Hammering out Public Restrictions of Competition
Article 101 and 102 TFEU have little grip against public restrictions of competition.
Of course, Article 4(3) TEU, read in conjunction with Articles 101 and 102 TFEU may provide a legal basis to challenge public restrictions of competition in the context of infringement proceedings. But to date, the Commission has been understandably reluctant to take Member States to Court. And to the best of our knowledge, the Italian matches case-law (ECJ, Consorzio Industrie Fiammiferi (CIF), C-198/01), which compels NCAs to declare such measures inapplicable, has been little applied in practice.
With this background, it will often fall on “positive integration” measures (read EU regulations) to remove public restrictions of competition. In connection with this, my research assistant Norman Neyrinck recently informed me of an interesting ECJ ruling that I had overseen.
In Société fiduciaire nationale d’expertise comptable v. Ministre du Budget, des comptes publics et de la fonction publique (C-119/09) the Court found that Directive 2006/123 on services in the internal market (AKA the “Bolkestein Directive“) “ought be interpreted as precluding national legislation which totally prohibits the members of a regulated profession, such as the profession of qualified accountant, from engaging in canvassing“.
This is likely to have profound practical implications, given the wide substantive scope of the services directive. Other regulated professions (legal services?) may no longer apply bans on advertising to their members.
And this is likely to also have important cultural consequences. See video hereafter:
Chillin'Competition 
Very timely post! Look at the recent decision of the Spanish CNC in Uva de Jerez (not yet published, although there is a press release at http://www.cncompetencia.es/Inicio/Noticias/tabid/105/Default.aspx?Contentid=398554&Pag=1).
The authority has found that the Consejería de Agricultura y Pesca of the Region of Andalucía is responsible for an infringement of article 101 TFEU, although it is not fined. However, the message sent by the CNC is clear and indicates that it may fine public administrations in the future!
There is a dissenting vote, so there will be debate in the coming weeks.
Congrats for the Blog. A “must read” site!
RBZ
10 October 2011 at 10:43 am
Thanks, RBZ, for the comment and for the kind words on the blog. I have just checked the press release and I´m speechless! This decision deserves its own post as soon as the decision comes out. The CNC always at the avant garde of EU competition law…
Alfonso Lamadrid
10 October 2011 at 11:55 am
I would say .. “an own goal”… for Spain…
Anonimous
10 October 2011 at 7:10 pm
This is very interesting:
It appears that the socialist party will not only lose the general elections in Spain, but also all of the Autonomus Communities it currently governs.
One of the few institutions with any power that will be kept under their control will be the Competition Authority (as you reported some days ago, they have just appointed a new President -with no experience in competition law- and new members of the Council).
And now, just a few weeks ahead of the elections, the CNC comes out with a new theory that enables them to impose sanctions upon public political bodies.
How convenient!!
EGD
12 October 2011 at 10:47 am