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The Impact of the Lisbon Treaty on EU Competition Law: A Review of Recent Case Law of the EU Courts

Ben Van Rompuy, CPI Antitrust Chronicle, December 2011 (1)

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When the EU leaders agreed on the final version of the Lisbon Treaty, one particular amendment caused turmoil in the European competition law community. The Lisbon Treaty suppressed the 50-year-old commitment to “undistorted competition”, embedded in the fundamental provisions of the EC Treaty (Article 3(1)(g) EC). Since the Lisbon Treaty came into force on December 1, 2009, there has been no Treaty provision proclaiming adherence to the principle of undistorted competition. The substantive content of Article 3(1)(g) EC has been transferred to a Protocol (No 27) on the Internal Market and Competition, annexed to the Treaties. Several commentators feared that the excise of the principle of undistorted competition from the front of the Treaties would downgrade the status of the competition rules within the EU legal order. They argued that this might inform the EU courts to depart from the pre-Lisbon case law, which frequently relied on Article 3(1)(g) EC as an interpretative guidance for the application of the Treaty rules on competition. Two years after the Lisbon Treaty became law, it is now possible to review these gloomy forecasts in light of recent case law of the EU courts. This article focuses on two long-standing fundamental principles, developed in the case law, that have been flagged by commentators as potentially in peril following the entry into force of the Lisbon Treaty: (1) the constitutional status of the Treaty rules on competition; and (2) the concern of EU competition law with harm to an effective competition structure.

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