INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW This line of thinking suggests that Article 101, whose mission in is to protect “competition”, is open, at least to a certain extent, to broader social considerations of societal welfare (“Gemeinwohlaspekte”). In recent years it has become more widespread to link the specific policy chapters of the Treaty to the fundamental treaty provisions, in particular the so-called “Querschnittsklauseln” (“Integration Clauses” or “zielverpflichtende Gemeinwohlklauseln”). For example, Article 11 TFEU obliges the EU organs to consider sustainability considerations when defining and implementing specific policies. Article 7 TFEU emphasises the importance of overall coherence between individual policies, without prejudice to the principle of conferral (“Prinzip der Einzelermächtigung”). Compliance with both articles is open to judicial review, notwithstanding a wide margin of discretion. Moreover, maybe influenced by the spread of ESG-thinking, we look today more often at the Treaty on the European Union, with its articles on values (Article 2 TEU) and aims of the EU (Article 3 TEU). Article 3(3) TEU does not even mention “competition” as a standalone aim – due to the intervention of France. “Competition” as such is only mentioned in Protocol 27, stating that if necessary, the EU will take action to ensure that the internal market includes a system ensuring that competition is not distorted. Contrary to the concept of “competition”, however, sustainable development is expressly mentioned in Article 3(3) TEU. Further, Article 3(1) clearly and expressly states that it is the Union’s aim “to promote peace, its values and the well-being of its peoples”. Seasoned competition law practitioners looking at Treaty fundamentals through the lens of the specific and far-reaching powers given to the EU in the field of competition law by the principle of conferral, are conditioned to reason that Article 101(1) is the domain of “market only considerations” and that any non-competition considerations only come into play, if at all, in the context of Article 101(3) TFEU, a bit like pale watercolours adding shades to an aquarelle. The question is whether this is still a correct view of things. Arguably, Article 101 protects “competition” and Article 101(3) provides an exemption, under certain conditions, from whatever the protection of competition commands. The effect of the exemption is to declare inapplicable the prohibition which results from the competition law analysis (now a “Legalausnahme”). The four-pronged test provided by Article 101(3) is labelled “efficiencies”. This term is somewhat ambiguous. It may be viewed narrowly as a justification of a restriction by consumer welfare benefits. It can also be viewed more broadly as allowing non-monetary justifications.
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