Anti-Unfair Competition Law and Anti-Trust Law: A Continental Conundrum?

In the European Union the relationship between anti-trust law and the law against unfair practices in competition raises not only issues of how to properly delimit the scope of application of the rules of both bodies of law, but also of how to divide the exercise of legislative authority over these matters between the Community and its Member States , and of how to deal with divergences existing between the various national laws in both areas. As far as national anti-trust law is concerned , primacy of Community law, as established by Reg.1/2003, will solve the conflicts, but it cannot extend, and the Regulation expressly does not extend such primacy to national laws against unfair competition, thus leaving room for overlap and conflicts. However, it is much less the risk of direct or – more likely – indirect conflicts which needs to be examined, than the impact which the law against unfair business practices may have on the overall operation of competition in the Community . It is with a view to this intrinsic interdependency between the law against restrictive practices and the law against unfair practices that this paper examines both the development of Community anti-trust law and of harmonization of national unfair competition laws. The point is made that , on the one hand, the Community seeks to reinforce the competitive process in the market place even through consumer-related unfair competition law in that, by way of harmonization of the law, it essentially imposes upon Member States the concept of a strictly information-reliant protection of consumers ,and, on the other ,that ,as regards conduct in pure business-relationships, the Community, by a subsidiarity approach, leaves Member States much room to regulate competition on the merits as they see the merits of particular business practices. In concluding, it is argued that such reliance on regulatory competition might well be used to counterbalance a one-dimensional welfare understanding of Community anti-trust law by more freedom oriented concepts of fairness in competition.