Tuesday, December 3, 2019
Strict competition enforcement and welfare: A constitutional perspective based on Article 101 TFEU and sustainability
ABSTRACT: This article investigates the purpose and workings of EU competition law and policy: how does the protection of competition promote welfare? It scrutinizes the claim that sustainable consumption and production (SCP) requires flexible rather than strict enforcement of Article 101 TFEU. Flexible antitrust proponents argue that SCP requires sector-wide private coordination, as manufacturers suffer from first mover disadvantage if consumers can opt for cheaper, less sustainable products. Four main arguments build on compliance with, respectively, the constitutional context of EU competition law, the more economic approach, the legitimate objective doctrine, and the useful effect doctrine. This article questions all four arguments. Integrating principle and practice, the article shows that strict competition enforcement is the way forward to promote welfare, in this case SCP. Problems of under-regulation should be addressed by the regulatory State.