The modernisation of EC antitrust law

272 Pages·2000·1.87 MB·English

by  Rein Wesseling

THE MODERNISATION OF EC ANTITRUST LAW
Studies in European Law and Integration
General Editors
Professor Francis Snyder
Professor Miguel Maduro
Advisory Editors
Professor Christian Joerges (EUI, Florence)
Professor Jo Shaw (Leeds)
Professor Joseph Weiler (Harvard)
Professor Stephen Weatherill (Oxford)
Titles in this Series
Rein Wesseling:The Modernisation of EC Antitrust Law
Candido Garcia Molyneux:The Unfair Trade Instruments of the EUand USA
Francis Snyder (ed.):The Europeanisation of Law:The Legal Effects of
European Integration
The Modernisation of
EC Antitrust Law
REIN WESSELING
OXFORD – PORTLAND OREGON
2000
Hart Publishing
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© Rein Wesseling, 2000
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To M.

Preface
This book is a revised and updated version of a PhD thesis, defended on 1 March
1999. The research for that thesis was conducted at the European University
Institute (Florence, Italy). The thesis was revised and turned into this book
during a leave of absence from practising law at De Brauw Blackstone
Westbroek/Linklaters & Alliance.
I would like to thank the European University Institute, which provided fund-
ing, for the opportunity to write the thesis. I am also grateful for the financial
support of NUFFIC and of the European Commission. While at the European
University Institute I profited from the insights provided by Professors Giuliano
Amato, Claus-Dieter Ehlermann, Christian Joerges and Francis Snyder. I thank
them for their input.
The thesis was defended before a committee consisting of Professors Daniel
Goyder, Piet-Jan Slot, Christian Joerges and Francis Snyder. I thank the com-
mittee members for their comments. In particular I would like to express grati-
tude to Christian Joerges and Daniel Goyder for their support after the defence,
which stimulated me to write this book. It would not have been possible to do
so without the support of De Brauw Blackstone Westbroek/Linklaters &
Alliance.
In all stages my parents supported me in innumerable ways. I remain grateful
for their continued generosity. No less am I indebted to Marieke Smithuis. Her
incessant love and inspiration (and, admittedly, her capacity to do very well
without me) enabled me to write this book.
R.W.
Amsterdam, 1 April 2000

Table of Contents
Dedication v
Preface vii
Table of Abbreviations xi
Table of Cases xiii
Introduction 1
Part I. The Development of the Current System of
EC Antitrust Law Enforcement
1 The Transformation of Community Antitrust Law
Enforcement 9
Introduction 9
1.1 The EEC Antitrust Rules in the Treaty Framework 10
1.2 The First Phase of Community Antitrust Law
Enforcement: Eliminating Impediments to Trade 22
1.3 The Second Phase: Certain Positive Measures 33
1.4 Completing the Internal Market: The Single European
Act and Merger Control Regulation 41
Conclusion 48
2 The Transformation of the Community’s Constitution 51
2.1 From International Treaty to Constitutional Charter 54
2.2 From Negative to Positive Integration 59
2.3 Beyond the Internal Market 64
Conclusion 72
Part II. The Modernisation of EC Antitrust Law in
Light of the General Development of EC Law
3 Objectives of EC Antitrust Law 77
Introduction 77
3.1 Critique of EC Antitrust Law Objectives 80
3.2 Analysis of the Criticism of EC Antitrust Policy
Objectives 85
3.3 Modernisation of EC Antitrust Policy Objectives 96
Conclusion 112
x Contents
4 The Division of Jurisdiction between EC and Member
State Antitrust Laws 115
Introduction 115
4.1 The Relationship between Articles 81 and 82 EC
and National Antitrust Law 116
4.2 Mergers 130
4.3 The Modernisation of Community Antitrust Law
Jurisdiction 138
Conclusion 156
5 Institutional Issues at the Central Level 159
Introduction
5.1 EC Antitrust Legislation 160
5.2 Enforcement Procedure 161
5.3 Evaluation of the Present System 164
5.4 Independent Agency 168
5.5 The Modernisation of the Institutional Framework 174
Conclusion 187
6 Institutional Issues at the Decentral Level 191
Introduction 191
6.1 Current Framework 193
6.2 The First Attempt to Decentralise: The Commission
Notices 198
6.3 More Radical Reform: The White Paper on
Modernisation 207
6.4 Modernisation of Co-operation between the
Commission and National Institutions 212
Conclusion 220
Conclusion 223
Bibliography 227
Index 247