2012 Volume 2012 Issue 32 Pages 65-91
This article aims at examining the modernization of EU competition law, in particular the decentralization of its enforcement, in the context of EU constitutional structure. EU legal order is constructed on the basis of the primacy of EU law over national laws. This principle is a fundamental principle of EU law and has caused serious tensions with national constitutions from the inception of European integration. Despite established jurisprudence of the European Court of Justice, several constitutional courts in the Member States do not fully accept the principle of primacy against their national constitutions, and then the constitutional pluralism has emerged to peacefully control such tensions.
It is widely believed that the field of EU competition law keeps some distance from such tensions. This is because EU competition law had been actually enforced only by the European Commission before 2004, and had no actual chance to have conflict with national constitutions. However, the decentralization of enforcement of EU competition law is likely to alter such a peaceful landscape between EU competition law and national constitutions. After the introduction of decentralized enforcement, EU competition law is now enforced by both the Commission and national competition authorities. National courts in the EU Member States are also able to fully apply EU competition law. As a result, a possibility that unconstitutionality of national application of EU competition law would be claimed before national courts has arisen. Above all, a conflict with human rights protected by the constitution is likely to happen. However, since national enforcement relies upon national procedural law, this possibility still remains theoretical. The constitutional pluralism mainly targets the tensions between EU law and national constitutions, but it also explains the general relationship between two legal orders. Therefore, assuming that the constitutional pluralism correctly understands the present legal phenomena in EU, the field of competition law cannot be excluded from the sphere of its argument.
