The Gateway between UK and EC Competition Law, Section 60 of the UK Competition Act 1998

Abstract: In 1998 the UK received a new competition legislation, the Competition Act 1998. The Act contains two prohibitions, the Chapter I and the Chapter II prohibitions, which are modelled on Articles 81 and 82 of the EC Treaty. The Act also contains a very important provision in section 60, which declares that the new Act shall be interpreted in an EC harmonious manner. This essay examines section 60 in more detail. The section firstly aims at importing EC jurisprudence, which is to be used when interpreting the domestic statute. The second aim of the section is to regulate the nature and extent of this importation. Principles laid down by the EC Treaty and by the Court of Justice, together with decisions of the said court are to be complied with when interpreting the UK prohibitions. In addition, the authorities must have regard to decisions and statements of the Commission. Certain general principles of Community law must also be complied with. In certain respects the legislator has decided that the Act shall not be interpreted in accordance with Community law. The provision states that in situations where there is a ''relevant difference'' EC importation does not apply. The most important relevant difference is the single market objective. Principles relating to this objective have no relevance to the Act. EC principles will be applied when the authorities decide on questions arising under the two prohibitions, such as the correct interpretation of ''agreement''. Section 60 will further, however, influence UK procedural law to some extent. The procedural safeguards developed under EC competition procedure must be complied with. The national authorities must, accordingly, determine questions under the Act in a manner which ensures no inconsistency with jurisprudence of the Treaty and the Court of Justice. This is a strict obligation which shall safeguard that the two regimes remain on parallel tracks. Pronouncements of the Commission further have persuasive authority. When operating under the Act the authorities must identify a ''corresponding question'' under EC law, which shall serve as a model when seeking to achieve consistency. Section 60 has a further important function to fulfil in that it provides third parties with rights under the Act to sue for damages and injunctions. The Act contains no explicit reference to third party rights. Through section 60, third parties are given the same rights under the Act, as exists in relation to the Community Articles 81 and 82. Section 60 signifies a change of interpretative technique, from the literal interpretation, which normally applies to UK statutes. It is unsure whether UK courts, when faced with interpretative difficulties will be able to apply to the ECJ for a preliminary ruling under Article 234. Another issue, which is uncertain, is the consequences of section 60 with regards to the EC principles of direct effect and supremacy. Some authors suggest that the section confers the two UK prohibitions with these same features as Articles 81 and 82. This inference seems rather questionable however. The critics view section 60 as failing to provide an adequate guide for interpretation for UK businesses and courts. Some further think that the whole affair of importing EC law into UK law is wrong from the outset and that EC law is a flawed blueprint. It is feared by some that the provision will mean the subordination of UK law to the detriment of a healthy evolution of competition law. I personally, view the section as a positive contribution to the UK, which will provide the legal system with a much needed modernisation of the competition law.