Droit de la concurrence (ed. 2), Marie-Anne FRISON-ROCHE et Jean-Christophe RODA

Marie-Anne Frison-Roche et Jean-Christophe Roda

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.

Since Fontaine’s book, we know a little more about the qualities that must be met to be qualified as a "great" jurist. The latter, she said, must be literate and cultured, have a social and critical thought (L. Fontaine, Qu’ est-ce qu’un "grand" juriste? Essai sur les juristes et la pensée juridique contemporaine, LGDJ, 2012). But what then is a great work? Undoubtedly a book written by great jurists! It is this book that we had the pleasure of reading and that we wish to briefly present. Let’s say it right away, "Frison-Roche/Roda" will be a landmark and has already entered the category of reference works.

The task was however immense. Needless to say, there are many works on competition law and almost all of them have contributed, more or less, to enriching the subject? This means that the challenge was great and that only great jurists could offer a renewed, original and accessible reading of the subject. Let’s repeat it again: competition law is a specialist’s law, an eminently technical law. It is reserved for experienced experts and participates in the movement of hyperspecialization denounced by the best legal scholars, such as Jean-Denis Bredin, who judged that "specialization produces the technician, that the technician produces specialization, and that one helping the other, the doctrine (...) is transformed and inevitably degraded". He added that "Law quickly runs out of steam if it does not meet with philosophy, sociology, history and economics" (J.-D. Bredin, Remarks on the doctrine, in Mélanges offerts à Pierre Hébraud, Université des sciences sociales de Toulouse, 1981, p. 115). With this Droit de la concurrence published by Dalloz, these criticisms cannot be directed at the authors. Faced with degradation, they respond with elevation; to breathlessness, they oppose the wonders of history, economics and philosophy. The "Frison-Roche/Roda" breathes thespirit of competition law and transcribes its letter.

The spirit

Strictly speaking, there are no chapters dedicated to the "spirit" of competition law. But the informed reader will quickly observe that this spirit marks out many pages of the book and that it irrigates it from beginning to end. What is it? For the authors, competition law is nourished by the sap of both freedom and fairness.

First of all, freedom. This freedom would be nothing other than the Ariadne’s thread of the matter, its base. It is even a principle, a cardinal principle if ever there was one, because "competition can only flourish when there is a free market, where firms can compete without hindrance from States or powerful operators, who would seek to limit the capacity to innovate or to distort the prices charged by these players" (p. 40). This is not to say that competition law promotes absolute freedom. This freedom must be and is regulated. A market economy cannot function without a freedom limited by legitimately instituted powers, in this case the competition authorities and the judges. Without control of this freedom, the market economy would turn into a "mafia economy" (p. 40), a powerful expression used by the authors. The question is how to control this freedom. The answer is not obvious when one delves into economics. Indeed, if too much freedom can lead to excessive market concentration, a too narrow conception of the latter could deprive consumers of important gains. This is a well-known conflict between the Harvard School and the Chicago School of economics. In any case, according to the authors, monopoly should not be overly feared. For if the freedom granted to firms leads to a monopolistic situation, this does not necessarily mean that this freedom has been misused. The authors remind us of this very well. Let us read them to better understand the idea: "[S]’there are no barriers to entry, which is the hallmark of liberalism, so even a monopolistic market is potentially competitive and monopoly prices will be temporary" (p. 42). Thus, the identification of a "contestable" market is sufficient to avoid accusing a firm of abusing the freedom granted by the legal system. The fact remains that markets are fragile, even erratic, so that it is sometimes necessary to anticipate ex ante the abuse of freedom. To convince oneself of this, the developments on the role of States and national champions will, for example, be very enlightening for the reader. Obviously, the media coverage of the European Commission’s Alstom/Siemens prohibition decision, which was vigorously contested by many European Union states, is echoed here (Comm. eur., February 6, 2019, Alstom/Siemens, aff. M.8677).

On the subject of freedom again, the authors explain its function remarkably well. In competition law, it is used in particular to increase consumer welfare, a "multifaceted concept" (p. 55). Readers wishing to find an exhaustive explanation of this vague (catch-all?) concept will be generously served and will certainly appreciate the critical approach that has crept in under the authors’ pen. The authors do not shirk their responsibilities and fully assume very strong and committed doctrinal positions, particularly when they deal with the replacement of this criterion of consumer welfare (pp. 59 et seq.). As for the layman, he will know that this freedom is expressed in a singular place: the market. The pages devoted to the market show a rare and stimulating pedagogy (pp. 77 et seq.). They shed light on the subject, where elsewhere it is sometimes unclear. It must be said that the two authors had already brilliantly set out their thoughts on the subject (M.-A. Frison-Roche, Le modèle du marché, Archives de philosophie du droit 1995, no 40, pp. 286-313; J.-C. Roda, Le marché, in Le droit économique au xxie siècle : notions et enjeux, J.-B. Racine (ed.), LGDJ, 2020, pp. 493-512).

Secondly, loyalty. If the principle of freedom governs competition law, loyalty must accompany it faithfully. It is well known that for some years now, a debate has been taking place on this subject with regard to the "great competition law" (see in particular M. Vestager, Fairness and Competition, in Fairness in EU Competition Policy: Significance and Implications). M. Vestager, Fairness and Competition, in Fairness in EU Competition Policy: Significance and Implications - An Inquiry into the Soul and Spirit of Competition Enforcement in Europe, D. Gerard, A. Komninos and D. Waelbroeck (eds.), Bruylant, 2020, p. 15). The question is whether loyalty should be more openly welcomed in antitrust cases. This question does not arise for "small competition law", which fully assumes its role in the repression of unfair behaviour. As the authors point out, the notion of loyalty plays a "central role" (p. 713 et seq.). They go on to explain that "the original idea of loyalty shows the search for a certain moralization of business practice, which we would rather call business ethics today"(ibid.). It is important to understand that competition law is not only concerned with the market; its mission is also to discipline companies by protecting certain social values.

At this stage of our discussion, we can already see one of the great merits of the book: it covers the various branches of competition law. Far from limiting themselves to market law, the authors have gone further by not excluding the all-powerful laws of unfair competition and restrictive competition practices. Where some had stopped at the spirit of the great competition law, Professors Frison-Roche and Roda have pushed their boldness further by taking a more sinuous and thorny path, which allows them to lead readers to the top of the competition mountain! It is to say that the latter will not be disappointed by the proposed view. It is also to say that the authors have neither underestimated nor neglected the fundamental movement currently traversing the matter. The most recent news gives them reason. Doesn’t it reveal that, in order to discipline the digital behemoths, the small law of competition will perhaps be the solution (see recently T. com. Paris, 15th ch., March 28, 2022, Google Play, RG 2018017655)?

Freedom, loyalty... that’s the spirit. What about the letter?

The letter

To present the letter of competition law, a solid framework was needed. The authors have firmly built it. The two-part plan that has been chosen convinces instantly. In the first part, the authors explain "the law of competitive markets" (first part). The second part deals with "the rebalancing of economic relations" (second part).

First, the law of competitive markets. The reader should be warned from the outset. In this section, there will be no substantial developments on the law of State aid, as the authors consider that this part of competition law is tending to "become autonomous" (p. 1). It is true that a myriad of works deal with this subject and that it is in principle the prerogative of publicists. Nevertheless, the Covid-19 crisis has shown how much this law of State aid has an immense impact on the market, as the Commission’s flexibility in its application has had great effects in saving companies weakened by the confinements, such as companies in the airline sector (see European Commission, Temporary framework for State aid measures to support the economy in the context of the current outbreak of COVID-19, OJEU No. C 91I of 20 March 2020, p. 1. See e.g., for an example of a case in point. Eur. comm. of December 11, 2020, Corsair, aff. SA.468). It will not find more exhaustive developments on competition law procedure, which is a real lack in the literature of competition scholars in general. Apart from a few works on competition investigations, there is not, to our knowledge, a complete study that focuses solely on procedure. But we will not reproach the authors for this, as the subject matter is considerable, not to say gigantic! For the rest, everything is there. The presentation of antitrust law, for example, is luminous, enlightened by long developments on American law, which is the essence of this book. Readers wishing to familiarize themselves with American law or to confront it will learn, in particular, that the rule of reason is not the only singularity in the area of antitrust law; it coexists with the "quick look" rule of reason, which "offers an abbreviated ( ata glance)analytical framework [and] considerably eases the task of plaintiffs" (p. 362). Importantly, we believe that this is the first time that the Digital Markets Act has included a book dedicated to competition law. Does this text really belong to European competition law? Shouldn’t it rather be classified as regulatory law? To these questions, the authors answer that "the law of competitive markets is generally presented as the branch of law concerned with economic activities in general, and [that] the emergence of rules aimed at a given type of economic activity or actor is rather the prerogative of regulatory law" (p. 565). They add that "the DMAdoesnot present itself as such: it is supposed to guarantee the contestability of markets and to fight against unfair practices, which naturally evokes competition law"(ibid.). In any case, in order not to betray this text, the authors have taken precautions by playing with the delights of the French language. They present it in a single chapter entitled "The construction of a hybrid law: the control of the digital sector", which should not upset the reader who is more inclined to classify it as regulatory law.

Then, the rebalancing of economic relations. This part is also a great success! It took talent to present and criticize rules that are sometimes profoundly abstruse. Chapter 1 on the law of transparency, for example, will be of immense use both to practitioners and to students, who too often have great difficulty understanding the purpose of this chicanery law, which imposes, in particular, the drafting of a single agreement on certain companies and an extremely fussy contractual formalism. Readers will also enjoy reading the passages on unfair competition law. For us, this is one of the best works, if not the best on the subject, as it brings order to a theoretical mess that has lasted too long. The doctrinal hesitations are exposed and the answers given by the authors are of a precious sagacity (p. 733). After having read the pages devoted to the subject, it will no longer be possible to confuse unlawful competition and parasitic competition, or to fail to make a correct distinction between the action for unfair competition and the action for infringement (p. 729 et seq.)...

Before concluding our remarks, let us point out that the book ends with a very complete index that will allow readers to navigate very easily through the chapters of the book. The scientific apparatus is impressive and the footnotes contain many references to the English literature. Finally, it should be noted that the book is intended for both specialists and laymen wishing to discover the subject.

In conclusion, this Competition Law "second version", proposed by Professors Frison-Roche and Roda, is much more than a précis. Like a treatise, the authors have ordered, placed and systematized solutions in a historical, philosophical, economic and critical perspective. We can only be grateful to the authors for having made this "Frison-Roche/Roda" a true doctrinal work. When great jurists take up their pen, we are never disappointed...