Fairness and Competition Law: A Fairness Paradox

Maurits J. F. M. Dolmans, Wanjie Lin, Fairness and competition law: A fairness paradox, November 2017, Concurrences N° 4-2017, Art. N° 85118, https://www.concurrences.com/en/review/issues/no-4-2017/articles/fairness-and-competition-law-a-fairness-paradox

Posted: 6 May 2021

See all articles by Maurits Dolmans

Maurits Dolmans

Cleary Gottlieb Steen & Hamilton LLP

Wanjie Lin

affiliation not provided to SSRN

Date Written: November 13, 2017

Abstract

“Fairness” in EU competition law is hotly debated. This article explores the concept from a sociological, philosophical, and legal perspective, and suggests there is a fairness paradox: while competition law should reflect the values of fairness, if fairness were actually employed in substantive decision-making as a goal and criterion, that would lead to unequal and inefficient results. This paradox is resolved by engaging in objective and rigorous analysis applying established concepts of competition law and economics: (a) “consumer welfare” and efficient allocation of resources as key goals of competition law, (b) “competition on the merits” and “effect on competition” as the core criteria for a finding of infringement, (c) proportionality and “useful effect” as a benchmark for remedies, and (d) due process and the rule of law as the hallmarks of the proper procedure for the application of competition law.

Keywords: European Union, Remedies, Economic Efficiency, Rights of Defence, Effect on Competition, Principle of Proportionality, FRAND, Competition Policy, Economic Analysis, Consumer Welfare

JEL Classification: K21

Suggested Citation

Dolmans, Maurits and Lin, Wanjie, Fairness and Competition Law: A Fairness Paradox (November 13, 2017). Maurits J. F. M. Dolmans, Wanjie Lin, Fairness and competition law: A fairness paradox, November 2017, Concurrences N° 4-2017, Art. N° 85118, https://www.concurrences.com/en/review/issues/no-4-2017/articles/fairness-and-competition-law-a-fairness-paradox, Available at SSRN: https://ssrn.com/abstract=3836729

Maurits Dolmans (Contact Author)

Cleary Gottlieb Steen & Hamilton LLP ( email )

2 London Wall Place
London, London EC2Y 5AU
United Kingdom
02076142343 (Phone)

Wanjie Lin

affiliation not provided to SSRN

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