The Conflict Between Economic Freedom and Consumer Welfare in the Modernisation of Article 82 EC

Abstract

The Bundeskartellamt has argued that “the economic freedom model is based on the belief that in the long run both goals [economic freedom and consumer welfare] are not in conflict as safeguarding of a vivid competition process will enhance consumer welfare.”1 According to the Bundeskartellamt, there is no conflict as both aim at safeguarding a vivid competition process that will enhance consumer welfare. This article does not disagree that both objectives are aiming at protecting a vivid competition process to some extent, or that consumer welfare may be enhanced if the competitive process is protected; but it does argue that the reasons for protecting the competitive process are very different. Economic freedom is understood to be the protection of rivals’ opportunities to access the market and to compete within the market, without being restricted by any other company in order to achieve individual economic freedom.2 Consumer welfare is explicitly concerned with consumer gain3 in form of lower prices, high-quality products, a wide selection of goods and services, and innovation.4 Economic freedom and consumer welfare may not be seen as polar opposites, but the aims of the two objectives are fundamentally different.5 They are based on different normative values and are pursuing different outcomes. While the two objectives may sometimes coincide, this is not always the case. Economic freedom is a rights-based approach and consumer welfare is a form of December 2007 European Competition Journal 329