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Published online by Cambridge University Press: 01 December 2021
This article proposes two broad ways to conceptualise EU competition law. EU competition law could be viewed as ‘autonomous law’ (‘AL’), namely as a closed normative system a technocratic tool consisting in a set of rules that prohibit undue restraints of trade. Or, EU competition law could be viewed as ‘responsive law’ (‘RL’), namely as a relatively open normative system and an interpretive practice that oscillates between openness and integrity. The responsiveness approach offers a compelling conceptualisation as it explains certain endogenous features of EU competition law: its fuzzy mandate, conceptually elastic vocabulary, and use of rules and standards. In addition, the responsiveness approach can clarify the role economics plays in EU competition law. It views economics as an ‘ideological science’, which, even though it cannot insulate this legal field from value disagreements and make it ‘autonomous’, it can provide a source for positive and normative interpretive statements. On this basis the responsiveness approach maintains that EU competition law is by design open—ie conceptually elastic and factually sensitive—and that its openness can enhance, but also undermine its integrity—ie its capacity to realise its objective in a rule of law compatible manner. These conflicts between openness and integrity are the cause of EU competition law's relative indeterminacy. To deal with the problem of indeterminacy, the RL approach proposes a tripartite legal-institutional modus operandi consisting in constructive interpretation, responsive enforcement, and catalytic adjudication. Hence, considering EU competition law as a form of responsive law has three major implications: first, it offers a new way for understanding how this legal field works and changes; second, it suggests a strategy for dealing with EU competition law's indeterminacy, and third it proposes a new framing for the discursive practices of EU competition law's epistemic community.
Fellow in Law at London School of Economics, Law School (s.makris@lse.ac.uk). I am grateful to John Bell, Elias Deutscher, Lucila de Almeida, Andriani Kalintiri, Justin Lindeboom, Giorgio Monti, Andrew Murray, Okeoghene Odudu, Emmanuel Voyakis, for their thoughtful suggestions. I would also like to thank the participants of the 2021 MaCCI conference and especially Oles Andriychuck and Filippo Maria Lancieri for their helpful comments. All errors remain my own.
1 In previous work I identified this phenomenon as ‘reasonable disagreements’, namely as disagreements among rational, well-informed, and benevolent interlocutors about the content of competition norms, the direction of competition policy, or the appropriate remedial response. I identified three types of reasonable disagreements and explained their analytical structure. Makris, S, ‘Openness and Integrity in Antitrust’ (2020) 17(1) Journal of Competition Law & Economics 1, pp 6–23Google Scholar.
2 A Marmor, Philosophy of Law (Princeton University Press, 2014), p 145 (‘The law requires interpretation when its content is indeterminate in a particular case of its application. There are three main sources of indeterminacy in the law: conflict between different legal norms that apply, semantic indeterminacy, and some pragmatic features of communication’). However, according to Dworkin what generates law's indeterminacy is that it is a ‘branch of morality’, it incorporates values and thereby necessarily leads to value conflicts. See R Dworkin, Justice for Hedgehogs (Harvard University Press, 2011), pp 154, 255, 407.
3 Allensworth, R H, ‘The Commensurability Myth in Antitrust’ (2016) 69 Vanderbilt Law Review 1, pp 16–44Google Scholar (showing that value judgments are unavoidable in US antitrust).
4 With the term ‘EU competition law’, I refer to the EU's rules on competition ensuing from Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’), the body of relevant Regulations and Directives, the European Commission's (‘Commission’) institutional practices and of course to the case law the Court of Justice of the European Union (‘CJEU’). For some basic material, see https://eur-lex.europa.eu/summary/chapter/0801.html.
5 P Nonet and P Selznick, Law and Society in Transition: Towards Responsive Law (Harper and Row, 1978), pp 53–55.
6 R Dworkin, Law's Empire (Harvard University Press, 1986), pp 45–48, 52–53 (arguing that what triggers theoretical disagreements about the grounds of law (ie indeterminacy) is the fact that law invites a certain ‘interpretive attitude’ according to which its users consider that it has a certain value, serves a certain interest or purpose or enforces some principle).
7 According to Dworkin integrity includes the basic rule-of-law principles such as clarity, certainty, and coherence, but also the core substantive value of the specific legal field it refers to. Ibid, pp 4–11, 31–44. See also R Dworkin, A Matter of Principle (Harvard University Press, 1985), p 11 (distinguishing between the ‘rule-book’ and the ‘rights’ conception of the rule of law. The former considers substantive justice as an independent ideal and not a part of the rule of law, whereas the latter requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights); Nonet and Selznick, note 5 above, pp 76–77 (noting that ‘Integrity is protected when an institution is strongly committed to a distinctive mission. … Openness on the other hand, presumes wide grants of discretion, so that official conduct may remain flexible, adaptive and self-corrective. … A responsive institution retains a grasp on what is essential to its integrity while taking account of new forces in its environment. To do so it builds upon the ways integrity and openness sustain each other even as they conflict. … Only when an institution is truly purposive can there be a combination of integrity’).
8 See for instance, T-Mobile Netherlands BV et al v Raad van bestuur van de Nederlandse Mededingingsautoriteit, C-8/08, ECLI:EU:C:2009:343, para 38 (stating the competition rules laid down in the Treaty ‘aim to protect not only the interests of competitors or of consumers, but also the structure of the market and, in doing so, competition as such’).
9 For an interesting analysis of competition law's in-built flexibility, see Ezrachi, A, ‘Sponge’ (2017) 5(1) Journal of Antitrust Enforcement 49Google Scholar, and S P Sullivan, ‘Antitrust Amorphisms’ (2019) Antitrust Chronicles 37.
10 Indicatively, Wouters and Others, C-309/99 [2002] ECR I-1577; Conseil National de l'Ordre national des pharmaciens v Commission, T-23/09 [2013] EU:T:2014:1049; Meca-Medina v Commission, C-519/04 P [2006] EU:C:2006:492; Ordem dos Tecnicos Oficiais de Contas (OTOC) v Autoridade da Concorrencia C-1/12 [2013] EU:C:2013:127.
11 Nonet and Selznick, note 5 above, pp 73–78.
12 The term ‘dynamic equilibria’ here is used loosely and not in its technical sense to convey the idea that competition law does not live in a world of order, stasis and knowableness, as the AL claims, but in a world of self-reflection, exploration, and re-adjustment. Yet despite its fluidity and continuous evolution, it manages to be a relatively stable and effective legal system. See W B Arthur, Complexity and the Economy (Oxford University Press, 2015), pp 2–4.
13 Dworkin, note 6 above, pp 1–44, 51–53.
14 Responsive enforcement involves a flexible pyramid of escalating threats, tripartism, deliberative processes, and institutional cooperation. This regulatory theory was developed by Ayers and Braithwaite and falls within the lines of Nonet and Selznick's Responsive Law. I Ayres and J Braithwaite, Responsive Regulation (Oxford University Press, 1992), pp 3–18, 158–59.
15 J Scott and S Sturm, ‘Courts as Catalysts: Re-thinking the Judicial Role in New Governance’ (2007) 13(3) Columbia Journal of European Law 1, p 2.
16 Nonet and Selznick, note 5 above, pp 18–28. For a similar jurisprudential vision, see B Tamanaha, Realistic Theory of Law (Cambridge University Press, 2017) 1–11 (seeking to combine systematic normative moral-political philosophy with analytical jurisprudence and a historical-sociological tradition of jurisprudential thinking).
17 Nonet and Selznick, note 5 above, pp 29–52 (Noting that repressive law refers to a situation where the state has the monopoly of legitimate violence but is not constrained by the rule of law. Under this model, the main function of law is to legitimatise power and secure hierarchies of privilege and dependency. The model of repressive law is not relevant for the purposes of this study as it refers to legal orderings where rule of law does not exist. Furthermore the risk of responsive law turning repressive law is addressed through the instrumentalisation-related discussion.).
18 The AL model is used to describe patterns of thought associated with certain forms of legal positivism, and the RL model to synthesise Raz's and Hart's positivisms and Dworkin's interpretivism. The reason behind this choice of terminology is that I do not intend here to participate in a jurisprudential debate of the form ‘legal positivism: friends and foes’ or develop a general legal theory about competition law, but to harness the intellectual fruits of different legal and socio-legal theories to the benefit of competition law scholarship. For the jurisprudential debate, see G Leslie and T Adams, ‘Legal Positivism’ (2003) The Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/legal-positivism; N Stavropoulos, ‘Interpretivism’ (2014) The Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/law-interpretivist.
19 P Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805, pp 806, 817 (defining the field as an area of structured socially patterned activity or ‘practice’ organised around a body of internal protocols and assumptions, characteristic behaviours and self-sustaining values and noting that ‘the juridical field is the site of a competition for monopoly of the right to determine the law’).
20 H L A Hart, The Concept of Law (Oxford University Press, 1961), pp v, 89–90.
21 C Louis de Secondat, Baron de Montesquieu, Complete Works, Vol. 2 The Spirit of Laws [1748] (T. Evans, 1777), p 193.
22 Venzke, I, ‘The Role of International Courts as Interpreters and Developers of Law: Working out the Jurisgenerative Practice of Interpretation’ (2011) 34 Loyola of Los Angeles International and Comparative Law Review 99Google Scholar (convincingly arguing that this distinction is artificial).
23 Gardner, J, ‘Legal Positivism: 5 ½ Myths’ (2001) 46 Journal of Jurisprudence 199Google Scholar, p 202 (stating that the gist of legal positivism is the thesis that the validity of a norm depends only on its sources never on its merits).
24 Nonet and Selznick, note 5 above, pp 39, 55–56.
25 Lang, J T, ‘Has the European Court of Justice Been Involved in “Judicial Legislation”?’ (2011) 96 Svensk Juristtidning 299Google Scholar; Dworkin, note 7 above, pp. 9–33 (considering this criticism misguided and arguing that judges do and should rest their judgments on controversial cases on arguments of political principle, but not on arguments of political policy).
26 J Yan and S Sacher, ‘Some Reactions to “Reactionary Antitrust”’ (2020) Concurrences Competition Law Review 20, 24 (supporting the consumer welfare paradigm on the basis that it offers a ‘scientific framework for analysis’ and ‘involves scientific reasoning’. However, these authors recognise that competition law is value-laden in the sense that ‘there that there is no escaping ideology to the extent that ideology means there must be some predictable and reliable normative prescription for the objective’).
27 Crane, Daniel, ‘The Tempting of Antitrust: Robert Bork and the Goals of Antitrust’ (2014) 79(3) Antitrust Law Journal 835Google Scholar, 853.
28 Richard Posner, Antitrust Law, 2nd ed (University of Chicago Press, 2001), pp 11–17.
29 Adi Ayal, Fairness in Antitrust (Hart Publishing, 2014), p vi (observing that ‘the current focus in antitrust enforcement towards economically-oriented rules applied by technocratic administrative agencies avoids philosophical disputes regarding rights by focusing on scientific economic principles applied by supposedly value-neutral professionals’).
30 AL does not negate that legal propositions are normative facts; it only states that non-legal normative facts are legally relevant. For the role of normative facts in determining legal validity, see Stavropoulos, note 18 above, pp 5–8. Normative facts could be legal and non-legal (eg moral rules, rules of games). See J Raz, Practical Reason and Norms [1975] (Oxford University Press, 1999), pp 107, 117–23 (discerning between different normative systems: systems of interlocking norms, systems of joint validity, autonomous systems and institutionalised systems).
31 R Feldman, The Role of Science in Law (Oxford University Press, 2009), pp 13–14, 19–21, 41–48.
32 J Wright, E Dorsey, J Rybnicek, and J and J Klick, Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust (George Mason Law & Economics, 2018), Research Paper 18, pp 55–57 (arguing that ‘by realigning antitrust under a singular objective grounded in economics, the consumer welfare standard heralded the advent of the modern antitrust revolution that squarely rejects populist desires to balance multiple non-economic factors, in favour of a consistent and coherent framework focused on the straightforward, but elegant, question of whether a transaction or commercial arrangement makes consumers better off’).
33 R Bork, The Antitrust Paradox [1978] (Free Press, 1993), p 50.
34 Lianos, I, ‘Polycentric Competition Law’ (2018) 71(1) Current Legal Problems 169CrossRefGoogle Scholar.
35 D Crane, Technocracy and Antitrust (Cardozo Legal Studies, 2008), Research Paper 108, pp 1, 4–7 (defining technocracy as the ‘insulation of a governmental function from popular political pressures and its administration by experts rather than generalists’; and as a school of thought which contends that the rationalisation of the economic order requires ‘the objective and detached rule of industrial and scientific experts and problem solvers’).
36 Ayal, note 29 above, pp 19–36 (arguing on this basis that modern antitrust considers consumers rights as a moral imperative, efficient competition as a cradle of objective and value neutral criteria for state intervention, but ignores or downplays producers’ rights).
37 For a description of the crime-tort model, see Crane, D, ‘Antitrust Antifederalism’ (2008) 96(1) California Law Review 1, p 32Google Scholar, and First, H, ‘Is Antitrust Law?’ (1995) 10 Antitrust 9Google Scholar. The crime-tort model considers enforcers as similar to policy force and private enforcement as the paradigmatic type of enforcing competition law. For an interesting analysis of EU competition law as a distinct strand of ‘European tort law’, see N Dunne, ‘Antitrust and the Making of European Tort Law’ (2015) 36(2) Oxford Journal of Legal Studies 366, pp 376–77. It should be noted, though, that this author does not deny that EU competition law follows a mixed public/private model.
38 D Foster, ‘Do Competition Lawyers Harm Welfare? – A Response to Richard Whish’, https://www.linkedin.com/pulse/do-competition-lawyers-harm-welfare-response-richard-whish-foster (arguing that competition enforcers should merely ‘police’ competition law as police forces do with criminal law, otherwise they would dispose ‘huge amounts of power and discretion’, become ‘open to abuse’ and ‘make social policy choices that involve judgment and need democratic legitimacy’, which they do not dispose as ‘unelected bodies’).
39 K Lenaerts, ‘The Court's Outer and Inner Shelves: Exploring the External and Internal Legitimacy of the European Court of Justice’ in M Adams et al (eds), Judging Europe's Judges: the Legitimacy of the Case Law of The European Court of Justice (Hart, 2013), pp 1–5; Nonet and Selznick, note 5 above, pp 60–65.
40 J D Wright and D H Ginsburg, ‘The Goals of Antitrust: Welfare Trumps Choice’ (2013) Fordham Law Review 2405, pp 2409–16.
41 Scott and Sturm, note 15 above, p 3.
42 Wright, et al, note 32 above, pp 48–50, 56.
43 P Ibañez Colomo, The Shaping of Competition Law (Cambridge University Press, 2018), pp 41–44.
44 Bork, R, ‘Legislative Intent and the Policy of the Sherman Act’ (1966) 9 Journal of Law and Economics 7, p 9CrossRefGoogle Scholar.
45 Ibañez Colomo, note 43 above, pp 74–76 (recognising though that policy-related matters and substantive law matters are mutually intertwined).
46 Nonet and Selznick, note 5 above, pp 73–78; Raz, note 30 above, pp 151–54 (noting that a legal system is ‘an open system to the extent that it contains norms the purpose of which is to give binding force within the system to norms which do not belong to it’, and that ‘all legal systems are open systems’ and could incorporate all sorts of right or wrong, normative or non-normative knowledge).
47 I Lianos, Competition Law for the Digital Era: A Complex Systems Perspective (CLES Research Paper Series, 2019), pp 3, 15–31 (noting that digital markets call for a ‘re-conceptualisation of the goals of competition law in the digital era, as competition law moves from the calm and predictable waters of consumer welfare, narrowly defined, to integrate considerations of income/wealth distribution, privacy and complex equality’).
48 N Averitt and R Lande, ‘Consumer Choice: The Practical Reason for Both Antitrust and Consumer Protection Law’ (1998) 10(1) Loyola Consumer Law Review 44.
49 Posner, note 28 above, p 73; Bork, note 33 above, p 91.
50 O Black, The Conceptual Foundations of Antitrust (Cambridge University Press, 2005), pp 8–16.
51 Hayek, F A, ‘Competition as a Discovery Procedure’ (2002) 5(3) The Quarterly Journal of Austrian Economics 9Google Scholar.
52 F Böhm, ‘Freiheit und Ordnung in der Marktwirtschaft’ [1971] in Nils Goldschmidt (ed), Grundtexte zur Freiburger Tradition der Ordnungsökonomik (Mohr Siebeck, 2008), p 305.
53 Ezrachi, note 9 above, pp 30–31. See also Appalachian Coals, Inc. v. United States, 288 US 344, 359–60 (1933) (‘As a charter of freedom, the [Sherman] Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions’).
54 Nonet and Selznick, note 5 above, pp 38, 51, 94.
55 Hart's distinction between concept and conception accounts for the fact that rational and well-informed members of the antitrust community reasonably disagree about which key criteria or principles should define the concept of competition. See Hart, note 20 above, pp 157–60. His discussion of the open-textured nature of law supports the thesis proposed here that in the penumbra of uncertainty of competition rules, legal institutions exercise rule-making powers and inevitably make value judgments. Ibid, pp 124–36.
56 G J Postema (ed), Matthew Hale: On the Law of Nature, Reason, and Common Law (Oxford University Press, 2017), pp 159–60.
57 Postema, G J, ‘The Data of Jurisprudence’ (2018) 95(5) Washington University Law Review 1083, p 1094Google Scholar. See also H Hovenkamp, Economics and Federal Antitrust Law (West Publishing Co, 1985), p 52 (observing that ‘in short, the Sherman Act can be regarded as ‘enabling’ legislation—an invitation to the federal courts to learn how businesses and markets work and formulate a set of rules that will make them work in socially efficient ways. The standards to be applied always have and probably always will shift as ideology, technology and the American economy changes’).
58 A Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1998), pp 8–9.
59 Hart, note 20 above, pp 89–91, 242–43, 254.
60 T Prosser, ‘Regulatory Agencies, Regulatory Legitimacy, and European Private Law’ in F Cafaggi and H Muir Watt (eds), Making European Private Law (Edward Elgar Publishing, 2008), p 236 (noting that EU competition law cannot unequivocally be classified as either public or private in nature).
61 Ayres and Braithwaite, note 14 above, pp 19–53.
62 Y Svetiev ‘Networked Competition Governance in the EU: Delegation, Decentralization, or Experimentalist Architecture?’ in C F Sabel and J Zeitlin (eds), Experimentalist Governance in the European Union: Towards a New Architecture (Oxford University Press, 2010), p 79.
63 Black, J, ‘Regulatory Conversations’ (2002) 29 Journal of Law and Society 163CrossRefGoogle Scholar. For examples of regulatory conversations in the EU context, see C A Dunlop, et al, ‘The Many Uses of Regulatory Impact Assessment: A Meta-analysis of EU and UK Cases’ (2012) 6 Regulation & Governance 23.
64 Scott and Sturm, note 15 above, pp 10–25.
65 Feldman, note 31 above, p 86 (noting that ‘law is bounded by two significant constraints: the pressure of precedent and the discipline of acceptance’ as ‘the final act of the art of law is persuasion and acceptance’ and involves ‘distilling common logic that can extend to new circumstances’ and articulating ‘that common logic in a way that can gain general acceptance’).
66 Nonet and Selznick, note 5 above, p 76 (noting that ‘all institutions experience a conflict between integrity and openness’).
67 Hovenkamp, H, ‘Positivism in Law & Economics’ (1990) 78 California Law Review 815CrossRefGoogle Scholar.
68 This view is held by the so-called legal process scholars. Bix, B, ‘Positively Positivism’ (1999) 85 Virginia Law Review 889, p 898CrossRefGoogle Scholar.
69 For a critique of this view, see M Kelman, A Guide to Critical Legal Studies (Harvard University Press, 1987), p 244.
70 See below in Part IV how the so-called More Economic Approach reflects this line of thinking.
71 Feldman, note 31 above, p 83.
72 For a detailed analysis of the RL modus operandi coupled with examples from Commission's and EU Courts’ practice see Part III below.
73 Nonet and Selznick, note 5 above, pp 76–78.
74 Fuller, L, ‘American Legal Realism’ (1934) 82 University of Pennsylvania 429, p 434Google Scholar.
75 Nonet and Selznick, note 5 above, pp 78–86.
76 Dworkin, note 6 above, pp 49–53, 421–22.
77 Ibid, pp 1–44, 52.
78 S Shapiro, The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed (Public Law and Legal Theory, 2007), Working Paper Series 77, p 35 (noting that a purpose ‘fits’ the object to the extent that it recommends that the object exists or that it has the properties it has. A purpose is ‘justified’ to the extent that it is a purpose worth pursuing).
79 Dworkin, note 6 above, pp 45–86, 225–27. It should be noted though that I deviate here from Dworkin's distinction between principles (ie propositions associated with rights) and policies (ie propositions that describe goals). This distinction commits adjudicators to deontic logic and policy makers to consequentialist reasoning. Thus it cannot be very useful in competition law enforcement or adjudication where competing interest- and rights-claims oblige the decisionmaker engage in trade-offs.
80 Kakouris, C N, ‘Use of the Comparative Method by the Court of Justice of the European Community’ (1994) 6 Pace International Law Review 273Google Scholar (stating ‘[t]he Court constantly uses teleological interpretation….[and] seeks to apprehend the meaning of law in the light of its purpose’).
81 N Fennelly, ‘Legal Interpretation at the European Court of Justice’ (1996) 20(3) Fordham International Law Journal (arguing that ‘the object of all interpretation lies in the true intention of the lawmakers’). However, constructive interpretation could be understood as a special form of teleological argumentation. Ž Harašić, ‘More about Teleological Argumentation in Law’ (2015) 31(3) Pravni vjesnik 23.
82 H Hovenkamp, Economics and Federal Antitrust Law (West Publishing Co, 1985), pp XV, 44–45 (distinguishing between positive descriptive economics that address verifiable or falsifiable questions and normative economics that relate to issues which are not amenable to final answers, eg whether a merger should be approved because it lowers consumers prices or condemned because it harms competitors).
83 A Sen, On Economics and Ethics (Blackwell, 1988), pp 2–7 (arguing that the normative side of economics involves inquiries into human ends and motivations and inevitably uses moral concepts to construct their various paradigms, while the positive-engineering side is concerned primarily with logistical issues (ie ‘instructions on material prosperity’) rather than ultimate ends).
84 T S Kuhn, The Structure of Scientific Revolutions, 2nd ed [1962] (University of Chicago Press, 1970), pp 111–35, 171–73.
85 R Baldwin, M Cave, and M Lodge, Understanding Regulation (Oxford University Press, 2012), pp 27–28.
86 D J Gerber, Law and Competition in Twentieth-Century Europe: Protecting Prometheus (Oxford University Press, 2010), p 232; H Schweitzer, ‘The History, Interpretation and Underlying Principles of Section 2 Sherman Act and Article 82 EC’ in C-D Ehlermann and M Marquis (eds), European Competition Law Annual 2007: A Reformed Approach to Article 82 EC (Hart Publishing, 2008); P Behrens, ‘The ordoliberal concept of ‘abuse’ of a dominant position and its impact on Article 102 TFEU’ in F Di Porto and R Podszun (eds), Abusive Practices in Competition Law (Edward Elgar Publishing, 2018), p 5.
87 P Akman, ‘Searching for the Long-Lost Soul of Article 82 EC’ (2009) 29 Oxford Journal of Legal Studies 267.
88 R Nazzini, The Foundations of European Union Competition Law: The Objective and Principles of Article 102 (Oxford University Press, 2011), pp 107–54
89 C Townley, Article 81 EC and Public Policy (Hart Publishing, 2009), pp 13–43.
90 Odudu, O, ‘The Wider Concerns of Competition Law’ (2010) 30(3) Oxford Journal of Legal Studies 559, 605–12CrossRefGoogle Scholar.
91 Lianos, note 34 above, pp 178–94.
92 G Monti, EC Competition Law (Cambridge University Press, 2007), pp 25, 51–52.
93 Ezrachi, note 9 above, pp 2, 6–8.
94 A Ezrachi, EU Competition Law Goals and the Digital Economy (Oxford Legal Studies, 2018), Research Paper 17, pp 21, 27.
95 For more details see Part IV below.
96 Case IV/33.814, Ford/Volkswagen Commission Decision No 93/49/EEC [1993] OJ L20/1993, pp 14–22, Rec 36; Case IV.F.1/36.718 CECED Commission Decision of 24 January 1999 (2000/475/EC), paras 55–57, 62–63; Minutes from the Commission's meeting on 7 November 2012, PV(2012) 2022 final, p 14 (noticing that many industrial sectors, such as stainless steel, operate ‘in an environment that was becoming increasingly global’, hence Community policies need ‘to actively facilitate the creation of large European groups’).
97 K Stylianou and M Iacovides, ‘The Goals of EU Competition Law – A Comprehensive Empirical Investigation’ (4 December 2020), p 26, https://ssrn.com/abstract=3735795 (noting that ‘the Commission assigns more value to welfare and to the protection of competitors and commercial freedom but less value to efficiency than the Court and AGs. And even in terms of competition process, the Commission is only half as concerned with that goal compared to the Court and AGs’.).
98 A Witt, ‘Technocrats, Populists, Hipsters, and Romantics – Who Else Is Lurking in the Corners of the Bar?’ (2019) Antitrust Chronicles 4.
99 GlaxoSmithKline v Commission, T-168/01, ECLI:EU:T:2006:265, paras 118–19.
100 GlaxoSmithKline v Commission and Commission v GlaxoSmithKline, C-501/06 P, C-513/06 P, C-515/06 P, C-519/06 P, ECLI:EU:C:2009:610, para 63 (italics added).
101 Ibid (stating ‘Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price’).
102 S Makris, ‘Applying Normative Theories in EU Competition Law: Exploring Article 102 TFEU’ (2014) 3 UCL Journal of Law & Jurisprudence 30 (arguing that neither consequentialist nor deontological thinking cannot fully explain the Article 102 TFEU case law. This failure lies to the fact that both lines of thinking seek to be holistic and reduce Article 102 TFEU case law in one, single objective or goal).
103 Stylianou and Iacovides, note 97 above, pp 5, 26–30.
104 Makris, note 1 above, pp 12–23 (showing why different stakeholders can reasonably disagree about what the goals of the law are and should be).
105 Hart, note 20 above, p 123.
106 R Whish and D Bailey, Competition Law (Oxford University Press, 2012), pp 1, 19–24.
107 W B Gallie, Essentially Contested Concepts (1955) 56 Proceedings of the Aristotelian Society 167, pp 179, 189, 191 (arguing that such concepts require value-judgments to be applied).
108 Ibañez Colomo, note 43 above, pp 29–32. For a more general discussion on the distinction between rules and standards, see L Kaplow, ‘Rules Versus Standards: An Economic Analysis’ (1992) 42 Duke Law Journal 557.
109 Monti, note 92 above, pp 16–18.
110 A Christiansen and W Kerber, ‘Competition Policy with Optimally Differentiated Rules Instead of “Per Se” vs Rule of Reason’ (2006) 2(2) Journal of Competition Law and Economics 215.
111 R A Posner, The Problems of Jurisprudence (Harvard University Press, 1993), pp 42–53.
112 B H Kobayashi and T J Muris, ‘Chicago, Post-Chicago, and Beyond: Time to Let Go of the 20th Century’ (2012) 78 Antitrust Law Journal 505, pp 515–20.
113 Ibañez Colomo, note 43 above, pp 35–38; S Salop, ‘An Enquiry Meet for the Case: Decision Theory, Presumptions, and Evidentiary Burdens in Formulating Antitrust Legal Standards’ (2017) Georgetown Law Faculty Publications and Other Works, https://scholarship.law.georgetown.edu/facpub/2007.
114 B Orbach, ‘The Durability of Formalism in Antitrust’ (2015) 100 Iowa Law Review 2197, pp 2203–06.
115 Ibid, 2206–14, 2221–22.
116 Posner, R, ‘The Rule of Reason and the Economic Approach: Reflections on Sylvania Decision’ (1977) 45(1) University of Chicago Law Review 1, pp 14–15CrossRefGoogle Scholar (stating that ‘in fact, all legal analysis operates under per se rules’).
117 COM (96), Green Paper on Vertical Restraints in EC Competition Policy, p 721, para 86.
118 R Bork, ‘The Rule of Reason and the Per Se Concept: Price Fixing and Market Division’ (1996) 75 Yale Law Journal 373, 387–90 (Bork's hostility to balancing was also grounded in the assumption that the great majority of business conduct is efficient and thus antitrust institutions should simply opt for erring on the side of non-intervention in grey areas, while forging clear-cut rules for the few hard-core restrictions.).
119 G Monti, EU Competition Law and the Rule of Reason Revisited (TILEC, 2020–2021) Discussion Paper, pp 13–22, https://ssrn.com/abstract=3686619 or http://dx.doi.org/10.2139/ssrn.3686619.
120 Wils, W, ‘The Judgment of the EU General Court in Intel and the So-Called “More Economic Approach” to Abuse of Dominance’ (2014) 37(4) World Competition: Law and Economics Review 405Google Scholar.
121 A M Hussen, Principles of Environmental Economics and Sustainability (Taylor & Francis, 2018); H Daley and J Filey, Ecological Economics (Island Press, 2003).
122 Alan Devlin and Michael Jacobs, ‘Antitrust Error’ (2010) 52 William & Mary Law Review 75 (discussing the epistemological limitations of economic analysis in antitrust).
123 L Coppi and M Walker, ‘Substantial Convergence or Parallel Paths? - Similarities and Differences in the Economic Analysis of Horizontal Mergers in the US and EU Competition Law’ (2004) 49(1) Antitrust Bulletin 101, p 121.
124 In a similar line, Allensworth, note 3 above, pp 55–67.
125 M Jacobs, ‘An Essay on the Normative Foundations of Antitrust Economics’ (1996) 74 North Carolina Law Review 219, pp 225 238.
126 To be clear, the original work of Nonet and Selznick does not include a modus operandi. I propose here this modus operandi as a way to operationalise the notion of RL. See Nonet and Selznick, note 5 above, pp 8–17.
127 These are the following: categorical separation of questions of legal validity from questions of law's merit, categorical distinction between rule making and rule application, and normative autonomy of legal hermeneutics.
128 J Raz, ‘Legal Principles and the Limits of Law’ (1972) 81(5) Yale Law Journal 823, pp 847–48 (discussing the problem and suggesting, contrary to the usual positivistic stance, that on such occasions decisionmakers should make a decision on the basis of the best moral reasons).
129 Metro SB-Großmärkte v Commission, Case 26/76 [1977] ECR 1875, para 20.
130 Ibid, para 21.
131 Ibid, paras 20–21.
132 Ibid, para 21.
133 Ibid, paras 21–22.
134 AEG-Telefunken v Commission, C-107/82, ECLI:EU:C:1983:293, para 33.
135 Ibid.
136 Pierre Fabre Dermo-Cosmétique, C-439/09, EU:C:2011:649, paras 39–40.
137 Coty Germany GmbH v Parfümerie Akzente GmbH, C-230/16, ECLI:EU:C:2017:941, para 29 (Therefore, a supplier of luxury products can prohibit authorised sellers from selling its product on third party platforms.).
138 Monti, note 92 above, p 2 (stating ‘it is hard to provide a definition of ‘competition’ everyone will agree with, or to obtain consensus about the reasons for having competition law’).
139 Commission v Anic Partecipazioni SpA, C-49/92 P [1999] ECR I-4125, para 108.
140 Höfner and Elser v Macrotron GmbH, C-41/90 [1991] ECR I-1979, para 21; Wouters and Others, C-309/99 [2002] ECR I-1577, para 57.
141 See Höfner and Elser v Macrotron, note 140 above, paras 23, 26 (holding that ‘the Treaty requires the Member States not to take or maintain in force measures which could destroy the effectiveness of that provision’), 34 (stating that ‘a public employment agency engaged in employment procurement activities is subject to the prohibition contained in Article 86 of the Treaty, so long as the application of that provision does not obstruct the performance of the particular task assigned to it’). In this case, the Court was asked whether a public employment agency engaged in employment procurement activities is subjected to the Article 101(1) TFEU prohibition.
142 Monti, note 92 above, p 124.
143 Hoffmann-La Roche & Co. AG v Commission, Case 85/76 [1979] ECR 461, paras 41–49.
144 United Brands v Commission, Case 27/76 [1978] ECR 207; Hoffmann-La Roche & Co. AG v Commission, Case 85/76 [1979] ECR 461, 41; British Airways v Commission, C-95/04 P, Opinion of 23 February 2006, para 69.
145 United Brands v Commission, Case 27/76, ECLI:EU:EU:C:1978:22, para 65. But see Coppi and Waler, note 123, p 121 (arguing that ‘this definition makes little sense from an economic standpoint’).
146 Communication from the Commission, Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (Guidance Paper), OJ C45, 24.2.2009, para 11 (note that the expression ‘increase prices’ is used as ‘shorthand’ and includes the various ways in which market power can negatively affect other ‘parameters of competition — such as prices, output, innovation, the variety or quality of goods or services’). Intel could be read as a moderate confirmation of this conception of dominance. Intel v Commission, C-413/14 P, ECLI:EU:C:2016:788, paras 136–40.
147 Whish and Bailey, note 106 above, pp 179–89.
148 Ayres and Braithwaite, note 14 above, pp 36–40 (presenting pyramidic escalation as a key element of responsive enforcement). See, however, N Gunningham and P Grabosky, Smart Regulation: Designing Environmental Policy (Oxford University Press, 1998), pp 5–19 (arguing that there are occasions where a graduated response is inappropriate. For instance where there is a serious risk of imminent irreversible loss, the risks are too high, and there is no relationship involving continuing interactions between the parties).
149 F Haines, Corporate Regulation: Beyond ‘Punish or Persuade’ (Clarendon Press, 1997).
150 Ayres and Braithwaite, note 14 above, pp 7–15.
151 M De Visser, Network-Based Governance in EC Law (Hart Publishing, 2009), pp 7–14.
152 Ayres and Braithwaite, note 14 above, pp 35–38, 54–60.
153 M Cini and L Mcgowan, Competition Policy in the European Union (Palgrave, 2008), pp 15–37.
154 W Wils, Competition Authorities: Towards More Independence and Prioritisation? (King's College London Law School, 2017), Research Paper 39, 110–11.
155 N Petit and M Rato, ‘From Hard to Soft Enforcement of EC Competition Law – A Bestiary of Sunshine Enforcement Instruments’ in C Gheur, N Petit, and J-F Bellis (eds), Alternative Enforcement Techniques in EC Competition Law (Bruylant, 2009), p 183.
156 P Ibañez Colomo, ‘On the Application of Competition Law as Regulation: Elements for a Theory’ (2010) Yearbook of European Law 261.
157 European Commission, XXIInd Report on Competition Policy 1992, p 13 (‘competition policy cannot be pursued in isolation, as an end in itself, without reference to the legal, economic, political and social context’).
158 Indicatively, European Commission, Staff Working Document Report on the application of the Union competition rules to the agricultural sector SWD (2018) 450 final; European Commission, Ex-post analysis of mobile telecom mergers, https://op.europa.eu/en/publication-detail/-/publication/0ba81733-f193-11e5-8529-01aa75ed71a1; European Commission, A review of merger decisions in the EU: What can we learn from ex-post evaluations?, https://ec.europa.eu/competition/publications/reports/kd0115715enn.pdf.
159 European Commission, Guidelines on Vertical Restraints, OJ [2000] C291/1 (now OJ [2010] C130/1).
160 B Hawk, ‘System Failure: Vertical Restraints and EC Competition Law’ (1995) 32 Common Market Law Review 973.
161 A Ezrachi and M Stucke, Virtual Competition (Harvard University Press, 2016), pp 27–33; N Petit, Big Tech and the Digital Economy: The Moligopoly Scenario (Oxford University Press, 2020).
162 J Crémer, Y-A de Montjoye, and H Schweitzer, Competition Policy for the Digital Era, Report prepared for the Commission, https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf.
163 For more information, see https://ec.europa.eu/commission/presscorner/detail/en/ip_20_977; https://ec.europa.eu/competition/consultations/2020_new_comp_tool/index_en.html; https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12418-Digital-Services-Act-package-ex-ante-regulatory-instrument-of-very-large-online-platforms-acting-as-gatekeepers; https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en.
164 A Witt, The More Economic Approach (Hart Publishing, 2016), pp 7–39, 181–90.
165 European Commission, Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Co-operation Agreements, 14 January 2011, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:011:0001:0072:EN:PDF.
166 European Commission, Guidelines on the Assessment of Non-horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings, Official Journal C 265, 18/10/2008.
167 Commission, Guidance Paper note 146 above, paras 1–31.
168 M Monti, ‘A Competition Policy for Today and Tomorrow’ (2000) 23 World Competition 1.
169 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (Text with EEA relevance), OJ L24, 29.1.2004, pp 1–22.
170 Case M-8084, Bayer/Monsanto, European Commission Decision C(2018) 69, 2018; Case M-7932, Dow/Dupont, European Commission Decision C(2017) 2001-9, 2043-48, 3017-22.
171 N Petit, ‘Significant Impediment to Industry Innovation: A Novel Theory of Harm in EU Merger Control?’, https://ssrn.com/abstract=2911597.
172 European Commission, Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations Between Undertakings [2004] OJ C31/ 03, paras 8, 38.
173 By using the notion of innovation spaces, the Commission overcame the problems that innovation competition raises to market definition in Dow/Dupont, note 170 above, paras 283, 342–402, 1956–58, 2008–34.
174 Bayer/Monsanto, note 170 above, paras 103, 1025-29, 1036; Dow/Dupont, note 170 above, para 2122.
175 Note that the reason that the RL approach emphasises a type of enforcement that goes beyond the crime-tort model is because it understands competition law as a purposive and relatively open normative system, and thereby recognises that legal hermeneutics alone cannot always ensure law's integrity.
176 Consten and Grundig v. Commission Cases 56 and 58/64 [1966] ECR, paras 229, 343, 347
177 This formulation has been repeated in voluminous case law. See BAT and Reynolds v Commission, Joined Cases 142/84 and 156/84 [1987] ECR 4487, para 62; Deere v Commission, C-7/95 P [1998] ECR I-3111, para 76; Groupement des Cartes Bancaires ‘CB’ and Europay International SA v Commission, T-39/92 and T-40/92 [1994] ECR II-49, para 109; Métropole Television and Others v Commission, T-112/99 [2001] ECR II-2459, para 114.
178 Jaeger, M, ‘The Standard of Review in Competition Cases Involving Complex Economic Assessments: Towards the Marginalisation of the Marginal Review?’ (2011) 2(4) Journal of European Competition Law & Practice 296CrossRefGoogle Scholar.
179 See especially, European Night Services, T-374/94, T-375/94, T-384/94, T-388/94, ECLI:EU:T:1998:198, paras 51–53, 162; Metropole télévision SA and Reti Televisive Italiane SpA and Gestevisión Telecinco SA and Antena 3 de Televisión v Commission of the European Communities, T-528/93, T-542/93, T-543/93 and T-546/93 [1996] ECR II-00649, paras 114–23; Tetra Laval v Commission, T-5/02 [2002] ECR II-4381, paras 124, 128–32, 135–41, 188–336; Microsoft v Commission, T-201/04 [2007] ECR II-3619, paras 87–88.
180 Clearstream Banking AG and Clearstream International SA v Commission, T-301/04 [2009] II-03155, paras 47–74.
181 Airtours v Commission, T-342/99 [2002] ECR II-2585, paras 17–48, 158–181; Tetra Laval v Commission, note 186, paras 23, 119; Commission v Tetra Laval, C-12/03 P [2005] ECR I-987, para 19; Microsoft v Commission, note 186 above, at para 482; Ryanair v Commission, T-342/07, ECLI:EU:T:2010:280, paras 30, 139–95, 447–525.
182 AstraZeneca v Commission, C-457/10 P, ECLI:EU:C:2012:770, paras 36–52.
183 Alhstrom Osakeyhtio and Others v Commission, Cases C-89/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 [1993] ECR I-1307, paras 101–63 (the experts suggested that this was not the case).
184 Deutsche Telekom v Commission, T-271/03 [2008] ECR II-477, para 185; Deutsche Telekom v Commission, C-280/08 P, ECLI:EU:C:2010:603, para 143.
185 Kalintiri, A, ‘What's in a Name? The Marginal Standard of Review of “Complex Economic Assessments” in EU Competition Enforcement’ (2016) 53(5) Common Market Law Review 1283CrossRefGoogle Scholar.
186 Witt, note 164 above, pp 4c7.
187 Commission, Guidelines, note 166 above, paras 13, 24.
188 D Gerber, ‘Two Forms of Modernisation in European Competition Law’ (2007) 31(5) Fordham International Law Review 1235, 1248–50.
189 European Commission, Guidelines on the Application of Article 81(3), OJ [2004] C101/9713, para 13 (‘The objective of Article [101 TFEU] is to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources’.).
190 Gerber, note188 above, p 1247.
191 Report by the EAGCP, An Economic Approach to Article 82 (July 2005), p 4, https://ec.europa.eu/dgs/competition/economist/eagcp_july_21_05.pdf.
192 Witt, note 164 above, pp 49–52.
193 European Commission, COMP/C-3 /37.990 – Intel, D (2009) 3726 final.
194 Commission, Guidance Paper, note 146 above, paras 2, 3 7.
195 Monti, note 168 above, p 1 (describing the MEA as a shift from ‘a legalistic based approach to an interpretation of the rules based on sound economic principles’ leading to an antitrust policy ‘fully compatible with economic learning’).
196 Monti, G, ‘The Concept of Dominance in Article 82’ (2006) 9 European Competition Journal 32Google Scholar.
197 Ehlermann, C, ‘The Modernization of EC Antitrust Policy: A Legal and Cultural Revolution’ (2000) 37 Common Market Law Review 546CrossRefGoogle Scholar.
198 L Garzaniti, et al, ‘Dawn of a New Era? Powers of Investigation and Enforcement Under Regulation 1/2003’ (2004) 72 Antitrust Law Journal 159, 207.
199 E Fox, ‘Monopolization, Abuse of Dominance, and the Indeterminacy of Economics: The U.S./E.U. Divide’ (2006) Utah Law Review 799; Witt, note 98, p 3.
200 M Monti, ‘A Reformed Competition Policy: Achievements and Challenges for the Future’, Speech at the Center for European Reform (Brussels, 28 October 2004).
201 A Wigger and H Buch-Hanse, ‘Competition, the Global Crisis, and Alternatives to Neoliberal Capitalism: A Critical Engagement with Anarchism’ (2013) 35(4) New Political Science 604; H Buch-Hansen and A Wigger, ‘Revisiting 50 Years of Market-Making: The Neoliberal Transformation of European Competition Policy’ (2010) 17(1) Review of International Political Economy 20.
202 For an insightful analysis of how science is often misunderstood or oversimplified by the legal community in its quest for certainty and objectivity, see Feldman, note 31 above, pp 97–101, 133–38.
203 See for instance, Commissioner Kroes’ SPEECH/05/512 of 15 September 2005 (stating that ‘consumer welfare is now well established as the standard the Commission applies when assessing mergers and infringements of the Treaty rules on cartels and monopolies. Our aim is simple: to protect competition in the market as a means of enhancing consumer welfare and ensuring an efficient allocation of resources’.).
204 It should be noted that a supporter of total or consumer welfare or any other standard could fall within either the AL or the RL category. The classification would depend on how she understands and argues in favour of the specific standard. For example, an AL-minded advocate of consumer welfare would propose that this standard is value-neutral, or implementable without value judgments. An RL-minded advocate of consumer welfare would accept that this standard is simply a candidate among others equally permissible ones, accept competition law's open-texture, propose a particular conception of its purpose, and argue that it leads to a better interpretive theory than its rivals. Hence, there is no necessary connection between such standards and the two conceptual models articulated here.
205 K Raworth, Doughnut Economics (Random House Business Books, 2016), pp 31–40.
206 Ibid, pp 43–53.
207 See for instance, European Commission's, New Circular Economy Action Plan, https://ec.europa.eu/environment/circular-economy; Europe's Green Deal, https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en.
208 For instance, the notion of competition as an output-maximisation device presupposes a growth mindset and might be refined or change if another goal is identified as the purpose of the economy.
209 E Deutscher, Of Masters, Slaves, Behemoths and Bees – The Rise and Fall of the Link between Competition, Competition Law and Democracy (on file with the author).
210 Monti, G, ‘Four Options for a Greener Competition Law’ (2020) 11(3–4) Journal of European Competition Law & Practice 124CrossRefGoogle Scholar.
211 Lianos, note 34 above, pp 177–97.
212 A Ezrachi and M Stucke, Competition Overdose (Harper Business, 2020), pp 506–81.
213 Endicott, T, ‘Law Is Necessarily Vague’ (2001) 7(4) Legal Theory 379CrossRefGoogle Scholar (arguing that vagueness is both an important and an unavoidable feature of law because: (1) precision is not always desirable; (2) law is systemic, and therefore enactments formulated in precise language may not lead to precise laws; and (3) law must perform functions that can only be performed by means of vague standards).
214 P A Hall and D Soskice, Varieties of Capitalism (Oxford University Press, 2001), pp 3–21.
215 Joseph A. Schumpeter, Capitalism, Socialism and Democracy (Harper and Brothers 1942), pp 82–83.
216 G Sartor and H Prakken (eds), Logical Methods of Legal Argumentation (Springer, 1997), pp 43–118, 119–40; R Alexy, A Theory of Legal Argumentation (Oxford University Press, 1989), pp 211–86.
217 See also, Feldman, note 31 above, pp 139–58 (showing how modern views of science have passed largely unnoticed in law and how ‘our failure to understand the limitations of science creates distortions in the legal system’).
218 Kuhn, note 84 above, pp 107–15, 320–29.
219 For a distinction between moral and scientific objectivity, see J Reiss and J Sprenger, ‘Scientific Objectivity’ (2020) The Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/archives/win2020/entries/scientific-objectivity.
220 L Alexander & E Sherwin, Demystifying Legal Reasoning (Cambridge University Press, 2008), pp 9–30; N Stavropoulos, Objectivity in Law (Clarendon Press, 1996), pp 125–64.
