As we saw in chapter 1, the end of the twentieth century witnessed a remarkable proliferation of competition law regimes around the world. As we noted, many of these regimes share important similarities, though fundamental differences do exist between them not least in terms of their experience with the concept of competition and with competition law and policy; equally, differences amongst the different jurisdictions exist in relation to how the process of internationalisation of competition law should be conceived. As was noted in the previous chapter, while the ‘international competition policy scene’ has not witnessed the conclusion of binding commitments on the part of countries, various mechanisms and proceedings within different international fora have been instituted through which consultations, debate and sharing of information and experience between competition authorities in particular have been occurring. It is through these mechanisms and proceedings that the internationalisation of competition law has mostly continued to gain renewed impetus. They have especially provided support to those in favour of internationalisation to push the whole idea forward; despite the emergence of serious setbacks over the years which derailed various internationalisation efforts on more than one occasion. The different mechanisms and proceedings referred to here are particularly noteworthy because most of them have emerged within the framework of international organisations, which have played a major role in keeping the internationalisation debate alive and in furthering the understanding of competition law globally, as well as in spreading competition law itself around the world and helping many countries build much-needed capabilities to enforce it.

This chapter will consider the competition law regime of the European Union (EU), a regime that has come to acquire huge significance and dominance within both Europe and globally; in spite of the state of stagnation and the divisive conflicts which the regime witnessed at certain stages of the early existence of the European Community. This significance of the regime can be seen in light of, among other things, how a large number of countries around the world have adopted local competition rules based on the key provisions of EU competition law, notably Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU); these countries include both developed and developing ones. Beyond serving as a global ‘model’, the EU competition law regime has served as a valuable source, which many competition authorities frequently use for insights into how competition issues are analysed and to learn about recent trends and developments in the field.

EU competition law is highly fascinating and its enforcement mechanism – especially with the radical reform introduced in 2004 – provides a model of a highly successful regional competition law regime, especially when one considers the close relationship between the European Commission – the main EU body in charge of competition enforcement – and national courts and national competition authorities of the member states.

Geographical expansion and increase in significance of competition law

Competition law has come to receive phenomenal attention in recent years. The field has become incredibly vast and it has come to experience a geographical expansion – in a relatively short period of time – not seen in the case of any other branch of law. Competition law is no longer an exclusive feature of the statute book of countries in the developed world: a large number of developing countries have come to adopt some form of competition law domestically and in an even larger number competition law currently ranks very high on the national agenda. Many of these countries are at an extremely early stage of economic development; some of them have a notably limited experience with the concept or mechanism of a free market economy; and there are those in which even as recently as five years ago the adoption of a competition law was simply unthinkable, yet it has become a reality. Such developments are highly significant and have impacted – in most cases positively – on international trade, the way countries regulate their domestic markets, and on how firms behave and operate globally.

In parallel with the phenomenal increase in significance and geographic scope of competition law however, the question of what is competition law all about has mushroomed.

Introduction

The phenomenal geographical expansion of competition law in recent years has been most noticeable in the developing world. As we noted in the first chapter, this expansion has occurred against the backdrop of the economic transformation witnessed worldwide and which has led to an increased reliance on the market mechanism. The impact of this shift has been particularly felt in developing countries, many of which have been taking remarkable steps in replacing their centrally planned economies with ones based on free-market philosophy. Considerable work however remains to be done in many parts of the developing world in this regard in order to bring about meaningful and sustainable privatisation, which could in turn contribute to advancing economic and technical development; an equal if not greater amount of work is needed in the field of competition law.

What is meant by ‘developing countries’?

The question of what is a ‘developing country’ and whether this is an appropriate way to describe a country that is not developed itself can be discussed in a chapter of its own if not an entire book. Some people would argue that the use of the concepts of developed and developing countries may not be the best way to categorise countries and for this reason many international institutions, governments and people have shown a preference towards the term ‘less developed countries’ (LDCs) to describe countries which are not developed; and there are those who use the term ‘newly industrialised countries’ to refer to these countries.

This chapter is concerned with a specific and highly important topic, namely the relationship between competition policy and trade policy. This topic assumes particular significance in the context of the present book as well as any discussion or debate on the international dimension of competition law and policy. Among the issues which will be examined in this chapter are: the aims and objectives of these policies; the differences between them; the similarities or even complementarities between them; and the lessons one may learn from each of these policies individually which may be helpful in particular for the purposes of developing competition law and policy internationally. One of the major issues which will be examined in the chapter is that of market access, which is found at the heart of the phenomenon of hindrances – of different types – that may impede the ability of foreign firms to enter the domestic markets of countries. The issue of market access and hindrances to it are therefore of primary importance when discussing the relationship between the two policies: it provides a ‘meeting’ or ‘linkage’ point between competition and trade policy. The chapter will specifically address the possible approaches currently available under competition and trade policy which can be used to address market access concerns involving anticompetitive behaviour of private firms, mainly hybrid hindrances, which in addition – as we saw in the previous chapter – have a public involvement.

Introduction

When Rachel Carson published her hugely influential book Silent Spring in 1962, she laid the foundation upon which the then recently conceived environmental movement would rest. With a language which is as dystopian as it is strangely poetic, Carson framed a rhetoric that would come to be much used by the environmental movement. Her fears and predictions with regard to chemicals, in particular dichloro-diphenyl-trichloroethane (DDT), still linger in the public minds of Europeans and Americans alike. Reports published over time maintaining that some of these fears are exaggerated have had nowhere near the same resonance as her original work.

Silent Spring was followed by other works in the 1970s which warned of the environmental consequences of industrialisation: Limits to Growth was published in 1972 and made the spectacular, and much publicised, claims that, by 1990, the world would have run out of gold, silver, mercury and zinc. In The End of Affluence, published in 1974, Paul and Anne Ehrlich predicted the dangers following global cooling and the near end of fish in the seven seas. Fortunately, none of these particular claims have materialised. However, in recent years publications have also emerged with the aim of highlighting the risks to human health and the environment that have actually materialised as a consequence of modernisation.

As a response to the above literature, some authors have also emphasised the lack of development and innovation that would have resulted had a certain amount of risks not been taken.

The development and status of the precautionary principle in Sweden

Introduction

Precautionary considerations have a long tradition in Sweden. Some commentators have traced a ‘precautionary principle’ as far back as the 1940s in some areas of Swedish law. Since the late 1960s something resembling a modern precautionary principle guiding all environmental and health regulation has been in effect. Despite this, the precautionary principle, and risk regulation in general, has attracted little attention from scholars in the area. One reason for this is that nature and health protection is historically an uncontroversial issue in Sweden. The culture of spending free time in the forests and on the coast is very strong. The Nordic countries are the only ones in the world which sustain the concept of ‘allemansrätt’, which means that everyone enjoys a total freedom of access to nature. The fact that Swedish decision-making is traditionally consensus-based may also have been an influence. This is further emphasised by the unique political stability that Sweden has enjoyed, which has enabled the government to pursue a steady and continuous dialogue with industry.

Even though the precautionary principle rarely functions as an individual legal principle in Swedish law, but, instead, functions together with other legal norms, an attempt is made here to isolate the influence and the meaning of the principle. The same structure as was followed when discussing the precautionary principle in EU and WTO law is followed here.

Since its inclusion in the Treaty of Maastricht in 1992 and, in particular, since the food scares of the last years of the 1990s, the precautionary principle has been held up as a fundamental principle of environmental and health regulation in the EU. Frequent reference is made to the precautionary principle, both in relation to the internal market and in international trade relations. In a European Union which is increasingly concerned with the negative effects of human development and economic progress, a legal instrument which allows for early intervention is generally perceived as necessary and reasonably uncontroversial.

However, this book has shown that the use of the precautionary principle, by the EU institutions as well as by the Member States, is far from uncontroversial. Similar situations are not treated in a comparable fashion, which makes it increasingly difficult to foresee how and when precautionary measures will be applied, and it is often difficult for the affected parties to enjoy effective redress before the relevant courts. Furthermore, EU Member States increasingly justify derogation not only from harmonised rules but also from the basic free movement provisions by invoking the precautionary principle. This practice runs the risk of undermining the careful compromises and agreements which underlie the EU, and, as a consequence, a fragmentation of the internal market.

This book has analysed whether it is possible to discern a definition of the precautionary principle, as well as whether there are systematic and coherent elements behind the issuing of precautionary measures at international, European and national levels.