BOOKS: ANDRIYCHUK Oles, Edward Elgar, 2017, 341 p.

The Normative Foundations of European Competition Law. Assessing the Goals of Antitrust through the Lens of Legal Philosophy, Oles ANDRIYCHUK

Oles Andriychuk

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 stephane.rodrigues-domingues@univ-paris1.fr for review in this section.

Oles Andriychuk, Professor at the University of Stirling (United Kingdom) explores in this book the question of the autonomy of the phenomenon of competition. It is well-known that various theories on competition and its role, among others the schools of Harvard and Chicago, Ordoliberalism or the Austrian School, have competed for years, and still constitute the doctrinal foundations of competition law in the United States and European Union. This book analyzes these old conflicts from a renewed point of view. The main argument of the book is that the economic competition should be considered as an autonomous goal, and not systematically subordinated to efficiency or other economic values. Each chapter of the book develops one or two supportive claims in order to investigate this major argument.

The introductory chapter presents the structure of the book, and the methodology adopted. It reminds us that competition law has originally been applied principally by lawyers. However, nowadays it is predominantly perceived as a field of economics. This transformation is known as the more economic approach, which permitted deeper research into the behavior of market actors. Consumer welfare became the normative purpose of European competition law. Without denying the necessity of economic analysis, the book opportunely provides a critical account of the European competition law discourse, translating it from the language of economics into the language of law. The aim is to enrich the contemporary approach of competition with new insights from law, legal theory, sociology of law and legal philosophy. Competition law is studied from three perspectives: internal (the very phenomenon of competition), formal (the law), and external (the politics). The author observes that a pivotal doctrinal discrepancy concerns the role of the competitive process in the economic life. He identifies two rival antitrust approaches: the “pragmatic” (or “utilitarian”) schools, and the “deontological” schools (also known as the axiomatic human rights-based approach). Indeed, the competitive process represents a means for the utilitarian schools, while it constitutes an end for the deontologists. The book exposes the main arguments, and underlines the differences between—and not within—these approaches.

The second chapter offers a historical overview of the different theories about the phenomenon of competition. In an interesting way, it highlights that the roots of the ideas of competition descend from the Ancient Greek and Roman thought, then retraces the evolution of these ideas during the medieval period. The historical panorama continues explaining the role of competition in the classical economic theories. Finally, these developments show that economic competition is not a purely utilitarian concept. Moreover, Oles Andriychuk argues that perfect competition is not necessarily the most efficient model to increase consumer welfare or growth. According to the author, mainstream economic theories tend to under-appreciate the autonomy and the normativity of the competitive process, because of a linguistic confusion between the concepts of competitive process and perfect competition. To conclude, the constitutional importance of competition lies mainly in its ethical value. This statement introduces a constitutional theory of competition, characterized by its deontological dimension.

The third chapter, more descriptive than analytical, explores in detail the historical evolution and the conceptual foundations of competition law in the United States and European Union. It compares various schools of competition policy, with particular emphasis on Ordoliberalism, and confronts American and European visions of competition policy. It concludes that legal realism still represents the predominant analytical discourse of antitrust, with a strong influence of economic analysis. Nevertheless, according to the author, legal certainty as a value could compete with economic efficiency.

The fourth chapter analyzes the phenomenon of competition from a philosophical angle, and describes the normative role of competition in liberal democracy. It compares the economic aspect and the political and cultural dimensions of competition. In this regard, psychological perspective is creatively exploited. This comparison reveals that economic competition remains completely subordinate to efficiency, in the sense that it must provide positive outcomes for consumers, innovation or growth, thus is not considered as an end in itself. Nevertheless, for the author, competition represents the very essence of liberal democracy. Indeed, he makes a connection between economic competition and the notions of elections, free speech and pluralism, because political parties, opinions and ideas compete with each other, just as companies do. Therefore, the phenomenon of competition is unavoidable in our contemporary pluralistic societies. As a consequence, the role of competition policy should be competition generating, and not welfare generating. This statement provides the basis for the normative proposal of the book.

The next chapter develops a theory of balancing. If the author puts competition at the top of the economic, political and cultural values of liberal democracy, he admits that competitive process is not isolated among regulatory values. In pluralistic societies, an increasing variety of interests has been recognized at the constitutional level. Therefore, Oles Andriychuk tends to provide operational mechanisms which allow their coexistence. This chapter explores various theoretical approaches to resolve the conflicts of societal values, and applies these solutions to the value of competition.

The sixth chapter focuses on legal theory issues relevant to antitrust law. It analyzes the balancing act in constitutional jurisprudence, with a particular attention to the interactions between law and morality. It provides examples where competition policy, more specifically antitrust law, should benefit from a comprehensive domain of legal theory, not reduced to the economic aspect. The goal of this chapter is to connect two disciplines, the theory of law and the economic theory of competition policy: it argues that legal theory should not be ignored in studying the concept of economic competition. Moreover, it tends to demonstrate the significance of the competitive process for the law itself. In conclusion, competition law represents a good framework for interdisciplinarity.

The conclusive chapter introduces a legislative proposal to strengthen the normative value of competition. Moreover, it provides a summative representation of the proposed theory of dialectical competition, and explains how this theory could be applied in European antitrust practice.

The book is accompanied by a rich bibliography, which will be of interest to scholars, and by a useful and very detailed index. Finally, Oles Andriychuk gives us in his book an overview of competition which goes far beyond the economic analysis and the efficiency-oriented aims. This rigorous research constitutes the basis for a convincing normative proposal. In that regard, it allows the reader to surpass the most common vision of competition, and offers stimulating issues to think about. This book will be of interest to scholars, as well as practitioners, judges and politicians faced with decisions about competition.

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Author

  • Université de Strasbourg

Quotation

Julie Rondu, The Normative Foundations of European Competition Law. Assessing the Goals of Antitrust through the Lens of Legal Philosophy, Oles ANDRIYCHUK, May 2018, Concurrences Review N° 2-2018, Art. N° 86634, pp. 241-242

Publisher Edward Elgar Publishing

Date 1 August 2017

Number of pages 341

Visites 32

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