Industrial Policy and Competition Enforcement: Is There, Could There and Should There Be a Nexus?

Abstract

This paper muses on whether there can be, there is, and there should exist a nexus between European Union (“EU”) competition law and industrial policy. A well-known, long lasting grievance in the history of EU competition law is indeed that the European Commission (“the Commission”) has allegedly enforced the competition rules dogmatically, and turned a blind eye on industrial policy considerations. Lately, this policy debate has revived. With the current economic debacle in the Western world, decades of free-market economic policies – including competition policies – inherited from the so-called “Washington consensus” are called into question. In contrast, thriving economic models like Brazil, China, or India where the State interferes with the market at the expense of free competition, are increasingly looked by the “old world” as a possible source of inspiration.Those new developments justify devoting another paper to the question whether industrial policy considerations could and should inform EU competition enforcement. To address it, we follow a four steps methodology. We first solve definitional issues by describing the various possible meanings of “industrial policy” (I). Second, we follow a legalistic approach to review whether such considerations can, as a matter of positive law, play a role (II). Third, we turn to empirical analysis, to examine if there has been some industrial policy influence in the Commission’s case-law (III). Fourth, we review consequentialist arguments to assess whether industrial policy considerations should play a stronger role in EU competition enforcement (IV).