Economic Theory and Competition Law
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Economic Theory and Competition Law

Edited by Josef Drexl, Laurence Idot and Joël Monéger

The context for this book is the increasingly complex relationship between economic theory and competition law which gives rise to lively political and academic debate on the direction competition law should take in a more global and innovation-oriented market place.
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Chapter 14: Efficient and/or Effective Enforcement

Marie-Anne Frison-Roche


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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