Abstract
European competition law is predominantly focused on maximizing consumer welfare. This overarching purpose (which is supported by economic theory) leaves little place for safeguarding non-economic values, such as sustainability. This makes it difficult to allow cooperation between companies to contribute to such non-economic goals. In this article we explore whether it is possible to establish a different normative framework, in which such goals can be taken into account and can be balanced against the economic goal of consumer welfare. To answer this question, we take four steps. First, we discuss current EU competition law and the difficulty of fitting non-economic goals into the dominant interpretation of that law. Second, we propose a different normative framework, based on the capability approach advanced by philosopher Martha Nussbaum and economist Amartya Sen. Third, we argue that there are good principled reasons to incorporate non-economic goals into competition law. Fourth, we apply both the capability approach and the consumer welfare approach to three (illustrative) cases in which non-economic goals are at stake. Overall, we argue that the capability framework, although not without difficulties of its own, may provide a more legitimate theory for the interpretation of European competition law.
Highlights
To ensure the efficient functioning of markets, European competition law prohibits undertakings from entering into anti-competitive agreements and abusing a dominant position on the market.[1]
It is even possible to use such a method for ‘non-use’, in the case of protecting the black-tailed godwit. If such an inclusive welfare approach can take these interests into account in a satisfactory manner, it might be judged a better alternative to consumer welfare approaches than the capability approach
In this article we have argued that there are good reasons to include non-economic interests in a competition law assessment, and we have shown the shortcomings of the dominant consumer welfare approach in this respect
Summary
To ensure the efficient functioning of markets, European competition law prohibits undertakings from entering into anti-competitive agreements and abusing a dominant position on the market.[1]. Companies sometimes enter into agreements to further a non-economic goal, such as rendering production facilities more ecologically friendly or strengthening social cohesion in inner-city areas They may have different motivations for doing so, but in these cases the question arises: should European competition law take these non-economic interests into account? The aim of our endeavour is to show how a theory which is widely used in political philosophy can show a way out of one of the challenges within European competition law We link this theoretical exploration with practice and show how combining the capability approach with actual competition cases may lead to quite surprising results
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