Trends and Problems of the Antitrust of the Future

Abstract

The evolution of competition law has traditionally been driven by the US and EU systems. Over the years, the EU system has emerged as a primary model of antitrust enforcement. However, in the coming years, we will likely experience a gradual shift from a bipolar scenario to a multi-polar one, characterized by the increasing role of new players, such as China, India, and Brazil. In such an enlarged scenario, in order to continue to play a primary role in the transnational dialogue on antitrust enforcement, the EU needs to continue to develop and refine substantive principles of antitrust analysis through sound and consistent case law, as well as to improve the effectiveness of its enforcement system. However, some characteristics of the EU antitrust system could limit its capability to develop and refine its tools. The standard of review frequently adopted by the EU courts, based on the judicial deference doctrine, and the trend toward administrative and negotiated enforcement of competition rules, have limited the development of case law in the last few years. The increasing focus on consumer welfare seems to have translated, in some cases, into a consumerist approach, which is not consistent with sound antitrust principles. Furthermore, it is still controversial as to whether the EU should enhance the effectiveness and deterrence of its enforcement system by introducing criminal sanctions.