The Impact of the Lisbon Treaty on EU Competition Law: A Review of Recent Case Law of the EU Courts

When the EU leaders agreed on the final version of the Lisbon Treaty, one particular amendment caused turmoil in the European competition law community. The Lisbon Treaty suppressed the 50-year-old commitment to “undistorted competition,” embedded in the fundamental provisions of the Treaty establishing the European Community (‘EC’). According to Article 3(1)(g) EC, the activities necessary to achieve the objectives of the Community included “a system ensuring that competition in the internal market is not distorted.” Since the Lisbon Treaty came into force on December 1, 2009, there has been no Treaty provision proclaiming adherence to the principle of undistorted competition. The substantive content of Article 3(1)(g) EC is transferred to a Protocol (No 27) on the Internal Market and Competition, annexed to the Treaty on European Union (‘TEU’) and the Treaty on the Functioning of the European Union (‘TFEU’).

The suppression of the reference to undistorted competition is generally attributed to the insistence of the French delegation. It finds its origins in the abandoned draft Treaty establishing a Constitution for Europe (‘DTCE’), which, for the first time, expressed competition as an objective in its own right (rather than an activity). French President Sarkozy opposed, arguing that the belief in the merits of competition had become dogmatic. Following the negotiations leading to the Lisbon Treaty, he triumphantly declared: “We have obtained a majo