scope ratione personae of the basic prohibitions in the Treaty that this classical conception needs to be refined. A number of provisions on free movement also apply to private persons and their organisations, whereas the competition rules also apply indirectly to the activities of public authorities. This raises the further question as to whether these new addressees (private organisations in the context of free movement and public bodies in the context of the competition rules) may invoke exceptions which, according to classical doctrine, were not created for them.
Private persons invoking exceptions to free movement provisions
In Bosman the Court decided that, given the fact that the prohibition in respect of the free movement of workers applies to private organisations, there is nothing to preclude individuals from relying on justifications on grounds of public policy, public security or public health. [143] This Judgment was confirmed in Angonese. [144] In my case note on the Bosman Case I criticised the lack of subtlety in the Court's approach in this consideration. [145] In the case of public policy and public security general interests (imperium) are involved which cannot be left to private organisations.
Other exceptions which are available in the context of free movement, such as consumer protection or the protection of cultural interests, may be more suitably invoked by private persons. In its Judgments in Bosman and Angonese the Court provides a number of pointers for convergence, but this case law needs to be refined. One way to achieve such refinement would be to introduce a stricter necessity and proportionality test for private parties invoking these exceptions.
Public authorities invoking exceptions to competition rules
Article 81(1) EC is addressed to undertakings. Public bodies may be confronted with the competition rules through the combined operation of Articles 3, sub g, and 10 EC. Public authorities cannot invoke Article 81(3) EC as this provision is not designed to apply to the activities of public bodies. [146] This point of view coincides with the Commission's observations in the Meng Case (see paragraph 1). It is possible for a public undertaking or an undertaking entrusted with the operation of services of general economic interest to have recourse to Article 86(2) EC. This possibility was defended by the Spanish Government in the Meng Case. [147]
It appears from the observations made by some Member States in Meng that in case of an infringement of Article 10 EC the Member State concerned should be able to justify this on the general interest grounds contained in Article 30 EC and like provisions. [148] This position was adopted, albeit implicitly, by the Court in Pavlov. Advocate General Jacobs considered that in cases such as Pavlov "it would be more satisfactory to accept a prima facie infringement justiciable on public interest grounds. In the present cases there can be little doubt that the decree rendering affiliation compulsory would be justified on social grounds." [149]
The Court observes that membership of the occupational pension fund concerned was made compulsory in the context of a scheme identical to those existing under the national law of various Member States concerning the exercise of regulatory authority in the social domain. Such régimes and the request made within that framework by the members of a profession for membership to be made compulsory cannot constitute an infringement of Article 81(1) EC. For the same reasons, the decision by the Member State concerned to make membership compulsory cannot be contrary to Articles 10 and 81 EC. [150] The Court and its Advocate General both recognise the importance of rules in the field of social policy. This is sufficient for the Court to decide that neither the decision of the members of the profession nor the decision of the Member State were contrary to Article 81 EC or Articles 10 and 81 EC respectively. This approach is in line with the inherent restriction approach (see paragraph 3.2). On the other hand, the Advocate General concluded that Article 81 had been infringed but that this could be justified on social grounds. [151] This approach is more in line with the Cassis de Dijon approach: a broad definition of the basic prohibition combined with more grounds for justification.
The State or a public undertaking invoking the exception relating to services of general economic interest
Public authorities are indirectly affected by the competition rules where they entrust undertakings with the operation of services of general economic interest and thereby create a monopoly or an exclusive position. This could result in an undertaking abusing its dominant position or to restrictions to free movement.
The State or undertakings entrusted with the operation of services of general economic interest may under certain conditions invoke Article 86(2) EC. As is apparent from the Court's Judgment in FFAD Copenhagen, the qualification of 'being entrusted' may lead to the applicability of the provisions on free movement and the competition rules. [152] It is in cases such as these in particular that one might expect convergence to occur. Indeed, if one and the same restriction comes within the scope of both the competition rules and the provisions on free movement, the same grounds for derogation would seem to be relevant. This is an ideal situation for converging the exceptions.
However, FFAD Copenhagen illustrates that this is not always the case. The restrictions on the export of waste were contrary to Article 29 EC and could not be justified by the exceptions available under the free movement provisions. The authorisation of a limited number of undertakings to receive and process building waste was ultimately considered to be justified under Article 86(2) EC. On the whole this leads to a more flexible consideration of the restrictions to competition! Article 86(2) EC might also have been invoked in respect of the provisions on free movement. However, as the Court states, it did not deal with this aspect as it had not been raised in the order for reference. Perhaps it was not willing to provide the answer!
Private organisations invoking the exception of being entrusted with the operation of services in the 'general' interest
In its Judgment in Deliège the Court, in considering the nature of the tasks of the sports federations, follows a similar approach to that followed in respect of the specific exception of Article 86(2) EC. In this case, the task (selection of athletes for a given international tournament) is 'entrusted' by the umbrella European or international organisation to the national federations. [153] However, the Court does not use this method in its interpretation of Article 86(2) EC, but in its answer to the question as to whether restrictions may 'inherently' be placed outside the scope of a prohibition (see paragraph 2.3).
I agree with Slot that it is important to make a distinction between the justification for the government measures and the conduct of undertakings concerned when applying Article 86(2) EC. On the basis of Crespelle, it may be argued that the government measure only infringes Article 86(1) and (2) EC when the undertaking acting pursuant to that measure will necessarily infringe Article 81 or 82 EC. [154] Conversely, this means that all actions of undertakings are not necessarily covered by an exemption granted to the government measures under Article 86(2) EC. It will then, normally, be up to the undertaking to prove that its conduct also satisfies the Article 86(2) EC test. In this context it should be noted that it is with good reason that the government may be allowed more discretion than the undertaking under Article 86(2) EC. Government acts establishing public service obligations are necessarily intended for a longer period of time and cannot therefore be completely fine-tuned to a specific period of the business cycle. They may also address more than one single undertaking, and thus can concern companies with different cost structures. [155]
6. Conclusion
The internal market, an area without internal frontiers, and the common market, the level playing field for undertakings, are and will remain the core of the economic approach to European integration. More than thirty years of Commission policy and practice and of case law of the Court of Justice and the Court of First Instance have led to the eradication of many barriers to intra-Community trade.
The basic provisions of the EC Treaty have remained intact despite subsequent amendments of the Treaty. Nevertheless, both the case law of the Court of Justice and the practice of the Commission in applying these provisions have ensured that the interpretation of Articles 28-30 EC and the provisions on the other freedoms on the one hand and Article 81 EC on the other hand has been subject to change in the course of the years.
The purpose of this article was to look at the possible convergence between the provisions on free movement and the rules on competition. Two general conclusions may be drawn. First, there are clear indications that some degree of convergence already exists (see paragraph 6.1) and that this may be developed further in the future (see paragraph 6.2). Second, full convergence is not possible and is also not desirable (paragraph 6.3).
This trend towards convergence must therefore be welcomed on the one hand. [156] It is even necessary to a certain extent. Otherwise the distortions of competition pointed out by Gyselen referred to in the introduction to this article (paragraph 2) are likely to occur. [157] VerLoren Van Themaat focusses on the diverging case law on the freedoms on the one hand and competition on the other. He criticizes the narrow interpretation of the so called new norm (Articles 3g, 10 and 81 EC) since the Meng case and he fears that in this way a lot of state activities may fall outside the scope of the Treaty prohibitions. He proposes two solutions: the broadening of the new norm or the broadening of the Dassonville formula by adding the principle of an open market economy with free competition (see Article 4 EC). [158] This last solution is to be preferred. Indeed, although the new norm can be of help in some cases, [159] it remains a solution of the last resort. As Faull & Nikpay argue, contrary to many other competition systems, such as the US antitrust, EC Law has always had specific provisions dealing with the most significant anti-competitive state measures, such as state aids, exclusive rights and other state barriers. [160] Creative jurisprudence has to be developed along the lines of the provisions on free movement. The Spanish Strawberries case, [161] delivered after the publication of the article by VerLoren van Themaat, can be considered as a first indication of this approach. Here The Court followed the reasoning of the Commission that France by failing to take all necessary and proportionate measures in order to prevent the free movement of fruit from being obstructed by actions by private individuals, had failed to fulfil its obligations under Articles 28 EC in conjunction of Article 10 EC.
On the other hand, convergence must be approached cautiously. There is no point in converging for converging's sake. In considering the need for convergence the distinction between imperium and dominium should be observed (see paragraph 3).
6.1. Existing convergence
From the analysis of the case law on the basic prohibitions in the EC Treaty and the exceptions to these prohibitions it is apparent that there are clear tendencies towards convergence between the provisions on freedom of movement and the competition rules. In more general terms, both sets of provisions have the same objective, the realisation of the common or internal market (see paragraph 2).
As a result of subsequent amendments to the EC Treaty, provisions have been introduced which may have a further converging effect. I refer here to the so-called policy integration provisions (see paragraph 5.1). Although these provisions have not had much effect up till now, Advocate General Jacobs takes the view they are not merely programmatic, but that they impose legal obligations. [162]
More specifically, in various policy areas certain restrictions are excluded from the scope of the prohibitions 'at the gate': the approach in Deliège/Lehtonen and Gottrup (see paragraph 3.2) and Brentjens (see paragraph 3.2).
The prohibitions are defined broadly: measures which apply with and without distinction to national and foreign products, services, persons etc. versus hard core and soft cartels (paragraph 4.1).
There is a trend to exclude restrictions which do not have a noticeable (appreciable) effect from the scope of the prohibition: hypothetical situations and the de minimis rule (paragraph 4.1).
The proportionality test applies to exceptions in all cases.
As far as the addressees of the prohibitions is concerned, certain provisions on free movement may apply to private organisations; in certain cases activities of public authorities may fall within the scope of the competition rules.
6.2. Expected and desirable convergence
If the proposals on the draft regulation on the implementation of Articles 81 and 82 EC are adopted and enter into force, national courts will be permitted to interpret the prohibitions and exceptions in the competition rules. The provisions on freedom of movement have had direct effect since the end of the transitional period and can be invoked against the national authorities, private organisations or private persons before the national courts. Article 81(1) and (2) EC, Article 82 and Article 86 all have direct effect (paragraph 3.5).
The adoption of new regulation will lead to convergence to the extent that the national courts will be empowered to apply Article 81(3) EC as an 'exception légale' (paragraph 3.5).
The advantage of this is that a national court, regardless of whether the case before it involves free movement or competition, will be able to give judgment on both the applicability of the prohibition and the availability of an exception. Cases with free movement and competition aspects can then be dealt with in one go. Up till now, free movement aspects were usually dealt with by the national court, with or without a preliminary reference to the Court of Justice, whilst parties sought to create further delays by notifying their case to the Commission on the basis of the competition aspects (see paragraph 1). An illustration of this is provided by the cases on book cartels. [163]
The grounds for justification in the context of free movement are as a rule non-economic in character, whereas in granting exemptions under Article 81(3) EC the economic interests of operators on the market are the focus of attention. Nevertheless, in certain fields the pattern is beginning to change in that in the application of the provisions on free movement economic interests may be taken into consideration (Kohll; see paragraph 5.1.1) and, conversely, that in the context of competition policy non-economic interests are becoming more relevant (see paragraph 5.1.2). [164]
In a number of situations Article 86(2) EC may provide a basis for convergence. This provision can be applied both in relation to the provisions on free movement and the competition rules. The Court has not, up till now, adopted a clear line on this point (FFAD Copenhagen; see paragraph 5.2). Nor has the Commission provided any clear guidelines. The recent Communication on Services of General Interest in Europe [165], concerning Articles 86 and 16 EC indicates that, in the light of the case law of the Court of Justice, the term 'services of general economic interest' may include non-economic interests such as environmental matters and education. [166] The Commission does not, however, provide any insight into how it intends to incorporate these general interests and comparable interests concerning e.g. sport, public health and culture in its policy. The analysis is restricted to network sectors (telecommunications, transport and energy). The communication does not, at any rate, provide any guidance to national competition authorities who have to deal with various arrangements in the public health sector (paragraph 5.1.2).
6.3. Full convergence is not desirable
The Court has held that the exceptions in the context of free movement may be invoked by private organisations, but this general proposition is subject to criticism (see paragraph 5.2).
Although the old dividing line in the system of the EC Treaty, implying that public authorities are to take care of public interests and private organisations are to see to private interests, has been broken, this should not lead to a complete dilution of the system. The distinction between imperium and dominium (see paragraph 2) is still relevant. The magic line between public and private interests should therefore only be crossed cautiously. Where intrinsic differences exist between imperium and dominium, these cannot be eliminated with the legal technique of convergence.
Noten
[1] Communication made pursuant to Article 19(3) of Council Regulation No 17, O.J. 1999 C 363/2, nr. 10.
[2] Case C-415/93,
Bosman, (1995) ECR I-4921 at paragraph 106.
[3] The only case to date is the
Campalimaud Case. In this case a Spanish bank acquired two Portuguese banks. The Portuguese government opposed this acquisition on the basis of the need for the protection of national and strategic interests. To the extent that this exception was based on Article 21 of de Merger Regulation the Commission considered that this Article was not applicable because the Portuguese government had not announced its intention to oppose and because the measure was disproportionate. Competition Policy Letter, 1999, nr. 3, October, p. 48. See, too, Sideek Mohamed, National Interests Limiting E.U. Cross Border Banking Mergers, ECLR 2000, p. 248.
[4] L. Gyselen, The Emerging Interface between Competition Policy and Environmental Policy in the EC, in: Trade and Environment, Cameron and May (eds.), London 1994, p. 242.
[5] Case 8/74,
Dassonville, (1974) ECR 837; Case 229/83,
Leclerc, (1985) ECR 1; Case 387/93, Banchero, (1995) ECR I-4666.
[6] Case C-415/93,
Bosman, (1995) ECR I-4921. Joined Cases C-51/96 en C-191/97,
Deliège, (2000) ECR I-2549; Case C-176/96,
Lethonen, (2000) ECR I-2681.
[7] In Case C-411/98,
Ferlini, Judgment of 3 October 2000 (not yet reported) on the public health policy in Luxembourg, no questions were asked on the competition rules (Article 81 EC), despite the fact that the plaintiff had invoked these provisions. The national court restricted its questions to the free movement aspects. Conversely in Joined Cases C-430/93 en C-431/93,
Van Schijndel, (1995) ECR I-4705 the
Hoge Raad of the Netherlands did not submit questions on the provisions on free movement and confined the substantive part of its request to the competition rules.
[8] P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, Third edition, (L.W. Gormley), London, 1998, p. 1083.
[9] The regulatory powers of the Community in the field of public health (Article 152 EC) were extended by the Treaty of Amsterdam as a result of the BSE-crisis.
[10] As a result of the attribution of regulatory powers in these policy areas conflicts concerning the choice of the correct legal base occur regularly: internal market (Article 95 EC) or the particular policy area. These conflicts can lead to very fundamental judgments of the Court of Justice, as is made clear by Case C-376/98,
Federal Republic of Germany v. Council and European Parliament, Judgment of the Court of Justice of 5 October 2000 (not yet reported). See Editorial Comments, Taking (the limits of) competences seriously, CMLRev, 2000, p. 1301.
[11] Case 5/77,
Tedeschi, (1977) ECR 1555. In this Judgment the Court held that Article 30 EC can only be invoked in the absence of Community measures governing the subject matter at hand.
[12] M. Dougan, Minimum harmonization and the Internal Market, CMLRev. 2000, p. 853.
[13] This concerns the Treaty provisions on cultural and education policy (see Articles 149 en 151 EC). This does not prevent the Community, however, from adopting directives or regulations on the export of works of art or on the freedom of establishment of teachers. These measures are based on the provisions on commercial policy and internal market respectively.
[14] See Case C-376/98,
Federal Republic of Germany v. Council and EP, cited above.
[15] See, e.g., Case C-158/96,
Kohll, (1998) ECR I-1931. Case C-9/99,
Echirolles Distribution, of the Court of Justice of 3 October 2000 (not yet reported).
[16] See e.g. Resolution of the Council of 7 October 1997 on environmental agreements, O.J. 1997 C 321/6. For this subject, see J.H. Jans, European Environmental Law, second edition, Groningen, 2000, p. 288.
[17] For a discussion of a number of national decisions on sports, see, D. Brinckman and E. Vollebregt. The Marketing of Sport and its Relation to EC Competition Law, ECLR 1998, p. 281.
[18] For this matter, see C.D. Ehlermann, The Modernization of EC Antitrust Law: a Legal and Cultural Revolution, CMLRev. 2000, p. 537.
[19] As was explicitly stated by the Court in Case C-9/99,
Echirolles Distribution, Judgment of the Court of Justice of 3 October 2000 (not yet reported) at paragraph 24. This case concerned the interpretation of Articles 28, 30 and 81 EC in relation to the French fixed prices for books. The Court applied its established case law on this point (Case C-229/83,
Leclerc, (1985) ECR 1) to the case in hand.
[20] U. Everling, Zu den Querschnittsklauseln im EG-Vertrag, in: Mélanges en hommage à Ferdinand Schockweiler, Baden-Baden, 1999, p. 131.
[21] In the conclusions of the European Council in Nice, December 2000, the European Council invites the Council and the Commission to continue their discussions in the framework of the guidelines and provisions of Article 16 of the EC Treaty.
[22] On this point, see P. Behrens, Die Konvergenz der wirtschaftlichen Freiheiten im europäischen Gemeinschaftsrecht, Europarecht, 1992, p. 145. K. Mortelmans, Excepties bij non-tarifaire belemmeringen: assimilatie in het nieuwe EG-verdrag?, Sociaal-Economische Wetgeving 1997, p. 182. P. Oliver, Goods and Services: two freedoms compared, in: Mélanges en hommage à Michel Waelbroeck, Brussels, 1999, p. 1377. H.D. Jarass, Elemente einer Dogmatik der Grundfreiheiten, Europarecht 1995, p. 202 and Europarecht 2000, p. 705; W.H. Roth, Diskriminierende Regelungen des Warenverkehrs und Rechtfertigung durch die "zwingenden Erfordernisse" des Allgemeininteresses, Wettbewerb in Recht und Praxis, 2000, p. 979.
[24] Case 120/78,
Rewe (Cassis de Dijon), (1979) ECR 649.
[25] E.g. Case C-2/90,
Commission v. Belgium, (1992) ECR I-4431. For a more detailed analysis, see Roth, op.cit.; C. Barnard, Fitting the remaining pieces into the goods and persons jigsaw?, European Law Review, 2001, p. 54.
[26] Joined Cases C-267/91 en C-268/91,
Keck, (1993) ECR I-6097. Case C-384/93,
Alpine Investements,(1995) ECR I- 1141. Case C-415/93,
Bosman, (1995) ECR I-4921. Case C-189/95,
Franzén, (1997) ECR I-5909.
See, on this subject, J. L. Da Cruz Vilaca, An Exercise on the Application of Keck and Mithouard in the Field of Free Provision of Services, in: Mélanges en hommage à Michel Waelbroeck, Brussels, 1999, p. 797. D. O'Keeffe and A. F. Bavasso, Four Freedoms, One Market and National Competence: in Search of a Dividing Line, in: Liber Amicorum in Honour of Lord Slynn of Hadley, The Hague, 2000, p. 548.
[27] Case C-55/94,
Gebhard, (1995) ECR I-4165.
[28] Case C-3/95,
Broede, (1996) ECR I-6511.
[29] E.g. Case C-35/98,
Verkooijen, (2000) ECR I-4071. Whereas this case concerned the free movement of capital, the Court in answering the questions submitted refers to its case law on the free movement of services and freedom of establishment. Case C-250/95,
Futura, (1997) ECR I_2471. This Case concerns the freedom to provide services. In its Judgment the Court refers to its case law on freedom of establishment and the free movement of workers and goods in order to support its interpretation.
[30] Case C-2/91,
Meng, (1993) ECR I-5751.
[31] (1993) ECR I-5768-5770.
[32] The matter was also not touched upon in Case C-35/96,
Commission v. Italy, (1998) ECR I-3851 despite the fact that in that case the new norm had been violated.
[33] Christoph U. Schmid, Diagonal Competence Conflicts between European Competition Law and National Regulation - a Conflict of Laws Reconstruction of the Dispute on Book Price Fixing, European Review of Private Law, 2000, p. 155.
[35] P. VerLoren van Themaat, Gaat de Luxemburgse rechtspraak over de vier vrijheden en die over het mededingingsbeleid uiteenlopen? (1998) Sociaal-Economische Wetgeving, p. 398.
[36] J. Stuyck, Libre circulation et concurrence: les deux piliers du Marché commun, Mélanges en hommage à Michel Waelbroeck, Brussels, 1999, p. 1478.
[37] O'Keeffe and Bavasso, op cit.
[38] O'Keeffe and Bavasso, p. 544.
[39] O'Keeffe and Bavasso, p. 554.
[40] O'Keeffe and Bavasso, p. 554-555. On the distinction between the rule-like test and the standard-like test, W. Wils, The Search for the Rule in Article 30 EEC, European Law Review, 1993, p. 475.
[41] Case C-412/93,
Leclerc-TF1, (1995) ECR I-179, at paragraph 38.
[42] Joined Cases C-215/96 en C-216/96,
Bagnasco, (1999) ECR I-135.
[43] Case C-363/93,
Lancry, (1994) ECR I-3956.
[44] O'Keeffe and Bavasso, p. 555-6.
[46] Gyselen, p. 245-246.
[47] AG Mayras in Case 2/74,
Reyners, (1974) ECR 631.
[48] AG Tesauro in Case C-364/92,
SAT, (1994) ECR 50, paragraph 9. AG Cosmas in Case C_343/95,
Diego Cali, (1997) ECR I-1547, paragraph 37 and AG Jacobs in Case C-41/90,
Höfner, (1991) ECR I-1979 paragraph 22.
[49] In the words of W. Röpke, Economic order and international law, Receuil des Cours de l'Académie de droit international. 1954-II, p. 224 this concerns "the genuinely liberal principle of government and economy, of sovereignty and economic exploitation, of Imperium and Dominium, or of political power and economic power."
[51] Joined Cases 54/64 en 58/64,
Grundig & Consten v. Commission, (1966) ECR 229.
[52] Case 8/74,
Dassonville, (1974) ECR 837, at cons. 5.
[53] However, it should be pointed out in respect of the rules on competition that following the establishment of the common market the allocative function is becoming more prevalent. See further paragraph 3.4.
[54] See, too, AG Van Gerven in his Opinion in Case C-145/88,
Torfaen, (1989) ECR 3851, nr. 22; Stuyck, op cit., p. 1479; VerLoren van Themaat, op. cit., p. 398.
[55] See, too, Stuyck, p. 1480 en 1487.
[56] See Case 13/77,
INNO, (1977) ECR 2215.
[57] E.g. Case 8/74,
Dassonville, (1974) ECR 837 and Case 229/83,
Leclerc, (1985) ECR 1.
[58] E.g. Case C-70/95,
Sodemare, (1997) ECR I-3395, Case C-387/93,
Banchero, (1995) ECR I-4666.
[59] This may also be relevant in the context of the free movement of goods, e.g. drugs. See Case 50/80,
Horvath, (1981) ECR 385.
[60] Case 36/74,
Walrave & Koch, (1974) ECR 1405 and Case 13/76,
Dona, (1976) ECR 1333.
[61] E.g. Case C-41/90,
Höfner, (1991) ECR I-1979.
[62] Case C-267/91 and C-268/91,
Keck & Mithouard, (1993) ECR I-6097. See paragraphs 12 and 13.
[63] In a case concerning national legislation on the advertising of alcoholic beverages the Court had the opportunity to expand its ruling in Keck on the free movement of goods to the free movement of services. It refined its case law on Keck relating to selling arrangements and advertising, but it did not apply this refinement to the interpretation of Article 49 EC. See Case C-405/98, Gourmet, Judgment of the Court of 8 March 2001, not yet reported.
[64] Case C-145/88,
Torfaen, (1989) ECR 3851, nr. 23. AG Van Gerven referred in this context to Case 8/72,
VCH, (1972) ECR 977.
[65] Opinion in
Torfaen, (1989) ECR 3878.
[66] O'Keeffe and Bavasso, p. 554.
[67] K. Mortelmans, Article 30 of the EEC Treaty and legislation relating to market circumstances: time to consider a new definition. CMLRev 1991, p. 127. In the same sense Oliver, Mélanges Waelbroeck, p. 97. But see Wils, op. cit, p. 487.
[68] See O.J. 2000 C 365 E/284.
[69] C. Colinet and M. Maresceau, Interprétation et application du droit communautaire dans le domaine des réglementations de prix des produits agricoles: de l'arrêt Dechmann à l'arrêt Kefer-Delmelle, Cahiers de droit européen, 1980, p. 509.
[70] M. Jarvis, The Application of EC Law by National Courts, The Free Movement of Goods, Oxford 1998, p. 195
et seq.
A. Arnull, What shall we do on Sunday?, ELR 1991. p. 112.
[71] Case C-387/93,
Banchero, (1995) ECR I-4666.
[72] Case C-323/93,
Crespelle, (1994) ECR I-5077; Case C-189/94,
Franzèn, (1997) ECR I-5909; Case C-157/94,
Commission vs. Netherlands, (1997) ECR I-5677. On this apparent contradiction, see José Luis Buendia Sierra, Exclusive Rights and State Monopolies under EC Law, Oxford 1999, p. 212-216.
[73] Faull & Nikpay, The EC Law of Competition, Oxford, 2000, p. 90-96.
[74] Case 26/76,
Metro I, (1977) ECR, 1875; Case 161/84,
Pronuptia, (1986), ECR 353.
[75] Case C-250/92,
Gottrup-Klim, (1994) ECR I-5641.
[76] Joined Cases C-51/96 en C-191/97,
Deliège, (2000) ECR I-2549.
[77] Case C-176/96,
Lethonen, (2000) ECR I-2681, Opinion, nrs 108-109.
[79] Joined Cases C-115/97, C-116/97 en C-117/97,
Brentjens, (1999) ECR I-6025. Joined Cases C-180/98-C-184/98,
Pavlov, Judgment of the Court of Justice of 12 September 2000 (not yet reported). Case C-222/98,
Van der Woude, Judgment of the Court of Justice of 21 september 2000 (not yet reported).
[80] Case 36/74,
Walrave & Koch, (1974) ECR 1405. Most recently Case C-281/98,
Angonese, (2000) ECR I-4139. See CMLRev. 2000 p. 1237 with case note by Lane and Shuibhne. This case law also applies to equal payment, see Case 43/75,
Defrenne, (1976) ECR 455.
[81] A. Epiney, Umgekehrte Diskriminierungen, Keulen, 1995. She discusses the situation in,
inter alia, Germany.
[82] Case C-41/90,
Höfner, (1991) ECR 1979.
[83] Most recently in Case C-448/98,
Guimont, Judgment of the Court of Justice of 5 December 2000 (not yet reported).
[84] G. Gaja, Les discriminations à rebours: un revirement souhaitable, in: Mélanges en hommage à Michel Waelbroeck, Brussels, 1999, p. 993. H. Tagaras, Règles communautaires de libre circulation, discriminations à rebours et situations dites 'purement internes', in: Mélanges en hommage à Michel Waelbroeck, Brussels, 1999, p. 1499.
[85] Joined Cases C-485/93 en C-486/93,
Simitzi and Kos, (1995) ECR I-2655. Joined Cases C-363/93 and 407-411/93,
Lancry, (1994) ECR I-3957.
[86] K. Mortelmans, The Common Market, The Internal Market and the Single Market: What's in a Market? CMLRev. 1998, p. 101. St. Weatherill, The Common Market: mission accomplished?, Functions and future of European Law, 1999, p. 33.
[87] Joined Cases 56/64 and 58/64,
Consten & Grundig, (1966) ECR 229.
[88] Case 14/68,
Walt Wilhelm, (1969) ECR 1.
[89] Although, evidently, agreements on the division of the market and quota will continue to exist: see e.g. the cement cartel, Joined Cases T-25/95 and others, (2000) ECR II-491.
[90] A. Schaub, EC Competition System - proposals for reform, in B. Hawk (ed.) Annual Proceedings of the Fordham Corporate Law Institute 1998, New York 1999. See, too, R. Wesseling, The Commission White Paper on Modernisation of E.C. Antitrust Law, ECLR 1999, p. 427.
[91] COM(2000) 582 final. O.J. 2000 C 365 E/284.
[92] I. Maher, Alignment of Competition laws in the European Community, Yearbook of European Law, 1996, p. 223; M. Drahos, Convergence of Competition Laws and Policies in the European Community. Germany, Austria and the Netherlands, The Hague, 2001.
[93] P. Larouche, The bases of EC Telecommunications law ofter liberalization, Oxford, 2000.
[94] See
inter alia Joined Cases C-147/97 en C-148/97,
Deutsche Post, (2000) ECR I-825.
See, too,
Preussen Electra, Case C-379/98, pending.
[95] Regulation 2790/99, O.J. 1999 L 336/21.
[97] Barnard, op. cit. p. 36.
[98] VerLoren van Themaat, op. cit. p. 399.
[99] In
Keck the issue was a prohibition of (re)selling at a loss. See, too Case, 63/94,
Belgapom, (1995) ECR I-2467. On the relationship between both cases. VerLoren van Themaat, op. cit., p. 400.
[100] Case 246/86,
Belasco, (1989) ECR 2217.
[101] Case 178/84,
Commission v. Federal Republic of Germany ('Reinheitsgebot'), (1987) ECR 1227. Case 55/94,
Gebhard, (1995) ECR I-4165.
[102] See Case 26/76,
Metro, (1977) ECR 1875.
[103] Communication of the Commission of 9 December 1997, O.J. 1997 C 372/4.
[104] Joined Cases 177/82 and 178/82,
Van den Haar, (1984) ECR 1797. For more recent case law, see Oliver, Mélanges Waelbroeck, p. 1398; Jarvis, op. cit., p. 104; Barnard, op. cit. p. 43.
[105] Case C-412/93,
Leclerc-TF1, (1995) ECR I-179.
According O'Keeffe and Bavasso, p. 553 by referring to a
de minimis test it seems that Advocate General Jacobs intended to introduce an evaluation similar to that of the 'rule of reason' in competition law. This may be so, but in contrast with his colleagues Cosmas en Alber in
Deliège and
Lehtonen, AG Jacobs does not refer to the
Gottrup Case (see above paragraph 3.2).
[106] R. Barents, Measures of Equivalent Effect. Some Recent Developments, CMLRev. 1981, p. 287.
[107] Case C-379/92,
Peralta, (1994) ECR I-3453; Case C-190/98, Graf, (2000) ECR I-413. See Barnard, op. cit. p. 43. In Case C-67/97,
Bluhme, (1998) ECR I-8033 the Court considered that the measure concerned did have such a direct effect so that there was no question of a hypothetical situation.
[108] Joined Cases 177/82 en 178/82,
Van den Haar, (1984) ECR 1797.
[109] See Stuyck, p. 1485.
[110] Case C-415/93,
Bosman, (1995) ECR I-4921. Case C-411/98,
Ferlini, Judgment of 3 October 2000 (not yet reported).
[111] Case C-281/98,
Angonese, ECR (2000) I-4139. See CMLRev. 2000 p. 1237 with case note by Lane and Shuibhne.
[112] T.O. Ganten, Die Drittwirkung der Grundfreiheiten: die EG-Grundfreiheiten als Grenze der Handlungs- und Vertragsfreiheit im Verhältnis zwischen Privaten, Berlin, 2000.
[113] Joined Cases C-115/97, C-116/97 en C-117/97,
Brentjens, (1999) I-6025. Joined Cases C-180/98-184/98,
Pavlov, Judgment of the Court of 12 September 2000 (not yet reported).
[114] Case 13/77,
INNO, (1977) ECR 2215. See, on this subject, P. Oliver, Free Movement of Goods in the EC. third ed, London, 1996, p. 87.
[115] Case C-265/95,
Commission v. France, (1997) ECR I-6959.
[116] Case 7/61,
Commission v. Italy, (1961) ECR 317.
[118] Case C-2/90,
Commission v. Belgium (Walloon Waste), (1992) ECR I-4431. Case C-120/95,
Decker, (1998) ECR I-1831. Case C-281/98,
Angonese, (2000) ECR I-4139.
[119] See in greater detail on this subject Roth, op. cit. For an earlier analysis along the same lines, see Mortelmans, Excepties bij non-tarifaire intracommunautaire belemmeringen: assimilatie in het nieuwe EG-Verdrag? Sociaal-Economische Wetgeving, 1997, 182-190.
[120] Cf. case 72/83,
Campus Oil, (1984) ECR 2727.
[121] Faull & Nikpay, op. cit. p. 103.
[122] D. Gasse, Die Bedeutung der Querschnittsklauseln für die Anwendung des Gemeinschaftsrechts, Frankfurt am Main, 2000.
[123] Case 72/83,
Campus Oil, (1984) ECR 2727. See CMLRev. 1985, p. 687 with case note by Mortelmans. See too Case C-347/88,
Commission v Greece (Greek Oil Case), (1990) ECR I-4747. See CMLRev 1991, p. 989 with case note by Hancher.
[124] Case C-157/94,
Commission v. The Netherlands, (1997) ECR I-5699. See CMLRev. 1998 p. 1192 with case note by Slot.
[125] See too Stuyck, p. 1492.
[126] Case 7/61,
Commission v. Italy, Jur. (1961) ECR 317.
[127] Case C-238/82,
Duphar, (1984) ECR 523.
[128] For a criticism see Oliver, Free movement of goods in the EC, Third Edition. London, 1996, p. 161.
[129] Case C-158/96,
Kohll, (1998) ECR I-1931 at paragraph 41.
[130] Case 229/83,
Leclerc, (1985) ECR 1.
[131] Joined Cases 43/82 en 63/82,
VBVB/VBBB, (1984) ECR 19. On these cases involving a cartel in the Dutch language region, see Chr. E. Zandvliet, Fixed book prices in the Netherlands and European Union: a challenge for Community competition law, The Columbia Journal of European Law, 1997, p. 413.
[132] O.J. 1982 L 54/36 nr. 60.
[133] Case C-360/92 P,
Netbook agreement, (1995) ECR I-23.
[134] Sammelrevers Germany and Austria, O.J. 1996 C 54/2 See, too, IP/00/651, 22 June 2000, O.J. 2000 C 162/25. The European Commission announced that it came to the preliminary conclusion that the new German system of fixed book prices does not have an appreciable effect on trade between the Member States, and, therefore, does not fall under Article 81 (1) of the EC Treaty. However, interested third parties now have the possibility to submit their observations to the Commission.
[135] Case C-9/99,
Echirolles Distribution, cited above.
[136] Commission Decision on package trips to the World Football Championships in 1990, O.J. 1992 L 326/31. For the World Championships in 1998, see S. Weatherill, 0033149875354. Fining the organisators of the 1998 Football World Cup, ECLR 2000, p. 275.
[137] See the Commission's Report to the European Council on sport, COM (1999) 644 final. See, too, J.Fr. Pons, Sport and European Competition Law, Fordham Corporate Law Institute, 1999, New York 2001.
[138] Case C-411/98,
Ferlini, Judgment of the Court of Justice of 3 October 2000 (not yet reported). See also case C-70/95,
Sodemare, (1997) ECR I-3395.
[141] Jans, op cit., p. 277.
[142] See Gyselen, op. cit., p. 246. See too, Schmid, op. cit., p. 116.
[143] Case C-415/93,
Bosman, (1995) ECR I-4921 at paragraph 86.
[144] Case C-281/98,
Angonese, (2000) ECR I-4139.
[145] Mortelmans, case note on Bosman, Sociaal-Economische Wetgeving, 1996 p. 144. In the same sense, see S. Streinz and S. Leible, Die unmittelbare Drittwirkung der Grundfreiheiten, Europäische Zeitung für Wirtschaftsrecht, 2000, p. 463.
[146] But even if this barrier was taken, it usually will not be possible to fulfil the requirement that a minimum degree of competition must remain intact. Government intervention usually leads to certain arrangements being declared generally binding for outsiders, so that to that extent, no competition will be left within its own territory. See, on this point, Advocate General Lenz in Case 311/85,
Vlaamse reisbureaus, (1987) ECR 3816, nr. 40.
[147] (1993) ECR I-5769. The same point was made by Advocate General Jacobs in Joined Cases C-180/98-C-184/98, Pavlov, (not yet reported) at paragraph 163.
[149] Opinion at paragraph 163.
[150] At paragraphs 98-100.
[151] See, on this point, E.H.M. Loozen, Pavlov en van der Woude: meer dan een Pavlov-reactie?, Nederlands Tijdschrift voor Europees Recht, 2000, p. 301.
[152] Case C-209/98, FFAD/Københavns Kommune, (2000) ECR I-3743. See, too, in this connection, Case C-203/96,
Dusseldorp, (1998) ECR I-4075.
[153] Joined Cases C-51/96 en C-191/97,
Deliège, (2000) ECR I-2549 at paragraphs 67-68.
[154] Case C-323/93,
La Crespelle, (1994) ECR I-5097.
[155] Slot, case note to the Electricity Cases, CMLRev. 1998, p. 1199
[156] But from a law and economics perspective it may be argued that a competition of policies is useful. See, in this respect, R. Van den Bergh, Towards an Institutional Legal Framework for Regulatory Competition in Europe, Kyklos, 2000, p. 435.
[157] Gyselen, op cit. p. 245-246.
[158] VerLoren van Themaat, op. cit, p. 402.
[159] For instance Case C-35/96,
Commission v. Italy, (1998) ECR I-3851.
[160] On this case law, Faull & Nikpay, op. cit, p. 274-276.
[161] Case C-265/95,
Commission v. France, (1997) ECR I-6959.
[162] Case C-379/98,
Preussen, at paragraph 231.
[163] See Zandvliet, op cit.
[164] See J.W. van de Gronden and K.J.M. Mortelmans (eds), Mededinging en niet-economische belangen, Deventer, 2001.
[165] Doc COM (2000) 580 final. OJ 2001 C 17/5.