International Enforcement

Competition law has already been substantially internationalised along the lines of the US model by nation states themselves, however the involvement of international organisations has been growing. Increasingly active at all international conferences are the United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Co-Ooperation and Development (OECD), which is prone to making neo-liberal recommendations about the total application of competition law for public and private industries.

European Union Law

Finally, Articles 86 and 87 EC regulate the state's role in the market. Article 86(2) EC states clearly that nothing in the rules can be used to obstruct a member state's right to deliver public services, but that otherwise public enterprises must play by the same rules on collusion and abuse of dominance as everyone else. Article 87 similar to Article 81 EC, lays down a general rule that the state may not aid or subsidise private parties in distortion of free competition, but then grants exceptions for things like charites, natural disasters or regional development.

European Union Law

Also under Article 82 EC, the European Council was empowered to enact a regulation to control mergers between firms, currently the latest known by the abbreviation of Regulation 139/2004/EC. The general test is whether a concentration (i.e. merger or acquisition) with a communtiy dimension (i.e. affects a number of EU member states) might significantly impede effective competition. Again, the similarity to the Clayton Act's substantial lessening of competition.

European Union Law

Article 82 EC deals with monopolies, or more precisely firms who have a dominant market share and abuse that position. Unlike U.S. Antitrust, EC law has never been used to punish the existence of dominant firms, but merely imposes a special responsibility to conduct oneself appropriately. Specific categories of abuse listed in Article 82 EC include price discrimination and exclusive dealing, much the same as sections 2 and 3 of the U.S.. Clayton Act.

European Union Law

Article 81(1) EC then gives examples of "hard core" restrictive practices such as price fixing or maket sharing and 81 (2) EC confirms that any agreements are automatically void. However, just like the Statute of Monopolies 1623, Article 81 (3) EC creates exemptions, if the collusion is for distributional or technological innovation, gives consumers a "fair share" of the benefit and does not include unreasonable restraints ( or disproportionate, in ECJ terminology) that risk elimination competition anywhere.

European Union Law

Article 81 EC's goals are unclear. There are two main schools of thought. The predominant view is that only consumer welfare considerations are relevant there. However, a recent book argues that this position is erroneous and that other Member State and European Union public policy goals (such as public health and the environment) should also be considered there. If this argument is correct then it could have a profound effect on the outcome of cases as well as the Modernisation process as a whole.

European Union Law

Prohibited are:

"(1)...all agreements between undertakings, decisioin by associations of undertakings and concerted practices which may affect trade between Member States and which have as their objects or effect the prevention, restriction or distortion of competition within the common market..."