Artikel 101 FEUF: dess historiska identitet i ljuset av moderniseringsprocessen
The historical identity of Article 101 FEUF in the light of the modernisation process
Author
Summary, in English
The concept of a united European community might not be Ordoliberal but the foundation of what it is built upon is to a large extent. The project of integrating the European markets was seen as an important peace keeping incentive and according to Ordoliberal ideals the competition process was regarded as a crucial component of a social market economy. Both the European Court and the European Commission have been accused of applying an over formalistic approach to agreements in conflict with article 101 FEUF, either on the ground of hampering the integration goal or impeding the principle of freedom-of-action without taking into account their economical efficiencies. The case law has been far from consistent between the commission and the courts, but vertical agreements were for a long time targeted by both as malign which was the cause of serious debates within the community about who the competition law really was to protect: the competitors or the competition process?
The American antitrust law served as an important source of inspiration in the debate, although the principle of rule of reason never acquired acceptance in Europe. The paradigm shift towards a more lax attitude came in the 1990’s after the commission realized its formalistic approach was out of date and they understood the importance of economic efficiencies in an allocative and innovative matter. The modernization was welcomed and came as a result of a series of events over time: the globalization which had called for the need of a more efficient European market but also procedural motives since the community’s members had increased. Consumer welfare has since climbed in rank as a community goal, but the market integration has not lost its position as a leading competition objective which the outcome of the GlaxoSmithKline case shows. The amplification of the multiple goal policy in competition law shows a less defensive attitude towards (economical) efficiency arguments when applying article 101 FEUF.
One can still attribute plenty of features in the evolution of the European competition to American antitrust law when looking at the analytical model inspired from the Harvard School or even the Chicago School when discussing economic efficiencies. The influence to the Rome Treaty’s drafting process is however disputed. A rudiment fact though is the heritage the ordoliberals provided for: the idea of a constitutional framework and the stance of a competition process as a significant component in a market society; with other words the corner stone of the European Union.
The American antitrust law served as an important source of inspiration in the debate, although the principle of rule of reason never acquired acceptance in Europe. The paradigm shift towards a more lax attitude came in the 1990’s after the commission realized its formalistic approach was out of date and they understood the importance of economic efficiencies in an allocative and innovative matter. The modernization was welcomed and came as a result of a series of events over time: the globalization which had called for the need of a more efficient European market but also procedural motives since the community’s members had increased. Consumer welfare has since climbed in rank as a community goal, but the market integration has not lost its position as a leading competition objective which the outcome of the GlaxoSmithKline case shows. The amplification of the multiple goal policy in competition law shows a less defensive attitude towards (economical) efficiency arguments when applying article 101 FEUF.
One can still attribute plenty of features in the evolution of the European competition to American antitrust law when looking at the analytical model inspired from the Harvard School or even the Chicago School when discussing economic efficiencies. The influence to the Rome Treaty’s drafting process is however disputed. A rudiment fact though is the heritage the ordoliberals provided for: the idea of a constitutional framework and the stance of a competition process as a significant component in a market society; with other words the corner stone of the European Union.
Department/s
Publishing year
2013
Language
Swedish
Full text
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- EU-rätt
- EU law
- 101 FEUF
- Freiburg
- ordoliberalism
- konkurrensrätt
- konkurrensbegränsande avtal
- konkurrenspolicy
- moderniseringsprocess
- formalism
- rule of reason
Supervisor
- Henrik Norinder