Private regulation, competition and free movement : sport, legal services and standard setting in EU economic law

Abstract

The thesis studies the application of EU free movement law and competition law to private regulation, understood as rule-setting, implementation and/or enforcement by private actors, whether on their own or in partnership with State bodies. Such private or co-regulatory schemes can be a beneficial way of achieving various public interest aims. They may also, however, restrict trade or competition. I argue that free movement (Chapter 2) and competition (Chapter 3) rules have been used as a form of meta-regulation, affecting the way private regulatory schemes are organised and structured. By doing so, however, they were forced to deal with situations that cannot be classified neatly following a public-private distinction. In response, the case law of the Court of Justice and the practice of the Commission have adapted by extending scrutiny over a wider variety of measures of private regulators while also broadening the scope for justification. This, however, increases the likelihood of overlap of the free movement and competition rules, which I analyze in Chapter 4, arguing that the two sets of rules should not be mutually exclusive but that their limits should be defined more clearly on their own terms. Finally, I look at the interaction between free movement and competition, as well as their impact, in three sectors where private regulation is prominent: sports (Chapter 5), legal services (Chapter 6) and standard-setting (Chapter 7). I discuss the justifications for regulation in all three sectors, as well as the legislative and institutional setting in which private regulators operate. In all three case areas, the two sets of rules were used in a partly strategic way to influence reforms of private regulation. The application of the rules was mainly driven by institutional choices rather than the objective‘ requirements of legal doctrine.