Article 81 EC and Public Policy by Christopher Townley
| Published date | 01 January 2011 |
| Date | 01 January 2011 |
| Author | John Townsend |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00841_4.x |
ment of the premise of ‘law’at a momentin which it has becomeespecially inter-
esting to think in terms of the speci¢city of assemblages reveals why Foucault
would never have begun with‘law’, and suggests why his own ¢gure of the dis-
positifo¡ers a more plausibleand productive approach to the contemporaryentan-
glements of ‘law’.
Alain Pottage
n
ChristopherTownley, Article 81 EC and Public Policy,Oxford, Hart Publishing,
2009,398 pp, hb d65.00.
Is there more to antitrust or competition law than consumer welfare ^ broadly,
the maximisation of social welfare through economic e⁄cie ncy? Should there
be? Robert Bork famously addressed these normative questions inThe Antitrust
Paradox (Free Press,1978). Bork argued that the protection of market competition
(and not individual competitors) in order to promote consumer welfare was the
only true intention of the US legislature in enactingthe antitrust statutes. Succes-
sive European Commissioners for Competition have also embraced consumer
welfare as the principal normative aim of EU competition law, although the
intentions of the framers of the EuropeanTreaties were rather more obscure than
those of the American legislators. But it has been recognised that the language of
the Treaties permits other non-e⁄ciency aims to EU competition law that can
guide an EU regulator taking an administrative decision or a court interpreting
and applying competition rules in order to reach a judgment. In an in£uential
article of 2002, acknowledged byTownley on the ¢rst page of this interesting
monograph, Giorgio Monti argued that, in reaching competition decisions, the
European Commission can legitimately take into account policy objectives in
regulating anti-competitive agreements formerly under Article 81 of the EC
Treaty (now Article 101 of the Treaty on the Functioning of the EU) that are
broaderthan the protectionof competition but designed to contribute tothe eco-
nomic policy of the EU in the wider sense (see‘Article 81EC and Public Policy’
(2002) 39 Common Market Law Review 1057). Amongst these objectives are eco-
nomic freedom, economic e⁄ciency and market integration, which a¡ect sub-
sidiary matters such as employment, industrial and environmental policy and
consumer protection.These objectives are under renewed scrutiny inTownley’s
monograph.
Townley is an experienced competition lawyer who once worked for the
O⁄ce of Fair Trading, the UK competition regulator.This book is based on his
PhD research, and is split into three parts. Part A assesses the advantages and dis-
advantages of excluding non-economic public policy considerations from the
remit of competition law, and advocates a compromise approach. Part A con-
cludes that, if public policy goals areto be included within competition law,‘their
n
Law Department,London Schoolof Economics
Reviews
168 r2011 The Authors.The Modern Law Review r2011 TheModern Law Review Limited.
(2011) 74(1) 150^170
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