Edited by Josef Drexl, Laurence Idot and Joël Monéger
Chapter 15: A Brief Overview of Some Conflicts between Economic Efficiency and Effectiveness of the Administrative or Judicial Process in Competition Law
15. A brief overview of some conﬂicts between economic eﬃciency and eﬀectiveness of the administrative or judicial process in competition law Antoine Louvaris* 1 PRELIMINARY OBSERVATIONS Economic eﬃciency is a complex notion and its crowning as the linchpin of competition law is controversial. Nonetheless, it is possible to adopt a simple, but suﬃciently operational, approach to economic eﬃciency for the purpose of this chapter. ‘In the context of industrial organization economics and competition law and policy, it relates to the most eﬀective manner of utilizing scarce resources.’1 To suggest that competition law aims at economic eﬃciency should logically imply, to put it bluntly, that only practices that reduce the well-being of consumers should be forbidden, without prejudice to focal and absolute per se prohibitions as the basis for condemning cartels, ‘the supreme evil of antitrust’.2 Positive competition law is far from reaching this conclusion, supposing that it should. Undoubtedly, there is still an increasing propensity to promote economic eﬃciency in the competition law of prominent jurisdictions, such as the EC, at least since the Guidelines on Vertical Restraints3 and, later on, since the * Professor of Public Law at the University of Paris Dauphine. 1 OECD, ‘Glossary of Industrial Organisation Economics and Competition Law’, http://www.oecd.org/dataoecd/8/61/2376087.pdf (accessed 31 January 2008), p 41. 2 Verizon Communications Inc v Law Oﬃces of Curtis V Trinko LLP 540 US 398, 408 (2004). 3 See Commission Notice – Guidelines on vertical restraints, 13 October 2000, [2000...
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