Consumer Welfare in EU Competition Law: What is It (Not) About?

The Competition Law Review (2015), Vol. 11, Issue 1, pp 131- 160

TILEC Discussion Paper No. 2015-011

30 Pages Posted: 14 May 2015 Last revised: 18 Aug 2015

See all articles by Victoria Daskalova

Victoria Daskalova

University of Twente; TILEC (Tilburg Law and Economics Center)

Date Written: May 1, 2015

Abstract

More than a decade after the proclamation of consumer welfare as a goal of EU competition law, a fundamental question remains unanswered: namely, what is the content of the EU consumer welfare standard? What types of benefits and harms count respectively as welfare and as harm? Whose harm and whose benefit is included in the definition? Few answers have been available to these crucial, from a legal perspective, questions.

The goal of this article is to explore the meaning of consumer welfare in terms of these questions. In particular, considering the assumption that the notion of consumer welfare in EU competition law is borrowed from economics, the article will attempt to verify to what extent consumer welfare coincides with the notion of consumer surplus in economics. The focus is therefore on 1) whether consumer can be taken to mean the final consumer or the intermediary purchaser and 2) whether the notion of harm refers primarily to price effects. Part I of the paper focuses on the definition of consumer welfare in antitrust law and in economics. Part II considers the definitions of consumer welfare in the Commission’s soft law and argues that a finding of an end user surplus cannot be supported. Part III turns to the jurisprudence of the European Courts and argues that support for end-user surplus cannot be found in the Court’s case law. The paper concludes that although we do not find support for an end-user surplus standard in the Court’s jurisprudence, the change in language in the 2012 Post Danmark ruling leaves us wondering as to whether and in what direction the Court’s approach might change.

Keywords: consumer welfare, producer welfare, end-user surplus, welfare tradeoffs, antitrust law, modernization of EU competition law

JEL Classification: A11, A12, B20, B40, D60, K21, L40

Suggested Citation

Daskalova, Victoria I., Consumer Welfare in EU Competition Law: What is It (Not) About? (May 1, 2015). The Competition Law Review (2015), Vol. 11, Issue 1, pp 131- 160; TILEC Discussion Paper No. 2015-011 . Available at SSRN: https://ssrn.com/abstract=2605777 or http://dx.doi.org/10.2139/ssrn.2605777

Victoria I. Daskalova (Contact Author)

University of Twente ( email )

Drienerlolaan 5
Enschede, 7522 NB
Netherlands

HOME PAGE: http://https://www.utwente.nl/en/bms/cstm/

TILEC (Tilburg Law and Economics Center) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

HOME PAGE: http://https://www.tilburguniversity.edu/research/institutes-and-research-groups/tilec/

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