Chapter 10: Economic Content of Competition Law: The Point of Regulating Preferences
Adrian Künzler* 41 1 INTRODUCTION Over the last few decades the criteria governing the application of EC Competition Law have been subjected to substantial changes. Apart from procedure, through the enactment of Regulation 1/2003, they have predominantly concerned substance through a wider recourse to economic analysis. As a result of this process, the same basic aims of competition law have been questioned: while in the past EC competition law was seen as squarely directed at the protection of the competitive process – or the protection of the freedom to compete – there is now a tendency for restrictions of competition to be appraised more and more by efficiency criteria such as social or consumer welfare, efficient allocation of production factors or, in short, their economic outcomes. Under this approach, the purpose of rules against private restraints on competition would consist solely of maximizing economic welfare. Therefore competition restraints would be assessed with reference to their impacts on economic welfare. If welfare is diminished then the practice under assessment should be prohibited; otherwise, i.e., if welfare is increased or in cases of welfare-economic neutrality – or indeed uncertainty – the practice must be declared permissible. Hence the striving for a ‘more economic approach’ embodies the quest for an ‘economically correct competition policy’, or a ‘more objective approach’. The maximization of economic welfare is deemed to be the supreme objective of the law against private restraints on * Branco Weiss Fellow of Society in Science (ETH Zurich) at Yale Law School; LL.M., Yale Law School (2011)...
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