La prise en considération de critères « extraconcurrentiels » dans le droit communautaire de la concurrence

This article examines whether and to what extent the EC Treaty and the Merger Regulation allow the Commission and other competition watchdogs to take into account objectives and considerations other than competition-maximising goals when they apply and enforce EU competition rules. It tries to show how EU law solves the conflicts likely to arise between these rules and the various policies of the EU. Its main thesis is that EU law leaves some room for goals other than competition-maximising ends. Under EU law these goals may play a role in the application of competition rules. The Treaty and the Merger Regulation, however, severely restrict the role of these considerations. Reflecting the liberal orientation of the European economic Constitution, competition, under EU law, is the rule and non competition the exception. In the context of EU law, the article argues, competition is essentially understood ? as it was by the Austrian School of Economics ? in terms of economic freedom and market power. Maintaining competition on a given market is thus mainly about preventing undertakings to acquire market power or to use already acquired market power to make gains they could not make if they did not have such a market power. The emphasis is on the freedom to buy or sell goods and services without coercion by a market-power holding supplier. This means that any other goal, including economic efficiency, is outside the scope of competition policy. The EC Treaty does allow the regulators to take into account the various policy-objectives it enumerates and assigns to the EU when they decide whether an agreement, a merger, a market behaviour, or a state aid should be forbidden. Yet, as the article shows, the Treaty only permits a limited accommodation of the objectives ? such as environmental protection, regional and social cohesion, or economic efficiency ? likely to conflict with the pursuit of market freedom within the application of the competition rules. Article 81, paragraph 3, gives substantial discretion to the Commission and Member State regulators to exempt agreements found to violate article 81, paragraph 1. This avenue, however, may only be used if the agreement under consideration does preserve market freedom for a substantial part of the relevant market. What is more, EU competition law is even stricter when it comes to market behaviour and market structure. Mergers, whatever their contribution to economic efficiency or technological progress might be, cannot escape prohibition if they are found to create a dominant position. Likewise, there is no escape road for companies already commanding a dominant position once established they have behaved in a way inconsistent with article 82. Article 86, paragraph 2, provides for a very limited exception to these prohibitions, in case an undertaking has been assigned the task of providing a service of general economic interest. Finally, although the rules regarding state aid appear, at least on paper, more open to extra-competition goals, the Commission has consistently privileged competition over other considerations in practice. The article concludes on a tentative prediction about the future shape of EU competition law.