ASCOLA Competition Law series
Edited by Josef Drexl, Laurence Idot and Joël Monéger
Chapter 14: Efficient and/or Effective Enforcement
14. Eﬃcient and/or eﬀective enforcement Marie-Anne Frison-Roche* 1 INTRODUCTION I would like to treat the question of eﬃcient and eﬀective enforcement of competition law not only in technical terms, but also from a systemic perspective. This issue is eminently practical, because it concerns the concretization of legal rules and decisions in real life. It also expresses a sort of positivism, for which only an implemented rule is a real rule. But concrete enforcement depends on the relation between economy and the law, and between theory and practice. Stated precisely, the question of the eﬃciency of enforcement is not only a question of practice, such as the coordination between independent authorities or classical states, but also a theoretical question, through a theory of inducement, involving incentives to reveal anticompetitive behaviour for example, or through the conception of public versus private. The practical necessity of obtaining the most eﬀective implementation of rules is common to all legal rules. Under this condition, it is economic theory that gives speciﬁc light to this eﬃciency in competition law. As such, economic theory transcends legal distinctions between public and private enforcement and helps us to focus our attention on eﬀective implementation more than on the adoption of rules itself. The ‘centre of gravity’ is moving away from the creation of legal rules (the centre of the legal system) towards the concretization of legal rules and their eﬀects on economic behaviour (the centre of the economic system)...
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