Containing corporatism: EU competition law and private interest government

Wolf Sauter

    Research output: Contribution to journalArticleScientificpeer-review

    Abstract

    Corporatism, or private interest government, raises objections both from a democratic and from an economic perspective. This paper examines the application of EU competition law to private rule making that is purportedly in the public interest. Earlier case law holding Member States responsible for anticompetitive delegation (Van Eycke) can be contrasted with case law that focuses on the inherent restrictions of the pursuit of public policy aims and keeps some private arrangements outside the scope of the cartel prohibition altogether (Wouters). More recently we can identify an approach where the public and private activities of entities are considered separately (SELEX). The 2014 ONP Case is an example where the General Court distinguishes private and public interests, and takes a tough line where the limits of the latter are exceeded. Corporatism is therefore, to some extent, contained by EU competition law. However, there is a related trend toward taking account of public interest requirements in antitrust under the directly applicable exemption provision of Article 101(3) TFEU. Alongside the abovementioned Wouters approach that requires balancing under Article 101(1) TFEU, and given the context of the decentralisation of EU antitrust law, this raises a risk of fragmentation that remains to be addressed.
    Original languageEnglish
    Pages (from-to)187-193
    Number of pages6
    JournalEuropean Competition Law Review
    Volume36
    Issue number5
    Publication statusPublished - 2015

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