Public Interest and EU Competition Law

• Author: Niamh Dunne
• Published date: 01 June 2020
• Date: 01 June 2020
• DOI: http://doi.org/10.1177/0003603X20912883

Article

Public Interest and EU

Competition Law

Niamh Dunne*

Abstract

While European Union (EU) competition law has long been understood as a variety of public interest

law, the extent to which the rules can be applied directly to advance noneconomic public interest-

oriented goals is more contentious. This contribution considers whether and how such concerns can

be accommodated within the framework of Articles 101 and 102 of the Treaty on the Functioning of

the European Union (TFEU). It considers both the conventional approach to addressing public interest

concerns within the analytical structure of the antitrust rules and also how broader public interest

objectives have shaped recent EU-level enforcement efforts in three key sectors: the liberalizing public

utilities markets, the pharmaceutical sector, and the digital economy.

Keywords

EU competition law, antitrust, public interest, anticompetitive agreements, abuse of dominance, State

action, public utilities, pharmaceutical sector, digital economy

The function of [the EU competition] rules is precisely to prevent competition from being distorted to the

detriment of the public interest[.]

1

I. Introduction

Competition law has long been understood as a variety of public interest law, broadly construed.

2

Whether stemming from its capacity to increase the size of the pie available to all, or specifically to

increase access to necessities for the most vulnerable, the task of taming private market power almost

inevitably relies upon justifications related to the broader public interest.

3

Yet in a contemporary

* Associate Professor, London School of Economics Law, London, United Kingdom of Great Britain and Northern Ireland

Corresponding Author:

Niamh Dunne, London School of Economics Law, Houghton St, Holborn, London WC2A 2AE, United Kingdom of Great Britain

and Northern Ireland.

Email: n.m.dunne@lse.ac.uk.

1. Case C-52/09, TeliaSonera Sverige, EU: C:2011:83, {22.

2. See generally Christopher R. Leslie, Antitrust Law as Public Interest Law,2UCI

RVINE L. REV. 885 (2012).

3. See generally GIULIANO AMATO,ANTITRUST AND THE BOUNDS OF POWER:THE DILEMMA OF LIBERAL DEMOCRACY IN THE HISTORY OF THE

MARKET (1997).

The Antitrust Bulletin

2020, Vol. 65(2) 256-281

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landscape where even mainstream scholars are calling for an end to capitalism or at least its progres-

sive rethinking,

4

the simple pursuit of an economically oriented understanding of consumer welfare

has faced criticism as being both ill-conceived and inadequate.

5

This contribution explores the capac-

ity of EU competition law, in particular, to pursue more specific public interest objectives over and

above its established task of “making markets work better.”

6

The term “public interest” is inevitably somewhat nebulous and imprecise. Within the EU, the

newly revived debate has been prompted by the prohibition of the proposed Alstom/Siemens merger,

7

a

decision heavily criticized by the certain Member States on the basis that it fails to take due account of

wider industrial policy considerations.

8

Environmental protection and the desirability of e nsuring

sustainability in modes of production is another area of focus,

9

chiming with policy debates regarding

the necessity to tackle the incipient climate crisis. Similarly, concerns about societal inequality,

10

unfair labor practices,

11

and a host of problems associated with the increasingly pervasive digital

economy

12

—from violations of data privacy to the spread of fake news—have made their mark in

discussions regarding the optional scope and goals of contemporary competition law. This article

4. See, e.g., JOSEPH STIGLITZ,PEOPLE,POWER,AND PROFITS:PROGRESSIVE CAPITALISM FOR AN AGE OF DISCONTENT (2019); ERIC

POSNER &GLEN WEYL,RADICAL MARKETS:UPROOTING CAPITALISM AND DEMOCRACY FOR A JUST SOCIETY (2018); WOLFGANG

STREECK,HOW WILL CAPITALISM END?ESSAYS ON A FAILING SYSTEM (2016).

5. See, e.g., Tim Wu, After Consumer Welfare, Now What? The ‘Protection of Competition’ Standard in Practice (Columbia

Pub. L. Research, Working Paper No. 14-608, 2018) and Lina Khan, The Ideological Roots of America’s Market Power

Problem, 127 YALE L.J. FORUM 960 (June 4, 2018). Specifically, within the EU context, see Ioannis Lianos, Polycentric

Competition Law,71C

URRENT LEGAL PROBLEMS 161 (2018) and Anna Gerbrandy, Rethinking Competition Law within the

European Economic Constitution,57J.C

OMMON MARK.STUD. 127 (2019).

6. See, e.g., EUROPEAN COMMISSION,THE EU EXPLAINED:COMPETITION.MAKING MARKETS WORK BETTER (2017).

7. See Press Release, European Commission, Mer gers: Commission Prohibits Siemens’ Proposed Acquisiti on of Alstom

(February 6, 2019), https://ec.europa.eu/commission/presscorner/detail/en/IP_19_881.

8. See, e.g., the joint response of France and Germany, which together launched A Franco-German Manifesto for a European

Industrial Policy Fit for the 21st Century (February 19, 2019), https://www.bmwi.de/Redaktion/DE/Downloads/F/franco-

german-manifesto-for-a-european-industrial-policy.pdf?__blob¼publicationFile&v¼2, following the Alstom/Siemens

decision. These concerns are discussed by Ioannis Lioanos, The Future of Competition Policy in Europe—Some

Reflections on the Interaction Between Industrial Policy and Competition Law, CLES POLICY PAPER SERIES (1/2019).

9. See, e.g., Herbert Hovenkamp, Are Ag reements to Address Climate Change An ticompetitive?,THE REGULATORY REV.

(September 11, 2019), https://www.theregreview.org/2019/09/11/hovenkamp-are-regulatory-agreements-to-address-

climate-change-anticompetitive/. Specifically in the EU context, see Giorgio Monti & Jotte Mulder, Escaping the

Clutches of EU Competition Law Pathways to Assess Pri vate Sustainability Initiatives,42E

UR.L.REV. 635 (2017);

Anna Gerbrandy, Solving a Sustainability-Deficit in European Competition Law,40W

ORLD COMPETITION 539 (2017);

Suzanne Kingston, Competition Law in an Environmental Cr isis,9J.E

UR.COMPETITION L. & PRAC. 517 (2019); and

Margrethe Vestager, European Comm’r for Competition, Remarks at GCLC Conference on Sustainability and

Competition Policy, Brusse ls, on Competition and Sustaina bility (October 24, 2017), (tra nscript available at https: //

wayback.archive-it.org/12090/20191129200523/https://ec.europa.eu/commission/commissioners/2014-2019/vestager/

announcements/competition-and-sustainability_en).

10. See, e.g., Jonathan B. Baker & Steven C. Salop, Antitrust, Competition Policy, and Inequality, 104 GEO. L.J. 1 (2015); Lina

Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and its Discontents, 11 HARV.

L. & POL’YREV. 235 (2017); and Ioannis Lianos, The Poverty of Competition Law,in RECONCILING EFFICIENCY AND EQUITY:A

GLOBAL CHALLENGE FOR COMPETITION LAW?(DAMIEN GERARD &IOANNIS LIANOS eds., 2019).

11. See, e.g., Marshall Steinbaum, Antitrust, the Gig Economy, and Labor Market Power,82L.&C

ONTEMPORARY PROBLEMS 45

(2019); Hiba Hafiz, Labor Antitrust’s Paradox,U.CHI.L.REV. (forthcoming, 2020); Ioannis Lianos, Nicola Countouris, &

Valerio de Stefano, Rethinking the Competition Law/Labour Law Interaction: Promoting a Fairer Labour Market, UCL

CENTRE FOR LAW,ECONOMICS AND SOCIETY RESEARCH PAPER SERIES 3/2019 (2019), and OECD, Competition Concerns in

Labour Markets–Background Note, DAF/COMP(2019)2.

12. See, e.g., Ariel Ezrachi, EU Competition Law Goals and the Digital Economy (Oxford Legal Studies Research Paper No. 17/

2018); Renato Nazzini, Online Platforms and Antitrust: Where Do We Go From Here?,5I

TALIAN ANTITRUST REV. 5 (2018);

John M. Newman, Antitrust in Digital Markets,72V

AND.L.REV. 1497 (2019); and BJO

¨RN LUNDQVIST &MICHAL S. GAL

(EDS.), COMPETITION LAW FOR THE DIGITAL ECONOMY (2019).

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