Chillin'Competition

It looks like everything is polarised these days.

In certain countries, citizens’ positions have moved towards the extremes. Many voters abandon the centre ground to embrace radical views. It would seem it is all about joining a team – becoming a loud, proud member of a camp that supports everything that comes from within and opposes whatever comes from the other side.

The same trend seems to be extending to competition policy. Some people now even speak in terms of teams – Team Pro-Enforcement vs Team Anti-Enforcement. And I see with concern that ideas are sometimes judged not on their merits but based on the camp from which they come. X says A? Well, X is on Team Anti-Enforcement, this is what they would say, wouldn’t they?

Competition law debates have changed a great deal in little more than five years. It may just be my impression, but the arguments that were advanced in the past decade sought to persuade across the board and create a common set of principles reflecting consensus views.

This is certainly not the way in which I see debates taking shape these days. The ambition to preach beyond one’s circle is not as strong as it used to; it is not even the main objective. Here and there, claims are advanced to please the like-minded crowd and strengthen its priors – what matters is what the teams believes in, not what others may say (they’re the rival, after all).

When there is no attempt at persuading, the objective is no longer to build common ground. The goal, as in a football match, is to take over (to take over the discipline; to claim victory over the rival), not to convince.

When competition policy gets footballised, the tools also change. Law and expertise, which can be cumbersome and may provide answers we may not want to hear, are replaced by discretion and intuition, for which the sky is the limit.

The push towards the transformation of competition policy is strong, as there are powerful interests at play. Can something be done about it? I tell myself there is nothing wrong in reminding ourselves of the obvious, at least as a starting point. And I can think of the following in this sense:

The Pro-Enforcement vs Anti-Enforcement divide is a straw man: we are all in favour of enforcement

The problem with the attempt to divide scholars and practitioners between two camps is that that the Anti-Enforcement team is empty. I am yet to meet an EU competition lawyer or economist who does not believe in enforcement and, more generally, in the central role of antitrust in a social market economy (maybe such people exist, but they do not seem to be around).

In fact, I believe pretty much everybody agrees in saying that it would be wonderful if competition authorities enforced the law more, not less, and this across the board (including unilateral conduct, horizontal co-operation agreements and vertical restraints). Unfortunately, there are many practices that remain under the radar in spite of their obvious anticompetitive potential.

It is not all about ideology

There is always a strong temptation to simplify debates and to look for simple and definitive answers to complex problems. The ubiquity of this temptation goes a long way to explain polarisation as a phenomenon.

Inevitably, simplification makes inroads into competition law. It is not unusual to dismiss some views as driven by ideology. It is all too easy to conclude that, if someone is not persuaded by our position, this is because of their priors and preconceptions.

Alas, not everything is explained by ideology, and certainly not in competition law. More than a sign of foucauldian sophistication, resorting to ideology at every juncture suggests an unwillingness to engage with the subtleties and technicalities of the field (or laziness, if you want to put it that way).

It is for those who want to change the law and/or the institutional framework to convince the others

The Pro- vs Anti-Enforcement rhetoric has developed in a context in which changes to the law and/or the institutional framework are being proposed. The Special Advisers’ Report commissioned by DG Comp, for instance, has floated the possibility of reversing the burden of proof in some circumstances. The Furman Report, in turn, has (among other proposals) advanced the idea of altering the institutional setting.

The ideas advanced in these reports are bold and some of them are controversial; it is not certain that they will improve the regime. In fact, the Special Advisers were very open about the fact that their intention was to start a conversation and to gain a deeper understanding of certain phenomena, not to provide definitive answers.

Those who express scepticism or who identify the legal and economic problems with some of these ideas are not Anti-Enforcement zealots. It just happens that they are not persuaded that the proposals represent, on balance, an improvement on the system. As I have occasionally mentioned here, legal doctrines and principles are typically the result of decades of trial and error and cannot be brushed aside without proper reflection.

By the same token, the onus is on the innovators to show that the changes they advocate will improve the system – let us not lose perspective and reverse the burden of proof here, where it would be even more difficult to justify.

Expertise and evidence are built in the peer-reviewed literature, not in opinion pieces

I told a good friend last week that I feared that, in the current landscape, people would get the impression that expertise is developed in opinion pieces and editorials (or even tweets and LinkedIn posts). Pretty much anything seems to count as ‘evidence’ these days.

This is one of the most significant shifts in the discipline. Ten years ago, there was an explicit attempt to ground competition policy on the expert consensus and the best available evidence. Policy followed expertise (in other words, expertise determined whether intervention was warranted).

I have the impression that things are changing. We may reach the point where the equation is inversed and expertise follows policy: the desired policy outcome is determined in advance, and the expertise supporting the outcome is developed along the way. Inevitably, intervention would no longer reflect the best available evidence.

Sound competition law and policy is by definition grounded on the expert consensus, not on untested or work-in-progress theories that may turn out to be insufficiently robust. Thanks to the EU courts, EU competition law, as it stands, is firmly based on this premise. Things may change. There is a risk that expertise itself gets footballised (in the same way that the current US administration is trying to fooballise climate science).

The trend towards the footballisation of expertise is not easy to challenge (if only because the community of experts and the community of stakeholders is not the same). As a first step: I hope it becomes clear that an op-ed (let alone a tweet) is not evidence and a report that discusses the literature is, as mentioned above, an invitation to ask hard questions (which is a great starting point, but is far from enough).

PS: By the way, I do like football, but I happen to like basketball even more (just like Alfonso).