On Free and Fair Competition : Some Comparative Notes on the Interplay between Unfair Competition and Competition Law

Despite the increasingly market-friendly approach to unfair competition law (UCL) adopted by EU law, the protection of competitors from unfair trading practices (B2B) remains a salient feature in certain jurisdictions. Such a feature can be the source of tension with European law on at least two accounts: on the one hand, the harmonisation of unfair competition at the EU level and its (un)intended constraining effects upon national regulation of B2B commercial practices; on the other hand, the convergence of national competition laws under Article 3 of Regulation no. 1/2003 vis-à-vis unfair unilateral conduct adopted by non-dominant undertakings. Behinds such tension stands an indirect conflict (diagonal conflict) between EU and national law that is highly, though not exclusively, dependent upon the national approach to UCL. This contribution deals with these topics in two separate parts that can be read as independent pieces depending on the reader's interests and patience. The first part (I-III) consists of a comparative analysis of three (for the time being) Member States (the UK, France and Germany) whose legal systems (British common law, and French and German law) can be taken as having paradigmatic interest in what concerns different takes on unfair competition and, consequently, on the interplay between the latter and competition law. The second part (IV and V) will address the impact of EU law on the previous topics, focussing on the Europeanisation of UCL through the Unfair Commercial Practices Directive (UCPD) and the convergence of national competition laws brought about by Regulation no. 1/2003. One of the conclusions to be drawn is, it seems, that the combined effect of these two layers of EU law does not favour the protection of competitors from B2B unfair commercial practices, nor does it look too kindly upon an integrated approach to unfair competition and competition law