Delegation of State Regulatory Powers to Private Parties-Towards an Active Supervision Test

Even though Article 81 and 82 EC apply to private undertakings and not to State regulations, the European Court of Justice established in Van Eycke that State regulations can come under antitrust scrutiny. This will happen in particular when the State delegates decision-making powers to private actors, enabling them to adopt decisions affecting the economic sphere. The Court has developed coherent case-law to describe what delegation means but its test fails to address the main concern: whether regulatory acts resulting from such delegation in reality emanate from the State or whether State approval merely shields private anti-competitive behaviour. Thus the borderline between State acts and private measures remains unresolved. In a delegation situation there is a risk that market actors will act in pursuance of their own interests and restrict competition, whilst at the same time obtaining immunity for their behaviour on the basis that it constitutes "State action''. In the recent Mauri case the Court seems to be groping towards a stricter standard which requires that Member States ensure active supervision over "delegated'' decisions rather than merely approve them formally. Additionally, in CIF the Court articulated a strict interpretation of the effet utile principle placing a large responsibility on Member States to ensure the full effectiveness of EC law in the field of competition. It is still unclear whether these changes result in a considerably tighter delegation test but Member States and their competition authorities-especially after the CIF judgment-will face a higher threshold when drawing the line between private and State measures. This article has been shortlisted for the 1st World Competition Young Writer Award.