Abstract
While European Union (EU) competition law has long been understood as a variety of public interest law, the extent to which the rules can be applied directly to advance noneconomic public interest-oriented goals is more contentious. This contribution considers whether and how such concerns can be accommodated within the framework of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). It considers both the conventional approach to addressing public interest concerns within the analytical structure of the antitrust rules and also how broader public interest objectives have shaped recent EU-level enforcement efforts in three key sectors: the liberalizing public utilities markets, the pharmaceutical sector, and the digital economy.
Highlights
Competition law has long been understood as a variety of public interest law, broadly construed.[2]
To the extent that the latter is pursued by economic operators in a manner that triggers antitrust scrutiny, it is necessary to derogate from application of Articles 101 or 102, whether by classifying the conduct as falling outside the scope of “economic activity,” by reference to the specific exceptions provided by Article 101(3) or the objective justification concept under Article 102, or by overreaching the competition rules through the exercise of State action
The Commission, has a rich history of robust enforcement within the “new” economy, including infringement decisions against Microsoft in 2004178 and Intel in 2009.179 Both involved the application of well-established rules to more novel market situations—tying and refusal to deal in Microsoft, exclusive dealing in Intel—and both culminated in what were, at the time, record-breaking fines for violations of Article 102. These cases may be viewed as “setting the scene” for the trio of infringement decisions pursued against Google—Shopping,[180] Android,[181] and AdSense182—since 2017. These later cases mark a more muscular development of the antitrust rules in several ways, which, we suggest, is inspired in part by a perceived need to address broader public interest concerns
Summary
Competition law has long been understood as a variety of public interest law, broadly construed.[2]. EU competition law cannot avoid the inconvenient reality that antitrust, if interpreted broadly and without reference to the underlying context, might serve to inhibit or even prohibit large swathes of activity that the average European would consider to be very worthwhile This article explores this tension, considering both the orthodoxy, and going beyond it to suggest a variety of ways in which broader public interest concerns may feed in, more obliquely and typically without explicit acknowledgment, to the Commission’s enforcement practice. Both the achievements and the limitations of using antitrust law to pursue wider public interest values in these contexts are considered.
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