Factual Predictability in Competition Law Enforcement: Rules versus Standards
Amsterdam Law School Research Paper No. 2024-10
Amsterdam Centre for European Law and Governance Research Paper No. 2024-05
Amsterdam Center for Law & Economics Working Paper No. 2024-05
17 Pages Posted: 30 Mar 2024
Date Written: March 26, 2024
Abstract
This paper discusses the predictability of competition law enforcement and in particular of fact determination. It relies on the traditional jurisprudential distinction between rules and standards and focuses on the deterrent function of competition law. The paper shows that the application of rules makes fact-determination more predictable than the application of standards. At the same time, however, standards fare better than rules in terms of enforcement accuracy. As both predictability and accuracy are necessary to deter harmful conduct without deterring the benign one, this objective will hence be maximized by a legal test that generates the appropriate combination of predictability and accuracy.
Keywords: competition law, antitrust, enforcement, fact finding, predictability, legal certainty, error, rules, standards
JEL Classification: K21, K40
Suggested Citation: Suggested Citation