Abuse of Economic Dependence - The Centre for European Policy ...

6 A Gap in the Enforcement of Article 82
different tastes, then consumer welfare may increase if they can choose
from a wider variation of products. The last component is innovation.
Consumers may benefit and consumer welfare may increase if new products/services
are developed, on the basis that there is actual or potential
demand for the new products/services. 4
Promotion of consumer welfare has traditionally been considered as one
of the aims, not the sole aim, of antitrust, both in the United States and in
Europe. 5 In the United States the Federal Trade Commission (‘FTC’) acts to
ensure that markets operate efficiently to benefit consumers. In the UK the
Office of Fair Trading (‘OFT’) declares that the OFT’s goal is to make
markets work well for consumers. Most academics seem to agree that
consumer protection is the prevailing aim of antitrust legislation. 6
Early European Commission (‘Commission’) Reports on Competition
Policy strongly suggested that European competition policy was aimed at
the promotion of consumer welfare. The European Commission’s First
Report on competition policy in 1971, stated that:
‘[C]ompetition policy endeavours to maintain or create effective conditions
of competition by means of rules applying to enterprises in both
private and public sectors. Such a policy encourages the best possible use
of productive resources for the greatest possible benefit of the economy
as a whole and for the benefit, in particular of the consumer’.
The Commission and the European Court of Justice (‘ECJ’) in their fundamental
decisions reached in the 1970s interpreted the objective of protecting
competition as referring to the protection of the economic freedom of
market actors. These important decisions were not based on economics or
consumer welfare. In these early cases the Commission and Community
courts were not focused on consumer welfare, but on the protection of the
4 J Malinauskaite, ‘The development of “consumer welfare” and its application in the
competition law of the European Community and Lithuania’ [2007] 18(10) ICCLR 354–364,
355.
5 R Whish, Competition Law (5th edn, Butterworths, UK, 2003) 15 f.
6 Annex 1 presents a table (taken from the ICN Report) of the objectives of unilateral
conduct laws identified in the responses of the jurisdictions which were surveyed as part of the
ICN Report. The report prepared by the ICN Unilateral Conduct Working Group (ICN
Report) for the 6 th Annual Conference of the ICN in May 2007 in Moscow consists of three
chapters, which address: 1) the Objectives of Unilateral Conduct Laws; 2) the Assessment of
Dominance/Substantial Market Power; and 3) State-Created Monopolies. The report describes
the approaches of competition agencies around the world to these issues, and distills themes
that may assist in promoting convergence in these areas. The report is based on the responses
of ICN Members and non-governmental advisors (NGAs) to a questionnaire developed by the
working group http://www.internationalcompetitionnetwork.org/media/library/unilateral_
conduct/Objectives%20of%20Unilateral%20Conduct%20May%2007.pdf.