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The role of ‘freedom’ in EU competition law

Published online by Cambridge University Press:  02 January 2018

Pınar Akman
Pınar Akman*
Affiliation:
University of East Anglia
*
Pınar Akman, UEA Law School, Faculty of Social Sciences, University of East Anglia, Norwich NR4 7TJ, UK. Email: [email protected]
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Abstract

An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.

Type
Research Article
Information
Legal Studies , Volume 34 , Issue 2 , June 2014 , pp. 183 - 213
Copyright
Copyright © Society of Legal Scholars 2014

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Footnotes

*

The author wishes to thank Peter Whelan, Morten Hviid, Michael Harker, Daithí Mac Síthigh and Oles Andriychuk for helpful comments and suggestions. Support by the ESRC Centre for Competition Policy, University of East Anglia is gratefully acknowledged. The usual disclaimer applies.

References

Notes

1. Traditionally understood, the internal market comprises four freedoms: freedom of movement of goods, persons, services and capital. These are guaranteed, inter alia, in Article 26TFEU. Competition policy is regulated separately from these, as a principal policy that can be added to these freedoms. See Lasok, Kpe Law and Institutions of the European Union (London: Reed Elsevier, 7th edn, 2001) pp 431–432.Google Scholar

2. See ‘Council Regulation (Ec) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty’ [2003] OJ L1/1 Article 3.

3. For ordoliberalism, see eg Eucken, W ‘What kind of economic and social system?’ in Peacock, A and Willgerodt, H (eds) Germany's Social Market Economy: Origins and Evolution (London: Macmillan, 1989);Google Scholar Möschel, W ‘Competition policy from an ordo point of view’ in Peacock, A and Willgerodt, H (eds) German Neo-Liberals and the Social Market Economy (London: Macmillan, 1989).Google Scholar For the argument that EU competition law, and in particular Article 102TFEU, has been influenced by ordoliberalism, see eg Gerber, DJ Law and Competition in Twentieth Century Europe: Protecting Prometheus (Oxford: Oxford University Press, 1998) p 264;Google Scholar Cseres, KJ Competition Law and Consumer Protection (The Hague: Kluwer Law International 2005) p 82;Google Scholar Rousseva, E ‘Modernizing by eradicating: how the Commission's new approach to Article 81 Ec dispenses with the need to apply Article 82 Ec to vertical restraints’ (2005) 42 CMLR 587, 590–591.Google Scholar For the contrary argument in the context of Article 102TFEU, see Akman, P ‘Searching for the long-lost soul of Article 82Ec’ (2009) 29(2) OJLS 267.CrossRefGoogle Scholar

4. For the argument that economic freedom was the aim of ordoliberal competition policy, see eg Möschel above 3, p 146; Gormsen, L Lovdahl ‘The conflict between economic freedom and consumer welfare in the modernisation of Article 82 Ec’ (2007) 3(2) Eur Competition J 329, 331;CrossRefGoogle Scholar Gerber, DJ ‘Constitutionalizing the economy: German neo-liberalism, competition law and the “new” Europe’ (1994) 42 Am J Comp L 25, 36–37;CrossRefGoogle Scholar Rousseva, E Rethinking Exclusionary Abuses in EU Competition Law (Oxford: Hart, 2010) p 28. For the argument that in contrast to neoliberals, ordoliberals never attached intrinsic value to economic freedom and saw freedom to compete as an outcome of ‘complete competition’, see F Maier-Rigaud ‘On the normative foundations of competition law: efficiency, political freedom and the freedom to compete’, 5th Academic Society for Competition Law (ASCOLA) Conference on the Goals of Competition Law, Bonn, Germany, 27–29 May 2010 (forthcoming in the ASCOLA Competition Law series by Edward Elgar) 7, 10, 11, 12.Google Scholar

5. Weitbrecht, A ‘From Freiburg to Chicago and beyond – the first 50 years of European competition law’ (2008) 29(2) ECLR 81, 82.Google Scholar

6. ‘Consumer welfare’ is the aggregate measure of the surplus of all consumers. ‘Consumer surplus’ is the difference between the price that a consumer would be willing to pay for the relevant product and that which she actually pays: Marshall, A, Principles of Economics: An Introductory Volume (London: Macmillan, 8th edn, 1920) p 124.Google Scholar For the EU approach, see eg EU Commission, ‘Guidelines on the application of Article 81(3) of the Treaty’ [2004] OJ C101/97, at [13]; ‘Dg competition discussion paper on the application of Article 82 of the Treaty to exclusionary abuses’ (Brussels, December 2005) at [4], [54]; N Kroes ‘Preliminary thoughts on policy review of Article 82’, Fordham Corporate Law Institute, New York, 23 September 2005, 2. For commentators, see eg Marsden, P and Whelan, P ‘“Consumer detriment” and its application in Ec and Uk competition law’ (2006) 27(10) ECLR 569, 585;Google Scholar Lang, J Temple ‘Panel discussion on non-pricing abuses’ in Ehlermann, Cd and Atanasiu, I (eds) What Is an Abuse of a Dominant Position? (European Competition Law Annual 2003, Oxford: Hart, 2006) p 477;Google Scholar Ahlborn, C and Padilla, Aj ‘From fairness to welfare: implications for the assessment of unilateral conduct under EC competition law’ in Ehlermann, Cd and Marquis, M (eds) European Competition Annual 2007: A Reformed Approach to Article 82 EC (Oxford: Hart, 2008).Google Scholar See also ‘Guidance on the Commission's enforcement priorities in applying Article 82 of the Ec Treaty to abusive exclusionary conduct by dominant undertakings’ [2009] OJ C45/7, at [19].

7. See Eilmansberger, T ‘How to distinguish good from bad competition under Article 82 Ec: in search of clearer and more coherent standards for anti-competitive Abuses’ (2005) 42 CMLR 129, 129, 133;Google Scholar Gerber, Dj ‘The future of Article 82: dissecting the conflict’ in Ehlermann, Cd and Marquis, M (eds) European Competition Law Annual 2007: A Reformed Approach to Article 82 EC (Oxford: Hart, 2008) pp 50–51;Google Scholar Schweitzer, H ‘The history, interpretation and underlying principles of Section 2 Sherman Act and Article 82 EC’ in Ehlermann, Cd and Marquis, M (eds) European Competition Annual 2007: A Reformed Approach to Article 82 EC (Oxford: Hart, 2008) 119, 161. Article 102TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it in so far as it may affect trade between Member States. It also provides examples of abusive behaviour (eg the imposition of unfair purchase or selling prices; limitation of production, markets or technical development to the prejudice of consumers; etc).Google Scholar

8. A consensus on how to interpret ‘consumer welfare’ is lacking in this context; see eg Bork, Rh ‘Legislative intent and the policy of Sherman Act’ (1966) 9 J L & Econ 7;CrossRefGoogle Scholar and Lande, Rh ‘Wealth transfers as the original and primary concern of antitrust: the efficiency interpretation challenged’ (1982) 34 Hastings L J 65.Google Scholar

9. Mertikopoulou, V ‘Dg Competition's discussion paper on the application of Article 82 of the Ec Treaty to exclusionary abuses: the proposed economic reform from a legal point of view’ (2007) 28(4) ECLR 241, 241, 242.Google Scholar

10. Ibid, at 241, 242. See also Andriychuk, O ‘Dialectical antitrust: an alternative insight into the methodology of the Ec competition law analysis in a period of economic downturn’ (2010) 31(4) ECLR 155, 163.Google Scholar

11. Zäch, R ‘Competition law should promote economic and social welfare by ensuring freedom to compete – a lawyer's view’ in Drexl, J, Idot, L and Monéger, J (eds) Economic Theory and Competition Law (Cheltenham: Edward Elgar, 2009) pp 123, 125.Google Scholar

12. Zäch, R ‘Freedom to compete and the more economic approach – limits imposed by law’ (2009) 40(6) Int'l Rev Intell Prop & Competition L 623, 623.Google Scholar

13. Ibid, at 263. Article 101TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices that may affect trade between Member States and that have as their object or effect the prevention, restriction or distortion of competition within the internal market, subject to the exception in Article 101(3)TFEU. Article 101(3)TFEU involves a balancing of the procompetitive elements of a practice falling foul of the prohibition against the anticompetitive elements. If the criteria in Article 101(3)TFEU are met, the prohibition of Article 101(1)TFEU may be declared inapplicable.

14. Gormsen, L Lovdahl A Principled Approach to Abuse of Dominance in European Competition Law (Cambridge: Cambridge University Press, 2010) p 76.CrossRefGoogle Scholar See also Zäch, above 11, at 625.

15. Ibid, p 94.

16. Ibid, pp 96., 101. For the argument that ordoliberal ideas have not necessarily been influential in the drafting of the competition rules, see Akman, above 3.

17. Ibid, p 94.

18. The ‘EU Courts’ comprise the Court of Justice (CoJ) (including its Advocates General) and the General Court (GC) and collectively make up the Court of Justice of the European Union (CJEU). It should be noted that in the political sense, ‘freedom’ comprises two useful notions: ‘positive freedom’ and ‘negative freedom’. ‘Negative freedom’ is involved in the answer to the question of ‘what is the area within which a subject … is or should be left to do or be what he is able to do or be, without interference by other persons?’; Berlin, I, ‘Two concepts of liberty’ in Berlin, I Four Essays on Liberty (Oxford: Oxford University Press, 1969) pp 121–122. ‘Positive freedom’ is involved in the answer to the question ‘what or who is the source of control or interference that can determine someone to do or be this rather than that?’;Google Scholar Ibid, p 122.

19. See eg Lovdahl Gormsen, above 43, at 8, 10, 11; P Lowe ‘Consumer welfare and efficiency – new guiding principles of competition policy?’ 13th International Conference on Competition and 14th European Competition Day, Munich, 27 March 2007, p 2.

20. see Akman, above 3.

21. On the ‘myth’ of ordoliberal influence on EU competition policy, see Akman, P and Kassim, H ‘Myths and myth-making in the European Union: the institutionalization and interpretation of Eu competition policy’ (2010) 43(1) J Common Market Stud 111.Google Scholar

22. The main relevant term for ordoliberal thinking in German is ‘Wettbewerbsfreiheit’. This term can be translated into English in a number of ways: ‘freedom of competition’, ‘freedom to compete’, or ‘economic freedom’ can potentially be used to encapsulate the same concept in German; see eg Maier-Rigaud, above 4, for examples from the literature in English. In the database, the terms generally used in the German versions of the cases are: ‘Wetbewerbsfreiheit’ (for ‘freedom of competition’ and ‘freedom to compete’); ‘wirtschaftliche Freiheit’ (economic freedom); and ‘Wahlmöglichkeit’ (‘freedom to choose’ and ‘freedom of choice’). In the working language of the CJEU, namely French, the terms generally used in the cases in the database are, respectively: ‘liberté de la concurrence’, ‘liberté concurrentielle’; ‘liberté economique’, ‘possibilité de choix’; ‘liberté de choix’.

23. Eliminating the repeat counts, the number corresponds to 128 documents. For an explanation of ‘repeat counts’, see 26.

24. For example, there may be an AG opinion and a CoJ judgment relating to the same case. Joined cases were counted as a single entry. If they are counted separately, then the number of documents increases to 208.

25. There is also an ‘other’ category of cases, as can be seen in Table1, under which one finds documents that relate to issues such as freedom of movement, freedom of establishment, rules of the Treaty on the European Coal and Steel Community, etc; these are officially categorised as ‘competition’ cases on EUR-Lex, due to there being a competition angle.

26. The numbers in brackets signify the total number without repeat counts. For example, where there is more than one search term in an entry, this has been counted under both terms, with the number in brackets showing the count when only one entry is counted for that search term.

27. Joined Cases 56 and 58–64 Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v EC Commission [1966] ECR 299, 339.

28. ‘Inter-brand competition’ refers to the market interaction between producers and distributors of different brands, whereas ‘intra-brand competition’ refers to the relationship between firms that produce and distribute the same brand; Motta, M Competition Policy: Theory and Practice (Cambridge: Cambridge University Press, 2004) p 305.CrossRefGoogle Scholar

29. Grundig, above 27, 342.

30. For example, according to AG Darmon, ‘… freedom of competition is not, for the [Union], an end in itself but one of the components of “an overall economic policy which includes elements of industrial, structural and integration policy … implemented by a public authority, which has no objection in principle to intervention in the mechanisms of the market”’ see Opinion of AG Darmon delivered on 14 July 1993 in Case C-185/91 Bundesanstalt für den Güterfernverkehr v Gebrüder Reiff GmbH & Co KG [1993] ECR I-5801, at [23], referring to G Wils, La rule of reason en droit de la concurrence de la Cee, CDE, 1990, 19.For the GC judgments, see Case T-7/93 Langnese Iglo GmbH v EC Commission [1995] ECR II-1533, at [150]; and Case T-475/04 Bouygues SA and Bouygues Télécom SA v EC Commission [2007] ECR II-2097, at [108].See also Opinion of AG in Case C-431/07 P Bouygues SA and Bouygues Télécom SA v EC Commission [2009] ECR I-2665, at [104].

31. At the time, the Treaty did not contain even a ‘principle of free competition’, which was introduced with the insertion of Article 3a by the Treaty of Maastricht in 1992. ‘Fair competition’ (and not a principle of fair competition) was mentioned in the Preamble of the Treaties of Rome, but ‘fair’ competition cannot be argued to be equivalent to ‘free’ competition. On the potential meanings of ‘fairness’ in competition, see Akman, P The Concept of Abuse in EU Competition Law: Law and Economic Approaches (Oxford: Hart, 2012) ch 4. Currently, according to Article 119TFEU, the activities of the Member States and the Union shall include the adoption of an economic policy that is, inter alia, conducted in accordance with the principle of an open market economy with ‘free competition’. Similarly, Article 120TFEU provides that when conducting their economic policies, Member States and the Union shall act in accordance with the principle of an open market economy with ‘free competition’, favouring an efficient allocation of resources. The EU Merger Regulation also refers to the ‘principle of an open market economy with free competition’; see Council Regulation (EC) No 139/2004 of 20 January 2004 on the Control of Concentrations between Undertakings [2004] OJ L24/1, Recitals 2, 6, 24.Google Scholar

32. Case 26/76 Metro sb-Großmärkte GmbH & Co KG v EC Commission [1977] Ecr 1875, at [19].

33. Ibid, at [40].

34. This case concerned a selective distribution system of consumer electronic products manufactured by AEG/Telefunken. The CoJ found that the imposition of the acceptance of a certain price level that would make possible sufficiently high profit margins as a condition of membership to the selective distribution network affected ‘freedom of competition’; Case 107/82 Allgemeine Elektrizitats-Gesellschaft AEG-Telefunken AG v EC Commission [1983] ECR 3151, at [43]. The Court referred various times to the freedom of competition of the distributors implying the freedom to charge the prices that they saw fit; ibid, at [91], [107].

35. Opinion of AG Darmon delivered on 25 May 1988 in Joined Cases 89, 104, 114, 116, 117 and 125 to 129/85 A Ahlström Osakeyhtiö and others v EC Commission [1993] ECR I-1307, at [52] (citations omitted).

36. Ibid, at [52] (citations omitted).

37. Opinion of AG Tesauro delivered on 13 February 1990 in Case C-202/88 French Republic v EC Commission [1991] ECR I-1223, at [35].

38. Article 106TFEU concerns the compliance of the conduct of undertakings to which Member States grant special or exclusive rights and which are entrusted with the operation of services of general economic interest or have the character of a revenue-producing monopoly with EU competition rules.

39. Case T-69/89 Radio Telefis Eireann v EC Commission [1991] ECR II-485, at [69]; Case T-70/89 British Broadcasting Corporation and BBC Enterprises Ltd v EC Commission, at [56]; Case T-76/89 Independent Television Publications Ltd v EC Commission [1991] ECR II-575, at [54].

40. Bbc, ibid, at [58], and Radio Telefis Eireann, ibid, at [71]; Independent Television Publications, ibid, at [56].

41. Radio Telefis Eireann, ibid, at [75]; Bbc, ibid, at [62]; Independent Television Publications, ibid, at [60].

42. Radio Telefis Eireann, ibid, at [75]; Bbc, ibid, at [62]; Independent Television Publications, ibid, at [60].

43. Opinion of AG Gulmann delivered on 1 June 1994 in Joined Cases C-241/91 P and C-242/91 P Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v EC Commission [1995] ECR I-743, at [76]. This is so where the copyright is no longer exercised in a manner that corresponds to its essential function; ibid.

44. See Joined Cases C-241/91 P and C-242/91 P Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v EC Commission [1995] ECR I-743, at [28], [31].

45. Opinion of AG Van Gerven delivered on 27 October 1993 in Case C-128/92 HJ Banks & Co Ltd v British Coal Corporation [1994] ECR I-1209, at [53].

46. Opinion of AG Tesauro delivered on 16 June 1994 in Case C-250/92 Gøttrup-Klim e.a. Grovvareforeninger v Dansk Landbrugs Grovvareselskab AmbA [1994] ECR I-5641, at [16].

47. Opinion of AG Tesauro in Case C-2/91 Meng [1993] ECR I-5751 referred to in Opinion of AG Cosmas delivered on 13 May 1997 in Joined Cases C-359/95 P and C-379/95 P EC Commission and French Republic v Ladbroke Racing Ltd [1997] ECR I-6265, at [54].

48. Case C-250/03 Giorgio Emanuele Mauri v Ministero della Giustizia and Commissione per gli esami di avvocato presso la Corte d'appello di Milano [2005] ECR I-1267, at [1].

49. Case C-393/08 Emanuela Sbarigia v Azienda USL RM/A and Others [2010] ECR 0, at [15]–[16].

50. Opinion of AG Cosmas delivered on 15 July 1997 in Case C-49/92 P EC Commission v Anic Partecipazioni SpA [1999] ECR I-4125, at [41].

51. Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij NV (LVM) and others v EC Commission [2002] ECR I-8375, at [494].

52. Charter of the Fundamental Rights of the European Union (2010/C 83/02) [2010] OJ C83/389.

53. Opinion of AG Bot delivered on 26 October 2010 in Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg SA v European Commission and European Commission v ArcelorMittal Luxembourg SA and Others [2011] ECR 0, at [156] 60.

54. Even when one searches the entire case-law (ie without restricting it to ‘competition’ cases), ‘economic freedom’ appears in only 52 out of over 30,000 documents.

55. Case T-53/03 BPB plc v Commission of the European Communities [2008] ECR II-1333, at [300]; Case T-329/01 Archer Daniels Midland Co. v EC Commission [2006] ECR II-3255, at [176] (ADM I); Case T-59/02 Archer Daniels Midland Co. v EC Commission [2006] ECR II-3627, at [159] (ADM II); Case T-43/02 Jungbunzlauer AG v EC Commission [2006] ECR II-3435, at [153]; Case T-322/01 Roquette Frères SA v EC Commission [2006] ECR II-3137, at [73].

56. Bpb, ibid, at [300]; Adm I, ibid, at [176]; Adm Ii, ibid, at [159]; Jungbunzlauer, ibid, at [153]; Roquette, ibid, at [73].

57. Case T-19/92 Groupement d'achat Edouard Leclerc v EC Commission [1996] ECR II-1851, at [117].

58. Ibid, at [117].

59. Ibid, at [118].

60. Ibid, at [119].

61. Case T-17/96 Télévision française 1 SA (TF1) v Commission of the European Communities [1999] ECR II-1757, at [50].

62. See the literature in 3 regarding the influence.

63. Case 86/82 Hasselblad (GB) Limited v EC Commission [1984] ECR 883, at [42]. See also Opinion of AG Mischo delivered on 18 May 2000 in Case C-283/98 P Mo och Domsjö AB v EC Commission [2000] ECR I-9855, at [116].

64. Ibid, at [46].

65. Ibid.

66. The single market imperative has always been one of the most important goals of EU competition law, as competition plays a significant part in achieving a single market in the EU without internal barriers to trade and with complete freedom of movement. See further Whish, R and Bailey, D Competition Law (Oxford: Oxford University Press, 7th edn, 2012) pp 23–24.Google Scholar

67. Opinion of AG Van Gerven delivered on 11 October 1990 in Case C-234/89 Stergios Delimitis v Henninger Bräu AG [1991] ECR I-935, at [15].

68. Case C-234/89 Stergios Delimitis v Henninger Bräu AG [1991] ECR I-935. The second condition is that the agreement must make a significant contribution to the sealing-off effect brought about by the totality of those agreements in their economic and legal context.

69. Langnese, above 30, at [209].

70. Ibid.

71. This was upheld by the CoJ, albeit without using the term ‘economic freedom’; Case C-279/95 Langnese Iglo GmbH v EC Commission [1998] ECR I-5609, at [74].

72. See Case T-9/93 Scholler Lebensmittel GmbH & Co. KG v EC Commission [1995] ECR II-1611, at [163].

73. Opinion of AG Trstenjak delivered on 11 September 2008 in Case C-52/07 Kanal 5 Ltd TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM) upa [2008] ECR I-9275, above 26.

74. Opinion of AG Tizzano delivered on 2 October 2003 in Case C-418/01 IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG [2004] ECR I-5039, at [62].

75. Case C-418/01 IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG [2004] ECR I-5039, at [48].

76. Case T-201/04 Microsoft Corp v EC Commission [2007] ECR II-3601, at [646].

77. See text after 58.

78. Case C-308/04 P SGL Carbon AG v EC Commission [2006] ECR I-5977, at [108].

79. Joined Cases 40–48, 50, 54–56, 111, 113 and 114–73 Cooperatieve Vereniging ‘Suiker Unie’ UA and others v EC Commission [1975] ECR 1663, at [27]. For the reference to buyer's freedom to choose supplier, see ibid, at [69].

80. Case 322/81 Michelin v EC Commission [1983] ECR 3461 (Michelin I), at [73].

81. Ibid, at [85].

82. Ibid.

83. Case T-228/97 Irish Sugar plc v EC Commission [1999] ECR II-2696, at [214] (citation omitted).

84. Case T-203/01 Manufacture française des pneumatiques Michelin v Commission [2003] ECR II-4071, at [62], [240] (Michelin II).

85. Case C-95/04 P British Airways plc v EC Commission [2007] ECR I-2331, at [67].

86. Ibid, at [67]–[68]. The second step is to establish lack of objective justification; ibid, at [69]. For the necessary and sufficient conditions that should exist for there to be an abuse, see Akman, above 31, ch 8.

87. Case C-52/09 Konkurrensverket v TeliaSonera Sverige AB [2011] ECR 0, at [28]. See Michelin I, above 80, at [73]. ‘Margin squeeze’ occurs where the dominant undertaking charges a price for the product on the upstream market that – compared to the price it charges on the downstream market – does not allow even an equally efficient competitor to trade profitably in the downstream market on a lasting basis; Guidance, above 6, [80].

88. Case C-280/08 P Deutsche Telekom AG v European Commission [2010] ECR 0, at [175], [181]–[183].

89. Case T-155/06 Tomra Systems ASA and Others v European Commission [2010] ECR 0, at [209].

90. Ibid, at [95].

91. Ibid.

92. Ibid, at [298]. The GC repeated this principle in yet another recent case; see Case T-66/01 Imperial Chemical Industries Ltd v European Commission [2010] ECR II-0, at [300].

93. Case T-65/98 Van den Bergh Foods Ltd v EC Commission [2003] ECR II-4653, at [98].

94. Ibid, at [80].

95. Case T-241/01 Scandinavian Airlines System AB v EC Commission [2005] ECR II-2917, at [109].

96. Ibid, at [109].

97. Ibid.

98. Case T-29/92 Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid and others v EC Commission [1995] ECR II-289, at [186]. The contract awarder could still award the contract to a participant in the meeting other than ‘the entitled undertaking’ (but without being able to negotiate his tender) or to another contractor (subject to the consent of the ‘entitled undertaking’, etc).

99. Ibid, at [186].

100. Ibid, at [187].

101. The decision was upheld by the CoJ in Case C-137/95 Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid and others v EC Commission [1996] ECR I-1611.

102. Case T-231/99 Colin Joynson v EC Commission [2002] ECR II-2085, at [65].

103. Ibid, at [67].

104. Case T-168/01 GlaxoSmithKline Services v EC Commission [2006] ECR II-2969, at [19].

105. Ibid, at [97].

106. Ibid, at [20].

107. Ibid, at [168].

108. Ibid, at [169].

109. Ibid, at [170].

110. Ibid, at [171].

111. Ibid.

112. Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services Unlimited v EC Commission [2009] ECR I-9291, at [65]–[66].

113. The search included ‘consumer welfare’ and its variants; namely ‘welfare of consumers’, ‘welfare of final consumers’, ‘well-being of consumers’ and ‘well-being of final consumers’. There are 11 documents without repeat counts. The search was also conducted in German and French with the following terms: das Wohlergehen der Verbraucher, Wohlergehen des Verbrauchers, das Wohlergehen der Endverbraucher, das Wohl der Verbraucher, bien-être du consommateur, bien-être des consommateurs and bien-être des consommateurs finals. Adding these languages to the search renders one extra document (Opinion of AG Bot in Case C-352/09 P ThyssenKrupp Nirosta GmbH v EC Commission, unreported, at [171]), in whose English version the corresponding term is ‘consumer's interests’. This document is left out of Figure6 for the sake of consistency in language.

114. See eg Gerber, above 3, pp 263–264 referring to the influence of people associated with ordoliberalism in this context.

115. For the influence through the jurisprudence, see literature in 19.

116. Ordoliberalism was founded in the 1930s and 1940s; see literature in 3.

117. Jones, A and Sufrin, B EU Competition Law (Oxford: Oxford University Press, 4th edn, 2011) pp 44–45.Google Scholar For this process, see ibid, p 44 et seq. The drop in Figure6 in 2011 does not necessarily imply a drop in the usage of the terms; it might be due to a backlog of reporting and due to the research including only eight months of 2011.

118. On third-party claims in mergers, see Harker, M Wright, K and Hviid, M ‘The Eu rules on standing in merger cases: should firms have to demonstrate “harm to competition”?’ (2011) 36(4) Eur L Rev 500.Google Scholar

119. In a series of cases, the CJEU stressed that it will rigorously review the Commission's decisions and consider whether the evidence relied on is correct, reliable, consistent and capable of substantiating the Commission's conclusions; Jones and Sufrin, above 117, p 910. For this series of cases, see Navarro E, Font A, Folguera J and Briones J Merger Control in the EU (Oxford: Oxford University Press, 2nd edn, 2005) p 452 et seq. In this vein, see eg Case C-12/03 P Tetra Laval BV v EC Commission [2005] ECR I-987, at [39] et seq.

120. GlaxoSmithKline (GC), above 104; and GlaxoSmithKline (CoJ), above 112.

121. An appeal to the CoJ is limited to points of law; see the Statute of the Court of Justice of the European Union [2010] OJ C83/224, Article 58. The GC has exclusive jurisdiction to establish the facts and to assess them; Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland A/S, Irish Cement Ltd, Ciments français SA, Italcementi – Fabbriche Riunite Cemento SpA, Buzzi Unicem SpA and Cementir – Cementerie del Tirreno SpA v EC Commission [2004] ECR I-123, at [48].

122. See text around 104 for the GC decision.

123. GlaxoSmithKline (CoJ), above 112, at [62].

124. Ibid, at [63].

125. See text to 110.

126. C-309/99 Wouters v Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577, at [90], [97].

127. Ibid, at [97].

128. Ibid.

129. Case T-112/99 Metropole Television (M6) and other v EC Commission [2001] ECR II-2459, at [76].

130. Glaxo Smith Kline (CoJ), above 112, at [59].

131. Ibid, at [61].

132. The other main objective was, of course, that of avoiding another war. On market integration as a fundamental goal, see eg Gerber, above 3, pp 347–348, and 66. On the discussions during the negotiations of the Treaties of Rome concerning the competition rules, including issues of market integration, see Akman, above 3.

133. Deutsche Telekom, above 88, at [183].

134. Ibid.

135. For a clear separation between a regulatory issue and a potential competition law issue on very similar facts, see the US Supreme Court practice in Verizon Communications Inc v Law Offices of Curtis and Trinko LLP 540 US 398 (2004) and Pacific Bell Telephone Co, AT&T California et al v Linkline Communications Inc et al 555 US 438 (2009).

136. This is due to the particular assumptions underlying the paradigm; Bishop, S and Walker, M The Economics of EC Competition Law: Concepts, Application and Measurement (London: Sweet & Maxwell, 3rd edn, 2010) p 17. In perfect competition, price equals marginal cost, which is the lowest price an undertaking can profitably charge;Google Scholar Motta, above 28, p 40, 41 1.

137. The number of competitors in a market does not always provide a good indication of the level of competition; if price competition is vigorous, then even two competitors can be enough for there to be effective competition; Bishop and Walker, ibid, p 64. Similarly, if entry and exit were costless and very easy, then even a monopolist might be unable to increase prices; ibid, p 65.

138. Opinion of AG Alber delivered on 22 June 1999 in Case C-38/98 Régie nationale des usines Renault SA v Maxicar SpA and Orazio Formento [2000] ECR I-2973, at [67].

139. See Opinion of AG Bot in ArcelorMittal, above n 53, and Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg SA v European Commission and European Commission v ArcelorMittal Luxembourg SA and Others [2011] ECR I-0.

140. See Akman, above 3.