Competition

The competition rules in the EFTA pillar of the EEA broadly mirror those applicable within the EU pillar. However, a number of divergences exist between the regimes. Several of these, such as the rules concerning mergers, do not pose any substantial issues for homogeneity. Other areas have presented challenges. The non-incorporation of certain elements of secondary legislation raises the possibility of disparities between the two pillars. Recent cases have also forced the EFTA Court to grapple with fundamental rights issues in the context of competition. A particular feature of competition is that relatively few cases have come before the EFTA Court. However, in the area of state monopolies, the ESA has, at least in the past, been quite active. Sharp, detailed analysis of the ESA’s decisions by the EFTA Court is evident in the Posten Norge and Telenor judgments, where decisions of the ESA were challenged. Yet despite the low overall number of cases, the EFTA Court has set out a number of important dicta, including encouraging private enforcement. Such a trend can only contribute to the protection of the public interest, thereby benefiting consumers, and indeed the coherence of the EEA legal order. Furthermore, the EFTA Court has shown a welcome pragmatism on economic and evidentiary issues.