EU Competition Law as Responsive Law

41 Pages Posted: 1 Dec 2023

See all articles by Stavros Makris

Stavros Makris

University of Glasgow, School of Law; LSE Law; Wageningen Universtiy; European University Institute, Department of Law (LAW); SciencesPo - Sciences po Paris Law School

Date Written: November 19, 2023

Abstract

This article proposes two broad ways to conceptualize EU competition law. EU competition law could be viewed as ‘autonomous law’ (‘AL’), namely as a closed normative system a technocratic tool consisting of a set of rules that prohibit undue restraints of trade. Or, EU competition law could be viewed as ‘responsive law’ (‘RL’), namely as a relatively open normative system and an interpretive practice that oscillates between openness and integrity. The responsiveness approach offers a compelling conceptualization as it explains certain endogenous features of EU competition law: its fuzzy mandate, conceptually elastic vocabulary, and use of rules and standards. In addition, the responsiveness approach can clarify the role economics plays in EU competition law. It views economics as an ‘ideological science’, which, even though it cannot insulate this legal field from value disagreements and make it ‘autonomous’, it can provide a source for positive and normative interpretive statements. On this basis the responsiveness approach maintains that EU competition law is by design open—ie conceptually elastic and factually sensitive—and that its openness can enhance, but also undermine its integrity—ie its capacity to realize its objective in a rule of law-compatible manner. These conflicts between openness and integrity are the cause of EU competition law’s relative indeterminacy. To deal with the problem of indeterminacy, the RL approach proposes a tripartite legal-institutional modus operandi consisting of constructive interpretation, responsive enforcement, and catalytic adjudication. Hence, considering EU competition law as a form of responsive law has three major implications: first, it offers a new way of understanding how this legal field works and changes; second, it suggests a strategy for dealing with EU competition law’s indeterminacy, and third it proposes a new framing for the discursive practices of EU competition law’s epistemic community.

Keywords: EU competition law, Indeterminacy, Legal Theory, Law & Economics, Interpretation, Enforcement, Regulatory Theory, Judicial Review

JEL Classification: A11, A12, A13, B40, B21, B41, K00, K21, K40, K41, K42

Suggested Citation

Makris, Stavros, EU Competition Law as Responsive Law (November 19, 2023). Available at SSRN: https://ssrn.com/abstract=4637976 or http://dx.doi.org/10.2139/ssrn.4637976

Stavros Makris (Contact Author)

University of Glasgow, School of Law ( email )

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LSE Law ( email )

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Wageningen Universtiy ( email )

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European University Institute, Department of Law (LAW) ( email )

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SciencesPo - Sciences po Paris Law School ( email )

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