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Abstract:
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The EU is currently re-conceptualizing the goals of competition law and their place
within the EC Treaty. Whereas the Draft Reform Treaty is emphasizing the weight of
public policy goals vis-à-vis the goal of undistorted competition, the EU Commission
has made an effort to remove non-competition goals from competition policy in the
course of the “decentralization” of EU competition law enforcement and to refocus
competition law on the efficiency criterion, namely the consumer welfare goal.
This contribution shall discuss the regulation of the interface between competition
policy and public policy goals in the interpretation and application of Art. 81 EC under
the old and the new enforcement regime. Doctrinally, the debate is led on two levels:
With regard to the interpretation of Art. 81(1) the question is raised whether conflicting
policy goals can delimit its scope. Art. 81(3) with its broad and general terms,
potentially provides an opening of EU competition law for the consideration of noncompetition
related policy goals on the level of exemptions. The interpretation of Art.
81(3) EC has gained new relevance since it has been declared directly applicable by Art.
1 of Regulation 1/2003. Whereas, under the former regime, the Commission could
regulate the competition-public policy interface case-by-case based on its monopoly for
granting exemptions, the direct applicability of Art. 81(3), i.e. its enforcement by
national competition authorities and courts, calls for more conceptual guidance. The
difficulties to provide such guidance throw some light on the conceptual uncertainties
associated with the recent reform of EU competition policy. |