Fairness in article 101(3) TFEU

Abstract: This thesis aims to assess article 101 (3) TFEU from fairness point of view. More specifically, the focus will be on assessing whether this article protects/ promotes fairness, and if so, who’s fairness. A special focus will be on also assessing what is considered as fair under the second condition of article 101 (3) TFEU, which directly refers to fairness by requiring that consumers receive a fair share of the benefits resulting from the agreement that is subject to assessment under article 101(3) TFEU. Firstly, an overview of fairness (and its varying meanings) in addition its role in EU competition law was given. From there, the thesis moved into assessing each of the conditions of article 101(3) TFEU from fairness point of view. It was found by assessing and utilizing various sources that all conditions of article 101 (3) TFEU can contribute towards fairness. The article primarily protects fairness for consumers, while also more indirectly protecting the fairness for competitors in certain cases. There should be also room for considering the fairness and interest of others, e.g. of society to limited extend, this however being a matter that is currently debated by various parties. Different interpretations of the current state of matters and suggestions for improvement were discussed relating to the article 101(3) TFEU’s requirement of consumers receiving a fair share. It seems that in some of these approaches consumers fairness and interests are only seemingly protected, where on the other hand, the approach where consumers must be fully compensated for the negative effects with the benefits in order for the share to be considered fair was found to be unnecessarily strict in certain cases: these issues have been also noted by various parties, but none provided an appropriate solution from fairness point of view. A proposal was made in the thesis on how the second condition should be assessed in order to secure outcomes that are actually fair.