Non-competition goals in the interpretation of Article 81 EC
Journal
Global Antitrust Review (GAR)
Type
journal article
Date Issued
2008-07-02
Author(s)
Semmelmann, Constanze
Abstract
http://www.icc.qmul.ac.uk/GAR/Semmelman.pdf.
Article 81 EC Treaty fails to provide a mechanism for determining how to accommodate non-competition goals in EC competition law, and the conventional practices of the European Commission and the Community Courts do not allow for guidance in such matters. The problem arising from this failure is the main focus of the present article, which approaches the problem from both a constitutional perspective - by starting from the EC Treaty as a whole and subsequently dealing with the role of private parties in governance matters - and from the perspective of substantive competition law and its ‘modernised' enforcement rules. The main thesis presented in the article is as follows: Non-competition goals cannot be taken into account in the interpretation of Article 81 EC unless they translate into economic benefits. Guidance on the ‘translation' of non-competition goals into efficiency gains is urgently needed. It is rather this translation criterion - and not the question of whether some non-competition goals play a more important role than others vis-à-vis the competition goals - that establishes a ‘hierarchy' among the public policies. A so far embryonic objective function of fundamental rights would equally have to pass the translation' test.
Article 81 EC Treaty fails to provide a mechanism for determining how to accommodate non-competition goals in EC competition law, and the conventional practices of the European Commission and the Community Courts do not allow for guidance in such matters. The problem arising from this failure is the main focus of the present article, which approaches the problem from both a constitutional perspective - by starting from the EC Treaty as a whole and subsequently dealing with the role of private parties in governance matters - and from the perspective of substantive competition law and its ‘modernised' enforcement rules. The main thesis presented in the article is as follows: Non-competition goals cannot be taken into account in the interpretation of Article 81 EC unless they translate into economic benefits. Guidance on the ‘translation' of non-competition goals into efficiency gains is urgently needed. It is rather this translation criterion - and not the question of whether some non-competition goals play a more important role than others vis-à-vis the competition goals - that establishes a ‘hierarchy' among the public policies. A so far embryonic objective function of fundamental rights would equally have to pass the translation' test.
Language
English
Keywords
EU competition law
value conflicts
non-market goals
decentralised enforcement
public policy
HSG Classification
contribution to scientific community
Refereed
Yes
Publisher
Interdisciplinary for Competition Law and Policy (ICC) School of Law
Publisher place
London
Volume
1
Number
1
Start page
15
End page
47
Pages
33
Subject(s)
Eprints ID
52685
File(s)![Thumbnail Image]()
Name
Semmelman, The future of non-competition goals in Article 81 EC_GAR.pdf
Size
172.41 KB
Format
Adobe PDF
Checksum (MD5)
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