EU public interest

The notion of “EU public interest”

The term 'public' included in the notion of 'EU public interest' has been introduced to underline the public policy dimension and discretionary nature of the Commission's intervention on the basis of Article 10 and, conversely, the implicit judgment that individual interests of companies are not sufficient to activate the Commission decision-making process in this context. This is further confirmed by the fact that Article 10 specifies that the Commission acts 'on its own initiative' rather than on application (further stressing the Commission's discretion).

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The term 'Community' [i.e., European Union] constitutes the second important facet of the notion 'EU public interest'. It underlines that Commission decisions pursuant to Article 10 are designed to serve exclusively the common public goal of undistorted competition within the internal market and, accordingly, the development of EU competition policy to safeguard that public goal.

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In accordance with the Union dimension of the notion of 'EU public interest' and given the exceptional nature of Article 10 decisions in a legal exception system, the problem of inconsistent application of the law (see Recital 14) needs to have a substantial impact on the functioning of competition within the internal market. Inconsistent application of the competition rules, in particular if sustained over a long period of time, may lead to discrimination between economic operators and unequal opportunities to compete. The market process itself, which the competition rules are designed to protect, may be substantially impeded.

Other Considerations

The risk of divergence in the application of competition rules, entailing a substantial impediment to competition within the internal market may, exceptionally, also arise in the context of novel and unresolved questions, in so far as they trigger parallel proceedings before national competition authorities and courts, so that clarification by way of an Article 10 decision may be appropriate. However, recourse to an Article 10 decision in such a situation should normally only be had if other means of preventing the risk of divergence, such as an amicus curiae intervention of the Commission in proceedings before national courts, will likely not be sufficient.

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On the other hand, minor divergences of interpretation of the rules with only a minimal impact on the functioning of competition within the internal market should not give rise to the adoption of Article 10 decisions.

Resources

See Also

References

• Information about EU public interest in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

• Information about EU public interest in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)