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Given the extent of soft law and interpretative guidance by bodies which are not courts, there is a need for further insight into interinstitutional communication between the EU and national levels. This contribution focuses upon the ‘diagonal’ relationship between the European Commission and national courts. It explores the impact of the Commission’s ostensibly non-binding interpretative guidance on national judicial decision-making. Applying the concepts of active and passive interpretation of EU law by the Commission to cases in national courts, it examines the relative interpretative roles of the Commission and the Court of Justice, and finds examples of both being employed. Through active interpretation it can be argued that the Commission oversteps its competence. However, the Commission also uses its role to ‘bootstrap’ the Court of Justice’s case law and further encourage compliance. The significance of soft law is viewed both from the ‘supply side’ of the European Commission, revealing its representation of the EU interest in context, and the ‘demand side’ of national courts as recipients.

The House of Lords judgment in Inntrepreneur v Crehan, where the court did not consider itself bound by a finding of the European Commission, demonstrated the potentially contentious and constitutionally significant nature of the relationship between the European Commission and national judges in the field of antitrust. The decentralisation of enforcement of Articles 81 and 82EC arguably carries greater risks of divergent application of EC antitrust enforcement rules. While national competition authorities are linked through the European Competition Network, no such mechanism exists for national courts as this would offend against the principles of judicial independence and procedural autonomy. The Commission, as primary enforcer of competition law in the Community, has therefore attempted to complement the formal judicial 'dialogue' of the European Court of Justice's preliminary reference procedure with a strengthening of its own relations with the national courts. After addressing the broader theoretical context of administrative intervention in judicial decision-making, this paper examines the use of one tool to promote consistent application of EC antitrust rules - non-binding European Commission opinions and amicus curiae briefs to national courts in antitrust proceedings under Article 15 of the Modernisation Regulation. It identifies national cases where the Commission has actually intervened under Article 15 and assesses the nature and efficacy of this soft law mechanism. One finding is the difficulty in finding and tracing the cases, making the impact of the Commission's advice difficult to judge. Transparency is desirable for legitimacy, legal certainty, and if Commission opinions are to have the most impact for promoting convergent application of EC antitrust rules among national judges.

The modernisation of EC antitrust rules timed to coincide with the 2004 enlargement of the European Union is widely recognised as an historic and revolutionary reform. According to the dominant view that has emerged in both law and political science, the change is to be explained in terms of the interest and ability of the European Commission to engineer a reform that, behind the guise of decentralisation to national authorities, has in practice extended its power and influence over the control of anti-competitive agreements. Drawing on original research, this paper contests the conventional wisdom and the image of the Commission as an imperialistic actor that underlines it. It argues that such a view dramatically overstates the Commission's power and that a more sophisticated explanation is required. First, the Commission was motivated more by changes in the thinking within an epistemic community of competition practitioners and lawyers than by an impulse to expand its authority. Second, contrary to the monolithic conception of the Commission on which the dominant view depends, the Commission was internally differentiated and the development of its reform proposals the product of internal negotiation and conflict, rather than the expression of an inner drive to expansionism. Third, scrutiny reveals the Commission to be a constrained organisation, rather than a body able to re-write competition law

This policy paper offers a synthesis of research on privatisation and its impacts on the utilities sector in different countries. It identifies issues to be considered by policy makers concerned with economic reform, including the implications of sequencing privatisation together with competition, regulation and industry restructuring; the role and importance of an independent regulatory agency; and the impact of introducing competition into utility markets. In addition to assessing reform through the more conventional method of examining productivity gains, it considers the distribution of the broader benefits from reform among key stakeholders - government, investors and consumers.