FOREWORD: ANTITRUST POLICY - NEW ENTRANTS - CONSUMER WELFARE - AS EFFICIENT COMPETITOR

Should antitrust policy protect new entrants?

The question if antitrust policy should protect new entrants is related to the schism between “protection of competition” and “protection of competitors” in Article 102 TFEU. As it was not always clear that the aim of Article 102 TFEU was consumer welfare, the US claimed that the EU was not protecting consumer welfare through competition, but competitors. The Commission therefore developed the “as efficient competitor” test (“AEC”) – the right test to achieve the protection of consumer welfare through protection of competition. Today the question is whether the case law, supporting the AEC test, can be reconciled with the Commission’s desire to protect less efficient competitors.

I am delighted with this invitation to contribute a foreword to the Concurrences Review on Entrepreneurship: Should antitrust policy protect new entrants? Being asked to write about whether competition law should protect new entrants brings me back to the schism between “protection of competition” and “protection of competitors” in Article 102 TFEU. It is hard to think of a competition law problem that has been debated as much as this. Just think about the many long-lasting (and painful) discussions of that very issue during the modernisation review of Article 102 TFEU (then Article 82 EC). The review was initiated in June 2003 (at the 8th annual conference of the European University Institute in Fiesole) by Mario Monti, then the competition commissioner, and finished with the

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  • British Institute of International and Comparative Law

Quotation

Liza Lovdahl Gormsen, Should antitrust policy protect new entrants?, November 2017, Concurrences Review N° 4-2017, Art. N° 84983, www.concurrences.com

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