Whose Regulation, Which Competition?
ASCOLA Competition Law series
Edited by Hanns Ullrich
Comment: A short note on the generation of efficiencies in the context of the 'constitutional' principles of European competition law
Comment: A short note on the generation of efficiencies in the context of the ‘constitutional’ principles of European competition law Gustavo Ghidini* The subject matter of this workshop stimulates, inter alia, a reflection on the position and role of the generation of efficiencies in the framework of the ‘constitutional’ principles of EU competition law. First of all, of course, we must consider the paradigm of Article 81(3) of the EC Treaty – a basic paradigm which I assume (and as I will later try to argue) embodies a balance of interests which basically informs the whole process of anticompetitive assessment – from the earlier Treaty-based cartel law to the subsequent Merger Regulations. Now, Article 81(3) tells us precisely that an agreement that produces substantial, long-lasting efficiencies, even if they also benefit users (as indeed they must in order to be relevant), cannot be authorized if it is likely to eliminate competition from a substantial portion of the relevant market. Thus, Article 81(3) sets a double hierarchy between different general interests: a) the interest in preserving workable actual competition is foremost, and prevails over the – also general – interest in the generation of efficiencies, be they connected to superior productive, distributive or technological performance; b) in turn, the interests of the parties to the agreement are placed a step below those of consumers – the only ‘guaranteed’ social group. Further, how strongly the hierarchy is set may be seen from the fact that, even where the prospective efficiencies can be deemed to...
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