Undistorted, (Un)Fair Competition, Consumer Welfare and the Interpretation of Article 102 TFEU

Abstract

This article explains the Lisbon Treaty’s provisions relating to competition policy and offers a dynamic interpretation of Article 102 Treaty on the Functioning of the European Union (TFEU), which could justify the consideration of an effects-based approach to those anti-competitive practices that are most harmful to the final consumers under the economic theory of consumer welfare. The implications of ‘consumerprotection requirements’ must shed special light on Article 12 TFEU. Therefore, this article examines the possibility of shifting the courts’ teleological interpretation of Article 102, which is based on Protocol 27’s ‘undistorted competition’, towards a legal balancing test of the Treaty’s objectives. It also highlights the interpretation of undistorted competition within the internal market and the interplay between EU ‘free’ and fair and unfair competition rules. The balance of EU competition law should, therefore, be performed between Article 119 TFEU’s free competition or economic freedom-based competition and Article 12 as ensuring a ‘high level of protection’, as embedded in the Treaty, for the final consumers. This article explains how consumer-protection requirements must be defined narrowly so that Article 12 may be applied to Article 102. Article 12 can, therefore, mandate a high level of consumer protection for the final consumers in implementing such a specific policy as the abuse of dominance.

Keywords: Article 102 TFEU, EU competition law, policy goals, Lisbon Treaty, fair competition, German competition law