General principles of EU law in EU antitrust

Abstract

This chapter examines the use and content of unwritten general principles of EU law in EU antitrust law (Art 101 and 102 TFEU). It focuses on three unwritten general principles: effectiveness, proportionality and non-discrimination. The chapter starts by examining the explicit use of the general principle of effectiveness in antitrust law proceedings and rules related to its enforcement. The second part explores the role of proportionality, both within the EU antitrust procedural law and the substantive assessment of an antitrust case. Finally, the chapter focuses on the role of non-discrimination within the substantive assessment of EU antitrust cases. The chapter shows that these principles are affirmed, expressly or implicitly, in procedural but equally in substantive antitrust law. Yet, their role and actual use varies significantly between antitrust procedure and the substantive assessment of a case. While these principles have a more explicit role in antitrust procedure, their role is less pronounced in the substantive assessment of antitrust cases. The role of these principles in the substantive assessment seems also different because the principles can be applied in a way that is open to economic reasoning and the EU Courts afford the Commission substantial margin of discretion in making complex economic assessments.