Riley, Alan. (2007) The EU Reform Treaty and the Competition Protocol: Undermining EC Competition Law. CEPS Policy Brief No. 142, 24 September 2007. [Policy Paper]
Abstract
[From the introduction] Agreement was reached by the EU member states in June 2007 to remove the competition phrase contained in Article 3(1)(g) of the EC Treaty1 from the new Reform Treaty (hereafter referred to as the competition principle) and create a 'competition protocol'2 that includes the words from Article 3(1)(g). This paper argues such treatment of the matter is inadequate to protect the current competition acquis and ensure the healthy future development of Community competition law. Far from being a minor technical adjustment, this paper argues that the excision of the competition principle from the front of the Treaty is likely to have a number of damaging consequences for EC competition law. There is a real danger that in future EC competition law will be cribbed, crabbed and confined. While price-fixers may still be fined and dominant firms such as Microsoft put under the investigatory microscope, the power of the State to distort competition through subsidy and regulation will increase. There are also serious concerns as to the extent to which the excision of the competition principle will be deployed to assist industrial policy arguments in merger control cases and frustrate the liberalisation of hitherto protected industrial sectors. The paper is divided into four parts. Section 2 considers whether a protocol is sufficient to protect the current competition acquis; section 3 considers the likely consequences if Article 3(1)(g) is not restored and the final section offers a conclusion.
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