Beyond the Economic Approach: Why Pluralism Is Important in Competition Law

By Jkdlickova, Barhora | University of Queensland Law Journal, June 2018 | Go to article overview

Beyond the Economic Approach: Why Pluralism Is Important in Competition Law


Jkdlickova, Barhora, University of Queensland Law Journal


I INTRODUCTION

Due to the nature of competition law, which deals with business behaviour affecting the economy, it is not surprising that it is economic and not legal theories which have shaped the 'modern' approach. The dominant theoretical stream in competition law is welfare economics, informed by the neoliberal thinking of the Chicago and Post-Chicago Schools. In order to determine the anti-competitiveness of certain conduct, welfare economics applies a consequentialist approach by determining economic harm; anticompetitive harm occurs if total or consumer welfare (1) and efficiency decrease.

Despite the influence of the main theoretical stream encompassed by welfare economics, there is no unified agreement among scholars on the level of the incorporation of welfare economics into the legal and policy approaches to competition law. This is due to the differences between competition/antitrust-law approaches in various jurisdictions and the influence of other theoretical streams and historical and jurisdictional factors. Particularly in the European Union (EU), scholars and practitioners take different positions on EU competition law with regards to the combination of welfare economics and the deontological influences, usually referred to as a form-based approach. (2) On one side are the proponents of Post-Chicago welfare economics, who argue that an economic approach is lacking in the EU, or support the trend towards a more economic approach. (3) On the other side are scholars who argue that there is too much economics in the EU approach or that EU competition law should not incorporate more of the Post-Chicago School's influence than it already does. (4) The different spectrum of opinions includes the underlying assumption that there are conceptualised tensions among different theoretical streams, primarily between a more formalistic, deontological approach and the welfare economics consequentialist approach. (5) The focus on these tensions is one way to perceive the situation.

However, when reading through these critiques, it is obvious that not all welfare economists are strict consequentialists. Similarly, the proponents of a more deontological approach do not necessarily dismiss the consequentialist approach of welfare economics. For instance, Wils, who is critical of proponents of the 'so-called more economic approach' still argues that in competition law '[b]oth intellectually and institutionally, economic and legal analysis should be integrated'. (6)

Thus, the other way to look at the differences between consequentialist and deontological accounts is that these two could be joined into a more holistic, or pluralistic, approach to competition law. (7) This was the preferred analytical lens for Laura Guttuso's developing theoretical concept of anti-cartel law enforcement.

In her uncompleted PhD thesis, Laura proposed to conceptualise an approach for the enforcement of anti-cartel law which would 'move beyond a conventional outlook purely based on utilitarian theories of optimal deterrence and economic efficiency...'. (8) As part of the novelty of her thesis, she aimed for 'a more holistic assessment...' (9) of this area of competition law by utilising a pluralistic strategy. She wanted to defend 'the proposition that theories of optimal deterrence purely focusing on a social efficiency test fail to fully capture rights-based considerations founded on procedural fairness and social justice'. (10) In that regard, she was aiming for conceptualising a holistic approach which would 'bring together deontological principles of justice and procedural fairness with economics-based notions of optimal deterrence'. (11) She argued that 'if brought together effectively... it should be possible for these principles to co-exist and to reinforce one another'. (12)

Laura's pluralistic strategy with regards to the holistic theoretical framework is highly valuable. It is not only the correct strategy for Laura's PhD topic but for competition law in general. …

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