IDEOLOGIES OF COMPETITION IN EUROPEAN COMMUNITY LAW1
| Published date | 01 March 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02815.x |
| Date | 01 March 1989 |
| Author | Francis Snyder |
THE
MODERN LAW REVIEW
Volume
52
March
I989
No.
2
IDEOLOGIES
OF
COMPETITION IN EUROPEAN
COMMUNITY
LAW’
I
NTRODU~ON
DECEMBER
31,
1992
is
the deadline for completing the European
Community’s internal market.’
As
this date approaches, the
European Community and its Member States are likely to emphasise
increasingly “the institution
of
a system ensuring that competition
in
the common market is not distorted” (Article
3(f)
EEC
(European Economic Community Treaty)). In doing
so,
they
should not, however, presume that this provision
of
the Treaty
of
Rome
is
to be given simply a literal interpretation. Now, more
than ever before,
it
is
important to bear in mind that “the
distortion
of
competition” does not have a single, clear, generally
accepted meaning.
Instead, as 1 argue here, “the distortion
of
competition” has at
least two sharply contrasting connotations. They form part
of
different conceptions
of
European Community economic law. These
divergent meanings, conceptions and related general ideologies,
often integral to distinct political practices, are typically shaped by
different social and economic contexts. I illustrate these points here
by using a specific example. My general purpose, however, is to
advance two related arguments. First, these competing perspectives
constitute conflicting legal ideologies, which to some extent are
mutually contradictory. Secondly, in making economic law and
policy
to
complete the internal market, the European Community
’
A prcliminary, much shortcr vcrsion
of
this papcr was prcxntcd at thc Colloquc sur
Ics Distorsions dc Concurrcncc cn MatiBrc agricolc dans la C.E.E.. Univcrsitd dc
Tours,
Tours, Francc, Octobcr
67,
1987;
it
is bcing publishcd
in
thc
Annales
de
la Facultk
de
Droit
er
des
Sciences bconomiqices
de
I’llniversirb
de
Tours.
I
wish to thank Thc Nufficld
Foundation for financial support; thc Commission of thc Europcan Communitics. thc
Fdddration Nationalc Ovinc and
thc
U.K.
Meat and Livcstock Commission for documents;
Jcan-Picrrc Boutonnct,
Tim
Frazcr, Profcssor Valcntinc Korah and Siln Milcs for
commcnts; and John Tillotson for commcnts and rcscarch assistancc. Nonc
of
thcsc
individuals has sccn thc final vcrsion
of
the papcr, and
I
alonc am rcsponsiblc for
its
contcnts.
SCC “Complcting thc lntcrnal Markct,” Whitc Paper from thc Commission to thc
Europcan Council
in
Milan, Junc
28-29, 1985
COM(85)
310;
P. Cccchini,
The European
Challenge,
1992:
The
Benefits
of
a Single Market
(1988);
Single European Act and Final
Act,
Europcan Communitics No.
12 (1986),
HMSO Cmnd.
9758;
Jcan Dc Ruyt,
L’Acte
unique europken
(1987) 148-175.
149
150
THE
MODERN LAW
REVIEW
[Vol.
52
and its Member States should pay serious attention to both
of
these perspectives.
The European Community’s competition law, as is well known,
is
based primarily on Articles 85 to 94
of
the Rome Treaty.
Articles 85 to 90 contain rules applying to undertakings; Article 91
concerns dumping; and Articles 92
to
94 refer to aids granted by
States. These articles do not, however, stand in isolation. Instead,
they must be read in the light
of
the Treaty’s objectives, particularly
those stated in Articles 2 and
3.3
Article 3(f) and Article 5, second paragraph, are
of
special
importance. Article 3(f) provides that, for the purposes set out in
Article 2, the activities
of
the Community shall include “the
institution
of
a system ensuring that competition in the common
market
is
not distorted.” It “sets out one of the general principles
of
the Common Market, which are applied in conjunction with the
relevant chapters
of
the Treaty devoted to their implementation”
(including Articles 85-94 EEC).4 Article
5,
second paragraph,
states that Member States “shall abstain from any measure which
could jeopardise the attainment
of
the [Treaty] objectives‘:
. .”
It
refers particularly to measures which involve or affect, more or
less
directly, the behaviour
of
undertakings.’
These related Treaty provisions refer primarily to economic
instruments, which in turn are intended to implement more general
economic policies. These policies are usually considered to have
two objectives.h The first is
to
help to establish a single, European
Community-wide market, thus enhancing European economic
integration. The second
is
to improve economic efficiency, mainly
by prohibiting, within limits, actions which restrain competition.’
Moreover, these Treaty rules are commonly viewed as being
directed against two different types
of
distortion
of
competition.
On the one hand are those imputable
to
undertakings, either
public or private: these are the subject
of
Articles 85 to
90.
On the
other hand are those which may be ascribed to states: these are the
’
SCC Casc 6/72
EuropemDallage Corporafion and Continenral Can
v.
Coniniission
[1973] E.C.R. 215,
[
1973) C.M.L.R. 199; Casc 63/75
Fonderies Roubaix-Waffrclos
v.
Soci4f4noiivelle des Fonderies
A.
Rou
119761 E.C.R.
111.
[1976) C.M.L.R. 538.
‘
Casc 229183
Associafion des Centres distributeurs Edouard Leclerc and Otliers
v.
Sdrl
“Au
blk
verf” and Others
(19851 E.C.R.
1
at 29, 119851 2 C.M.L.R. 286 at 308.
Thc intcrprctation
of
Article 5, second paragraph, by the European Court
of
Justice
is summariscd
in
D. Vaughan (cd.),
Law
of
The
European Commutrifies
(1986) 922-923
[para. 19.1031; scc also
Slot,
“Thc Application
of
Articlcs 3(f), 5 and 85
to
94 EEC,”
(1987) 12 E.L.Rcv. 179.
This distinction bctwccn cconoinic policy, economic instruments and legal measures
is proposcd hy Daintith. “Legal Analysis
of
Economic Policy-I,” (1982) 9
Journal
of
Law
and Society
I9 1.
’
SCC
van dcr Esch, “E.E.C. Compctition Rules: Basic Principlcs and Policy Aims,”
(1980) 2
Legal
Issues
of
Eiiropean fnrqrafion
75. Scholars disagrcc regarding the
trcatmcnt
of
thcsc
two
objcctivcs as distinct and the identification
of
thcir spccific
charactcristics: scc,
e.g.
V. Korah,
An
Infroducfory Guide
to
EEC Competition Low and
Pracfice
(3rd
cd..
1986) at 6-7; D. Vaughan (cd.),
Law
of
flre
European Comniunifies
(1986) at 857-858 [paras. 10.02, 19.031.
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