Comparing Laws in the Enforcement of EU and National Competition Laws

This paper discusses the topic of ‘Comparing Laws’ in the specific context of the decentralised enforcement of EU competition law and the parallel application of national competition laws. More specifically, it deals with the harmonisation process between the Member States’ and the EU competition laws. This is a unique process as at first sight it accommodates regulatory competition between the Member States and the Commission, resulting in the emergence of voluntary harmonisation. However, in fact the decentralised enforcement regime has preserved the Commission’s dominance and Europeanised national competition laws to the model of EU law. Still, this process involves active comparative exercises by both the European Commission and the 27 Member States. The paper addresses the question why and how the Commission and the Member States compare competition rules. What makes these comparative exercises worth analysing is, on the one hand, that they are of recent origin and take place against a new decentralised enforcement system which has recently been transformed from a supranational EU policy into one which is subject to similar problems of multi-level governance as other substantive parts of EU law; on the other hand, that the creation of the European Competition Network (ECN) opened the way for spontaneous harmonisation between national and EU competition laws, but at the same time its hierarchical structure preserved certain constraints that limit its functioning as a platform of true regulatory competition