ASCOLA Competition Law series
Edited by Josef Drexl, Laurence Idot and Joël Monéger
Chapter 6: Should Competition Law Promote Efficiency? Some Reflections of an Economist on the Normative Foundations of Competition Law
6. Should competition law promote eﬃciency? Some reﬂections of an economist on the normative foundations of competition law Wolfgang Kerber* 1 INTRODUCTION After the introduction of the ‘more economic approach’ in EU competition policy, the question of the importance of economic eﬃciency as a goal of competition law has become even more relevant. To what extent should competition law promote eﬃciency? What is the relation between competition and eﬃciency? This problem has always been relevant for exemptions from the prohibition of horizontal and vertical agreements according to Article 81(3) EC (with its balancing test). It also emerged in the discussion about eﬃciencies in merger control, leading to a major change in EU merger control in 2004. Recently this problem has also popped up with regard to the discussions about the application of the ‘more economic approach’ concerning Article 82 EC. Whereas economists vehemently emphasize the importance of eﬃciency considerations for competition policy, legal scholars are much more uneasy about this development. This chapter (written by an economist) intends to contribute to a better understanding between economists and legal scholars about the goals of competition law. My main point is that the discussion on the normative foundations of competition law is not well developed: The main problem on the side of economics is that the theory of industrial organization, which * Professor of Economics, Philipps University Marburg, Department of Business Administration and Economics. The author would like to thank Oliver Budzinski, Arndt Christiansen, Eleanor...
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