Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

PRICE DISCRIMINATION UNDER EC COMPETITION LAW: ANOTHER ANTITRUST DOCTRINE IN SEARCH OF LIMITING PRINCIPLES?

The main objective of this article is to shed light on the compatibilityof price discrimination with EC competition law. We offer ananalytical framework which distinguishes between different categoriesof price discrimination depending on their effects on competition.Our framework suggests that different tests are needed to assessthe lawfulness of price discrimination practices under EC competitionlaw. A related objective of the article is to show that Article82(c), the main Treaty provision dealing with price discrimination,should only be applied to the limited circumstances where anon-vertically integrated dominant firm price discriminatesbetween customers with the effect of placing one or severalof them at a competitive disadvantage vis-a-vis other customers(secondary line injury price discrimination). In contrast, Article82(c) should not be applied to pricing measures designed toharm the dominant firm's competitors (first line-injury pricediscrimination) or to partition the single market across nationallines.     

Towards a European Code Napoléon/ABGB/BGB? Recent EC Activities for a European Contract Law

Abstract:  Contract law issues on European or international level have been studied for several decades in academic circles. Contract law issues and other questions affecting European private law have already been regulated in the past on EC level, especially in the framework of several consumer protection directives. The European Contract Law project initiated by the European Commission received new impetus with the Commission's Green Paper of 2004. Emphasis is laid on developing a 'common frame of reference' (CFR) which shall be ready by 2009. A so-called 'optional instrument' and standard terms of contract are also looked at. The article explains the reasons behind these activities, describes the work currently under way, and points to a series of open questions of a legal or political nature.     

Exceptions to Article 226: Alternative Administrative Procedures and the Pursuit of Member States

This article considers the procedures used in EC law to prosecute infringements committed by Member States, in addition to the well-known Article 226 (ex Article 169) EC. It has three purposes. The first is to systematise the main categories of these, to examine the reasons for the creation of these procedures and the interaction among them, using Article 226 as the main point of reference. The basic criterion is the distinction between procedures established by the EC Treaty and procedures established by secondary legislation but without a clear legal basis in the Treaty. The second purpose is to explain why Member States have accepted the development of new procedures, even though they serve to reinforce the Commission's powers. The article argues that this acceptance can be explained, first, by the active participation of Member States, through committees, in the establishment of these procedures; and, secondly, a deliberate strategy to convince Member States, on both a sectoral basis, and a case-by-case basis, by the Commission. The article concludes, however, that the current procedures should be improved and that it is time for them to be realigned and rationalised.     

Decentralised Environmental Taxation in Indonesia: A Proposed Double Dividend for Revenue Allocation and Environmental Regulation

This article proposes a means for implementing environmentaltaxes in Indonesia at the sub-national government level, asa mechanism for correcting resource misallocation and negativeexternalities, specifically environmental protection and clean-up.The concept of environmental taxation is first reviewed, ingeneral terms. The ongoing fiscal decentralisation in Indonesiais then discussed as a potential legal framework for environmentaltaxes at a sub-national level. It is suggested that a combinationof environmental taxation with fiscal decentralisation wouldgive provincial and local governments in Indonesia a much-neededincreased revenue stream. It would also provide a further greendividend of effectively regulating and ameliorating negativeenvironmental effects. Implementation of the Indonesian fueltax beginning in 1997 is considered briefly as an actual casestudy of such environmental taxation at the sub-national level,with discussion of the effectiveness and efficiency in its (limited)administration by regional governments rather than the centralgovernment. Finally, within the context of fiscal decentralisation,widespread corruption and other potential hindrances to implementingenvironmental taxes at the provincial and local government levelin Indonesia are discussed and areas for further research andstudy are suggested.     

Environmental Protection and EC Anti-Trust Law: The Commission's Approach for Packaging Waste Management Systems

The use of environmental agreements by companies as a tool to improve environmental protection can be hindered by a strict interpretation of competition rules. This article analyses how the European Commission attempts to reconcile the requirement of environmental protection with anti-trust law, by examining the principles that the Commission has defined in its assessment of packaging waste management systems. Although the Commission has considered that some agreements concluded under these schemes were restrictive of competition, it decided not to prohibit them. This article argues that, although attention is given to environmental considerations, the arguments invoked to justify the exemption of these agreements do not allow for integration of environmental protection, as such, in European competition policy. An alternative would be to apply standards of assessment comparable to those used to justify exceptions to the free movement of goods.     

COMMERCIAL AGENCY AGREEMENTS, VERTICAL RESTRAINTS, AND THE LIMITS OF ARTICLE 81(1) EC: BETWEEN HIERARCHIES AND NETWORKS

Commercial agency agreements benefit from a specific competitionlaw regime with regards to the application of Article 81 ofthe Treaty of the European Communities (hereinafter Article81). Although they may contain clauses that can produce anticompetitiveeffects, such as minimum price fixing, these are generally foundoutside the scope of Article 81 paragraph 1 [hereinafter Article81(1)]. In comparison, if a franchise or selective distributionagreement contains resale price maintenance clauses, Article81(1) may apply. The existence of a distinct competition lawregime for commercial agency agreements constitutes a paradox,as from an allocative efficiency perspective it makes no senseto distinguish between the two situations. By adopting a new-institutionaleconomics perspective, this study will provide a justificationfor this specific competition law regime. The agency agreementsexception will be considered as a specific form of the singleentity defense that operates in situations of hierarchy. Othervertical restraints are mainly organizational mechanisms usedin situations of network forms of organization. The distinctionestablished between these agreements could thus be theoreticallydefended. More generally, the comparative institutional analysisof vertical restraints will provide a useful insight to delimitthe boundaries of Article 81(1).     

EC Merger Control: From Separate Jurisdictional Zones to a Cooperation Based Architecture?

The EC Merger Control Regulation(MCR) established an architecture ofconcentration control based on separate,non-overlapping jurisdictional spheres forMember states and the European Commission, withthe Commission alone having jurisdiction overconcentrations with a competition concern thatpotentially have a Community interest. Therationale is that this will help guarantee thelevel playing field for business and safeguardthe Single Market. This, of course, is verymuch dependant on the architecture working inpractice. The Community Dimension (CD) testsare at the centre of the architecture ofseparate jurisdictional zones, determiningwhich concentrations have a CD and hence aCommunity interest. The paper reveals that thecurrent form-based CD tests are flawed,undermining the effective operation of thearchitecture. It explores three competingproposals put forward to remedy the above flaw:an enhanced role for Article 22 MCR, a singlefine-tuned threshold test and, thirdly, theCommission's multiple notification approach.The paper contends that these proposals aloneare not sufficient to make the architectureeffective. It argues that what is required isan improved CD test applied in conjunction witha harmonised Articles 2 and 9 MCR approach. Inline with the Commission's desire to considerthe long term shape of EC merger control, thepaper concludes by looking at a radicalalternative to the efforts to fine-tune thearchitecture of separate jurisdictionalspheres. By way of stimulating debate, itconsiders an EC merger control based on anetwork of cooperation involving Member states'regulators and the Commission, and with allapplying EC merger law.     

欧洲共同体竞争法实施过程中面临的冲突及对策

竞争法是欧共体法律体系中影响较大的一个部门。它的形成与发展,使共同体内并存着两种相互独立的竞争法及其执行机制。因此,竞争法在实施过程中,出现了一系列的冲突和矛盾。共同体通过二次立法,采取了一系列相应的措施:重新调整竞争法主管机构的权限,平衡竞争法管辖上的矛盾;确立共同体竞争法的效力优于成员国竞争法的原则,协调共同体竞争法适用上的冲突;加强竞争法实施的国际合作,化解欧共体竞争法域外适用过程中产生的困难。这些措施有效地清除了竞争法实施的障碍,推动了欧洲经济一体化的进程。     

A Disabled Market: Free Movement of Goods and Services in the EU and Disability Accessibility

Individuals with a disability who wish to use goods and services can have a variety of specific needs, ranging from accessible written information to standard products and services which have disability accessibility features built into them. In light thereof, this article focuses on the impact which Community law has had, and could potentially have, on ensuring an EU‐wide market in products and services which are accessible to consumers with a disability. The article examines the (possible) impact of a variety of provisions, including the rules relating to the free movement of goods and services (Articles 28 and 49 EC, respectively), the internal market (Articles 94 and 95 EC), non‐discrimination (Article 13 EC), EU citizenship provisions, and the work of the European standardisation bodies such as CEN. The central question throughout the article is does EC law allow for, or discourage, the establishment of mandatory disability accessibility standards at the national or EU level, and have the provisions been used to permit or establish such standards to date?     

Database right after BHB v. William Hill: Enact and repent at leisure

The British Horseracing Board (BHB) cases, with their perceived narrowing of the scope of database right, pointed up the need for those in the information supply business (financial data, sports listings and otherwise) to rely upon more traditional points of law to protect their investments. Subsequent UK litigation with the BHB has examined some of those points – will a contractual restriction be effective if there is no underlying intellectual property right? and, in an interesting twist away from database right itself, how do you determine whether pricing is excessive in assessing abuse under Article 82/Chapter II competition claims? This article, along with a look at the final episode in the original BHB cases, takes up this story. It also considers how the ECJ BHB judgments are being applied elsewhere in Europe, and the Commission's own evaluation of database right launched at the end of 2005.     

Integrating Environmental Protection and EU Competition Law: Why Competition Isn't Special

One of the biggest challenges facing environmental policy makers at present is that of integrating environmental protection goals into economic policy areas. Unless this is genuinely achieved, it is clear that environmental degradation will continue apace. Though one of the EU's most important areas of economic competence is competition policy, many policy makers and commentators reject the notion that environmental concerns should play a significant role in EU competition analysis. In that light, this article addresses two key questions. First, should this approach apply? Second, if not, what are the principles that govern how environmental protection requirements should be taken into account by decision makers applying EU competition law? In answering these questions, the article puts forward three theoretical arguments as to why, and how, the environmental benefits and damage flowing from goods and services should be taken into account by EU competition decision makers, based, respectively, on legal systematic, governance and economic reasoning.     

Competition for Sustainability: Sustainable Development Concerns in National and EC Competition Law

Competition law has become increasingly important in regulating the economy. This article aims to explore how domestic competition law relates to sustainable development. It distinguishes three ways that competition law can take into account environmental and social priorities: through substantive competition rules fostering social or ecological purposes; through exceptions, exemptions and exclusions; and through the enhanced application of competition laws. The first form is very interesting and currently not very widely used. Only a very few countries, such as South Africa, have included substantive provisions to promote social development in their competition laws. Most countries allow for some version of the second form of sustainable competition law. Few countries' laws are as outspoken about their public policy goals as is Spain in its new draft competition law. This new draft law explicitly lists environmental protection and social policies as grounds upon which the government could repeal a competition decision. The third form is relatively unproblematic as it creates a win-win situation for competition and sustainable development. This article surveys some of the most interesting competition law developments across the world and indicates where these domestic regimes take into account environmental or broader social issues when making competition-related decisions such as merger approvals.     

Constitutional Right to a Healthy Environment in Belgium

Since 1994, the right to a healthy environment has been recognized under Article 23 of the Belgian Constitution. It contains a standstill clause, which precludes the authorities from reducing substantially the level of environmental protection without reasons of public interest. The effectiveness of Article 23 of the Constitution has remained unclear for a long period. Therefore, the legal protection of the environment has more often been achieved through reliance on the right to respect for private and family life, guaranteed by Article 22 of the Belgian Constitution and by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), both of which have provisions with direct effect. The scope of protection of Article 23 of the Constitution is broader than the one provided by Article 22 of the Constitution and Article 8 of the ECHR, which is limited to nuisances with an effect on the person's private or family sphere, excluding a more general protection of the environment. However, the standstill provision in Article 23 only precludes the State from decreasing the level of protection of a healthy environment where this protection is provided for by law. It does not preclude retrogressions regarding 'factual' situations. In this regard, claims founded on Article 8 of the ECHR and Article 22 of the Constitution still have their utility. As a result, Article 23 and Article 22 of the Constitution and Article 8 of the ECHR are complementary to a certain degree.     

The European Commission's Guidance on Article 102TFEU: From Inferno to Paradiso?

The European Commission has for the first time issued a document expressing its official position on the enforcement of Article 102TFEU which prohibits the abuse of a dominant position on the Common Market. The Commission Guidance on enforcement priorities in applying Article 102TFEU to exclusionary abuses (adopted in December 2008) has ended a review of about four years. Given the increased enforcement of Article 102TFEU at the European level and the fact that many national provisions in the EU on unilateral conduct are modelled after Article 102TFEU, how the Commission intends to enforce Article 102TFEU is crucial for the application of competition law and the undertakings subject to it under European and/or national laws. The review period was preceded by severe criticisms of the Commission's approach to Article 102TFEU for protecting competitors instead of competition and for being insufficiently grounded in modern economic thinking. At the heart of the review and the discussions surrounding it lay the question of the objective of Article 102TFEU. Some, including the Directorate General for Competition claimed the objective to be ‘consumer welfare’, whereas some argued that ‘consumer welfare’ cannot be adopted as the objective at the expense of the protection of the competitive process. This article critically reviews the Commission Guidance, with an eye to assessing the ultimate objective of and the test of harm under Article 102TFEU. After discussing whether the Guidance indeed sets priorities, it examines the general approach of the Guidance to exclusionary conduct. It points out that despite there being some welcome novelties in the Guidance, there are also suggestions therein whose legitimacy and legality are questionable. Reflecting on the Guidance as a soft‐law instrument, the article argues that although regarding the objective of Article 102TFEU, the Commission's apparent tendency towards ‘consumer welfare’ is not unlawful, the reform of Article 102TFEU to bring it more in line with modern economic and legal thinking seems to be far from complete.     

Trading rule of law for recovery? The new EU strategy in the post-Covid era

The ambition of this article is twofold. First, it argues that, in order to enhance respect for the rule of law by its Member States, the EU has launched a new strategy albeit essentially based on mechanisms which were not specifically designed to protect the rule of law. Second, the article aims to clarify the notion of rule of law resulting from this strategy and to subsequently analyse its consequences. In doing so, this article will thereby demonstrate that the instruments used by the new strategy promote a notion of the EU rule of law which implies a constant arbitrage between the rule of law and the economic objectives pursued by the EU. The risk may be, however, that it would subjugate fundamental values (as defined in Article 2 TEU) to the logic of European economic integration, thus inverting the hierarchy between protection for the rule of law and economic values.     

Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgements?

Article 260(2) TFEU (ex 228(2) EC) enables the European Court of Justice to enforce compliance with its judgements. This article analyses its use in doing so and questions whether it could be applied more effectively. It commences by highlighting the principally economic and environmental context of the case‐law, and by examining the initiatives taken to tackle delays in bringing these cases before the Court. The article then critically evaluates the effectiveness of the financial sanctions available to the Court. In doing so, it aims to fill a gap in present research by looking beyond the procedural measures through which the Court and the Commission operate to examine the practical impact of Article 260(2) itself.     

To What Extent are Cost Savings Passed on to Consumers? An Oligopoly Approach

Competition policy often asks whether a “fair share” of the benefits from cost savings obtained through mergers or agreements is passed on to the consumers. We assess the factorsthat determine cost pass-on in some partial-equilibrium oligopoly models, and show that, although the strength of the pass-on varies from one situation to another, there are some rules of thumb that give a first approximation of the pass-on rate. We also show that, contrary to common belief and to what is written about the subject in the European Commission's guidelines on the application of Article 81(3), in most circumstances cost pass-on does not depend on the price elasticity of demand nor on the market share of the cost saver, and that with competition the pass-on of firm-specific cost savings is weaker than without. JEL Classification: C72 (non-cooperative games), D43 (oligopoly), L40 (antitrust policy)     

The Cultural Mainstreaming Clause of Article 151(4) EC: Protection and Promotion of Cultural Diversity or Hidden Cultural Agenda?

Abstract:  The purpose of this article is to examine the cultural competences attributed to the Community, placing particular emphasis upon the cultural powers conferred by paragraph 4 of Article 151 EC, which entrusts the European institutions with the task of taking cultural aspects into account in their action under the various provisions of the EC Treaty, in order to respect and to promote cultural diversity. The cultural cross-sectional clause of Article 151(4) EC, by calling for a reshaping of EC decision-making in other policy areas, which have to give due consideration to the impact they might have on cultural matters, enables the attainment of cultural objectives under EC headings other than Article 151 EC. In an attempt to inquire into this less-widely discussed facet of EC cultural action, the analysis highlights the principal characteristics of Article 151(4) EC and explores the influence it has exerted on both judicial and legislative Community practice.     

Legal grounds to process personal data under Spanish legislation after the ECJ Judgment of 24 November 2011 (the ASNEF and FECEMD case)

Spanish law on personal data protection regulates (among other issues) the legal bases that permit the processing of data in a way that is similar to that set out in Directive 95/46/EC. Consent constitutes the general rule although data may be processed without it if necessary for administration functions, within the framework of a contractual relationship, in order to safeguard the vital interests of the data subject or if they are included in sources accessible to the public. However, unlike the Directive, legitimate interest is not recognised as an independent reason for processing data, whereas a legal ground that is not set out in community law is included, i.e., sources accessible to the public. This paper analyses these two cases, taking as its starting point consent, along with the consequences that the ECJ Judgment of 24 November 2011 regarding the interpretation of Article 7 of Directive 95/46/EC may have and giving attention to the revision of this Directive itself.