Antitrust Supervision of the Regulatory Activities of Public Bodies: One Step Forward, Two Steps Back?
Abstract
Articles 101 and 102 TFEU apply to public bodies executing regulatory and administrative tasks only in connection with other provisions of EU Treaties. Their applicability is therefore limited.
However, these activities may be scrutinised under the domestic competition laws of some EU Member States whose national competition authorities have specific legal instruments at their disposal applicable to public bodies beyond their classical advocacy or consultation powers. Those competition authorities can commence administrative proceedings and even impose a fine for anticompetitive practices.
This article aims to discuss the relevant competition law provisions of selected EU countries regarding the activities of their public bodies. The US approach to antitrust liability of public bodies, notably municipalities, will also be taken into account with a focus on state action immunity doctrine.
Lastly, the question of whether public bodies carrying out their conventional tasks are entitled to claim state action defence and other objective justifications is also addressed.