Edited by Josef Drexl, Laurence Idot and Joël Monéger
Chapter 11: Convergence of Competition Law Prohibitions: Foundational Issues
Michal S Gal* 1 INTRODUCTION The increased role of economic analysis in competition law raises a host of interesting issues regarding the goals and foundations of competition law as well as their eﬀects on competition rules. One such issue, addressed by Professor Eilmansberger in his comprehensive and thoughtful chapter, relates to the convergence of the prohibitions on restrictive agreements and unilateral restraints in light of a more economics-oriented approach that strives to increase consumer welfare.1 The ﬁrst part of this chapter addresses some of the issues raised in Professor Eilmansberger’s chapter and goes a bit beyond it, mostly supplementing rather than contradicting it. Yet, as the language of the Treaty of Rome indicates, EC competition law is based on at least one additional foundation: fairness in market relations, which is sometimes viewed as contradictory to pure economic considerations. Accordingly, the second part of this chapter oﬀers some preliminary thoughts with regard to the role of fairness in EC competition law at its incipiency and its relationship with the more economics-oriented approach. * LL.B., LL.M., S.J.D. Associate Professor, Haifa University School of Law; Global Hauser Visiting Professor, NYU School of Law. Many thanks to Adi Eyal for most thoughtful comments. The second part of this chapter is part of the author’s ongoing research on the subject of fairness in competition law. For this part, the author would like to thank Professors Drexl, Engel, Fikentscher, Hellwig, Mestmäcker, von Weizsäcker, and Möschel for most helpful discussions on the subject...
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