Guidelines and BER’s Clause Samples

Guidelines and BER’s soft law and policy Technically, the Commission’s guidelines are not law, nor are they binding on Member States. There is a legitimate expectation, however, that the Commission will follow its own guidance.48 ▇▇▇▇▇▇ agrees that the guidelines should be viewed as guidance only as they bind no one except the Commission.49 That the guidelines in fact take on a more meaningful and significant role is highlighted by the Commission itself. In the Article 81(3) Guidelines, it is stated that the purpose of the guidelines is to “set out the Commission’s view of the substantive assessment criteria applied to the various types of agreements and practices”.50 It is stated further that they provide “guidance to the courts and authorities of the Member States in their application of Article 101(1) and (3)”.51 Additionally it is asserted that “the...guidelines outline the current state of the case law of the Court of Justice’ and set out the Commission’s policy with regard to issues that have not been dealt with in the case law”.52 Given the Commission’s primary role as enforcer of the competition rules, the fact that the various Guidelines it issues are not law in its truest sense is irrelevant on a practical level: the Guidelines demand to be taken seriously.53 What is more, the guidelines tend to blur the line between law and policy. It is submitted that the division between policy initiatives and the law (as determined by the European Courts) has become almost indeterminate for practical purposes within the context of such guidelines. Therefore the presentation of the law set out in the guidelines is 48 Article 81(3) Guidelines, para 4; noted in Case C-226/11 Expedia Inc v Autorité de la concurrence, nyr. 49 (Goyder, 2011), p12 VI. 50 Article 81(3) Guidelines, para 3. 51 Article 81(3) Guidelines, para 4. 52 Article 81(3) Guidelines, para 7.
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