Stefano Giubboni

Solidarietà e concorrenza: "conflitto" o "concorso"?

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Intersections between EC competition law and solidarity principles have been at the very centre of the European academic and political debate since the end of the Eighties (paragraph 1 - Introduction). The case law of the Court of Justice of the European Communities (ECJ) has progressively developed along a path aimed at striking a tentative balance between the two normative principles. This article begins by providing an analysis of the ECJ's case law, focusing in particular on the leading cases concerning the compatibility between supranational competition law and national social insurance monopolies (paragraph 2 - Solidarity vs. competition: the ECJ's case law concerning the social insurance monopolies). The critical evaluation of the ECJ's case law supports the conclusion that the Court of Justice has struck an elusive balance between the two principles, in so far solidarity has been constructed and categorised as a quelified derogation to the full application of Community competition rules (paragraph 3 - A critical evaluation of the ECJ's case law). The conceptual underpinnings of the ECJ's case law are imbued with two main shortcomings: they imply a reductive interpretation of the normative notion of solidarity within the European legal order; they tend to entrap the interrelations between competition and solidarity within an idea based on inevitable conflict, lacking to consider the possible relationship of mutual reinforcement and support. The so-called "third sector" sphere appears to be particularly at odds with this vision. By providing the example of the recent Italian general reform of the social assistance system, the author tries to develop this idea of combination and reciprocal adjustment between competition mechanisms and solidarity functions (paragraph 4 - Soildarity and competition: the Italian example of the social assistance reform). The more recent developments of the EC legal order "post Amsterdam", including the draft Treaty establishing the European Constitution, encourage this effort aimed at establishing a more balanced and responsive relationship between competition and solidarity principles and values (paragraph 5 - By way of conclusion: solidarity and competition in the new European Constitution).

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