Searching for the Long-Lost Soul of Article 82ec

Posted: 16 Jun 2009

See all articles by Pinar Akman

Pinar Akman

School of Law, University of Leeds

Multiple version iconThere are 2 versions of this paper

Date Written: Summer 2009

Abstract

This article has two interrelated purposes, one of historical and one of contemporary significance. It first seeks to challenge the common view in the literature that Article 82EC is a product of ordoliberalism. This is done by directly examining the travaux préparatoires of the competition rules of the EC Treaty to discover the intent of the drafters of Article 82EC. This inquiry is important for a modernized approach to Article 82EC since it must be determined whether Article 82EC can be applied with a ‘consumer welfare’ standard without a Treaty amendment. This is because, if the provision is ‘ordoliberal’, its objective cannot be the enhancement of ‘consumer welfare’. As its second and policy-driven purpose, this article suggests that the intent of the drafters of Article 82EC provides the EC Commission and the courts with the means to apply Article 82EC in a modernized manner with a ‘more economic approach’. The article shows that the drafters of Article 82EC were mainly concerned with increasing ‘efficiency’. Hence, adopting a welfarist objective would not imply a fundamental change in the goals of Article 82EC. On the contrary, including efficiencies in the assessment would be a late but welcome recognition since efficiency is already imbedded in the provision.

Suggested Citation

Akman, Pinar, Searching for the Long-Lost Soul of Article 82ec (Summer 2009). Oxford Journal of Legal Studies, Vol. 29, Issue 2, pp. 267-303, 2009. Available at SSRN: https://ssrn.com/abstract=1418385 or http://dx.doi.org/gqp011

Pinar Akman (Contact Author)

School of Law, University of Leeds ( email )

Leeds, LS2 9JT
United Kingdom

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