Article 82 is traditionally analysed as a tool to integrate and liberalise the European Single Market and to protect competition from distortion. As such there is no comprehensive discussion of the tensions that lie at the centre of the objective of protecting competition in the current rethinking of Article 82. With regard to exclusionary abuses, DG Competition has articulated that the main objective of Article 82 is the protection of competition in the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. This statement may conflict with some of the case law protecting the economic freedom of the market players derived from ordoliberalism. The latter is a well respected German legal tradition that holds both that government needs to be restrained from abuse of power, and that the free market has its limits. Economic rights deserve protection and vigilance is needed to ensure economic power is not misused or abused, not only in the interests of consumer welfare, but also in the interests of the economic liberty of the individual. This thesis considers the tension between the goals of protecting economic freedom and the promotion of consumer welfare in the application of Article 82. Presupposing that economic freedom and consumer welfare are in opposition to one another, such tension is only set to intensify and must be given appropriate weight in considering the extent to which DG Competition can or should try to move to a consumer welfare standard. Changing the interpretation of protection of competition from economic freedom to consumer welfare within Article 82 can undermine a fundamental right if economic freedom is considered a fundamental right in the Community legal order. However, consumer welfare can also be seen as an opportunity, if properly debated or agreed to by the ECJ, to adopt a more economics-based approach to Article 82.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:606778 |
| Date | January 2007 |
| Creators | Lovdahl Gormsen, Liza |
| Publisher | King's College London (University of London) |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://www.manchester.ac.uk/escholar/uk-ac-man-scw:111421 |
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