Enforcement and Procedure
Edited by Ioannis Lianos and Damien Geradin
Chapter 11: Legal uncertainty, penalties, limits to effects-based standards
This chapter reviews some recent literature on optimal legal standards and in particular on how the optimal standard to be chosen is affected by legal uncertainty and by the penalties imposed by the Competition Authority (hereafter CA) for violating Competition Law. In his classic contribution, after reviewing all the reasons why it is difficult to have clarity as to the circumstances under which an action may in principle be harmful or benign, and the difficulties of obtaining data and carrying out the calculations required to implement whatever tests might be available, Judge Easterbrook writes ‘Do we then abandon antitrust? Hardly! We should instead use more widely the method we apply to cartels: per se rules based on ordinary effects disdaining the search for rare counter-examples’.
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