Abstract
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The borderline between Member States’ actions that are non-liberal or still comply with the internal market law of the European Union seems to be more and more relative nowadays. Challenges like the global financial and economic crisis of 2008 or more recently the coronavirus crisis and the ongoing war in Ukraine may even strengthen this ambivalence. In spite of expectations of a deeper European integration, a contradictory tendency can be seen in competitive advantages that are not classified as measures being incompatible with EU law. In our understanding, such advantages may be any kind of economic advantages (state aids, exclusive rights to provide certain services, exemptions from public procurement procedures, etc.) which may influence the competition on the internal market by strengthening the competitive position of a company and which are attributable to states or any other public entities.
In the European legislation, we can see a trend for almost two decades that Member States’ governments get more influence in economic sectors which are subject to regulation at the EU level, and consequently, their discretion has been increasing in the determination of national measures that comply with the EU requirements. Such a trend may lead to weakening of the integration as a whole, especially as an effect of nationalist powers showing scepticism towards a stronger Europe, and poses objective risks on competition in certain Member States, not to mention negative consequences from the point of view of rule of law. As an example, the 2022 Rule of Law Report of the European Commission highlights, that some of the countries (esp. Hungary, Bulgaria or Poland to a certain extent) are threatened by objective corruption risks due to unclear conditions in public procurement legal rules. Among others it may mean, that if the democratic control of a given political regime is unsatisfactory, granting competitive advantages may be influenced by the government power in a way that goes against the normal operation of the market economy in the European Union.
The above issues will be analysed in economic sectors like energy (electricity and gas), post and telecommunication, waste, water and wastewater. Nevertheless, the changes in the regulatory background have an influential effect on the wider context of EU market regulation extending well beyond the scope of the above-mentioned areas.
As a part of our research, we leveraged an original database containing selected cases completed by the Court of Justice of the European Union (CJEU) between 2000 and 2020. In our view, there is a correlation between broadening the scope of derogations from EU internal market and competition rules allowed for Member States, and the tendency of interpreting Member States’ powers in the case-law of the CJEU. In order to prove this statement, our study combines the analytical research with a legal empirical method, specifically a statistical analysis of the case law of the CJEU. We may conclude that the CJEU, within the scope of its discretionary power, represent a relatively extensive approach which is rather receptive than rejecting towards Member States’ derogatory instruments. This factor also contributes to the above-mentioned risks on competition, with possible negative rule of law consequences in certain countries.
Our paper aims at contributing to the current scientific discussions on the changes in nations’ attitude to supranational integrations, with an original analytical focus on the link between the changes in EU economic law and rule of law risks.
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