Consumer welfare, sustainability and competition law goals

Holmes, Simon

There is no reference anywhere in the EU treaties to ’Consumer Welfare’. This forward argues that the correct starting point for analysing any question under European competition law is not consumer welfare but the constitutional provisions of the Eu treaties. These not only allow, but require, that sustainability concerns be taken into account when interpreting and applying all the provisions of the treaties: there is no exception made for competition law. That said, if we do proceed AS IF consumer welfare were the relevant standard then, when looked at in its normal meaning, it is more than capable of taking into account sustainability concerns.

Two things puzzle me and annoy me in equal measure about the discussion of “consumer welfare”—at least in Europe. First why the obsession with it? Secondly, when we do talk about it, why do we so often lose sight of its usual meaning? On the first issue, the key point is that there is no reference to “consumer welfare” anywhere in the various treaties establishing the EU. There is no reference to it in what I call the “constitutional” provisions of the treaties: i.e., the key articles at the beginning of each treaty setting out their goals. Nor is there any reference to it in any of the competition provisions of the treaties. Despite this, lawyers, economists, academics and enforcers pore over the term as if it was the fundamental concept enshrined in the treaties: it is not. If Article

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