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The Foundations of European Union Competition Law - The Objective and Principles of Article 102 by Nazzini, Renato (1st December 2011)


From: The Foundations of European Union Competition Law: The Objective and Principles of Article 102

Renato Nazzini

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 October 2019

In this book I have endeavoured to develop a coherent analytical framework for the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU) that is faithful to the normative and legal foundations of EU competition law. The task has taken much longer than I expected. When I conceived this book, I had in mind a short monograph explaining how Article 102 should be applied in the light of its welfare objective, which at the time I believed to be the welfare of consumers. Over the years, and with the benefit of short but intense periods of research in almost total seclusion, my thinking has changed significantly. It soon became apparent to me that consumer welfare was not—and could not be—the objective of EU competition law. It took me longer to understand what the objective of EU competition law is, not least because, as time went by, this question became intertwined with the more general problem of the purpose of competition law from a normative point of view. In the end, I have come to the conclusion that competition law should aim at maximizing the long-term welfare of society as a whole and that it is possible to understand social welfare not simply as a monetary measure of industry surplus but as the reflection of the values of society as enshrined in its legal order at a given time in history. This normatively optimal objective was also the objective that the Treaty of Rome of 1957 assigned to the competition rules of the European Economic Community and is still the objective of the competition rules of the TFEU. Free trade, economic freedom, and fairness and equality of opportunities are not necessarily inconsistent with it. On the contrary, properly understood, these concepts can function as operational norms ensuring the full effectiveness of the long-term social welfare objective of competition law.

Having thus clarified the normative and legal foundations of EU competition law, I set out to develop a systematic approach to the assessment of conduct that may be abusive under Article 102 TFEU, including not only exclusionary but also exploitative and discriminatory abuses. To the best of my knowledge, this task has not been undertaken so far in a book with the same coverage and methodology as this one. At this point I should, however, stop. It is not the purpose of a Preface to explain the structure and the method of the prefaced work and to demonstrate what the author believes to be its strengths and originality. This is the task of the Introduction, to which I would refer the readers who have been so patient as to read as far as here and would like to learn more. In this Preface, I simply wanted to give a retrospective account of the evolution of my thinking on the objective of competition law that lies at the heart of this book, but that may not be apparent in the book itself. And I hope that my students, my friends, and my publisher will one day forgive me if this reflection has taken so long. But so that I shall not soon be in the position to beg for forgiveness also for the excessive length of the Preface, I must now turn without hesitation to its more important part.

(p. viii) Many institutions and individuals have deserved the acknowledgment of my gratitude for contributing, directly or indirectly, to the strengths of this book, while I remain solely responsible for its weaknesses. Among my academic colleagues, I am particularly grateful to the Head of the Law School of the University of Southampton, Professor Natalie Lee, who understands the challenges and demands of academic research (something not to be taken for granted); to Dr Okeoghene Odudu, for agreeing to read a much longer version of this work in the autumn of 2010; to Professor Richard Whish, who, with his usual generosity, helped me recruit one of my research assistants; and to Professors Silvia Ferreri, Gianmaria Ajani, Raffaele Caterina, and Michele Graziadei, for their support during my Visiting Professorship at the University of Turin, when I wrote key parts of what are now Chapters 6 and 7. In addition, I would like to thank those who greatly facilitated the writing of this book by exceeding any expectation of high professional standards, and in particular the staff of the Central Archives of the Council of the European Union, Joy Caisley, Law and Official Publications Librarian at the University of Southampton, and the Oxford University Press teams who have been involved in the different stages of the publication process. Above all, I would like to acknowledge the invaluable help provided by my research assistants Baskaran Balasingham, Scott Spearman, and Gillian Waugh, and also by my PhD student Valerio Torti. Gillian was especially helpful in providing much needed discipline during the long months when the first draft of this book was completed. Some discipline—but not too much—was also provided, during the two long Italian summers of 2008 and 2009, by Anna Rossini, with whom I held long and unconventional conversations on many of the issues which are dealt with in Chapters 6 to 8.

This book is dedicated to the memory of my grandfather, for the example he set for me as a scholar and for his work on the relationship between human freedom and the concept of legal liability,1 which inspired my reflection on the concept of freedom underpinning the treatment of this topic in Chapters 2 and 4.

Renato Nazzini


August 2011


1  This theme occupied him from the beginning of his career. Indeed, it was his very first monograph which laid the foundations for his future work in this area: see V Cavallo, La Libertà Umana Nella Filosofia Contemporanea (Napoli-Città di Castello, F Perrella 1933).