The double helix of rule of law and EU competition law: An appraisal

• Published date: 01 January 2021
• Author: Maciej Bernatt
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12422

VARIETY

The double helix of rule of law and EU

competition law: An appraisal

Maciej Bernatt

*

Abstract

By discussing the experiences of Hungary and Poland, this article aims to demonstrate that there

are three layers of the rule of law which are relevant for EU competition law. The first one is exter-

nal: it relates to the legal system of EU Member States of which competition law is a part. In national

legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal

environment for the competition law system to perform its role. The second one is internal: it con-

cerns rule of law safeguards in relation to the Member States' competition authorities, in particular

their independence. The third one is consequential: the weakening of the rule of law within the

external and internal layers affects the proper functioning of the competition law system. As a

result, the effectiveness of Articles 101 and 102 TFEU is endangered, and a vicious circle of mutu-

ally reinforcing competition law and rule of law crises unfolds.

1|INTRODUCTION

The European Union is based on the premise that Member States share a common set of values enshrined in Article

2 of the Treaty on European Union (TEU),

1

such as human dignity, freedom, democracy, equality, the rule of law and

respect for human rights.

2

Over the last six years, EU law scholars have paid growing attention to the rule of law and

have closely followed the European Commission's and European Parliament's actions against Hungary and Poland

* Dr (habil.) Maciej Bernatt, Associate Professor of Law at the University of Warsaw (profesor uczelni), Director of the Centre for Antitrust and Regulatory

Studies, Faculty of Management, University of Warsaw; email: m.bernatt@uw.edu.pl, ORCID: 0000-0001-8943-3600. The reflections presented in this

article are based on the author's monograph, M. Bernatt, Populism and Antitrust: The Illiberal Influence of Populist Government on the Competition Law

System (Cambridge University Press, 2022), <https://www.cambridge.org/core/books/populism-and-antitrust/3619BEAF21AE0EA9A6F7A

FA015670C3C>. The author has nothing to disclose within the meaning of the ASCOLA Transparency and Disclosure Declaration <https://ascola.org/

declaration-of-ethics/>. The author is grateful to Marta Sznajder for her technical assistance and to Karine Caunes for her suggestions on how to

improve the article.

1

The Treaty on European Union, OJ C 326, 26 October 2012, 13–390.

2

Judgment of 24 June 2019, Commission v Poland and Hungary, C-619/18, EU:C:2019:531, para. 42.

Received: 14 March 2022 Revised: 11 April 2022 Accepted: 12 April 2022

DOI: 10.1111/eulj.12422

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2022 The Author. European Law Journal published by John Wiley & Sons Ltd.

148 Eur Law J. 2021;27:148–166.

wileyonlinelibrary.com/journal/eulj

for violations of the rule of law.

3

The rulings of the Court of Justice regarding effective judicial protection (Art.

19 TEU) and judicial independence in the Member States have been subjected to close scrutiny.

4

Against this backdrop, this article addresses the question of the implications of the weakening of the rule of law

in some Member States for EU competition law and of the resulting weakening of EU competition law within the

European Union. Studies of this kind are imperative if one takes into account that competition law promotes a

consumer-friendly functioning of an economy that is associated with low prices, high quality, choice, pluralism and

innovation.

5

Such a role of competition law serves also the EU internal market as it protects against the raising of

entry barriers on national markets by private firms.

6

In addition, by imposing rules on the concentration of economic

power and by keeping markets open, it may have a positive impact on the democratic legal order.

7

There is thus a

virtuous circle between the rule of law and competition law, which allows for the rule of law to guarantee its demo-

cratic function. If the rule of law crisis were to affect the objective of competition law, its fundamental importance

for European integration would be endangered.

Article 2 TEU values are of fundamental importance for the proper functioning of the EU competition law sys-

tem as well. Since this system entails close cooperation between National Competition Authorities (NCAs) and the

Commission in the enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union

(TFEU) within the European Competition Network (ECN),

8

the mutual trust that the cooperating authorities adhere

to the same set of values is crucial.

9

This speaks to the overarching idea that Article 2 TEU ‘implies and justifies the

existence of mutual trust between the Member States that those values will be recognized and, therefore, that the

law of the EU that implements them will be respected’.

10

Moreover, the principle of sincere cooperation dictates

that the EU and its Member States assist each other, in full mutual respect, in carrying out the tasks which flow from

the EU Treaties.

11

Seen in this light, the system of EU competition law is based on mutual trust that Member States

respect the values set out in Article 2 TEU when applying EU competition law. As previously mentioned, out of all

the Article 2 values, the rule of law is of particular relevance for competition law since it plays a primary role in

3

See, for example, D. Kochenov and L. Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’, (2015) 11 European

Constitutional Law Review, 512; and L. Pech and K. Lane Scheppele, ‘Illiberalism within: Rule of Law Backsliding in the EU’, (2017) 19 Cambridge Yearbook of

European Legal Studies, 3; G. Halmai, ‘The Possibility and Desirability of Rule of Law Conditionality’, (2018), 11 Hague Journal on the Rule of Law; L. Pech,

P. Wachowiec and D. Mazur, ‘Poland's Rule of Law Breakdown: A Five-Year Assessment of EU's (In)Action’, (2021), 13 Hague Journal on the Rule of Law.

4

See, for example, M. Krajewski and M. Zi

ołkowski, ‘Judicial Independence Decentralized: A.K.’, (2020) 57 Common Market Law Review, 1107; K. Kovács

and K. Lane Scheppele, ‘The Fragility of an Independent Judiciary: Lessons from Hungary and Poland—and the European Union’, (2018) 51 Communist and

Post-Communist Studies; L. Pech and S. Platon, ‘Court of Justice Judicial Independence under Threat: The Court of Justice to the Rescue in the ASJP Case’,

(2018) 55 Common Market Law Review; S. Biernat and P. Filipek, ‘The Assessment of Judicial Independence Following the CJEU Ruling in C-216/18 LM’

(2021), in A. von Bogdandy et al. (eds.), Defending Checks and Balances in EU Member States, Beiträge zum ausländischen öffentlichen Recht und

Völkerrecht, 298; M. Bonelli and M. Claes, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary’, (2018) 14 European

Constitutional Law Review.

5

K. Stylianou and M.C. Iacovides, ‘The Goals of Competition Law: A Comprehensive Empirical Investigation’, (2021) KONKURRENSVERKET; Case T-

168/01, Judgment of the Court of 27 September 2006, GlaxoSmithKline Services Unlimited v Commission, EU:T:2006:265, para. 118, T-321/05; Judgment of

the Court of 1 July 2010, AstraZeneca AB and AstraZeneca plc v Commission, EU:T:2010:266 para. 804; Joined cases T-213/01 and T-214/0, Judgment of

the Court of 7 June 2006, Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v. Commission, EU:T:2006:151, para. 115.

6

Joined cases 56 and 58–64, Judgment of the Court of 13 July 1966, Consten and Grundig v Commission, EU:C:1966:41.

7

E.M. Fox, ‘Antitrust and Democracy: How Markets Protect Democracy, Democracy Protects Markets, and Illiberal Politics Threatens to Hijack Both’,

(2019) 46 Legal Issues of Economic Integration, 317; M. Bernatt, Populism and Antitrust: The Illiberal Influence of Populist Government on the Competition Law

System (Cambridge University Press, 2022), <https://www.cambridge.org/core/books/populism-and-antitrust/

3619BEAF21AE0EA9A6F7AFA015670C3C>, 6.

8

T-432/10, Judgment of the Court of 16 October 2013, Vivendi v Commission, EU:T:2013:538, para. 26. See Art 11(1), Reg 1/2003. The ECN is a network

consisting of the Commission and the competition authorities of the EU Member States for the application, in close cooperation, of Arts 101 and

102 TFEU. See the Joint Statement of the Council and the Commission on the functioning of the network of Competition Authorities, <https://ec.europa.

eu/competition/ecn/joint_statement_en.pdf>.

9

See in this respect Case T-791/19, Judgment of the Court of 9 February 2022, Sped-Pro S.A. v Commission, EU:T:2022:67, paras. 84–85, 87–88. In general

see Case C-619/18, Judgment of 24 June 2019, Commission v Poland and Hungary, EU:C:2019:531, paras. 42–43.

10

Opinion 2/13, Accession of the European Union to the ECHR, ECLI:EU:C:2014:2475, para. 168; Case C-621/18, Judgment of the Court of 10 December

2018, Wightman and Others, ECLI:EU:C:2018:999, para. 63; Case C-284/16, Judgment of the Court of 6 March 2018, Achmea, ECLI:EU:C:2018:158, para.

34; and Case C-619/18, Judgment of the Court of 11 July 2019, Commission v Poland, paras. 42–43. See also K. Lenaerts, ‘La vie après l'avis: Exploring the

Principle of Mutual (Yet Not Blind) Trust’, (2017) 54 Common Market Law Review, 805.

11

Art 4(3) TEU.

BERNATT 149