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
Date Written: November 13, 2017
“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: Suggested Citation