This chapter deals with the European Union law on competition and mergers, with emphasis on the provisions of Articles 101 and 102 of the TFEU. The role of markets is to coordinate supply and demand. EU competition law is applied to address situations in which firms are able to distort the ability of markets to coordinate supply and demand, such problems arising when firms are able to aquire or exercise power over the market. A number ways in which problems of market power manifest themselves and the ways in which EU competition law can be, and has been, marshalled to address those problems are the subject of this chapter. This chapter considers the idea of a market and the absence of competitive constraints, before consider unilateral and collusive behaviour giving rise to or exploiting market power. Finally, it considers the EU Merger Regulation as a primary instrument for regulating the competitive consequences of durable changes in market structure.
This chapter examines and appraises the system for enforcing Articles 101 and 102 TFEU that has developed in the EU, and considers whether effective enforcement mechanisms have been put in place that adequately respect the rights of the undertakings or persons involved. It examines both public enforcement through the European Competition Network, comprised of the Commission and national competition authorities, and private enforcement, through civil litigation in the national courts. In particular, it considers whether the EU enforcement system, under which the Commission performs investigative, enforcement, and adjudicative functions and the role of the EU courts is confined to review of the decisions and penalties imposed, is adequate to protect the fundamental rights of the undertakings involved in investigations. It also examines the steps that have been taken at EU level to increase the volume of private litigation and to ensure full compensation for antitrust victims.
The free movement of services is a sensitive aspect of the internal market. Economically, because large cost differences between states make competition in services markets fierce and destabilizing. Socially and politically, because that competition has consequences not just for conventionally economic activities but also for traditionally public services such as education and healthcare, as well as for contested services such as gambling and abortion, and even for non-economic organizations such as trade unions. The fact that almost all central elements of the primary law on services are ill defined in the case law then takes on a particular significance. This chapter considers the definitions of a service and its economic nature, the nature of a restriction on the movement of services, horizontal effect, and interpretation by the Court of Justice of mandatory requirements and Treaty derogations.