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In light of re‐conceptualizing a European social market economy, this contribution considers competition law's position in the European economic constitution. The economic constitution captures the economic foundation of European integration as based on the market mechanism. The contribution asks whether the change towards a ‘more economic approach’ to competition law implies an alienation of competition law from societal challenges. The contribution considers whether this interpretation, with competition law being such an integral part of the European economic constitution, should change in light of the constitutional goal of a European social market economy. To do so, the article sketches the fundamental place of competition law in the European economic constitution and shows how its interpretation has become more economics‐based. It highlights some of the problematic aspects of this change and analyzes these findings from the perspective of an economic constitution serving a social market economy.

This report derives from the work of coordinators of Work Package 9 of the FP7 programme bEUcitizen coordinated by Utrecht University (NL) and the University of Turin (IT) and is based on the findings of four work packages focusing on the economic (WP5), social (WP6), civil (WP7) and political (WP8) citizenship rights with regards to gendered and generational biases in the access to these citizenship rights. These findings have been discussed at a panel meeting in the Oviedo work conference of the bEUcitizen consortium in June 2016. Contributions have been presented by the University of Trento (WP5; IT), the University of Oxford (WP6; UK), University of Oviedo (WP7; ES), and Utrecht University (WP8; NL). In addition, the Institut Barcelona d'Estudis Internacionals (WP4; ES) and Utrecht University (WP3, NL) have contributed to the panel meeting. This report presents the findings of these WPs as well as the discussions during the meeting. It first presents the questions the WP9 coordinators have raised regarding gendered and generational biases in the access to the four citizenship rights to each of the representatives of WP5 to 8. Second, it summarizes the reactions to these questions. Third, the discussion at the panel meeting is presented and finally some conclusions are drawn.

It is undeniable that there is a tension between European competition law and sustainability-focused agreements between undertakings. Whether it should, and how it could, be resolved is less clear. The necessity of providing ‘more room’ for sustainability-focused agreements is contested. Set within the wider discussion on the (proper) goals for European competition law, these public interests are often seen as alien to an economic approach of competition law. By taking developments in the Netherlands, where the tension seems to play out most visibly, as starting point, this article first sets out the argument that there is a sustainability-deficit within current competition law, and delineates where this deficit is ‘located’. The article then provides an overview of possible solutions. These are not (all) immediately applicable but would need tweaking existing competition law’s instruments. Thus both to the interpretation of the Article 101 (3) TFEU exception clause and to the doctrines relating to placing entities or activities outside the scope of Article 101 (1) TFEU are discussed, as is the underlying rationale relating to the dichotomy between market and government.

European competition law is predominantly focused on maximizing consumer welfare. This overarching purpose (which is supported by economic theory) leaves little place for safeguarding non-economic values, such as sustainability. This makes it difficult to allow cooperation between companies which contributes to such non-economic goals. In this paper, discussed during Mancept Conference in Fall 2014, we explore whether it is possible to establish a different normative framework, in which such goals can be taken into account and balanced against the economic goal of consumer welfare. To answer this question, we take four steps. First, we discuss (concisely) current EU competition law and the difficulty of fitting non-economic goals into the dominant interpretation of that law. Second, we proposes a different normative framework, based on the capability approach advanced by philosopher Martha Nussbaum and economist Amartya Sen. Third, we argue that there are good principled reasons to incorporate non-economic goals into competition law. Fourth, we compare to which results applying both the capability approach and the consumer welfare approach to three (illustrative) cases in which non-economic goals are at stake would lead. Overall, we argue that the capability framework, although not without difficulties of its own, may provide a more legitimate theory for application of European competition law.

In judicial review of decisions of administrative authorities courts generally aim towards grounding a judgment on substantively true facts. Such a substantive truth is usually understood as meaning ’that which happened’. But how can true facts be established if the facts have not yet occurred and what implications does this have for judicial review in administrative procedures? In this article this question will be analysed by taking the Dutch Administrative Court’s review of merger decisions of the Dutch Competition Authority - using a substantively close copy of the European merger control assessment framework - as subject of analysis. Judicial review of the substantive assessment in merger control, including the prospective analysis involved and taking into account complexities of economic evidence, will be analyzed and set against the general aim of establishing substantive truth of facts.