La concurrence. Une idée toujours neuve en Europe et en France.

Olivier Fréget

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This is a most stimulating essay, in the sense that we would like it to have "the property of stimulating (...) in a manifest way the organic action of the various systems of the economy" (Le Grand Littré, 1994, volume 6, p. 6055). Indeed, Olivier Fréget has taken up a challenge that is worthy of him: to make his readers (whom we hope will be as many as possible) adhere to the thesis that "respect for competition on the basis of merit, free and undistorted, subject to the law, is part of a genuine democratic ambition" (see p. 7). To this end, the author will develop a flamboyant plea for, as it were, rehabilitating competition, this "misunderstood social construction" (see p. 13). The demonstration is in three parts.

In the first part of the book, Maître Fréget places competition in its quasi-philosophical context, insisting on its social and non-economic purpose, in the sense that it is synonymous with openness, because it is resistant to borders and to what the author calls the "new enclosures" (see p. 38), and also synonymous with the fight against inequality of opportunity. As such, competition could only be the mark of European identity, drawing on the ideological sources of the doctrine, particularly German, of ordo-liberalism advocating the rejection of authoritarian planism, economic freedom and the regulatory state. And the author presents us, not without a touch of nostalgia, the European Coal and Steel Community (ECSC), of the 1951 Treaty of Paris, as the European "epiphany" of this ordo-liberalism (see p. 65).

In this spirit, competition law will gradually be built up as a "guarantee of an open society". This is the second stage of the reasoning, corresponding to the second part of the book, where Olivier Fréget is perhaps the most didactic and pedagogical to explain to the neophyte and citizen reader that competition law is above all "a law of civility, sobriety and simplicity" (see p. 87) which has five main objectives: to ensure the independence of economic actors (see p. 87), to ensure the independence of the economic actors (see p. 87), to ensure the independence of the economic actors (see p. 87), to ensure the independence of the economic actors (see p. 87), to ensure the independence of the economic actors (see p. 87), to ensure the independence of the economic actors (see p. 87) and to ensure the independence of the economic actors (see p. 87). Chapter 4, dealing with Article 101 TFEU and cartels); disciplining constituted powers (see Chapter 5, dealing with Article 102 TFEU and abuses of a dominant position); preventing the destructuring of markets (see Chapter 6, dealing with merger control); fighting against privileges constituted as special and exclusive rights (see Chapter 7) and against addictions to public money (see Chapter 8 on the control of State aid under Article 107 TFEU). This overview of the European competition rules is completed by a chapter (the 9th) dedicated to the institution that enforces and respects them: the Commission, towards which the author is much more critical, at least with regard to the developments it has undergone. Olivier Fréget thus regrets the time of a Commission that conceived itself and acted as a missionary administration. He deplores, not without foundation in our opinion, the turn towards "régulocracy" (see p. 235), which dates back to Regulation 4064/89/EC establishing merger control, which will lead to a double phenomenon: on the one hand, the avoidance of the judge (it is the rise of the technique of commitments, which will gradually irrigate the whole field of competition) and, on the other hand, the advent of "economism". The burden is sometimes severe, but it rings true: with regard to the first trend, "[]reducing competition law to an optimisation of the consumer surplus amounts to reducing it to the level of an economic policy, and moreover, of a potentially interventionist economic policy" (see p. 254); with regard to the second trend: "A ’second-class’ right thus develops through the body of these decisions which the judge will never see or which he will see too quickly, because he has fewer material means at his disposal for analysing the decision than the Authority which he controls" (see p. 259).

The critical fold having been taken, the author will not leave it any more to expose the third stage of his demonstration: "free and undistorted competition as a horizon" (see part III). It is the time for proposals, not without having first scratched the French perception of competition and European construction in passing: it is that "the French see Europe as a cartel" (see p. 266). In a way, it would be a question of putting Europe-power at the service of the greatness of France, which can only give rise to incomprehension and misunderstandings. The question of the application of competition law to public services or the question of a social Europe without a labour market are presented in this respect as characteristic examples of this biased perception of a "French-style" Europe which would for the moment resemble a "resentful Republic" (see p. 291).

This brings us to the means of "restoring the effectiveness of the principle of competition" (see Chapter 11). Without going into the details of all the measures or reforms proposed, the following are, in our view, the most striking: the abolition of the compulsory notification of all concentrations above a certain threshold, while retaining the possibility for the Commission and the competition authorities to take cognizance of any transaction of which they are aware, in particular upon complaint by a third party (see Chapter 11). p. 309); "bilateralising Articles 106 and 107 TFEU in order to subject all undertakings operating in the Union to the same rules" (but we had understood that this was precisely the purpose of Article 106 TFEU) and "hindering the action of those which, benefiting from unlimited support from their home States, behave like predators in the single market" (v. p. 313; but does this not flout the rules of international trade, which are also supposed to be based on the principle of free competition, unless it is a denial of confidence in their ability to bring such a principle to life on a global scale); entrust a panel of magistrates independent of the investigating authorities and the Commissioner responsible for competition with the task of examining draft Commission decisions and proposals for the rejection of complaints (see p. 318). Finally, we will plunge into the conclusion of the book to find another proposal, just as remarkable in our opinion: the creation of a "Single Authority for Rare and Essential Resources" (AURREE) whose purpose would be to seek maximum competition in sectors such as network industries (communications, water, energy, media, transport...) "through neutrality of rules so that the considerable financial resources which seek only to place themselves on long-term projects choose the European Union as their preferred land" (see p. 332).

While the point may appear in the concluding chapter to be more diffuse, it returns at the same time to the essential: "the principle of free and undistorted competition is opposed to any institutionalization of a perennial economic power, whether individual or collective" and thus contributes to "keeping Leviathan and the capitalist at a distance" (see p. 323). If the reader were to convince himself of this by closing Olivier Fréget’s essay, it seems to us that the latter will have done a salutary work by putting competition in its rightful place: "neither god nor devil" (to use the expression of Professor François Lévêque on his blog: www.theconservation.com).

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Author

  • University of Paris I Panthéon-Sorbonne (Paris)

Quotation

Stéphane Rodrigues, La concurrence. Une idée toujours neuve en Europe et en France., February 2016, Concurrences N° 1-2016, Art. N° 77968, pp. 261-262

Publisher Editions Odile Jacob

Date 7 October 2015

Number of pages 352

Visites 858

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