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The Global Limits of Competition Law$
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D. Daniel Sokol and Ioannis Lianos

Print publication date: 2012

Print ISBN-13: 9780804774901

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804774901.001.0001

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A Global Perspective on State Action

A Global Perspective on State Action

(p.99) 7 A Global Perspective on State Action
The Global Limits of Competition Law

Damien M. B. Gerard

Stanford University Press

This chapter argues that in the European context, the key test in assessing the legality of public restraints (as opposed to private practices) ought to be whether they infringe the internal market provisions rather than the competition law rules of the Treaty on the Functioning of the European Union (TFEU). Indeed, the internal market provisions are best suited to achieve the right balance between the pursuit of allocative efficiency and the necessary deference to Member States' sovereignty. In turn, they effectively prevent protectionist behaviors while preserving Member States' ability to pursue redistributive objectives. Hence, it is time to depart from the state action doctrine as developed by the EU courts and to consider public restraints through different lenses other than private practice.

Keywords:   public restraints, internal market, competition law, Treaty on the Functioning of the European Union, protectionism, state action doctrine

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