Fairness in EU Competition Policy: Significance and Implications. An Inquiry into the Soul and Spirit of Competition Enforcement in Europe, Damien GERARD, Assimakis KOMNINOS et Denis WAELBROECK (dir.)

Damien Gerard, Assimakis Komninos et Denis Waelbroeck

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article.

The present book, edited by Damien Gerard, Assimakis Komninos and Denis Waelbroeck, is a collection of the contributions made for the Global Competition Law Center (GCLC) of the College of Europe 13th conference that took place on 25-26 January 2018 in Brussels. The conference had gathered renown academics, practitioners, public officials and judges to reflect on the significance and implications of "fairness" in all the aspects of the EU competition law and policy, especially in light of the frequent and ambiguous use of "fairness" in the speeches of many competition authorities’ officials, notably Margrethe Vestager.

The book is comprised of nine contributions, including a foreword by one of the editors, Damien Gerard. The contributions vary considerably in terms of methodology, perspective, scope and length.

Damien Gerard (director of the GCLC and visiting professor at College of Europe and UCLouvain) in the foreword introduces the book by explaining the background of the subject matter, the reasons why the fairness objective has recently become of relevance, and what are the recurring themes that may help comprehend "fairness" in EU competition policy.

Margrethe Vestager in the second contribution, "Fairness and Competition," explains the role of "fairness" in competition law analysis by the European Commission, and how "fairness" can be mainly achieved by enforcing the EU competition rules. She then gives illustrations of the recent important cases, such as Qualcomm and Intel.

The third contribution, "Fairness in Competition Law and Policy," by Juliane Kokott and Daniel Dittert (respectively advocate general and head of unit at the Court of Justice of the European Union), identifies "fairness" as a concept to guarantee equal treatment and equal opportunities for all. Consequently, the authors examine how this concept can ensure an effective EU competition policy, whether as a concept to be abided by competition authorities and courts (procedural fairness) or by undertakings (enforcement against anticompetitive practices).

Based on their previous article published in ConcurrencesMaurits Dolmans and Wanjie Lin (respectively partner and associate at Cleary Gottlieb Steen & Hamilton LLP) in the fourth contribution, "How to Avoid a Fairness Paradox in Competition Policy," discusses if "fairness" can only be used as a general goal to justify competition rules, or can it be also used concretely in the substantive analysis of competition rules. To answer this question, the authors analyze first the meaning of the fairness concept, and then they examine the relationship between "fairness" and competition law; as a general objective, as a criterion to assess an infringement, as a tool to craft remedies, and as a concept for designing and deciding on enforcement tools.

Thomas Lübbig (Freshfields Bruckhaus Deringer, Berlin/Vienna) in the fifth contribution, "’Fairness’ in Competition Law: Nothing More Than a Feel-Good Epithet? makes a thorough, albeit relatively brief, analogy of the terminology and etymology of "fairness" with the similar concepts in the German Law in order to see if fairness can be used in the substantive analysis of competition rules as a legal test.

The sixth contribution, by Jules Stuyck (emeritus professor at UCLouvain and senior counsel at Crowell & Moring LLP), titled "Unfair Commercial Practices and Fair Competition," is drawing on the conclusion reached by Maurits Dolmans and Wanjie Lin in their article mentioned above, by examining other related areas of law, such as unfair competition, unfair commercial practices and unfair trading practices, to check if "fairness" has truly a place in competition law, especially pertaining to abuse of dominance and collusion.

In the seventh contribution, "Regulating E-Commerce through Competition Rules: A Fairness Agenda," Helen Jenkins and Aline Blankertz (respectively managing partner and senior consultant at Oxera) explore how the fairness notion is applied in e-commerce markets and how they are linked to competition rules.

In the eighth contribution, "’Fairness’ in Article 102 TFEU," Pinar Akman (Professor of Law, University of Leeds) is examining how the fairness objective can be applied in the context of Article 102, and this by exploring the notion of fairness according to the Ordoliberalism school, by analyzing the decisional practice of the European Commission and the EU courts, and by exploring fairness in other areas of law.

Finally, the book is concluded by the ninth contribution, "Administrability of Fairness Standards by Courts" by Marc van der Woude (president, General Court of the European Union). Judge van der Woude examines how "fairness" plays a role in the General Court’s judicial activity, whether implicitly or explicitly, and how it is embodied in other legal principles, notably the principles of sound administration and the exercise of the General Court’s unlimited jurisdiction.

Although the contributions in the present book diverge significantly in terms of perspective and methodology, they seem to truly shed a light, collectively, on the significance and implications of "fairness" in EU competition policy in all its facets to provide some legal certainty, and they all share, more or less, the same conclusions and findings; "fairness" has definitely a significant role in EU competition policy as a general guiding objective, but unless stated explicitly as part of a legal test or principle, "fairness" is not taken into account concretely in the substantive analysis of the different aspects of competition rules.