by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho
It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.
In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.