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.
Zoe Adams and Simon Deakin
In the case law on free movement, the court regularly pronounces on the legality of laws in the context of corporate governance, worker protection and tax avoidance. In the context of freedom of establishment, the case law has evolved to the point where cross-state differences in laws affecting the business enterprise are seen as potential obstacles to free movement. The court then applies a strict proportionality test, which puts an onus on member states to defend the aims of national measures and the means used to achieve them. As a result, economic integration has acquired an inherently deregulatory bias. This is far removed from the original conception of the internal market as an opportunity for the levelling up of social standards and for policy experimentation and learning. We argue that a focus on regulatory competition as the inevitable by-product of free movement law is needed to better understand these issues.
Kenneth A. Armstrong
The free movement of goods holds an important place in the EU law canon. The evolution of the case law of the European Court of Justice on the scope of application of the Treaty provisions—particularly the prohibition on quantitative restrictions on imports and measures having equivalent effect—provides the traditional focal point for scholarly attention. Yet this privileging of European judicial governance can detract from the other institutional locations—legislative and administrative, international and transnational—where norms are promulgated or elaborated or applied. More worryingly, it can pay insufficient attention to the nature of goods themselves and issues that may pertain to their movement. The aim of this chapter is to contextualize the iconic case law of the Court of Justice within this wider governance framework and to foreground the regulation of alcohol, tobacco, and chemicals as particular examples of goods.