- How does article 101(3) TFEU case law relate to EC guidelines and the welfare perspective?
- Number of pages
- Amsterdam: SEO Economisch Onderzoek
- Document type
- Working paper
- Faculty of Economics and Business (FEB)
- Amsterdam School of Economics Research Institute (ASE-RI)
The cartel exemption of article 101(3) TFEU offers room to include public interest. The 2004 guidelines of the European Commission state that only direct economic benefits should be included an only users on the relevant market (or other related markets) can benefit. This condition raises important questions about the meaning of public interest in the context of European cartel law. By definition social effects impact society as a whole. Social cost-benefit analysis classifies effects as direct, indirect or external effects. This classification suggests that social effects may impact consumers not directly affected by the cartel agreement. Environmental improvements for example, may be beneficial to consumers that are not buyers in the market for the product that generates the improvement. This paper elaborates on the use of the social costbenefit analysis in the assessment of article 101(3) TFEU and how public considerations can be quantified.
This welfare perspective contradicts with the Commission guidelines. How does case law relate to the guidelines and the welfare perspective? The majority of cases involve a solution to the negative external effects on the environment. The benefits are often only complementary to economic benefits and are not quantified. Only in two cases the European Commission and the Dutch Competition Authority seem to use the welfare perspective. This involved cases in which the public interest was a determining factor in granting or decline the exemption.
- December 2013. Working Paper
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