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This new book takes a step back, and tries to understand the current challenges to EC competition policy by examining the origins of the Community's competition law system. In the first part of the book the author sketches the development of Community competition law enforcement between the European Economic Community, established in , and the European Union of today. Taking this dynamic perspective on EC competition law, the second part of the book addresses topical problems of EC competition policy; the pertinent objectives, the institutional framework, the division of jurisdiction between the Community and Member States, and decentralised enforcement of Community law.

Notably, the author's conclusions diverge considerably from the analysis found in the Commission White Paper on Modernisation. The author proposes various alternative solutions to the existing problems which, arguably, fit better within the overall constitutional development of the Community than the solutions offered by the Commission. The book will be of interest to competition lawyers as well as to all those interested in the constitutional development of the European Community. Free Returns We hope you are delighted with everything you buy from us.

On the one hand EEC antitrust law aimed to promote integration by guaranteeing the proper functioning of the free 39 Emphasis in enforcement action lay on market-sharing, quotas and price-fixing. See Commission of the EEC, above, n. Several European and non-European firms which manufactured marine paints had formed the Transocean Marine Paint Association. The Association had as its object the distribution and sale of special types of marine paint, next to the normal ones which were marketed by the member individually.

In spite of a clause in the agreement which conferred territorial protection normally per se prohibited under EC antitrust law , the Commission exempted it from the prohibition in Art. Unsurprisingly given the frequent use of these contracts and their obvious effects on the unity of the common market, the decision concerned exclusive distribution. Grundig had concluded an agreement with Consten on the basis of which Consten would be the sole distributor of Grundig products in France.

Grundig transferred its trade mark rights for the French territory to Consten, which in turn agreed not to sell Grundig products outside France. The territorial protection thus established on the basis of an exclusive distribution agreement prevented any form of parallel imports. Subsequently, the ECJ also ruled explicitly that agreements between undertakings may not, under the EC antitrust rules, restrict the free flow of goods. See, e. On the other, freedom of competition did not include those business practices which were capable of dividing the market along national lines, even if such behaviour enhanced competition.

The effect of these principles on practice is evident from the early Commission decisions regarding selective distribution systems. It provided a negative clearance for those clauses. The fact that Omega had limited the number of authorised sellers in proportion to the expected level of sales in the relevant area was, however, judged to restrict competition because it could lead to market division on a territorial basis. The Commission did not provide an exemption to the provisions on the basis of Article 81 3. In its examination of the compatibility of joint ventures with Article 81 EC the Commission tended to conclude at first instance that co-operation between potential competitors was likely to restrict competition.

The Commission would thus hold joint ventures to infringe Article 81 1 EC because of the restriction they implied on the freedom of firms to deal with others. Not blind to the positive effects on competition, however, the Commission often exempted those anti-competitive 43 Selective distribution is a distribution system in which only those distributors which fulfill certain criteria, usually regarding presentation, the outlet or expertise of the distributor, are permitted to sell a product.

The first fines for antitrust law infringements were levied for naked restraints. If so, the agreement was automatically judged to restrict competition and to fall within the scope of Article 81 1 EC. That assertion then opened the way for a more comprehensive assessment of the actual effects of the agreement on competition.

The Commission exempted those elements of the agreement which it considered not to be detrimental to the establishment of the common market and in which the supposed anticompetitive effects of the restraints on the freedom of one of the economic parties were balanced by other beneficial effects on competition. As a consequence of this approach, the Commission would regularly issue an exemption to the prohibition to restrict competition for agreements which the Commission itself considered not to reduce competition.

Companies were therefore obliged to notify agreements with a positive or neutral effect on competition in order to obtain an exemption. First, time was needed to interpret the concept of abuse of a dominant position within the framework of the EEC Treaty. In its SABA decision, e. See further on the balancing of the economic effects when applying Art. Samkalden and I. See, extensively on the origins of the abuse concept in Europe, Gerber, above, n. It concluded that an already dominant firm which expanded that dominance through an acquisition thus abused its dominant position.

This reasoning was inventive. From the text of Article 82 EC it appeared that the provision would be activated only where a dominant undertaking actually abused its dominance. The appropriate test would then have been whether Continental Can would have been able to acquire the shares of the Dutch company had it not held a dominant position. Continental Can pleaded this test but the Commission turned it down.

The Commission reasoned, consistently with its decisions in the area of Article 81 EC, that a reduction in the number of different products available, which the take-over would cause, restricted the free choice of consumers and, thus, restricted competition. Article 82 EC is therefore less illustrative of the Commission conception of Community antitrust law.

About EC Competition Law

First, free competition is interpreted in a way specific to the European Community. The main objective of the EEC, economic integration, played an important role in Commission enforcement of Community antitrust law. Secondly, the conception of free competition is derived from a belief in economic freedom of parties. Restricting the economic freedom of undertakings and consumers to chose between suppliers and products constitutes an infringement of Community antitrust law.

It should be noted however that the absence of official Commission decisions does not mean that there was no enforcement of Art. Rather, the Commission used its powers in the realm of Art. It was often able to ensure protection of SMEs without having to reach final decisions. Commission threat of action where small firms suffered from boycotts was typically sufficient for restoring competition without its having to have recourse to formal decisions: W.

There was broad political concern among the Member States about take-overs of European companies by American ones. In addition anxiety had arisen more generally about the increasingly concentrated state of European industry: J. Even before Regulation 17 had come into force and the Commission became active in policing antitrust problems, the Court had handed down a judgment in a preliminary reference procedure dealing with Community antitrust law. The Court ruled that although Articles 81 and 82 EC had in principle been applicable from the time of the entry into force of the Treaty they could not be relied upon before national courts in absence of an adequate enforcement framework.

The area of Community antitrust law which the two institutions approached differently was the interpretation of Article 81 EC. Where the object of the agreement is not clearly and intentionally damaging competition, its market consequences should be examined before a conclusion on its anticompetitiveness can be drawn.

In STM v. Maschinenbau Ulm, for instance, the Court ruled explicitly that the competition in question was to be understood in its economic context. Reference was made to the market situation as it would materialise in 55 De Geus v. Bosch, above, n. The Community has its own institutions, independent of the Member States, endowed with the power to take administrative measures and to make rules of law which directly create rights in favour of and impose duties on Member States as well as their authorities and citizens. The EC Treaty contains in addition provisions which are clearly intended to be incorporated in national law and to modify or supplement it.

Examples of such provisions are Articles 85 and 86 [now Arts. As has been said, Arts. The Transformation of Community Antitrust Law Enforcement 29 the absence of the relevant agreement or clauses. Yet the Court was not consistent in this approach. Maschinenbau Ulm, is illustrative. Departing from its market analysis, the Court held that an agreement between a producer and distributor could restore the division of the common market along national boundaries. Sheltered from all effective competition the distributor could charge arbitrary prices for Grundig products on the French market.

In particular, the nature and quantity of the products covered by the agreement, the position on the market of the relevant companies, the isolated nature of the disputed agreement or its position in a series of agreements, the severity of the clauses and the opportunities allowed for other commercial competitors in the same products by way of parallel re-exportation and importation. Commission, above, n.

Analogously, the Court held with respect to the alternative criterion which has to be fulfilled in order for Art. See further on the effect on trade between Member States, Ch.

What is Antitrust Law?

Maschinenbau Ulm. It ruled for instance that an agreement which contains a clause that restricts exports, by its very nature constituted a restriction of competition since the agreed purpose of the contracting parties is the endeavour to isolate parts of the market from the rest. These types of agreements distort competition because they may contribute to a more or less rigorous division of the markets.

An analysis of the market circumstances was not considered necessary in this case. Generally, the Court applied a more extensive test of the market circumstances and laid less emphasis than the Commission did on the wording of the clauses in an agreement. Then the Court, like the Commission, typically equated unrestricted competition with unrestricted cross-border trade. Since these kinds of agreements have the restriction of 60 Contrast Roemer AG and the intervening German government, who pleaded for an assessment of the economic consequences of agreements when applying Art.

Properly understood therefore the application of Art. Etablissements Vervaecke [] ECR , at Commission [] ECR at —8. The Transformation of Community Antitrust Law Enforcement 31 competition as their objective the question of their effect, on which Court and Commission could possibly disagree, was redundant. The overriding question was not therefore whether in acquiring the relevant shares in the Dutch company Continental Can had used its dominant position, but rather what consequences the behaviour had on competition in the common market.

That concept, competition in the common market, did not refer to an exclusively economic test of the effects. Instead the objectives of the Treaty are central to an interpretation of competition on the common market. A dominant enterprise which, by increasing its dominance, substantially alters the supply situation in the common market, thus reducing the range of consumer choice, may undermine the objectives of the Treaty and be contrary to Article 82 EC, the Court ruled. Commission [] ECR , at ff. The case, it will be recalled from the discussion of the Commission decisions above, concerned the take-over of a Dutch firm by an American firm which itself was already dominant in the relevant market before the acquisition.

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Commission [] ECR at Commission , above, n. The exclusive powers of the Commission and Court of Justice in the antitrust law field ensured that the market integration objective played a dominant role in the interpretation of the broad Treaty provisions on competition. Relatively unhindered by political preferences in the Member States, the two Community institutions which have the closest affinity with the supranational limb of European integration shaped an antitrust law practice which was in the first instance functional to the process of market integration.

Council and Commission. These provisions directed to the Member States were incorporated in the Treaty to prevent states from obstructing the establishment of the common market. The result was that agreements which potentially facilitated the erection or continuation of impediments 67 For instance in De Geus v. An early recognition of the role of teleology as the main interpretative tool is provided in W. Moreover, where antitrust law was explicitly considered an element in the system, other Treaty provisions and aspects of the Community system could be used for the interpretation and application of Community antitrust policy.

However, whilst integration persisted as the principal motivation behind antitrust law enforcement, the type of reasoning gradually shifted during that period. This next phase was characterised by a shift in focus away from establishing the common market towards regulating processes on that market. Albeit with continued reference to the integration paradigm, the emphasis on the freedom of inter-state trade in the assessment of antitrust cases gradually made way for increased use of alternative economical and political considerations.

The relevance of the economic context in which competition took place, repeatedly enunciated in Court of Justice case law, indicated that the changing economic environment in the Community justified an adjusted Community competition policy. The section consists of two subsections. Antitrust law was commonly applied in conjunction with various other policy aims. In its Fourth Report, for example, the Commission declared that it had intensified antitrust law enforcement action in view of rising inflation in order to prevent additional price increases.

First, the common market was gradually being established, as a consequence of which concern for inter-state trade lost some of its prominence. Together these developments opened the route towards more positive Commission policy towards competition. The discussion is therefore even more overtly limited to identifying a general trend. The Commission and Court continued to share their basic understanding of the objectives of Community antitrust law. The second illustrates how the new goals were accomodated in antitrust practice.

The Court asserted that the Commission in its antitrust policy was authorised to consider objectives which went beyond those directly linked to eliminating barriers to intraCommunity trade. In addition to promoting the swift establishment of a common market, the Court held that the Commission could validly consider arguments related to administering the operation of that market. In Metro I the Court explored the type of standard by which the Commission was to test the competition effects of notified agreements.

It is only in the earlys, after the establishment of the CFI, that a certain dichotomy between the two institutions—relevant to the thrust of this book—can be discerned. Bundeskartellamt [] ECR 1, at 13ff emphasis added. The preceding para. The Transformation of Community Antitrust Law Enforcement 35 in the electronic consumer goods sector. A wholesaler lodged an action for annulment of the exemption decision with the Court because it could not obtain access to the system.

It held that competition was restricted through the selective distribution system. The Court upheld the Commission exemption. The Court further ruled that the degree of competition required under Community antitrust law could vary in nature and intensity according to particular features of producs and markets. Restrictions of competition could therefore be permissible in some instances as long as they were essential to the attainment of the alternative objectives pursued.

First, the Court explicated once more that free competition does not form an absolute superior value under EC antitrust law. The pertinent degree of competition varies among different markets, depending on what is required for achieving the objectives of the European Community as defined in the Treaty. The degree of competition required by the Treaty could accomodate alternative Treaty objectives in antitrust law enforcement action.

Secondly, the degree of competition could vary, in nature and intensity, depending on the economic structures of the markets at hand. It was in this context that the Court mentioned explicitly that the powers conferred on the Commission under Article Ibid. Commentators argue that there should be no place under competition laws for balancing pure competition objectives with other policy objectives. Equally critical is W. Whish, Competition Law, 3rd ed.

Modernised EC Competition Law in International Arbitration

London, Butterworths, , 10— Indeed, the potential for Community economic policy on the basis of the antitrust rules was considerable if one read the Court decisions in Walt Wilhelm and Metro I together. The former entitled the Commission to carry out certain positive action to promote the harmonious development of economic activities within the Community.

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The latter explained that the Commission was free, within certain limits, to establish the degree of competition in the different markets according to the degree of competition the Commission considered desirable in each market, given its structure and the nature of the product concerned. What happened was that the Commission based its antitrust policy on these two dicta, read together. Where economic circumstances in certain markets were such Metro I as to require it to carry out certain positive, though indirect, action under Article 81 3 EC with a view to promoting a harmonious development of economic activities within the whole Community Walt Wilhelm the Commission felt free to adjust the enforcement of antitrust law accordingly.

Partly as a consequence of the economic malaise, a lull occurred in the process of European economic integration. Member States wanted to retain what little remained of the power to regulate their economies in order to moderate the effects of the crisis. Sentiments turned against economic integration and in favour of protection of national industries. The EC integration means were tailored to the needs of market integration, as opposed to policy integration. The Rome Treaty provided powers to the Community institutions mainly with reference to their role in ensuring the free flow of goods between Member States.

A depiction of the prevailing mood and the resulting obstacles to the furtherance of Community integration is provided by E. In the same sense, see T. The types of measures which were required to take the next step either were absent in the EEC Treaty or their application met political objections. In the specific area of competition and antitrust law the result of the crisis, in accordance with general trends, was a tendency to protect national industry from foreign competition. Generally the importance given to the competition law rules abated.

In this period the Commission therefore refrained from enforcing the antitrust rules in politically sensitive areas. This reduced the degree of flexibility that the Commission could apply in its antitrust policy. In particular the Commission relaxed its stance on competition issues in view of the crisis.

The need for positive policy integration perceived at the turn of the s in such a vision derived from the gradual increase in redistributive policies in European states generally: Kapteyn, above, n. Others hold that it would have been impossible to agree upon the principles and substance among all Member States which were needed to re-regulate policymaking at a supranational level. Therefore the integration measures enshrined in the EC Treaty were limited to market integration measures. See VerLoren van Themaat, above, n.

Negative integration is considered to comprise those measures which increase market integration by eliminating impediments to interstate trade. Positive integration consists of common measures determining policies for the operation of the market. See more extensively on the relevance of the difference between positive and negative integration policies below, Ch. The crisis in those sectors led major companies to conclude common agreements on production cuts, specialisation and various other practices which restricted competition.

Modernised EC Competition Law in International Arbitration | Wolters Kluwer Legal & Regulatory

They would be prohibited by Article 81 1 EC unless they were exempted on the basis of the third paragraph of the Article. However, under normal circumstances an exemption could not be provided. In addition to the fact that the Commission had not exempted similar agreements which had been notified a few years earlier, the agreements contained clauses which were generally considered per se violations of antitrust law.

In particular the existence of agreed quotas for production divided among the participating firms goes against the principle of undistorted competition. The fact that the firms which participated in the crisis cartel agreements held market shares higher than two-thirds of the relevant market further suggested that an exemption could not be provided. For one of the prerequisites of an exemption under Article 81 3 EC is that competition is not eliminated in respect of a substantial part of the products in question. It was, moreover, unlikely that another requirement of the exemption provision—that consumers benefit from the restriction of competition—was fulfilled.

Yet, the Commission did provide exemptions for a large number of the agreements which limited competition between firms in the crisis sectors. See also R. The Hague, Kluwer Law International, , 87ff. In order to overcome this problem the Commission interpreted the four preconditions for an exemption to the antitrust prohibition expansively. With respect to the required benefits for consumers, for instance, the Commission argued that the agreed production scheme guaranteed the continuation of supplies.

If, conversely, producers had to close plants according to the market mechanism the developments would be less predictable. That insecurity of supplies, the Commission argued, would be harmful to consumers. Further the Commission argued that consumers would stand to gain from the improvement in production since the industrial structure which would eventually emerge would be healthier and more competitive, and therefore able to offer them better products thanks to greater specialisation.

This reasoning goes directly against belief in competition as the main principle for economic organisation. If guaranteed and programmed production plans benefit consumers better than inter-firm rivalry than the whole concept of antitrust law which aims to protect free competition as a process of discovering consumer preferences and as a means of allocating production factors on a decentralised basis would be flawed.

The Commission itself considered this option unauthorised. Nevertheless, it used the exemption provision as a tool for industrial policy in individual cases.

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The sectorial approach, characterised by increased use of the discretion for positive policy measures on the basis of the application of Article 81 3 EC, was not limited to sectors which suffered from economic crisis. Similar, though less dramatic, exemptions were provided for a number of agreements in other sectors, for instance the banking sector.

A series of decisions under Article 81 3 EC declared the antitrust rules inapplicable to a number of, mainly national, agreements between banks. The agreements between the banks contained clauses which restricted competition 87 Commission of the EC, Thirteenth Annual Report on Competition Policy Brussels, , para. The legality of the Commission decisions also remains uncertain within the EC sphere because they were not appealed against. The only third party that complained and lodged an appeal with the ECJ subsequently withdrew it: Whish, above, n.

That agreement between a large number of banks fixed the payment of certain charges in connection with a European-wide cheque-cashing service.

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The Commission exempted the agreement, including the clauses which fixed prices, from the antitrust law prohibtion because it considered those restrictions indispensable to the emergence of a European-wide service. By exempting restrictions of competition which furthered integration, the Commission pursued positive antitrust policy in addition to the negative policy on the basis of which it prohibited agreements which separated markets along national lines. Following the differentiated approach along economic sectors in individual cases, the Commission issued block-exemption regulations which were valid in specific sectors only.

Exclusive distribution agreements in the motor vehicle industry, for example, obtained a block exemption even though they separated markets along national lines. Thus, competition and even economic integration concerns were sacrificed in favour of alternative industrial policy considerations. On top of its antitrust policy directed toward negative integration, the Commission pursued policy objectives which went beyond market building.

See extensively Bouterse, above, n. The industrial policy arguments in favour of the group exemption are discussed in F. It did not need to be because competences and tools which the Community generally lacked in other policy areas were well established in the area of antitrust law. Indeed, the previous section of this study illustrated that the Commission in the antitrust policy area had already been able to take the step from establishing the internal market toward regulating that market.

Nevertheless, the events surrounding acceptance of the SEA provoked a general change in the environment and mission of the Community which indirectly affected antitrust policy. The SEA generated reinforced interest in the role of competition as a tool for regulating the Internal Market to be established. Deregulation expanded the scope of free competition and, thus, it enhanced the significance of Community competition policy. The expansion of Community competences in those fields Commission of the EC, above, n. Emphasis added.

Deregulation at the national level was accompanied by a considerable degree of common reregulation at the Community level. The ability to come to re-regulation was a fundamental element of the success of the SEA and the programme. See G. Majone, Deregulation or Re-Regulation? The development of EC competition policy was finally affected in another indirect manner. The SEA had an effect on the attitude of the European business community. Trust that the internal market would be realised provoked a wave of mergers, acquisitions and joint ventures on a European scale.

First, in the quest to complete the Internal Market programme the Commission in its antitrust law enforcement actions turned increasingly to national public measures which were capable of restricting, distorting or preventing competition. Secondly, the wave of mergers on a European basis enhanced the relevance of supranational antitrust policy.

The next two sections address these two developments in EC antitrust law following adoption of the Single European Act. The reach of Community antitrust law was expanded so as to include a ban on any Member State regulation which supported, enabled or compelled anti-competitive behaviour. For an account of the economic processes following the Single European Act see L. Snyder ed. A restrictive interpretation of the public policy exception enshrined in Article 86 EC, which allowed a derogation from antitrust rules for public undertakings in so far as this was required by the performance of the particular tasks assigned to them, effectively led to the liberalisation of various traditional state monopolies.

States were therefore not allowed to adopt or to maintain in force any measure which could deprive the antitrust Articles of their effectiveness. The noted general trend towards more active surveillance of the competitive effects of Member State regulation in the wake of the programme led the Commission actively to monitor those effects. The first step was to clarify, and expand, the interpretation of the concept of an undertaking in the sense of Articles 81 and 82 EC. The Commission proposed that public and quasi-public bodies could constitute undertakings for EC antitrust law purposes.

This broad interpretation was endorsed by the Court of Justice. It would go beyond the scope of this ch. See further on the application of Art. Edward and D. Similarly the fact that the German public employment office was 44 The Current System of EC Antitrust Law Enforcement action turned to anti-competitive corporate behaviour which was backed by public regulation. The Commission employed two dominant methods of action. The first was directed to state measures which defined a legal framework in which private undertakings were positively required to break the antitrust rules or where national regulation facilitated anticompetitive behaviour or reinforced its effects.

The other category of Commission action challenged schemes by which Member States delegated power to groups of undertakings for producing economic regulation, which contravened Article 81 EC. Under the first strand of analysis national legislation which required travel agents not to depart from official tariffs and not to share commission with customers by reducing fares was held incompatible with Article 81 EC read in combination with Articles 3 g and 10 EC.

Macrotron [] ECR I— Taillandier [] ECR I— A ministerial order which endorses a minimum price system run by a trade organisation is also incompatible with the antitrust provisions because it strengthens the impact of the prior private price-fixing agreements. Nevertheless, in the case at hand laws that rectrict tax advantages for certain savings were not considered incompatible with Arts. Sixteen years of negotiations had preluded adoption of the Regulation in As has been said, the certainty that the internal market would be accomplished by the end of led to a dramatic increase in the number of concentrations.

An extensive corporate restructuring programme occurred in which the whole of the European market increasingly formed the relevant framework of reference. The territorial reach of national merger control laws proved insufficient for administering the European-wide processes. This development enhanced the force of the outstanding Commission claim on competence in this area of antitrust.

In the Court of Justice handed down a judgment which added an element to the already existing Commission competence to prohibit, on the basis of Article 82 EC, mergers which engendered an increase of the market share of an undertaking which was itself already in a dominant position before the merger. Commission above, n. Reynolds v. Dehousse and G. The Merger Control Regulation can therefore be perceived as a further embodiment of the shift which gradually took shape within Community antitrust from the legal conception of competiton, focused on the freedom to trade across borders and therefore on integration, to a broader conception of competition policy, on the basis of which the Commission was able to conduct economic policy.

The nature of the test which the Commission should apply when assessing whether a particular merger was compatible with the Common Market had been a crucial issue in the negotiations which led to the adoption of the Merger Regulation. In other words the Commission should be competent to prohibit mergers falling within the scope of ther Merger Regulation only if these mergers would raise objections from a competition policy point of view.

Accordingly, Article 2 of the Regulation stipulates that the Commission in its assessment is only to determine whether or not the concentration creates or strengthens a dominant position as a result of which effective competition in the common market or in a substantial part of it will be significantly impeded. A two-tiered competition test therefore applies. First, the Commission has to determine whether the concentration creates or strengthens a dominant position.

Secondly, if the answer to the first question is affirmative, the Commission will have to determine whether that dominant position impedes effective competition significantly. If the answer to this second question is also positive then the merger is incompatible with the common market. Conversely, if the answer to one of the questions is negative then a merger is per se compatible with the common market.

Reference to cohesion policy consideration is frank in the first point re Art. It states that among the factors to be taken into consideration account will particularly be taken of the competitiveness of undertakings located in regions which are greatly in need of restructuring owing inter alia to slow development. The margins for extra-competition policy considerations are also implicit in the final point re Art.

As will be argued more extensively below in Ch. The Transformation of Community Antitrust Law Enforcement 47 While Commission decisions generally appear to be faithful to an assessment on the basis of the pure competition criteria in their application of the Merger Regulation, other policy considerations have apparently played a crucial role in the assessment of the compatibility with the common market of a number of mergers. The clearest example is the Commission decision with respect to the merger between Mannesmann, Vallourec and Ilva. It considered it unlikely that significant competition would result between these two firms.

Yet the Commission ruled that the takeover was compatible with the common market in view of the enhanced effiency—and therefore supposedly the competitiveness—of the new entity. The Court of First Instance has explicitly ruled that, although the Merger Regulation is primarily concerned with establishment and maintenance of a system which ensures that competition is not distorted, the Commission may nevertheless take into consideration other effects of a concentration if objectives of Article 2 EC are likely to be adversely affected.

The Merger Regulation can therefore be considered a substantiation of the altered nature of Community antitrust policy. Downes and D. Siragusa and M. As a consequence the motivation provided in the Commission decision for endorsing the concentration held clear inconsistencies which last-minute redrafting could not repair. The decisions have been subject to much criticism. Equally, it represents the turn from market building to market regulation, or from negative to positive integration, on the basis of antitrust law implementation. Initially, the antitrust law provisions were inserted into the Treaty in view of their role in the process of market integration.

The framers of the Treaty wanted to preclude private undertakings replacing the prohibited public obstacles to inter-state trade. The first period of Community antitrust policy saw the Commission enforcing the rules with constant reference to ensuring the free flow of goods, thus promoting market integration. Subsequently, in the second period, antitrust policy was employed to establish a broader Community industrial policy.

Exemptions for the antitrust rules were granted to forms of trans-national co-operation between undertakings which the Commission considered desirable, to promote either integration Eurocheque or broader Community policy aims for example employment in crisis sectors. With continued reference to the needs of market integration, the Commission acquired powers under the Merger Regulation to regulate the structure of markets.

Furthermore it extended the enforcement of the antitrust rules to the public sectors of the various Member States. While reference was still made to the underpinning of Community antitrust law in economic integration, the socio-political implications of integration by competition law became ever more apparent. In this respect the control of corporate mergers and the gradual liberalisation of public economic sectors, both highly political exercises, which commenced by the end of the s, symbolise the altered character of Community antitrust law enforcement.

Although the system was originally devised for promoting market integration, antitrust policy is now also—and mainly—directed at promoting the various other objectives of the Community enshrined in Article 2 EC. Absent a clear The Transformation of Community Antitrust Law Enforcement 49 hierarchy between those objectives, priorities are selected on a case by case basis. Likewise, mergers are sometimes held compatible with the common market, in spite of the significant reduction in the degree of competition they engender, when the Commission considers that they may contribute to one or more of the objectives laid down in Article 2 of the Treaty.

Because there was Community-wide consensus on the market integration objective as the underpinning of EC antitrust policy, the Member States delegated unprecedented powers to the supranational Community institutions, mainly the Commission, in the field of antitrust policy.

The Commission, under the judicial control of the Court of Justice, was primarily responsible for furthering the common market project. In view of the intimate link between antitrust law enforcement and market integration it was logical for the Commission to be provided with strong autonomous powers in the field.

These extensive and exclusive powers remained in force as market integration considerations gradually gave way to alternative policy concerns. After formal realisation of the internal market it is apparent that there are various policy choices implicit in antitrust law enforcement. The second is that the authors are young academics, practitioners and administrators who have worked in the relevant fields and who are relatively new "voices" in the competition law literature. Drawn from diverse jurisdictions and professional backgrounds the authors bring a distinctively "European" feel for instance not drawing exclusively on English language literature , and manage to introduce debates that have been taking place in the non-English language world, thereby assisting a more comprehensive dialogue in this field.

The diversity in their professional backgrounds means that each chapter adopts a different perspective, with some chapters focusing on practical solutions to problems, and others exploring more general theoretical questions.