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The modernization of EU competition Law

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“The EC competition rules have to a large extent become the “law of the land” for the whole European Union (EU)”.[1] This has been the result of ongoing adaptation following the modernization wave of the last ten years. To ensure coherence and legal certainty, the EU has engaged in a substantive and procedural reform to implement EC antitrust provisions. The new trend is shown by the economic analysis implemented for state aid, mergers and abuse of dominant position which replaces the formalistic approach of the Commission in assessing infringement of the competition policies. The recent major changes in EU competition policies that also have to be considered result in the decentralization of the application of the EC competition rules with Regulation 01/2003, the new framework for the Services of General Economic Interest (SGEIs) and the new interpretation of article 81 EC.

The modernization of EU competition policies was mainly shaped by Case Law and Soft Law letting the « foundation Treaty » competition provisions being as they were originally – except for State Aid. Therefore it can be stated that the emergence of the EU Governance was in fact the core tool of the modernization process. Pursuant to the Lisbon Treaty, the modern EU antitrust enforcement shall take into account the « Consumer Welfare » as a Human Right protected by the EU Charter of Fundamental Rights. Also in the context of the « Lisbon Agenda », a new concept of « economic analysis » taking into account the structure of the Internal Market and IP Rights is launched. Together with the « downgrading » of the EU competition policy which was part of the EU objectives under the EC Treaty and now becomes a mere protocol under the Internal Market provisions of the Lisbon Treaty, it can be put forward that in the future the Internal Market legal base will be used to enact competition rules.

The major stakes of EU competition law concerning its prospected development may concern the application of private litigation which is still under discussion with the White Paper of 2008: should competition law be enforced by individuals or by politic institutions? Should the focus be put on « infringement deterrence » or should it be another consumer safeguard? Should then judges have an economic background as they will have to assess microeconomic effects?

[1] Press release IP/09/683: Commission adopts report on functioning of key antitrust Regulation.

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