Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. 81

EUI Working Papers LAW No. 2007/30

21 Pages Posted: 13 Feb 2008

See all articles by Heike Schweitzer

Heike Schweitzer

Humboldt University of Berlin - Faculty of Law

Date Written: December 1, 2007

Abstract

The EU is currently re-conceptualizing the goals of competition law and their place within the EC Treaty. Whereas the Draft Reform Treaty is emphasizing the weight of public policy goals vis-à-vis the goal of undistorted competition, the EU Commission has made an effort to remove non-competition goals from competition policy in the course of the "decentralization" of EU competition law enforcement and to refocus competition law on the efficiency criterion, namely the consumer welfare goal. This contribution shall discuss the regulation of the interface between competition policy and public policy goals in the interpretation and application of Art. 81 EC under the old and the new enforcement regime. Doctrinally, the debate is led on two levels: With regard to the interpretation of Art. 81(1) the question is raised whether conflicting policy goals can delimit its scope. Art. 81(3) with its broad and general terms, potentially provides an opening of EU competition law for the consideration of noncompetition related policy goals on the level of exemptions. The interpretation of Art. 81(3) EC has gained new relevance since it has been declared directly applicable by Art. 1 of Regulation 1/2003. Whereas, under the former regime, the Commission could regulate the competition-public policy interface case-by-case based on its monopoly for granting exemptions, the direct applicability of Art. 81(3), i.e. its enforcement by national competition authorities and courts, calls for more conceptual guidance. The difficulties to provide such guidance throw some light on the conceptual uncertainties associated with the recent reform of EU competition policy.

Keywords: EU competition policy, employment policy, internal market, environmental protection

Suggested Citation

Schweitzer, Heike, Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. 81 (December 1, 2007). Available at SSRN: https://ssrn.com/abstract=1092883 or http://dx.doi.org/10.2139/ssrn.1092883

Heike Schweitzer (Contact Author)

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

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