¹ Arts 81 and 82 EC have the same objectives—Case 6/72, Europemballage and Continental Can v Commission [1973] ECR 215, para 25; so this discussion is equally applicable to Art 82 EC.

² In this chapter, ‘public policy goals’ means policy goals other than economic efficiency (welfare) ones; examples might be cultural, environmental or developmental goals. This distinction is not made to argue that welfare is an unimportant policy goal, but rather for the sake of clarity.

³ Bork, R, The Anti-trust Paradox: A Policy at War with Itself (New York, The Free Press, 1978) 50 Google Scholar.

⁴ See, eg: Commission Communication, Guidelines on the application of Article 81(3) of the Treaty, [2004] OJ C101/97, para 13; and Commission Notice, Guidelines on vertical restraints, [2000] OJ C291/1, para 7. By way of contrast, see Commission Green Paper on Vertical Restraints in EC Competition Policy, COM(96)721 final, 22 January 1997, para 191.

⁵ According to the Commission, public policy is relevant only insofar as it can be subsumed under Art 81(3) EC’s four headings (not easy given the Commission’s declared objective for Art 81 EC)—Commission Communication, Guidelines on the application of Article 81(3) of the Treaty, [2004] OJ C101/97, para 42. In 1999, it said that Art 81(3) EC is there ‘to provide a legal framework for the economic assessment of restrictive practices and not to allow the application of the competition rules to be set aside because of political considerations’: Commission, White Paper on the Modernisation of the Rules Implementing Articles 85 and 86 of the EC Treaty, [2000] OJ C132/1, para 57. Monti suggests that when the Commission refers to ‘political considerations’, it means public policy ones: Monti, G, ‘Article 81 and Public Policy’ (2002) 39 CML Rev 1057 Google Scholar.

⁶ See, eg: Odudu, O, The Boundaries of EC Competition Law: the scope of Article 81 (Oxford, Oxford University Press, 2006) ch 7CrossRefGoogle Scholar; and Ehlermann, CD and Laudati, L (eds), European Competition Law Annual 1997: The Objectives of Competition Policy (Oxford, Hart, 1998)Google Scholar.

⁷ Baquero Cruz offers some procedural and pragmatic suggestions for why many argue for a decoupling of the competition rules from public policy goals, as well as a critique of them: Cruz, J Baquero, Between Competition and Free Movement (Oxford, Hart, 2002) 100–3Google Scholar. Townley, C, Article 81: putting public policy in its place (Florence, EUI, 2004)Google Scholar offers further ideas, ch 1 and pp 97–100. See also the discussion of direct effect below, Section IV(b).

⁸ Commission Communication, Guidelines on the application of Article 81(3) of the Treaty, [2004] OJ C101/97, para 7.

⁹ See Townley, above n 7; Odudu, above n 6, ch 7; Monti, above n 5; Ehlermann and Laudati (eds), above n 6; and Bouterse, R, Competition and Integration—what goals count? (Boston, Kluwer Law and Taxation Publishers, 1994)Google Scholar.

¹⁰ Eg Case C-309/99, JCJ Wouters v Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577, decided just 26 months before publication of Commission Communication, Guidelines on the application of Article 81(3) of the Treaty, [2004] OJ C101/97. The ECJ did the same in 2006: Case C-519/04 P, David Meca-Medina v Commission [2006] ECR I-6991. In 2005, the CFI considered public policy concerns in its Art 81(3) analysis, Case T-193/02, Laurent Piau v Commission [2005] ECR II-209. See, also Townley, above n 7, Pts A and B.

¹¹ Case T-168/01, GlaxoSmithKline Services v Commission [2006] ECR II-2969, particularly paras 118 and 273. This judgment is currently on appeal to the ECJ, in part on this issue: see Joined Cases C-501/06, etc, GlaxoSmithKline Services v Commission.

¹² See Graupner, F, ‘The Battle over the Role of European Competition Policy: now you see it, now you don’t’ (2007) Competition Law Journal 89 Google Scholar.

¹³ Regulation 1/2003, recital 4 and Arts 1 and 4–6.

¹⁴ DG Competition assumes that the Commission’s 2004 defi nition of Art 81 EC’s objectives is correct: see DG Competition discussion paper, ‘On the application of Article 82 of the Treaty to exclusionary abuses’, December 2005, para 4.

¹⁵ Townley, above n 7, discusses these other points.

¹⁶ Ehlermann and Laudati (eds), above n 6, 3. See also Ehlermann’s own comments at p 480.

¹⁷ Fox, E, ‘The Battle for the Soul of Anti-trust’ (1987) 75 Californian International Law Review 917 CrossRefGoogle Scholar.

¹⁸ <http://www.bbc.co.uk/insideout/southeast/series2/nhs_binge_drinking_alcohol_abuse_ drunk_alcoholism.shtml> accessed 20 August 2008. This chapter uses binge drinking as an example of a problem, part of the ‘solution’ to which may be anti-competitive; it does not discuss UK or Irish competition law as the focus is Community competition law; see also Regulation 1/2003, Art 3.

¹⁹ See, Chaloupka, FJ, Grossman, M and Saffer, H, ‘The effects of price on the consequences of alcohol use and abuse’ in Galanter, M (ed), Recent Developments in Alcoholism, Vol. 14: The Consequences of Alcoholism (New York, Plenum Press, 1998) 331–46CrossRefGoogle Scholar; and PJ Cook and MJ Moore, ‘The economics of alcohol abuse and alcohol-control policies’ (2002) Health Affairs 120. See also BMA Board of Science, ‘Alcohol misuse: tackling the UK epidemic’, February 2008, 48 and 49, available at <http://www.bma.org.uk/ap.nsf/AttachmentsByTitle/PDFtacklingalcoholmisuse/$FILE/Alcoholmisuse.pdf> accessed 20 August 2008.

²⁰ <http://www.bma.org.uk/ap.nsf/Content/poliniticombatbindrink> accessed 20 August 2008.

²¹ <http://icwales.icnetwork.co.uk/2008/03/03/mp-warns-fair-trading-watchdog-to-letsupermarkets-take-joint-action-to-put-up-the-price-of-cheap-alcohol-91466-20550387/> and <http://news.bbc.co.uk/1/hi/uk_politics/7131198.stm> both accessed 20 August 2008. Some supermarkets even sell alcohol below cost—see <http://www.telegraph.co.uk/news/main. jhtml?xml=/news/2008/04/05/nbooze105.xml> accessed 20 August 2008.

²² <http://www.hm-treasury.gov.uk/budget/budget_08/bud_bud08_speech.cfm> accessed 20 August 2008. Until then (since 1997), duties on wine and beer had only increased in line with inflation (no increase on spirits in this period): BMA Board of Science, above n 19, 49.

²³ <http://www.alcohol-help.co.uk/> accessed 20 August 2008; and BMA Board of Science, above n 19, 3, 7, 54 and 56. Some argue that price increases should be focused on binge drink ers and not others. One problem is the difficulty of implementing a targeted approach like this. Another is that the amount of binge drinking is related to the amount others drink; raising the price should reduce the amount we all drink, which should have an additional impact on binge drinkers over and above the price impact upon them: Cook and Moore, above n 19, 125.

²⁴ There is some evidence that this is being considered in the UK: <http://www.telegraph. co.uk/news/main.jhtml?xml=/news/2008/04/05/nbooze105.xml> accessed 20 August 2008.

²⁵ <http://press.homeoffice.gov.uk/Speeches/Conferenc-Speech> accessed 20 August 2008; HM Government, ‘Safe. Sensible. Social. The next steps in the National Alcohol Strategy—a summary’, June 2007, 3 & 15.

²⁶ Other recent initiatives are: (i) an agreement between bars to reduce ‘happy hours’ due to health concerns raised by the City of Madison (USA); (ii) Tesco and Waitrose have agreed with Westminster City Council (UK) not to sell super strength beers there, see <http://www.mad.co.uk/Main/News/Articles/941a53616d3f41e7a6a1e388a2b9f733/Tesco-and-Waitrose-ditchsuper-strength-alcohol.html> accessed 20 August 2008; and (iii) the police and off-licences in East Cleveland (UK) have agreed a voluntary code not to sell alcohol to under 21s on Friday and Saturday evenings. This has led to a dramatic cut in anti-social behaviour and improved conditions for staff and customers: HM Government, above n 25, 23. These arrangements all potentially breach competition laws where public policy cannot be considered. In fact, the Wisconsin arrangement is currently under attack: <http://www.luc.edu/law/academics/special/center/antitrust/pdfs/morsch_dubner_action_doctrine.pdf>.

²⁷ <http://news.bbc.co.uk/1/hi/uk/7256036.stm> and <http://www.telegraph.co.uk/opinion/ main.jhtml?xml=/opinion/2008/02/24/do2411.xml> both accessed 20 August 2008.

²⁸ <http://www.4ni.co.uk/northern_ireland_news.asp?id=72008> and <http://www. independent.co.uk/news/uk/politics/tesco-backs-pricing-call-over-binge drinking-785101. html> both accessed 20 August 2008.

²⁹ Some may also criticise such an approach as, theoretically, it is unlikely to be the most efficient way of achieving these public health benefits. Economists rank different policy instruments in terms of how efficiently they achieve different goals: see Townley, above n 7, 54 & 55, where the author also explains why including public policy considerations within Art 81 EC may be appropriate even if this is not an efficient mechanism.

³⁰ Art 152(1) EC reads: ‘A high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.’

³¹ Bengoetxea, J, The Legal Reasoning of the European Court of Justice (Oxford, Clarendon Press, 1993) 233–4Google Scholar. See also Slynn, G, ‘EEC Competition Law from the Perspective of the Court of Justice’ in Hawk, B (ed), Annual Proceedings of the Fordham Corporate Law Institute 1985 (New York, Matthew Bender, 1986) 383, 393Google Scholar; Case 283/81, CILFIT v Ministero della Sanità [1982] ECR 3415, paras 16–20; and Edward, D, ‘Judicial Activism: Myth or Reality?’ in Campbell, A and Voyatzi, M (eds), Legal Reasoning and Judicial Interpretation of European Law (Hampshire, Trenton Publishing, 1996)Google Scholar.

³² Bengoetxea, above n 31, 218–23 implies that arguments about the consideration of public policy in Art 81 EC would count as a hard case.

³³ Art 2 EC reads: ‘The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection…’

³⁴ Eg due to scarcity, or because the different goals contradict each other.

³⁵ Art 3(1) EC provides that for the purposes set out in Art 2 EC, the activities of the Community shall include, for example: ‘(g) a system ensuring that competition in the internal market is not distorted … (j) a policy in the social sphere comprising a European Social Fund … (p) a contribution to the attainment of a high level of health protection’.

³⁶ Case 32/65, Italy v Council and Commission [1966] ECR 389, 405; and Case 240/83, Procureur de la République v Association de défense des brûleurs d’huiles usagées [1985] ECR 531, paras 12 and 13, demonstrate that the ECJ accepts this idea of the hierarchy of provisions in various Treaty areas (competition and freedom of trade). See also Ellis, J, ‘Source Material for Article 85(1) of the EEC Treaty’ (1963) 32 Fordham Law Review 247 Google Scholar.

³⁷ See section III.B.

³⁸ Hereinafter, referred to as ‘the EU Treaty’.

³⁹ Which becomes the Treaty on the Functioning of the European Union, hereinafter, ‘the FEU Treaty’, together with the EU Treaty, ‘the Treaties’.

⁴⁰ M Cremona, ‘Understanding the EU Reform Treaty’, Centre of European Law, King’s College London, 8 February 2008, 4.

⁴¹ The Union’s values are human dignity, freedom, democracy, equality, the rule of law and the respect for human rights: EU Treaty Art 2.

⁴² EU Treaty Art 3(1).

⁴³ EU Treaty Art 3(3): ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.’

⁴⁴ ‘The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.’

⁴⁵ Respectively, Arts 6, 127(2), 151(4), 152(1), 153(2), 159 and 178 EC. Other rules, such as Declaration 29 to the Amsterdam Treaty on sport, may try to achieve a similar end.

⁴⁶ See, eg: Commission, Community Guidelines on State Aid for Environmental Protection, [2008] OJ C82/1, para 18. L, Krämer, ‘Thirty Years of EC Environmental Law: perspectives and prospectives’ (2002) 2 Yearbook of European Environmental Law 163 Google Scholar says that the demand to insert environmental considerations in policies (eg competition policy) is not the same as saying it must be inserted into each individual measure (eg each competition decision). Commentaire, Mégret, Culture, santé, consommateurs, réseaux transeuropéens, recherche et développement technologique, environnement, énergie (Brussels, Université de Bruxelles, 1999) 12 Google Scholar takes the opposite view in the discussion of culture. Townley, above n 7, 64 & 65, discusses the issue in greater depth, arguing that these policy-linking clauses demand the insertion of their public policy goals in individual competition decisions.

⁴⁷ See FEU Treaty Arts 9–13.

⁴⁸ See, eg: Commission, ‘XXVIth Report on Competition Policy 1996’, point 2; and C Kirchner in Ehlermann and Laudati (eds), above n 6, 514 & 516 (although he is unclear on this point: see 517 & 518). Heimler in Ehlermann and Laudati (eds), above n 6, 599, proffers a slightly different argument: ‘[A]lthough the competition rules are enforced within the general framework of achieving the fundamental objectives of Article 2 of the Treaty … such general considerations cannot override the legal effect of single provisions.’

⁴⁹ Snyder, F, New Directions in European Community Law (London, Weidenfeld & Nicolson, 1990) 99 Google Scholar.

⁵⁰ See Commission, ‘XXIIIrd Report on Competition Policy 1993’, points 324–6; and Houttuin, G, Exceptions in Nicolaides, P and Klugt, A van der (eds), The Competition Policy of the European Community (Maastricht, European Institute of Public Administration, 1994) 61 Google Scholar.

⁵¹ Note Art 298 EC, however. Another example of competition values being trumped, to the extent that Art 81 EC has been excluded, can be seen in the Common Agricultural Policy, Art 36 EC combined with Council Regulation 1184/2006, Applying Certain Rules of Competition to Production of, and Trade in, Agricultural Products, Art 2(1). Note that Art 296 EC allowed Member State interests to exclude Community ones, while Art 36 EC governs a clash between Community values.

⁵² See also eg: customs duties (Art 9 EC) or the customs union (Art 25 EC), Art 27 EC implies compromise in certain areas; Art 39(1) EC (free movement of workers) balances other objectives through Art 39(3) and (4) EC; Art 43 EC (freedom of establishment) balances other objectives through Art 45 and 46 EC; Art 49 EC (free movement of services) balances other objectives through Art 55 EC; Art 56 EC (free movement of capital) balances other objectives through Arts 58 and 59 EC; Art 61 EC (visa, asylum and immigration policies) balances other objectives through Art 64 EC; and Art 71(1) EC (transport policy) balances other objectives though Art 71(2) EC.

⁵³ The academic literature generally assumes that the policy-linking clauses imply compromise; see, eg Krämer, L, EC Environmental Law 5th edn (London, Sweet & Maxwell, 2003) 8, 19 & 21Google Scholar; and D McGillivray and J Holder, ‘Locating EC Environmental Law’ (2001) YEL 139, section IV.

⁵⁴ Case C-233/94, Germany v EP and Council [1997] ECR I-2405, paras 46–9. See also Case C-379/98, PreussenElektra AG v Schleswag AG [2001] ECR I-2099, paras 76 and 81, where the ECJ explicitly relies on Art 6 EC (amongst others) to justify a discriminatory quantitative restriction (or measure of equivalent effect) due to environmental (and public health) benefits. Also see the Opinion of AG Jacobs, paras 229–34. Dhondt, N, Integration of Environmental Protection into other EC Policies (Groningen, Europa law Publishing, 2003) 163–81Google Scholar, is less sure of Art 6 EC’s precise role in the PreussenElektra judgment, but agrees that ignoring the environmental protection goal, even in measures adopted with other main goals, could lead to the invalidity of the act.

⁵⁵ See, eg: Joined Cases C-34–36/95, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and TV-Shop i Sverige AB [1997] ECR I-3843, paras 45 and 46. For further examples, see Kapteyn, P and Themaat, P VerLoren vam (Gormley, L (ed)), Introduction to the Law of the European Communities 3rd student edn (London, Kluwer Law International, 1998) 674–9Google Scholar and the references made there.

⁵⁶ Joined Cases 56 & 58/64, Établissements Consten SARL and Grundig-Verkaufs-GmbH v Commission [1966] ECR 299, 348.

⁵⁷ Above n 10.

⁵⁸ This Regulation was passed under powers given to the Dutch Bar Council in a Dutch law from 1952.

⁵⁹ Bar Council regulations could be suspended/annulled if contrary to a law or the public interest.

⁶⁰ Wouters, above n 10, paras 86–110.

⁶¹ Meca-Medina, above n 10, para 42.

⁶² As Bengoetxea explained, see text around n 31 above.

⁶³ Joined Cases T-528/93, etc, Métropole Télévision v Commission [1996] ECR II-649, para 118. See also Case 26/76, Metro v Commission [1977] ECR 1875, para 21, where the ECJ held that under Art 81(3) ‘the requirements for the maintenance of workable competition may be reconciled with the safeguarding of objectives of a different nature and that to this end certain restrictions on competition are permissible, provided that they are essential to the attainment of those objectives and that they do not result in the elimination of competition for a substantial part of the common market’ (emphasis added). For a more recent example, see Laurent Piau, above n 10. The Commission has done a similar thing on many occasions: eg in 2000 (when the modernisation process was in full swing) the Commission had six Art 81(3) decisions; in three public policy was (arguably) decisive: Commission decisions CECED, [2000] OJ L187/47; Eurovision, [2000] OJ L151/18; and GEAE/ P&W, [2000] OJ L58/16. It has been argued that between 1993 and 2004 public policy was decisive in 32% of the Commission’s Art 81(3) decisions: Townley, above n 7, Introduction.

⁶⁴ This seems to be the source of Schaub’s distinction between intermediate and ultimate objectives in Ehlermann and Laudati (eds), above n 6, especially p 121.

⁶⁵ Case C-67/96, Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751. See also Case C-222/98, Hendrik van der Woude v Stichting Beatrixoord [2000] ECR I-7111, paras 22–7. The Community Courts sometimes use other mechanisms to exclude competition too. See, eg Townley, C, ‘The Concept of an “Undertaking”: the boundaries of the corporation—a discussion of agency, employees and subsidiaries’ in Amato, G and Ehlermann, CD (eds), EC Competition Law: a critical assessment (Oxford, Hart, 2007)Google Scholar, on the concept of an undertaking.

⁶⁶ Art 139 EC. See Albany, above n 65, paras 54–6.

⁶⁷ Community Agreement on Social Policy with the exclusion of the UK (1992).

⁶⁸ Albany, above n 65, paras 57 and 58.

⁶⁹ Ibid, paras 59 and 60.

⁷⁰ Ibid, para 59.

⁷¹ Joined Cases C-180–184/98, Pavel Pavlov v Stichting Pensioenfonds Medische Specialisten [2000] ECR I-6451, paras 68–70; and AG Jacobs’ Opinion, points 96–9.

⁷² A similar thing would happen if we did not consider other public policy goals within Arts 81 and 82 EC, ie those important objectives would be ignored, unless they were achieved in some other way.

⁷³ Eg Case 6/72, Europemballage Corporation and Continental Can v Commission [1973] ECR 215, paras 22–7. The ECJ’s comments apply to both Arts 81 and 82 EC. See also Ellis, n 36 above.

⁷⁴ H Hervouët, ‘La Dérive de l’Union Européenne: de l’objectif de l’union entre les peuples à celui de la concurrence’ (2008) Revue du Marché Común et de l’Union Européenne 9, 12–13. See also Graupner, above n 12.

⁷⁵ See above n 4.

⁷⁶ See above n 5.

⁷⁷ Eg Motta, M, Competition Policy (Cambridge, Cambridge University Press, 2004) 30 CrossRefGoogle Scholar.

⁷⁸ See, eg: Odudu, above n 6, 170–3.

⁷⁹ See section III of this chapter. These arguments are dealt with at length in Townley, above n 7, especially Pt A.

⁸⁰ See section III and BE Hawk, ‘The American (Anti-trust) Revolution: lessons for the EEC?’ (1988) European Competition Law Review 53.

⁸¹ Odudu, above n 6.

⁸² Ibid, 165. See also his ch 3, section IV.A.

⁸³ This immediately raises the issue of what is a state-like act. For a more extensive discussion, see the arguments around n 94 below.

⁸⁴ See the Opinion of AG Poiares Maduro, Case C-205/03 P, FENIN v Commission [2006] ECR I-6295, point 26.

⁸⁵ Eg Gyselen, L, ‘The Emerging Interface between Competition Policy and Environmental Policy in the EC’ in Cameron, J, Demaret, P and Geradin, D (eds), Trade and Environment (London, Cameron May, 1994) 242 Google Scholar.

⁸⁶ Case C-438/05, International Transport Workers’ Federation v Viking Line ABP, judgment of 11 December 2007, para 34.

⁸⁷ Baquero Cruz, above n 7, 88. It is unclear whether he means that the balance between goals might be different for public actors (pp 124, 156 & 157) or merely that the standard of review should be less for state undertakings (pp 111, 124 & 159–61).

⁸⁸ Odudu, above n 6, 166.

⁸⁹ Ibid.

⁹⁰ Ibid, 51 & 52.

⁹¹ Meca-Medina, above n 10, particularly paras 40–56. See also Laurent Piau, above n 10, paras 76–8.

⁹² Odudu, above n 6, 45–56.

⁹³ See the Opinion of AG Jacobs in Albany, above n 65, paras 184 and 185; and Case T155/04, SELEX Sistemi Integrati SpA v Commission and Eurocontrol [2006] ECR II-4797, para 77, on appeal to the ECJ, Case C-113/07 SELEX Sistemi Integrati SpA v Commission and Eurocontrol.

⁹⁴ Odudu, above n 6, 50. See also p 55 and some of the arguments of the interested parties in Case C-2/91, Criminal proceedings against Meng [1993] ECR I-5751, 5770.

⁹⁵ Odudu, above n 6, 51 & 52.

⁹⁶ There is not total consistency; at times Odudu equates acting contrary to one’s pecuniary interest with the harm that collaboration is associated with. He also seems to equate an obligation to act in the public interest with acting against one’s own self-interest. Neither seems entirely right.

⁹⁷ It also undermines a little Odudu’s later arguments about the lack of justiciability of such an assessment within Art 81 itself, although, to be fair, less precision would be needed in a jurisdictional test.

⁹⁸ See, eg: the references to Case C-41/90, Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] I ECR 1979, below n 113.

⁹⁹ Other than indirectly via, eg Arts 3(1)(g), 10 and 81/82 EC actions.

¹⁰⁰ Case 6/72, Europemballage Corporation and Continental Can v Commission [1973] ECR 215, para 24. The ECJ’s comments apply to both Arts 81 and 82 EC.

¹⁰¹ As explained in section III above. See also Townley, above n 7, ch 2.

¹⁰² This is not to argue that the result was necessarily wrong, just that competition is important and should be included in the balance. This happens when public policy is considered under Art 81 EC.

¹⁰³ See, the Opinion of AG Lenz in Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v Bosman [1995] ECR I-4921, para 273.

¹⁰⁴ See section III above. AG Jacobs’ Opinion in Albany, above n 65, disagrees, para 178.

¹⁰⁵ Van den Bergh, R and Camesasca, P, ‘Irreconcilable Principles? The Court of Justice Exempts Collective Labour Agreements from the Wrath of Anti-trust’ (2000) 25 EL Rev 492, 501–8Google Scholar.

¹⁰⁶ See section III above.

¹⁰⁷ Odudu, above n 6, 165.

¹⁰⁸ Smith, A, An Enquiry into the Nature and Causes of the Wealth of Nations (Oxford, Oxford University Press, 1975) Book IV, ch IIGoogle Scholar.

¹⁰⁹ AG Léger adopts similar language to that of Odudu on private actors acting in their self-interest in his Opinion in Wouters, above n 10, para 84. However, AG Léger insists that the presence of public policy benefits is not relevant for defining the scope ratione personae of competition law. Instead, he says that public policy concerns can be considered within Art 81 EC where self-interest leads to relevant public benefits (para 113).

¹¹⁰ The balance will not always lie in favour of the public interest, ie price-fixing by pharmaceutical firms and supermarkets will not always be justified. The Community Courts do not always accept public policy claims when raised within the competition rules. For example, in Joined Cases T-213/95 & 18/96, Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van Nederlandse Kraanverhuurbedrijven (FNK) v Commission [1997] ECR II-1739, para 202, the CFI was quick to reject public safety arguments when it felt these had not been substantiated, but it did not refuse to examine these issues if they had been properly raised.

¹¹¹ This is not to deny the need for presumptions. For example, one might assume that secret cartels are not in the public interest.

¹¹² See section III above.

¹¹³ See Joined Cases 29 & 30/83, Compagnie Royale Asturienne des Mines SA and Rheinzink GmbH v Commission [1984] ECR 1679, para 29, which explains that the concept of restriction of competition is an objective, not a subjective, one. This is a further hint that outcomes, rather than motivations, are what matters in Art 81 EC. Also note that, in cases such as Case C-41/90, Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979, the Bundesanstalt were not motivated by private self-interest, but a purely public one. At para 3, the ECJ notes: ‘Employment in Germany is governed by the Arbeitsfoerderungsgesetz [the law on the promotion of employment, the “AFG”]. According to Para 1, measures taken under the AFG are intended, within the economic and social policy of the Federal Government, to achieve and maintain a high level of employment, constantly to improve job distribution and thus to promote economic growth.’

¹¹⁴ Commission, ‘XXXth Report on Competition Policy 2000’, 39 & 40; and Wesseling, R, ‘The Draft Regulation Modernising the Competition Rules: the Commission is married to one idea’ (2001) 26 EL Rev 357 Google Scholar.

¹¹⁵ Odudu, above n 6, 167.

¹¹⁶ Ibid.

¹¹⁷ Although note the arguments of Krämer, above n 46.

¹¹⁸ See section III above.

¹¹⁹ Eg in relation to Art 6 EC (environmental protection), see PreussenElektra, above n 54, paras 69–80; Joined Cases T-74/00, etc, Artegodan GmbH v Commission [2002] ECR II4945, para 184, and more generally paras 181–95. The judgment was appealed, Case C-39/03 P, Commission v Artegodan GmbH [2003] ECR I-7885, but not on these grounds. See also, in relation to Art 152 EC (health policy), Case T-13/99, Pfizer Animal Health SA v Council [2002] ECR II-3305, paras 113–25.

¹²⁰ For more details see Townley, above n 7, ch 2.

¹²¹ Commission, ‘XXIIIrd Report on Competition Policy 1993’, para 177. It has since changed its mind, but the principle remains.

¹²² Council Decision, ‘On cross-border fixed book prices in European linguistic areas’, [1997] OJ C305/2. Also note European Parliament Resolution, ‘On book prices in Germany and Austria’, [2000] OJ C296/143; and Council Resolution, ‘On the application of national fixed book-price systems’, [2001] OJ C73/5.

¹²³ Eg arrangements that improve environmental protection might be said to improve ‘technical progress’, Art 81(3) EC.

¹²⁴ This seems to be the implication of Commission Communication, ‘Guidelines on the application of Article 81(3) of the Treaty’, [2004] OJ C101/97, para 42 (although note the confusion caused by para 13). This also seems to be the argument in H Schweitzer, ‘Competition Law and Public Policy: reconsidering an uneasy relationship. The example of Article 81’, EUI Working Papers, Law 2007/30, 5.

¹²⁵ The ECJ has interpreted many provisions’ wording against their natural meaning so as to enable it to consider public policy goals there, eg Case 302/86, Commission v Denmark [1988] ECR 4607, paras 8–22 (Art 28 EC); and Wouters, above n 10, para 97 (Art 81 EC).

¹²⁶ Case 43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 455. Clearly, Art 141 EC—and Art 28 EC, which we discuss below in Viking —are themselves directly effective, so Odudu might argue that they are not precisely analogous. Nevertheless, they are relevant; see the discussion on Regulation 1/2003, below.

¹²⁷ Defrenne, above n 126, paras 9, 38 and 39.

¹²⁸ Ibid, paras 10 and 11.

¹²⁹ Viking, above n 86, para 34. In fact, Council Regulation 139/2004 on the control of concentrations between undertakings, [2004] OJ L24/1, recital 22, is more explicit, talking of a ‘principle of non-discrimination between the public and the private sectors’.

¹³⁰ Viking, above n 86, paras 63–5.

¹³¹ See also the cases in n 119 above. In fact, although the case law is not yet wholly consistent, this has happened on many occasions—see, eg Case 36/74, Walrave and Koch v Association Union Cycliste Internationale [1974] ECR 1405, 1418–19; and Bosman, n 103 above, paras 5063–6. For many other examples, see Baquero Cruz, above n 7, 108–16.

¹³² See, eg: Case C-201/02, R v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723, paras 56 and 57.

¹³³ See Craig, P and de Búrca, G, EU Law: Text, Cases and Materials 4th edn (Oxford, Oxford University Press, 2008) 287–303 Google Scholar.

¹³⁴ Art 81(3) EC seems to be the best place for public policy arguments, see Townley, above n 7, Part C, but the point is also relevant for their consideration under Art 81(1) EC.

¹³⁵ Regulation 1/2003, Arts 4, 7 and 10.

¹³⁶ There seems no room for arguments about direct effect in Art 230 EC actions. Direct effect is historically explicable as a means of ensuring the effectiveness of Community law in the national systems of the Member States, see Kapteyn and VerLoren vam Themaat, above n 55, 545 and the references made there.

¹³⁷ Joined Cases T-74/00, etc, Artegodan GmbH v Commission, above n 119, para 184. See more generally paras 181–95. The judgment was appealed, but not on these grounds: Case C39/03 P, above n 119. See also, in relation to health policy, Case T-13/99 Pfizer Animal Health SA v Council, above n 119, paras 113–25. See also the cases in n 119.

¹³⁸ Regulation 1/2003, recital 33. See also, Kapteyn and VerLoren vam Themaat, above n 55, 1085; Winter, G, ‘Environmental Principles in Community Law’ in Hans, JH (ed), The European Communities and the Future of European Environmental Law (Groningen, Europa Law Publishing, 2003) 4–13Google Scholar; R Jacobs, ‘EEC Competition law and the Protection of the Environment’ (1993) Legal Issues of European Integration 37, 48; and Dhondt, above n 54, 176 & 177.

¹³⁹ Recital 4 and Arts 1, 5 and 6, Council Regulation 1/2003.

¹⁴⁰ Council Regulation 1/2003, Art 16(1).

¹⁴¹ See also recitals 17–22 and 38 and Arts 3, 11, 15 and 16.

¹⁴² Case C-344/98, Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I-11369, paras 49–60.

¹⁴³ See Winter, above n 138, 16 & 17. Dhondt argues that there may be an obligation for Member States to protect the environment, via Arts 3(l), 6 and 10 EC: above n 54, 36 & 37.

¹⁴⁴ Regulation 17, first Regulation implementing Articles 85 and 86 of the Treaty, [1962] OJ 13/204.

¹⁴⁵ Regulation 17, Art 9(1).

¹⁴⁶ Wesseling, above n 114, 357.

¹⁴⁷ See fn 4, which shows the change in the Commission’s policy statements on the relevance of public policy in Art 81 between 1996 and 2004.

¹⁴⁸ Case 127/73, Belgische Radio en Televisie v SV SABAM and NV Fonior [1974] ECR 51, paras 16 and 17; and Case 48/72, Brasserie de Haecht v Wilkin-Janssen [1973] ECR 77, para 6. See also Mestmäcker, EJ, ‘The Modernisation of EC Anti-trust policy: constitutional change or administrative convenience’ in Ehlermann, CD and Atanasiu, I (eds), European Competition Law Annual 2000: The Modernisation of EC Anti-trust Policy (Oxford, Hart, 2001) 227–32Google Scholar; and Gustafsson, M, ‘Some Legal Implications Facing the Realisation of the Commission White Paper on Modernisation of EC Anti-trust Procedure and the Role of National Courts in a PostWhite Paper Era’ (2000) 27(2) Legal Issues of Economic Integration 159, 170–2CrossRefGoogle Scholar.

¹⁴⁹ Eg Mestmäcker, ibid, 230–2; Gustafsson, ibid, 164–72; and R Wesseling ‘The Commission White Paper on Modernisation of EC Anti-trust Law: unspoken consequences and incomplete treatment of alternative options’ (1999) ECLR 420, 424 & 425.

¹⁵⁰ Eg Marenco, G, ‘Does a Legal Exception System Require an Amendment of the Treaty?’ in Ehlermann, and Atanasiu, (eds), above n 148, 145 Google Scholar; and Forrester, I and Norall, C, ‘The Laicisation of Community Law: Self-Help and the Rule of Reason: How Competition Law is and Could be Applied’ (1984) 21 CML Rev 11, 20Google Scholar.

¹⁵¹ Whether the consideration of public policy goals within Art 81 EC means there is so much discretion that that provision cannot be directly effective does not seem in line with many other provisions that are directly effective where public policy has been considered; eg Art 81(1) EC, Wouters, above n 10. Arts 28 and 30 (free movement of goods) and 39 EC (free movement of workers) are also directly effective. This is despite the fact that between Arts 28 and 30 and Arts 39(1) and (3) EC there needs to be a balancing of the free movement ‘right’ and various policy areas, such as public security and public health. A similar point arises in relation to the mandatory requirements—see, eg PreussenElektra, above n 54, paras 69–80. See the comments of G Tesauro and G Marenco on this issue in Ehlermann and Atanasiu (eds), above n 148, 37–9. See also Winter, above n 138, 18 & 19; Dhondt, above n 54, 178; and Commission, ‘Community Guidelines on State Aid for Environmental Protection’, [2008] OJ C82/1, para 18.

¹⁵² Council Regulation 1/2003, recital 4 and Arts 1, 5 and 6.

¹⁵³ Baquero Cruz, above n 7, 63 & 64.

¹⁵⁴ Ellis, n 36 above, 271–8; and Commission Green Paper, Vertical Restraints in EC Competition Policy, COM(96)721 final, 22 January 1997, para 191.

¹⁵⁵ Joined Cases 56 & 58/64, Établissements Consten SARL and Grundig-Verkaufs-GmbH v Commission [1966] ECR 299, 345 and 346.

¹⁵⁶ Case T-168/01, GlaxoSmithKline Services v Commission, above n 11, particularly paras 91 and following.

¹⁵⁷ Defrenne, above n 126, para 7.

¹⁵⁸ See, eg Case C-9/99, Échirolles Distribution SA v Association du Dauphiné [2000] ECR I-8207, para 22; also see the Opinion of AG Alber, paras 25–8 and 32–4, stating that Arts 3 and 4 ‘have direct legal effect only in conjunction with those [implementing] provisions’. It might also be said that the ECJ does a similar thing with the policy-linking clause (Art 6 EC) in PreussenElektra, above n 54.

¹⁵⁹ Odudu notes that Art 2 EC cannot in and of itself impose legal obligations on Member States or confer rights on individuals: Case 126/86, Fernando Zaera v Institut Nacional de la Seguridad Social [1987] ECR 3697, para 11. See also Case C-339/89, Alsthom Atlantique SA v Compagnie de construction mécanique Sulzer SA [1991] ECR I-107, paras 8 and 9.

¹⁶⁰ See Craig and de Búrca, above n 133, 74, for further references.

¹⁶¹ Rasmussen, H, On Law and Policy in the European Court of Justice (Dordrecht, Martinus Nijhoff Publishers, 1986) 62–4Google Scholar; and Odudu, above n 6, 167.

¹⁶² See also Cappelletti, M, ‘Is the European Court of Justice “Running Wild”?’ (1987) 12 EL Rev 3 Google Scholar; and Townley, above n 7, 54 & 55.

¹⁶³ Hartley, T, ‘The European Court, Judicial Objectivity and the Constitution of the European Union’ (1996) LQR 95, 107–9Google Scholar; and GF Mancini and GT Keeling, ‘Democracy and the European Court of Justice’ (1994) MLR 175, 186.

¹⁶⁴ Section III pointed to evidence of the teleological approach being enshrined within the Lisbon Treaty.

¹⁶⁵ Respectively, Case 6/64, Costa Flaminio v ENEL [1964] ECR 585; and Case 26/62, NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1. See also Viking, above n 86, para 58.

¹⁶⁶ The issue is discussed in more detail in Townley, above n 7, ch 1.

¹⁶⁷ Gerber, G, ‘The Transformation of European Community Competition Law?’ (1994) 35 Harvard International Law Review 97, 99–100Google Scholar.

¹⁶⁸ Bengoetxea, J, MacCormick, N and Soriano, L Moral, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in de Búrca, G and Weiler, J (eds), The European Court of Justice (Oxford, Oxford University Press, 2001) 47 Google Scholar. See also Albany, above n 65, para 60; and van der Esch, B, ‘The Principles of Interpretation Applied by the Court of Justice of the European Communities and their Relevance for the Scope of the EEC Competition Rules’ in Hawk, B (ed), EC & US Competition Law & Policy: Fordham Corporate Law 1991 (New York, Juris Publishing, 1992) 223 Google Scholar.

¹⁶⁹ Van Miert, K, ‘Competition Policy in the 1990s’, speech for the Royal Institute of International Affairs (Chatham House, London), 11 May 1993 Google Scholar, cited in Sauter, W, Competition Law and Industrial Policy in the EU (Oxford, Clarendon Press, 1997) 120 Google Scholar.

¹⁷⁰ Toggenburg, G, ‘Cultural Diversity at the Background of the European Debate on Values—an introduction’ in Palermo, F and Toggenburg, G (eds), European Constitutional Values and Cultural Diversity (Bolzano, European Academy, 2003) 10 Google Scholar.

¹⁷¹ Judge Edward, talking about the ECJ’s legal reasoning, says that the judge’s role ‘can not be confined to that of providing a technocratic literal interpretation of texts produced by others … the judge must proceed from one case to another seeking, as points come up for decision, to make the legal system consistent, coherent, workable and effective’: Edward, above n 31, 66–7.

¹⁷² Odudu, above n 6, 169.

¹⁷³ Although they have allowed competition to be excluded; one example is Albany, above n 65.

¹⁷⁴ Case T-61/89, Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, para 54. See also Case T-144/99 Institute of Professional Representatives before the European Patent Office v Commission [2001] ECR II-1087, para 67; and Joined Cases 209–213/84, Ministère public v Lucas Asjes [1986] ECR 1425, paras 40–2.

¹⁷⁵ V Auricchio, ‘Services of General Economic Interest and the Application of EC Competition Law’ (2001) World Competition 65, 78.

¹⁷⁶ Odudu, above n 6, 169. Odudu also makes some points about conflicts between Member State goals and Community goals. There is not the space to deal with this here—see Townley, above n 7, ch 7.

¹⁷⁷ For a more detailed discussion, see Townley, above n 7, ch 1.

¹⁷⁸ In combination with Council Regulation (EC) 1184/2006, applying certain rules of competition to the production of, and trade in, agricultural products, [2006] OJ L214/7.

¹⁷⁹ Art 81(3)(b) EC emphasises that the undertakings concerned must not be afforded the possibility of eliminating competition in respect of a substantial part of the products in question.

¹⁸⁰ Although the ECJ and national courts constantly balance, for example, within the free movement rules.

¹⁸¹ See Townley, above n 7, ch 8, pointing out that, eg Arts 2–4 EC and the policy-linking clauses provide some (limited) assistance in this regard. For an interesting attempt at dealing with similar conflicts, see the UK’s Communications Act 2003 s 3.