Harm to Workers in EU Competition Law: A Sufficient Condition for Intervention

Abstract While there is growing evidence that employers hold substantial market power and that workers suffer from worsened working conditions as a result, interventions against employer conduct through EU competition law remain limited. A possible reason for this reserved approach is the predominance of consumer welfare as the objective of the law. To be sure, harm inflicted on workers by employers may under certain circumstances translate also into harm to downstream consumers. But in other cases the effect on consumers may be neutral or even positive. Against this background, this Article offers two lines of argument for EU competition law to recognize harm suffered by workers from restricted competition between employers as a form of harm relevant in itself. First, the Article argues that harm to any market counterparty, including workers, is a sufficient condition for intervention. Second, in the alternative, the Article argues that at least harm to individuals at the edges of supply chains, that is final consumers as well as workers, warrants action. In any case, EU competition law should not be more Catholic than the Pope: The pursuit of consumer welfare, as an objective borrowed from U.S. antitrust, should not lead to less intervention against employer conduct than we see in the United States.