Social Policy Goals in the Interpretation of Article 81 EC

Abstract

The black letter lawyer stops reading where things become exciting: the soul of the open textured provision of Article 81 EC depends on the way in which policy makers, economists and enforcement bodies shape it. This implies a number of value judgments. The book strives to place a classical legal problem within its political, social, and economic context. It seeks to identify a concept for the reconciliation of both sets of Treaty objectives which is compatible with the broader Treaty framework but which at the same time pays due account to the particularities of EC competition law. Possible solutions for the interplay between competition goals and social policy goals in the interpretation of Article 81 EC are based first, on a contextual and constitutional reading of the provision. Second, the problem is approached from the perspective of the prevailing analytical framework of substantive EC competition law and its modernized enforcement structure. This examination leads to the conclusion that the appropriate test is the translation test, meaning that a social policy goal can only be taken into consideration provided it translates into economic efficiencies. This applies equally to social fundamental rights in their - so far embryonic - objective function.