CYIL vol. 12 (2021)

michal petr CYIL 12 (2021) their effects or deprives its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere. 18 After the Treaty of Lisbon, undistorted competition is no longer listed among the EU’s goals. That provision has nonetheless been replaced by a new Protocol No. 27 to the TFEU on internal market and competition, affirming that the internal market needs to include a system ensuring that competition is not distorted. The “status” of competition law has thus not been diminished, 19 as was also affirmed by jurisprudence. 20 Thus, even under the Treaty of Lisbon, state measures disturbing competition are prohibited, as the Court of Justice recently summarised in the AG2R case: “It must be borne inmind that Article 101 TFEU, read in conjunction with Article 4(3) EU, requires the Member States not to introduce or maintain in force measures, whether legislative or regulatory, which may render ineffective the competition rules applicable to undertakings”. 21 Still, only those state measures that impose or induce anti-competitive behaviour by undertakings, reinforce the effects of anti-competitive behaviour or delegate regulatory powers to private operators can be considered as violating these provisions. 22 Thus, state measures excluding certain undertakings from competition for security reasons is not covered by competition law in connection with Article 4(3) of the TFEU either. 1.3 Anticompetitive Obligations imposed on Undertakings There is one last scenario to be considered. The state may not directly exclude an undertaking from the market but may instead discourage other undertakings from cooperating with it. The actual distortion of competition is thus not caused by the state’s measure, but by the subsequent conduct of the undertakings concerned. This is the case for example in the Czech Republic, where the Cybersecurity Agency proclaimed that the technologies of Huawei constitute a cybersecurity threat and that the operators of critical infrastructure need to react to this threat and take precautionary measures. 23 On the basis of this, some of these operators reportedly refused to purchase technologies from Huawei. Would it be possible for Huawei to seek protection under competition law? In general, that would be possible only if the undertakings’ conduct excluding Huawei from the market was in itself in breach of Articles 101 or 102 of the TFEU. As a matter of principle, that would be possible. 18 CJ EU judgement of 17 November 1993 C-2/91 Wolf W. Meng, ECLI:EU:C:1993:885, par. 14. 19 PERA, A. Changing Views of Competition, Economic Analysis and EC Antitrust Law. European Competition Journal , 2008 (1), p. 127. 20 See e.g. the judgements of the General Court of 22 March 2012 T-458/09 and T-171/10 Slovak Telekom v. Commission , ECLI:EU:T:2012:145, par. 36, and of 20 march 2015 T-456/10 Timab Industries and CFPR , ECLI:EU:T:2015:296, pars. 211 and 212. 21 CJ EU judgement of 3 March 2011 C-437/09 AG2R Prévoyance , ECLI:EU:C:2011:112, par. 24 22 BACH, A. Judgments of the Court, Cases C-185/91 Reiff, C-2/91 Meng and C-245/91 Ohra. Common Market Law Review , 1994 (6), p. 1357. 23 Warning of the Czech Cybersecurity Agency ( op. cit. ).

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