Ben Van Rompuy, Dec 13, 2011
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 major reorientation of the objectives of the Union. Competition is no longer an objective of the Union, or an end in itself, but a means to serve the internal market.”
According to Article 51 TEU, protocols form an integral part of the Treaties. The legally binding nature of the Protocol was therefore undisputed. Nonetheless, several commentators feared that the replacement of Article 3(1)(g) EC, in substance, by an obscure protocol would downgrade the constitutional status of the competition rules within the EU legal order. They argued that this might inform the EU courts to depart from the pre-Lisbon case law, which frequently relied on Article 3(1)(g) EC as an interpretative guidance for the application of the Treaty competition rules.
Two years after the Lisbon Treaty became law it is now possible to review some of these gloomy forecasts in light of recent case law of the EU courts. This article focuses on the implications of the Lisbon Treaty for two long-standing fundamental principles developed in the case law: the constitutional status of the Treaty rules on competition (section 2) and the concern of EU competition law with harm to an effective competition structure (section 3).