The More Economic Approach to EU Antitrust Law

Description

In the late 1990s, the European Commission embarked on a long process of introducing a ‘more economic approach’ to EU antitrust law. One by one, it reviewed its approach to all three pillars of EU antitrust law, starting with Article 101 TFEU, moving on to EU merger control and concluding the process with Article 102 TFEU. Its aim was to make EU antitrust law more compatible with contemporary economic thinking. On the basis of an extensive empirical analysis of the Commission’s main enforcement tools, this book establishes the actual changes that the more economic approach has made to the Commission’s enforcement practice over the past 15 years. It demonstrates that the new approach not only introduced modern economic assessment tools to the Commission’s analyses, but fundamentally changed the Commission’s interpretation of the law. Emulating one of the key credos of the US Antitrust Revolution 30 years earlier, the Commission reinterpreted the EU antitrust rules as aiming at the enhancement of economic consumer welfare only, and amended its understanding of key legal concepts accordingly. This book argues that the Commission’s new understanding of the law has many benefits. Its key principles are logical, translate into workable legal concepts and promise a great degree of accuracy. However, it also has a number of serious drawbacks as it stands. In particular, the Commission’s review of Article 102 has yielded unsatisfactory results. Moreover, its revised interpretation of the law is largely incompatible with the case law of the Court of Justice of the European Union, which has not been swayed by the exclusive consumer welfare aim. This situation is undesirable from the point of view of legal certainty and the rule of law. Volume 14 in the series Hart Studies in Competition Law Acknowledgements Table of Contents TABLE OF CASES TABLE OF LEGISLATION Introduction Part I 1 Triggers and Catalysts I. Introduction II. The Completion of the Internal Market III. Academic Criticism IV. Transatlantic Conflict V. DG Competition"s annus horribilis VI. The Great Reformer VII. Increased International Cooperation VIII. Conclusion 2 The Process I. Introduction II. One Pillar at a Time III. A "Soft" Reform IV. Changes in the Professional Composition
of DG Competition V. Public Consultations VI. Conclusion 3 The Agenda I. Introduction II. Speeches, Interviews and Publications by
the Commissioner for Competition Policy III. Official Commission Acts IV. The Broader Context V. Conclusions and Consequences
for the Structure of Part II Part II 4 A More Economic Objective I. Introduction II. The Importance of Identifying a Provision"s Legal Objective III. A Few of the Usual Suspects IV. The Commission"s Understanding of the EU Antitrust Rules" Legal Objective Prior
to the More Economic Approach V. The Legal Objectives according
to the More Economic Approach VI. Conclusion 5 A More Economic Concept of Competitive Harm I. Introduction II. Article 101 III. Merger Control IV. Article 102 V. Conclusion 6 A More Economic Concept of Countervailing Effects I. Introduction II. Article 101 III. EU Merger Law IV. Article 102 V. Conclusion 7 A More Economic Test I. Introduction II. A Few Preliminary Considerations III. Article 101 IV. EU Merger Law V. Article 102 VI. Conclusion 8 A More Economic Methodology I. Introduction II. The Use of Economic Theory III. The Use of Quantitative Analysis IV. More Empirical Evidence V. The Length of Decisions VI. Conclusion Conclusions on Part II Part III 9 Advantages I. Introduction II. Logic and Internal Consistency III. Accuracy IV. More Empirical Evidence V. Reduction in the Number of Cases Caught
by the Antitrust Provisions VI. Approximation with US Antitrust Law VII. Conclusion 10 Compatibility with the Case Law I. Introduction II. The Aims of EU Antitrust Law in the Case Law III. The Concept of Harm in the Case Law IV. The Relevance of Non-economic Policy
Goals in the Case Law V. Form- v Effects-based Tests in the Case Law VI. Compatibility of the Commission"s More Economic Approach with the Case Law and Consequences VII. Conclusion 11 Other Concerns I. Introduction II. Consistency III. Clarity IV. Difficulty of Application V. Consumer Welfare as the Only Relevant Value VI. Conclusion Conclusion Annex: Tables on Decision Length Bibliography Index