Crisis Cartels: Non-Economic Values, the Public Interest and Institutional Considerations

"The post-2008 global economic crisis has renewed scepticism in markets and market-based institutions. This questioning has reopened earlier discussions of the need to balance market concerns, which include the competition provisions of the Treaties in their underlying structure, with other non-economic or “social” concerns. These social concerns arise in the context of environmental, health, and social matters such as employment.

This article investigates the economic and non-economic interests arising from an industry-agreed-upon plan for the reduction of capacity during an industry-wide “crisis”. As such arrangements involve output restrictions or some understanding on prices, they typically violate TFEU Article 101(1). The competition law issue is whether the provisions of Article 101(3) can save such agreements. However, in addition to the competition provisions, there are other provisions in the European Treaties which could possibly have a bearing on the consistency of such agreements with European law. Of significance are Article 3 TEU’s provisions for Union aims, including the desires for balanced growth, a highly competitive social market economy, full employment and social progress. In the post-Lisbon Treaty era, these provisions could have greater significance if the view that competition concerns have been de-emphasised by that Treaty is correct."