Entire Volume

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Prof. Tadeusz Skoczny – Editor-in-Chief, CARS Director

Dr. Agata Jurkowska-Gomułka – Section Editor (Antitrust), CARS Scientific Secretary Ewelina D. Sage, Ph.D. (OXON) – Section Editor (Audiovisual Services),

CARS International Coordinator

Prof. Andrzej Szablewski – Section Editor (Energy & Telecommunications), Technical University in Łódź

Prof. Tomasz Zalega – Editor (Economics of Antitrust & Regulation), University of Warsaw, Faculty of Management

S

CIENTIFIC

B

OARD

Prof. Anna Fornalczyk, Chairwoman – Technical University of Łódź; former President of the Antimonopoly Office

Prof. Stanisław Piątek, Vice-Chairman – University of Warsaw, Faculty of Management Prof. Eleanor Fox – New York University, School of Law

Prof. Katarina Kalesná – Comenius University in Bratislava, Faculty of Law Prof. Janusz Lewandowski – Warsaw University of Technology,

Institute of Heat Engineering

Prof. Johannes Masing – University of Freiburg; judge at the Federal Constitutional Court in Karlsruhe

Prof. Alojzy Z. Nowak – Vice-Rector for Research and International Cooperation of the University of Warsaw

Prof. Gheorghe Oprescu – Polytechnic University of Bucharest, Romania Prof. Jasminka Pecotić Kaufman – University of Zagreb,

Faculty of Economics and Business, Department of Law Prof. Jürgen Säcker – Free University of Berlin, Institute for German

and European Business, Competition and Regulation Law Prof. StanisławSołtysiński – Sołtysiński Kawecki & Szlęzak LPP Prof. Andrzej Sopoćko – University of Warsaw, Faculty of Management;

former President of the Competition and Consumer Protection Office Prof. Rimantas Stanikunas – Vilnius University, Faculty of Economics; former Chairman of the Competition Council of the Republic of Lithuania

Prof. Luboŝ Tichy – Charles University, Prague, Faculty of Law Prof. Tihamér Tóth – Pázmány Catholic University in Budapest Prof. Richard Whish – University of London, Kings College

Prof. Marek Wierzbowski – University of Warsaw, Faculty of Law and Administration; attorney-in-law

Prof. Irena Wiszniewska-Białecka – judge of the General Court of the European Union Prof. Anna Zielińska-Głębocka – Univeristy of Gdańsk, Faculty of Economics;

member of the Monetary Policy Council

E

DITORIAL

O

FFICE

Centre for Antitrust and Regulatory Studies (CARS) University of Warsaw, Faculty of Management

PL – 02-678 Warszawa, 1/3 Szturmowa St. Tel. + 48 22 55 34 126; Fax. + 48 22 55 34 001

e-mail: [email protected]

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Y

EARBOOK

of

A

NTITRUST

and

R

EGULATORY

S

TUDIES

Volume Editor:

ANNA PISZCZ

Vol. 2014, 7(9)

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Forty seventh Publication of the Publishing Programme

Copyright by Wydawnictwo Naukowe Wydziału Zarządzania Uniwersytetu Warszawskiego, Warszawa 2014

Language editor: Ewelina D. Sage (English); Kinga Szczawińska (French)

Statistic editor: Prof. Dr. Jerzy Wierzbiński

Cover: Dariusz Kondefer

ISSN 1689-9024

The original (reference) version of the journal is printed.

PUBLISHER University of Warsaw Faculty of Management Press PL – 02-678 Warsaw, 1/3 Szturmowa St.

Tel. (+48-22) 55-34-164

e-mail: [email protected] www.wz.uw.edu.pl

LAYOUT

ELIPSA Publishing House

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VOL. 2014, 7(9)

The editorial board is pleased to present the 9th_{volume of the Yearbook of} Antitrust and Regulatory Studies (YARS 2014, 7(9)). Three separate volumes of YARS will be issued this year: the current volume, a ‘regular’ volume (YARS 2014, 7(10)) and a special volume (YARS 2014, 7(11)) containing contributions from a workshop which will take place during the 9th_Annual ASCOLA Conference, edited by Ewelina D. Sage, PhD. The Conference is organised by CARS and will be held on 26-28 June 2014 in Warsaw. It is worth emphasising that CARS invited to the conference a group of young scholars from the countries of the Eastern Partnership.

The current volume is dedicated to the impact of EU competition law on the national competition law regimes of ‘new’ EU Member States. With this publication, we wish to commemorate the 10th_{anniversary of the 2004} accession to the European Union of ten European countries, amongst them eight from Central and Eastern Europe (CEE) – the Czech Republic, Estonia, Lithuania, Latvia, Poland, Slovakia, Slovenia and Hungary. Continuing the tradition set by the most recent volume of YARS (YARS 2013, 6(8)), the research papers published in the current volume focus not only on the Polish competition law regime but also present the national competition laws of some other CEE countries.

The transition processes of the formerly socialist CEE countries, from central planning to a market economy, proceeded at different speeds and in a variety of different ways. Poland appeared among the leaders of these developments with its 1988 Economic Activity Act and early laws against monopolistic practices, in particular the 1990 legislation. The 1990s also saw the start of an East-West integration process in Europe, soon followed by the foundations for the 2004 EU enlargement being laid. The adaptation process of national legal systems to European law has thus begun.

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Modernisation Regulation and joined the newly established network of competition authorities – the European Competition Network. Their cooperation with one another as well as with the European Commission has proven to be one of the reasons why the national competition laws of ‘new’ EU Member States have moved, in some respects, toward uniformity during the first ten years of their membership in the European Union. Some ‘de facto’ (spontaneous) harmonisation of national competition laws with EU law is still occurring (illustrated, for instance, by the Polish Competition and Consumer Protection Amendment Act adopted on 10 June 2014). On the other hand, the Commission has moved towards ‘hard harmonisation’ measures and issued a proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. The Directive was adopted by the European Parliament on 17 April 2014.

The role played by European courts in the harmonisation processes is also vital in this context and thus cannot be ignored. It is analysed in the guest article by J. Bejček, which opens the current volume of YARS. The next section contains an article on the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law (K.J. Cseres). The following papers focus on the direct application of EU competition rules in the Estonian legal system (A. Svetlicinii), the impact of EU competition rules on Lithuanian competition law (R.A. Stanikunas and A. Burinskas) and the developments of Slovak competition law (O. Blažo, B. Králičková). The discussion of Polish competition law covers the ways of its harmonisation with EU law (K. Kowalik-Bańczyk), its ‘economisation’ (A. Laszczyk) and the impact of EU law on the leniency programme (P. Sitarek).

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on the relevant market illegally at the time when the agreement was concluded (B. Mäihäniemi).

The next section contains a review of a book written by Agata Jurkowska-Gomułka ‘Publiczne i prywatne egzekwowanie zakazów praktyk ograniczających konkurencję: w poszukiwaniu zrównoważonego modelu współistnienia’ [‘Public and private enforcement of prohibition of anticompetitive practices: in search of a balanced model of coexistence’] and a review of a book written by Anna Piszcz ‘Sankcje w polskim prawie antymonopolowym’ [‘Sanctions in Polish antimonopoly law’]. The reviewers (P. Korycińska and W. Hoff) recommend both books not only to theoreticians, but also to practicing lawyers.

The current volume of YARS closes with three reports on conferences entitled (i) ‘Living with Competition Law Issues’ (Warsaw, 14.03.2014), (ii) ‘EU Competition Law and the Emerging Harmonization of Private Enforcement: The Proposed Directive and Beyond’ (Uppsala, 15-16.05.2014), (iii) ‘The impact of EU law on Polish competition law and sector-specific regulation’ (Warsaw, 21.05.2014). Also included in this section is a report on the establishment of CRANE (Competition Law and Regulation Academic Network, Europe – Visegrad, Balkan, Baltic, East). YARS will become CRANE’s future flagship project and this volume can be seen as the first result of the existence of CRANE. The Editorial Board of YARS hopes that the Network will attract active participation from many different countries. We also hope that CRANE will provide its members with valuable experiences in the antitrust and regulation field as well as improve international cooperation in this research area.

Białystok, June 2014

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INSTITUTIONS:

AMO – Antimonopoly Office of the Slovak Republic (Protimonopolný úrad Slovenskej republiky)

CFI – Court of First Instance CJ – Court of Justice

ECA – Estonian Competition Authority ECB – Estonian Competition Board ECJ – European Court of Justice ECN – European Competition Network GC – General Court

GVH – Hungarian NCA

ILCL – International League of Competition Law NCA – National Competition Authority

NRA – National Regulatory Authority

RCB – Regional Court of Bratislava (Slovakia)

UIA – International Association of Advocates (Union Internationale des Advocats)

UOKiK – Polish Office for Competition and Consumers Protection (Urząd Ochrony Konkurencji i Konsumentów)

LEGAL ACTS:

APEC – SlovakActon Protection of Economic Competition BER(s) – Commission’sBlock Exemption Regulation(s) EA – Europe Agreement

KPC – Polish Civil Procedure Code LC – Lithuanian Law on Competition

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TEC – Treaty establishing the European Community TEU – Treaty on the European Union

TFEU – Treaty on the Functioning of the European Union

OTHER ACRONYMS:

CEE – Central and Eastern Europe(an)

CEECs – Countries of Central and Eastern Europe ECR – EuropeanCourt Reports

EEA – European Economic Area MLP – ECNModel Leniency Program OJ – Official Journal

RPM – resale price maintenance

SAP – Stabilisation and Association Process

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European Courts as Value-Harmonizing “Motors of Integration”

by

Josef Bejček

*

CONTENTS

I. Introductory remarks

II. Integrative role of European courts 1. Early nineties in a candidate country

2. Path-dependence in a new Member State regarding the adherence to written peremptory rules

3. Grey area of a (false?) dilemma between interpretation and de facto rule-making

4. European Courts as a conciliating “buffer zone” between static law and dynamic social reality, as intellectual incubators, and think-tanks III. Value-disintegrative attempt?

1. European Courts as the source of schizophrenia related to “politically correct” insurance

2. Arbitrary “political correctness” of gender (in)equality IV. Conclusion

Abstract

The paper first deals with the conditions and prerequisites of adopting European law before the former “real-socialist” countries joined the EU. The key role of European Courts is described by showing that they worked as de facto virtual legislators even before accession. It is emphasized that European Courts have provided the courts and antitrust authorities of new Member States with an inestimable value-based orientation. The EU judicial practice enhanced national legal standards and legal

*_{Professor at the Faculty of Law, Masaryk University, Brno, Czech Republic. Part of this}

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culture in the respective countries. The second part of the contribution contrasts with this positive tone. An example of a serious inconsistency in values between the Court of Justice of the EU and the European Commission is shown concerning their divergent views on “uni-sex insurance” and the draft directive on women’s representation in board member positions. There is substantial disagreement in this matter, which weakens and endangers the integrative role of the CJEU and its habitual value-confirming impact. This disparity could to some extent depreciate the role of European Courts as „motors of integration”.

Résumé

Le document traite d’abord sur les conditions et les préalables de l’adoption de la législation européenne avant que les anciens pays «vraiment» socialistes aient rejoint l’UE. Un grand rôle des juridictions européennes est décrit d’une manière suivante: ils travaillaient en réalité comme des législateurs virtuelles même avant l’adhésion. Il est souligné que les tribunaux et les autorités de la concurrence des nouveaux Etats membres de l’UE ont été fournis d’une orientation axée sur la valeur inestimable par les juridictions européennes. La pratique judiciaire de l’UE renforçait des normes juridiques nationales et de la culture juridique dans les pays respectifs. La deuxième partie de la contribution contraste avec ce ton positif. Un exemple d’une grave incohérence de valeur entre la Cour de justice de l’Union européenne (CJUE) et la Commission européenne, concernant la divergence entre la CJUE et la Commission européenne dans une affaire qu’on appelle «l’assurance uni - sexe» et le projet d’une directive sur la représentation des femmes aux postes de membres du conseil d’administration est présenté. Il y a un désaccord important dans cette matière qui affaiblit et met en danger le rôle intégratif de la CJUE et son impact habituel de confirmation de valeur; il pourrait, en quelque sorte, déprécier le rôle des tribunaux européens étant des «moteurs de l’intégration».

Classifications and key words: European courts; European integration; quasi-normative character of judicial decisions; judicialization of legal doctrine; value-based decision making; divergence between European courts and European Commission; uni-sex insurance; discrimination

I. Introductory remarks

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Member States. Nevertheless, some differences can be observed as to both the impact and the importance attributed to the jurisprudence of European Courts. This article tries to describe some of these variations and to emphasize that the European judiciary has provided the courts and antitrust authorities of the new Member States with an inestimable value-based orientation (section II). The paper offers the Czech point of view, as a “pars pro toto” approach only, without aspiring to provide any reliable generalizations. At the same time, however, the impact of European judicial practice on enhancing national legal standards and legal culture in the Czech Republic is fully recognized.

The second part of this contribution (section III) contrasts somewhat with the rather positive tone of its first part. A very recent example of a serious value inconsistency between the Court of Justice of the EU (hereafter: CJEU) and the European Commission is shown. It concerns the dissimilar approach of the CJEU and the European Commission to the so-called “uni-sex insurance” issue and the draft directive on women’s representation in some board member positions. It is argued in this context that a significant and regrettable divergence of views exists here caused by ideologically based “political correctness” that weakens and endangers the integrative role of the CJEU and its value-confirming impact.

II. Integrative role of European Courts

1. Early nineties in a candidate country

Several points concerning the integrative role of European Courts should be made at the outset.

Access to the European Economic Area (EEA), and the functioning of the single market, would hardly be possible without joining the common area of European justice that was being created for decades. The EEA calls for establishing the common area of European justice and security based on common values.

European Courts are a kind of an institutional tool for shaping and enforcing these common values. Their value-based approach may be (and sometimes even is) suspected of judicial activism. This institutional tool works not only in the procedural area; it presupposes the assertion of common notions and concepts of substantive law as well.

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influence even the application of exclusively domestic (national) legal norms; these interpretations tend to become part of additional and supportive legal argumentations.

A kind of “common law infection” can be observed that affects continental law whereby much bigger emphasis is being placed on jurisprudence compared with the written (statutory) law. The continental legal culture, characterized by the division of powers, is in this way converging towards the common law legal culture, despite swearing by a (formally) not binding nature of jurisprudence. It would be hard to deny the increasing importance of the judiciary1_.

Some interpretations, definitions and different tests formulated by the European judiciary in its reviews of particular cases became a stable part of EU law (for instance, where specific rulings become the basis for EU soft laws in the form of notices and guidelines) going as far as to sometimes even influence

written (statutory) law. For example, the concept of a dominant position or the essential facilities doctrine, as defined in the Czech Act on Protection of Competition, sound so similar to the wording of individual EU judgments (Michelin, United Brands, Hoffmann – LaRoche…), that their influence is clear. The explanatory report to the draft of the Czech Competition Act does not conceal the fact that its inspiration came not only from written European law, but also from the jurisprudence of European Courts. This process may have been observed even before the new Member States joined the EU. So, for example, the definition of a dominant position and of essential facilities part of the original Czech Competition Act No. 143/2002 Coll. from 4 April 2001, that is, four years before the Czech Republic’s accession to the EU.

Not only was the jurisprudence of European courts seen as a de facto legal norm, but also retroactively. EU candidates were formally obliged to obey the judicial concepts, definitions or tests developed by the European judicature, which created de facto norms. Nevertheless, there was at least some legal ground for this approach in the terms of the Implementing Rules for the Application of the competition provisions applicable to undertakings provided for in Article 64 of the Europe Agreement (among others between the EC and the Czech Republic2_{). This might be considered a very controversial example}

1_{See F. Bydlinski,}_{Základy právní metodologie}_{, Vienna, 2003, p. 78.}

2_{Brno, 14/02/95, Art. 6: (Block Exemptions) “(...) the competition authorities ensure that}

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of de facto distorting the division of power, whereby the judiciary is used as a “virtual legislator”.

Decision-making practice has referred to the interpretations of many key concepts created by European Courts as additional and complementary administrative and judicial reasoning. Despite the lack of a formal competence to create new legal rules (but rather, to only specify the content of general concepts, to fill the gaps in EU law, to articulate principles of its application in Member States, and to formulate its general principles), the effort to ensure maximum possible workability and enforceability of European law may lead European Courts to broad, purpose driven interpretations.

The quasi-normative character of some of the judgments delivered by European Courts (such as declaring the absolute supremacy of EU law over the national laws of its Member States, including national constitutional norms) would call for implementation3_{, similarly to the approach applied to} directives. The position of European Courts in declaring what it means to apply EU law correctly, is not the same as creating generally binding and permanently valid rules; even applying the same rule may differ over time. European Courts established many principles that appear trivial today, but that were fundamental at the time of their formulation, such as for the anchoring of competition law as a “motor of integration”4_.

In recent times, European Courts are more autonomous; they sometimes correct the views of the Commission and so contribute to creating new principles. That way, the “more economic approach”, as a new assessment paradigm, was established in European competition law. It was a result of the Court of First Instance (now, the General Court) and the European Court of Justice (now, the Court of Justice of the European Union) requiting an enhanced emphasis on deeper economic reasoning from the Commission’s decisions. Three annulments by the CFI of merger decisions issued by the Commission in 2002 (Airtours, Schneider Electric, TetraLaval) were symptomatic at that time. As a result, the European Commission subsequently started to take seriously well grounded economic analyses – a fact that should lead to higher legal certainty.

On the other hand, European Courts may in some cases keep and defend positions that are somewhat opposed to some European values or policies;

3_{See V. Tý}_č_{, F. K}_ř_{epelka, D. Novák,}_{Soudnictví v}_{institucionální struktuře Evropské unie}_,

Brno 2006, p. 59.

4_{According to A. Weitbrecht, “From Freiburg to Chicago and beyond – the first 50 years}

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certain value confusion may thus occur. This is, for example, the case with gender differentiation – as mentioned in the second half of this contribution – where the CJEU took up a surprising stance.

A certain “would-be-member devotion”, or maybe even “newcomer devotion”, of the national courts and administrative bodies of new Member States to European jurisprudence might have been based on a false impression of their precedential character, which cannot really exist. Specifying and clarifying legal content is not the same as creating such content. It is obvious that the texts of judicial decisions do not amount to legal norms. The design of the preliminary question procedure confirms the obligation of each Member State to apply European law correctly, that means, among others, in accordance with the current opinion of the European Courts.

2. Path-dependence in a new Member State regarding the adherence

to written peremptory rules

The pendulum movement after the political changes in the early nineties was two-edged.

On the one hand: there was an obvious reluctance to regulate (except for fundamental elements of a free society) and to bind anybody unnecessarily (especially entrepreneurial activities). The priority was simply to restructure the old socialist ownership system and to create the foundations of a democratic society and a free market economy.

On the other hand: general distrust towards arbitrary decision-making (as experienced in the socialist State Arbitration) and fear of excessive discretion pushed the new market economies to create very detailed rules. Ultimately, it was this approach that prevailed. Clearly, there is a vicious circle here: the more detailed the rules, the more problems with their interpretation arise, resulting in an additional need for even more detailed written rules.

Former countries of “real socialism” were deprived of the otherwise natural societal ability to perceive the content of the law in its real contextual sense and to absorb its sense by its long-term and stable use. They suffered from the decline of non legal normative social systems that usually supplement and co-create the content of legal norms.

Hypertrophy of written law was encouraged and strengthened by radical systemic changes in the former Czechoslovakia after 1989: these were characterized by overproduction of legal acts5_{, which hindered their recipients}

5_{Driven by “legislative optimism” that nearly every social and economic problem can be}

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from realizing their content and purpose. This in turn resulted6_{in an especially} restrictive manner of grammatical textual interpretation of legal norms (“letter acrobatics”), and in the escape to procedural formalism, caused by the lack of a moral and value-related self-confidence of the society.

At that point in time, suddenly, European Courts appeared as relevant institutions (as a deus ex machina), with their great impact on the interpretation and enforcement of the law, which is rarely to be found in a legal text, and that only stems from the elaboration and development of general terms and concepts contained in the Treaty.

The extent to which European Courts were allowed to intervene and to explain what the law really means was often surprising from the point of view of the would-be Member State. They gradually learned to accept the “normative power of facticity” created by the European judiciary. Attorneys started to advice their clients in accordance with EU jurisprudence, which gradually became more important than the plain words of legislation , unlike the earlier approach.

3. Grey area of a (false?) dilemma between interpretation

and

de facto

rule-making

It is fair to say that hardly any European judge or civil servant would normally get along exclusively with a legal interpretation that is just the result of pure logical considerations. Rather, it is a consequence of a value-based inclination to a preconceived solution; the core value being the strengthening of economic and social integration of the Member States.

New Member States, which have experienced a totalitarian period of their economic, social and legal development, were accustomed to understanding and applying the law as a strict set of fixed and written rules. The role of the judiciary used to be very modest. In addition, some areas were totally set apart from “independent”7_{decision-making and straightforwardly left, for example,} in the hands of State Arbitration deciding in accordance with the actual needs of the socialist economy. It was a realm of an almost totally arbitrary purpose-aimed discretion.

6_{Compare P. Holländer, “Soudcovská tvorba práva – nap}_ě_{tí vn}_ě_{i uvnit}_ř_{interpretova sv}_ě_ta,

aneb Mezi hermeneutikou a Bermudským trojúhelníkem”, [in:] Sborník XVII. Karlovarské právnické dny, Praha 2009, p. 104. The provocative “legally realistic“ statement of Oliver Wendel Holmes – in “The Path of Law” (1897) 10 Harvard Law Review 457 et seq. (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”) would have sounded very strange and unacceptable to a typical socialist lawyer.

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Coping with a more general question concerning the “right” or the “reasonable” way of interpreting broad and undetermined concepts and institutions became inevitable8_{. Judges had to use a number of such indeterminate concepts} in order to explain the indeterminate content of written law. These tools included, for example, the “rule of reason”, “common sense”, “public interest”, “important grounds”, “sound and fair value”, “more economic approach” etc. This was acceptable in terms of methodology and could belong to teleological interpretative methods.

Nonetheless, sometimes pure arbitrariness of the interpreting body or judge may occur as to the real substance. Discretion is in fact a tool that may be used only after all complex analyses and all conceivable lines of argumentation had failed.

Judges’ discretion does not necessarily need to be understood as an interpretative argument. Rather, it can be seen as the opposite: using discretion stems from the absence of an interpretative argument, and from the recognition of its absence, so that interpretation has to be substituted in this emergency situation by a value-based consideration of the judge. This consideration should be consistent with the idea of how the judge would have decided in place of the legislator, and not just interpreter of the legislator´s intention9_.

Both European and national courts are exposed to everlasting (often contradicting) accusations that:

1) they are utilitarian,

2) they represent and pursue judicial activism, 3) they are too formalistic.

The dispute between those three fundamental value-based positions is eternal. In fact, an individual mixture of these “alloying elements” has to be used in any particular case. It can be argued that a kind of legal realism is present in today’s judicial activity. Still, it does not take the original, overstated shape steaming from the early 20th_{century U.S. and its “legal realistic” statement that} the written law does not predetermine the result of the dispute. What can be learned, however, from this relativistic and pragmatic (maybe somewhat cynical) way of legal reasoning, is discerning between the “law in books” and the “law in action”, for the books are too static and general. Yet “law in action” is but

8_{“General (basket) clause legislation” may be the way in which the legislator tries to face}

the ever changing reality without having to change the static legislation in the same pace.

9_{Some EU judgments are considered to exceed the threshold of plain interpretation and}

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the only possible way how to reanimate the “law in books” – these two concepts merely stand for two stages (phases) of the same phenomenon.

Another lesson that can be learned here might be to consider interdisciplinary approaches to the law (e.g. “law and economics” in terms of the “more economic approach” in EU competition law). Relevant here is the standpoint that the law is a tool of achieving social goals and of balancing social interests. The latter presupposes, of course, taking non-legal considerations into account when applying legal rules.

In the meantime, solving the conflict of multiple goals is an almost routine agenda especially for European Courts pursuing Treaty aims. Their decision-making practice is in this respect “legally realistic”, because it has brought the law near social reality that considers broader social, economic and further aspects of the law. The courts relieved the law of the nimbus of an autonomous system of rules and principles.

New Member States generally experienced a shifted kind of legal realism. Marxism may be understood as a type of legal realism in its „power version”, because it denies the autonomy of a legal system and emphasizes its economic and social conditionality and its social tasks that are to be achieved through the law, which is seen as a mere tool (instrumentalism of the law). The law in this sense is nothing but the expression of will of the ruling social class sublimated into formal rules, which are formulated in a rather general manner in order to enable their interpretation in accordance with the “will of the ruling class”.

Another (perverted) inspiration of Marxian philosophers (ideologists) might be their statement that while the philosophers used to interpret the world in different ways – the task now is, however, to consider how to change the world. A similar argumentation whereby judges should change the law instead of interpreting it in different ways is unacceptable.

Even European judges are no “legislators in gowns”, but their “legal realism” enables them to overcome rigid and overstated formalism.

Nevertheless, topical motto of the “more economic approach” is a kind of echo of those versions of legal realism that oblige judges to decide in accordance with the aim of enhancing social welfare. The “right law” should be assessed in terms of its impact on social welfare.

4. European courts as a conciliating “buffer zone” between static law

and dynamic social reality, as intellectual incubators, and think-tanks

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ayatollahs) substantiating or hallowing certain conduct or policy from the religious (i.e. value conditioned) standpoints.

It would not be wise to taking this matter lightly because it is just another way and another tool of solving the general and permanent tension between the wording of a legal (religious) text and its reasonable coherence. The social function of judicature (including the European one) is similar.

European Courts are well aware of the need to balance broader social and EU goals and not to unilaterally emphasize any “trendy” plain economic approaches. So, for instance, differentiation in prices might be advantageous from a purely economic standpoint. However, they can also distort broader social (EU-related) goals, which should not be measured by a microeconomic test only. Simple microeconomic goals pursued by the entity engaged in discrimination might be false, because they do not consider political values which the Member States are obliged to strive to. Some examples of European jurisprudence on discriminatory pricing10_{indicate that even in a period of} a “more economic approach”, the judiciary will have to favour fundamental freedoms necessary for the creation and functioning of the internal market. The moral principles of common sense also prohibit “economically advantageous” price discrimination. Discrimination – even though advantageous in microeconomic terms and in the short-term – is in many cases unsustainable for it infringes the integrity of the internal market and the common sense.

In conclusion, European law enforced by European Courts is, on the one hand, the source of a „more economic approach“. On the other hand, however, it is also the corrector of a purely economic approach endangering the internal market, social cohesion and consumer welfare11_.

European courts are not merely interpreters of the law and seekers of the principles hidden behind the words of EU law. They supply fundamental, essential and vital material for legal reasoning and for the development of the doctrine. They provide value-conditioned, and contextual, interpretations of general legal norms. This activity does not necessarily have to be very different from creating a new norm (many examples are known of totally different interpretations of the same legal provision). The verification (falsification) tool lies here, first of all, in the authority of the interpreter (i.e. judicial authority, rarely intellectual academic authority). This is, however, surely not a scientific method.

It can be observed that following European jurisprudence, and its theoretical reflection, prevails over the opposite approach whereby judges would follow the

10_{See ECJ judgments in cases: C-45/93}_{Commission v Spanish Kingdom}_{; C-28/98}_Angonese v Cass di Risparmio di Bolzano; C-388/01 Commission v Republic of Italy.

11_{J. Bej}_č_{ek, “Cenová diskriminace a tzv. dvojí ceny v}_{evropském a}_č_{eském kontextu”}

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doctrine and bring doctrinal conclusions into life in their judicial decisions. This phenomenon might be called the “judicialization” of legal doctrine. European courts are the proponents of this development not only in the entire Europe, but even overseas.

More general interpretative standpoints, for example in competition law, arise usually as a consequence and generalization of the jurisprudence. “Soft laws” (notices, guidelines) in particular are usually a kind of a “generalized case report”. They are an important “connecting bolt” between jurisprudence and legal norms. They enhance predictability of future analyses, of the decisions of the Commission and the rulings of the courts, and thus they contribute to legal certainty.

III. Value-disintegrative attempt?

1. European Courts as the source of schizophrenia related to “politically

correct” insurance

An interesting schizophrenic phenomenon is currently being witnessed in European law connected with the issue of quotas, manifesting itself in the area of insurance. It is an indisputable statistical fact that women live significantly longer than men, particularly due to their genetic makeup. While certain factors causing differences in life expectancy are related to lifestyle, biology simply works against men; indeed, even if men switched to a healthy lifestyle, women would still outlive them12_.

Even though women live longer to a statistically significant degree, this fact must not be reflected in the conditions of life insurance, for example. The relevant Directive prohibits the use of any differentiation based on sex (the principle of equal access of men and women to goods and services) as a criterion for calculating premiums and benefits13_{. This so-called “Anti-discrimination} Directive”14_{refers to the fact that equality of women and men is a basic principle} of the European Union, which rules out any discrimination based on sex.

Fortunately, the fact is still recognised that there are “physical differences” between men and women that cause dissimilarities the provision of healthcare services, and are not considered to be differences in treatment (discrimination)

12_{Compare “The Economist: Catching up” (2013) 3}_Respekt_{36 ff.}

13_{See Council Directive 2004/113/EC of 13 December 2004 implementing the principle of}

equal treatment between men and women in the access to and supply of goods and services, OJ L 373, 21.12.2004, p. 37 (also the “Anti-discrimination Directive”).

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in a comparable situation15_{. Certain variations in treatment between men and} women are deemed acceptable only if they are justified by a legitimate aim; any limitation should nevertheless be appropriate and necessary16_.

While the fact is acknowledged that the use of actuarial factors related to sex is widespread in the provision of insurance, and other related financial services, this should not result in differences in individuals’ premiums and benefits so as to ensure equal treatment of men and women17_{. If sex is one of} the determining factors in the assessment of the insured risks, Member States may, under the Directive, permit exemptions from the rule of unisex premiums and benefits so long as the underlying actuarial and statistical data on this factors (sex) is reliable, regularly updated and available to the public18_{. It is} further stated in the binding wording of the Directive that the act does not preclude differences in treatment, “if the provision of the goods and services19 exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”20_.

Common sense and empirical experiences relying on firm and long-term statistical data are reflected in Article 5 of the Directive. Accordingly, the use of sex as a factor in the calculation of premiums should not result in differences in individuals’ premiums and benefits. Member States may, however, decide to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Directive obliges Member States to review their decision in this regard after 21 December 2012, taking into account the Commission’s summary report on the use of sex as a factor in the calculation of premiums and benefits. Moreover, the Commission can submit a proposal to modify the Directive.

Importantly, the Directive was interpreted in a surprising manner in a preliminary ruling in Association belge des Consommateurs Test-Achats ASBL and Others v. Conseil des ministers21_{. The CJ ruled here on a reference lodged} by the Belgian Constitutional Court claiming that the aforementioned Article 5(2) of the Directive (allowing Member States to maintain an exemption from the rule of unisex premiums and benefits without a temporal limitation) is inconsistent with the achievement of the objective of equal treatment of men

15_{See recital 12 of the Directive.} 16_{Compare recital 16 of the Directive.} 17_{Recital 18 of the Directive.}

18_{See recital 19 of the Directive.}

19_{Rather than the provision of other conditions, e.g. specifically in insurance (note by the}

author).

20_{Compare Article 4(5) of the Directive.}

21_{Case C-236/09, judgment of 1 March 2011; see http://eur-lex.europa.eu/LexUriServ/}

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and women, followed by the Directive. The contested rules was also said to be incompatible with Articles 21 and 23 of the Charter of Fundamental Rights of the European Union. As a result, the provision in question would have to be considered invalid upon the expiry of an appropriate transitional period.

Apart from referring to and quoting the text of the Directive, the CJ stated that the use of actuarial factors related to sex was widespread in the provision of insurance services at the time when the Directive was adopted. Consequently, it was permissible for the EU legislature to implement the principle of equality of men and women – more specifically, to apply the rule of unisex premiums and benefits – gradually, with appropriate transitional periods22_{. The CJ did not agree with the plea that the option provided for in} Article 5(2) of Directive 2004/113/EC is merely intended to make it possible not to treat different situations in the same way. It stated that Recital 19 of the Directive describes the choice given to Member States not to apply the rule of unisex premiums and benefits as an opportunity to permit an “exemption”. Thus, Directive 2004/113/EC is based on the assumption that for the purposes

of the application of the principle of equal treatment between women and men stipulated in Articles 21 and 23 of the Charter, the situations of women and men are comparable as regards the amount of premiums and benefits.

The CJ concluded that, under these circumstances, there is a risk that the exemption from equal treatment stipulated in Article 5(2) of Directive 2004/113/EC will be permitted by EU law without limitation. There is also a risk that such a provision, which enables the Member States to maintain an exemption from the rule of unisex premiums and benefits without a temporal limitation, is in conflict with the pursuit of equal treatment between men and women, which is the purpose of Directive 2004/113/EC, and is incompatible with Articles 21 and 23 of the Charter. The Court maintains that the provision in question must be considered invalid upon the expiry of an appropriate transitional period. The Court therefore ruled that Article 5(2) of Directive 2004/113/EC was invalid with effect from 21 December 201223_.

A legitimate question arises here whether this Directive, according to the above described interpretation, is not against nature as such. In the spirit of the above ruling, it will not be possible to distinguish, for example, between male and female drivers despite the fact that the accident rates and loss frequency is higher for male drivers to a statistically significant degree. On the other hand, it continues to be admissible for insurers to differentiate (in compulsory motor vehicle insurance) between drivers in a city and those from rural areas on the basis of the same statistical method, because of a difference in the expected accident rates. In this context, the sex of the driver is insignificant.

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It is indisputable that the likelihood of an accident and of damages is higher in city traffic, just as the likelihood of an accident and of a higher damage is greater for men than for women. The difference lies “only” in the fact that the former does not pertain to a “fundamental principle of the EU”.

Similar differences exist in the premiums, benefits and exclusions for people engaged in extreme sports, regardless of their sex but taking account of the type of risk (hazardous sport). However, once the increased risk is embedded in gender as such (typically in life insurance), European law prohibits differentiating, according to the judgment of the CJ. It must bepretended that a difference, which is biologically determined and proven based on reliable statistical data, does not exist because admitting a natural fact and deriving

legal consequences from itwould amount to “discrimination”.

No matter how definite the statistical message is, the now changed rates, which are aimed at compensating for the statistically ascertained differences between the sexes, will in fact have a discriminatory effect in the name of non-discrimination. For example, premiums became more expensive for women and cheaper for men this year, despite the fact that according to long-term statistics of mortality, rates of injuries, diagnostics etc., the premium rates applicable earlier were designed more fairly. Equalising rates at a “unisex” level made women’s premiums more expensive (up to twice the original rate) because they now have to pay for men who carry a higher risk24_{. In this case,} actuarial science and unquestionable and unquestioned hard statistical data give way to the hypocrisy behind “political correctness”.

2. Arbitrary “political correctness” of gender (in)equality

In connection with the promotion of compulsory quotas in corporate bodies, it is remarkable that people are expected to believe a mere assumption

regarding the possible effect of “gender-mixed” bodies on the institutional performance of corporations as well as other vague qualities. This is referred to gender-mixed bodies not just in qualitative terms, but indeed to bodies with a “proper gender mix” based on specific proportions. It is inferred that there is a “minimum critical degree” of representation of the other gender which would ensure that the “representation of the other sex” is something more than illusionary or token25_{. This questionable allegation, which}_{lacks empirical}

and theoretical foundation, is to substitute non-existent credible arguments in

24_Compare

http://www.novinky.cz/finance/293183-muzum-se-zavedeni-unisex-sazeb-vyplatilo-pojistovnam-plati-o-stovky-mene.html (16.02.2013).

25_{See the cited explanatory memorandum on the proposal for a directive on women’s}

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favour of the introduction of quotas and aims to eliminate objections regarding the discrimination of candidates from the prevailing gender; by contrast, in the forcibly unified life and accident insurance field, hard statistical data on different life expectancy of men and women is not considered as an argument. In its breakthrough ruling, the CJ26_{states that equality between men and} women is a fundamental principle of the European Union. As such, the use of the gender criterion as an actuarial factor should not lead to differences in premiums, so as to ensure men and women are treated equally. That means that even if reliable statistical data regarding differences between the sexes provided an economic justification for a different approach to these two groups in insurance matters, this fact would have to give way to “political correctness” of a fictitious equality.

The CJ in fact says that there is no certainty regarding the existence of significant differences between men and women that would call for their different treatment (differences which, based on indisputable data and long-term statistics, are taken into account by insurance companies worldwide). Admittedly, individual certainty definitely does not exist; however, insurance is based on a statistically evaluated number of likelihoods and in life expectancy, for example, there is a group certainty that men as a group live shorter than women. This denounces the assessment of risk as one of the main principles of insurance and premium rates will now have to compensate for the statistically ascertained sex differences, thus introducing another discrimination of its kind27_{. Based on this logic, even a higher premium rate or exclusion from} benefits in accident insurance for those engaging in extreme sports would be regarded as discriminatory even though it is firmly proven that such insured persons receive benefits more often and in higher amounts.

According to professionals, this pseudo-egalitarian approach is an underwriting non-sense – a hypocritical ideological measure which denies clear differences between genders and the basic principles of insurance based on the probability theory. It is also unfair to women, making their insurance more expensive as they must compensate for the higher risk associated with men28_. The ironic commentaries made on this absurd judgment criticised the fact that with this approach, men will not only live shorter (as they already do), but

26_{Cited above. Czech legislation has already responded to the judgement through Act No.}

99/2013 Coll.

27_{Compare J. Ginter, “Ženám kv}_ů_{li EU zdraží pojistky, aby se p}_ř_{edešlo diskriminaci”}

[“EU Causes Increases in Women’s Insurance Premiums to Prevent Discrimination”], 2 March 2011, http://ww.novinky.cz/finance/22698 (30.04.2013).

28_{See B. Bu}_ř_{inská, “Muž}_ů_{m se zavedení unisex sazeb vyplatilo. Pojiš}_ť_{ovnám platí o stovky}

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will also get lower pensions. Recommendations were made in these comments that all real estate should be insured under the same rate notwithstanding the diversity of risks; that risk rates should be eliminated in motor vehicle insurance in large cities; that elderly people’s associations should claim the analogous right to a 30-year mortgage, etc.29

Thus, despite its indisputable effect, the risk factor of gender must no longer be taken into account (as inadmissible and illegitimate), despite the fact that other legitimate risk factors (such as age or health) continue to be permitted and reflected in insurance premiums. It is simultaneously stated that gender is a determining factor for risk assessment in at least three product categories: motor vehicle insurance, life insurance or life annuity and private health insurance30_.

In relation to insurance, European law and jurisprudence claim in fact that men and women are simply the same (while in fact they are not) and should be treated identically (even though different treatment would be fairer).

By contrast, the European Commission claims in the proposal for a directive on women’s representation in board-member positions that men and women

simply are not the same (although gender definitely does not determine their managerial capabilities) and should therefore be treated differently (subject to preferential or discriminatory treatment) on the grounds of their respective sex. The Court seems in this way to be in fact both against nature and against the drafted directive. Should the European Union insist on these incompatible approaches (labelled as “unisex in insurance versus gender differentiation in corporate bodies”), this would illustrate the lack of stable values, possible voluntarism and subjectivism, and a kind of supremacy of ideology (even if under the cover of “political correctness”) that hardly belongs in the law.

IV. Conclusion

Though the principle of subsidiarity is part of positive law, its practical importance in the jurisprudence of European Courts is minimal31_{. The} impact of the European judiciary on new Member States is today barely to be differentiated from its importance for the whole of the European Union.

29_{See “O}_č_{ima expert}_ů_{: Evropa vymýšlí nesmysly. Zdražil/y ženám pojišt}_ě_{ní” [“Experts Say:}

Europe Comes up with Nonsense. Prices of Insurance for Women Go up”], 29 June 2012, http:// www.penize.cz (30.04.2013).

30_{Compare “Za}_č_{ínají platit pravidla EU upravující jednotné ceny pojišt}_ě_{ní pro ob}_ě_pohlaví”

[“EU Rules Regulating Unisex Insurance Rates Coming to Effect”], 20 December 2012, http:// ec.europa.eu (30.04.2013).

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A key majority of EU law does not work nowadays in a form of incorporated law but instead, in a form of transformed law, i.e. as a national law of its Member States. In this way, another additional mechanism unifying legal order(s) has been created32_{. European law (as to the content) acts as a}_{domestic (national)} law (as to its form) and the domestic judge acts as a European one.

In this way, conformity of values is very probable (a normal judge is not schizophrenic and interprets and applies both European and domestic law using the same value set and methodological basis).

It is a mitigating circumstance for European Courts not to be solely respon-sible for applying European law. Nevertheless, their role as a methodological and value confirming and declaring authority is irreplaceable. Consistency of values and common sense, free of “political correctness”, are therefore both desirable and needed.

European Courts gained a very strong position in the EU that exercised significant impact on legal doctrine, causing in turn a “judicialization” of that legal doctrine. Courts should thus avoid pursuing different values to those followed by the EU Commission. It is undesirable to develop a value-based inconsistency stemming from “political correctness” seeing as it may depreciate the role of EU-courts as “motors of integration”. Their value-integrative role is not any less needed now as it was before the great enlargement.

Literature

Bejček J., “Cenová diskriminace a tzv. dvojí ceny v evropském a českém kontextu” [“Price

discrimination and double prices in European and Czech context”] (2008) 5 Právní

forum.

Bydlinski F., Základy právní metodologie [Foundations of legal methodology], Wien 2003. Břicháček T., “Přístup Evropského soudního dvora k principu subsidiarity” [“ECJ approach

to the principle of subsidiarity”] (2008)2 Právník.

Buřinská B., “Mužům se zavedení unisex sazeb vyplatilo. Pojišťovnám platí o stovky méně” [“Unisex rates are worth for men. They pay hundreds of crowns less”], 16 December 2012, http://www. novinky.cz/finance/293183 (29.04.2014).

Ginter J., “Ženám kvůli EU zdraží pojistky, aby se předešlo diskriminaci” [“EU Causes increases in women’s insurance premiums to prevent discrimination”], 2 March 2011, http://ww.novinky.cz/finance/22698 (29.04.2014).

Holländer P., “Soudcovská tvorba práva – napětí vně i uvnitř interpretova světa, aneb Mezi hermeneutikou a Bermudským trojúhelníkem” [“Judge-made law – a tension outside and inside the interpreter´s world”], [in:] Sborník XVII. Karlovarské právnické dny, Praha 2009.

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Holmes O.W., “The Path of Law” (1897) 10 Harvard Law Review

Rozehnalová N., “Tvorba evropských jednotných pojmů?” [“Creating unified European

concepts?”], [in:] J. Hurdík, J. Fiala (eds.), Sborník. Východiska a trendy vývoje českého práva po vstupu ČR do EU, Brno 2005./

Streinz R., “Die Auslegung des Gemeinschaftsrechts durch den EuGH”(2004) 3 Zeitschrift

für Europarechtlichen Studien

Týč V., Křepelka F., Novák D., Soudnictví v institucionální struktuře Evropské unie [Judiciary in the institutional structure of the EU], Brno 2006

Weitbrecht A., “From Freiburg to Chicago and beyond - the first 50 years of European

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Accession to the EU’s Competition Law Regime:

A Law and Governance Approach

by

Katalin J. Cseres

*

CONTENTS

I. Introduction

II. Pre-accession rule transposition

1. Competition law in the eastward enlargement

2. Europe Agreements and Stabilisation and Association Agreements 3. The accession governance

III. Post-accession compliance IV. Regulation 1/2003

1. The governance design of Regulation 1/2003

2. Administrative capacity: the cornerstone of credible enforcement 3. Administrative capacity in Regulation 1/2003

3.1. Silence of Regulation 1/2003 on administrative capacity 3.2. Independence

3.3. Accountability

3.4. Effectiveness of the multi-faceted enforcement system of Regulation 1/2003

V. The ECN: guardian of uniform application of EU law and post-accession compliance

VI. Conclusions

Abstract

The aim of this paper is to analyse the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law and to reach a deeper understanding of the EU’s Europeanization

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strategy at the intersection of these two governance models. The paper will critically examine the effectiveness of the internal governance mechanisms of Regulation 1/2003 with regard to the goals of the decentralized enforcement system, as well as with regard to their effectiveness in steering post-accession compliance and Europeanization among the Member States.

Following the Introduction, section II of the paper maps out the EU’s external law and governance model that applies vis-à-vis third countries that wish to join the EU. In section III, the paper examines the extent and the manner in which this external model has shaped the EU’s internal governance model vis-à-vis its Member States. Section IV analyses Regulation 1/2003 as the main driver behind the effective implementation of EU competition law in the Member States as well as its governance mechanisms as they framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance, section IV examines the compound procedural framework, composed of EU and national administrative rules, which underlies and challenges the enforcement of EU competition law. Also specifically investigated here is how the administrative capacity of national competition authorities affects competition law enforcement. This inquiry is enriched in section V with a detailed assessment of the European Competition Network as the EU’s main mechanism for the monitoring of Member States’ post-accession compliance with EU law.

Résumé

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section V avec une évaluation détaillée du Réseau européen de la concurrence qui est le mécanisme principal de l’UE pour surveiller la conformité des États membres avec la législation de l’UE dans la phase de post-adhésion.

Classifications and key words: competition law; governance; enlargement; Regulation 1/2003; European Competition Network

I. Introduction

Competition law has always formed a core pillar of the European integration process and so it was among the crucial EU accession requirements set for the candidate countries. European competition law had thus a significant influence on the way competition laws and institutions were shaped in the candidate countries. In the pre-accession phase, this was due to conditionality. Still, once conditionality ends and candidate countries become Member States, they fall under EU law and its governance1_{mechanisms. In competition law,} this law and governance framework has developed within the framework of Regulation 1/20032_{. Pre-accession rule transposition is well documented and} closely monitored by the EU in its Regular Reports on the candidate countries. However, the EU’s internal governance mechanisms are less visible and have not been examined in the light of its external model, which developed in the course of the EU’s eastward enlargement process.

The aim of this paper is to analyse the interplay between the EU’s external (pre-accession) and internal (post-accession) governance model in the field of competition law and to reach a deeper understanding of the EU’s Europeanization strategy at the intersection of these two models. Moreover, the paper will critically examine the effectiveness of the internal governance mechanisms of Regulation 1/2003. Its effectiveness will be analysed with regard to the goals of achieving uniform and consistent application of EU law through its decentralized enforcement and considering its effectiveness in steering

1_{Governance can be understood as a shift from “government” to “governance”, a diffusion}

and fragmentation of governmental arrangements with a decentring of the state; I. Maher, “Regulation and modes of governance in EC competition law; what’s new in enforcement?” (2008) 31(6) Fordham International Law Journal 1720; I. Maher, “Competition Law in the InternationalDomain: Networks as a New Form of Governance” (2002) 29(1) Journal of Law and Society 116. In the EU context, governance has to be understood in the multi-level context of EU institutions, Member States and growing participation of private actors.

2_{Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation}

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post-accession compliance and Europeanization among the Member States. A key question to be answered here is whether these internal mechanisms can be characterized as an experimentalist governance model (with recursive learning and revision from the implementation of general goals in various local contexts) or a hierarchical governance model.

Accordingly, section II of the paper discusses the EU’s external law and governance model, which applies vis-à-vis third countries that wish to join the EU. In section III it examines to what an extent and how has this external model shaped the EU’s internal governance model vis-à-vis its Member States. Section IV analyses Regulation 1/2003 as the main driver behind the effective implementation of EU competition law in the Member States as well as its governance mechanisms that framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance, section IV examines the compound procedural framework composed of EU and national administrative rules that underlies and challenges the enforcement of EU competition law. Also specifically investigated here is how the administrative capacity of National Competition Authorities (hereafter: NCAs) affects competition law enforcement. This inquiry is enriched in section V with a detailed assessment of the European Competition Network (hereafter: ECN) acting as the EU’s main mechanism for the monitoring of Member States’ post-accession compliance with EU law. The paper closes with conclusions.

II. Pre-accession rule transposition

1. Competition law in the eastward enlargement

The EU’s eastward enlargement was bigger, more intrusive and more transformative than its earlier enlargements of the 1990s. Its influence on domestic legal systems was also more comprehensive because the Europeanization process of the candidate countries’ legal orders was interacting with market, constitutional and institutional reforms. In the countries that joined the EU in 2004 and 2007, the implementation of European law was exceptional, due to the employed governance method of a top-down rule transfer, and based on strong EU conditionality3_{. While the}

3_{Schimmelfennig defines conditionality as a direct mechanism of Europeanization. The}

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EU’s eastward enlargement is generally seen as an important mechanism for Europeanization4_{, the area of competition law might just illustrate this process} most acutely.

It was the enlargement process that induced the adoption of an identifiable body of competition law in the candidate countries of Eastern Europe and lead to the continuous alignment of domestic laws with legislative and policy developments in EU competition law. While competition was in fact non-existent in the Countries of Central and Eastern Europe (hereafter: CEECs) or the Western Balkans, a clear and comprehensive set of competition rules developed in the shadow of their EU accession. As administratively planned market activities and the central allocation of resources gradually made way to free competition and trade, these countries had to build their competition laws from scratch and, more importantly, had to create a competition culture. Competition law and policy played a significant role in their transition process – they proved of great importance in creating a functioning market economy5_. Competition law supported and stimulated economic changes. Introducing competition law control mechanisms demonstrated the commitment of the candidate countries to market economy, competition advocacy and fair market practices. In the light of their wish to join the EU, Treaty rules seemed to be an obvious reference point. Since 1990, all CEECs and many of the Western Balkans’ countries adopted new competition acts and gradually aligned their legislation to that of the EU.

2. Europe Agreements and Stabilisation and Association Agreements

The legal, economic and political requirements of the CEECs’ accession to the EU were first laid down in the so-called Copenhagen criteria6_{of the 1993}

F. Schimmelfennig, U. Sedelmeier, “Governance by Conditionality: EU Rule Transfer to the Candidate Countries of Central and Eastern Europe” (2004) Journal of European Public Policy 670; F. Schimmelfennig, “EU External Governance and Europeanization Beyond the EU”, [in:] D. Levi-Faur (ed.), The Oxford Handbook of Governance, Oxford 2012. It was only with regard to the CEECs that pre-accession conditionality became a regular feature of EU enlargement policy for all candidates; U. Sedelmeier, “Europeanisation in new member and candidate states” (2006) 1(3) Living Rev. Euro. Gov., http://www.livingreviews.org/lreg-2006-3 (28.04.2014).

4_{Europeanization is understood as “the reorientation or reshaping of politics in the}

domestic arena in ways that reflect policies, practices or preferences advanced through the EU system of governance”; I. Bache, A. Jordan, “Europeanization and Domestic Change”, [in:] I. Bache, A. Jordan (eds.), The Europeanization of British Politics, Basingstoke 2006, p. 30.

5_{K.J. Cseres, “The impact of Regulation 1/2003 in the New Member States” (2010) 6(2)} Competition Law Review, p. 145–182.

6_{The conditions that candidates must fulfil are specified in a Commission report entitled}

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Volume Editor:

ANNA PISZCZ

Vol. 2014, 7(9)

Forty seventh Publication of the Publishing Programme

VOL. 2014, 7(9)

Contents

European Courts as Value-Harmonizing “Motors of Integration”

by

Josef Bejček

Abstract

Résumé

I. Introductory remarks

II. Integrative role of European Courts

1. Early nineties in a candidate country

2. Path-dependence in a new Member State regarding the adherence

to written peremptory rules

3. Grey area of a (false?) dilemma between interpretation

and

de facto

rule-making

4. European courts as a conciliating “buffer zone” between static law

and dynamic social reality, as intellectual incubators, and think-tanks

III. Value-disintegrative attempt?

1. European Courts as the source of schizophrenia related to “politically

correct” insurance

2. Arbitrary “political correctness” of gender (in)equality

IV. Conclusion

Literature

Accession to the EU’s Competition Law Regime:

A Law and Governance Approach

by

Katalin J. Cseres

Abstract

Résumé

I. Introduction

II. Pre-accession rule transposition

1. Competition law in the eastward enlargement

2. Europe Agreements and Stabilisation and Association Agreements