Zäch, Roger; Künzler, Adrian --- "Freedom to Compete or Consumer Welfare: The Goal of Competition Law According to Constitutional Law" [2010] ELECD 235; in Zäch, Roger; Heinemann, Andreas; Kellerhals, Andreas (eds), "The Development of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The Development of Competition Law

Editor(s): Zäch, Roger; Heinemann, Andreas; Kellerhals, Andreas

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444461

Section: Chapter 3

Section Title: Freedom to Compete or Consumer Welfare: The Goal of Competition Law According to Constitutional Law

Author(s): Zäch, Roger; Künzler, Adrian

Number of pages: 24

Extract:

3. Freedom to Compete or Consumer
Welfare: The Goal of Competition
Law according to Constitutional Law
Roger Zäch* and Adrian Künzler**

1 INTRODUCTION

Under the basic constitutional provisions of the USA, the EU and many
European countries, the overall purpose of legal rules against private
restraints on competition is to favour economic prosperity, which includes
consumer welfare.1 However, legal rules against private restraints on com-
petition are not aimed at creating economic prosperity directly. This is
rather brought about indirectly, by protecting the freedom to compete of
actors on markets, and can even occur against their will.2 The reason for
this is that freedom to compete generally leads to competition and com-
petition leads to an efficient allocation of resources and thus to consumer
welfare. The goal of competition law, therefore, is to ensure the freedom to
compete of individuals and thus to safeguard the competitive process.
Due to the influence of the so called `more economic approach' in the
EU legal rules have recently been enacted and opinions expressed that
could result in future scenarios in which restraints on competition are
assessed directly under the aspect of consumer welfare, efficient allocation


* Professor of Law em., Director at the Europa Institute, University of Zurich,
Switzerland.
** Dr.iur., District Court of Zurich, Switzerland.
1 Article 3 lit. g and Preamble to the EC Treaty; see for example also Articles

94, 96 and 27 of the Swiss Federal Constitution.
2 Zäch, R. and A. Künzler (2006), ` ...