Introduction

Chapter 3 concluded that Article 82 aims at protecting many objectives, not just consumer welfare, and chapter 4 that there is a conflict between consumer welfare and economic freedom. Because of the conflict, this chapter examines whether the harmful effects of a restriction of economic freedom mean that consumer welfare is also harmed. It examines whether the prohibition in Article 82 requires harmful effects to be proven, and if so, whether the Commission examines effects on the market, competition, consumers, the structure of competition or competitors. A discussion of effects concerns the Commission's methodology, but is linked to a discussion of Article 82's goals. Whether it is necessary to show effects on consumers in order to prohibit exclusionary conduct depends on whether consumer welfare is the objective in a specific case. If Article 82 aims at achieving consumer welfare, harm to consumers is an important element. Objectives and methodology are sometimes intertwined and changing the underlying purpose of a provision may sometimes require a change of methodology as well, although this is not always the case. However, it does not alter the fact that they are two different things. In relation to the objectives of consumer welfare and economic freedom, the methodology is different in that economic freedom is concerned with the effects on the structure of competition whereas consumer welfare is concerned with the effects on consumers. That said, adopting an effects-based approach may not always be necessary to achieve the objective.