Articles 81 and 82 of the EC Treaty were drawn up in order to regulate the market behaviour of undertakings. However, the Court of Justice has developed solid case law as regards the extent to which Member States can be held liable under Articles 3(g) and 10 in conjunction with Article 81 or 82 of the EC Treaty. The authors’ analysis of the EC case law emphasises the fact that the exact applicability of the liability of the State still appears difficult to define. Moreover, established case law does not substantially clarify the exact applicability of Articles 81 and 82 to undertakings when State liability is at hand. In the recent Arduino case, the Advocate General argued that private subjects should not fall within the scope of Article 81 if the anti-competitive effects of the agreement result only from the incorporation into national legislation. However, the Court of Justice did not rule on the propositions made by the Advocate General. The judgment in the Arduino case shows that the applicability of State liability under Articles 3(g) and 10 in conjunction with Articles 81 or 82 of the EC Treaty is still not clear and that it most likely will continue to be subject to scrutiny by the courts of law within the EU.
World Competition