Marco Botta

Competition policy: safeguarding the Commission’s competences in State aid control

Abstract The article analyses the impact of the financial crisis on the decision-making and content of State aid control. The urgency and the extraordinary size of the subsidies committed by member states to save national banks in 2008 let the Commission modify its ordinary decision-making practices and adopt a new set of soft law, which represented an important change in the goals of this sub-policy in comparison to the pre-crisis period. Once the urgency of the crisis disappeared in mid-2009, the Commission returned to its ordinary decision-making and forced the financial institutions to be restructured, as under the pre-crisis rules. Therefore, by accommodating the initial requests of the member states which demanded the Commission to ‘speed-up’ its review approach and to enforce State aid rules in a more lenient way, the Commission managed to safeguard its exclusive competence in State aid control.

Enforcing state aid rules in EU candidate countries: a qualitative comparative analysis of the direct and indirect effects of conditionality

ABSTRACT The article analyses the effectiveness of EU conditionality regarding the enforcement of state aid rules in candidate countries during the pre-accession phase. Theoretically, conditionality should be able to overcome the reluctance of governments to implement control systems that restrict their ability to freely allocate subsidies. Effective conditionality can take two causal paths: first, it can directly influence the political decisions of governments in candidate countries regarding state aid, independent of any domestic institutional set-up; second, the reduction of state aid levels can be the indirect effect of the establishment of domestic monitoring authorities. To test these hypotheses, the article undertakes a multi-value qualitative comparative analysis (mvQCA) of the conditions for the reduction of annual state aid levels with regard to either the credibility of conditionality expressed by different stages in the accession negotiations, or domestic institutional factors such as the independence and operability of state aid monitoring authorities.

Article 102 TFEU as a Tool for Market Regulation: “Excessive Enforcement” Against “Excessive Prices” in the New EU Member States and Candidate Countries

Every student attending classes on EU competition law learns that Article 102 TFEU sanctions two categories of abuses: exploitative and exclusionary. However, every student also learns that the existing case law on the fi rst type of unilateral practices is quite limited in comparison to the second category of abuses. Even though the Court of Justice of the European Union (CJEU) has recognised that excessive prices and unfair contract terms can be sanctioned under Article 102(a) TFEU,1 the European Commission has primarily targeted exclusionary practices.2 As a consequence, the category of exploitative abuses has largely remained confi ned to the textbooks of EU competition law. During the last 20 years, the EU Commission has requested EU candidate countries in Central and Eastern Europe (CEE),3 and more recently in South-East Europe,4 to adopt a national competition law which “mirrored” the EU competition rules, as well as to establish a National Competition

Antitrust enforcement in traditional v online platforms

Workshop ENTraNCE for Executives 4th – 5th December 2015 European University Institute San Domenico di Fiesole, Florence, Italy.

Private Enforcement of EU Competition Law

The volume represents the outcome of the sixth edition (2016) of the project ENTraNCE for Judges (‘European Networking and Training for National Competition Enforcers’), co-financed by the DG Competition of the European Commission. The edition focused on private enforcement of the EU competition law in the aftermath of the Damages Directive.

Competition policy and e-commerce after the EU Commission sector inquiry : what comes next?

ENTraNCE Training of National Judges – Call for Proposals 2014. Financial support of DG Competition of the European Commission. Grant agreement HT.4430/SI2.701599

The Standard of Judicial Review in EU Competition Law Enforcement and Its Compatibility with the Right to a Fair Trial Under the EU Charter of Fundamental Rights

During the last decade, the evolution of the competition law enforcement has reinvigorated the debate concerning the compatibility of the EU enforcement regime with fundamental rights. In particular, two factors have increased the relevance of the protection of fundamental rights in the context of competition law enforcement: the entry into force of the Lisbon Treaty (incorporating the EU Charter of Fundamental Rights) and the progressive criminalization of competition law enforcement. One of the tensions between competition law enforcement and the protection of fundamental rights concerns the right to a fair trial included in Article 6 of the European Convention of Human Rights (ECHR), as well as in Article 47(2) EU Charter. Due to the technical nature of competition law analysis, the EU and national courts have traditionally granted a certain margin of discretion to the competition authorities. In the aftermath of the Menarini judgment of the European Court of Human Rights (ECtHR), the question is whether such margin of discretion still complies with the requirement of full judicial review introduced in Menarini. This chapter reviews the ongoing debate on compatibility of EU competition law enforcement with the fundamental rights enshrined in the EU Charter (Sect.1), discusses the requirement of full judicial review introduced by the ECtHR in Menarini (Sect. 2), and analyzes the compatibility of the requirement of full judicial review with the standard applied by the Court of Justice of European Union (CJEU) in antitrust cases (Sect. 3). While in its recent jurisprudence the CJEU confirms the compatibility of its standard of judicial review with Article 47 of the EU Charter, it remains unclear whether the ECtHR would achieve the same conclusion in relation to Article 6 ECHR. The issue of compatibility of judicial review with the requirements of fair trial remains open at the national level where the courts often continue to limit their review to the procedural aspects of the competition authority’s decisions.