The ‘Consumer Welfare’ Standard As A Form Of Substantive Protection For Consumers Under European Competition Law

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Abstract The introduction of the euro and the steady development of the internal market have both led to a growing number of retail sectors operating on a pan-European basis. As retailer consolidation occurs throughout Europe, and as supermarkets and shopping centres continue to replace traditional corner shops and smaller outlets, competition problems may begin to be perceived in these sectors. Consequently, now more than ever, the proper role of competition law in regulating conduct in the retail sector—including the use of private labels by retailers— deserves detailed consideration by legal scholars. Of particular concern is the place of consumers in a given competition law assessment of a retail market. More specifically, the status of a consumer welfare standard under EC competition law needs to be examined. According to the current Director General (DG) for Competition, the primary aim of modern European competition law and policy is to protect the functioning of competition on markets in order to enhance ‘consumer welfare’.Consumer welfare, then, apparently represents the standard according to which enforcement of EC competition law should be determined. Given the abundance of official statements to similar effect, it would not be an exaggeration to state that the position of the consumer in European competition law has never been stronger. Some commentators, however, have questioned the accuracy of these claims. One often criticizes the European Commission (the Commission) in this regard for paying insufficient attention to the interests of consumers in its investigations and for producing in its decisions only a cursory note on any potential consumer benefits. The courts too can arguably be criticized on a similar basis. Furthermore, it has also been argued that in any case the decisional practice of the Commission cannot be easily changed to encompass a consumer welfare standard as this would involve either ignoring or contradicting precedents set by the European courts.