Edited by Roger Zäch, Andreas Heinemann and Andreas Kellerhals
Chapter 3: Freedom to Compete or Consumer Welfare: The Goal of Competition Law According to Constitutional Law
Roger Zäch* and Adrian Künzler** 1 INTRODUCTION Under the basic constitutional provisions of the USA, the EU and many European countries, the overall purpose of legal rules against private restraints on competition is to favour economic prosperity, which includes consumer welfare.1 However, legal rules against private restraints on competition are not aimed at creating economic prosperity directly. This is rather brought about indirectly, by protecting the freedom to compete of actors on markets, and can even occur against their will.2 The reason for this is that freedom to compete generally leads to competition and competition leads to an efficient allocation of resources and thus to consumer welfare. The goal of competition law, therefore, is to ensure the freedom to compete of individuals and thus to safeguard the competitive process. Due to the influence of the so called ‘more economic approach’ in the EU legal rules have recently been enacted and opinions expressed that could result in future scenarios in which restraints on competition are assessed directly under the aspect of consumer welfare, efficient allocation * Professor of Law em., Director at the Europa Institute, University of Zurich, Switzerland. ** Dr.iur., District Court of Zurich, Switzerland. 1 Article 3 lit. g and Preamble to the EC Treaty; see for example also Articles 94, 96 and 27 of the Swiss Federal Constitution. 2 Zäch, R. and A. Künzler (2006), ‘Individualschutz und Institutionsschutz als Aufgaben des Kartellrechts’ in R. Zäch, C. Breining-Kaufmann, P. Breitschmid, W. Portmann, A. Thier, W. Ernst...
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