Alberto Pera Changing Views of Competition, Economic Analysis and EC Antitrust Law* INTRODUCTION
During the last decades the criteria governing the application of EC Antitrust Law have
been subjected to substantial changes. These have concerned a number of aspects:
procedure, through the enactment of Regulation 1/2003, the “Modernization
Regulation”; and substance, through a wider recourse to economic analysis. As a result
of this process, the same basic aims of competition law have been questioned: while in
the past EC competition law was seen as squarely directed to the protection of the
competitive process, there is now growing consensus that the protection of competition
is an instrument in order to achieve consumer welfare and economic efficiency. Lately,
in the context of reform of the EU Treaties undertaken by the 2007 Lisbon
Intergovernmental Conference, the same role of competition law in the EU legal system
These changes reflect developments in the views about the role of competition law in
the economic and legal system, which developed over time, first in the US and then in
Europe, as a result of a wide ranging intellectual debate centred on the relation between
economic analysis and legal rules, and which in turn reflected different views about the
way in which competition works in order to obtain benefits to society. While the
consequences of this debate have affected the application of EC Antitrust only relatively
late, they have nevertheless been particularly relevant and have caused a substantial
* This paper was originally prepared for the 2008 Macerata Lecture on European Economic Policies at the University of Macerata, Italy.
shift in a relatively short time span. The objective of this paper is to illustrate how the
changes in the view of competitions have influenced the role of economic analysis in
the application of antitrust law in particular with respect to the application of EC
The paper is organized as follows: in Section I we summarize how economic views of
competition have evolved over time. We note that different views of competition imply
a different role for antitrust law, which in turn affects the criteria according to which the
law is applied. Because these developments have at first affected the application of
antitrust law in the United States, we briefly review the US experience. We then make a
first critical evaluation of the changes in the paradigm of antitrust analysis related to a
wider use of economics. In Section II we review the developments in the application of
EC competition law in the past decades. First, we examine how a specific view of the
role of competition in the legal order has influenced the shape and the application of EC
competition law. We then review the changes that over time have taken place in such an
application, aiming at introducing an economic and effect-based approach and discuss
whether these changes are compatible with the traditional orientation of EC antitrust
law. In Section III we finally analyze the new approach adopted by the Commission,
based on the effects on restrictive practices on consumer welfare and efficiency, and
discuss its implications for the debate on the role of competition in the EU legal order
which has been opened by the Lisbon Intergovernmental Conference.
1 At the outset it is appropriate to specify that we limit our analysis to EC antitrust law, i.e. the provisions of the
Treaty concerning restrictive practices carried out by private undertakings, namely Article 81, (concerning restrictive agreements) and Article 82, (concerning abuses of dominant position) and related Community legislation. We do not discuss merger control, except for some brief references. Most importantly, we do not discuss the wider subject of competition policy, i.e., the set of instruments and actions aiming at insuring the establishment of competitive markets in the economy. This set includes competition law, but extends to all policy measures aiming at fostering the degree of competition in the economy: state-aid control, privatization, liberalization of previously regulated sectors and pro-competitive regulation of still subject to regulation sectors1. What distinguishes competition law from the other measures is that the former consists of rules governing the behaviour of firms in the market, which are applied in a general and non-discretionary way. For an exposition of the achievements of the competition policy of the EC see Anderson-Heimler (2007); see also Slot (2004). The tendency to confuse competition law with competition policy has been noted by Grillo (2006).
1. The character of competition law
Antitrust rules concern agreements and unilateral practices by firms with a substantial
market power which restrict competition. In the European Community, Article 81 of the
EC Treaty forbids agreements which restrict competition and Article 82 forbids abuses
of a dominant position. Similar provisions exist in the US, where Section 1 of the
Sherman Act, (the world first modern antitrust law, enacted in 1890), prohibits
conspiracies among firms to restrict competition and Section 2 prohibits
monopolization, and in most other countries2.
The intellectual background for these provisions goes back at least to the appearance of
AnInquiry into the Nature and Causes of the Wealth of Nations, the seminal work by
economist and philosopher Adam Smith. Since then competitive markets are seen as a
desirable framework for fostering welfare and growth. According to Smith, it is not
from the benevolence of the grocer that we can expect the satisfaction of our needs, but
from his greed. Greed will induce him to find and provide the goods we need. And
competition among greedy grocers would insure that there are plenty of goods supplied
at the best prices. From Adam Smith onwards, it has been generally maintained that
competition leads to desirable results in terms of productive efficiency, low prices,
incentives to innovation and discovery of new areas for market activity. Therefore a
market system where economic agents compete among one another guided by a certain
degree of rivalry leads to efficient production and allocation of resources to the benefit
Adam Smith also argued that public policies should be directed to guarantee that
markets work effectively, to the benefit of the general public (this was in fact the subject
of his most famous book). While he thought that most restraints to the functioning of a
free market came from public policies, he also warned that restraints to trade could well
2 The diffusion of antitrust laws has accelerated since the late 1990s, with the abandonment of the
command economy in the former socialist countries. Now more than 120 countries have an antitrust law.
come from private actions. He noted that seldom people from the same trade gather
without conspiring for practicing higher prices or for monopolizing the markets.
Modern antitrust law in a sense derives from this remark, and it is interpreted as a public
intervention aimed at protecting the “social mechanism” that allows the market to be
conformed by competition guided by rivalry. The way this is done is to impose rules
that prevent conducts, which unduly restrict or eliminate competition.
Competition rules have a peculiar character. First, antitrust law is based on the idea that
the desirable results of competition will be obtained spontaneously on the market, once
the conditions for its competitive working are guaranteed3. Because antitrust law is
directed at protecting a competitive mechanism based on rivalry, it is directed at
removing the obstacles to the competitive working of the market deriving from private
behaviour, but it should not aim at attaining a particular result.
Secondly, competition rules concern a subject which has profound social and political
implications: the functioning of the market, the institution, which allows voluntary
exchange among equals pursuant to the law. As the early economists pointed out, the
proper functioning of the competitive market is based on some of the basic tenets of a
liberal society, such as freedom of contracting and property right, and on rules and
institutions which guarantee that the process of exchange takes place undistorted by
coercion arising from the use of market power, so as to give rise to a selection
mechanism based on merit4. These rules may be determined either endogenously by the
trading subjects, or exogenously by laws based on the recognized “social value” of the
market. As a leading law and economic scholar notes “a market is not competitive by
assumption or by construction, a market becomes competitive, and competitive rules
come to be established, institutions emerge to place limits on individual behaviour
3 This characteristic distinguish antitrust from economic regulation, for instance through the fixing of
4 For a discussion see Amato (1997); Grillo (2006).
As antitrust rules are related to the basic tenets of a liberal economic society, it is not
surprising that competition law has represented the legal framework of reference for the
economic system of a free society. In the US, the Sherman Act has long assumed a
nearly constitutional character, as the basic charter of the freedom of initiative6. In
Europe, as we will see, competition rules were born from a vision which gave them a
central role in the legal order of a free economic society7.
However, this central role has contributed to charge antitrust rules of other objectives
which are generally related to the correct functioning of a market system: in particular,
freedom of individual and business initiative, broadening of economic opportunities, a
certain dispersion of wealth, freedom of choice by the consumers8. It is however
controversial, as we shall see below, whether these objectives are reflect criteria of
“fairness” or related to distributional considerations which are really not related to
competition, or rather they represent conditions for a competitive market to work
6 Peritz (1996) provides a comprehensive discussion of the role of antitrust law in the U.S. See also
7 Gerber (1998) discusses the role that the ordoliberal vision had the shaping of EC competition law. On
9 While, in general, protection of competition would also leads to the attainment of these objectives, at
times the weighing of some of them in the context of competition policy appears to have led to an application of antitrust law guided by the criteria of “fairness” or by distributional considerations, therefore subject to the political climate of the day. [Peritz (1996) describes the cycles in the application of US antitrust law in its first century of application]. In particular, in the early years, recourse to antitrust law has often been seen as a more desirable alternative in comparison with more direct forms of intervention in the market, like administrative price controls or governmental control over the industry, in connection with the rising of economic tensions which hampered the confidence of the market system: for instance, when inflationary pressures appeared to reduce consumers’ buying power; or when industry consolidation processes threatened the survival of certain types of enterprises. This obviously affected the way in which the law was applied. However, as J. Baker (2006) notes, at a certain point competition law seems to have represented a political bargain between both producers, who are guaranteed protection from more direct forms of intervention, and consumers, who are guaranteed that a certain level of competition will prevail in the market. Such a political bargain would help explaining the bipartisan role that antitrust law has assumed after World War Two and the systematic recourse to objective criteria based on economic analysis.
2.Competition law and economic analysis
Another peculiar character of antitrust laws is that they directly concern an economic
concept: competition in the market. Therefore, more than any other kind of rules, they
raise the issue of the relations between legal principles and economics.
Economics contributes to the interpretation of the law at different levels: first it provides
a framework of analysis of competition and of its essential features; secondly it plays an
important role in the development of rules of decision from which it is possible to
evaluate whether the conducts under examination must be considered illegal.
a) Different views of competition
While on the basis of the early analysis of Smith we may define a competitive market as
one where firms compete for demand guided by rivalry, economists have not always
been in agreement about the conditions necessary for a competitive market system to be
established and fully working; this because the analysis of competition may be made
from different points of view. In his famous exposition Smith singled out the three
elements which have since characterized the analyses of competition: incentives for the
economic agents to appropriate the benefits from the gain from trade; a competition for
demand guided by rivalry; and the efficient end-result arising from the process,
represented by the supply of plenty of goods at the lowest possible cost. Subsequent
economic analysis has drawn attention on one or another of these aspects.
In particular, the marginalist economists of the late XIX century focused their analysis
on the conditions under which a system of exchange could lead to the desirable results
in term of productive and allocative efficiency10. They elaborated the model of perfect competition, where individual agents responded passively to incentives given by prices,
which in turn were determined by equilibrium between total demand and supply. Such a
system leads to the desired conditions of minimizing costs (productive efficiency) and
to prices equal to marginal cost (allocative efficiency): therefore the benefits for the
10 The most sophisticated illustration of the early marginalist approach is the Eléments d’Economie Politique Pure, the1874 work by the French economist Léon Walras, the founder of the general equilibrium analysis.
consumer are maximized. This happens on condition that firms do not have any market
power so that profits are zero in the long run, because competition to get any extra profit
leads to the adoption by all firms of the most efficient techniques. Since agents are price
takers and not price makers, each of them is very small with respect to the size of the
market. This model had a fundamental role as a reference point in the analysis of
Another stream of thought argues that the model of perfect competition is a static
model, and it does not catch the dynamic features exemplified by Smith, that is the
search of the profit opportunities by grocers and their like. The economists supporting
such an approach have centred their analysis on the role of the grocer, i.e. the
entrepreneur, in identifying new opportunities of appropriating benefits from trade, and
on the role of incentives in inducing him to action11. This implies striving for
introducing innovations in the characteristics of the market or in technology, and for
One important aspect of this view is its vision of the role of the market, which is
perceived not only as the place where exchange takes place, but also as the institution
created by the same agents, which allows the gathering and exchanging of widespread
information, and in which the agents’ actions are guided by the discovery and
expectation of new opportunities. Competition is then seen as a discovery process12.
The suggestions concerning the obstacles to competition deriving from the two
approaches we have sketched are rather different. Obviously, whatever scheme we take,
cartels among competitors to restrict prices or control market shares are undesirable:
they raise prices above marginal costs and reduce the incentives to search for new profit
opportunities. However, the two approaches lead to different conclusions concerning a
number of other situations, which are relevant for antitrust. Traditional analysis
11 This view is generally attributed to Schumpeter (1948) and to the Austrian economists. However, it
may be found in Chicago economist F. Knight and in the works of Nobel laureate J. Buchanan, the leading Public Choice scholar. A recent re-elaboration in modern terms, compatible with general equilibrium analysis, is in Makovsky-Ostroy (2001), who also give a comprehensive view of the various approaches to competition.
12 This is one of the seminal contributions of F. Hayek (1948).
concentrates on the lack of market power of independent economic agents, which
requires them to take prices as given. Therefore, any arrangements, which reduce the
autonomy of the agents, like any form of agreement between firms which operate on the
same market (horizontal restraint) or at different stages of the productive and
distribution system (vertical restraint), may affect the efficiency results of competition.
In the same vein, any form of market power is considered undesirable, because it
implies departure from allocative efficiency. Therefore the traditional analysis would
suggest intervention when there are important deviations from the paradigm of perfect
competition. From this point of view, since the 1930s a stream of economic thought has
argued that a state akin to perfect competition is unlikely to prevail in the market,
because information asymmetry and promises to entry allow firms to have a certain
degree of market power13. Obviously this suggests a more widespread intervention in
The alternative approach looks at the market economy as an institution which is built
by the same agents in the market, as they endeavour to discover opportunities to trade
so to benefit from them. Freedom of contract in a market context allows agents to
fashion their relations in the way which is most appropriate to reach this result:
therefore contractual arrangements reducing the autonomy of the parties may still aim at
making exchange more efficient. The existence of profits and (apparent) market power
is not necessarily proof of the absence or restriction of competition: they may as well
indicate that the firm is innovating quickly and has an advantage over its competitors.
Exploitation of the consumers by dominant firms through market power could represent
powerful incentives for other firms to enter the market. Furthermore, dominant
enterprises have usually achieved this position through a superior performance in the
market, and it would be against the very meaning of competition to punish a company
From the point of view of this approach, there is some ambiguity in antitrust rules,
because their intervention to limit the abuse of market power inevitably leads to limits
13 The seminal works on imperfect competition are the ones of Chamberlin (1933), who opened the
Harvard tradition in industrial economics, and J. Robinson (1933).
to freedom of contract and the use of property rights, the same elements on which the
institution of the market is based14. Therefore, antitrust rules should be applied
parsimoniously, and the limits set by competition law to these basic rights should be
only those strictly necessary to eliminate anticompetitive restrictions. Then antitrust
should be basically a marginal kind of intervention, which is relatively rare, and
generally concerns large distortions of competition.15
b) Decision rules and economic analysis
A second way in which economic analysis has a particular role in the application of
antitrust law concerns its role in devising decisional rules. In particular, Courts and
Administrative Authorities applying antitrust law have early developed a decisional
practice whereby certain practices, which are presumed to restrict competition, are
prohibited per se. In such a case, once it is proven that a certain practice is actually in
place, the firms involved in it are considered to be infringing the law, without any need
to ascertain whether the practice actually had competitive effects. Other practices,
instead, cannot be presumed to be immediately restrictive, and a finding of illegality
may derive only from an evaluation of their effects on competition, through the
application of the rule of reason. This implies evaluating the restrictive characteristics
of the practice and balancing them out with its pro-competitive effects.
Whether a practice is considered prohibited per se or should be evaluated under the
“rule of reason” is a question of presumptions: if a practice is forbidden per se, it means
that its analysis under a legal and economic point of view has shown that in the
generality of cases it restricts competition (typically this is the case of cartels fixing
prices or sharing markets).16 When a practice is not seen as immediately
anticompetitive, further economic analysis may help the decisional process also by
defining whether we should start from a presumption of legality or illegality, which in
turn depends on whether we should expect that the practice has or does not have
14 This is the “paradox” on which R.Bork built his criticism of US antitrust practice. See Bork (1978).
15 This is the suggestion of Hovenkamp (2005).
16 For the interpretation of the per se rule from the point of view of presumptions, see Kovacic (2003);
anticompetitive effects, and by defining the criteria on the basis of which we may
evaluate whether it is restrictive17. This obviously depends on the paradigm of analysis
The paradigm based on perfect competition would tend to consider structural aspects of
the market in order to evaluate whether it deviates from its desirable outcome. The
paradigm based on incentives would rather look at the actual or presumed effects that
the practice would end up having on the market.
The relevance of presumptions in the decisional process suggests that there is a risk that
decisions may be wrong. From this point of view two kinds of errors are possible: 1)
practices, which restrict competition, may be considered harmless; or 2) practices,
which are harmless, may be considered restrictive18. While legal and economic analysis
have at length discussed the relative undesirability of the approaches leading to one or
the other of the two kinds of errors, which one ends up prevailing depends on the
criteria on the basis of which we evaluate whether competition has been restricted, i.e.
on economic analysis. This in turn depends on the way in which we think competition
works in the market. From our previous discussion, it appears that the traditional
paradigm would suggest the adoption of criteria for evaluation, which prevent “type 1”
errors, while the paradigm based on incentives would rather suggest that the criteria of
intervention be aimed at preventing “type 2” errors.
3. The US experience
Given the different approaches to competition, it is not surprising that economic
analysis of how a competitive market system works has been evolving over time. And
the interpretation of the law has been evolving with it. At different times, a different
degree of attention has been given to different determinants of competitive behaviour.
Therefore the criteria according to which to evaluate how different practices may harm
17 For a discussion of the role of economic presumption in the application of the rule of reason see
18 For a discussion of decision rules in relation to the risk of errors see Evans-Padilla (2005).
competition have changed over time. To show this it is useful to examine the US
a) Structuralism and US antitrust
Until the 1970’s the application of the antitrust law in the United States was guided by
the structuralist analysis of the market which dominated industrial organization analysis
in the ‘50s and ‘60s. Inspired by the traditional scheme of perfect competition,
structuralists argued that attitude towards rivalry, and therefore competition, depended
on the number of firms on the market, which in turn depended on exogenous factors like
barriers to entry and economies of scale20.
Since at the basis of the traditional scheme was price taking and lack of market power,
structuralist analysis tended to consider harmful to competition arrangements which
could reduce the autonomy of the firm in the market. Furthermore, influenced by the
imperfect competition theories of the previous decades, they were sceptical about the
automatic establishment of competition in the market. As a result, decision rules were
focused not on actual or potential effects of practices on competition, but on their
characteristics: as long as they led to a reduction in the autonomy of the agents there
was a risk that competition was restricted.
Horizontal agreements were considered per se illegal independently on whether they
were collusive or just of cooperative nature, aiming at allowing a better and more
efficient use of resources21. Fears that limits to the autonomy of the firms led to the
prohibition per se also of vertical agreements between firms at different levels of the 19 A summary in US experience is in Kovacic and Shapiro (2000). A comparison with the EC experience
is in Pera-Auricchio (2005). Despite European antitrust has a specific tradition, rooted in economic debates and legislative experiments dating back to the end of XIX century, as discussed by Gerber (1998), the experience in the interpretation of antitrust law in Europe shares much with the one in the US, where a systematic application of modern antitrust law started more than sixty years earlier. This not surprising. Legal thinking in antitrust has been influenced by economic analysis, and in this field there have always been close contacts between the two sides of the Atlantic. Furthermore, since the early development of EC competition law there have been continuous discussions on antitrust foundations and methods between European and American lawyers and economists, which have lead to common ways of understanding the core issues and a common general approach.
20 Earlier developers of structuralist analysis were E. Mason, with his studies in administered prices, and
Bain (1956), who first introduced the concept of barriers to entry.
21 See U.S. vs. Topco Associates, 405 US 596 (1972)
production and distribution. Therefore, the law was interpreted to protect not only inter-
brand competition, i.e. competition among producers trying to place their products on
the market through the distribution channels, but also intra-brand competition among
distributors of the same products. Retail price maintenance (i.e. the fixing of retail
prices by the producers) had been considered a violation per se already at the beginning
of the century; the same happened for exclusive dealings, which prevented
commercialization of competing products through the same distribution channels, and
territorial restrictions which prevented competition among outlets22.
The primary fear with mergers was that they could reduce the number of competitors on
the market, irrespective of whether this led to an effective reduction in competition23.
From the point of view of unilateral behaviour, concerning companies in dominant
position, US judges decided early on that the law would not apply to exploitative
behaviour. Indeed, the law protected the competitive process, therefore a monopolist
that had achieved its position by superior performance should be free to practice the
conditions he thought appropriate24. However, the possession of market power was seen
as a limiting factor: legal rules tended to be based on the concept of “competition on the
merits”, meaning that the dominant firm should only compete on the basis of “superior
performance and acumen”25. Therefore, dominant companies could not use practices
depending on their market power in order to restrain competition, for instance through
loyalty-enhancing practices. Competitive harm was usually defined on the basis of the
obstacles posed to competitors to compete effectively with the dominant firm. In fact
this criterion was often applied with little attention to the actual effects of the conduct
on the market, so that practices would be considered restrictive as long as they excluded
22 See U.S. vs. Arnold Schwinn and Co., 388 US 365 (1967)
23 See Brown Shoe Co. vs. U.S. 370 US 294 (1962).
25 This principle was established in US vs. Grinnell Co. 384 US 563 (1966).
a competitor and generally dominant firms behaviour was not justified if they could get
advantages on the market from economies associated with their size26
Finally, because the analysis suggested that restrains to competition were pervasive, and
great relevance was given to the number of companies in the market, there was a very
activist tilt in the enforcement activity, particularly in oligopolistic markets27.
This approach was widely criticized, since it led to decisions, which tended to consider
restrictive practices, which did not harm competition (“false positives”) and could often
lead to efficiency and improvements in consumer welfare. Therefore they ended up
protecting existing (inefficient) competitors. From this approach a perception arose that
antitrust law was guided more by criteria of “fairness” and the aim to protect small
enterprises rather than by the objective of protecting a vigorous free and competitive
However, since the 1970s reliance of competition law on economic structuralism has
been superseded by the evolution in economic thought, which has stressed the role of
incentives and efficiencies in determining agent’s behaviour in the market. In particular,
what has come to be known as the Chicago School has shown that a number of
practices, which according to the structuralist paradigm were considered to be restrictive
of competition because they limited the autonomy of economic agents in the market,
aimed instead to give rise to more efficient methods of production or
commercialization, which in fact allowed the firms to compete more efficiently. In
particular, vertical restraints, i.e. agreements between producers and distributors, could
be very well guided by the need to guarantee that the agents appropriate the benefits
deriving from specific investments they bear. On this regard, for instance, it is clear that
a distributor who is guaranteed an exclusive dealing will devote more efforts and
26 This seems the conclusion to be drawn from U.S. vs. Aluminum Corporation of America (Alcoa)
27 In the early 1970s the DOJ tried to argue that oligopolistic interdependence among he few producers of
cereals in a very concentrated market represented an agreement restricting competition.
28 This finding was also at the basis of the pervasive criticism developed by Bork (1978).
investments to penetrate the market29. Also, horizontal cooperation among enterprises
not aimed at fixing prices or subdivide markets is often pursued in order to overcome
problems of externalities, without restricting competition on the market.
It may be appropriate to see the changes brought forward by the Chicago school in the
context of the second of the general streams of thought about the scope and role of
competition we have examined earlier. In particular, the Chicago approach should be
viewed in the context of a framework of analysis inspired by the seminal works of
Coase30 and Williamson31, which views interactions of agents through cooperation as an
alternative to the exchange to overcome the obstacles to the achievement of efficiency.
In fact the innovation in the analysis of economic practices corresponds to a change in
the view about the way in which competition works: firms structure their productive and
commercial arrangements in order to reap the benefits from trade and from competing
more efficiently. Profit incentives become a powerful drive for the changes. And the
practices cannot be considered restrictive of competition because they are directed at
widening the markets and making firms more effective competitors.
This approach suggested profound changes in the legal rules governing application of
antitrust law. First, with the exception of a few practices which had a clear anti-
competitive aim, like hard-core cartels to fix prices and subdivide markets, which
should be presumed illegal per se, most practices should be examined on the basis of
their effect on competition through an analysis base on the “rule of reason”. It was also
argued that certain practices are generally harmless, in so far as they do not restrict
competition and are usually beneficial to economic activity, and therefore may be
presumed to be per se legal, and not worth further investigation32.
This paradigm leads to a substantial change in the way in which to evaluate the harm to
competition from a certain practice. Because of the presumption that many market
practices were aimed at solving appropriation issues and at achieving efficiency, the 29 See Telser (1960).
31 Williamson (1975). 32 This is the position taken by Posner on vertical restraints. See Posner (1981).
legal criterion on the basis of which practices would be evaluated should be based on
their effect on the final market. In particular, starting with the seminal contribution of
Posner33, the Chicago approach argued that the anti-competitiveness of a practice should
be evaluated on the basis of its effects on prices and quantities and from the ensuing
This approach has particular implications for the analysis of practices of dominant
companies. As we have seen, the structuralist approach analyzed the behaviour of
dominant companies performance with nearly exclusive attention to the effects on the
structure of the market and the effect on competition. The new approach then suggests
that exclusion of competitors should be considered anticompetitive only when it leads to
The Chicago analysis has been very successful both from the point of view of
methodology and of its impact on the decisional process.
From the first point of view, antitrust analysis is now generally based on the
consideration of efficiency and on the effects of practices on the market. Therefore,
there is generally agreement that the number of practices forbidden per se should be
limited to hard-core restrictions, while the others should be either considered per se
legal or analyzed on the basis of the “rule or reason”34. In this context, during the last
twenty years various schemes of economic analysis have been implemented, leading to
less optimistic conclusions concerning the need for an activist antitrust intervention.
These schemes are generally classified as Post-Chicago analysis. While Chicago
analysis tends to restrict intervention to hard-core practices like cartels, this more recent
economic analysis has introduced new elements into the paradigm, in particular
considering the possibility that firms may strategically use information advantages. This
would be particularly relevant for the analysis of dominant companies, which could use
strategically vertical agreements in order to exclude competitors from the market.
34 In fact, one can say that there is now very little difference between the Chicago approach and the one of
other schools of thought, like Harvard. On this see Kovacic (2005). See also Elhauge (2007).
Therefore, this line of thought tends to refuse the relevance of per se legality and
suggests a wider recourse to the “rule of reason”35.
From the second point of view the Chicago approach has had a decisive impact on the
decisional practice of Courts and Competition Authorities. In the U.S. in particular over
time most decisions inspired by the structuralist approach of the 1960s and 1970s were
reversed. The effect of practices on the consumer has become the standard paradigm for
evaluating consumer harm and non hard-core practices are now reviewed under the rule
of reason approach based on consumer welfare analysis.36 In 2007 the Leegin decision,
reversing a decisional practice nearly a century old, abandoned the per se prohibition of
From a more general point of view, the US decisional practice appears to have moved
towards the adoption of the vision of incentive-based competition. In particular, in some
recent decisions the Courts seems to suggest that the constraints to the behaviour of
dominant enterprises should be evaluated very carefully and in a limited number of
circumstances38. In particular, in Trinko the Court argued against the imposition of a
duty to deal in the case of firms controlling essential facilities, maintaining that limits
on monopolists to exploit their position would affect their ability to innovate39.
4. From the Competitive Process to Efficiency
The increased recourse to economic analysis in antitrust stems from the need for a more
objective foundation to the legal analysis of restrictive practices, providing criteria to
35 For an illustration of the Post Chicago economic theories see Shapiro (1989). For a discussion see
Hoovenkamp (2001) and Makovsky-Ostroy (2001).
36 Among the most relevant decisions are Sylvania, [Continental Inc. vs. GTE Sylvania Inc. 433 US 36
(1977)] which applied “rule of reason” analysis to vertical restraints; BMI [Broadcast Music Inc. vs. Columbia Broadcasting System, Inc. 441 US1 (1979)] which applied “rule of reason” analysis to horizontal cooperation; and Brooks [Broooks Group ltd. vs. Brown & Williamson Tobacco Corporation, 509 US 209 (1993)] which revised the standard for predatory pricing.
37 See Leegin Creative Leather Products vs. PSKS in 06 US 480 (2007).
38 As noted by Braun-Ginsborg (2007), during the last decade the Supreme Court has generally been
favourable to the defendant, therefore making it difficult for plaintiffs to argue their case.
39 See Verizon Communication Inc. vs. Law Offices of Courts v. Trinko, LLP. 02 US 582 (2004).
this effect. The consumer welfare approach may be considered as a way of better
understanding when practices may be presumed to be actually directed only at
restricting competition on the market (through exclusion or coercion), because they do
not result in any increase in efficiency and therefore in benefits for the consumer. The
same approach proves useful also in assessing whether, instead, such a presumption is
not justified because there are other reasons to undertake them rather than for
anticompetitive purposes. In particular, if a practice gives rise to a reduction in prices or
an increase in output, it may be inferred that there was a good reason to undertake it , on
efficiency grounds, and that there exists on the market sufficient competition to cause
the transfer of at least part of the gains from efficiency to the consumer and, therefore,
to ensure pressure towards allocative as well as productive efficiency.
In this vein, other approaches have been elaborated with an aim to providing a more
objective, economic-based evaluation of restrictions to competition. In recent years a
number of economic criteria have been proposed in order to give a more objective
content to the concept of “competition on the merits”, so as to take into account that, if
the practice is the result of a superior performance by the firm, it may lead to the
exclusion of a competitor, but also to an improvement of the conditions of supply and to
However, the role of economics in antitrust law may be pushed further than just
stressing the importance of a more thorough understanding of competition practices.
Instead economics and efficiency may be put at the centre of antitrust law. According to
the analysis of legal theorists like Bork and Posner, who have been very influential in
developing the Chicago paradigm, efficiency and consumer welfare are not the criteria
40 The effect of the exclusionary practice on consumer welfare is one criterion which may help in
evaluating whether the exclusion was actually anticompetitive. Other criteria have been proposed in order to try and qualify the behaviour of the dominant company also on the basis of the characteristics of the competitors. These criteria have been labelled as the “profit sacrifice”, the “non economic sense” and the “as efficient competitor” tests. The “profit sacrifice test” examines whether the practice leads to a profit sacrifice which has no justification other than damaging the competitor; the “non economic sense” test argues that a conduct is unlawful if it makes no economic sense other than the elimination of the competitor; lastly, the “as efficient competitor test” considers as restrictive only those practices which could lead to the exclusion of competitors as efficient as the dominant firm. See the contributions in OECD (2005). For a critical discussion see Vickers (2005).
on the basis of which to evaluate the conformity of the behaviour of the parties to the
pursued aim of competition law, i.e. the preservation of a competitive market. They are
the very same final objectives of the law. The reason why law protects competition is
because it is the best way to achieve consumer welfare and efficiency. Therefore they
call for a profound change in the whole approach to the objectives of antitrust law, by
putting at its centre a purely economic paradigm. It follows that competition is not the
final objective of the law, but an intermediate one: it is, in fact, an instrument for the
achievement of efficiency and for welfare improvement41.
This purely economic approach based on efficiency has gained wide support among
economic and legal experts in the US and in Europe42. In fact, it seems to put on more
objective grounds the analyses of anticompetitive practices and to eliminate the risk that
in the evaluation consideration is given to issues relating to the fairness of the
competitive process, or to its social implications.
In fact, the purely economic approach implies a radical change in perspective.
Traditional competition law aims at, and is based on, the analysis of the interaction
among competitors, in order to insure that it is not distorted by the abuse of market
power. Efficiency and consumer welfare considerations are helpful in this context,
because they provide criteria on the basis of which to evaluate the effects, actual or
potential, of the practices at hand. In the new context, the interaction among competitors
is no longer important, so long as a certain practice leads to improvements in efficiency
However, the use of economic analysis in antitrust does not necessarily seem to imply
the adoption of an approach exclusively based on efficiency. . As we have discussed,
the enhanced role of economic analysis in the Chicago and Post-Chicago approach is
41 See Bork (1978); Posner (1974). R. Bork, one of the earliest critics of decisions based on the
structuralist paradigm, argued that the US Sherman Act had been drafted under the explicit and ole purpose of maximizing efficiency to the benefit of the consumers. Therefore, in his view, it was the legislative will which required that courts apply and efficiently orient criteria in the application of the antitrust law. However Bork’s analysis of the origin of the law was highly controversial and is not generally shared [see Hoovenkamp (2005); Peritz (1996)]
42 Among the European contributions supporting an efficiency approach to the application of competition
law, see Jenny (1993); Ahlborn-Padilla (2007); Heimler (2007). See also OECD (2005).
based on a view of competition which gives great relevance to incentives and to their
role in a process guided by rivalry. Attention to consumer welfare and efficiency derives
from the preoccupation that antitrust enforcement may lead to type 2 errors, and this
justifies that a dominant role in the analysis of practices is given to economic criteria.
However, this does not imply a shift in the role of competition from being the main
objective of the law to a mere instrument.
As a matter of fact, it could be argued that a proper application of the efficiency
framework would be to examine practices not in terms of their effects on consumer
welfare but rather in terms of their effects on total welfare and wealth. According to this
view, if a practice leads to savings in the use of resources which are larger than the loss
of benefits to the consumers, the same should be considered harmless because in any
case a transfer of wealth from producers to consumers would lead to a potential increase
in consumers’ welfare as well, according to the Kaldor-Hicks criterion43.
This latter conclusion emphasizes the difference between the purely economic paradigm
and the traditional one, once a meaningful economic analysis is included in it. For the
first paradigm, substantial restriction of competitive pressure or even its elimination are
of no significance, as long as the practice gives rise to increases in total wealth.
Therefore allocative efficiency is not really important. Traditional analysis is concerned
not only with total welfare maximization, but also with the allocative effects of the
competitive process because these effects are the indirect consequences of the existence
of competitive pressure. If consumer surplus is reduced, it means that also competitive
pressure is reduced. It is important to note that the conclusion of the efficiency
approach derives from a more general view of the relations between legal principles and
economic analysis, which finds roots in the positive approach to law developed by
Posner, according to which the development of common law and of its criteria of
43 Both Bork (1978) and Posner (1972) argue for such a total welfare approach. In 1975 Posner proposed
a consumer welfare approach, considering that the quest for monopoly would produce monpolization costs which would exhaust any producer surplus: therefore changes in consumer welfare would correspond to changes in total welfare.
application are guided by the search of efficient solutions to the problems posed to the
judges44. Therefore, he argues that judges’ decisions should be guided by the paradigm
of economics, which provides the best indications for achieving efficiency. In our case,
this would imply that the application of antitrust law should be based exclusively on
However, Posner’s approach to law and economics is far from uncontroversial45. His
views are obviously incompatible with those conceptions of the law which view
legislation as the consequence of the preference of society for certain interests, which
are therefore protected, and see competition law not only from an economic point of
view46. In fact these analyses appear to be very important in inspiring application of
antitrust legislation in many countries47.
In fact, the issue whether pure efficiency represents a socially accepted rule appears to
be central to the purely economic interpretation of the efficiency approach. As a matter
of fact, even many of those who share an economic approach to antitrust have
reservations in accepting total welfare as its application criterion, in so far as they do not
share the view that application of the law should be neutral to transfers of wealth
More fundamental criticism has come from approaches to law and economics which,
like the Public Choice school, are sympathetic to a legal analysis based on an economic
paradigm, and still believe that economic considerations matter not so much in
determining the way in which the law is applied in the specific case, but rather in
determining the institutional context in which transactions take place, including in
particular the system of law. In this context the role of legal rules is to define socially
46 These are the conceptions of the Yale Law School. See the seminal article Calabresi-Melamed (1972).
47 A. Phelp reviews the legitimate objectives which are pursued by competition law in the book edited by
Ehlermann-Laudati (2003). See also the other contributions of the same volume.
48 See Salop (2005), who notes that a total welfare approach would consider in a positive way increases in
profits obtained by inefficient competitors, at the expense of consumers. See also Pittman (2007).
stable reference rules to the use of economic rights49. There follows the criticism that a
rule based on case-by-case decisions on the grounds of an efficiency criterion would
hardly provide such a socially stable reference50. In this vein, some authors have argued
that drawing a legal theory of competitive harm without having a clear role for
competition in the legal system risks opening up the way to policy perspectives which
would be incompatible with an economy led by free market initiative51. If the objective
of the law is to maximise consumer welfare or total wealth, it is well possible to devise
ways other than a competitive market system to obtain them, and in such case there
would be no reason to prefer one to another52. This however would lead to lose the
advantages, in terms of innovation and discovery, related to the working of competition.
This is why the competitive working of the market, and therefore the competitive
process, may quite legitimately become the central tenet of antitrust law.
49 According to J. Buchanan (1976) “ “Social order” requires general acceptance of a minimal set of
moral standards. Well defined laws of property and freedom of market exchange minimize the necessary scope and extension of such standards, but they by no means eliminate them”.
50 In explicitly criticizing Posner, Buchanan (1974) distinguishes between “law…(which) is a stabilizing
institution providing the necessary framework within which individuals can plan their own affairs predictably and with minimal external interferences…… (and) legislation (which) is partially different in that its very purpose must be one of serving or implementing explicit social or collective objectives”. G. Monti (…), in discussing Article 82 EC Treaty, notes Posner’s position, in Posner (2000) ch. 9, with respect to Section 2 of the Sherman Act, that not only monopolization should be forbidden, but all practices leading to a distortion of competition, independently of the position of the firm on the market. Such an approach is perfectly attuned to the economic paradigm, and seems to have inspired the paper drafted by economic consultants to the EC Commission (EACP, 2005), suggesting that application of Article 82 should take place independently from the finding of a dominant position. However, as Monti notes, this would amount to eliminate the prescription of Article 82 altogether, substituting with a provision forbidding anticompetitive unilateral behaviour. This would be undesirable. In fact, it would have two effects: it would eliminate the special status of dominant firms; but it would extend an obligation of non-anticompetitive behaviour to all firms. The end result would be a much less stable and foreseeable legal context for all firms.
51 This position clearly has roots in the vision of Hayek (1978). See Mestmaker (2007); Zywiky-Saunders
52 It may be appropriate to recall that one of the high points in the elaboration of the theory of the market
as an institution was the debate on the working of a market system under a socialist regime. Under the influence of traditional model of perfect competition socialist economists looked at competition as an efficient way of optimizing the use of resources. Hayek (1935; 1945) argued that the benefit of competition comes from its ability to organize sparse knowledge: therefore it was most desirable regime, aside its efficiency characteristics.
II. COMPETITION LAW AND ECONOMICS IN THE EC
The developments in EC competition law which have taken place in the last decades are
largely the consequence of the evolution of economic and legal thinking that we have
reviewed in the previous pages. Such an evolution in turn has called in question the
ordoliberal legal-economic vision, which since the beginning has inspired the European
approach to antitrust, which conceives competition law as a basic tenet of the legal
order of a free market economy and puts at the centre of competition law the protection
of the competitive process, i.e. the interaction guided by rivalry between the competitors
1. The ordoliberal view of competition
It is generally recognized that at the basis of the antitrust provisions in the Treaty is the
vision about their role in ensuring a free market economy in a free society, characteristic
of the ordoliberal tradition This was at the time of the drafting of the Rome Treaty the
driving intellectual force in Germany, the strongest continental European economy and
the only one where a modern competition law was in force53.
Ordoliberal competition vision shares many characteristics with the classical liberal
view of competition. The competitive market system is placed at the centre of a free
political order: in a state of free competition all economic players meet as equals under
a legal viewpoint, and voluntary exchanges and contracts are the only means by which
economic activity are coordinated. From this point of view a free competitive market
53 The Ordoliberal School gathered in fact a group of economists and lawyers, among which were Walter
Eucken, Franz Bohm and Wilhelm Ropke who already in the 1930s began studying and defining the criteria for the working of a free economy in a liberal democratic state, which they saw would have followed the fall of the Nazi regime. After World War II they become very influential in particular with the Finance Minister Ludwig Ehrard, who later became Chancelor of the Federal Republic of Germany. On their views see Gerber (1998); Pace (2005); Vanberg (2004); Ahlborn-Padilla (2007). A collection of writings of ordoliberal legal and economic experts is in Peacock-Willgerodt (1989).
has not only an economic but also a social value. What is distinctive of the ordoliberal
view is the role of the legal order in ensuring a competitive market. The free market is
not one without rules, but is rather characterised by a legal institutional framework in
which market transactions take place54. This institutional framework requires a (explicit
or implicit) constitutional choice, implying that the legal order must be conformed in
such a way as to guarantee the development of a free market. Core to such legal order is
a competition law system governing the use of private economic power, so as to
guarantee that the freedom of contract, which is obviously central to a competitive
market economy, is not used for the purpose of restricting or eliminating the freedom of
At the basis of the ordoliberal view of competition law was the protection of the
competitive process though the prohibition of any form of conduct, which restrained
autonomous economic behaviour. Therefore, antitrust prohibitions would apply not only
to cartels (which are obviously incompatible with a competitive order) but also to other
types of agreements likely to have the effect of restraining competition. As for unilateral
conducts, ordoliberals thought the law should forbid practices through which a firm
used its market power in order to prevent competition from other firms, or coerced the
In particular ordoliberals argued that a situation where a company dominated the market
was incompatible with a competitive order, unless the company competed on the merits,
i.e. by superior performance. In the view of the ordoliberals this meant that the
dominant company should not use practices which would significantly affect the
competitive opportunities of rivals and which were based on their market power55.
54 As it may be clear from the preceding discussion, this view is also shared by other liberal writers, like J.
55 Kallaugher and Sher (2004) recall Prof. Ullman proposal for identifying abusive conduct: a) the
conduct must affect the competition opportunities of rivals; b) the conduct must not be performance based. For instance this meant that fidelity rebates based on the market share of the enterprise would not be allowed: but other kinds of rebates, available to non dominant enterprises would be allowed. According to them this proposal was at the base of the Hoffman La Roche ECJ decision (see below).
From this approach it came that dominant companies should perform “as if” they were
in competition56: the prescription followed that dominant companies should not indulge
in practices to the consumers unavailable to firms in competition: in particular excessive
Finally, these predicaments were applied to an economic vision, which gave an
important role to the structure of the industry, considered the main factor of a
competitive behaviour, and which was little optimistic that a competitive order would
be established spontaneously on the market. In particular, influenced by the experience
of the German economy between the two wars, ordoliberals thought that oligopolistic
industries would soon evolve into cartels, leading to collective monopoly. From this
point of view the “as if” paradigm was also aimed at discouraging collusion: because
firms knew that they would not be able to exploit their market power on the consumer,
they would have little incentive to collude57. Therefore, the ordoliberal scheme was
characterized by a certain favour for smaller competitors, as they allowed the market
2. Ordoliberalism and the shape of EC competition law
Reference to the ordoliberal vision of competition influenced the way in which EC
competition law was drafted, and in which it has been applied for decades.
First, a competitive regime was thought to be instrumental with respect to the basic
objectives of the Community as represented in Article 2 of the Rome Treaty, i.e.
economic integration and a common market. Therefore a system ensuring that competition in the market is not distorted was included since the beginning in Article
3.1 among the Principles of the EC Treaty as actions necessary to achieve these
objectives. As we shall see later, this inclusion gave substantial strength to the
application of the competition provisions in the Treaty. 56 Gerber (1998); Ahlborn-Padilla (2007)
57 See Ahlborn-Padilla (2007) quoting Eucken, a leading ordoliberal. See also Vanberg (2004), who notes
that ordoliberals thought that once a competition law was in place, there would be no need for its frequent use.
Second, as for the substantial provisions, in its first paragraph Article 81 (originally
Article 85) of the Treaty forbids agreements that restrict competition, incorporating the
ordoliberal aversion on cartels58. From this point of view a general prohibition of
agreement which have as an “object or as effect” the restriction of competition is
followed by a list of types of behaviour which are considered restrictive. Article 81 is
however structured in such a way that according to its paragraph 3 agreements which
restrict competition may be exempted from the prohibition and give rise to substantial
improvements in production and distribution, in technical progress (basically efficiency
effects) which are passed on to the consumers. However, in line with the ordoliberal
vision, they cannot lead to elimination of competition from the market.
Article 82 (the original Article 86) forbids practices by a dominant company which
restrict competition. Even in this case a number of practices are listed which exemplify
a forbidden behaviour. The list is substantially identical to the one in Article 81 and this
shows how the drafters of the provision were influenced by the “as if” paradigm. In fact,
the list in Article 82 seems to concern mostly exploitative abuses, i.e. practices, which
directly affect consumers. This is in sharp contrast with the provision in the US antitrust
law, which does not provide for exploitative abuses.
Therefore EC antitrust law resents the ordoliberal inspiration in many ways. First, it is
enshrined as a constitutional rule in the Treaty, and actually it is included in its basic
Principles. Secondly, the competitive process is the reference point of the antitrust law,
as Article 81(3) allows agreements enhancing efficiency and consumers welfare as long
as they do not lead to elimination of competition from the market, while dominant
companies are prevented from abusing of their position in order to restrain competition.
Thirdly, an “as if” principle is stated in the provision concerning unilateral practices.
Finally, while the approach is centred on the protection of a competitive process, and
therefore on rivalry, Article 81 and 82 make explicit reference to the expected effects of
competition on the consumers: the conditions for exempting restrictions set in Article
81(3) specify that the exempted agreement must in any case lead to transfer of benefits
58 On the debate leading to the adopted version of Art. 81, see Pace (2005).
to the consumers. Article 82 specifies that abusive practices be forbidden in so far as
they lead to restriction of competition to the detriment of the consumer.
These principles still seem to contribute to the interpretation of the EC competition law.
In a recent and very debated case concerning the application of Article 82 to a rebate
scheme, the Advocate General argued in its conclusion that “Article 82 EC, like other
competition rules of the Treaty, is not designed only or primarily to protect the
immediate interests of individual competitors or consumers, but to protect the structure of the market and thus competition as such (as an institution), which has already been
weakened by the presence of a dominant undertaking on the market. In this way
consumers are also indirectly protected. Because where competition as such is damaged,
disadvantages to consumers are also to be feared”.59 There is a definite ordoliberal
influence in this statement, in the reference both to competition as an institution, and to
the structure of the market. Furthermore, consumers’ interests are viewed as indirectly
protected by the protection of competition, and not as the direct objectives of this
3. Early application of EC competition rules
Application of articles 81 and 82 by the Commission and the European Courts has been
for a long time guided with attention to the formal characteristics of the practices they
concerned rather than to the actual effects on the markets.
As for agreements, the Commission interpreted the prohibition in Article 81(1) very
narrowly. This formalistic attitude was reinforced by the enactment, in 1962, of Council
Regulation No. 17, which established the criteria for application of competition rules. In
fact Regulation No. 17 introduced a notification system, whereby Article 81(3)
exemptions could be applied only to agreements which had been notified to the EC
Commission or which conformed to the criteria set in general exemption regulation
(block exemptions) issued by the same Commission.
59 Opinion of Advocate General Kokott in (C-95/04), British Airways vs. Commission of the European Communities, delivered 23 February 2006, par. 86.
In the case of “vertical” restraints, the formalistic attitude of the Commission was
reinforced by the presumption that agreements between producers and distributors
limiting the autonomy of the latter could lead to artificial segmentation of the European
In the area of unilateral behaviour, we have noted that Article 82 seems to be concerned
with the exploitation of the consumers. In fact, there has been a limited application of
However in some fundamental decisions the European Court of Justice (ECJ)
interpreted the prohibition as aimed at practices which harmed competitors, and
established the limits to the behaviour of a dominant company, in order to protect the
competitive process. In Continental Can, a case in which the Commission tried to
prevent the acquisition by an American company producing metal containers of a
competitor in the same sector, the ECJ, while voiding the Commission decision, stated
that the objective of EC competition law is to protect the competitive process; therefore
conducts which weaken the competitive structure of the markets so as to impose
damage to the consumers are prohibited61. A relevant point is that in order to include
acquisitions under the prohibition of Article 82, the Court made reference to the role of
competition in the achievement of EC basic objectives, expressly referring to Article
3(1)g and Article 2. The Court recurred to this teleological interpretation in other
instances, when it had to argue that some limits to individual rights should be
introduced in order to make them compatible with the role of competition in the Treaty:
in particular, it used this approach in its first essential facility case, ICI-Commercial
An aspect of particular interest of the Court’s approach to unilateral behaviour has been
the characterization of an abuse of dominance as an objective concept: insofar as the
60 In particular, there has been a number of instances where the Commission has applied Article 82 to
cases in which dominant firms were thought to apply excessive prices. For a list and a discussion see Motta-de Stael (2003). While the ECJ has recognized the applicability of Article 82 in these cases, it has generally found unsatisfactory the criteria according to which the price was considered excessive.
61 See Europemballage Co. and Continental Can Co v. Commission C-6/72 (1973)
62 See Istituto Chemioterapico Italiano and Commercial Solvents v Commission C-6&7/73 (1974)
behaviour is liable to restrict competition the same is abusive, irrespective of the intent
of the firm. This conclusion derives from the already noted approach that a dominant
company must compete only on the merits, and therefore it has a “special
responsibility” to perform “as if” it were in competition and therefore should not restrict
This approach has led to a stream of decisions which tend to limit the behaviour of
dominant suppliers to competition on performance. This has led to the prohibition of
practices which, when adopted by dominant suppliers, could have as effect the
exclusion of competitors from the market. Among these are, in particular, exclusive
agreements which are deemed to foreclose the market to competitors64; discounts which
are designed to exclude competition65; refusals to deal with the competitors in the
provision of input necessary for operating on the market66.
These decisions have been criticized for not being based on economic analysis.
Basically, the criticisms concerned two aspects. First it seemed that the Commission
and the Courts evaluated conducts on the basis of their formal characteristics, and not
on the basis of the actual or potential exclusionary effects that they could be expected to
have in the specific context. Secondly, the analysis did not examine whether the
exclusion leads to undesirable restriction of competition, or rather was justified on
efficiency grounds. As a result the application of the law in the field of unilateral
practices tended to concern practices, which were in fact beneficial to the consumer and
at the sole effect to lead to the protection of inefficient competitors rather than
63 See case C-85/72, Hoffman Laroche & Co. AG vs. Commission (1979), par. 91.
64 For instance Hoffman Laroche & Co. AG vs. Commission, above ; United Brands Company C- 335/76
(1976); Case T-65/98, Van den Bergh Foods v. Commission. T 65/98 (2004)
65 For instance Nederlandsche Banden Industrie Michelin v. Commission C 322/81 (1983) (Michelin I);
British Airways v Commission of the European Communities quoted above; and Michelin v Commission of the European Communities, CaseT-203/01 (2004) (Michelin II)
66 For instance ICI- Commercial Solvents quoted above; IMS Health GmbH & Co. OHG and NDC Health GmbH & Co. KG., Case C-418/01
67 For instance, in the case of ICI, the company, which was the only producer of aminobutanol, which it
used to produce solvents, decided to enter in the market for ethambutol, a pharmaceutical product for
4. Towards a greater role for economic analysis
During the 1990s substantial changes have taken place in the application of EC
competition law, towards a greater reliance of economic analysis. In turn, these changes
First, after fifteen years of discussions, in late 1989 Council Regulation 4069/89
introduced a mandatory control for mergers of Community dimensions in the EC. The
introduction took place according to Article 308 of the Treaty (at the time Article 235)
according to which the Council may introduce new legislation, which is essential for
pursuing the objectives of the European Community. Recourse to this Article was
therefore based on the fundamental role that competition law was considered to have on
the achievement of the basic Community aims on the basis of Article 3(1) and Article 2
The introduction of merger control had important consequences on competition law at
large because merger analysis is perspective and concerns the expected effects of the
merger on competition in the market. Therefore it is mainly based on the analysis of the
economic structure and conditions in the market, at a time in which attention to
efficiencies had already been put at the centre of antitrust economic analysis. This in
turn influenced the formalistic attitude in the analysis under Article 81 and 82 as well.
Secondly, in the 1980s and early 1990s in a number of decisions concerning vertical
restraints, the ECJ stated the need for evaluating prohibition under Article 81(1) in their
which aminobutanol was an input. Therefore it terminated its supply agreement with Zoja. The Commission and the Court made an early application of the essential facility doctrine, and sanctioned the behaviour as refusal to deal. However ICI was substituting for Zoja, and there was no change in the competitive situation from the point of view of the consumer. In United Brands, the company tried to terminate and then boycott a distributor which had undertaken to distribute bananas also from a competitor. It is doubtful that the termination would have lead to a reduction of supply to the consumer: actually two different distributors of different brands would have competed more effectively. See Fox (1981).
economic and legal context68. The issue raised by the ECJ was that, with the exception
of hard-core restrictions concerning price fixing or market sharing, vertical and
cooperative agreements could not in principle be considered as restrictive by object.
They could well pursue a legitimate interest, and therefore would not need to be
prohibited (and thus did not need an exemption under Article 81(3)). This analysis was
later extended to horizontal cooperation agreements69.
It may be relevant to clear that in these judgments the ECJ was not arguing for an
application of Article 81(1) on the basis of the “rule of reason”: according to the Court,
as later specified in Metropole,70 the balancing of pro and anti-competitive effects of
agreements should take place within Article 81(3). Rather, the ECJ was arguing that
with the exception of hard-core restrictions, agreements cannot be presumed to be
restrictive and suggested that attention should be given to the economic context in
Third, at the turn of the 1980s competition legislation was introduced in a number of
countries (Ireland, Italy), or was modified in those which already had one (France,
Spain). Usually these new laws were structured according to the provision of Article 81
and 82 of the EC Competition Law. However, the way they were applied was often less
legalistic and more influenced by modern antitrust doctrine, giving more weight to the
role of efficiency in the explanation of practices, and requiring analysis of their effects
on consumer welfare. This gave more strength to the opinion of those who thought the
application of EC Competition Law would move toward an economic-based approach,
oriented by the developments in legal and economic analysis we have examined
68 L. C. Nungesser Kg E Kurt Eisele v. Commission of the European Communities, Case 258/78, (1982) ;
Pronuptia de Paris v. Schillgallis, Case 161/84, (1986);De Limitis v. Henninger Bräu, Case C-234/89, (1991).
69 Court of First Instance in Case T-374/94, European Night Services v. Commission, (1998).
70 See Métropole Television SA and Others vs Commission C 75/84 (1996).
71 Among the early critics see Korah (1990); Pera-Todino (1996); Siragusa (1997).
Finally, also as a result of the above, the Commission decided to move its attention from
vertical to horizontal restraints, and in particular to cartel enforcement, channelling its
b) Article 81 and vertical restraints
The treatment of agreements was the area which was first affected by change. In
particular, a first step was to question the way in which Article 81 was applied to
vertical restraints. In the US, already in the 1970s the Sylvania doctrine had excluded a
per se prohibition of exclusive agreements. The decisions of the ECJ, which we have
referred to above, followed the same inspiration72. Therefore, it seemed appropriate to
revise the EC approach as well. In the then existing framework of Reg. 17/62 the intent
was reached through the enactment of a block exemption for vertical agreements which
exempted agreements undertaken by concerns which had less than 30% of the market,
and in the issuance of detailed guidelines which were based on a thorough economic
analysis of the effects of the agreements73.
The regulation extended an exemption to vertical agreements whereby the market share
of the parties concerned were below 30%, unless they had as their object retail price
maintenance or exclusive territorial restrictions, leaving however the possibility of a
prohibition in case an agreement corresponding to a lower market share had a restrictive
effect. The Guidelines, issued in 2000, went in detail to specify the criteria according to
which the effects of the agreements would be evaluated. It is relevant that in the
guidelines the relevance of vertical restraints to the end of achieving efficiency is
clearly recognized, and the direct and indirect effect on consumers of agreements
according to the criterion set in Article 81(3) becomes the standard according to which
72 While these decisions did not argue for the application of the rule of reason, they called for an
economic analysis of practices. See Amato (1997).
73 Regulation on the application of Art.81 par. 3 to certain categories of vertical agreements and
concerted practices, Reg 2790, 22.12, 1999 and the Guidelines on Vertical Restrictions O.J.E.C. C 291 of 13.10.2000.
The same line of thought led the Commission to formulate three set of guidelines on
horizontal cooperation (2000), according to which agreements aimed at cooperation in
research and development, specialization and transfer of technologies would be
automatically exempted under article 81(1), as long as the market shares of the
participating enterprises was sufficiently low, and firms where independent in the phase
Altogether, the new approach made less relevant the distinction between Article 81(1)
and 81(3) as even agreements which would fall under Article 81(1) would be
automatically exempt if they would be covered by the provisions of the guidelines.
However, the introduction of an economic approach has had even more far-reaching
consequences: it put in question the same way in which Reg. 17/62 governed the
application of Article 81, and in particular the Article 81(3) authorization system.
Therefore, even before the vertical regulation was enacted, the Commission issued a
White Paper for the modernization of the application of EC competition law75. After
three years of public discussion, this led to the adoption of a new Council Regulation,
Reg. 1/2003, the Modernization Regulation, which completely overhauled the criteria
The Modernization Regulation had many aims, among which the increase in the
investigative power of the Commission, the introduction of new powers and types of
decision and the possibility to open sector inquiries. Furthermore the regulation states
the prevalence of EC competition provisions over national competition law, so that EC
competition law becomes the one and only competition law for practices affecting the
common market; and it dictates the criteria for a decentralized application of EC
74 Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements,
75 White Paper on modernization of the rules implementing Articles 85 and 86 of the EC Treaty, OJ C
76 See among the others Gerber-Cassinis (2006).
However, to our goals, three aspects are really relevant. Firstly, the regulation
completely overhauled the previous system of application of Article 81 based on
notifications, introducing a “legal exception” system whereby agreements are evaluated
ex post on the bases of the whole of Article 81. The legal exception system makes
explicit that the criteria of application of the “rule of reason” based on economic
analysis become the rule for the application of article 81. This may not appear
particularly new: we have noted that in Metropole the ECJ, while arguing that Article
81(1) was not concerned with the rule of reason but with the inherent characteristics of
the restrictions, remarked that the rule of reason analysis should be performed through
the application of Article 81(3). However, at the time a widespread application of the
rule of reason was prevented by the fact that exemptions could be obtained only through
a notification to the Commission. Now, instead, this criterion becomes the rule for the
Commission, the national authorities and the national judges.
This wider recourse to the rule of reason obviously gives great importance to the system
of legal and economic presumptions concerning the practices under examination.As for
legal presumptions, Regulation 1/2003, following previous EC jurisprudence, specifies
that the burden of proof of proving restrictions under Article 81(1) is on the plaintiff, be
it the Commission, a national authority of a private party in front of a judge, while the
burden of proof of the exception under Article 81(3) is on the defendant. Economic
presumptions follow from economic analysis, which may provide an ex-ante evaluation
of the expected effect of the conducts on competition, and may provide the economic
criteria according to which the presumptions may be verified.
These legal and economic criteria have been further explained by the Commission, in its
2004 notice on the application of Article 81(3), which gives ample consideration to the
possibility that arrangements and practices may result in positive effects on consumer
That consumer welfare has become the standard for evaluating the competitive harm is
shown by the recent decision of the Court of First Instance (CFI) in the case Glaxo-
77 Guidelines on the application of Article 81(3) of the Treaty, O.J.E.C. C 101 of 17.4.2004.
Smith Kline78. The case concerned an imposition by GSK to its distributors in Spain not
to re-export its drugs, which were sold at an administered price set at a much lower
level than in other European countries. The Commission had argued that GSK unilateral
imposition was equivalent to an agreement. And pretended that the export ban
hampered competition. The CFI, while refusing the first argument, argued that there
was in fact no restriction of competition in the new markets, because the practice did not
reduce consumer welfare: in fact, because drug prices in all the EU countries are
administered by law, parallel exports did not lead to any improvement in consumer
welfare and rather corresponded to a mere transfer of profits from producers to parallel
In the field of Article 82, concerning the abuses of dominance, the role of economic
analysis appears to have evolved more slowly. A stream of economic analysis according
to which the structure of the market was particularly relevant has for a long time guided
In particular, this approach is reflected in the treatment given to practices such refusal to
deal and rebates by dominant companies. Since ICI, the Commission has sanctioned
refusals to deal by a dominant company, and has elaborated a wide-ranging doctrine of
access to essential facilities, which requires a dominant company to guarantee access to
an input it controls every time that such an access is necessary to effectively compete in
the market and the input cannot be reproduced economically. Such a provision extends
to IP rights when the aim of IP rights is necessary to offer a new product.
Despite this doctrine has been given economically reasonable interpretation, guided by
economic considerations in Oscar Bronner79, it appears that in other cases, ranging
from ICI to the recent IMS Health80, the Commission and the Court had been mainly
78 Glaxo Smith Kline Services v. Commission T 168/01 (2006).
79 See Bronner/Mediaprint, Case C-7/97, (1998).
guided by the preoccupation to maintain access to the market, even when this was not
clearly justified by economic considerations.
Over time, a drive towards a more economically based antitrust analysis emerged also in
the context of Article 82 enforcement81.
However, a widespread perception exists that the enforcement of Article 82 EC
continues to be driven by the consideration of structural aspects82.
This attitude may be traced also in cases involving rebates, a particularly delicate
subject, as it involves practices which are likely to benefit consumers: even so the
Commission has applied a very formalistic analysis, considering that rebates by a
dominant company should only be based on cost efficiencies deriving from the level of
sales, and they should therefore be proportional to sales. Other kinds of discounts were
usually considered restrictive. In particular, in Michelin II, in reviewing a Commission
decision concerning rebates, the ECJ evaluated that it was not necessary that discounts
are proved to have caused exclusion, and that it was enough to argue that they could
have the “likely” effects on competitors. Even more remarkably, in Michelin II and in
another case concerning rebates (BA-Virgin Atlantic), the Commission, and later the EC
Courts, reached the conclusion that the practice was restrictive despite the fact that the
market shares of the dominant company had declined (Michelin II) or had not increased.
It is notable that in these cases the issue of a pro-competitive justification for the rebates
was submitted to the CFI and the ECJ, which however preferred to stay to the settled
In 2005 the Commission presented a discussion paper on the application of Article 82 to
exclusionary practices, in which it tried to reconsider its approach on the basis of a more
81 For instance, a refinement of economic analysis has taken place in predatory pricing cases leading to
Akzo, where the ECJ spelled out the criteria for holding predatory pricing anti-competitive. [AKZO v. Commission of the European Communities, Case C-62/86, (1991)] The CFI’s ruling in Van den Bergh conveyed a message purporting that a substantial degree of foreclosure must be shown to pursue an article 82 case. See Van den Berg above.
82 Hildebrand (2002); Gyselen (2003); Kaullager-Sher (2004).
83 See cases Michelin II and British Airway above.
sophisticated application of economic analysis84. The Commission aims at defining
criteria of analysis of unilateral practices based on their effects on competition, rather
than on formalistic classifications. To this goal it has adopted a benchmark based on the
definition of an “as efficient competitor” i.e. a hypothetical competitor, which would
have the same cost as the dominant company. Practices leading to the exclusion of less
efficient competitors, in fact, cannot be considered anti-competitive because they derive
from superior performance. Therefore, this text gives substance to the criteria of
“competition on the merits”. Such an approach is also an approximation to the test
concerning the effects of a practice on consumer surplus. In fact, even if one argues that
the restrictiveness of a practice can only be evaluated by its effects on prices and
quantities, and therefore on consumer welfare, it is sometimes difficult to actually
estimate what these effects will be. The analyses of the exclusionary effects on the “as-
efficient competitor” would then represent an approximation to a test based on the effect
on consumer welfare. On this basis, criteria deriving from economic analysis are
defined for each kind of practice (predatory pricing, rebates, refusals to deal) which
allow distributing the burden of proof between the plaintiff (or the Commission) and the
In particular, the Commission goes at length discussing various kinds of defences that it
is willing to consider before different kinds of restrictive practices. In this context the
Commission proposes to consider an “efficiency defence”, whereby unilateral practices
might be justified on efficiency grounds, as long as they conform to the criteria set in
Article 81(3), i.e. they do not lead to elimination of competition, and give rise to a
The proposed guidelines represent a substantial move towards an economic analysis of
Article 82. Still, they represent a mix of structural and efficiency analysis85. In
84 EC Commission - DG Competition discussion paper on the application of Article 82 of the Treaty to
exclusionary abuses, Brussels, December 2005.
85 According to Ahlborn-Padilla (2007), the Commission Draft Guidelines represent a rationalization of
the traditional approach. G. Monti (2006) shares this view, however noting the lower threshold for dominance could indicate the Commission has in fact shifted to a Substantial Market Power approach, more restrictive than dominance.
particular, the indication that a dominant position could be defined at market shares as
low as 25% (while in the ECJ jurisprudence such a threshold is generally set above
40%) seems inspired by the structuralist analysis. Also, while the program of the
proposed guidelines is to offer a paradigm based on effects, in the actual proposals,
economic analysis is used to standardize a series of commercial behaviors that are presumed to lead to exclusion of an efficient competitor.
5. Ordoliberal tradition and reform
The previous analysis shows that the process of change in the application of EC
competition law has been mostly directed at improving legal decision through the
application of economic analysis, along the lines suggested by the developments we
discussed in Section I. In particular, the framework of assessment used by the
Commission relies on economic analysis of the efficiency effects of the practices on
competitors as well as on the consumers.
However, one may wonder how much the introduction of economic analysis based on
consumer welfare, or on more refined criteria of economic and legal evaluation, is in
fact compatible with a paradigm in which the basic objective of competition law was the
protection of the competitive process based on rivalry, according to the traditional
ordoliberal interpretation. From this point of view, however, it is probably appropriate
to distinguish between the ordoliberal legal vision and the ordoliberal economic
analysis. Only the first one seems essential to the ordoliberal paradigm, and consists of
the constitutional role of competition law in the legal order, and therefore of the role of
the process of competition as a distinct objective of the law.
However, it is far from clear that such a legal vision must be necessarily connected to
the economic analysis which characterized the early ordoliberal thinkers and which was
the consequence of both the historical experience of Germany in the 1920s and 1930s
and of the inspiration by the structuralist paradigm.
In particular, the development of the criteria for the application of EC competition law
took place at a time in which structuralism was the dominant paradigm of analysis. As
we have discussed, this paradigm suggested wide use of per se prohibitions of
agreements aiming at limiting autonomous behaviour. In the US, the Schwinn doctrine
about vertical agreements prevented exclusive distribution. Cooperative agreements
were seen as potential instruments of collusion. And the maintenance of a certain
structure of the market was seen as the guiding principle for evaluating unilateral
conduct. This framework of analysis was dominant until the early 1970s. In this context,
the approach to vertical agreements in the EC can certainly be considered overzealous,
but the application of the EC law may be considered not incompatible with the then
prevailing schemes of economic analysis.
If structuralism is disentangled from the ordoliberal paradigm, the issue then becomes
whether an approach based on the protection of the competitive process is compatible
with the application of modern economic analysis. We have already argued at the end of
Section I that an analysis based on the effects of the practices could well be compatible
with such an approach, provided that efficiency effects are not considered to justify
elimination of competition, or its reduction unrelated to the benefits to the consumers.
One can further note that it is not the attention to the competitive process which led to
the excessive formalism in the application of Article 81. As we have argued earlier, this
appears in fact to depend on the way in which the Commission tended to interpret
Article 81. This in turn depended on its preoccupation with the objective of market
integration, and the risk that vertical agreements could lead to geographical
A clear indication comes from comparing the practice of the Commission with the
decisional practice of the ECJ in the field of agreements. Already in 1966, in Technique Minière86, in examining a case of exclusive distribution, the ECJ argued that once the
practice does not have as an “object” the restriction of competition, i.e. the fixing of
prices or the subdivision of the market, the prohibition in Article 81(1) should be
evaluated on the basis of the legal and economic context in which the agreement took
86 See Sociètè La Technique Minière v Maschinenbau Ulm Gmbh C- 56/65 (1966)
place. The Court therefore opened the way to an economic interpretation of the law,
which could go beyond a formalistic prohibition.
The fact that such path was not followed depended on the prevalence at the time of the
preoccupation of market integration: in the Consten/Grundig decision, the Commission
considered as forbidden by objective a clause of exclusive territorial restriction
protecting Consten, which was the exclusive distributor of Grundig in France, despite
the parties had argued that the clause aimed to protect its investment in the development
of the business. The Court accepted this position 87. This decision, together with the way
in which the Commission interpreted the two-step analysis in Article 81, opened the
way to the formalistic approach we have described above.
However, in the above-mentioned Article 81 decisions of the 1980s and 1990s, the ECJ
again stated that with the exception of hard-core restrictions, agreements could not be
presumed to be restrictive without an economic analysis.
These assessments are important because they were reached by the ECJ within the
context of the traditional analytical scheme inspired by the ordoliberal tradition.
Therefore they implied that, even in that context, a meaningful economic analysis
should be carried out before concluding that a restriction to the autonomy of the
contracting parties would have “as an objective or as an effect” a restriction of
competition, or rather it was just a way to achieve other legitimate objectives, like a
better sharing of risks or the creation of appropriate incentives, without any negative
In the field of unilateral exclusionary practices the evidence is less clear-cut. At various
instances both the Commission and the EC Courts have argued that, even within the
traditional paradigm of competition on the merits, the evaluation of the exclusionary
effects of the practices should be made on the basis of economic analysis, in order not to
hamper practices leading to increases in consumer welfare. However in practice even in
this case the evaluation has tended to qualify as restrictive certain practices without
further inquiry about their effects. However, it is doubtful that this conclusion derives
87 See Consten & Grundigvs. Commission C 64/556 (1964)
from the use of the paradigm of competition on the merits, rather than from its actual
application. Performance competition is in fact a vague concept, which must be filled
with recourse to economic paradigm, which takes into account the significance and
implications on the practice at hand, and in particular its effects on the market. If the
practice is the result of a superior performance it may lead to the exclusion of a
competitor, but also to an improvement of the supply conditions and to a better
treatment of the consumer. We have seen that criteria can be devised to take into
account the effects from the side of the consumer, as well as from the point of view of
the excluded enterprise. However, most EC decisions in the field of unilateral practices
do not appear to conform to these criteria. In fact, the EC approach, has continued to be
guided by the idea that the working of the competitive process is related to a certain
structure of the market. And this seems at the moment the most relevant problem with
III. NEW OBJECTIVES OF EC COMPETITION LAW?
In the previous pages we have argued that the traditional approach to EC competition
law is not incompatible with an increasing role of economic analysis. However, in
recent years the Commission seems to have taken a different orientation.
1. New Rethorics in EC Competition Law
The change seems to have taken place with the arrival of Commissioner Monti, who
soon put the emphasis on the role of competition law and policy in increasing consumer
welfare.88 This orientation has soon become the official position of the Commission:
this is the approach followed in the 2004 Commission notice on the application of 88 In one of his last speeches as Commissioner “Competition for Consumer’s Benefit”, at the 2004
Competiton Day in Amsterdam, Mr Monti recalled that “I said in my hearing before the European Parliament back in 1999(…)that I would give “central importance to the consumer”.
Article 81/3, where it is specified that the objective of antitrust law “is to protect
competition on the market as a means of enhancing consumer welfare and of ensuring
an efficient allocation of resources”.89
In a number of speeches, the successor of Mr Monti, Commissioner Neelie Kroes, and
Director General Philip Lowe stated even more clearly that “competition is not an
objective itself, but is an instrument for achieving consumer welfare and efficiency.”90
In a recent speech, Lowe explicitly underlined the difference between the old and the
new approach.91 He made direct reference to the old ordoliberal paradigm calling for
protection of the competitive process, and argued that the Commission has now decided
to follow a different paradigm, based on an economic interpretation of competition as an
instrument for achieving consumer welfare and efficiency. It follows that practices will
be examined on the basis of their effects on these objectives. The new attitude of the
Commission has therefore be taken as a clear sign that, as a consequence of more
attention to economic analysis and effects of the practices, application of EC
competition law is now inspired by the same principles which appear to inspire US
However, this new approach rises a number of issues. The first one is how effective the
shift has been. While it is true that in some decisions the CFI and the ECJ have
recognized the role of consumer welfare as a criterion for evaluating restrictiveness, as
we have seen the ECJ in particular still seems to refer to the competitive process as the
Second, while the Commission undoubtedly appears to be willing to base its decisions
on an approach grounded on economic analysis, the general context in which this is
taking place does not appear to be similar to the one in which the diffusion of the
89 See Guidelines on the application of Article 81(3) of the Treaty, above, par. 13.
90 See speech of Neelie Kroes at the London Competition Day, September 2005; in the same vein speech
of Philip Lowe at the Cartel Conference held by the Bundeskartellamt in Munich, march 2007, “Consumer Welfare and Efficiency – New Guiding Principle for Competition Law”.
efficiency-based approach has taken place in the US. There the establishment of the
efficiency-based paradigm has taken place in connection with a vision of competition
guided by incentives, characterized by the preoccupation of what we have called “type
1” errors, i.e. that enforcement of antitrust law may hamper efficient practices. In this
context, an efficiency-based approach was seen as ensuring that the constraints to the
creative force of competition were minimal.
This approach seems hardly compatible with the current evolution in Europe. Here there
seems to be less confidence about the ability of the incentives to lead to vigorous
competition, and more confidence in the ability of antitrust law to achieve desirable
results. And a vigorous application of antitrust is suggested in order to remove private
obstacles to competition, which are considered to still pervasive93. Such an application,
in fact, is guided by very activist intervention, at the basis of which it is possible to
discover a preoccupation with the market structure and the appropriate behaviour of
dominant firms. This approach appears to be at the bases of the most famous decision of
the Monti era, i.e. Microsoft. In particular, the finding of abuse with respect to the joint
provision of Microsoft Media Player and Microsoft Windows, which according to the
Commission prevented the development of alternative suppliers, has raised a number of
very controversial issues about the way in which innovation is developed and provided,
as well as the benefits to the consumer from joint supply. 94Furthermore, the evaluation
of the Commission appears to have been based not on actual effects on exclusion and
consumer welfare, but on perspective long term effects on the possibility of choice of
consumers, in turn related to the evolution of the market structure.95
93 Venit (2007), Padilla-Ahlborn (2007).
94 In particular, the products alternative to Media Player were often sold for free, the users tended to
install more than one product (so that it was doubtful whether the practice gave rise to exclusion), and in any case the market share of Microsoft in the market for Media Players was relatively low (around 40 per cent). The Microsoft decisions by the Commission and the CFI have been scrutinized in a number of contributions. A number of them are in the issue 1, 2008, of Competition Policy International, including articles by J.Vickers; E.Fox; H.Pate, D.Beard; and K. Bacon.
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