Freezing the State out of the Market: the Three Degrees of State Incapacity in Europe

Abstract

This Paper argues that the demarcations of public power arrived at in EC competition law by the Court and the Commission, while sensitive to State prerogatives, reveal a picture of State incapacity rather than capacity; freezing the state out of the market rather than deliberating any, however attractive, subtle balance of constitutionalised private governance. We progress from a review of the place of competition within the Treaty and a broader consideration of the policy framework (Section I). Attention then turns to what are identified as the three degrees of State Incapacity: (1) the State’s regulatory role (Section II); (2) the state and the exercise of the public authority function (Section III); (3) elaborating the public interest in the provision of services of general economic interest (Section IV).