Economic Theory and Competition Law
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Economic Theory and Competition Law

  • ASCOLA Competition Law series

Edited by Josef Drexl, Laurence Idot and Joël Monéger

The context for this book is the increasingly complex relationship between economic theory and competition law which gives rise to lively political and academic debate on the direction competition law should take in a more global and innovation-oriented market place.
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Chapter 9: Competition Law and Public Policy: Reconsidering an Uneasy Relationship – The Example of Article 81

Heike Schweitzer


Heike Schweitzer* 1 INTRODUCTION The development of an internal market with undistorted competition is one of the central fields of activity of the EU (Article 3(1)(g) EC), and has long been one of its seemingly uncontroversial goals. The debate about the relationship between this goal and other goals listed in Articles 2 and 3 EC that are not competition-related has been a reminder of the political tensions that the application of competition rules can raise at times. The battles surrounding the Draft Constitutional Treaty and later the drafting of the Lisbon Treaty have revealed how strongly these tensions are perceived by some Member States. Upon French initiative, the new Article 2 Treaty of the European Union (TEU), confirming the establishment of an internal market as one of the Union’s goals, will no longer contain a reference to a ‘system of undistorted competition’ as was originally foreseen.1 Although the British government in turn insisted on annexing a Protocol to the TEU which will specify that ‘the internal market as set out in Article 2 of the Treaty on the European Union includes a system ensuring that competition is not distorted’,2 and the Protocol has formally the same legal * Dr. iur., LL.M. (Yale), Professor of Law, European University Institute, Florence. 1 The future Art 3(3) TEU will read in its relevant part: ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a...

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