CYIL vol. 9 (2018)

MICHAL PETR CYIL 9 ȍ2018Ȏ (hereinafter referred to as “EFTA Convention”); nonetheless, the EFTA Convention does not provide for any enforcement mechanism in the antitrust area, but only for consultation among its Member States, 20 and in the area of state aid, it only refers to the rules of the World Trade Organization. 21 Surprisingly, the term undertaking (without being further explained) was employed for the purposes of abuse of dominance, 22 but not for prohibited agreements, where the term “agreements of enterprises” is used instead. 23 Concerning state aid, no definition is provided. Since the competition law is currently covered by the EEA Agreement for most of the EFTA Member States, I will not further discuss this issue in this article. 24 2. Association Agreements The association agreements are defined very broadly in EU law; 25 in this article, I will only consider the agreements with (potential) candidate countries, e.g. with Serbia, 26 and the Eastern Partnership agreements, e.g. with the Ukraine. 27 As has already been mentioned above, the association agreements are part of the EU legal order, and the CJ EU enjoys broad jurisdiction over their provisions. 28 As far as the provisions on competition law in such agreements are concerned, they address, in general terms, prohibited agreements, abuse of dominance, and certain forms of state aid, 29 while using the term undertaking, which is however not defined. 30 It is thus clear that the provisions on competition law contained in the association agreements ought to be interpreted in line with EU competition law; no doubt it is so when the interpretation is carried out by the CJ EU; concerning the national authorities, the situation may widely vary, as will be discussed below with regard to national law. 3. Agreements with other countries As we have seen in the cases above, when an agreement is “modelled” on EU law and covers also the material law, i.e. when it defines prohibited conduct, it employs the term 24 For further details, see e.g. BLANCHET, T., PIIPPONEN, R., WESTMAN-CLÉMENT, M.: The Agreement on the European Economic Area (EEA). A Guide to the Free Movement of Goods and Competition Rules. Oxford University Press, 1994, pp. 9-11. 25 According to Article 217 TFEU, “the EU may conclude with one or more states or international organizations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.” In detail, see e.g. RUFFER, E.: Interpretation, Implementation and Enforcement of Association Agreements: Institutional Structures, Dispute Settlement Mechanisms and the Jurisdiction of the Court of Justice of the EU. In: ŠIŠKOVÁ, N.: From Eastern Partnership to the Association. A Legal and Political Analysis. Cambridge Scholars Publishing, 2014, pp. 41-58. 26 Stabilization and Association Agreement between the European Communities and their Member States of the one Part, and the Republic of Serbia, of the other Part (hereinafter referred to as “Agreement with Serbia”). 27 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of 20 EFTA Convention, Art. 18 (2). 21 EFTA Convention, Art. 16. 22 EFTA Convention, Art. 18 (1) (b). 23 EFTA Convention, Art. 18 (1) (b).

the other part (hereinafter referred to as “Agreement with the Ukraine”). 28 In detail, see e.g. CRAIG, P., DE BÚRCA, G., op. cit. sub 11, p. 340. 29 Agreement with Serbia, Art. 73 (1); Agreement with the Ukraine, Art. 254 and 262.

30 Agreement with the Ukraine, Art. 264, nonetheless states that while interpreting the provisions on state aid, the relevant provisions of the TFEU and the respective CJ EU jurisprudence are to be regarded as “sources of interpretation” .

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