The European Court of Justice and the More Economic Approach to EU Competition Law—Is the Tide Turning?

In the late 1990s, the European Commission embarked on a mission to bring EU competition policy more into line with contemporary economic theory. Over a period of ten years, it systematically revised key legal concepts of all three pillars of EU competition law. Most importantly, it adopted the consumer welfare aim, revised its understanding of competitive harm and countervailing effects accordingly, and committed itself to carrying out more in-depth assessments of the investigated conduct’s effects instead of relying on form-based presumptions of illegality. Initially, many tenets of the more economic approach were in conflict with the case law of the European Court of Justice, which had a broader understanding of the aims of EU competition law. However, after a few initial set-backs for the Commission, several recent judgments in cases such as MEO, Intel, Post Danmark I, and Cartes Bancaires suggest that the Court’s understanding of EU competition law is evolving and that it is willing to embrace at least a few of the Commission’s revised principles. In particular, it is adopting a more effects-based approach to assessing business conduct and is cautiously curbing its former concept of harm in exclusionary situations. At the same time, however, it continues to adhere to many of its former freedom- and fairness-based principles, so that a number of uncertainties and inconsistencies remain.