Public interest justifying intervention

'European Union public interest' justifying intervention

According to its terms, Article 10 can be applied where “the Community [i.e., European Union 1 ] public interest relating to the application of Articles 81 and 82 of the Treaty [i.e. Articles 101 and 102 TFEU]” so requires. The objective of competition policy is to benefit consumers and the economy as a whole, in the framework of the internal market. The notion 'Community public interest' in Article 10 refers to the fundamental commitment of the European Union to a system of undistorted competition as a common public goal 2 .

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The notion 'EU public interest' is strictly linked to the implementation of Articles 101 and 102 TFEU. It follows that other public policy considerations (e.g. industrial interests) cannot be invoked to establish that there is 'EU public interest' in the sense of Article 10.

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Moreover, Article 10 decisions are not intended to replace negative clearance or exemption decisions under the previous enforcement system. Neither can they be legally “applied for” by undertakings nor should they be envisaged as a reaction to such requests. It is important to note that under the legal exception system, undertakings have the primary responsibility to assess the compatibility of their agreements and practices with EU competition rules. Thus, the risk of having to defend their case before a national court is in principle the same for all undertakings. Therefore, the existence of that responsibility/risk in itself cannot be invoked as a valid reason for assuming a problem of consistent application of EU competition law possibly giving rise to the adoption of an Article 10 decision.

Other Considerations

A simple letter will usually suffice as reply, indicating that the Commission does not issue Article 10 decisions upon request.

Resources

See Also

References

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

Notes

[Note 1] Terminology according to the Treaty of Lisbon.
[Note 2] See Commission Staff Working Paper SEC(2001) 1828 “The notion of 'Community public interest' in Article 10” of 13.11.2001, p.5, section II, paragraph 11. This notion should be clearly distinguished from the (lack of) “EU interest” concept developed in connection with the Automec case law and governing the rejection of complaints.

Further Reading

• Information about Public interest justifying intervention in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)