ARTICLE : FAIRNESS - CONSUMER WELFARE - COMPETITION ON THE MERITS - EFFECT ON COMPETITION - PROPORTIONALITY - USEFUL EFFECT - DUE PROCESS

Fairness and competition law: A fairness paradox

“Fairness” in EU competition law is hotly debated. This article explores the concept from a sociological, philosophical, and legal perspective, and suggests there is a fairness paradox: while competition law should reflect the values of fairness, if fairness were actually employed in substantive decision-making as a goal and criterion, that would lead to unequal and inefficient results. This paradox is resolved by engaging in objective and rigorous analysis applying established concepts of competition law and economics: (a) “consumer welfare” and efficient allocation of resources as key goals of competition law, (b) “competition on the merits” and “effect on competition” as the core criteria for a finding of infringement, (c) proportionality and “useful effect” as a benchmark for remedies, and (d) due process and the rule of law as the hallmarks of the proper procedure for the application of competition law.

I. Introduction 1. Recent speeches by antitrust enforcers put “fairness” at the heart of competition policy. Former US Assistant Attorney General for Antitrust Renata Hesse referred to “promot[ing] the interests of the public over the power of the few” and “the ultimate goal of antitrust, economic fairness.” [1] European Commissioner for Competition Vestager (who as the FT notes once campaigned under the charmingly anti-populist slogan: “Listen to the economists. That’s what we do” [2]) defined her task as competition commissioner as to promote “fair competition.” [3] This is echoed in the European Commission’s most recent Competition Policy Annual Report, which sets out its intention to “make markets work more fairly for everyone” and “spread the benefits of fair competition in Europe and

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.

 

PDF Version

Authors

  • Cleary Gottlieb Steen & Hamilton (London)
  • Cleary Gottlieb Steen & Hamilton (London)

Quotation

Maurits Dolmans, Wanjie Lin, Fairness and competition law: A fairness paradox, November 2017, Concurrences Review N° 4-2017, Art. N° 85118, www.concurrences.com

Visites 309

All reviews