论德国与欧盟行政垄断规制模式的差异性与耦合性

On Difference and Coupling of Germany and EU on Regulation of Administrative Monopoly

为了防止行政主体滥用行政权力扭曲与损害正常市场竞争机制,德国与欧盟均构建了行政垄断规制制度。在行政垄断具体规制模式层面,德国与欧盟之间存在立法设计与司法裁判标准的差异,德国倾向于采用宪法规制路径,其裁判标准较为粗糙与模糊,而欧盟倾向于采用竞争法规制路径,其裁判标准具有精细化与系统化的特征。不过,在欧盟与成员国法律之间加速一体化的时代背景下,欧盟与德国行政垄断规制模式之间呈现相互协调利益诉求的趋势。双方不但都将"确立与保障社会市场经济体制"作为核心原则,而且均统一规制相互交融的行政垄断行为与立法垄断行为。

In order to prevent administrative subject from abusing administrative power to distort and damage normal market competition mechanism, both Germany and the European Union build the system of administrative monopoly regulation. At the level that relates to administrative monopoly regulation pattern, there is a difference between legislation design and judicial judgment standard of Germany and the European Union. Germany tends to adopt the regulation path of constitution, so its judgment standard is unshaped and blurry while the European Union would like to adopt the regulation path of competition law, so its judgment standard has the characteristics of refinement and systematization. However, under the historical background that law of the European Union and its member states is accelerating the integration, the monopoly regulation mode between Germany and the European Union shows a trend of coordinating different interest demands reciprocally. Both of them not only take the establishment and guarantee of social market economic system as core principle, but also uniformly regulate intermingle administrative monopolistic conduct and legislation monopolistic conduct.