A Separation of Powers Approach to Non-efficiency Goals in EU Competition Law

Certain provisions of the TFEU call for the integration of non-efficiency goals, like health and environmental protection, into the implementation of EU policies and activities, including, it would seem, competition law. This article argues that courts and other adjudicators applying EU competition law should be pre-empted from taking cognisance of a non-efficiency gain once the State in which competition is restricted has put measures in place to achieve the objective in question, even if those measures are not the most protective possible. This approach is explanatory of recent and older decisions, and can be reconciled with the Commission's 2010 Horizontal Cooperation Guidelines. Sanctioning a restriction of competition to achieve either efficiency or non-efficiency gains is argued to approximate to the exercise of distributive justice. Unlike constitutional balancing generally, the courts are inferior to other branches of government, even to agencies, in the exercise of distributive justice for democratic and institutional-design reasons. However, different considerations apply to efficiency gains which government is generally unable to secure throughout the economy.