Public Policy Goals Under EU Competition Law — Now is the Time to Set the House in Order

Summary:

This publications examines the European Commission's decision practice on conflicting policy goals in competitive assessments before and after the introduction of the more economic approach with particular regard to industrial, social and environmental policy considerations. It then looks at the Court of Justice of the European Union's (CJEU) position and establishes to what extent the two institutions’ interpretations are compatible.

The analysis takes into account a number of changes introduced by the Treaty of Lisbon, more particularly the relegation of the competition aim from the list of official Union policies to a mere Treaty protocol, the increased emphasis on social values and the growing number of cross-sector clauses. As most of the decision practice and case law in this area concerns assessments under Article 101 TFEU and there are very few cases in which the relevance of non-competition advantages has been explicitly discussed in Article 102 TFEU and merger assessments, the focus of this article lies equally on Article 101 TFEU. It also attempts an explanation as to why the issue has traditionally concentrated on this provision.