Reconciling efficiency and equity. A global challenge for competition policy, Damien GERARD and Ioannis LIANOS (dir.)

Damien Gerard, Ioannis Lianos

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 book is the output from a symposium co-organised by the Global Competition Law Centre at the College of Europe and the Centre for Law, Economics and Society at University College London celebrating and engaging with the work of distinguished competition law and policy scholar Professor Eleanor M. Fox. The editors of this appealing volume have gathered views from a diverse cohort of outstanding academics, practitioners and policy-makers. The papers are written from various methodological and substantive perspectives and reflect on the never-fading topic of the intellectual foundations of the phenomenon of economic competition and its regulation. The overarching perspective through which the issue is being addressed constitutes the core of the philosophical origins of competition policy, rooted within the dialectical modality of the relationship between (economic) efficiency and (societal) equity.

The volume consists of 22 substantive contributions, varying significantly in terms of the normative/ideological premises of the authors, their methodological approaches and disciplinary affiliation as well as length and depth. It begins with an insightful introduction by the editors that maps the history and evolution of the relationship between efficiency and equity in antitrust, explains the rationale of the book and outlines its main themes; the preface by the CJEU Judge Ian Forrester and ends with an afterword by Eleanor Fox. Several papers are offered in the form of concise summaries of the key ideas and messages, but most are sufficiently lengthy and detailed to articulate well-elaborated and nuanced arguments.

In the book the reader will find some appealing thoughts and arguments in support of a self-centred, autonomous perception of competition policy, insulated from social, macroeconomic, political and ideological contexts but mainly it offers contributions developing the theses defending a more integrated, societal, proactive vision of competition, embedded in broader economic and social agendas. Perhaps the most obvious common denominator of the book is the authors’ consensus about the complexity of the central paradigm of the discussion, the interdependence of various positions and, primarily, a recognition of the outstanding scholarship of Eleanor M. Fox.

Part I directly addresses the intellectual contribution of Eleanor M. Fox to global antitrust scholarship and advocacy. It features two short essays—the first by Diane P. Wood and the second by Philip Marsden and Spencer Weber Waller.

Part II-A “Competition for the People” opens with a contribution by Ioannis Lianos, “The Poverty of Competition Law: The Short Story,” in which he provides a re-conceptualisation of the relationship between competition and inequality/poverty/developing economies. He deconstructs the most intuitive, “classical” narrative, which suggests that those broader societal issues should be addressed and factored in by other, compensatory, mechanisms of distributive justice and that the purity of competition analysis would be affected and blurred if complemented with those extra-antitrust specific equity considerations. The discussion is focused on three central issues: commensurability or economic calculus; the inappropriateness of the antitrust toolkit and the antagonistic, zero-sum nature of the equality vs. efficiency paradigm. He offers a number of detailed, sophisticated insights aiming to remedy the problem. They are much more nuanced and appealing than those developed by more aggressive, radical, populist theories, which also address a similar set of issues, but mainly from outside the antitrust disciplinary specialism. Despite being among the first of those who developed sceptical arguments about the emerging dominance of the neoclassical interdisciplinary antitrust Esperanto in the early 2000s, Lianos now does not follow this trendy road, acknowledging the importance of consumer welfare as an objective (and to a smaller extent as a metrical benchmark). He looks at the meta-challenge for competition law—market failure and Pareto efficiency—using those as a proxy to argue that distributional elements are at the very core of the antitrust soul. He underpins these observations within a broader theoretical framework developed by one of the most influential political philosophers, John Rawls. He uses this inter alia to engage in the discussion on Schumpeter’s assumption about the cyclical/temporary nature of every monopoly (“the excessive profits will always trigger new entry” argument) as well as the adjacent idea about taxation as a sufficient remedy for inequality.

The second contribution in Part II-A by Michal S. Gal also looks at the fundamental political principles that provide the ultimate justification and legitimacy of competition policy. Her insightful and thought-provoking piece is focused on the social contract as the basis of competition law. Some may contest Gal’s thesis about the nature of the social contract as “a voluntary agreement among individuals” (for the author of this review a more deterministic origin of the concept appears to be more plausible) but it is hard to disagree with her central message that competition law “does not attempt to solve all welfare issues” being rather a part of a governmental toolkit “to meet the goals of the social contract,” which are broader than welfare. The author opens up a very intriguing discussion on the place of competition policy within the context of the broader philosophical discussion on utilitarianism and autonomy, concluding that the role of competition policy should be perceived through the prism of a constellation of other legitimate societal values, noting that the mechanistic reduction of antitrust exclusively to a welfare-generating toolkit is both misleading and harmful. [1]

The next paper by Abel M. Mateus discusses the risks of developing competition policy in conditions similar to crony capitalism, where the real outcomes of the policy imply protection of businesses that cement their success by strong links with political elites. This model contradicts the very idea of competitive process qua entrepreneurial discovery, qua the driving force of innovation and the method of trial and error. The thesis is substantiated by detailed and convincing macroeconomic evidence making it even more appealing and persuasive.

The remaining three papers in this subpart by Pradeep S. Mehta, Mor Bakhoum and Simon Roberts offer country-/region specific insights and analysis of success—and failure—stories about the implementation of the principle of equity into the practice of competition agencies both generally and in relation to some specific sectors of national economies.

Part II-B “Competition against Power” consists of three excellent legal pieces. It begins with a study of a controversial proposal to amend the law regulating unilateral anticompetitive conduct in Australia by Alan Fels. The author addresses the problem from the perspective of political economy, explaining in detail the legal substance and political context of the changes, the principal specificities of the Australian misuse of dominance provisions and focusing on those elements triggering the fiercest discussion and disagreement among the major stakeholders. The study is worth noting in several respects. It will be of particular interest for those not familiar with the specificities of this jurisdiction. It is a succinct but very informative explication of the Australian unilateral conduct law. The author explains peculiarities so as to enable a much more nuanced understanding of the law and the context, clarifying the political preconditions as well as the substantive and procedural provisions. He also reveals the key ideological polarities within which the parameters of the overall discursive matrix are being agreed upon.

The second paper of the subpart by Ariel Ezrachi and Maurice E. Stucke addresses the problem of marker power in the digital age. The authors are known by framing for having framed several criteria and overarching principles of the studies of competition law and the digital economy in the past. This paper focuses mainly on the antitrust problems that are likely to emerge with the increase of popularity of various digital assistants and voice searches, using (again) an appealing (for some “provocative”) futuristic narrative of a digital dystopia. Smart homes are the topic for many real and anecdotal concerns. In the realm of antitrust one of the main issues is that voice search reduces the choice of search results to one. This rapidly growing consumer standard will be another emblematic milestone of the digital revolution, transforming the “winner takes all” formula from a metaphorical trend to the real paradigm.

The last contribution of Part II-B features the paper by Josef Drexl, in which he looks at the relationship between economic efficiency and democracy through the prism of antitrust and regulatory approaches to the media and communications sector. This thought-provoking piece raises a number of important issues related to the role of competition law and policy in “post-truth” politics. The paper articulates the nexus between competition policy and democratic society, a theme with a long pedigree not only in antitrust academia but also in practice, and shows how these links are currently being endangered by various trends and developments in the area of news consumption and media plurality. The role of algorithms in defining consumers’ newsfeeds and the shift of power from publishers to platforms and online intermediaries (concentrated mainly in the hands of the two most successful/dominant market players) is one of the most debated topics in contemporary literature on Internet law and policy. Significant attention has been paid to the problems associated with these tectonic changes in several recent competition reports. Drexl synthesises most of the important arguments in these discussions, contextualising them to the contemporary antitrust and regulatory agenda, critically crosschecking his main observations against the central efficiency-centred argument of the Chicago School and showing how this philosophy is likely to accept most of the current societal turbulences and challenges as economically efficient and as such requiring no or minimal antitrust scrutiny. The paper offers a very informative outline of the literature, which goes well beyond the realm of competition scholarship.

Part II-C “Competition, Inequality and Industrial Policy” consists of two papers. The first, by David Lewis, offers a concise and very insightful series of considerations about the relationship between competition and industrial policy, analysing, among other things, an almost stereotypic juxtaposition of the two, which is often satisfied with the observation of their different pedigree (market-centred competition vs. state-centred industrial policy) and function (higher emphasis on the process vs. greater focus on the outcomes). Lewis notes that these clichés only explain a part of the story. Over the last decades the positions of both areas are gradually getting closer together. On one hand, it has become increasingly obvious that market imperfections and failures are perfectly self-adjustable and self-correctable only in the long run and only in a refined theory with no exogenous factors obscuring the purity of the arguments. In practice market self-correction is often too costly and usually takes too long. On the other hand, many examples (chiefly, but not only, in Asia) convincingly show that state intervention and the steering role of the government in industrial policy are getting harder and harder to portray as another awkward attempt to reincarnate a neo-Soviet centralised planned economy: clumsy and inefficient, self-destroying and stereo-hypocritical. More and more often we realise that “it actually works”—not always, but often—particularly if looking at what Lewis labels “market-friendly industrial policies” (such as infrastructure-oriented strategic priorities of state support; quasi-market competition of companies for state subsidies and measures of international protection and promotion; objective and temporary criteria of support; minimisation of harm for foreign direct investment). The new reality requires new approaches, and no orthodoxy—whether ideological, methodological or disciplinary—is sufficiently elastic and flexible to comprehend, let alone navigate, the new geoeconomic challenges and opportunities. He points out that the new competition policy should focus on facilitating market entries as the key parameter of a successful competitive process and on designing more innovative and proactive methods of pursuing competition law and policy.

The second contribution in the subpart is a paper by D. Daniel Sokol, in which he develops a number of arguments in support of the Chicago School, both in terms of its legacy and its role in current US antitrust law. He elaborates on various advantages of the key methodological premises of the Chicagoans, emphasising in particular the importance of neoclassical economics as the most reliable, objective and neutral toolkit box for describing the positive situation of the market, the real motivation of market players and normative steering for legislators, enforcers and undertakings as such. He contrasts the development of the antitrust law in the US, which is chiefly (or aims to be) compatible with these criteria, with the evolution of EU competition law and policy, which is supposedly (in some areas and cases at least) driven mainly by its market integration narrative.

The last part of the book addresses issues related to enforcement. Its first subpart consists of six contributions and the second of three. Part III-A begins with a paper by Albert Allen Foer, in which he summarises the personal role of Eleanor M. Fox in the area of antitrust advocacy and in spreading the ethos of competition in various developing and developed jurisdictions. He looks at issues related to the ICN, the conceptual relationship between competition and cooperation; the links between national cultures and national competition policies. Foer concludes by cautioning against excessive optimism about the antitrust convergence. However universal the challenges of competition policy may be, there are subjective factors and interests that will never allow for a syncretised “merger” of national antitrust cultures and policies into a global super-entity. Foer’s practical long-standing observations about the paradigmatic role of national specificities in how competition policy is being understood and enforced also impels him to be rather sceptical about the universal value of the consumer welfare golden standard.

In the second paper, William E. Kovacic looks at some intriguing analogies between competition law and Formula One, focusing mainly on the criteria of assessing the performance of both domains. Professional sports offer many fruitful parallels with the regulating of competition. Take, for example, the system drafts, which give priority to weaker clubs in enrolling new league players, or consensual fatigue with teams or athletes winning too many games and tournaments reducing thereby the elements of unpredictability, rivalry and luck, which are so essential for any instance of the competitive process. Kovacic internalises many other useful similarities.

The paper by Edward M. Iacobucci and Michael J. Trebilcock looks at various methodologies evaluating the performance of competition enforcers, developing a number of arguments against holistic beliefs in the robustness of quantitative metrics—both in terms of evaluating the performance within one jurisdiction as well as in any far-reaching comparative commensurations. So many factors go beyond the radars of the assessors that often the conclusions are unrepresentative or, if these methodological shortcomings are factored in, the conclusions on the contrary become too trivial. The authors convincingly illustrate their central thesis with a number of conceptual arguments and practical observations.

Daniel A. Crane’s contribution focuses on analysing various evaluation technics used for comparative assessment of private antitrust enforcement. Unlike the previous authors, Crane takes the quantitative method seriously and makes a number of important observations and conclusions. Perhaps the two papers could be reconciled by reference to the difference between the substantive questions that the authors address. Crane is aware of most of the potential pitfalls addressed by Iacobucci and Trebilcock and he hypothesises about not particularly controversial issues such as, e.g., the role of private enforcement in the US and EU and looking at the different goals which (should) predetermine enforcement priorities, ethos and legitimacy. He addresses a number of important procedural benchmarks relevant for assessing the performance of both public and private enforcement mechanisms.

The next paper by Daniel L. Rubinfeld compares the enforcement regimes in the US and EU “federal” systems, asking the main question about the relationship between central and local authorities. Perhaps surprisingly for many in Europe, Rubinfeld submits that the US federal antitrust system is more vigilant and careful with regard to state sovereignty whereas the EU is much more proactive in subordinating the interests and positions of its Member States to the common denominator of pan-EU interests. The focus of the argument is placed on the US state action exemption doctrine, which is compared to the EU principle of subsidiarity, labelled as “decentralised federalism.” Not engaging in the discussion on the substance, and leaving aside the jurisdictional counterargument that the principle of subsidiarity is hardly applicable to exclusive EU competences, to which competition policy belongs (being an instrument for mitigating tensions emerging primarily with regard to shared and supporting competences—Article 5(3) TEU), it should perhaps be mentioned in this respect that unlike US states, EU Member States still pursue their own international economic policies with the EU umbrella being an important but often non-decisive unifying factor. It should also be mentioned that both the literature on and jurisprudence of the CJEU with regard to, for example, State aid (let alone the undertakings entrusted by Member States with duties of offering services of general economic interest) are very complex and incoherent—illustrating thereby the complexity and challenges which emerge whenever the interests of EU competition law and the market integration narrative conflict with the national interests of the Member States. So, the premise of the paper that, unlike the US, “[i]n the EU, federalism trumps the Member States” is contestable both as a matter of law and primarily as a matter of fact. The following analysis offers a number of really appealing and convincing observations about the similarities and differences between the two systems.

In the last paper of the subpart Giorgio Monti looks at the European Competition Network (ECN) as an instance of highly synchronised and comprehensive regional competition cooperation, one which epitomises both the level of achievement reached on the road to the genuinely “Internal” Market on one hand delete and the divergence of interests and substance within the EU Member States’ competition regimes and cultures. He crosschecks the analysis against the benchmark of the ever-deeper coordination of regional and world antitrust systems promoted by Fox and Arena. Most EU competition decisions are taken by national competition authorities, and there are many reasons for perceiving the sharing of competences in the enforcement of the EU competition rules as a success story. Yet Monti highlights a number of problems that would make such a conclusion simplified and premature.

The central problem in this respect is the fact that despite their pan-EU mandates most (essentially all) Member State instances of application of EU competition rules are directed at remedying domestic rather than European concerns; even in cases where infringements and market failures have strong inseparable links with other EU Member States, the choice is given to the EU, rather than national competition law, primarily because of the expansive interpretation of the effect on trade between the Member States, rather than national competition law, is applied primarily because of the expansive interpretation of the effect on trade between the Member States. For him this system can only be satisfactory as a transitionary stage on a path towards a deeper and more comprehensive synchronisation of the legal tools and political agendas of the EU competition authorities. It is worth recollecting the often-omitted jurisdictional fact about the 2004 decentralisation reform: the EU did not “return” part of its exclusive competences in the area of competition law back to the Member States but assigned them with the mandate of pursuing the integrated European competition policy locally. So, the legal mandate for and high(-er) political expectations with regard to a closer integration and a pan-EU vision is hard to dispute and Monti focuses not on juristic questions of the legality or political legitimacy of the issue, but rather on analysis of the factual and procedural circumstances and remedies that could enable deeper integration. His main attention is paid to the ECN+ Directive, which seeks to further harmonise procedural aspects of the application of EU competition law by the Member States and reveals thereby the massive number of imperfections and divergences still existing in this area. Monti articulates the key reasons for this procedural “provincialism” and offers some well-calibrated insights seeking to remedy this problem (and normatively for him it is a problem). Many may look at these concerns as part of a natural process or growing pain, but one may also argue that this constant “work in progress” mode could be even more harmful to the overarching project of European integration than the previous centralised system. In support of his argument Monti provides a number of convincing facts, starting with the paradoxical situation which may well explain the reluctance of national competition authorities (NCAs) to deal with the EU cross-border issue: the limitation of the calculation of fines only to the infringement that has taken place within the territory of the Member State. On one hand, the problem appears to be systemic as the NCAs cannot enforce their competences in another country. On the other hand, if we take the idea of re-delegation seriously, it means that it is within the competence of the EU to extend the jurisdiction of the investigating NCA beyond the national borders of the Member State (at least as far as the calculation of the fine/harm is concerned). If done on a reciprocal basis this appears to be a difficult, but not impossible, task to achieve. The second systemic problem concerns the splitting up of cross-border cases. If two or more NCAs investigate different components of the same cross-border infringement, the room for inconsistencies increases exponentially. Monti addresses some other challenges and offers several intriguing solutions to remedy some of the shortcomings and concludes with a call for rethinking the very idea of decentralisation.

The last subpart of the book addresses the problems of the effective coordination of enforcement systems from a global governance perspective. It starts with a contribution by Dennis M. Davis discussing the issues of extraterritoriality, outlining US legislation, case law and legal practice concerning extraterritorial applications of substantive and procedural antitrust provisions, and contextualising this exposition with reference to the obvious trends and challenges of economic globalisation.

The contribution by Petros C. Mavroidis and Damien J. Neven looks at the links between competition enforcement, international trade and global governance, offering a helpful taxonomy of conflicts across jurisdictions and making several normative and methodological arguments targeted against an uncontested enthusiasm for the eventual convergence of two very different but mutually dependent areas: international trade and antitrust.

The last paper by Damien Gerard discusses the issues of international enforcement cooperation. The author (who is also a co-editor of the volume) essentially sums up many of the arguments developed in other contributions, sets up a future agenda and posits challenges, looks inter alia at the differences between convergence and harmonisation and at the specificity of convergence mechanisms in the EU. Many of the points in this paper resonate with the arguments of Giorgio Monti, and it is very helpful to have both in the same volume.

A warm, concise and insightful afterword by Professor Eleanor M. Fox, whose immense contribution to most of the themes and issues discussed in the book triggered the entire publication project, concludes this thought-provoking book.

The curious reader will definitely find this inaugural volume of the new CUP series “Global Competition Law and Economics Policy” appealing and stimulating. A highly recommended and very enjoyable read.

Footnotes

[1For a concurrent development of this argument, see also O. Andriychuk, The Normative Foundations of European Competition Law: Assessing the Goals of Antitrust through the Lens of Legal Philosophy (Edward Elgar Publishing, 2017), p. 99.

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Author

  • University of Strathclyde (Glasgow)

Quotation

Oles Andriychuk, Reconciling efficiency and equity. A global challenge for competition policy, Damien GERARD and Ioannis LIANOS (dir.), November 2020, Concurrences N° 4-2020, Art. N° 97388, pp. 282-285

Publisher Cambridge University Press, Global Competition Law and Economics Policy series

Date 29 April 2019

Number of pages 474

Visites 129

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