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Ghidini, Gustavo --- "Comment: A short note on the generation of efficiencies in the context of the 'constitutional' principles of European competition law" [2006] ELECD 314; in Ullrich, Hanns (ed), "The Evolution of European Competition Law" (Edward Elgar Publishing, 2006)

Book Title: The Evolution of European Competition Law

Editor(s): Ullrich, Hanns

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427016

Section Title: Comment: A short note on the generation of efficiencies in the context of the 'constitutional' principles of European competition law

Author(s): Ghidini, Gustavo

Number of pages: 6

Extract:

Comment: A short note on the generation
of efficiencies in the context of the
`constitutional' principles of European
competition law
Gustavo Ghidini*
The subject matter of this workshop stimulates, inter alia, a reflection on the
position and role of the generation of efficiencies in the framework of the
`constitutional' principles of EU competition law.
First of all, of course, we must consider the paradigm of Article 81(3) of the
EC Treaty ­ a basic paradigm which I assume (and as I will later try to argue)
embodies a balance of interests which basically informs the whole process of
anticompetitive assessment ­ from the earlier Treaty-based cartel law to the
subsequent Merger Regulations.
Now, Article 81(3) tells us precisely that an agreement that produces
substantial, long-lasting efficiencies, even if they also benefit users (as indeed
they must in order to be relevant), cannot be authorized if it is likely to elim-
inate competition from a substantial portion of the relevant market. Thus,
Article 81(3) sets a double hierarchy between different general interests: a)
the interest in preserving workable actual competition is foremost, and
prevails over the ­ also general ­ interest in the generation of efficiencies, be
they connected to superior productive, distributive or technological perfor-
mance; b) in turn, the interests of the parties to the agreement are placed a
step below those of consumers ­ the only `guaranteed' social group. Further,
how strongly the hierarchy is set may be seen from the fact that, even where
the prospective efficiencies ...