The state of state action in EU competition law (Post-Greek Lignite) and a national competition strategy for China

Abstract

Does a special responsibility not to impair competition constrain the actions of the State? Is the State bound by specific competition law obligations where its administrative or legislative interventions create a legal monopoly? This chapter argues that, with regard to Europe, a central concern must be the harm caused to competition by legal monopolies and similar privileges. From that perspective, Section 2 of the chapter surveys the EU law and practice relating to the most important legal tool in the EU context—Article 106 of the Treaty on the Functioning of the European Union (TFEU). Critical discussion of the relevant legal criteria and of latest case law of the European Court of Justice (through the fall of 2014) is provided. Then, in Section 3, the focus shifts from Europe to China. Here the chapter furnishes succinct suggestions as to how China should build on the steps it has taken already with regard to public restraints of competition, and how it should construct a comprehensive and credible national competition strategy to produce important benefits for its economy and society.