Public Policy Goals Under EU Competition Law – Now is the Time to Set the House in Order
Final version published in (2012) 8 European Competition Journal 443
39 Pages Posted: 14 Mar 2014
Date Written: March 2014
In the ongoing economic crisis, businesses throughout the European Union have been urging the competition authorities to take into account industrial and social policy considerations when enforcing the competition rules, thereby reigniting the debate about what type of benefit should be capable of outweighing private conduct’s anticompetitive effects. This contribution argues that the two key players in shaping EU competition law do not see eye to eye on the matter. Since the Commission adopted the more economic approach to EU competition law, it has considered economic efficiencies only capable of offsetting competitive harm. The Court of Justice, however, stands by its traditional doctrine that the competition rules must be interpreted in light of the Treaties’ objectives as a whole and therefore also takes into account other policy benefits under Article 101(3) TFEU. This conflict, which is the result of a more fundamental disagreement about the core values underlying EU competition law, is detrimental to legal certainty. Moreover, the Commission’s determination to persist with its approach despite the Court’s opposition is difficult to reconcile with the rule of law.
Keywords: Article 101(3) TFEU, the objectives of competition law, consumer welfare, public policy, the rule of law
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