Introduction

Following the review of Article 82, consumer welfare has been given primacy. Whether this is legitimate depends on at least three factors, which will be discussed in this chapter. The first is whether a potential conflict exists between economic freedom (freedom of competition) and consumer welfare. Only if there is no potential tension between these two objectives, or where economic freedom is a means to an end for consumer welfare, is it acceptable for the Commission to give priority to consumer welfare. In case of a conflict, the Commission can only give priority to consumer welfare in the hierarchy of the different objectives pursued by Article 82 if the conflict is recognised and resolved by the ECJ in favour of consumer welfare.

The second consideration is whether economic freedom is considered a fundamental right. Even if there is no conflict between the two goals, consumer welfare cannot be given primacy if economic freedom is considered a fundamental right. A fundamental right requires that it be protected as a right of a higher rank. If economic freedom has status as a fundamental right, then giving priority to the utilitarian goal of consumer welfare would undermine the Community legal order, as it would prioritise a utilitarian approach over a fundamental rights-based approach. This would have to be properly debated and would require support from the Community Courts. If the latter do not favour consumer welfare, the Commission can lobby for a change, but the Commission's decisions would have to follow ECJ case law.