What is the point of European Competition Law - An evaluation of the Achievement of the Single Market Goal through the use of Article 81 of the EC Treaty

Abstract: This thesis sets out to examine the relationship between integration of the Common Market of the EU and European competition legislation. More specifically, it aims to answer three questions. Firstly, whether competition law has succeeded in what it was set out to do, namely further integration of the markets of the Member States. Secondly, to what extent the aim of integration has helped shape the development of competition law, and lastly, I will throw a quick glance at what future developments that can be foreseen in this area. In answering these questions, I firstly evaluate how well the goal of furthering integration has been formulated in the provisions of the Treaty as such, and secondly, I assess the extent to which the interpretation of the treaty follows both the aim of the Member States as formulated in those provisions, and how well the interpretation in itself furthers integration. I have started my evaluation by establishing that the founders of the EU indeed used integration as a reason to include competition legislation in the Treaties leading up to the EU. This has been established through looking at which historical and political factors, as well as legal theories, that led up to the existence of European competition law. I have also looked at the actual provisions of the Treaty to see to what extent the aim can be traced there. Additional aims with European competition legislation can also be seen, the most predominant being the protection of consumer welfare. However, this thesis focuses solely on the aim of furthering integration. With that established, I have assessed how well the Member States managed in writing competition provisions that actually do further integration rather than just add complicated rules, which might work as disincentives for integration more than incentives. This assessment later forms the basis for a comparison of how well the European Courts and the Commission have pursued the integration aim. My starting hypothesis was that the Courts and the Commission to some extent went too far when interpreting the rules, and thereby beyond what the Member States intended concerning integration and sometimes even created disincentives. The comparison between the wording of the provisions and the application of them shows that the general application of the rules actually does lie rather close to the original intentions as formulated in the provisions. Furthermore, it shows that in most cases the interpretation does further integration to a large extent. Although some rulings, especially the Consten and Grundig ruling concerning territorial restrictions, may have gone too far, and in its eagerness to promote integration and the dismantling of barriers, it actually hinders integration instead. The evaluation shows that competition law has indeed played an important role in furthering integration, but also that the aim of furthering competition has to a great extent helped shape the development of competition law. The Courts' and the Commission's focus on integration can be seen in several rulings, but also in the fact that the implementation focused initially on vertical agreements rather than horizontal. This is important since vertical agreements are seen to have adverse effects on integration more often than horizontal agreements, which are classically connected with severe negative effects on competition. However, as the single market has been completed through SEA, and the political will has allowed for more and more integration initiatives outside of the economic field, a change in focus towards horizontal agreements can be seen. During this time, the aims of the EU, as described in Article 2 and 3 of the Treaty, has changed to allow for more non-economic goals, thereby increasingly shadowing the aim of non-distorted competition. In the Reform Treaty of 2007, the Member States have even ratified a draft, removing competition entirely from Article 3. These recent developments lead me to conclude that as the creation of the Single Market through the Single Market Act reaches its end in 1992, the role of competition law in the EU is greatly reduced, as does the role of integration for competition law. In the future, we are therefore likely to see less competition rulings based so heavily on integration incentives as the Consten and Grundig case. We are also likely to see a development towards competition law becoming a legal field like any other under the jurisdiction of the EU, rather than one of its main aims.