EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3.2 Teleology of EU merger control It is clear from the Commission’s documents that the teleology of the EU merger control is driven by the teleology of Articles 101 and 102 of the Treaty on the Functioning of the European Union, (“TFEU”). Taking into account that the Old EUMR was introduced in late 1980’s, i.e. almost 30 years after the current Articles 101 and 102 TFEU, it is not surprising that it was treated as “a vital additional instrument made available to it by the Council in order to ensure a system of undistorted competition in the Community” (European Commission Consumer welfare is one of the core values not only of the EU competition law, but, more broadly, of EU law. It seems that for the moment, EU law perceives consumer welfare as an answer to the principal question “whether competition policy should seek to advance consumer welfare or total welfare, or ought to aim, instead, at protecting ‘Wettbewerbsfreiheit’ or the ‘freedom to compete’” (Vanberg, 2009, p. 4). Consumers are protected by the primary law of the EU, inter alia Article 38 of the Charter of Fundamental Rights of the European Union, (the “Charter”). Although Article 38 of the Charter is “short and abstract, it symbolically shows that consumers are valued not only as market actors but also as human beings” (Benöhr, Micklitz, 2018, p. 22). In the EU competition law, “the concept of ‘consumers’ encompasses all users of the products covered by the agreement, including wholesalers, retailers and final consumers” (MacCulloch, 2018, p. 65). Consumers are referred to directly in the EUMR: “it is possible that the efficiencies brought about by the concentration counteract the effects on competition, and in particular the potential harm to consumers, that it might otherwise have and that, as a consequence, the concentration would not significantly impede effective competition” (EUMR, 2004, recital 29). Consumer welfare itself appears in soft law, for example in para. 13 of the Communication from the Commission. Notice. Guidelines on the application of Article 81(3) of the Treaty, OJ C 101, 27.4.2004, p. 97–118 : “the objective of Article 81 is to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources”, or with regard to Article 102 TFEU: “the aim of the Commission’s enforcement activity in relation to exclusionary conduct is to ensure that dominant undertakings do not impair effective competition by foreclosing their competitors in an anti competitive way, thus having an adverse impact on consumer welfare” (para. 19 of the Communication from the Commission. Guidance on the Commission’s [online], 1991, para. 20). 3.2.1 Consumer welfare

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