Introduction

In the previous chapters we noted the Commission's move towards using consumer welfare as the benchmark for testing the legality of agreements. A second, related move that we consider in this chapter is a commitment to avoid using non-economic considerations in making decisions when applying competition law. As in chapter 2, this move is examined by reference to the interpretation of Article 81, in particular subsection (3). Recently, the Commission has claimed that the purpose of Article 81(3) is: ‘to provide a legal framework for the economic assessment of restrictive practices and not to allow the application of the competition rules to be set aside because of political considerations’. By statements such as these, the Commission is repositioning competition policy quite considerably, suggesting that other non-economic values (except the single market, which the Commission sees as a means of achieving greater efficiency) have no role in the decision-making process. In a thoughtful contribution that complements this position, Alexander Schaub (a former Director General of DG Competition) said that while the ultimate objective underlying the political decision to have competition policy is the promotion of the public interest widely defined (e.g. in terms of prosperity, employment and social cohesion), the day-to-day enforcement of competition law should not be preoccupied with achieving these political benefits directly – public interest goals should not be translated into ‘criteria for law enforcement’ but are achieved by preventing distortions of competition in the internal market.