Chillin'Competition

A lot happens in EU competition law, and very fast. As a result, we tend to forget discussions, doctrines and authors all too soon. One of the (many) upsides of being an academic is that I am less subject to this ‘tyranny of the present’ (read: I have more time). I take great pleasure in reading distinguished authors, even if it often leads to some embarrassment – we think we have just come up with a new idea only to find out that someone has already developed it, and more eloquently that one would ever be capable of doing.

I have recently been reading some of Giuliano Marenco’s work. I thought of saying a word about him since some of our readers – many of whom are undergraduate or postgraduate students – may never have heard this name before. Giuliano Marenco is probably one of the biggest brains ever to have worked at the Legal Service of the European Commission (he retired about a decade ago). It transpires from his crystal clear writing (irrespective of the language) that he was an effective advocate.

As a lot of good writing, some of Giuliano Marenco’s articles have not lost a bit of their topicality. They are as lucid and relevant today as they were 20 or 30 years ago. This is so because they display a very rare understanding of the underlying issues. Here is a personal top three that I would recommend to any competition law student (note to self: find an excuse to include at least one of them in future years’ syllabi):

• ‘Competition Between National Economies and Competition Between Businesses–A Response to Judge Pescatore’: The great Pierre Pescatore sometimes held controversial views, for instance in relation to the direct effect of GATT/WTO provisions and about the scope of EU competition law (which he argued could be used to strike down national legislation with anticompetitive effects). In this article, Marenco skilfully challenges the second of these claims and, in the process, displays a lucid vision of the interaction between the EU and national legal systems, and of the limits of what can be achieved under EU law. That is an eternal topic, and the paper will definitely make some readers think about some ongoing debates…
• (with Karen Banks) ‘Intellectual property and the Community rules on free movement: discrimination unearthed’ (1990) 15 European Law Review 224: Anyone who follows the blog knows that I have a keen interest in the interface between EU law and intellectual property. This is one of the best two or three articles I have read on the question. It is very useful to understand the debates about the exhaustion of intellectual property rights, which is not the easiest of topics (and which, I concede, is not the most attractive of topics either, but this fact does not make it any less important). It also does what good legal research should do: uncover guiding principles that are implicit in the case law.
• ‘La notion de restriction de concurrence dans le cadre de l’interdiction des ententes’, published in the Melanges en hommage à Michel Waelbroeck (Bruylant 1999). I keep a paper copy of this piece preciously, as it is difficult to find. I include it because it presents an approach to Article 101(1) TFEU that is almost forgotten (the piece is likely to be very different from any article that is published these days). The interpretation advanced did not win the day (or so I think, at least), but it is thoughtful and sophisticated. It is also useful to understand where we come from.

[The picture is an example of the wonders of Google images: it seems that it dates back from his years as a High School student, and it is the only picture of him I was able to find!]