Chillin'Competition

Issue 6 of this year’s volume of the Journal of European Competition Law & Practice came out a few days ago. Among others, it features an editorial of mine (available for free here), where I discuss one of the most interesting and potentially consequential trends of the past few years in the case law of the General Court.

In some recent judgments, Article 106 TFEU case law has occasionally found its way into some competition law rulings. Even though this trend has not caught the attention of many commentators, it has the potential to transform EU competition law in fundamental ways.

It cannot be emphasised enough that Article 106 TFEU does not apply to undertakings, but to Member States. One consequence that follows from this fact is that this case law cannot be transposed, as such, to cases dealing with the application of Articles 101 and 102 TFEU.

A second consequence is that Article 106 TFEU case law is by necessity stricter than its Article 101 and 102 TFEU counterpart. In particular, it makes sense to impose non-discrimination obligations, applicable across the board, on Member States, but not on private undertakings.

When the conduct of the latter is at stake, such non-discrimination obligations are only relevant, if at all, under very narrow circumstances. From selective distribution to exclusive dealing and refusal to deal, discriminatory conduct by private firms is pervasive and, most of the time, wholly unproblematic.

Cases like International Skating Union and Google Shopping are interesting in that they challenge this received wisdom (and well-established case law).

International Skating Union, for instance, relies primarily on MOTOE, even though the latter was never about the behaviour of private undertakings, but about legislation conferring an advantage to one firm over its rivals (and thus at odds with the principle of equality of opportunity).

In Google Shopping, the General Court draws from cases dealing with the principle of equal treatment as it applies to the EU legislature, and refers to it as if it could be directly transposed to the behaviour of dominant firms, which, as the law stands, are only subject to the principle under the very qualified scenarios identified by the Court of Justice in Deutsche Telekom.

It remains to be seen whether these ideas will be embraced by the Court of Justice. What matters is that, if the legal revolution ever comes to be, the transformation and its implications are openly acknowledged and discussed.