The Scope for Errors, Misconceptions and Misunderstandings in the Enforcement of European Competition Law

Abstract

In this paper I address the scope for errors, misconceptions and misunderstandings in the enforcement of European competition law from two perspectives. I start with the discussions and debates between competition lawyers and competition economists concerning the method of investigation and criteria of assessment of theories of competitive harm in antitrust and merger control. Here I focus on two examples that seem to me to be relevant and topical: (i) the role of market definition, and (ii) the distinction between tacit and explicit collusion. Both offer insights into the most useful way economic analysis can be applied in antitrust. As an economist who has practised in the field of competition policy for nearly 25 years I have dealt with lawyers throughout my career and have learnt that the two professions do not always understand each other perfectly. Much of my academic research has been conducted in the inter‐disciplinary field of law and economics and I have learnt to appreciate the different ways the two disciplines approach certain issues. Most importantly, I have learnt to appreciate that errors and misunderstandings are not always due to one side only.

I then proceed to discuss misconceptions and misunderstandings concerning the implementation of remedies and sanctions, particularly the implementation of behavioural remedies. Here I focus on the importance of the distinction that is frequently made between the enforcement of competition law and the regulation of economic activity. This issue is one that is particularly relevant concerning behavioural remedies in high-tech industries. The area of remedies has been an active field of work and research for me over the last 10 years. While the literature is growing, the area is in my view still seriously under-researched. This gives rise to errors and misunderstandings. However, they may not be that well understood or commonly acknowledged.