The Goals of EU Competition Law - A Comprehensive Empirical Investigation

Abstract

Competition law and enforcement are experiencing something of an awaking in the last decade. Central to the renewed interest in the role of competition law was the question of what objective it was designed to achieve. It is impossible to decide if competition law is the appropriate tool to correct the various perceived faults and imperfections of markets if it is not first known what this tool was meant to accomplish. While this question has always existed in the background of competition law scholarship and enforcement, it started moving centre stage more recently with the rise of what is collectively becoming known as the neo-brandeisian antitrust wave, which sees an expanded role for antitrust law, free from the shackles of the welfare-maximalist and efficiency-obsessed Chicago School. A broader movement built around the awareness of increasing inequality and economic concentration has also contributed to popularizing the idea that competition law and policy may have a role to play, and that therefore we should re-open the debate of its goals and purposes. In this context, we set out to undertake an empirical investigation into the goals and purposes of competition law as manifested through Court of Justice of the European Union caselaw, European Commission decisions, opinions of Advocates General and official speeches and statements delivered by the Commissioners for Competition. In this first of a kind investigation, we analyse almost 4,000 sources covering articles 101 and 102 TFEU as well as concentrations, to distil seven broad goals of competition law—efficiency, welfare, economic freedom and protection of competitors, competition structure, fairness, single market integration, and competition process—as expressed through 74 keywords, and then analyse them to extract quantitative results and qualitative patterns and insights. We also make available the datasets we compiled for further use and enhancement by competition law scholars and authorities. The datasets and results paint a comprehensive picture of what the EU courts and authorities consider the goals and purposes of competition law to be. They show the evolution and distribution of all major goals and purposes of competition law throughout its history, they highlight similarities and differences among the Court, AGs, the Commission, and the Commissioners for Competition, and they highlight patterns in different types of cases (abuse of dominance, agreements, concentrations). In doing so, the study helps scholars and authorities ground competition law analysis on its proper goals, dispenses with the myth of single-themed competition law, demonstrates the some times contradictory and other times consistent choices of EU institutions, provides national competition authorities with a benchmark to compare their own practice with that of EU-level competition law to enhance harmonisation, and ultimately underscores how the goals and purposes of competition law shape its development and evolution.