Various Forms of Competition – Where Do We Stand?

Abstract

The purpose of this paper is to attempt to conceptualize competition (to go towards the conceptualization thereof), and to support it with well-known examples (perfect competition, monopolistic competition, advertising competition), as necessary and useful in antitrust analysis. In this paper, I also advance the claim that there is no antitrust science, alluding to non-rigorous and nonexistent basic analyses in antitrust examination. Competition policy has been part of the work of the European Community (now the European Union) ever since it was set out in the Treaty of Rome in 1957. The treaty instituted ‘a system ensuring that competition in the common market is not distorted’. The definition of competition was not presented. ‘Competition policy is about applying rules to make sure companies compete fairly with each other’ – a report of the European Union ‘Competition. Making markets work better’ (2014) states. It is, however, highly unclear and highly controversial in legal doctrine and judgments what competition denotes. In particular, competition policy concerns the restructuring of markets in various industries by means of mergers and acquisitions. Council Regulation (EC) No. 139/2004 of 20 January 2004 applies to concentrations of Community dimension (as defined in Art. (1), pts (2) and (3)), and states that a concentration within the scope of the Regulation shall be appraised in a way that takes account of the need to maintain effective competition within the common market (in view of, among other things, the structure of all the markets concerned and the actual or potential competition from undertakings located either within or out with the Community (in accordance with Art. (2), pt (1) of the Regulation). Article (2), pt (3) of the Regulation states that ‘A concentration which would significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the common market’. It is not defined in the Regulation concerned what a process of effective competition signifies. The European Commission has regularly referred to this notion in its decisional practice, yet this issue remains unclear and controversial – also in the fundamental domain of competition policy: the control of concentrations between enterprises. In my paper, I shed, therefore, some light on this question.