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The Role of Consumer Welfare in EU Competition Policy

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The Role of Consumer Welfare in EU Competition Policy The Role of Consumer Welfare in EU Competition Policy: How Understanding the Priority Conferred Upon Competition Policy Objectives May Shed Light on Modern Day Inconsistencies Emily Andersen MEB20 Master Thesis European Business Law 30 higher education credits Thesis Supervisor: Annegret Engel Term: Spring 2020 Table of Contents Summary ...............................................................................................................................4 Preface ..................................................................................................................................5 Abbreviations........................................................................................................................6 1. Introduction ...................................................................................................................7 1.1. Background ..............................................................................................................7 1.2. Purpose and Research Questions ..............................................................................8 1.3. Methodology and Materials ......................................................................................9 1.4. Delimitations ............................................................................................................9 1.5. Outline ................................................................................................................... 10 2. The Concept of Consumer Welfare ............................................................................ 11 2.1. Evaluating the Concept of Consumer Welfare ........................................................ 11 2.1.1. What does the term ‘welfare’ encompass? ....................................................... 11 2.1.2. What is to be considered as ‘consumer harm’? ................................................ 13 2.1.3. Who counts as a consumer?............................................................................. 14 2.1.4. What role may consumer welfare have in competition policy? ......................... 15 2.1.5. Interim Summary: Consumer Welfare .............................................................. 18 2.2. Analysing the Concept of Consumer Welfare as it Figures in Union Competition Policy ............................................................................................................................... 19 3. The Pluralistic Objectives of EU Competition Policy ................................................ 21 3.1. The Main Objectives of Union Competition Policy ................................................. 22 3.1.1. Economic Efficiency ........................................................................................ 22 3.1.2. Protecting Small and Medium Sized Enterprises .............................................. 24 3.1.3. Promoting Market Integration ......................................................................... 26 3.1.4. Protecting the Competitive Process ................................................................. 28 3.1.5. Protecting Economic Freedom ........................................................................ 29 3.2. Classifying the Union’s Competition Policy Objectives .......................................... 30 4. The Role of Consumer Welfare in the Development of the ‘More Economic Approach’ ........................................................................................................................... 34 4.1. The Commission’s Enforcement Practices Prior to Modernisation .......................... 34 4.1.1. The Commission’s Enforcement Practices in the Union’s Formative Years .... 35 4.1.2. Planting Seeds of Change; The Influence of the US Antitrust Revolution ......... 39 4.1.3. Interim Summary: The Priority Granted to Market Integration ........................ 47 4.2. Examining the Commission’s Motives for Modernising Union Competition Policy 48 2 4.3. What Enforcement Practices After Modernisation May tell us about the Priority of Consumer Welfare ............................................................................................................ 49 4.3.1. The Commission’s Enforcement Practices following Modernisation ................ 49 4.3.2. Interim Summary: The Priority Granted to Consumer Welfare ........................ 55 5. Inconsistencies in the Prioritization of the Consumer Welfare Objective................. 57 5.1. Comparing the Practices of the Commission and the Court ..................................... 57 5.1.1. The Objective(s) of Union Competition Policy According to the Court ............ 57 5.1.2. The Concept of Competitive Harm According to the Court .............................. 59 5.1.3. Point of Divergence and their Consequences ................................................... 63 6. Conclusion ................................................................................................................... 67 7. Bibliography ................................................................................................................ 69 7.1. Primary Sources ..................................................................................................... 69 7.2. Secondary Sources ................................................................................................. 70 3 Summary At the turn of the century the Commission announced its intention to introduce a ‘more economic approach’ to EU competition law. Beyond incorporating modern economic theory into its enforcement practices, such a modernised approach to competition law was also to entail bringing the Union’s competition policy objectives in line with such modern economic theory. In particular, as expressed by Mario Monti, the Commissioner for Competition at the time, the competition policy of the Union was to undergo a shift towards a focus on the economic welfare of consumers. The question arises therefore, as to whether such a shift in focus has in fact taken place, as well as what consequences such a change in focus may have for the enforcement practices of both the Commission and the Court of Justice. In light of the foregoing, this thesis examines the extent to which consumer welfare may be identified as the primary objective of contemporary EU competition policy. It seeks to define the concept of consumer welfare itself, as this has proven somewhat of an elusive concept despite its prominence in both competition law and economics. Moreover, it contextualises the consumer welfare objective within the multivalued tradition of Union competition policy by analysing the alternative objectives against which consumer welfare may be deemed as primary. Having analysed such alternative objectives, this thesis also evaluates the ways in which the enforcement practices of the Commission, especially following the aforementioned modernisation process, indicate that consumer welfare be given priority in EU competition law. However, the jurisprudence of the Court is also taken into account and utilised to highlight certain inconsistencies between the practices of each of these institutions as regards the objectives of competition policy. Ultimately the conclusion of this thesis acknowledges that, from the point of view of the Commission, consumer welfare constitutes the primary objective of competition policy, followed closely by the market integration objective. However, the same may not be said of the Court. As a consequence, the thesis additionally makes clear that action is needed in order to address existing inconsistencies between the practices of the two institutions responsible for competition law enforcement. 4 Preface When I told my grandmother that I would be attending Lund University she was overjoyed at the idea of me studying only ten minutes away from her hometown of Malmö. However, her joy was soon followed by concern as to whether I would find the ‘small town’ of Lund to be boring. After two years in Lund I can safely assure her that while I have felt a lot of things during my time in Lund, bored has not been one of them. For this I would like to thank the intelligent, kind, and overall amazing women that I get to call my friends. Marie, Erika, Claudia, and Leslie, you have been there for me through both the ups and downs and I am forever grateful. Further, I would also like to thank my colleagues in the European Business law program as well as the teachers and staff at the faculty of law who have supported me throughout this degree. In particular, I would like to thank my supervisor Annegret Engel for her patience, insight, and help throughout the writing of this thesis. A special thanks goes to my beloved family, my parents Suzi and Bjørn, my little sister Sofie, my grandmothers Phyl and Birgitta, and my grandfather Hans. To know that you all have been cheering me on throughout this degree has gotten me through many long study nights. I love you all. Finally, thank you to Kiko for believing in me when I had a hard time doing so. You are my person and I love you. While originally I had envisaged my time at Lund as a steppingstone on my way back home to Norway, I am leaving with a view of Skåne as the ‘home away from home’ that will forever have a place in my heart. Lund, August 2020 Emily Andersen 5 Abbreviations The Court Court of Justice CJEU Court of Justice of the European Union Commission European Commission DG Directorate-General EEC Treaty Treaty Establishing the European Community EU The European Union GC General
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