1

‘Coupled with the extensive powers of the European Commission, the

vagueness of the wording in Articles 101 and 102 TFEU raises concerns
about the compatibility of these competition laws with the principle of
legal certainty.’

Critically discuss this statement, explaining whether or not you agree,

and why.

Competition law aims at promoting or maintaining competition in the market through the

regulation of anti-competitive behaviors and conducts by companies1. The law is enforced

through private and public implementation and is concerned with anti-competitive agreements

having hindering competition. They are also concerned with regulating abusive behaviors by

different firms as well as the mergers and the public restrictions of competition. The law aims at

protecting the consumers and competitors, allowing for single market integration as well as the

dispersal of economic power and wealth redistribution. Article 101 (1) and 102(2) of the Treaty

on the Functioning of the European Union (TFEU) enforces the different regulations in the

market, which helps stamp the powers of the European Commission. Both Articles state the

different prohibitions that are incompatible with the internal markets and are enforced by the

National Competition Authorities (NCAs) and the European Commission2. On the other hand,

the principle of legal certainty applicable at the national and international levels holds that the

laws set aside to control and regulate certain entities should provide its subjects with the ability

to have the capability to regulate their conduct. Therefore, I disagree with the statement that

added to the extensive powers of the European Commission, the lack of certainty and
1
GRAHAM, BELLAMY CHRISTOPHER ET CHILD, and D. Child. European community law of
competition. Oxford: Oxford University Press, 2008.
2
Davies, Karen. Understanding European Union Law. Routledge, 2019.
 2

distinctiveness in the wordings of Articles 101 and 102 raises concerns about the compatibility of

these laws on competitions with the principle of legal certainty.

Articles 101 and 102 are mainly focused on the regulation of the competition among different

companies having a proper legal basis, and therefore compatibility with the principles of legal

certainty becomes easy. Among the principles of legal certainty is the legal enforcement, with

the decision of the court being regarded as binding, and the competition laws follow this

principle. For instance, Article 101 and 102 are both enforced by the European Commission and

the National Competition Authorities (NCAs), which are the legal bodies in the member states

given the powers by law to enforce these competition laws3. The competition authorities of these

member states or the national courts apply the national law on competition to any of the acts and

behaviors prohibited by both articles and therefore have a strong legal basis in their applications.

These articles also focus on regulating the competition between entities that are of a direct effect

on the economy of the member states, such as the competing companies. Therefore, due to this

effect, it means that they are empowered by the laws of the member states to enhance practices

that bring benefits to the economy and eliminate any behaviors and conducts among the entities

involved that would bring harm and an alteration to this vital organ of the member states. This

enforcement of the law and the legal basis in these articles makes them easily compatible with

the principles of legal certainty. Therefore, fewer concerns are raised on the issue as they strictly

follow the principles of legal certainty as required.

Another principle of legal certainty is that the written laws ought to be clear, precise, and direct

to the point for them to be easily understood and implemented4. Looking at the wordings of

3
Foster, Sharon E. "While America slept: the harmonization of competition laws based upon the
European Union model." Emory Int'l L. Rev. 15 (2001): 467.
4
Portuese, Aurelien, Orla Gough, and Joseph Tanega. "The principle of legal certainty as a principle of
economic efficiency." European Journal of Law and Economics 44, no. 1 (2017): 131-156.
 3

Articles 101 and 102, their restrictions and regulations of competition on the internal and

external markets between member states are clear, and it becomes easy to comprehend them. For

instance, Article 101 is clear on the different prohibitions it has put in place, ensuring

compatibility with the internal markets. It contains all agreements between the different ventures,

decisions made by associations and concerning practices, and those that may affect the trade

between member states. These ventures and practices have as their objective, effects on the

prevention, restriction, or distortion of competition within the internal markets. Article 101(3)

contains regulations to improve the production and distribution of goods to promote technical

and economic progress among the member states. Article 102 is focused on prohibiting abuse by

one or more undertakings of a dominant position within the internal market and those that may

become incompatible with the internal market affecting trade within the member states. The fact

that these competition laws are clear, precise, and direct on what they regulate should remove

any doubts that would be raised questioning their compatibility with the principles of legal

certainty5.

The principles of legal certainty require that any law should ensure that there are legal

implications in the events they fail to be fully implemented or adhered to, especially when

dealing with financial obligations of the concerned parties6. Articles 101 and 102 are precise on

the implications if the competition laws are not adhered to in the internal markets of the member

states. For instance, Article 102, which condemns abusive behaviors and practices in the internal

markets when violated, may cause implications such as the companies engaging in predatory

pricing strategies causing an imbalance in the pricing of products in the market. If they are

violated, anti-competitive agreements will also be violated, for instance, the agreements between
5
Alexy, Robert. "Legal certainty and correctness." Ratio Juris 28, no. 4 (2015): 441-451.
6
Popelier, Patricia. "Legal certainty and principles of proper law making." Eur. JL Reform 2 (2000): 321.
 4

competitors to fix prices or outputs leading to harmful competition within the markets. The

Article has stated the implications of violating these laws. On the other hand, Article 103, which

contains regulations to improve the production and distribution practices in the internal markets

on violations, will cause different problems in the internal markets of the member states. It will

result in illegal competition practices and behaviors leading to imperfect competition among

them causing behaviors such as lack of resource mobility due to the altered distribution, barriers

to entry and exit will be created as well as the development of an infinite number of buyers and

sellers within the market due to the altered production and distribution strategies. The fact that

these competition laws give limelight to the likelihood of implications if they are not adhered to

makes them compatible with the principles of legal certainty, and therefore concerns should be

reduced on this matter.

The principles of legal certainty require that laws set aside by different commissions and states

regulating certain entities be made public and easily accessible to the public, and this has been

recognized as a general principle of the European Law7. This ensures that the competition laws

are transparent and follow integrity virtues in their implementation, allowing for balanced

regulation of competition in the internal markets of the member states. Articles 101 and 102 are

available in the different legal institutions and bodies of the European Union and websites of the

European Commission. Members of the public who wish to access them may do so anytime and

any day without restrictions for purposes of references. The members of the public, however,

cannot make any alterations to these laws, and it is only through an agreement by the member

states on any alterations to improve the regulation that can cause a change in these laws. Making

the competition laws visible to the public ensures accountability in the relevant bodies concerned

with ensuring regulation of the competition within the internal markets of the member states.
7
Alexy, Robert. "Legal certainty and correctness." Ratio Juris 28, no. 4 (2015): 441-451.
 5

This accountability ensures that the concerned bodies are able to control the abusive behaviors

and practices, anti-agreements by the competitors, illegal mergers, among other practices that

bring about unlawful competitions. Publicity, therefore, makes these laws on competition

compatible with the principles of legal certainty added to the powers of the European

Commission in enforcing these laws.

The principles of certainty require that the legitimate interests and expectations of the concerned

parties ought to be protected with the decisions of the courts on different practices regulated by

these laws being regarded as binding8. The legitimate interests refer to all those concerns that are

defined and protected by the law, which in this case is on the regulation of the competition

within the internal markets of the member states. This has been fulfilled by the articles; for

instance, Article 101(1) prohibits all the agreements which restrict competition. That means

different entities are allowed to get involved in the competition provided it is under lawful

practices, and this is among their interests. Therefore, the Article has provided the legitimacy

needed to safeguard the interest of the concerned parties and ensured that they follow the

stipulated laws of the region. The articles have regulated the contents used by the competitors

when engaging in their practices and the contexts within which they compete in. They have

provided avenues to identify the defaulters of the anti-competitive agreements and the various

cartels that exist in the market. They have provided a safe harbor for the competitors to engage in

lawful practices that do not cause harm to other competitors. All these are interests of the

concerned parties as stipulated by the laws of the European Union. The fact that these

competition laws ensure this compliance means that they can be compatible with the principles

of legal certainty that advocate for these practices.

8
Portuese, Aurelien, Orla Gough, and Joseph Tanega. "The principle of legal certainty as a principle of
economic efficiency." European Journal of Law and Economics 44, no. 1 (2017): 131-156.
 6

These arguments show that the laws of competition have fulfilled the mandates of the principles

of legal certainty9. The wordings of Articles 101 and 102 in the Treaty on the Functioning of the

European Union may seem confusing and complicated for those who may not have an idea of

how these laws work and the internal markets within states that have agreed to engage in lawful

and legitimate competition practices. The European Commission may have extensive powers to

control, monitor, influence, and cause changes to the competition laws but these powers have not

prevented the compatibility of the laws on the competition with the principles of certainty10.

Therefore, these arguments support my decision on disagreeing with the statement that the

vagueness in the wordings of the Articles added to the extensive powers of the European

Commission raises concerns about the compatibility of these competition laws with the principle

of legal certainty.

9
Popelier, Patricia. "Legal certainty and principles of proper law making." Eur. JL Reform 2 (2000): 321.
10
Nugent, Neill, and Mark Rhinard. The european commission. Macmillan International Higher
Education, 2015.
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References:

Alexy, Robert. "Legal certainty and correctness." Ratio Juris 28, no. 4 (2015): 441-451.

Davies, Karen. Understanding European Union Law. Routledge, 2019.

Foster, Sharon E. "While America slept: the harmonization of competition laws based upon the

European Union model." Emory Int'l L. Rev. 15 (2001): 467.

GRAHAM, BELLAMY CHRISTOPHER ET CHILD, and D. Child. European community law

of competition. Oxford: Oxford University Press, 2008.

Ludlow, Peter. "The European Commission." In The New European Community, pp. 85-132.

Routledge, 2018.

Nazzini, Renato. The foundations of European Union competition law: The objective and

principles of Article 102. Oxford University Press, 2011.

Nugent, Neill, and Mark Rhinard. The European Commission. Macmillan International Higher

Education, 2015.

Popelier, Patricia. "Legal certainty and principles of proper lawmaking." Eur. JL Reform 2

(2000): 321.

Portuese, Aurelien, Orla Gough, and Joseph Tanega. "The principle of legal certainty as a

principle of economic efficiency." European Journal of Law and Economics 44, no. 1

(2017): 131-156.

Vachudova, Milada Anna. "From competition to polarization in Central Europe: How populists

change party systems and the European Union." Polity 51, no. 4 (2019): 689-706.