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Archive for September 13th, 2018

Forget about consumer welfare: it’s the law vs discretion divide that will mark the future of competition law (my presentation at the IEE in Brussels)

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The quadrants

Considerable energy has been devoted to attack (and defend) the consumer welfare standard on both sides of the Atlantic.

There is a real (perhaps growing) divide in the competition law community. Now that we are at a crossroads, this divide matters. It will mark the field for the years to come.

The above said, I think defending the consumer welfare standard is a waste of energy. For those who challenge it, consumer welfare is just a proxy war. Their end destination is not to embrace an alternative standard, but to change the shape and understanding of competition law.

(EU) competition law has progressively become a legalist discipline. Competition authorities are subject to constraints coming from the law and coming from mainstream economics. In the same vein, effective judicial review is known to be an indispensable ingredient in the system.

Under a legalist approach, consistency and predictability are paramount (for could we say that competition policy is implemented through law if enforcement were not consistent and predictable?). It is accepted that these values may occasionally lead to under-enforcement.

Those who attack consumer welfare, as much as those who say to endorse fairness or a wider range of values are, in essence, pleading to move away from legalism to embrace a discretionalist approach to competition law.

A discretionalist approach does not feel bound by consensus positions in economics, and is characteristically sceptical of them. Disregarding mainstream economics is not seen as a big deal. In fact, it may even be desirable – the consensus may be flawed for a variety of reasons.

What matters, under a discretionalist approach, is to reach the outcome that is deemed optimal in any given case. This is something that I explained already in the blog a while ago. Avoiding under-enforcement, accordingly, matters more than the consistency and/or predictability of the system. And avoiding under-enforcement may occasionally involve introducing a plurality of values or considerations.

These are the ideas I presented on Friday of last week in Brussels. My slides can be found here. I try to explain why people tend to develop a fascination with the goals of competition law, and why this debate is, by and large, irrelevant (or overly superficial).

I then move on to explain why law vs discretion is the real divide in the competition law community. As I already explained here, economic analysis can be legalism’s best friend, in the same way that formalism is often its worst foe.

I look forward to your comments!

Written by Pablo Ibanez Colomo

13 September 2018 at 10:49 am

Posted in Uncategorized