Dialectical Antitrust: An Alternative Insight into the Methodology of the EC Competition Law Analysis
European Competition Law Review, Vol. 31, No. 4, 2010
10 Pages Posted: 21 Apr 2010 Last revised: 10 Mar 2011
Date Written: April 20, 2010
The main idea behind this article was to perform a theoretical analysis of the purposes and tools of antitrust policy and law. An ancient dialectical method has been applied to separate different components of competition policy with the following deconstruction of the conflicting essence of those elements without inevitable evening-out the distinctions between them.
Dialectical approach to antitrust demonstrates why competition deserves to be explored independently from other legitimate economic goals and that the primary purpose of competition law logically is protection (via preventive antitrust, i.e. arts 101-106 TFEU) and promotion (via proactive antitrust, i.e. sector-specific regulation) of competition.
Dialectical antitrust does not deny that consumer welfare constitutes a meta-goal of modern competition policy. Indeed in the hierarchy of economic values consumer welfare remains decisive, but methodologically it is neither exhausted nor entirely embraced by competition law, which exists in order to regulate competition. Antitrust theory has striven for a long time to reconcile the apparent dilemma between the aspiration to protect the freedom of undertakings to benefit from their successful competition on one hand, and the freedom of their less successful counterparts to participate in this competition on the other; to provide for firms liberal environment on the one hand and to fine-tune their behaviour in order to establish legal predictability and economic efficiency on the other; to protect competition on the one hand and maximise common benefits for society on the other. Essentially, those three crucial dimensions of the competition dilemma can be solved within the framework of dialectical antitrust, which on the level of methodology proposes to utilitise those conflicts by placing their different components into separate parentheses.
Keywords: goal/s of antitrust, competition as a process, Ordoliberalism, Chicago school, consumer welfare
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