The Consequences and Predicaments for Competititon Law and Enforcement of United Kingdom’s Withdrawal from European Union Membership
Zeynep AyataIn the aftermath of the June 26th 2016 referendum, the United Kingdom (UK) has invoked article 50 of the Treaty on the European Union’s (EU) withdrawal process relying on the act of parliament of March 16th 2017. The process that started with the invocation of article 50 is one that will lead to significant changes and loopholes in the British legal order as the UK has been subject to the EU acquis and has been harmonising its legislation accordingly for more than forty years. Competition law is one the most complete and harmonised areas of EU law. This article examines the consequences of the UK’s withdrawal from the EU with regard to competition law and enforcement. The first part of the article discusses the possible consequences of UK’s withdrawal with an economic or trade deal with the EU for competition law. The second part the article stresses the necessity of transitional arrangements for an orderly and healthy withdrawal in terms of competition law. In the final part, the article examines the problems and predicaments of a no deal exit with regard to substantive competition law, the exemption system, private enforcement of competition law, the control of mergers and acquisitions, state aids and the administrative structure.
Birleşik Krallık’ın Avrupa Birliği Üyeliğinden Çıkmasının Rekabet Hukuku ve Uygulaması Bakımından Sonuçları ve Açmazları
Zeynep AyataBirleşik Krallık, 26 Haziran 2016 tarihli referandum ile başlayan sürecin devamında, 16 Mart 2017 tarihli kanun dayanarak, Avrupa Birliği (AB) tam üyeliğinden çıkmak için Avrupa Birliği Antlaşması’nın 50. maddesi gereğince başvuruda bulunmuştur. Bu başvuru ile başlayan süreç Birleşik Krallık’ın yasal düzeninde köklü değişiklikler ve yasal boşluklar yaratacak niteliktedir, zira kırk yılı aşkın bir süredir Birleşik Krallık AB müktesebatına tabidir ve ulusal düzenlemelerini AB hukuku ile uyumlaştırmıştır. Rekabet hukuku AB hukukunun en bütünleşik ve uyumlaştırmanın en fazla olduğu alanlarından biridir. Bu makalede Birleşik Krallık’ın AB üyeliğinden çıkmasının rekabet hukuku ve uygulaması bakımından sonuçları ele alınmıştır. Makalede öncelikle Birleşik Krallık’ın AB üyeliğinden bir tür ticari ve ekonomik antlaşma ile çıkmasının rekabet hukuku bakımından olası sonuçları tartışılmıştır. İkinci bölümde sürecin daha sağlıklı ve sistemli ilerlemesi için ara dönem düzenlemesi yapılmasının önemi vurgulanmıştır. Makalenin son bölümünde ise Birleşik Krallık’ın hiçbir antlaşma olmaksızın AB üyeliğinden ayrılmasının maddi hukuk, muafiyet sistemi, özel hukuk yaptırımları, birleşme ve devralmaların denetlenmesi, devlet destekleri ve idari yapı bakımından doğuracağı sorunlar ve açmazlar incelenmiştir.
In the aftermath of the June 26th 2016 referendum, the United Kingdom (UK) has invoked article 50 of the Treaty on the European Union’s (EU) withdrawal process relying on the act of parliament of March 16th 2017. This act has triggered a unique process as no other EU has member state has officially invoked article 50 before. EU member states, starting from their candidacy period must harmonise and align their national legislation with EU law. The UK, as a member state, has accepted, transposed and implemented EU law for more than forty-five years. Hence the process that started with the invocation of article 50 is one that may lead to significant changes and loopholes in the British legal order as the UK has been subject to EU acquis during its membership. Competition law is one the most complete and harmonised areas of EU law. According to article 3 of the Treaty on the Functioning of the European Union (TFEU), competition falls under the exclusive competence of the Union. Furthermore, until the adoption of Regulation 1/2003, only EU institutions could implement EU competition law, leaving only national competition law to the competence of national authorities and courts. This framework, combined with the principle of harmonious interpretation, accorded EU institutions and courts a central role in the enforcement and development of competition policy. This article examines the consequences of the UK’s withdrawal from the EU with regard to competition law and enforcement. The first part of the article discusses the possible consequences of UK’s withdrawal with an economic or trade deal with the EU for competition law. The EU has developed several levels of economic integration with neighbouring and nonneighbouring countries such as customs union agreements, free trade agreements or cooperation agreements. The first part of the article examines these different bilateral and mixed agreements and displays their implications for competition law and policy. Furthermore, the article discusses whether these agreements, in general or in terms of their specific aspects, could be a model for future economic relations between the UK and the EU. The latest Withdrawal Agreement which was rejected in October 2019 and its implications for economic cooperation are also briefly analysed in this first part. This analysis leads to the conclusion that the economic cooperation foreseen in this Agreement presents a combination of several different elements found in various bilateral agreements entered into by the EU and aims to apply differentiated levels of integration in different geographies, especially in Northern Ireland which may have interesting implications for enforcement of competition law. The second part of the article stresses the necessity of transitional arrangements for an orderly and healthy withdrawal in terms of competition law. This part focuses mostly on ongoing proceedings and the possibility of applying EU competition law in the UK throughout the transition period. This discussion also underlines the importance of determining the conditions under which EU competition law may be applied, most importantly as part of the competence of the EU Commission and Courts, to behaviours of undertakings that have taken place within the membership period or the transition period but have been discovered after the membership has ended. Finally, the article examines the problems and predicaments of a no deal exit with regard to substantive competition law, the exemption system, private enforcement of competition law, the control of mergers and acquisitions, state aids and the administrative structure. A no deal exit will lead to significant uncertainties with regard to enforcement and interpretation of competition law which will mostly be observed in the internal UK legal order. The article discusses the measures that may be taken by the UK legislator and authorities in order avert legal uncertainty. Some of the suggestions put forward in this part rely on the examples of economic cooperation discussed in the first part of the article. The article also refers to and discusses elements contained in those withdrawal agreements that have been rejected by the UK Parliament that may be relevant to the effect of EU law generally and EU competition law specifically in the UK after Brexit.
