- 著者
-
市川 芳治
- 出版者
- The European Union Studies Association-Japan
- 雑誌
- 日本EU学会年報 (ISSN:18843123)
- 巻号頁・発行日
- vol.2009, no.29, pp.104-122, 2009 (Released:2011-12-01)
- 被引用文献数
-
1
This article examines the integration of environmental policy into EU competition law while taking into account its “Modernisation” reform and the influence of the European Social Model.Seeking the reconciliation between environmental policy and competition law is essential to foresee the global competition enforcement in the future and specify the scope of competition law and the definition of competition itself. However, the debate on this theme has been premature in the EU and some leading cases and interpretations have just emerged.This article deals with this topic in four phases: First, there is a review of the recent “Modernisation” reform, which introduces the approach focusing on consumer welfare and economic efficiency in EU competition law. This way of thinking tends to exclude non-competition values including environmental protection.Second, there is an examination of the influence of the European Social Model, which introduces a wider interpretation of non-competition values in EU competition law. This leads to the conflict of “competition lawyer vs. EC lawyer” because the former stresses the pro/anti-competitive perspective and the latter facilitates the concept “mandatory requirement” from case law in the field of free movement.Third, there is a comparative analysis of the traditional interpretation and the newly emerged interpretation of each article in EU competition law.In Article 81(1) EC, cases like CECED comply with the “Modernisation” reform and are based on the economic analysis, but the Wouters case paves the way for taking into consideration the perspective on the conflict of constitutional norm between competition and environmental protection. Similar bifurcation is found in cases of Article 82 EC. Cases like DSD follow the economics-based interpretation while cases under Article 86(2) EC exemption underline the non-competition values like environmental protection. State aid rules allow the Member States' wide discretion on environmental policy, but the State Aid Action Plan launched by “Modernisation” reform introduces the economic analysis and narrows its discretion.Finally, this article presents the tentative theory concerning the conflict between environmental policy and EU competition law. This comprises two-way interpretations: the interpretation in the context of “Modernisation” reform and the interpretation in the context of the European Social Model. In the present, it is needed to grasp cases from this two-way perspective.