Lisbon Treaty

Lisbon Treaty in Europe

Following its ratification by the Czech Republic, the last Member State to do so, the Treaty of Lisbon
entered into force on 1 December 2009. One of the main objectives of the Treaty of Lisbon is to
modernise the institutional and decisional framework of the European Union, with streamlined and
modern institutions, simplified working methods and voting rules, and a more effective and efficient
decision-making process for a European Union of 27 members.

Lisbon Treaty and Competition Law

The following text is from Van Bael & Bellis:

Overall, the Treaty of Lisbon’s impact on competition law will probably remain limited. However, a
number of key changes merit attention.

1. Institutional and Formal Changes

a. Structure of the Treaties and of the European Union

o EC becomes EU – The Treaty of Lisbon grants the European Union a single legal
personality; it replaces and succeeds the European Community. Consequently, all
references to “European Community” and “Community” in the European terminology
are replaced by the word “European Union” and “Union” (except when referring to the
European Atomic Energy Community, which continues to exist).

b. Changes in wording and numbers related to the chapter on competition

o Provisions on competition are renumbered – As a consequence of the EC Treaty’s
transformation into the TFEU, former Articles 81 to 89 EC become Articles 101 to 109
TFEU.

o Commission’s power to enact block exemption regulations upon delegation of
the Council is inserted in primary legislation – Article 105(3) and 108(4) TFEU
recognise the Commission’s long established power to enact block exemption
regulations on the basis of an act of the Council.

o “Common” market becomes “internal” market – References to the common market
are replaced by references to the internal market throughout the TFEU, including within
the Competition Chapter. This change in names should not have any legal
consequence.

c. Renaming of the EU Courts

o European Community Courts become European Union Courts (“EU Courts”) –
The Court of Justice of the European Communities is renamed the “Court of Justice of
the European Union”.

o EU Courts are Court of Justice, General Court and Specialised Courts – The
Court of Justice of the European Union is now composed of the Court of Justice and
the General Court (formerly named the Court of First Instance) as well as Specialised
Courts attached to the General Court (currently, there is only one Specialised Court,
i.e. the European Union Civil Service Tribunal).

2. Substantive Changes

a. Status of competition law within the EU legal order

o “Undistorted competition” no longer an objective of the EU – The EU Courts have
repeatedly regarded Article 3(1)(g) EC as making the maintenance of undistorted
competition a primary objective of the European Community. On many occasions,
reliance on Article 3(1)(g) enabled the EU Courts to uphold a broad reading of the
provisions on competition.

The Treaty of Lisbon does not mention the maintenance of undistorted competition
within the objectives of the European Union. Instead, Protocol No. 27 provides that “the
internal market as set out in Article 3 of the Treaty on European Union includes a
system ensuring that competition is not distorted”. It remains to be seen whether such
a “downgrading” of the goal of undistorted competition will have an impact on the
interpretation of Articles 101 and following of the TFEU.

o Competition rules necessary for the functioning of the internal market become
officially exclusive competence of the EU – Article 3(1)(b) TFEU consolidates the
view that the European Union has exclusive competence to enact secondary
legislation on anti-competitive practices jeopardising the functioning of the internal
market. This provision obviously does not impact on the Member States’ competence
to adopt competition legislation regarding their national markets.

b. Entry into force of the Charter of Fundamental Rights
o Charter of Fundamental Rights becomes primary legislation – The Charter of
Fundamental Rights enters into force on the same date as the Treaty of Lisbon. Article
6(1) of the revised Treaty on the European Union (TEU) gives the EU Charter of
Fundamental Rights the same legal value as the Treaties.

o Possible changes in case-law on procedural rights – It is difficult to predict whether
the Charter of Fundamental Rights will lead the EU Courts to revise their case-law on
the rights of defence in the course of competition proceedings. The text of the Charter
is not groundbreaking in this respect. It should be noted, however, that Article 53 of the
Charter can be interpreted as meaning that the EU Courts are not allowed to set the
level of protection of fundamental rights at a lower level than that set by the European
Court of Human Rights in its interpretation of the European Convention on Human
Rights.

c. Minor amendments to provisions on state aid

o Possible repeal of compatibility of aids granted to poorest regions of Germany –
Article 107(2)(c) TFEU provides that five years after the entry into force of the Lisbon
Treaty, the Council may adopt a decision repealing the general principle of
compatibility of state aids granted to the economy of certain areas of Germany affected
by the division of Germany.

o Aids granted to peripheral regions may be compatible with internal market –
Article 107(3)(a) TFEU provides that State aids granted to peripheral regions referred
to in Article 349 TFEU (such as Guadeloupe, French Guyana, Martinique and the
Canary Islands) may be compatible with the Treaty, in view of the structural, economic
and social situation of such regions.

d. Relaxation of locus standi criteria in annulment proceedings

o Regulatory acts are open to individual challenge – The Treaty of Lisbon amends
Article 230, 4th indent EC (now Article 263, 4th indent TFEU) and somewhat extends
the jurisdiction of the Court as individuals may now institute annulment proceedings
against a regulatory act which is of direct concern to them and does not entail
implementing measures (and not only against decisions and regulations which are of
direct and individual concern to them).

o Regulatory acts are not legislative acts – Attention should be drawn to the fact that
such amendment does not make legislative acts (i.e. regulations, directives or
decisions adopted by legislative procedure, which means adopted with the participation
of both the Council and the European Parliament) open to individual challenge. Article
263, 4th indent TFEU only concerns non-legislative acts, i.e. acts not adopted by
legislative procedure.

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