Wednesday, April 4, 2012
Compatible or Conflicting: The Promotion of a High Level of Employment and the Consumer Welfare Standard Under Article 101
Posted by D. Daniel Sokol
ABSTRACT: The antitrust, or competition, regime of the European Union (EU) differs substantially from that of the United States, because EU competition law forms part of the EU Treaties and is therefore imbibed with the multiple values of the European Union itself. Accordingly, it is by no means clear or settled if the anti-cartel law of the European Union, Article 101 TFEU, must focus solely on a consumer welfare standard or must also consider the broad and multiple policy aims enshrined in the EU Treaties. If Article 101 must balance multiple aims, this would be in stark contrast to Section 1 of the Sherman Act, where the sole goal of consumer welfare has long been established.
This Article will seek to demonstrate that when an agreement is examined under Article 101, any anti-competitive impact that is detrimental to consumer welfare must be balanced against the positive effect on the policy goals of the EU (with the Article focusing particularly on employment issues). The Article further proposes that a “bifurcated balancing approach” should be adopted, with economic efficiency concerns being examined under Article 101(1) and broader policy goals being considered in Article 101(3). The proposals made in this Article are not wholly without controversy, but are supported by the case law of the European Court of Justice.