The Shaping of EU Competition Law, Pablo IBÁÑEZ COLOMO

Pablo Ibáñez Colomo

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.

This book offers an original, scrupulously elaborated, nuanced and thought-provoking institutional theory of EU competition law. The main hypothesis of the book derives from US institutionalist scholars, examining how the architecture of US antitrust procedural rules influences its substantive aspects. Obviously the EU, being a fairly unique polity and having a quite specific institutional design, also offers a fruitful soil for the institutionalist theory, and Colomo asks this question explicitly. The main value of the book, however, is not in a meticulous extrapolation of the methodology from the US to EU context, but in the way in which this extrapolation is done.

Essentially, the book offers a new perspective on the evolution and functioning of EU substantive competition rules, combining thorough analysis of landmark cases with an original institutional method. The emphasis is made not on the impact the substantive rules have on institutions, but conversely, on whether, and how, the institutional design shapes the law. The author discusses in this respect some quite obvious instances of Commission’s discretion in selecting cases, its expert status and (de facto) exclusive competences qua the guarantee of consistency, and its wide enforcement, investigation and decision-making competences as a potential threat to the rule of law. He argues though that such an almost stereotypic view requires deeper, more conceptual study, and offers an analytical framework for it. Also the author disentangles concerns about due process in competition proceedings from a reductionist ECHR-compatibility test, developing a much more nuanced, competition-focused, institutionalist dimension of the issue.

One of the main objectives of the book is to analyse “how the Commission interprets and enforces EU competition law provisions (…) [asking inter alia] whether the Commission shapes provisions broadly or narrowly, and how it engages with the case law and with mainstream economic theory.” It also looks at how EU courts react to these Commission choices. The author explicitly distances himself from a broader policy discussion, focusing exclusively on the juristic aspects of the problem; he offers a scrupulous positive and not an ideological normative analysis. Finally, for the same reason, the book does not address factual and procedural aspects of the cases, focusing on substantive analysis.

A very important and very ambitious goal of the book is in offering a “comprehensive approach” to the case study. The author observes and fiercely criticises a popular trend of eclectically choosing a handful of cases in support of some normative or positive position. Such academic opportunism is misleading as the real value of EU antitrust jurisprudence cannot be explicated without a systematic study of cases on the relationship between them —this endeavour being precisely what the author denominates a “comprehensive approach,” fed by the author’s encyclopaedic knowledge of competition case law and unique database on the activity of the Commission and the EU courts, as well as related statistical information. The entirety of Part II—the biggest part of the book—is dedicated to the analysis of this empirical data; with Part I addressing the theory and Part III the implications.

The book offers an alternative outlook on the evolution and the main principles of the functioning of EU competition law, developing its own terminology and taxonomy. It is a very thoughtful and fruitful reading for those interested in theoretical studies on the doctrinal development of EU competition law. It will be of particular interest to those with advanced knowledge of EU competition case law; it assumes at least some minimum a priori background understanding of landmark cases. The book is dense and very thoroughly elaborated. It is hard to imagine how the reader could benefit by reading randomly only selective chapters—it requires a holistic, cross-referential studying. It can be highly recommended to those who can allocate a couple of evenings for diligent, discursive, uninterrupted reading.

Colomo belongs to the rare cohort of competition thinkers who can be labelled “competition law polymaths.” His academic background is an example of successful symbiosis of the doctrinal, case-law focused school of the College of Europe with the more peripatetic, discursive thinking of the European University Institute. The book is a harmonious combination of both.

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Author

  • University of Strathclyde (Glasgow)

Quotation

Oles Andriychuk, The Shaping of EU Competition Law, Pablo IBÁÑEZ COLOMO, September 2019, Concurrences Review N° 3-2019, Art. N° 91255, pp. 274-275

Publisher Cambridge University Press

Date 1 July 2018

Number of pages 384

Visites 142

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