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Commercial Divisions of Public Entities and the Limits of EU Competition Law

DOI https://doi.org/10.21552/core/2019/3/5

Jasper P Sluijs


Competitive behaviour by public entities is generally approached in the literature as concerning the traditional State-owned enterprises pursuing public interest objectives. However, increasingly we see examples of commercial divisions of public entities aiming to generate revenue per-se. Because these commercial divisions can enjoy competitive advantages over their private sector competitors, their behaviour may distort competition. This phenomenon has become prevalent throughout the EU, and Member States tend to approach its anticompetitive effects through various competition law(-related) frameworks. This article points out, however, that a competition law framework may be ill-suited to address anticompetitive effects of commercial divisions of public entities. With an ill-functioning and diverging legal framework across the EU, anticompetitive effects of commercial divisions of public entities lead to an uneven playing field between public and private firms with adverse effects on the internal market.
Keywords: Competition Law, Mixed Markets, State-owned Enterprises

Dr Jasper P Sluijs, Assistant professor, Utrecht University School of Law. For correspondence: <mailto:j.sluijs@uu.nl>. The author wishes to acknowledge Vladimir Bastidas, Paul de Bijl, Daan Boot, Linde Bremmer, Anna Gerbrandy, Agnieszka Janczuk-Gorywoda, Willem Janssen, Viktorija Morozovaite, Thibault Schrepel and scholars at TILEC, ASCOLA, and the Hungarian academy of sciences for helpful comments and suggestions during the various stages of researching and drafting this paper. Special thanks go out to the LLM students in my ‘Government as a Competitor’ clinic and thesis student Bart van Hemessen, together providing a small army of research assistants. No outside funding was received or relied upon for this article.

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