European Competition Law: The Impact of the Commission’s Guidance on Article 102

European Competition Law: The Impact of the Commission’s Guidance on Article 102

Edited by Lorenzo Federico Pace

This timely book, with contributions from prominent experts including Luis Ortiz Blanco, Valentine Korah, Ernst-Joachim Mestmäcker, Lorenzo F. Pace and Richard Whish, examines the novel aspects of the 2009 Guidance on Article 102. They present a critical assessment of the Guidance that could be relevant to the result of the ongoing Commission’s investigations, for example, the opened procedure against Google.

Chapter 3: The Development of German and European Competition Law with Special Reference to the EU Commission’s Article 82 Guidance of 2008

Ernst-Joachim Mestmäcker

Subjects: law - academic, competition and antitrust law, european law


Ernst-Joachim Mestmäcker COMPETITION AND THE SELF-REGULATION OF SELF-INTEREST 1 The former President of the United States Federal Reserve, Alan Greenspan, told Congress that the experience of the financial crisis shattered his confidence in the self-regulating power of self-interest. For him the failure of self-interest to provide self-regulation was a ‘flaw in the model that I perceived as the critical functioning structure that defines how the world works’.1 Part of that functional structure is, of course, competition. Robert H. Bork, summarising the major tenets of the Chicago School of Antitrust, agreed in principle with Greenspan’s pre-crisis belief. I quote: ‘The closer members of an industry come to maximising their profits the closer they come to maximising the welfare of consumers.’2 We are reminded of Mandeville’s fable of the bees.3 Vices such as self-interest, fraud, avarice and bribery are miraculously turned into virtues: ‘Even the worst of the multitude did something for the common good.’ Self-interest and profit maximisation are driving forces of competition. Their salutary effect is, however, dependent on a legal framework that facilitates commerce and simultaneously limits the potentially destructive forces of self-interest and the love of power. The legal framework has to 1 2 New Yorker, February 2, 2009. The Antitrust Paradox: A Policy at War with itself, Free Press, New York, [1978] 1993, p. 97. 3 Die Bienenfabel mit einer Einleitung von Walter Eugner, 2nd edn 1980, pp. 67 ff. (The Grumbling Hive or Knaves Turned Honest.) 25 M2541 - PACE PRINT.indd 25 04/03/2011 13:16...

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