Relaxing whilst doing Competition Law is not an Oxymoron


with 3 comments

In her great fiction Anthem, Ayn Rand describes a word where humans cannot use the word “I” on pain of being sentenced to atrocities. This is part of a greater effort of the dictatorship to suppress the concept of individuality.

To some extent, EU competition law shares analogy with Rand’s novell. It is sometimes as if Commission officials were forbidden by the EU Courts’ case-law to use the language of economics. This could be allegedly part of a larger plan to undermine the relevance of economic concepts.

An example: in 2008, a Lithuanian Court asked the Commission whether the proof that an information exchange agreement infringed Article 101 TFEU was conditional on evidence that the market structure was “oligopolistic“. In accordance with Article 15(1) of Regulation 1/2003, the Commission released its opinion.

In an ideal world, where economic reasoning would freely inform legal interpretation, the answer would be a resounding yes.

Yet, according to the Commission, the case-law of the EU Courts does not explicitly request the proof of an “oligopolistic” market structure for a finding of an unlawful information exchange agreement. Given this, and in stark contradiction with modern economic theory, the Commission denies that “oligopoly” is a necessary pre-condition for a restriction of competition to occur in a such setting. Blinded by obedience to murky judicial court-speak, the Commission thus turns its back on a basic economic concept.

This is  even more suprising given that in  the following paragraph, the Commission itself recognizes that the level of concentration and the structure of supply are important features in the analysis.

Very disappointing.

Written by Nicolas Petit

16 February 2012 at 11:00 am

Posted in Uncategorized

3 Responses

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  1. I’m not sure that I see the problem. As far as I can tell from a quick scan, it’s a straightforward exercise in “object or effect”.

    More fascinatingly, why is this document partly in French and partly in English? Was it a collaboration between the legal service and DG Comp, or did someone simply go overboard with their multilingualism?

    Martin Holterman

    16 February 2012 at 6:41 pm

  2. It was Lithuanian (not Latvian) court 🙂


    17 February 2012 at 9:29 am

  3. Martin, I’m not sure I see your point.
    On your second remark, an interesting use of Franglish by the Commission

    Nicolas Petit

    17 February 2012 at 10:23 am

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